TRANSPORTATION AND OCCUPANCY AGREEMENT
This Transportation and Occupancy Agreement (hereinafter referred to as
the "Agreement") is made and entered into on this 19th day of November, 2001 by
and among New York Cross Harbor Railroad Terminal Corporation, a New York
corporation, with a principal place of business located at 0000 Xxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Cross Harbor"), J S
Transportation, a New Jersey corporation, with a principal place of business
located at 000 Xxxxxxxx Xxxx, Xx. Xxxxx, Xxx Xxxxxx 00000 (hereinafter referred
to as "J S") and Transload Services, L.L.C., an Illinois limited liability
company, with a principal place of business located at 0000 Xxxx 000xx Xxxxxx,
Xxxxx Xxxxx, Xxxxxxxx 00000 (hereinafter referred to as "Transload").
WITNESSETH:
WHEREAS, Cross Harbor is a shortline rail carrier authorized to
transport railcars via a rail float barge to its rail terminal at the Greenville
Yard in Jersey City, New Jersey;
WHEREAS, J S is a trucking company operating in the continental United
States;
WHEREAS, Transload is in the business of receiving steel by rail,
unloading it, staging it and loading it onto trucks for delivery; and
WHEREAS, Transload desires to enter into an agreement with Cross Harbor
and J S to occupy certain real property from Cross Harbor and to contract for
certain transportation services from Cross Harbor and J S and Cross Harbor and J
S desire to enter into an agreement with Transload to do the same.
NOW, THEREFORE, in consideration of the premises and of the mutual
promises, covenants, representations and warranties herein contained, the
parties hereto, intending to be legally bound by the terms hereof, covenant and
agree as follows:
1. Occupancy of Cross Harbor Premises at Greenville Yard. Cross Harbor
hereby grants to Transload, and Transload hereby accepts from Cross Harbor the
exclusive right to occupy, approximately 4.5 acres, of real property located at
the west end of the Greenville Yard in Jersey City, New Jersey ("Greenville
Yard"), as more fully set forth on the site-plan attached hereto as Exhibit A,
to be used for the operation of Transload's Business (hereinafter defined in
Section 2). Upon Transload reaching the 1,000 annual railcar level of actual
traffic, additional acreage shall be granted to Transload in an amount as agreed
upon by both parties.
2. Operation of Transload's Business at Greenville Yard. Transload
shall receive steel by rail or truck at the Greenville Yard, stage it and
prepare it for shipping to various sites throughout the Northeastern United
States, ship it using the services of J S where applicable and as provided
herein and unload it at its final destination (Transload's Business"). All rail
shipments of in-bound steel received by Transload at the Greenville Yard shall
be transported to the Greenville Yard by Cross Harbor.
3. Transportation Services to be Provided by J S. J S shall (i) provide
trucks and/or dropped trailers to Transload at the Greenville Yard for loading
by Transload, and (ii) transport by truck, on behalf of Transload, shipments of
steel from the Greenville Yard to any location in the Northeastern United States
as specified by Transload. Transload shall provide J S with at least twenty-four
(24) hours prior notice of all equipment and shipment needs, including date,
time and destination of shipment. Transload hereby agrees to use the
transportation services of J S. J S shall have the right of first refusal for
all out-bound shipping from the Greenville Yard.
4. Effective Date and Term. The effective date of this Agreement shall
be December 1, 2001, and unless terminated or suspended under provisions hereof,
this Agreement shall remain in effect through November 30, 2011.
5. Agreement Year. "Agreement Year" shall mean each successive twelve
(12) month period during the term of this Agreement beginning on December 1,
2001.
6. Optional Term. Transload shall have the exclusive optional right to
renew this Agreement for another ten (10) year period upon conclusion of the
initial ten (10) year period, under the same terms and conditions.
7. Exclusivity. Transload shall have the exclusive right, so long as
price competitive, to transload and warehouse steel products at the entire
Greenville Yard.
8. Real Estate Taxes. Cross Harbor is responsible for paying any and
all real estate (property) taxes on the Greenville Yard.
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9. Office Space. Transload will provide, at no cost,Cross Harbor
and/or J S two (2) offices within Transload's office complex in Greenville Yard.
Cross Harbor and/or J S will only be responsible for their own telephone
service. All other utilities will be provided for by Transload.
10. Payment. Upon the execution of this Agreement, Transload shall pay
to Cross Harbor the sum of Fifty-Three Thousand Dollars ($53,000) to reimburse
Cross Harbor for site work previously completed on the Greenville Yard.
11. Base Rates.
a. In-bound Shipping Rates. Transload may elect to pay the
individual rail carrier for the delivery of rail shipments of steel to the
Greenville Yard at the rates from origination to destination published, from
time to time, by such individual rail carriers.
b. Transportation Service. Transload shall pay J S for the
shipment of steel from the Greenville Yard to the specified location within the
Northeastern United States at competitive rates established and mutually agreed
to. Such payment shall be delivered to J S within thirty (30) days of receipt of
an invoice from J S for such transportation services and shall be made in
accordance with the terms set forth in such invoice.
12. Minimum Carloads. Beginning on January 1, 2002, Transload shall
guarantee to Cross Harbor that it shall receive by rail six hundred (600)
carloads per year of steel delivered to the Greenville Yard. If Transload fails
to do this, it will pay Cross Harbor the sum of Two Hundred Dollars ($200.00)
per railcar for any short fall. Any cars in excess of six hundred (600) in any
year will carry forward to the minimum for the subsequent year.
13. Installation of Switch and Track. As business conditions warrant,
Transload shall install, at the Greenville Yard, a number 8 switch and 600
linear feet of track in accordance with plans approved by Cross Harbor prior to
the commencement of any work.
14. Mechanic's Liens. Within sixty (60) days after notice from Cross
Harbor, Transload shall discharge any mechanic's lien on Transload for material
or labor claimed to have been furnished to the Greenville Yard on behalf of
Transload.
15. Rebate. Cross Harbor will rebate to Transload $80/railcar for all
railcars received for account of Transload in Greenville Yard. This amount is
due and payable to Transload on the 20th of each month for the prior months
cars.
J S rates for trucking SMI fabricated steel projects will include an
eight percent (8%) fee for Transload. All other J S rates will be determined by
negotiation with Transload
16. Tariffs, Etc. All classifications, tariffs, transportation
contracts, and exempt circulars; government, AAR, and Cross Harbor's rules,
regulations, and provisions; and the terms and provisions of the Uniform
Straight Xxxx of Lading shall apply to transportation hereunder, except that
stop-off or transit privileges or proportional or intermediate application will
not be permitted. Diversion and reconsignment will be allowed only as a result
of any inability to unload at destination caused by a Force Majeure event. A
diverted or reconsigned shipment will be subject to applicable freight rates
from the point of diversion or reconsignment to the new destination, unless
otherwise provided herein.
17. Federal, State and Local Laws and Permits. Transload shall comply
with all applicable federal, state and local laws, ordinances and regulation,
including, but not limited to, all laws pertaining to the transportation,
transfer and delivery of steel, now or hereinafter enacted and in force.
Prior to any transportation hereunder, Transload shall obtain, and
shall maintain in effect during the term of this Agreement, any and all
necessary permits or licenses for the operation of Transload's Business and
shall furnish copies of all necessary permits and licenses to Cross Harbor and J
S.
Any new or changed law or regulation, and/or any legal action
commenced, which prohibits or seeks to prohibit, or unduly impedes, the proposed
operation or the transportation or other service necessary or convenient to the
efficient transportation of steel shall, at the election of Cross Harbor and/or
J S, be deemed a substantial change in circumstances or conditions.
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Transload shall immediately advise Cross Harbor and J S of any new or
changed law or regulation, or any change in its permits or licenses, which may
affect Transload's Business. If Transload fails to provide such proper
notification, Cross Harbor and/or J S may terminate this Agreement, and
Transload shall pay any and all damages, costs and fees to which Cross Harbor
and/or J S are subjected as a result of such new or changed laws or regulations.
Transload shall insure that Cross Harbor and J S maintain all permits that they
are required to have for transportation of steel.
18. Representations.
a. Representations of Transload. As a material inducement for
Cross Harbor and J S to enter into this Agreement, Transload represents and
warrants to Cross Harbor and J S that: (i) Transload is fully and properly
authorized to execute and enter into this Agreement and to deliver the same to
Cross Harbor and J S, and (ii) Transload is duly organized, validly existing and
in good standing under the laws of the State of Illinois and authorized to do
business and in good standing under the laws of the State of New Jersey and has
full power and authority to enter into this Agreement and to perform its
obligations hereunder in accordance with its terms.
b. Representations of Cross Harbor and J S. As a material
inducement for Transload to enter into this Agreement, Cross Harbor and J S each
represent and warrant to Transload that each: (i) is fully and properly
authorized to execute and enter into this Agreement and to deliver the same to
Transload, and (ii) is duly organized, validly existing and in good standing
under the laws of the States of New York and New Jersey, respectively and
authorized to do business and in good standing under the laws of the State of
New Jersey and has full power and authority to enter into this Agreement and to
perform its obligations hereunder in accordance with its terms.
19. Environmental Compliance. Transload shall not manufacture, store,
treat, dispose of, discharge, use, produce or transport "Waste" (as hereinafter
defined) at, from or within the Greenville Yard. "Waste" is defined as any
hazardous or radioactive material, polychlorinated biphenyls, friable asbestos
or other hazardous or medical waste substances as defined by the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, ("CERCLA")
or by any other federal, state or local law, statute, rule, regulation or other
(including any Governmental Requirements) concerning environmental matters
(collectively, "Waste").
20. Indemnity.
a. Indemnity of Cross Harbor and J S. Cross Harbor and J S
shall save, indemnify, defend and hold harmless Transload and its directors,
officers and employees from and against any and all claims, loss, damages
(including special and consequential damage), suit, liability, and expense
arising from Cross Harbor's sole negligence in their performance of its
obligations pursuant to this Agreement.
b. Indemnity of Transload. Transload shall save, indemnify,
defend and hold harmless Cross Harbor and J S and their directors, officers and
employees for and against any and all claim, loss, damages (including special
and consequential damages), suit, liability, and expense arising from
Transload's sole negligence in the performance of its obligations pursuant to
this Agreement.
c. Apportionment of Liability. If the proximate cause of any
claim, loss, suit, liability or expense is caused by the joint and concurring
negligence of Cross Harbor, J S and Transload the liability shall be apportioned
according to the respective negligence of the parties. If the proximate cause of
any claim, loss, damages, suit, liability or expense cannot be determined, the
liability therefore shall be borne 50% by Cross Harbor and J S and 50% by
Transload.
d. Fines and Penalties. Transload shall be solely responsible
for any fines, penalties or suits imposed on Cross Harbor and/or J S resulting
from any alleged or actual violation of federal, state or local environmental or
other law, statute, ordinance, code, or regulation caused by or resulting from
the operation of Transload's Business.
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e. Further Environmental Indemnity of Transload.
Notwithstanding the other provisions of this Agreement, if Transload, knowingly
or unknowingly, tenders or ships any Waste, as defined herein, Transload shall
save, indemnify, defend and hold harmless Cross Harbor and J S and their
directors, officers and employees from and against any and all claim, loss,
damages (including special and consequential damages, or damages caused by
sudden accidental pollution), suit, liability and expense arising out of the
transportation, transfer, delivery, treatment, dumping, storage or disposal of
such hazardous materials, including but not limited to any and all cleanup or
decontamination costs, and environmental fines or penalties, and any liability
pursuant to Section 107(a) and (b) of CERCLA and any amendments thereto, and for
any similar liability pursuant to state or local laws which may hold Cross
Harbor and/or J S liable for any release or hazardous waste or materials,
regardless of the negligence of Cross Harbor or J S.
21. Insurance. At all times during the term of this Agreement,
Transload shall maintain in full force and effect comprehensive public liability
insurance, naming Cross Harbor, J S and New York Regional Rail ("NYRR"), the
parent of Cross Harbor and their agents as an additional insured as their
interests may appear, covering injury to persons in amounts at least equal to
$5,000,000.00 per person and $5,000,000.00 per accident, and damage to property
of at least $500,000.00 per occurrence. Each such policy shall provide that it
shall not be cancelable without the insurer endeavoring to give at least thirty
(30) days prior written notice to Cross Harbor and shall be issued by an insurer
and in a form satisfactory to Cross Harbor. Transload shall provide Cross Harbor
and J S with duplicate originals or certificates of such insurance at or prior
to the effective date of this Agreement together with evidence of paid-up
premiums, and shall provide Cross Harbor with renewals thereof at least fifteen
(15) days prior to expiration.
22. Access. From time to time, Transload shall provide Cross Harbor,
their agents and employees, access to enter and inspect Transload's portion of
Greenville Yard.
23. Force Majeure. Except as otherwise provided herein, if any party is
unable to perform its obligation under this Agreement due to or as a result of
an act of God, including flood, storm, earthquake, hurricane, tornado, or other
severe weather or climatic condition; act of public enemy, war blockage,
insurrection, or riot; fire, wreck, derailment, washout or explosion; strike,
lockout or labor dispute; or embargo or governmental law, order or regulation
beyond the reasonable control of the party affected, this Agreement shall be
suspended between the affected origin and destination for the duration of such
disability. The party claiming Force Majeure shall promptly notify the party of
the commencement and termination of such disability.
24. Notice. All notices hereunder shall be in writing and shall be
deemed to have been properly given if personally delivered or sent by certified
mail, return receipt requested, postage prepaid, or by private overnight express
carrier, such as Federal Express, next business day delivery, charges prepaid,
addressed to the parties at the addresses as set forth below or to such other
persons or addresses as Cross Harbor, J S or Transload may designate from time
to time by notice given pursuant hereto. Notices by the parties may be given on
their behalf by their respective counsel. Notice shall be deemed to have been
given upon the date of delivery, if personally delivered, or five (5) days after
the postmarked date of mailing if sent by certified mail, or one business day
after the date of deposit if sent by private overnight express carrier, next
business day delivery.
If to Cross Harbor send to the address set at the top of this Agreement -
attention: President.
If to J S send to the address set forth at the top of this Agreement -
attention: President
If to Transload send to the address set forth at the top of this Agreement
- attention: General Manager - Administration.
25. Surrender. Upon the expiration or earlier termination of this
Agreement, Transload shall remove its goods and effects, and quit and deliver
the Greenville Yard to Cross Harbor peaceably and quietly in the same order and
condition as at the inception of this Agreement, reasonable use, wear and tear
thereof excepted.
26. Inequities. It is the intent of the parties hereto that they will
mutually benefit from this Agreement. If any party hereunder suffers a gross
inequity resulting from a substantial change in circumstances or conditions,
except for an inequity resulting from competitive transportation considerations,
the parties will negotiate in good faith to resolve or remove such inequity or
to terminate this Agreement.
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27. Default.
a. Events of Default. The occurrence of any of the following
events shall constitute a default by Transload:
(i) failure of Transload to perform or observe any
of the other covenants, terms or conditions contained in this Agreement within
five (5) days after notice or such longer period as is reasonably required to
correct any such default, provided Transload promptly commences and diligently
continues to effectuate a cure after written notice thereof by Cross Harbor; or
(ii) the commencement of levy,execution or attachment
proceedings against Transload, or any of the assets of Transload, that would
materially affect Transload's ability to perform hereunder; or
(iii) the application for or appointment of a
liquidator, receiver, custodian, sequester, conservator, trustee, or other
similar judicial officer; or
(iv) the insolvency in the bankruptcy or equity
sense, of Transload; or
(v) the assignment for the benefit of creditors,
or the admission in writing of an inability to pay debts generally as they
become due, or the ordering of the winding-up or liquidation of the affairs of
Transload; or
(vi) the commencement of a case by or against
Transload under any insolvency, bankruptcy, creditor adjustment, debtor
rehabilitation or similar laws, state or federal, or the determination by any of
them to request relief under any insolvency, bankruptcy, creditor adjustment,
debtor rehabilitation or similar processing, state or federal, including,
without limitation, the consent by Transload to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequester or
similar official for Transload with respect to its property or assets (unless,
in the case of involuntary proceedings, the same shall be dismissed within sixty
(60) days after institution).
b. Right to Cure; Cross Harbor's Remedies. If Transload shall
have failed to cure a default by Transload after expiration of the applicable
time for cure of a particular default, Cross Harbor may, at its election, but
without obligation therefore, (a) seek specific performance of any obligation of
Transload, after which Cross Harbor shall retain, and may exercise and enforce,
any and all rights which Cross Harbor may have against Transload as a result of
such default, (b) from time to time without releasing Transload in whole or in
part from Transload's obligation to perform any and all covenants, conditions
and agreements to be performed by Transload hereunder, cure the default at
Transload's cost, and/or (c) exercise any other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Any reasonable cost
incurred by Cross Harbor in order to cure such a default by Transload shall be
due immediately from Transload, together with interest at a rate of ten percent
(10%).
c. Cumulative Remedies. No right or remedy herein conferred
upon or reserved to Cross Harbor is intended to be exclusive of any other right
or remedy herein or by law provided, but each shall be cumulative and in
addition to every other right or remedy given herein or now or hereafter
existing at law or in equity or by statute.
28. Non-Waiver. The failure to enforce any provision of this Agreement
or waiver of any default hereunder shall not be construed as a waiver of the
provision or of any subsequent or continuing default.
29. Arbitration. Any controversy, claim or dispute related to or
arising out of this Agreement shall be settled by arbitration pursuant to the
current commercial arbitration rules of the American Arbitration Association
strictly in accordance with the terms of this Agreement and the substantive law
of the State of New Jersey. The arbitration shall be conducted at the
Association's New Jersey office, by one arbitrator, who shall be an attorney
knowledgeable in the transportation industry. Judgment upon the arbitrator's
award may be entered and enforced in any court of competent jurisdiction.
Neither party shall institute a proceeding hereunder unless ten (10) days prior
thereto such party shall have furnished the other written notice by certified
mail of its intent to do so. Neither party shall be precluded hereby from
seeking provisional remedies in the courts of any jurisdiction including, but
not limited to, temporary restraining orders and preliminary injunctions to
protect its rights.
30. Assignment. No party may assign or transfer this Agreement, in
whole or in part, of any interest arising hereunder, without the other parties'
prior written consent.
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31. Entire Understanding and Modifications. This Agreement shall be
binding upon the parties and their successors and assigns, constitutes the
entire understanding of the parties, and may not be modified or amended, except
by mutual agreement of the parties in writing.
32. Survivability. If any provision of this Agreement shall be held to
be invalid, illegal or unenforceable, the validity of all other provisions
herein shall continue in effect unless a gross inequity will result.
33. Governing Law. This Agreement shall be governed by the laws of the
State of New Jersey.
34. Headings and Captions. The headings and captions in this Agreement
are inserted for convenience of reference only and in no way define, describe or
limit the scope or intent of this Agreement or any of the provisions hereof.
35. Executed in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which, taken
together, shall constitute one and the same instrument.
36. No Benefit to Third Parties. None of the provisions hereof shall
inure to the benefit of any third party or be deemed to create any rights,
benefits or privileges in favor of any party except the parties herein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their authorized officials on the date herein above first written.
NEW YORK CROSS HARBOR RAILROAD TRANSLOAD SERVICES, L.L.C.
TERMINAL CORPORATION
BY: BY:
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TITLE: TITLE:
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J S TRANSPORTATION
BY:
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TITLE:
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