TRUCK TRANSPORTATION AGREEMENT
JUNE 15, 2001
THIS TRUCK TRANSPORTATION AGREEMENT (this "Agreement") is made and
entered into effective the 15TH day of June 14, 2001, by and between Unified
Services Group, LLC ("Unified" ) and J.S. Transportation, Inc. a State of New
Jersey company, having an address at ________ ("JS") (the Unified and Cross
Harbor being hereinafter collectively referred to as the "Parties").
RECITALS
WHEREAS, Unified is the owner of TTJV, LLC who has a contract to
beneficially dispose New York City municipal biosolids ("NYCDEP") through 2013;
and
WHEREAS, JS is in the business of transporting material including
containers by truck; and
WHEREAS, the Parties are desirous of entering into an Agreement
pursuant to which JS will transport sealed containers from various locations in
New York City to the New York Cross Harbor facility in Jersey City, New Jersey
which facility is commonly known as the Greenville Terminal.
NOW, THEREFORE, In consideration of the mutual promises, covenants, and
representations, warranties, and guarantees set forth in this Agreement, and
other good and valuable consideration, the Parties, intending to be legally
bound, hereto agree to the following:
1. Definitions And Special Provisions. For purposes of this
Agreement, the following definitions and special provisions shall apply:
(a) "Commencement Date" shall mean the 1 day of July 2001, or
such other date that the Parties shall agree to in writing.
(b) "Containers" shall mean the one hundred forty (140) 28 or
30 cubic yard, twentyfour (24) ton gross loaded weight, Intermodal containers,
constructed by Vanco, Inc., Accurate Industries, Hill Manufacturing, and/or
Xxxxxxxxx Manufacturing, Inc., which are each capable of carrying approximately
twenty and one half (201/2) tons of biosolids, which containers are more
specifically identified on Exhibit A 1 attached hereto and made a part hereof.
(c) "Routine Maintenance" shall mean all reasonably necessary
repair and maintenance incidental to normal usage of trucks, chassises, and
containers relating only to the performance of the daily operations. The Parties
will provide their own maintenance to their own equipment per separate contracts
and agreements.
(d) Chassis will be provided by Unified to JS and all
requirements concerning that equipment shall be Unified's responsibilities,
except that the Parties shall use their best efforts to cooperate and protect
each others equipment and the overall operations to effectively perform under
the municipal biosolids contracts.
2. Term of Lease. The Agreement term hereunder ("Term") shall commence
on the 1 day of July 2001 and terminate on November 1, 2002. By agreement,
the Term of this lease may be extended upon terms and conditions mutually
acceptable to both Parties.
3. Transportation Service Fee. The Transportation Service Fee
("Fee") for all truck transportation services to Unified by JS shall be ALL
INCLUSIVE, e.g., gas, tolls, licenses, taxes, maintenance, insurance, permits,
etc., during the Term of this Agreement herein as follows:
(a) Twohundred and thirtyeight dollars ($238.00) per
round trip from any New York City, NY waste water
treatment facility to the Greenville Terminal. The
fee shall be payable on the 15th day of each month
during the Term hereof, subject to a detailed invoice
mutually agreed to by the Parties and submitted to
Unified within three days of the 15th of each month.
(b) Unified represents and warrants that it will
guaranty to JS a minimum of 2100 container loads
annually during the term of this Agreement
4. Dispatcher Service. JS shall provide a fulltime dispatcher who shall
be available to Unified personnel to communicate all required scheduling in
accordance with the NYCDEP contract.
(a) JS will cooperate fully in Unified's obligation to provide to
NYCDEP a "real Time" information system whereby, NYCDEP officials will
be able to ascertain accurate information concerning all biosolds
movement and storage commencing with the actual pickup from the
treatment facilities.
8. Indemnity. The JS agrees at its sole cost and expense to defend and hold the
Master Lessor and/or Unified harmless from and against any liability, claim,
demand, lien, suit, action or proceeding, judgment, award, decree, and all costs
and expenses incurred therewith, including attorney's fees, for (a) any failure
of JS to comply with its obligations under this Agreement and (b) death, injury
or damage to property or person or any other liability whatsoever arising out of
its negligence in the transportation, of the Containers by JS or its
subcontractor, including fines, penalties and/or damages resulting from any
environmental violations or pollutant discharges or spills. JS, while in
possession, shall bear all risk of loss, damage, theft or destruction (partial
or total) of the to the Containers caused by its negligence.
9. Insurance. JS shall, at its sole expense, obtain and maintain
Comprehensive or Commercial General Liability. Said policy of insurance shall be
in a minimum amount of U.S. Five Million Dollars ($5,000,000), combined single
limit, for both bodily injury and property damage. Lessee shall, in addition and
at its sole expense, obtain and maintain "All Risk" Physical Damage insurance in
such amount as is equal to the Container's replacement value. Furthermore, JS
shall, at its sole expense, shall also obtain and maintain (i) Workers'
Compensation insurance in amount and form necessary to satisfy statutory
requirements, and (ii) environmental pollution insurance as may be required by
any customer of Unified. JS shall furnish Unified with a certificate of such
insurance immediately upon issuance thereof and all such certificates shall
include Unified and/or the Master Lessor as an additional insured regarding the
Commercial General Liability and loss payee on the "All Risk" policy and any
pollution liability insurance policy required by Unified's customers, as
applicable, and shall require notice to Unified and the Master Lessor of any
cancellation or material changes in such policies or coverage's thirty (30) days
in advance thereof. The maintenance of insurance by Unified hereunder shall not
be deemed or construed to limit or modify the Cross Harbor's obligations under
this Agreement. If JS fails to obtain such insurance or fails to pay the premium
when due, Unified may do so and may charge JS the amount of such premiums.
10. Late Charge; Assessments.
(a) Unified shall pay the Fee and any other applicable charges
under this Agreement when due. In the event that Unified does not make any
payment within ten (10) days when due, the Unified shall pay a late charge of
five (5%) percent of the late monthly rental payment (the "Late Charge"). The
Late Charge shall accrue interest at the rate of eighteen (18%) percent per
annum, or the maximum amount permissible under law, whichever is less, on the
unpaid amount of such monthly payment, plus any collection or other cost,
including reasonable attorney's fees, regardless of whether suit is filed.
(b) JS shall also pay all taxes, fees and assessments of every
kind and nature whatsoever, including, but not limited to, sales tax, property
tax, excise tax, or any other tax, charge, fee, assessment, or levy whatsoever
together with any penalties, fines or interest thereon (herein collectively
called the "Assessments") which may be charged against the Unified with respect
to the use, transportation, operation and possession of the JS Equipment. In the
event the Assessments are not paid by JS when due, then, in addition to all
other remedies reserved to Unified hereunder at law and in equity, Unified may,
but is not obligated to, pay the Assessments and collect the same from JS.
11. Default. The occurrence of any of the following events
shall constitute an event of default ("Event of Default") under this Agreement.
(a) Unified fails to pay the Fee or an additional amount due
hereunder when due and such failure to pay continues for ten (10) consecutive
days after written notice from the JS; or
(b) Unified fails to pay any other sum required to be paid
hereunder, and such failure continues for a period of ten (10) days following
written notice from JS; or
(c) JS fails to perform any other term, covenant or condition
of this Agreement, which failure is not cured within ten (10) days after written
notice from Unified, including, without limitation, the following:
(i) JS fails to maintain the insurance provided
for herein; or
(ii) JS ceases to exist or terminates its
independent operations by reason of any discontinuance, dissolution,
liquidation, merger, sale of all or substantially all of its assets, or
otherwise ceases doing business as a going concern; or
(iii) JS (a) applies for or consents to the
appointment of, or the taking of possession by, a receiver, custodian, trustee,
liquidator or similar official for itself or for all or a substantial part of
its property, (b) is generally not paying its debts as such debts become due,
(c) makes a general assignment for the benefit of its creditors, (d) commences a
voluntary case under the United States Bankruptcy Code, as now or hereafter in
effect, seeking liquidation, reorganization or other relief with respect to
itself or its debts, (e) files a petition seeking to take advantage of any other
law providing for the relief of debtors, (f) takes any action under the laws of
its jurisdiction of incorporation or organization similar to any of the
foregoing, or (g) takes any corporate action for the purpose of effecting any of
the foregoing; or
(iv) A proceeding or case is commenced, without the
application or consent of Unified, in any court of competent jurisdiction,
seeking (a) the liquidation, reorganization, dissolution, or winding up of JS or
composition or readjustment of the debts of the JS, (b) the appointment of a
trustee, receiver, custodian, liquidator or similar official for JS or for all
or any substantial part of its assets, or (c) similar relief with respect to the
Lessee under any law providing for the relief of debtors; or an order for relief
is entered with respect to the JS in an involuntary case under the United States
Bankruptcy Code, as now or hereafter in effect, or an action under the laws of
the jurisdiction of incorporation or organization of JS, similar to any of the
foregoing, is taken with respect to the JS or without its application or
consent; or
12. JS's Remedies. Upon the occurrence of an Event of Default and while
such Event of Default is continuing, JS, at its sole option, upon its
declaration, and to the extent not inconsistent with applicable law, may
exercise any one or more of the following remedies:
(a) JS may terminate this Agreement, whereupon all
rights of Unified to the use of the trucks, drivers, and dispatcher shall cease;
or
(b) Whether or not this Agreement is terminated, JS will, at
the sole cost and expense of Unified, return any or all of the Containers and
chasis promptly to the possession of the appropriate Lessor in good repair and
good working order and condition. JS, at its sole option and through its
employees, agents or contractors, may take the necessary steps required under
the law to take immediate possession thereof, all without liability to JS, its
employees, agents or contractors for such entry; or
(c) JS may proceed by court action to enforce performance by
Unified of this Agreement or pursue any other remedy it ma0y have hereunder, at
law, in equity or under any applicable statute, and recover such other actual
damages as may be incurred by JS; or
(d) JS may recover from Unified damages, not as a penalty but
as liquidation for all purposes and without limitation of any other amounts due
from Unified under this Agreement, in an amount equal to the sum of (i) any
unpaid fees and/or any additional amounts due hereunder (ii) the present value
of all future fees calculable hereunder required to be paid over the Term
remaining after after default.
13. Usage. The Parties represents that it's Equipment will be used in
the United States and will be used only in the lawful nonhazardous biosolids
transport business. The Parties hereby agree that, if required from time to time
by any Lessor, the Parties shall immediately report the exact location of each
item of the Equipment to the Lessor. The Parties agree to comply with all
applicable state and federal transportation laws and all railroad and yard rules
and regulations and not to exceed the rated maximum weight capacity of the
chassis and Containers.
14. NonAssignment. JS shall not assign, mortgage or encumber this
Agreement , or otherwise relinquish possession of any unit of Unified's
Equipment without the prior express written consent of the Lessor, which shall
be given at the sole discretion of the Lessor.
15. No Damage. JS shall not be liable to Unified or any other person
for any failure or delay in the performance of any obligations due to events
beyond its reasonable control, including but not limited to, fire, storm, flood,
earthquake, explosion, accidents, acts of the public enemy, sabotage, riots,
civil disorder, strikes, lockouts, labor disputes, labor shortage, work
stoppages, transportation embargoes or delays, failure or shortage of materials,
supplies or equipment, failure of suppliers to deliver as requested, failure of
repairs facilities to accomplish repairs or maintenance, acts of God, and acts
of regulating or priorities of any governments or its branches or agencies, or
otherwise..
16. Limited Use. JS shall not use any Containers and/or any
chassis, or permit any of the Equipment to be used for any purpose other that
that which is contemplated by this Agreement.
17. Relationship. The Parties shall never at any time during the
duration of this Agreement for any purpose whatsoever be or become the agent of
the other Party hereto.
19. Acknowledgement as Subcontractor. Upon the execution of this
Agreemenmt, Hydropress agrees that it will immediately notify The City of New
York, Department of Environmental Protection, Bureau of Wastewater Treatment
that JS shall be designated as a "Subcontractor" under its long term biosolids
management contract with The City of New York, Department of Environmental
Protection, Bureau of Wastewater Treatment.
20. Remedies Cumulative. Each parties rights and remedies with
respect to any of the terms and conditions of this Agreement shall be cumulative
and not exclusive, and shall be in addition to all other rights and remedies
provided by law or in equity.
21. Captions. The captions contained herein are not a part of
this Agreement. Such captions are only for the convenience of the parties and do
not in any way modify, amplify, or give full notice of any of the terms,
covenants or conditions of this Agreement. The Recitals at the beginning of this
agreement are a substantive part hereof.
22. Choice of Law. This Agreement shall be interpreted under and
governed by the laws of the State of New Jersey. The Parties hereby agrees that
any claim or controversy arising out of this Agreement may, at either Parties
option, be litigated in state or Federal courts located in the State of New
Jersey and the Parties hereby irrevocably consent to submit to the jurisdiction
of such courts and/or the American Arbitration Association in The State of New
Jersey, under its Commercial Rules. Service of process shall be completed seven
(7) days after mailing through the U.S. Postal Service, certified mail, return
receipt requested, to the above address of the Party to be served.
23. Notices. Notice and other communications required
hereunder shall be given in writing by registered or certified mail, or
facsimile at the address above or at such other address as may hereafter be
given in writing by either Party.
24. NonWaiver. No waiver by Unified of any "breach" or "default"
hereunder, or omission or delay by the Unified in exercising any of its rights
hereunder, or course of dealing between Unified and Cross Harbor shall operate
as a waiver by Unified to subsequently require full compliance with this
Agreement or as a waiver of any of Unified's rights or remedies hereunder, nor
shall any single or partial exercise by the Unified of its rights hereunder
preclude any other or further exercise of any other right.
26. Facsimile Signatures. Facsimile signatures shall be valid
for purposes of the execution and delivery this Agreement.
27. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
28. Severability. Any provisions of this Agreement prohibited
by the law of any Jurisdiction shall, as to such jurisdiction, be ineffective
and to the extent of such prohibition without invalidating the remaining
provisions of this Agreement.
29. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties hereto with respect to the subject matter hereof, and shall
inure to the benefit of and bind the successors, heirs and legal representatives
and, where assignment is permitted hereunder, assigns of the Parties hereof. Any
change or modification to this Agreement must be in writing and signed by the
Parties herein.
IN WITNESS WHEREOF, the Parties hereto have caused this Full Service
Truck Transportation Agreement to be executed and delivered as of the date and
year first written above.
ATTEST: UNIFIED SERVICES GROUP, LLC.
________________________ By: __________________________________
Xxxxx X. Xxxxxx, President
ATTEST: J.S. Transportation, Inc.
_______________________ By:__________________________________
Xxxxxx X. Xxxxxxx, President
