EXHIBIT 10.40
BulkTainer(Register Trademark) Mktg Svcs Agmnt
May 18, 1995
BulkTainer(Register Trademark)
C.D. No. ______
BulkTainer(Register Trademark) SERVICE MARKETING SERVICES AGREEMENT
This Agreement is made this 19th day of May, 1995, between UNION
PACIFIC RAILROAD COMPANY, a Utah corporation, maintaining its principal office
at 0000 Xxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000 (herein "UPRR") and CHEMICAL XXXXXX
TANK LINES, Inc., a Delaware corporation, maintaining its principal office at
000 Xxxxxxxxx Xxx, Xxxxx, XX 00000-0000 (herein "CLTL").
UPRR and CLTL hereby agree to be bound by the following terms and
provlslons:
1. Definitions.
a. BulkTainer(Register Trademark) refers to a UPRR owned or leased
wheelless tank vehicle, which meets ISO, IMO and AAR 600 design specifications
for the transportation of liquid bulk commodities in TOFC (Trailer on Flat Car)
and/or COFC (Container of Flat Car) service on American, Canadian and Mexican
railroads.
b. BulkTainer(Register Trademark) Service is a service provided by
Union Pacific Railroad Company that consists of logistics management for the
movement of bulk liquids from and to points within the United States, Mexico and
Canada in BulkTainers (ISO-type tank containers), including the provision of
said containers. This shall also include rail-served, door-to-door shipments
moving in containers owned or leased by customer from an entity other than UPRR
for customers that have been designated by UPRR.
c. "Chemical Waste" or"Waste" shall mean:
(a) all waste defined or characterized as hazardous waste under the
Resource Conservation and Recovery Act (RCRA) 42 U.S.C. S. 6901 et seq., or
the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), 42 U.S.C. S. 9601 et seq., as each may be amended from time to
time, and regulations promulgated thereunder;
(b) all polychlorinated biphenyl (PCB) or PCB-contaminated waste; and
BulkTainer(Register Trademark) Mktg Svcs Agmnt
May 18, 1995
(c) all waste defined or characterized as hazardous, chemical,
industrial or special waste by either the principal agency of any state of
the United States having jurisdiction over hazardous waste transported
under this Agreement or the principal agency of any foreign jurisdiction
with respect to hazardous waste generated from outside the United States;
PROVIDED, HOWEVER, that the term "Chemical Waste":
(1) Is intended to mean and include those substances which are
not normally expected to be disposed of by employing generally
accepted sanitary landfill disposal methods; and
(2) For purposes of this Agreement, shall include radioactive
wastes;
2. Term. This Agreement will commence on the date first written above and
will remain in effect for a term of one (1) year. This Agreement shall
automatically be renewed for subsequent terms of one year each unless either
party provides written notice of its intention to terminate this Agreement
ninety (90) days prior to the date on which it is to be renewed or unless
otherwise terminated pursuant to the terms of this Agreement.
3. Marketing Services.
a. UPRR hereby retains CLTL to sell BulkTainer(Register Trademark)
Service to customers or classifications of customers specified by UPRR. UPRR
will identify those customers to CLTL upon execution of this Agreement. It is
further agreed that CLTL may sell, price or otherwise commit
BulkTainer(Register Trademark) Service for shipments of Chemical Waste or
Waste, provided however that prior to shipment UPRR shall have obtained from the
Chemical Waste or Waste customer a fully executed CHEMICAL WASTE SHIPPER
AGREEMENT.
b. CLTL will diligently, faithfully, loyally and legally use its best
efforts to solicit and obtain traffic for the BulkTainer(Register Trademark)
Service offered by UPRR. CLTL will exert every effort to uphold the good
reputation of UPRR and will not knowingly, recklessly or negligently
misrepresent the services and/or abilities of UPRR. CLTL specifically
acknowledges that BulkTainer(Register Trademark) Service is a unique service of
UPRR for which CLTL is solely a sales representative.
c. CLTL agrees to sell BulkTainer(Register Trademark) Service subject
to UPRR approved rates, rules, terms and conditions as they are set forth in
UPRR circulars including Exempt 28 - Series and/or as may be set forth in
applicable transportation contracts.
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BulkTainer(Register Trademark) Mktg Svcs Agmnt
May 18, 1995
4. Pricing.
a. BulkTainer(Register Trademark) Service is a unique intermodal
service furnished solely by UPRR with a limited amount of equipment over which
UPRR must exercise total control in order to provide this service to as many
customers as possible. [Therefore, with the exception of final xxxxx and
billing, UPRR will retain control over all aspects of BulkTainer(Register
Trademark) Service, e.g., order process from customers, managing the shipment
from origin to destination, coordinating of BulkTainer(Register Trademark)
shipments and maintaining chassis provided by UPRR] All prices will be quoted by
UPRR to CLTL on a door-to-door basis unless otherwise requested by CLTL. The
objective is to provide a true marketing-type relationship between UPRR and
CLTL. This is to be accomplished by joint consultations between UPRR and CLTL
concerning the domestic tank container market and door-to-door service
requirements. Then UPRR will establish an intermodal price for the subject
transportation which will offer customers a competitive transportation option.
b. Each price will be in the form of a customer-specific UP
BulkTainer(Register Trademark) Price Quotation covering each individual
movement. Price Quotations shall remain in effect for ninety (90) days, unless
otherwise provided.
c. UPRR will develop a rate matrix pricing document for CLTL setting
out BulkTainer(Register Trademark) Service's Base Price(s) from and to specific
origin(s) and destination(s). This pricing document shall be updated by UPRR as
often as necessary to incorporate any new origin(s) and/or destination(s),
provided however, the rate matrix pricing document shall be completely reissued
and Base Prices adjusted, as necessary, by UPRR on an annual basis.
d. CLTL will attempt to identify potential new customers, the service
requirements expected by such customers, the carrier(s) currently used by such
customers and the transportation costs currently incurred by such customers.
This information will be furnished to UPRR along with the potential customer's
origin(s), destination(s), commodity and identity of party paying freight
charges.
5. Price.
a. CLTL may recommend to UPRR the level at which UPRR will have to
price BulkTainer(Register Trademark) Service in order to meet competition. UPRR,
after consultation with CLTL, will then establish a competitive door-to-door UP
BulkTainer(Register Trademark) Price Quotation.
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BulkTainer(Register Trademark) Mktg Svcs Agmnt
May 18, 1995
b. UPRR agrees that CLTL's Base Price for BulkTainer(Register
Trademark) Service quoted to CLTL under this Agreement will not be higher than
the price quoted to any other entity on BulkTainer(Register Trademark) Service
from and to any similar origins or destinations on like commodities.
c. The xxxxx quoted by UPRR for CLTL's use with customer will include
the base compensation for all services to be provided by UPRR (hereinafter "Base
Price"). CLTL may, at its discretion, attempt to sell the BulkTainer(Register
Trademark) Service at a price higher than that provided by UPRR. If the customer
agrees to the higher price offered by CLTL, UPRR will share the additional
revenue with CLTL as set forth in Appendix A. CLTL must advise UPRR immediately
of the price accepted by the customer.
Notification to UPRR shall be made to:
Product Manager-BulkTainer(Register Trademark) Pricing
Union Pacific Railroad Company
0000 Xxxxx Xxxxxx, Xxxx 000
Xxxxx, XX 00000-0000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Notification to CLTL shall be made to:
Chemical Xxxxxx Tank Lines, Inc.
000 Xxxxxxxxx Xxx
Xxxxx, XX 00000-0000
Attn:General Manager Intermodal Service
Phone No: (000) 000-0000
Fax No: (000) 000-0000
c. UPRR will provide price confirmation documents to CLTL for each
quote or series of quotes issued. CLTL shall provide written confirmation of the
transportation charge provided to, billed to and agreed to by the customer.
d. CLTL agrees to notify UPRR in advance, in accordance with UPRR
procedures, of the Bulktainers which will be reloaded and the point to which it
is destined. This includes Bulktainers equipment reloaded via reverse routing.
CLTL agrees to contact UPRR for disposition of empty equipment which cannot be
provided a return load.
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May 18, 1995
6. Billing/Credit.
a. CLTL shall xxxx the customer the amount set forth in the price
confirmation document for each shipment. The freight xxxx will indicate CLTL as
the sales representative for UPRR and refer specifically to the product as Union
Pacific BulkTainer(Register Trademark) Service.
b. UPRR will xxxx CLTL for BulkTainer(Register Trademark) Services
detailing the 1) base price, 2) UPRR's portion of any additional amount that
exceeds the base price. CLTL will pay UPRR the net amount (i.e., price less
commission) within 15 days from the date of UPRR's xxxx.
c. CLTL will be responsible for collection and payment of all
accessorial charges accrued against customer BulkTainer(Register Trademark)
shipments. UPRR agrees to assist the development of shipment of specific data to
support the accessorial accrual. CLTL will not be required to remit payment for
accessorial charges assessed or incurred by UPRR when: 1) UPRR has failed to
provide CLTL with all documentation that supports the accessorial charges, or 2)
such charges are unpaid by CLTL's "Xxxx To" party. CLTL may not waive any
accessorial charge(s) unless written authorization granting such waiver is
provided by UPRR.
7. Transition Business. CLTL desires to convert its existing ISO-tank
intermodal business ("Chem Shuttle") to BulkTainer(Register Trademark) Service
as a more efficient service to customers. CLTL agrees to provide UPRR with the
specific origin(s)/destination(s) and rail price information of CLTL's current
ISO-tank intermodal business ("Chem Shuttle"). UPRR agrees to provide CLTL with
the specific origin(s)/destination(s) of select UPRR BulkTainer(Register
Trademark) business. Both parties will analyze the others origin/destination and
price information and determine if the economics meet current revenue
requirements. In the event the price is non-compensatory, then the parties agree
to provide their minimum revenue requirements to each other. If the minimum
revenue requirements and/or customer position will not support the others
revenue needs, then the parties hereto will jointly consider alternative
positions.
8. Recordkeeping and Audits: CLTL shall keep accurate records of shipments
covered by this Agreement, and designated UPRR personnel or UPRR's agent shall,
at reasonable times, have the right to inspect such records kept by CLTL for the
purpose of determining compliance with the terms of this Agreement.
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BulkTainer(Register Trademark) Mktg Svcs Agmnt
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9. CLTL to Furnish Necessary Supplies. Etc. CLTL will, at its own expense,
furnish all superintendence, labor, tools, equipment, materials, supplies and
all other things necessary for providing the Marketing Services.
10. Non-Employee/Non-Agent Status of CLTL. CLTL is not and will not be
considered an employee or an agent of UPRR or any company affiliated with UPRR,
it being the intention of the parties that CLTL is and will remain an
independent contractor and nothing herein will be construed inconsistent with
that status. CLTL will serve only as a sales representative for UPRR's
BulkTainer(Register Trademark) Service in order to procure customers for such
service. CLTL shall not make any representations that it is an agent for UPRR.
Furthermore, CLTL shall not make any representations concerning UPRR or its
service without UPRR's consent.
11. Confidentiality. Both parties acknowledge that CLTL's performance of
the services under this Agreement will result in the sharing of proprietary,
confidential information and the receipt of such information from customers,
prospective customers, or other persons. CLTL agrees that CLTL, its officers,
agents and employees, will treat any such proprietary, confidential information
with the utmost discretion and that they will not disclose such information to
any person, firm or entity without the prior written consent of the owner or
originator of such information; PROVIDED, HOWEVER, that if either party hereto
is required by law, judicial or administrative order or regulation to divulge
any such information to a proper public authority, such disclosure may be made
in a manner that is agreed to and coordinated with the owner or originator of
such information and in such manner as will most effectively protect such
information from further disclosure.
12. Indemnity.
a. Each party shall indemnify, defend and hold the other party harmless
from and against any and all expense, cost and liability to third parties for
loss and damage, including but not limited to loss and damage to commodity,
personal injury, or death, and property or environmental damage, arising out of
or resulting from the wrongful or negligent acts or omissions of such party, its
agents and employees. To the extent the proximate cause of the loss, damage,
personal injury, death, or property or environmental damage cannot be
determined, any amount claimed by the third party shall be apportioned equally
between UPRR and CLTL. To the extent an act or omission of either party is not
the sole cause but contributes to the above loss or damage, each party shall be
liable for only that portion of the loss or damage caused by its negligence.
b. CLTL will indemnify UPRR and hold UPRR harmless against and from any
liability, loss, damage, claims, demands, costs and atterneys' fees arising from
or growing out of any claims or representations by CLTL that go beyond the
authority explicitly granted to CLTL by UPRR.
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BulkTainer(Register Trademark) Mktg Svcs Agmnt
May 18, 1995
13. Termination. This Agreement may be terminated by UPRR by giving ninety
(90) days prior written notice to CLTL notwithstanding any other provision in
this Agreement. Written notice may be given by certified U.S. Mail, return
Receipt Requested, wire or facsimile. When given by U.S. Mail notice shall be
deemed to commence as of the postmark date.
14. Assignment. CLTL may not assign or sublet this Agreement, or any
interest therein, without the prior written consent of UPRR. Subject to the
provisions of this Section 14, this Agreement will be binding upon and inure to
the benefit of the parties hereto, their successors and assigns.
15. Non-Waiver. The failure of either party to enforce, or the breach or
waiver of, any provision or term of this Agreement will not be deemed to be a
waiver of such provision or term, or the right of either party thereafter to
enforce such term or provision.
16. Compliance with Applicable Law. In the performance of the work
specified in this Agreement, CLTL will comply with all applicable federal and
state enactments with reference to Employer's Liability, Worker's Compensation,
and Worker's Insurance, and will indemnify and hold harmless UPRR and any
company affiliated with UPRR against and from any and all liability, damages,
claims, demands, costs, and expenses of whatsoever nature due to the existence
of such enactments, or resulting from any claim of subrogation provided for by
such enactments otherwise.
17. Non-Exclusive. This Agreement does not grant CLTL the exclusive right
to perform Marketing Services described in this Agreement. However, CLTL
expressly agrees that it shall solicit transportation business involving
transportation of liquid commodities in BulkTainer(Register Trademark) or in
ISO, IMO or AAR-600 approved intermodal equipment for BulkTainer(Register
Trademark) Service for no entity other than UPRR during the term of this
Agreement.
18. Notice. Any notice given or required to be given to a CLTL or UPRR
pursuant to any provisions of this Agreement shall be given in writing and shall
be personally delivered, transmitted electronically or sent by U.S. registered
mail, with necessary postage prepaid, to the following:
To UPRR: Union Pacific Railroad Company
0000 Xxxxx Xxxxxx, Xxxx 000
Xxxxx, Xxxxxxxx 00000-0000
Attn: Manager-BulkTainer Service
Phone: (000) 000-0000
Fax: (000) 000-0000
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BulkTainer(Register Trademark) Mktg Svcs Agmnt
May 18, 1995
To CLTL: Chemical Xxxxxx Tank Lines, Inc.
000 Xxxxxxxxx Xxx
Xxxxx, XX 00000-0000
Attn:General Manager Intermodal Services
Phone: (000) 000-0000
Fax (000) 000-0000
19. Arbitration. If at any time a question or controversy arises between
UPRR and CLTL concerning the construction or interpretation of any part of this
Agreement, or concerning the business or manner of transacting business carried
under its provisions, or concerning the observance or performance of any of the
conditions herein contained or the rights or obligations of either party under
or arising from this Agreement, upon which question the parties cannot agree,
such questions or controversy shall be submitted to binding arbitration in
accordance with the Federal Arbitration Act (9 U.S.C. Section 1 et seq.) and the
Commercial Arbitration Rules of the American Arbitration Association. The
decision of the arbitrator or arbitrators shall be final and binding upon the
parties hereto. Each party to such arbitration shall pay the compensation,
costs, fees, and expenses of its own witnesses, exhibits, and counsel. The
compensation, costs, fees, and expenses of the arbitrator or arbitrators shall
be borne equally by the parties.
20. Entire Understanding. This Agreement, and any Appendix(cies)/Exhibit(s)
constitutes the complete and entire agreement for the services defined herein
and supersedes all prior and contemporaneous proposals, representations,
statements, agreements and promises, express or implied, with respect thereto.
This Agreement may be amended only in a writing signed by the parties.
21. Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity or
legality of the remainder of this Agreement.
22. Additional Documents. Either party hereto, upon the request of the
other party, agrees to perform all further acts and execute, acknowledge, and
deliver any documents that may be reasonably necessary, appropriate, or
desirable to carry out the provisions of this Agreement.
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BulkTainer(Register Trademark) Mktg Svcs Agmnt
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IN WITNESS WHEREOF, CLTL and UPRR have executed this Agreement as of the
day and year first above written.
Witness: UNION PACIFIC RAILROAD COMPANY,
/s/ X. X. Xxxxx By /s/ X. X. Xxxx
------------------------ -------------------------------
X. X. Xxxxx X. X. Xxxx
Market Manager- Assistant Vice President-Chemicals
BulkTainer(Register Trademark)
CHEMICAL XXXXXX TANK LINES, INC
By /s/ [Illegible]
-----------------------------
Date: 5/19/95
--------------------------
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BulkTainer(Register Trademark) Mktg Svcs Agmnt
May 18, 1995
BULKTAINER(Register Trademark) SERVICE
MARKETING SERVICES AGREEMENT
APPENDIX A
CLTL will receive the following Compensation for sales and services
provided under this Agreement for specific customers who purchase
BulkTainer(Register Trademark). Service from UPRR as a result of CLTL's efforts:
UPRR will pay CLTL Compensation which will be calculated as shown below.
Compensation refers to the amount of money CLTL will be paid for each
BulkTainer(Register Trademark) shipment moved for a UPRR customer that exceeds
the Base Price set by UPRR. UPRR will pay Compensation to CLTL in accordance
with the following formula:
1. CLTL receives as Compensation, 8% of the base Price.
2. Compensation exceeding the Base Price will be apportioned:
50% - UPRR
50% - CLTL
Example
-------
UPRR Base Price: $3,260
CLTL Sold Price: $4,000
------
Difference: $740
Apportionment
-------------
CLTL UPRR
$3,260.00 X 8% = $261.00 $3,280.00 X 92% = $2,999.00
$740.00 X 50% = $370.00 $ 740.00 X 50% = $ 370.00
------- ---------
Total $631.00 Total $3,369.00
Witness: UNION PACIFIC RAILROAD COMPANY,
/s/ X.X.Xxxxx By /s/ X. X. Xxxx
-------------------------- ------------------------------
X.X.Xxxxx X. X. Xxxx
Assistant Vice President - Chemicals
CHEMICAL XXXXXX TANK LINES, Inc.
By: /s/ [Illegible]
-----------------------------
Date: 5/19/95
--------------------------
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