Exhibit 10.20
AGREEMENT FOR
TRANSPORTATION SERVICES
This Agreement, including Appendices A and B, ("Agreement") is made as of
the 1st day of April, 1990, by and between Toyota Motor Sales, U.S.A., Inc., a
California corporation with its principle place of business at 00000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 ("TMS/USA"); and Allied Systems,
Ltd., a Georgia corporation with its principal place of business at 000
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 ("CARRIER").
WHEREAS, TMS/USA is a distributor of assembled Toyota motor vehicles in
the continental United States and Alaska; and
WHEREAS, CARRIER is an independent contractor engaged in the business of
transporting vehicles by motor trucks as a contract carrier in intrastate and
interstate commerce; and
WHEREAS, TMS/USA desires that CARRIER provide motor truck service for the
shipment of selected motor vehicles ("Vehicles") from designated TMS/USA's
facility(ies) to designated points in the continental United States; and
WHEREAS, CARRIER desires to provide motor truck service to TMS/USA for the
transportation of Vehicles upon request of TMS/USA;
NOW, THEREFORE, in consideration of the promises, mutual agreements and
covenants herein contained, the parties agree as follows:
1.0 TERM
1.1 Term. The term of this Agreement shall be for a period of one (1)
year commencing on April 4, 1990, and ending on April 4, 1991.
1.2 Renewal Term. At the end of the Initial Term or of any renewal
terms, TMS/USA may renew this Agreement on the same terms and
conditions for an additional one (1) year period by giving CARRIER
sixty (60) days notice of its intent to renew. It is agreed that
Toyota may elect not to renew this Agreement without cause and that
such election has the effect of terminating the obligations of the
parties at the end of the then existing term, except as to
obligations which have accrued prior thereto.
1.3 Adjustment of Rates in Renewal Term.
a. Notice of Proposed Rate Adjustment. Either party shall give
the other written notice of any proposed adjustment of the
rates applicable in a renewal term at least ninety (90) days
prior to the expiration of the then existing term. Notice of
any proposed adjustment shall be accompanied by a statement of
the reason for such adjustment, specifying in detail the cost
components of such adjustment. The party requesting rate
adjustment
Exhibit 10.20
shall also provide to the other sufficient documentation to
support the costs claimed and shall have the right to request
cost documentation from the other party. The parties agree to
negotiate in good faith to reach agreement on new rates.
b. Effective Date. In the event new rates are renegotiated in
accordance with the provisions of this Agreement, the existing
rates shall remain effective until the expiration of the
existing term, or sixty (60) days after the new rates are
agreed upon in writing, whichever date occurs later.
c. No Adjustment. If despite good faith negotiations the parties
are unable to agree upon a requested rate adjustment within
ninety (90) days of notice of such request, this Agreement
shall terminate with respect to all future obligations sixty
(60) days after one party gives the other notice of failure to
agree on new rates and the then existing rates will remain in
effect through such date.
2.0 OBLIGATIONS OF CARRIER
2.1 Transportation of Vehicles. Subject to the terms and conditions
contained in this Agreement, TMS/USA agrees to tender selected
Vehicles to CARRIER for transportation by CARRIER in interstate and
intrastate commerce to points in the continental United States as
directed by TMS/USA from the Origin Point(s) to the Destination
Point(s) as set forth in Appendix A attached hereto. Carrier agrees
to accept and deliver the Vehicles promptly and efficiently at
CARRIER's sole cost and expense. Appendix B stipulates the point or
points where stop-offs, if any, shall be made for partial unloading.
CARRIER shall not off-load Vehicles at a stop-off point to be
reloaded as part of a mixed load.
2.2 Tender of Vehicles. TMS/USA shall tender Vehicles to CARRIER at
Origin Point. CARRIER shall load, transport, deliver and unload
Vehicles and shall have care, custody and control of Vehicles from
time of tender until completion of delivery to Designated
Destination Points. Vehicles shall be deemed to be tendered at the
time of actual delivery of a Vehicle to the CARRIER for a load or
delivery of attendant paperwork to the CARRIER, whichever is later.
2.3 Subsidiaries. This Agreement is strictly between TMS/USA and
CARRIER. CARRIER shall load, transport, deliver, and unload Vehicles
using any subsidiary(ies) that it chooses; however, TMS/USA shall
only recognize as valid invoices received from CARRIER. Further, any
claims filed by TMS/USA against CARRIER shall be processed solely by
CARRIER.
2.4 Equipment. CARRIER shall, at its sole cost and expense, furnish all
equipment necessary for the safe and efficient transportation of
Vehicles and CARRIER shall pay all costs and expenses of every kind
or nature, in connection with the ownership, use, maintenance and
operation of any such equipment, including any and all fees for
licenses or permits and any local, state or federal taxes imposed.
Exhibit 10.20
2.5 CARRIER Acquisition or Modification of Equipment. CARRIER shall have
sole responsibility and risk with respect to the acquisition by
purchase or otherwise or modification or alteration of any equipment
required for the performance of its obligations pursuant to this
Agreement. TMS/USA shall have no responsibility to CARRIER with
respect to the acquisition or modification of equipment other than
pursuant to the terms of this Agreement.
2.6 Personnel. CARRIER shall employ competent, able and licensed
personnel to perform the services required by TMS/USA; and shall
have the sole responsibility for paying, supervising and controlling
all such personnel. CARRIER shall have available one (1) or more
supervisor/dispatcher(s) to coordinate transportation services for
TOYOTA. CARRIER shall have a yard supervisor onsite during the
loading of any Vehicle.
2.7 Compliance with Law. CARRIER, at its sole cost and expense, shall
procure and maintain all licenses and/or permits and pay any taxes
required by local, state or federal authorities with respect to the
transportation services performed under this Agreement and at all
times shall act in full compliance with all federal, state and local
laws, rules and regulations controlling the performance of such
services.
2.8 Reporting Requirements. Toyota shall record the date and time that
Vehicles are tendered to CARRIER and CARRIER shall report, through
TMS/USA's computer system, the date and time of delivery at
Destination, as well as any exception noted at the time of delivery.
Such reporting by CARRIER shall be within two (2) days from the time
delivery receipts are received by CARRIER's transmission location.
2.9 Service Standards. CARRIER agrees to accept, transport and deliver
all Vehicles tendered in accordance with the most recent version of
the Toyota Assured Delivery Standards.
2.10 Financial Reporting. CARRIER agrees to submit to TMS/USA the
following documents and information every quarter and annually on a
cumulative basis:
a. a copy of CARRIER's M-1 Financial Report filed with the
Interstate Commerce Commission.
b. summary of total operations and TMS/USA operations, including
quantity and year-to-date shipping volumes in units and
revenues.
c. a statement of total operating miles, and total loaded miles.
2.11 Other Reports. CARRIER shall provide TMS/USA with a monthly load
factor report for each Origin Point, setting forth such information
as Toyota may request in a format approved by TMS/USA.
Exhibit 10.20
3.0 RATES AND CHARGES
3.1 Contract Rates. As full and complete compensation for the services
to be provided hereunder, TMS/USA shall pay CARRIER the Contract
Rates set forth in Appendix A attached hereto and incorporated
herein.
3.2 Payment Procedures. Except for non-standard shipments, TMS/USA shall
generate payment directly to CARRIER through the Toyota Traffic and
Accounting System within ten (10) days of the time Vehicles are
tendered to CARRIER for shipment. TMS/USA shall provide a statement
of all Vehicles shipped via CARRIER covered by each payment. CARRIER
shall submit an invoice to TMS/USA for any shipment by CARRIER not
covered by payments generated through the Traffic and Accounting
System.
3.3 Deviation Numbers. CARRIER shall not transport, nor shall TMS/USA
provide payment for, non-standard shipments without a pre-approved
Deviation Number. Only the TMS/USA Traffic and Accounting department
can provide a Deviation Number.
4.0 INSPECTION AND DELIVERY PROCEDURES
4.1 Inspection. CARRIER shall have responsibility for inspection of
Vehicles at the time of tender and shall note all damage and
exceptions on a Toyota Inspection Delivery Receipt which shall be
acknowledged in writing by a designated Toyota representative before
Vehicles are dispatched from the point of tender.
4.2 Documents. Each shipment shall be evidenced by a receipt in the form
specified by TMS/USA, signed by both the CARRIER and the consignee
or consignees designated by TMS/USA; showing the kind and quantity
of Vehicles that CARRIER received and delivered at each loading and
unloading point. Absence or loss of such receipt form shall not
relieve CARRIER from responsibility for any Vehicles received by it.
5.0 LIABILITY AND CLAIMS
5.1 Liability. CARRIER shall fully compensate the consignee through
TMS/USA for any actual loss of or damage to Vehicles which (a)
occurs while such Vehicles are in the possession of or under the
control of CARRIER or which (b) arises from CARRIER's performance of
or failure to perform properly its obligations pursuant to this
Agreement; provided, however, that CARRIER shall not be liable for
damage or loss which results from any of the exceptions noted and
acknowledged on a Toyota Inspection Delivery Receipt, or for damage
resulting from fluids leaking from Vehicles. Damages shall be
calculated in accordance with the most recent version of the Toyota
Vehicle Damage Classification Guide. CARRIER's obligations with
respect to this Subsection 5.1 shall survive termination or
expiration of this Agreement.
5.2 Claims Paid Through Monthly Statement. Any claim for transportation
or equipment damage to a Vehicle which is equal to Three Hundred
Dollars
Exhibit 10.20
($300.00) or less shall be paid and processed by TMS/USA on a
monthly statement. Once each month TMS/USA shall submit a summary
statement to CARRIER setting forth each damage claim processed and
paid by TMS/USA, together with the documentation substantiating each
claim. CARRIER shall retain the right to audit and deny liability,
in whole or in part, for any claim processed; provided that CARRIER
submits a written statement setting forth in detail the basis for
its denial within thirty (30) days of the date of receipt of the
monthly summary identifying such claim. The parties agree to
cooperate in resolving any disputed claims within thirty (30) days
of notice of denial from CARRIER.
5.3 Claims Other Than Those Paid Through the Monthly Statement. Except
as provided in Subsection 5.2 and Toyota Vehicle Damage
Classification Guide, a claim or intent to file a claim for loss,
damage or injury to Vehicle shall be submitted in writing by TMS/USA
to CARRIER within nine (9) months after delivery to a consignee as
evidenced by a delivery receipt, independent survey report, or by a
CARRIER Acknowledgement of Damage Letter. All claims will be
processed by CARRIER and full payment or notice of denial will be
made to TOYOTA within thirty (30) days after receipt by CARRIER. The
parties agree to cooperate in resolving any disputed claims within
thirty (30) days of notice of denial from CARRIER.
5.4 Damage Control Policy. CARRIER shall create and/or maintain during
the term of this Agreement, a documented Damage Control Policy
satisfactory to TMS/USA. CARRIER shall meet with TMS/USA annually to
discuss and formulate damage prevention strategy.
6.0 INSURANCE AND INDEMNITY
6.1 Indemnity. CARRIER will defend, indemnify and save TMS/USA harmless
from all liability, losses, claims, causes of action and expenses,
including actual attorneys' fees and costs, based upon or arising
out of injury to, or death of persons, or damage to or loss of
property, caused by the acts or omissions of CARRIER, its employees
or agents, arising out of or in connection with CARRIER's
performance of its obligations pursuant to this Agreement, except to
the extent that such loss or damage results from the intentional or
negligent acts or omissions of TMS/USA. CARRIER's obligations with
respect to this Subsection 6.1 shall survive termination or
expiration of this Agreement.
6.2 Insurance. At all times during the term of this Agreement, CARRIER
shall maintain general comprehensive and automobile liability
insurance with an insurance company acceptable to TMS/USA covering
the indemnity set forth in Subsection 6.1 in the amount of TWO
MILLION DOLLARS ($2,000,000) combined single limits. CARRIER will
provide TMS/USA a certificate evidencing such insurance naming
TMS/USA as Additional Named Insured and providing that TMS/USA shall
receive thirty (30) days written notice prior to any cancellation or
expiration of such insurance.
Exhibit 10.20
7.0 ACCOUNT RECONCILIATION
7.1 Shipment Transmission Monitoring. TMS/USA shall fax to CARRIER on a
daily basis, the "Truckaway Processing Exception Report" prepared by
TMS/USA. CARRIER shall provide explanations for items appearing on
said report, and fax the corrected information to TMS/USA within
twenty-four (24) hours for the following three (3) error types: 1)
Group Number Invalid, 2) Ship-To Dealer Invalid, and 3) Fields
Followed by "?" are in Error.
7.2 Tendered/Not Shipped Report. TMS/USA shall transmit daily to
CARRIER, record of all Vehicles tendered to CARRIER but not yet
shipped by CARRIER, per the TMS/USA Traffic and Accounting System.
CARRIER agrees to provide written explanation for any Vehicle
appearing in "Tendered/Not Shipped" status for any period exceeding
three (3) days.
7.3 Bi-Weekly Reconciliation of Accounts Payable. TMS/USA shall transmit
to CARRIER on a weekly basis record of all Vehicles paid by TMS/USA
for the previous Payment Cycle. TMS/USA's Payment Cycle runs from
each Tuesday at 5:00 PM Pacific Standard Time until the following
Tuesday at 5:00 PM Pacific Standard Time. CARRIER shall match by
Vehicle Identification Number and Payment Amount all Vehicles for
which TMS/USA has provided payment, against all Vehicles for which
CARRIER expects payment. CARRIER shall then match any exceptions
against the Tendered/Not Shipped Report and the Truckaway Processing
Exception Report. CARRIER shall present to TMS/USA any remaining
exceptions within ten (10) days of Payment Cycle close for action.
7.4 Forfeiture of Payment. CARRIER shall forfeit any and all claim to
outstanding Accounts Receivable (Vehicles transported by CARRIER but
not invoiced by CARRIER) ninety (90) days after date of tender
unless CARRIER contracts TMS/USA in writing within the ninety (90)
day period requesting payment.
8.0 INDEPENDENT CONTRACTOR
8.1 CARRIER's Employees. CARRIER shall be deemed to be an independent
contractor hereunder and shall not be considered or permitted to be
an agent, servant, joint venturer or partner of TMS/USA. All persons
furnished, used, retained or hired by or on behalf of CARRIER shall
be considered to be solely the employees or agents of CARRIER, and
CARRIER shall be responsible for payment of any and all
unemployment, social security and other payroll taxes for such
persons, including any related assessments or contributions required
by law.
8.2 Worker's Compensation Insurance. CARRIER shall maintain, through the
performance of its obligations under this Agreement, a policy or
policies of worker's compensation insurance with such limits as may
be required by law.
8.3 Indemnification. CARRIER agrees to defend, indemnify and hold
harmless TMS/USA, its subsidiaries, officers, directors, employees,
agents and servants from and against any and all causes of action,
claims, demands and expenses, including actual legal fees and
expenses, that may be made or asserted by or on
Exhibit 10.20
behalf of any persons furnished, supplied or retained by CARRIER
under the worker's compensation laws of any jurisdiction.
8.4 No Agency. TMS/USA and CARRIER intend and agree that neither party
has the right or duty to act as agent for the other and shall not
make any representations, enter into any negotiations or agreements
on behalf of the other, nor contact any of the other's vendors and
suppliers without the prior written consent of the other.
9.0 FORCE MAJEURE
Neither party hereto shall be deemed to be in default of any provision of
this Agreement, for any failure in performance, resulting from acts or
events beyond the reasonable control of such party. For purposes of this
Agreement, such acts shall include, but not be limited to, acts of God,
civil or military authority, civil disturbance, war, strikes, fires, other
catastrophes, or other "force majeure" events beyond the parties'
reasonable control; provided, however, that the parties shall make all
reasonable efforts to continue to meet their obligations during the
duration of the force majeure condition and; provided, further, that the
party declaring force majeure shall notify the other party promptly when
the force majeure condition begins, the nature of the force majeure
condition and when such condition is terminated. The suspension of any
obligations owing to force majeure shall neither cause the term of this
Agreement to be extended nor affect any rights accrued under this
Agreement prior to the force majeure condition.
10.0 GENERAL PROVISIONS
10.1 Assignment. No party hereto may assign this Agreement, in whole or
in part, or any rights granted herein, or delegate to another party
any of the duties hereunder, without the prior written consent of
the other party. Any attempt to assign or transfer or delegate
without such consent shall be void. Provided the consent required
herein has been granted, this Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their successors and
assigns. Notwithstanding the foregoing, TMS/USA shall have the
right, at any time, without CARRIER's consent, to assign its rights
hereunder to an affiliated entity.
10.2 Notices. Except as otherwise provided in this Agreement, any notices
given by any party under this Agreement shall be in writing, and
shall be effective upon delivery to the other party by hand, by U.S.
Certified mail, return receipt requested, by wire or facsimile
confirmed by wire or facsimile response acknowledging receipt,
addressed as follows:
To CARRIER: Allied Systems, Ltd.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attn: Senior Vice President Sales
Facsimile No. (000) 000-0000
Exhibit 10.20
To TMS/USA: Toyota Motor Sales, U.S.A., Inc.
00000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Logistics Operations Manager]
Facsimile No. (000) 000-0000
Any party may designate a different address or facsimile number by
giving the other party notice thereof pursuant to the provisions
herein.
10.3 Agreement Contains all the Terms. This Agreement, together with
Appendices A and B constitutes the whole agreement between TMS/USA
and CARRIER. There are no promises, terms, conditions or obligations
other than those contained herein, and this Agreement supersedes all
previous communications, representations or agreements, either oral
or written, between the parties. No modification, alteration or
amendment hereof shall be effective unless the same is evidenced in
writing making specific reference to this Agreement, signed by duly
authorized representatives of both parties.
10.4 Applicable Law. This Agreement shall be interpreted according to the
laws of the State of California.
10.5 Non-Waiver. No waiver of any breach of any provision of this
Agreement shall constitute a waiver of prior, concurrent or
subsequent breaches of the same of any other provisions hereof and
no waiver by any party shall be effective unless made in writing and
signed by an authorized representative of that party.
10.6 Confidentiality. TMS/USA and CARRIER and their agents, employees and
representatives agree to treat all information relating to this
Agreement as confidential and further agree not to disclose any such
information to any third party without the prior written consent of
the other party.
10.7 Severability. In the event that any provision of this Agreement
shall be held illegal or otherwise unenforceable for any reason,
such provision shall be severed and the entire Agreement shall not
fail on account thereof and the balance of the Agreement shall
continue in full force and effect.
10.8 Headings. The Section and Subsection headings contained in this
Agreement are for reference only and are not intended to define or
limit the scope of this Agreement or any term thereof.
10.9 Recitals. The matters set forth in the "Recitals" clauses on page
one (1) hereof are incorporated herein and made a part of this
Agreement.
Exhibit 10.20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year written above.
TOYOTA MOTOR SALES, U.S.A.,, INC.
By: ____________________________________
Its: Group Vice President
ALLIED SYSTEMS, LTD.
By: ____________________________________
Its: ___________________________________
