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EXHIBIT 10.5.1
TRANSPORTATION SERVICES AGREEMENT
DATED JULY 1, 1998
BY AND BETWEEN
USX CORPORATION - U. S. STEEL GROUP
AND
TRANSTAR, INC.
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TRANSPORTATION SERVICES AGREEMENT
BETWEEN USX CORPORATION - U. S. STEEL GROUP
AND
TRANSTAR, INC.
INDEX
Section Title Page
------- ----- ----
1 SCOPE 2
2 TERM 3
3 ADDITIONAL TERM 3
4 INTENT OF AGREEMENT 4
5 EXISTING CONTRACTS 5
6 RATES, TERMS AND/OR CONDITIONS FOR SERVICE 6
6(a) Rail Service by Sole Service Carriers 6
6(b) Single-Line Bessemer Service 7
6(c) In-Plant Rail Switching Service 8
6(d) In-Plant Rubber Tire Service 9
6(e) Miscellaneous In-Plant Services 9
6(f) WGN 10
6(g) Mobile River 12
6(h) Adjustments to Initial Base Rates, Terms and Conditions and Base Rates, Terms 15
and Conditions on Single-Line and Joint-Line Switching and Single-Line
Line-Haul Service
6(i) Adjustments to Joint-Line Rates 19
6(j) Car Hire Adjustments to Rail Earnings 22
6(k) Regulatory Change 22
6(l) Drafting 22
6(m) Determination of Competitive Rates Under Certain Circumstances 23
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Section Title Page
------- ----- ----
7 TRANSPORTATION COMMITMENTS 23
7(a) Rail Service by Sole Service Carriers 23
7(b) Bessemer 24
7(c) In-Plant Rail Switching Service 25
7(d) In-Plant Rubber Tire Service 27
7(e) Miscellaneous In-Plant Services 27
7(f) WGN 27
7(g) Mobile River 28
7(h) Bid Terms 29
8 SERVICE LEVELS 30
9 MAINTENANCE OF TRANSPORTATION ASSETS 31
10 MAINTENANCE OF INTERCHANGES 33
11 AUDIT 33
12 LIQUIDATED DAMAGES 34
13 SEVERABILITY 36
14 INEQUITIES 36
15 MEDIATION 37
16 ARBITRATION 38
17 ASSIGNMENT 40
18 NOTICES 41
19 LAW GOVERNING 42
20 NON-OPERATING FACILITIES 42
21 RELATIONSHIP OF PARTIES 43
22 INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES 43
23 ENTIRETY OF AGREEMENT; AMENDMENTS 43
24 MUTUAL RELEASE 43
25 FORCE MAJEURE 44
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TRANSPORTATION SERVICES AGREEMENT
This Agreement, made and concluded this 21st day of December, 1998, but
effective the 1st day of July 1998, by and between USX CORPORATION - U. S. STEEL
GROUP (hereinafter "USS"), a Delaware corporation with offices at 000 Xxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, and TRANSTAR, INC. (hereinafter
"Transtar"), a Delaware corporation with offices at 000 Xxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Transtar is the shareholder of certain transportation
operating companies including the Duluth, Missabe and Iron Range Railway Company
(hereinafter "DMIR"), the Elgin, Joliet and Eastern Railway Company (hereinafter
"EJ&E"), the Bessemer and Lake Erie Railroad Company (hereinafter "Bessemer"),
Union Railroad Company (hereinafter "Union"), McKeesport Connecting Railroad
Company (hereinafter "McKeesport"), Birmingham Southern Railroad Company
(hereinafter "Birmingham Southern") and its subsidiary Fairfield Southern
Company, Inc. (hereinafter "Fairfield Southern"), Warrior and Gulf Navigation
Company (hereinafter "WGN") and its subsidiary Mobile River Terminal Company
(hereinafter "Mobile River" and collectively the "Transtar Units"); and
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WHEREAS, USS and Transtar are parties to a Transportation Services
Agreement dated December 28, 1988 (hereinafter the "1988 TSA"); and
WHEREAS, USS and Transtar desire to enter into a new Transportation
Services Agreement to set forth the terms of a commercial business relationship
between USS and the Transtar Units and to replace the 1988 TSA;
NOW, THEREFORE, the parties hereto, intending to be legally bound, and
in consideration of the mutual agreements herein contained, hereby agree as
follows:
1. SCOPE. This Agreement sets forth the understanding of the parties
concerning transportation and transportation-related services to be provided to
USS by Transtar Units. More specific transportation contracts, tariffs, purchase
orders or other agreements may be executed, issued and/or published by USS and
the individual Transtar Units in order to implement this Agreement. To the
extent required by law, such individual agreements shall be filed with the
Surface Transportation Board ("STB") and/or the appropriate state agency.
This Agreement also sets forth the respective rights and obligations of
USS and Transtar concerning regulated rail service at certain non-operating
facilities as described in Section 20.
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2. TERM. This Agreement shall become effective on July 1, 1998 and
shall remain in effect through December 31, 2004 ("Initial Term"). At the end of
the Initial Term of this Agreement or at the end of the Additional Term
established in Section 3 herein, if any of the services previously performed by
any Transtar Unit pursuant to this Agreement are subject to competitive bidding,
the Transtar Unit shall be offered an opportunity to participate in any
competitive bidding for such services.
3. ADDITIONAL TERM. Following the expiration of the Initial Term of
this Agreement, all of its terms and/or conditions, insofar as they apply to the
service referenced in Sections 6(a) and 7(a), and insofar as they apply to
service referenced in Sections 6(c) and 7(c) which is provided on track owned by
a Transtar Unit, shall continue to apply to the Union, McKeesport, EJ&E, DMIR
and Birmingham Southern (hereinafter "Sole Service Carriers"). If during the
Additional Term, a non-Transtar rail carrier obtains access to the USS Mon
Valley Works, USS Clairton Works, Xxxx Works, Minntac, the Camp-Hill Corporation
facility, or Fairfield Works (hereinafter "USS Facilities"), USS shall have the
option of canceling this Agreement, in whole or in part, insofar as it applies
to the service referenced in Sections 6(a), 6(c), 7(a) and 7(c) herein which is
provided by the Sole
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Service Carrier at the facility so accessed. If during the Additional Term, USS
purchases or otherwise obtains railroad track from a Transtar Unit on which
service referenced in Sections 6(c) and 7(c) is provided, then USS shall have
the option of canceling this Agreement, in whole or in part, insofar as it
applies to the service provided on such track.
During the Initial Term or the Additional Term, USS shall not take any
action which would in any way, either directly or indirectly, encourage any
non-Transtar rail carrier to attempt to obtain access to any of the USS
Facilities or which would in any way assist and/or support any such rail carrier
in any efforts to obtain such access; provided, however, that, during the
Additional Term, USS may request non-binding mediation pursuant to Section 15
and/or request that an arbitrator, pursuant to the provisions set forth in
Section 16 herein, determine whether it is reasonable and equitable for USS to
seek competitive access, under the facts, circumstances and the regulatory and
competitive conditions in effect at that time, at the USS Facility where USS
seeks competitive access.
4. INTENT OF AGREEMENT. The parties hereto intend that they shall
mutually benefit from the rates, terms, conditions and provisions of this
Agreement and that no party shall be either unreasonably enriched or
unreasonably harmed by any
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implementation and/or interpretation of said rates, terms, conditions and
provisions. In addition, the parties hereto agree and intend that the rates,
terms and conditions (including, but not limited to, payment and drafting terms)
in effect as of the effective date of this Agreement shall continue in effect
except as modified by this or other agreements of the parties and that no party
to this Agreement shall seek to change rates, terms and conditions through the
arbitration procedures set forth in Section 16 hereof, unless there is a
material change in existing facts and circumstances that causes the party
seeking such change to suffer a gross inequity. This Agreement, and all
agreements implementing this Agreement, shall be administered and interpreted in
order to fulfill the intent stated in this Section 4. Any arbitrator considering
disputes pursuant to Section 16 hereof shall render a decision which fulfills
the intent stated in this Section 4.
5. EXISTING CONTRACTS. All existing contracts, purchase orders and
other agreements between USS and the Transtar Units shall remain in effect for
the terms stated therein. To the extent that any conflict exists between
Sections 6 or 7 of this Agreement and the rate or service provisions of any such
contract, purchase order or other agreement, the terms of this Agreement shall
supersede and take precedence, provided, however, that every reasonable
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effort shall be made to construe such provisions consistently, and that nothing
contained in this Agreement shall be construed or implemented to shorten the
term of any such contract, purchase order or other agreement.
6. RATES, TERMS AND/OR CONDITIONS FOR SERVICE.
(a) Rail Service by Sole Service Carriers. Initial Base
Rates, terms and/or conditions for all Sole Service Carrier services shall be
those in effect in contracts, tariffs or other agreements as of the effective
date of this Agreement. The rates between USS and Sole Service Carriers set
forth in Exhibits I and III attached to this Agreement (including single-line
and joint-line switching and single-line and joint-line line-haul services)
together with other rates in effect as of the effective date of this Agreement
shall be referred to herein as "Initial Base Rates." Any new rates established
during the term of this Agreement shall be deemed "Base Rates" as of the date
they are established.
Initial Base Rates and Base Rates for single-line and joint-line
switching and single-line line-haul service shall be adjusted annually to be
effective January 1, 1999 and each January 1 thereafter in accordance with the
procedures set forth in Section 6(h) herein. Joint-line Initial Base Rates and
joint-line Base Rates shall be adjusted in
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accordance with the procedures set forth in Section 6(i) herein.
(b) Single Line Bessemer Service. Initial Base Rates, terms and/or
conditions for services shall be those in effect in contracts, tariffs or other
agreements as of the effective date of this Agreement. The rates between USS and
Bessemer set forth in Exhibit II shall be referred to herein as "Initial Base
Rates." During the Initial Term of this Agreement, any changes, modifications,
additions and/or deletions to the terms and/or conditions for the rail single
line service provided by Bessemer under this Agreement, shall be negotiated in
good faith by the parties and upon agreement implemented either through tariffs,
contracts or other agreements. Prior to December 1, 1998 and each December 1
thereafter through December 1, 2003, USS and Bessemer shall in good faith
negotiate revised rates which shall be competitive with rates available to USS
at that time from viable competitors of the Bessemer capable of offering the
same or substantially similar services and volumes to USS. In the event the
parties fail to reach agreement by December 1, the preceding year's rates will
be used in the interim until agreement is reached. Either party shall have the
right to request non-binding mediation pursuant to Section 15 and invoke the
arbitration procedures set forth in Section 16
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herein and request that the appropriate competitive rates for the succeeding
year be determined through those procedures. Any interim rates will be revised
retroactively to whatever rates were agreed upon in non-binding mediation or
were determined through the arbitration procedures set forth in Section 16. If
USS advises Bessemer that any third party buying unloading and/or storage
services at Conneaut is permitted by contract to pass on Bessemer charges for
such services to USS, then Bessemer charges to such third party shall not exceed
the charges and conditions including payment terms, excluding drafting, which
would have applied if USS had purchased the service directly. Such tonnage will
be considered as USS tons in meeting the volume commitment in Section 7(b).
(c) In-Plant Rail Switching Service. Initial Base Rates, terms and/or
conditions for in-plant rail switching services shall be those in effect in
contracts, tariffs or other agreements as of the effective date of this
Agreement. The in-plant rail switching rates between USS and Union, EJ&E,
Birmingham Southern, Fairfield Southern, and McKeesport (hereinafter "In-Plant
Rail Switching Service Carriers") referenced in Exhibit III together with other
rates in effect as of the effective date of this Agreement shall be referred to
herein as "Initial Base Rates." Any new rates established
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during the term of this Agreement shall be deemed "Base Rates" as of the date
they are established. Unless otherwise agreed by the parties, the Base RCAF-U
for any such Base Rate shall be the most recent RCAF-U published prior to
agreement upon the Base Rate.
Initial Base Rates and Base Rates for In-Plant Rail
Switching Carriers shall be adjusted annually to be effective January 1, 1999
and each January 1 thereafter in accordance with the procedures set forth in
Section 6(h) herein.
Existing in-plant rail switching services provided by USS
plant personnel and Transtar Units are identified on the attached Exhibit IV.
(d) In-Plant Rubber Tire Service. The in-plant rubber tire services
identified on Exhibit V shall be provided pursuant to the terms and conditions
of the purchase orders or other agreements in effect as of the effective date of
this Agreement. Upon the expiration of any such purchase order or agreement, USS
shall have the option to subject the rubber tire service involved to competitive
bidding; provided, however, that Transtar Units shall be offered an opportunity
to participate in any competitive bidding of such services.
(e) Miscellaneous In-Plant Services. During the Initial Term of this
Agreement, USS shall have the option to subject all or any such services as set
forth in Exhibit VI to competitive bidding; provided, however, that Transtar
Xxxxx
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xxxxx xx offered an opportunity to participate in any competitive bidding for
the services set forth in Exhibit VI and any additional transportation and
transportation related services required by USS.
(f) WGN. Rates between USS and WGN set forth in Exhibits VII and VIII
together with other rates in effect as of the effective date of this Agreement
shall be referred to herein as "Initial Base Rates." Any new rates established
during the term of this Agreement shall be deemed "Base Rates" as of the date
they are established. Initial Base Rates as adjusted and, unless otherwise
agreed by the parties, Base Rates as adjusted, shall be subject to the Fuel Cost
Adjustment set forth in Exhibit IX. Upon request for any new service required by
USS, WGN shall offer rates, terms and/or conditions which are competitive with
the rates, terms and/or conditions offered by viable competing water carriers or
stevedores for similar services in the same geographic area. Base Rates for
commodities other than iron ore, iron ore pellets and coke shall be established
by mutual agreement of the parties and, failing such agreement, by the dispute
resolution procedures set forth in Sections 15 and 16 of this Agreement. Prior
to December 1, 1999 and each December 1 thereafter through December 1, 2003, USS
and WGN shall in good faith negotiate adjusted Initial Base Rates and adjusted
Base
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Rates which shall be competitive with rates available to USS at that time from
viable competitors of WGN capable of offering the same or substantially similar
services and volumes to USS. In the event the parties fail to reach agreement by
December 1 on adjusted Initial Base Rates or adjusted Base Rates, the preceding
year's rates will be used as interim rates. If after good faith negotiations,
the parties fail to reach agreement on the amount of the annual adjustment to
the Initial Base Rates set forth in Exhibit VIII, such Initial Base Rates shall
be adjusted up or down by one hundred percent (100%) of the cumulative
percentage change between the October 1998 Producer Price Index All Commodities
Unadjusted ("PPI-U") and the most recent October PPI-U published prior to the
January 1 effective date of the adjusted Initial Base Rate, provided however,
that the adjusted Initial Base Rate shall never fall below the originally
established level.
If after good faith negotiations, the parties fail to reach
agreement on the amount of the annual adjustment to the Base Rates, Base Rates
shall be adjusted up or down by one hundred percent (100%) of the cumulative
percentage change between the PPI-U published immediately prior to the effective
date of the Base Rate and the most recent October PPI-U published prior to the
January 1 effective date of the
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adjusted Base Rate, provided however, that the adjusted Base Rate shall never
fall below the originally established level.
Neither party shall have the right to request non-binding
mediation pursuant to Section 15 and invoke the arbitration procedures set forth
in Section 16 to request that an adjusted Initial Base Rate or adjusted Base
Rate be agreed upon or determined through these procedures unless the party is
able to prove it has suffered a gross inequity as a result of the implementation
of the adjusted Initial Base Rate or the adjusted Base Rate. In no event shall
the dispute resolution procedures result in the adjusted Initial Base Rate ever
falling below the Initial Base Rate or the adjusted Base Rate ever falling below
the originally established Base Rate. Any interim rates will be revised
retroactively to whatever rates were agreed upon through non-binding mediation
or were determined through the dispute resolution procedures set forth in
Section 16.
(g) Mobile River. Rates between USS and Mobile River set forth in
Exhibit X together with other rates in effect as of the effective date of this
Agreement shall be referred to herein as "Initial Base Rates." Any new rates
established during the term of this Agreement shall be deemed "Base Rates" as of
the date they are established. Upon request for any new service required by USS,
Mobile River shall offer stevedoring
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rates, terms and/or conditions competitive with those offered by similar
facilities for similar service in the same geographic area. Base Rates for
commodities other than iron ore, iron ore pellets and coke shall be established
by mutual agreement of the parties and, failing such agreement, by the dispute
resolution procedures set forth in Sections 15 and 16 of this Agreement. Prior
to December 1, 1998 and each December 1 thereafter through December 1, 2003, USS
and Mobile River shall in good faith negotiate adjusted Initial Base Rates and
adjusted Base Rates which shall be competitive with rates available to USS at
that time from viable competitors of Mobile River capable of offering the same
or substantially similar services and volumes to USS in the Mobile area. In the
event the parties fail to reach agreement by December 1 on adjusted Initial Base
Rates or adjusted Base Rates, the preceding year's rates will be used as interim
rates. If after good faith negotiations, the parties fail to reach agreement on
the amount of the annual adjustment to the Initial Base Rates set forth in
Exhibit X, such Initial Base Rates shall be adjusted up or down by one hundred
percent (100%) of the cumulative percentage change between the October 1997
Producer Price Index All Commodities Unadjusted ("PPI-U") and the most recent
October PPI-U published prior to the January 1 effective date of the adjusted
Initial Base Rate, provided however, that the adjusted Initial Base Rate shall
never fall below the originally established level. If after good faith
negotiations, the parties fail to reach agreement on the amount of the annual
adjustment to the Base Rates, Base Rates shall be adjusted up or down by one
hundred percent (100%) of the cumulative percentage change between the PPI-U
published immediately prior to the effective date of the Base Rate and the most
recent October PPI-U published prior to the January 1 effective date of the
adjusted Base Rate,
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provided however, that the adjusted Base Rate shall never fall below the
originally established level.
If after good faith negotiations, the parties fail to reach
agreement on the amount of the annual adjustment to the Base Rates, Base Rates
shall be adjusted up or down by one hundred percent (100%) of the cumulative
percentage change between the PPI-U published immediately prior to the effective
date of the Base Rate and the most recent October PPI-U published prior to the
January 1 effective date of the adjusted Base Rate, provided however, that the
adjusted Base Rate shall never fall below the originally established level.
Neither party shall have the right to request non-binding
mediation pursuant to Section 15 and invoke the arbitration procedures set forth
in Section 16 to request that an adjusted Initial Base Rate or Base Rate be
agreed upon or determined through these procedures unless the party is able to
prove it has suffered a gross inequity as a result of the implementation of the
adjusted Initial Base Rate or the adjusted Base Rate. In no event shall the
dispute resolution procedures result in the adjusted Initial Base Rate ever
falling below the Initial Base Rate or the adjusted Base Rate ever falling below
the originally established Base Rate. Any interim rates will be revised
retroactively to whatever rates were agreed upon through non-binding mediation
or were determined through the dispute resolution procedures set forth in
Section 16.
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If USS advises Mobile River that any third party buying
unloading and/or storage services at Mobile River is permitted by contract to
pass on Mobile River charges for such service to USS, then Mobile River charges
to such third party shall not exceed the charges and conditions including
payment terms, excluding drafting, which would have applied if USS had purchased
the service directly. Such tonnage will be considered as USS tons in meeting the
volume commitments in Section 7(g).
(h) Adjustments to Initial Base Rates, Terms and Conditions and Base
Rates, Terms and Conditions on Single-Line and Joint-Line Switching and
Single-Line Line-Haul Service. The Initial Base Rates and Base Rates for
single-line and joint-line switching and single-line line-haul service for Sole
Service Carrier and Fairfield Southern services shall be adjusted annually, to
be effective January 1, 1999 and each January 1 thereafter. Such adjustments, as
well as any other increases, decreases, changes, modifications, additions and/or
deletions to Initial Base Rates, terms and/or conditions and Base Rates, terms
and/or conditions for any such rail service during the Initial or any Additional
Term shall be negotiated in good faith by the parties and upon agreement
implemented either through tariffs, contracts or other agreements. If,
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after good faith negotiation during the Initial Term the parties fail to reach
agreement on the amount of the annual adjustment to the Initial Base Rates and
Base Rates, then (1) the Initial Base Rates shall be adjusted up or down by
eighty percent (80%) of the amount of the percentage change between the 4th
quarter 1997 Rail Cost Adjustment Factor, unadjusted for productivity ("RCAF-U")
of 1.00, as rebased by the STB and published in Ex Parte No. 290 (Sub No. 5)
(98-1) Table A decided on or about December 12, 1997 ("Base RCAF-U") and the
most recent 4th quarter RCAF-U published prior to the January 1 effective date
of the adjusted Initial Base Rate , provided however, that the adjusted Initial
Base Rate shall never fall below the Initial Base Rate and (2) the Base Rates
shall be adjusted up or down by eighty percent (80%) of the amount of the
percentage change between the most recent RCAF-U published prior to the time
that the Base Rate was established and the most recent 4th quarter RCAF-U
published prior to the January 1 effective date of the adjusted Base Rate,
provided however, that the adjusted Base Rate shall never fall below its
original established level. (See examples in Exhibits XVIII and XIX attached to
this Agreement.)
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At the end of the Initial Term, Transtar shall elect
whether to apply the maximum cumulative allowable rate adjustment to any rate in
effect on December 31, 2004 to be adjusted and to become effective January 1,
2005.
If after good faith negotiations during the Additional Term
of this Agreement, the parties fail to reach agreement on the amount of the
annual adjustment to the Initial Base Rates and the Base Rates, then (1) the
Initial Base Rates and adjusted Initial Base Rates in effect prior to January 1,
2005 shall be adjusted up or down by one hundred percent (100%) of the amount of
the percentage change between the 4th quarter 2003 Rail Cost Adjustment Factor
("RCAF-U") as published by the STB ("Base RCAF-U") and the most recent 4th
quarter RCAF-U published prior to the January 1 effective date of the adjusted
Initial Base Rate, provided however, that the Initial Base Rate and adjusted
Initial Base Rate shall never fall below their January 1, 2004 level and (2) the
Base Rates and adjusted Base Rates established prior to January 1, 2005 shall be
adjusted up or down by one hundred percent (100%) of the amount of the
percentage change between the 4th Quarter 2003 RCAF-U and the most recent 4th
Quarter RCAF-U published prior to the January 1 effective date of the adjusted
Base Rate, provided however, that the Base Rate and adjusted Base Rate shall
never fall below their most recent level prior to
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January 1, 2005 and (3) any Base Rates established during the Additional Term of
this Agreement shall be adjusted up or down by one hundred percent (100%) of the
amount of the percentage change between the most recent RCAF-U published prior
to the time that the Base Rate was established and the most recent 4th quarter
RCAF-U published prior to the January 1 effective date of the adjusted Base
Rate, provided, however, that such adjusted Base Rate shall never fall below its
originally established level. Such adjusted Initial Base Rates and adjusted Base
Rates shall be implemented effective each January 1 for the ensuing year.
Neither party shall have the right to invoke the dispute
resolution procedures set forth in Sections 15 and 16 to request an appropriate
rate adjustment be determined through these procedures, unless the party is able
to prove it has suffered a gross inequity as a result of the implementation of
the adjusted Initial Base Rate or the adjusted Base Rate. In no event during the
Initial Term of this Agreement shall the dispute resolution procedures result in
the adjusted Initial Base Rate ever falling below the Initial Base Rate or the
adjusted Base Rate ever falling below its original established level. In no
event during the Additional Term of this Agreement shall the dispute resolution
procedures result in the Initial Base Rate and the adjusted Initial Base Rate
ever falling below the January 1, 2004
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level, the Base Rate and adjusted Base Rate in effect on January 1, 2005 ever
falling below their January 1, 2005 level and the Base Rate and adjusted Base
Rate established during the Additional Term ever falling below their originally
established level. During the Initial and Additional Term of this Agreement, per
car rates reflected in this Agreement for single-line and/or in-plant coke
movements may be adjusted upward proportionally to the increase in car carrying
capacity or cube size whenever such car carrying capacity or cube size increases
by more than 5%. During the Additional Term, such adjustments may be sought for
movement of any other commodities but may be implemented if mutually agreed upon
by the parties or, failing such agreement, pursuant to the dispute resolution
procedures set forth in Sections 15 and 16 of this Agreement. Any arbitrator
considering a request for such an adjustment shall attempt to follow prevailing
practice in the rail industry.
(i) Adjustments to Joint-Line Rates. Sole Service Carrier
earnings on existing joint line rates may be adjusted up or down by an amount
not to exceed the same percentage increase or decrease as implemented by the
trunk line for its portion of earnings on the through rate, provided the Sole
Service Carrier's earnings shall never fall below its earnings under the
joint-line Initial Base Rate as may be adjusted as
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set forth in Section 6(j) and provided Sole Service Carrier's earnings shall
never fall below its earnings under the originally established joint-line Base
Rates as may be adjusted as set forth in Section 6(j). The dollar amount of Sole
Service Carrier earnings shall equal the dollar amount of its earnings under the
joint-line Initial Base Rate or the joint-line Base Rate, as may be adjusted as
set forth in Section 6(j), while the adjusted Initial Base Rate is equal to or
lower than the joint-line Initial Base Rate or the adjusted Base Rate is equal
to or lower than the originally established joint-line Base Rate. Once the
adjusted rate exceeds the Initial Base Rate or Base Rate, Sole Service Carrier
earnings shall be the same percentage of the adjusted joint-line Initial Base
Rate or the adjusted joint-line Base Rate as Sole Service Carrier percentage
under the Initial Base Rate or the originally established Base Rate except as
may be adjusted as set forth in Section 6(j). (See examples in Exhibits XX and
XXI attached to this Agreement.) If there is more than one other line-haul
carrier included in the joint rate with the Sole Service Carrier, Sole Service
Carrier earnings may be adjusted by an amount not to exceed the weighted average
percentage of the other participating carriers. With respect to new joint line
rates, Sole Service Carriers shall not seek requirements that are higher than
earnings on existing rates
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for movements of the same commodities from the same or a comparable junction
point to the same or comparable destination in similar quantities and equipment.
USS shall have the right to audit Sole Service Carrier records to ensure
compliance with this provision, provided however, such audit shall be conducted
by an independent auditor to be nominated by USS, subject to written approval by
the Transtar Unit to be audited, which approval shall not be unreasonably
withheld. The auditor shall only certify to USS whether Sole Service Carrier was
in compliance and shall keep all information confidential. Sole Service Carriers
shall notify USS whenever a division of a joint-line rate deviates from the
percentage division in effect at the time the Initial Base Rate or Base Rate was
established. Transtar and Sole Service Carriers hereby consent to USS
requesting, and trunk line carriers advising, only whether the division has
changed or whether the Transtar Unit has priced its division on a new movement
in accordance with existing rates for movement of the same commodities from the
same or a comparable junction point to the same or comparable destination in
similar quantities and equipment. Under no circumstances do Transtar or the Sole
Service Carriers consent to the trunk lines disclosing the amount or the
percentage of the divisions or of USS requesting the same.
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(j) Car Hire Adjustments to Rail Earnings. With respect to
Sole Service Carriers earnings for services specified in this Agreement,
Transtar shall have the right to make adjustments as necessary for increases in
cost of rail cars forced upon Transtar or Transtar Units by others pursuant to
car hire deprescription or revisions to Car Hire Rules or Car Service
Regulations. Transtar shall provide USS with reasonable supporting documentation
for any adjustment pursuant to this Section at the time such adjustment is
proposed.
(k) Regulatory Change. Any new laws and/or regulations which
become effective during the Initial Term or Additional Term of this Agreement,
which place new obligations on Transtar rail or barge carriers, including, but
not limited to, obligations with respect to competitive access and/or
obligations to quote segments of joint line movements, and which apply to rail
and/or barge service provided to USS' competitors, shall be applicable to
service provided hereunder.
(l) Drafting. Drafting procedures applicable to shipments
via Transtar Units to and from USS may be modified, as desired by USS, acting in
its sole discretion, in accordance with the following schedule:
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No Earlier Than: Transtar Unit
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7-1-2000 BLE, URR
7-1-2001 EJ&E
7-1-2002 BS, FS
7-1-2003 WGN, MRT
7-1-2004 DMIR
In those instances where drafting procedures are modified, appropriate
procedures will be put into place by the parties which provide for payment
within fifteen (15) days of receipt of billing.
(m) Determination of Competitive Rates Under Certain
Circumstances. During the term of this Agreement if the combined rate of WGN,
MRT and BS, as adjusted (excluding any FS rate) for transportation from Mobile
to Fairfield Works is not reasonably competitive with a bona fide offer for such
transportation from a viable competitor of the Transtar Units (including any
mode or any transportation group offering joint service in conjunction with one
or more Transtar Units) capable of providing transportation from Mobile to
Fairfield Works on a sustained and continual basis, then either party may invoke
the dispute resolution procedures set forth in Sections 15 and 16 to request
that a competitive combined Transtar Unit rate be agreed upon or determined
through these procedures.
7. TRANSPORTATION COMMITMENTS. (a) Rail Service by Sole Service
Carriers. During the Initial Term and the Additional Term of this Agreement, USS
shall ship via rail Transtar Units
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one hundred percent (100%) of the rail traffic originating or terminating at the
Clairton Works, Xxxx Works, Fairfield Works, Mon Valley Works and Minntac and
one hundred percent (100%) of USS-controlled rail traffic originating or
terminating at Camp-Hill Corporation.
If USS does not ship one hundred percent (100%) of the coke shipments
originating at Clairton Works during the Initial Term via URR, USS shall pay URR
liquidated damages of $1.60 for each net ton of coke which originates at
Clairton and does not move via URR during said Initial Term, provided however,
such liquidated damages shall not exceed $1,920,000 in any single calendar year.
(b) Bessemer. During each calendar year of the Initial Term of this
Agreement, USS shall ship via Bessemer not less than sixty percent (60%) of the
Mon Valley Works' total ore burden (regardless of source) including but not
limited to blast furnace trim, iron ore and/or iron ore pellets. For the six (6)
month period July 1, 1998 through December 31, 1998, calendar year 1998
shipments will be used to judge performance.
If USS ships less than the minimum percentage, it shall pay
Bessemer liquidated damages of $2.00 GT, escalated in accordance with the
provisions of Section 12 herein, for each ton less than the minimum percentage,
within thirty (30) days of receipt of billing for such liquidated damages.
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(c) In-Plant Rail Switching Service. During the Initial Term and
Additional Term of this Agreement, Transtar Units shall have the right to
provide one hundred percent (100%) of the in-plant rail switching services
identified on the attached Exhibit IV as being provided by them at the effective
date of this Agreement, so long as such in-plant rail switching services are
required by USS from any source provided that Transtar Units shall have the
right to 100% of any new rail switching service at facilities currently served
by Transtar Units that develops during the Initial Term and Additional Term of
this Agreement which USS chooses not to provide or perform with their forces.
USS may, at any time, in its sole discretion, choose to have such rail
transportation services provided by a non-rail mode. During the Initial Term and
Additional Term of this Agreement USS shall grant to Transtar a right of first
refusal to provide any new or additional rail transportation services required
by USS at facilities currently served by Transtar Units. Such right of first
refusal shall pertain only to the rail transportation service and shall not
apply to any construction of new railroad track and/or maintenance of any such
track. USS shall retain, at all times, the right to subject track construction
and/or track maintenance to competitive bidding. USS shall notify a Transtar
Unit in
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writing that such service will be required and shall designate reasonable
specifications required for such service. The Transtar Unit shall advise in
writing within thirty (30) days of receipt of such notice if it is willing and
able to provide the service in accordance with the specifications. A negative
response or a failure to respond in thirty (30) days shall cause the Transtar
Unit to lose its right of first refusal and permit USS to subject such service
to competitive bidding. Following receipt of notice by USS that the Transtar
Unit desires to provide the service, USS and the Transtar Unit shall promptly
meet to negotiate, in good faith, rates for such service which are competitive
with rates available to USS from third parties capable of providing such service
on a continual and sustained basis with financial resources adequate to provide
such services. If the parties fail to reach an Agreement within thirty (30) days
of the commencement of negotiations, either party may subject the dispute to the
dispute resolution procedures set forth in Sections 15 and 16 herein in order to
have an appropriate competitive rate established pursuant to those procedures.
USS shall retain, at all times, the right to choose, in its sole discretion, to
provide rail transportation service at any new facility with its own employees.
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(d) In-Plant Rubber Tire Service. Transtar Units shall have the right
to provide one hundred percent (100%) of the in-plant rubber tire services
identified on the attached Exhibit V pursuant to the terms and conditions of the
purchase orders or other agreements in existence on the effective date of this
Agreement. Following the expiration of any existing purchase orders or other
agreements, such services may be subject to competitive bid, provided, however,
Transtar Units shall be permitted to participate in bidding. Transtar Units
shall also be permitted to participate in bidding for new or additional rubber
tire services of the nature identified in Exhibit V required by USS.
(e) Miscellaneous In-Plant Services. Transtar Units shall be permitted
to participate in bidding for miscellaneous in-plant services identified in
Exhibit VI. Transtar Units shall also be permitted to participate in bidding new
or additional transportation-related in-plant services.
(f) WGN. During each calendar year of the Initial Term of this
Agreement, USS shall ship via WGN not less than ninety percent (90%) of its iron
ore, iron ore pellets, and coke received from ocean vessels at Mobile for
shipment to Fairfield Works. For the six (6) month period July 1, 1998 through
December 31, 1998, calendar year 1998 shipments will be used to judge
performance.
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If during the Initial Term of this Agreement any significant
change occurs to the type of commodity used to source Fairfield Works' iron
requirements, then WGN and USS shall meet and in good faith negotiate a rate for
any significant iron substitute tonnage received by ocean vessel at Mobile for
transshipment to Fairfield Works. If the parties are unable to agree upon a
rate, the matter shall be submitted to dispute resolution pursuant to Sections
15 and 16 of this Agreement. Following any such significant change, the
movements of such iron substitute tonnage shall be subject to the same ninety
percent (90%) requirement as the iron ore, iron ore pellets and coke tonnage.
If USS ships less than ninety percent (90%)via WGN, it shall
pay WGN liquidated damages of $2.00 NT escalated in accordance with the
provisions of Section 12 herein, for each ton less than this minimum percentage
within thirty (30) days of receipt of billing for such liquidated damages.
(g) Mobile River. During each calendar year of the Initial Term of this
Agreement, USS shall provide Mobile River not less than ninety percent (90%) of
its iron ore, iron ore pellets, and coke unloaded from ocean vessels at Mobile,
Alabama for movement to Fairfield Works. For the six (6) month period July 1,
1998 through December 31, 1998, calendar year 1998 shipments will be used to
judge performance.
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If during the Initial Term of this Agreement any significant
change occurs to the type of commodity used to source Fairfield Works' iron
requirements, then WGN and USS shall meet and in good faith negotiate a rate for
any significant iron substitute tonnage received by ocean vessel at Mobile for
transshipment to Fairfield Works. If the parties are unable to agree upon a
rate, the matter shall be submitted to dispute resolution pursuant to Sections
15 and 16 of this Agreement. Following any such significant change, the
movements of such iron substitute tonnage shall be subject to the same ninety
percent (90%) requirement as the iron ore, iron ore pellets and coke tonnage.
If USS ships less than ninety percent (90%) via Mobile
River, it shall pay Mobile River liquidated damages of $.85 NT escalated in
accordance with the provisions of Section 12 herein, for each ton less than this
minimum percentage within thirty (30) days of receipt of billing for such
liquidated damages.
(h) Bid Terms. From and after the effective date of this Agreement,
neither Transtar nor any of the Transtar Units shall be required to indemnify or
hold harmless any party to this Agreement as a condition to bidding for, or
being awarded the right to provide, transportation or transportation-related
services, whether such services are within the scope of any Transportation
Services Agreement or otherwise, and the
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absence of any such indemnity or hold harmless provision in any such bid shall
not be taken into consideration to determine the competitiveness of such bid.
The intent of this provision is (1) to relieve Transtar and the Transtar Units
from the requirement of indemnifying or holding harmless any other party to this
Agreement in contracts, agreements, sales and purchase orders for transportation
or transportation-related services that are amended or entered into upon and
after the effective date of this Agreement and (2) to abolish the requirement
that Transtar or the Transtar Units undertake such indemnification or hold
harmless obligations in order to be deemed competitive in bidding for, or as a
precondition to be awarded the right to provide, such transportation and
transportation-related services. In lieu of any such hold harmless and
indemnification agreements, Transtar Units shall be obligated to agree to
apportion liability pursuant to the terms of that certain Memorandum of
Understanding Regarding Financial Responsibility dated December 21, 1998 as such
Memorandum may be amended from time to time.
8. SERVICE LEVELS. During the Initial Term and the Additional Term of
this Agreement, Transtar Units shall maintain service levels which are
reasonably required to provide service hereunder and in a manner consistent with
and competitive with other carriers in the area. The originating rail Transtar
Unit shall be responsible for arranging for car
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supply consistent with the availability of rail cars from other carriers,
provided that the Transtar Unit rail carrier may not require USS to utilize
Transtar Unit xxxxxx cars for coke shipments in lieu of otherwise available more
efficient rail cars. The Transtar Unit shall have car ownership obligations on
in-plant and single-line switching and line-haul movements but shall have no car
ownership obligations when it functions as a switch carrier on interline freight
movements. Any dispute between the parties concerning service levels shall be
referred to dispute resolution in accordance with the provisions of Sections 15
and 16 hereof.
9. MAINTENANCE OF TRANSPORTATION ASSETS. Transtar Units shall maintain
in good and serviceable condition those transportation assets used to provide
service to USS pursuant to this Agreement, including, but not limited to, way
and structures, locomotives, railcars, signaling systems, tugs, barges, rubber
tire equipment and transshipment facilities.
EJ&E shall acquire sufficient high cube coke racks to
protect present Xxxx Works' in-plant coke movements subject to a maximum
expenditure of $20 million. EJ&E shall direct its best efforts to acquire said
cars by December 31, 2000 or sooner, if possible.
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During the remainder of 1998, BLE and USS shall jointly
study the issue of fines generation during the rail-lake-rail movement and
attempt to identify a mutually agreeable solution. If the parties are unable to
agree upon a solution by December 31, 1998, USS shall have the option, at any
time thereafter during the Initial Term of this Agreement, upon reasonable
notice in writing to BLE, to require BLE to construct a screening facility at
Conneaut subject to a maximum expenditure of $2 million.
DMIR will replace individual ore cars used to provide
services to USS under this Agreement when replacement is necessary. The cost for
any DMIR ore cars replaced shall be borne by DMIR without any increase in the
transportation rate other than that provided in Section 6(h). DMIR shall not
invoke the force majeure provisions of Section 25 because of a failure of the
Federal Railroad Administration to grant any waiver authorizing continued use of
any of the ore cars now existing.
Any dispute between the parties concerning maintenance of
transportation assets shall be referred to the dispute resolution procedures in
accordance with the provisions of Sections 15 and 16 hereof.
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10. MAINTENANCE OF INTERCHANGES. Transtar Units shall maintain
interchanges, gateways and/or terminals operable as of the date of this
Agreement which are reasonably required to provide service hereunder. Any
dispute between the parties concerning maintenance of interchanges, gateways
and/or terminals shall be referred to dispute resolution in accordance with the
provisions of Sections 15 and 16 hereof.
11. AUDIT. Each party shall have the right to audit the other's records
insofar as necessary to ensure compliance with all of the terms and conditions
of this Agreement. Except as provided in Section 6(i) herein, such audits shall
be performed by an internal or external auditor, provided however, that the
party being audited shall have the right to require that any audit be conducted
by a mutually agreeable independent auditor and that the details of the
information examined in such audit be kept confidential from the party
requesting the audit, except to the extent necessary to resolve any controversy
that is pursued in good faith. The first $20,000 of cumulative total audit
expense annually incurred for audit services required by either party to be
performed by independent auditors shall be shared equally by the parties.
Thereafter, such audit expense shall be borne by the party requesting the audit.
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12. LIQUIDATED DAMAGES. The parties acknowledge that in light of the
nature of the investments and expenditures to be made by Transtar and the
Transtar Units to comply with obligations under this Agreement, the actual
damages which will be sustained in the event of a failure of USS to meet its
obligations under Sections 7(a), (b), (f) and (g) are uncertain and difficult to
ascertain. Accordingly, the parties have agreed to appropriate measures of
liquidated damages for each ton below the applicable minimum percentages set
forth in Sections 7(a) (pertaining to Clairton coke shipments only),(b), (f) and
(g).
Liquidated damages provided in Section 7(b), shall be
adjusted annually during the Initial Term of this Agreement, to be effective
January 1, 1999 and each January 1 thereafter, up or down by eighty percent
(80%) of the amount of the percentage change between the 4th Quarter 1997 Rail
Cost Adjustment Factor, unadjusted for productivity ("RCAF-U") of 1.00, as
rebased by the STB and published in Ex Parte No. 290 (Sub No. 5) (98-1) Table A
decided on or about December 12, 1997 ("Base RCAF-U") and the most recent 4th
Quarter RCAF-U published prior to the January 1 effective date of the adjusted
liquidated damages and shall never fall below the initial liquidated damages.
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Liquidated damages provided in Sections 7(f) and 7(g) shall
be adjusted annually during the Initial Term of this Agreement to be effective
January 1, 1999 and each January 1 thereafter up or down by one hundred percent
(100%) of the cumulative percentage change between the October 1997 PPI-U and
the most recent PPI-U published immediately prior to the January 1 effective
date of the adjusted liquidated damages but shall never fall below the
originally established level.
If during the Initial Term of this Agreement, USS, for any
reason other than force majeure, fails to meet any of its volume commitments set
forth in Sections 7(b), (f) and (g) hereof for any given calendar year other
than the final calendar year of the Initial Term, USS may, in lieu of paying
liquidated damages, make up the deficit volume during the immediately succeeding
calendar year by shipping such deficit volume plus an additional 10% of the
deficit volume over the Transtar Unit to which the volume commitment was made,
in addition to shipping its annual volume commitment for such succeeding year.
If any portion of the deficit volume plus an additional 10% of the deficit
volume has not been shipped by the end of the immediately succeeding calendar
year, USS shall pay the liquidated damages (as then escalated) for such portion
no later than thirty (30) days after billing by the
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Transtar Unit. It is the intent of the parties that the provisions of the final
paragraph of this Section 12 shall not apply to the volume commitment set forth
in Subsection 7(a) pertaining to Clairton coke shipments.
13. SEVERABILITY. It is the desire of the parties hereto that this
Agreement be enforced to the fullest extent permissible under the laws and
public policies to be applied thereto. Accordingly, if any particular portion of
this Agreement shall be adjudicated to be void, invalid or unenforceable, this
Agreement shall be deemed to be amended to delete herefrom the portion thus
adjudicated to be void, invalid, or unenforceable, unless such change alters the
purpose and intent of this Agreement, in which case this Agreement shall be null
and void.
14. INEQUITIES. The parties intend that they shall mutually benefit
from the terms, conditions and provisions of this Agreement. If any party
suffers a gross inequity resulting from such terms, conditions or provisions, or
from a substantial change in circumstances or conditions, the parties shall
negotiate in good faith to resolve or remove such inequity. In the event the
parties fail to reach an agreement concerning any alleged gross inequity, the
dispute shall be referred to the dispute resolution procedures of Sections 15
and 16 hereof. It is mutually understood and agreed, however,
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that nothing herein shall be construed to relieve any party of any of its
obligations under this Agreement or under any related transportation contract,
purchase order or other agreement. The parties further agree that, unless
otherwise required by law, no party shall assert or cause to be asserted in any
suit, action, proceeding or other adjudication that any of the terms, conditions
or provisions of this Agreement are or will be unenforceable, unjust,
unreasonable, unreasonably discriminatory, preferential or prejudicial, or
otherwise in violation of any provision of any act or statute or any rule, order
or regulation thereof.
15. MEDIATION. At any time prior to the start of sworn testimony in
arbitration, provided under Section 16 of this Agreement, a party may submit a
dispute arising hereunder to non-binding mediation. The mediator shall be
selected by the party submitting the dispute with or without the concurrence of
the other party. Neither submission of a dispute to mediation nor conclusion of
the mediation process shall be a condition precedent to exercise of the
arbitration procedures available to the parties under this Agreement. If a
dispute is submitted to mediation:
1) the parties shall mediate the dispute in good faith;
2) mediation shall occur in Allegheny County, Pennsylvania;
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3) final decision makers for each party on any matter in dispute shall
personally attend all mediation sessions;
4) the mediator shall have complete control of the mediation timing and
process, provided, however, that the mediation shall conclude no later than
fourteen (14) calendar days from the day of the initial meeting between the
mediator and the parties;
5) all agreements reached in mediation shall be reduced to writing before
concluding the mediation process;
6) the parties may jointly agree to have the mediator make a final
and binding decision;
7) no discovery will be taken during the mediation process;
8) the mediation process shall be confidential and each party participating
shall have the right to designate any information provided to the mediator as
"Confidential and Proprietary."
16. ARBITRATION. All disputes arising under this Agreement shall be
referred to binding arbitration conducted expeditiously in accordance with
Center for Public Resources Rules for Non-Administered Arbitration of Business
Disputes ("CPR Rules") by a three person panel of arbitrators, each party
choosing one arbitrator and the two arbitrators so chosen selecting a third,
neutral arbitrator. The failure or inability of either party to choose an
arbitrator or of the
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arbitrators chosen by the parties to select a third neutral arbitrator shall be
resolved in accordance with the CPR Rules. Arbitration shall be conducted at a
mutually convenient location in Allegheny County, Pennsylvania or at such other
location as the parties may agree. The award in writing signed by any two of the
arbitrators shall be final and binding. In order to resolve any disputes
hereunder, the arbitrators shall implement the specific rights and obligations
set forth in this Agreement while fulfilling the intent stated in Section 4
hereof. Either party shall have the right to seek, and the arbitrators shall
determine, declaratory relief of the nature generally set forth in the Uniform
Declaratory Judgments Act (as in effect in the Commonwealth of Pennsylvania and
as the same may be amended from time to time) including, but not limited to,
questions of construction of this Agreement, or a declaration of rights, status
or other legal relations hereunder. The arbitrators shall apply the substantive
statutory and common law of the Commonwealth of Pennsylvania to the dispute and
the evidentiary laws of the Commonwealth of Pennsylvania to the arbitration
proceeding. The arbitration shall be governed by the United States Arbitration
Act, 9 U.S.C. Sections 1-16, and judgment upon the award entered by the
arbitrators may be entered by any court having jurisdiction thereof. The
arbitrators shall not award damages in excess of compensatory
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damages. The costs and expenses of the arbitration (other than attorneys' fees,
if any) shall be borne one-half by USS and one-half by the Transtar Unit. The
arbitrators shall be permitted to review existing documents or records of any
party to the extent that, in the sole discretion of the neutral arbitrator, such
documents and/or records are deemed to be relevant and to the extent the parties
are permitted by law or by contract to convey such documents or records to the
arbitrator. Either party shall have the right to designate any information
sought in discovery or provided to the arbitrators at their request as
confidential and/or proprietary in which case the neutral arbitrator shall
determine whether the information sought shall be disclosed in discovery or, if
such information is provided to the arbitrators at their request, shall not
convey such information to the other party.
17. ASSIGNMENT. No party to this Agreement shall assign or transfer
this Agreement or any interest herein, other than to the lenders providing
financing to Transtar, Inc. (which lenders will act through a single agent)
without the prior written consent of the other party, which consent shall not be
unreasonably withheld. Subject to the provisions of this Section 17, this
Agreement shall inure to the benefit of and be binding upon the successors and
assigns to the parties. USS shall not directly or indirectly sell, transfer or
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otherwise dispose of all or a substantial portion of the assets of any facility
served by Transtar Units during the term of this Agreement to any party which
intends to operate a facility at that location for the production of steel or
steel-related products, unless the purchaser, acquiror or other transferee of
such facility assumes, in a writing reasonably satisfactory to Transtar, all of
the rights and obligations set forth in this Agreement.
18. NOTICES. Unless otherwise specified herein, any and all notices
under this Agreement shall be in writing and shall be delivered to the party
entitled to receive the same: (1) by hand delivery; (2) by registered or
certified mail, return receipt requested; (3) by overnight delivery service
which provides proof of delivery; or (4) by telecopy, with a duplicate copy sent
via first class mail, postage pre-paid addressed as follows:
If to USS:
USX Corporation-U. S. Steel Group
000 Xxxxx Xxxxxx - Xxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Director - Raw Materials Planning,
Procurement and Distribution
Phone: 000-000-0000
Fax: 000-000-0000
USX Corporation-U. S. Steel Group
000 Xxxxx Xxxxxx - Xxxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: General Manager-Distribution and Logistics
Phone: 000-000-0000
Fax: 000-000-0000
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USX Corporation-U. S. Steel Group
000 Xxxxx Xxxxxx - Room 431
Pittsburgh, Pennsylvania 15219-2749
Attention: General Manager-Purchasing
Phone: 000-000-0000
Fax: 000-000-0000
If to a Transtar Unit:
Transtar, Inc.
000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Vice President-Marketing
Phone: 000-000-0000
Fax: 000-000-0000
19. LAW GOVERNING. This Agreement shall be construed in accordance with
the laws of the Commonwealth of Pennsylvania excluding its conflict of laws
provision.
20. NON-OPERATING FACILITIES. During the Initial Term and Additional
Term of this Agreement, USS shall not initiate or participate in any activity or
discussions adverse to the sole common carrier railroad status of the respective
rail Transtar Units at the non-operating facilities identified on Exhibit XI
provided, however, that USS shall not be required to forego sale of any such
non-operating facility in any instance where the buyer, as a condition of the
sale and after discussions with Transtar representatives, refuses to accept a
sole serving carrier for the facility. If any potential buyer expresses interest
in rail service, USS shall refer such buyer to the appropriate Transtar Unit.
During such term, the respective Transtar Units shall not take any action to
abandon
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their common carrier obligation to provide rail service at any of the
facilities identified on Exhibit XI unless they have obtained the prior written
consent of USS.
21. RELATIONSHIP OF PARTIES. The relationship between USS and Transtar
Units under this Agreement shall be that of independent contractors. Nothing in
this Agreement shall be deemed to constitute a relationship of agency, joint
venture, partnership, or any relationship other than that specified.
22. INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES. In no event shall a
party be liable for any indirect, special or consequential damages as a result
of a breach of any provision of this Agreement.
23. ENTIRETY OF AGREEMENT; AMENDMENTS. This Agreement constitutes the
entire agreement of the parties with respect to the subject matter hereof. No
change, modification, or alteration of this Agreement shall be effective unless
reduced to writing and signed by the parties. Waiver of any breach of the
Agreement by a party shall not be construed as a waiver of any other breach.
24. MUTUAL RELEASE. The parties fully release and discharge each other
from all claims, known and unknown, arising under the 1988 Agreement which any
party may have against any other party to this Agreement. This provision is not
intended to apply to personal injury or property damage
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claims that either party may have against the other.
25. FORCE MAJEURE. The parties understand that performance by a party
may be interrupted or delayed by an occurrence outside of its control, including
but not limited to the following: an act of God, war, riot, sovereign conduct,
equipment failure, strikes, lockouts, conduct of third parties, or other similar
causes beyond the reasonable control of the parties. If that should occur, such
party shall be excused from performance for as long as it is reasonably
necessary to cure the Force Majeure condition. In case of any dispute as to the
reasonableness of a resulting delay in performance, the parties shall submit the
matter to dispute resolution in accordance with the procedures set forth in
Sections 15 and 16.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
USX CORPORATION - U. S. STEEL GROUP
By /s/ Xxxx X. Xxxxxxx
------------------------------------
Title: President
TRANSTAR, INC.
By /s/Xxxxxx X. Xxxxxx
------------------------------------
Title: President
45
