AMENDED AND RESTATED
INTERMODAL
TRANSPORTATION AGREEMENT NO. 11111
DATED MAY 13, 2002
BETWEEN
CSX INTERMODAL, INC.,
PACER INTERNATIONAL, INC.,
d/b/a PACER STACKTRAIN
(f/k/a APL LAND TRANSPORT SERVICES, INC.,)
APL LIMITED
AND
APL CO. PTE LTD.
TABLE OF CONTENTS
Page
1. INTERPRETATION..............................................................................................1
2. RECITALS....................................................................................................2
3. TERM........................................................................................................2
4. CSXI'S SERVICES.............................................................................................2
5. APL'S/LTS' RESPONSIBILITIES.................................................................................5
6. SOUTH KEARNY TERMINAL.......................................................................................7
7. RAIL RATES AND OTHER CHARGES................................................................................7
8. RATE ADJUSTMENTS............................................................................................9
9. COMPETITIVE PROPOSALS.......................................................................................9
10. SERVICE LEVEL COMMITMENT.................................................................................9
11. PAYMENT OF PRICES AND CHARGES............................................................................9
12. COMMUNICATIONS..........................................................................................10
13. USE OF CSXI'S FACILITIES; COMPLIANCE WITH LAWS..........................................................11
14. LIABILITY AND CLAIMS PROCEDURES.........................................................................12
15. INDEMNIFICATION.........................................................................................13
16. FORCE MAJEURE...........................................................................................13
17. CONFIDENTIALITY.........................................................................................14
18. FEDERAL CONTRACTOR REQUIREMENTS.........................................................................14
19. DEFAULT.................................................................................................15
20. INDEPENDENT CONTRACTOR..................................................................................16
21. ASSIGNMENT..............................................................................................16
22. DISPUTE RESOLUTION......................................................................................17
23. AUDIT...................................................................................................19
24. GENERAL.................................................................................................20
APPENDIX LIST
APPENDIX 1.1 DEFINITIONS............................................................................1
APPENDIX 4.1 RAIL SERVICES AND LINEHAUL RATES.......................................................8
APPENDIX 4.3 TERMINAL AND CONTAINER YARD SERVICES...................................................9
APPENDIX 4.4 COOPERATIVE EFFORTS TO MINIMIZE COSTS.................................................11
APPENDIX 4.5 NS EXCLUSIVE POINT SERVICE............................................................12
APPENDIX 4.8 TRAIN SCHEDULES AND ROUTING...........................................................13
APPENDIX 4.9 CSXI'S RIGHT TO MODIFY................................................................14
APPENDIX 4.11 APPLICABILITY OF DIRECTORY NO. 1.....................................................15
APPENDIX 4.13 OTHER TYPES OF TRAFFIC...............................................................16
APPENDIX 5.2 VOLUME COMMITMENT.....................................................................17
APPENDIX 5.8 NOTIFICATION TO CUSTOMERS OF DIRECTORY NO. 1..........................................19
APPENDIX 6 SOUTH KEARNY TERMINAL...................................................................20
APPENDIX 7.2 NONAPPLICABILITY OF RATES FOR CERTAIN SHIPPERS........................................23
APPENDIX 7.3 NO CO-LOADING.........................................................................24
APPENDIX 7.5 FAK CARGO ONLY........................................................................25
APPENDIX 7.6 CONVENTIONAL/STACK CAR RATES..........................................................26
APPENDIX 7.10 EFFECTIVE DATE OF NORTHEAST RATES....................................................27
APPENDIX 8 RATE ADJUSTMENTS........................................................................28
APPENDIX 9 COMPETITIVE PROPOSALS...................................................................33
APPENDIX 10 SERVICE LEVEL COMMITMENT...............................................................44
APPENDIX 14.1 CSXI'S LIABILITY FOR CARGO...........................................................48
APPENDIX 14.3 CLAIMS BY SHIPPING CUSTOMERS.........................................................49
APPENDIX 17.4 INTERNAL DISCIPLINE..................................................................51
APPENDIX 21.1.3 TRANSFERS OR ASSIGNMENTS TO RAILROAD...............................................52
APPENDIX 23.1.2 MATTERS SUBJECT TO CSXI'S AUDIT....................................................53
APPENDIX 23.2.2 MATTERS SUBJECT TO APL/LTS AUDIT...................................................54
APPENDIX 23.3 AUDITS UNDER APPENDIX 9..............................................................55
EXHIBIT LIST
EXHIBIT 1.1.30 EASTERN STATES
EXHIBIT 1.1.31 EASTERN ZONES AND WESTERN ZONES
EXHIBIT 1.1.37 EXISTING LESS-THAN-TRUCKLOAD CUSTOMERS
EXHIBIT 1.1.38 EXISTING TPI CUSTOMERS
EXHIBIT 1.1.62 PREMIUM O/D PAIRS
EXHIBIT 4.1.1 LINEHAUL RATES FOR APL `S MOVEMENTS IN PACIFIC
TRADES
EXHIBIT 4.1.2 LINEHAUL RATES FOR LTS' MOVEMENTS OF APL OR LTS
CONTAINERS IN TRANSCONTINENTAL DOMESTIC SERVICE
EXHIBIT 4.1.3 LINEHAUL RATES FOR EXISTING TPI CUSTOMERS
EXHIBIT 4.1.4 LINEHAUL RATES FOR TEMPERATURE CONTROLLED CONTAINERS
EXHIBIT 4.1.5 LINEHAUL RATES FOR EMPTY CONTAINERS MOVING
WITHIN THE EASTERN STATES WITH A PRIOR AND
SUBSEQUENT TRANSCONTINENTAL MOVEMENT
EXHIBIT 4.3 TERMINAL SERVICES AND RATES
EXHIBIT 4.4 DEDICATED TRAINS
EXHIBIT 4.11 EXCEPTIONS TO DIRECTORY NO. 1
EXHIBIT 6.1 KEARNY TERMINAL
EXHIBIT 6.9 INVENTORY OF LIFT AND YARD EQUIPMENT
EXHIBIT 9.2 METHODOLOGY DESCRIPTION
EXHIBIT 9.3 EXAMPLE OF COMPETITIVE PROPOSAL CALCULATION FOR
TRANSCONTINENTAL DOMESTIC CONTAINERS
EXHIBIT 9.3.2 COST FACTORS
EXHIBIT 14.2.1 DEPRECIATION FORMULA
AMENDED AND RESTATED
INTERMODAL TRANSPORTATION AGREEMENT NO. 11111
THIS AMENDED AND RESTATED INTERMODAL TRANSPORTATION AGREEMENT
NO. 11111 ("Agreement"), dated as of May 13, 2002, and effective as of the
Effective Date (as defined in Section 3.4 of this Agreement), is between CSX
INTERMODAL, INC. ("CSXI"), a Delaware corporation, whose address is 000 Xxxx Xxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, PACER INTERNATIONAL, INC., d/b/a PACER
STACKTRAIN (f/k/a APL LAND TRANSPORT SERVICES, INC.), a Tennessee corporation,
whose address is 0000 Xxxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("LTS"), and APL
LIMITED, a Delaware corporation, whose address is 0000 Xxxxxxxx, Xxxxxxx,
Xxxxxxxxxx 00000, and APL CO. PTE LTD., a Singapore corporation, whose address
is 000 Xxxxxxxxx Xxxx, 00-00, XXX Xxxxxxxx, Xxxxxxxxx 0000 (collectively,
"APL").
R E C I T A L S:
APL and LTS wish to purchase and CSXI wishes to arrange for or
provide certain transportation and related services. CSXI, APL and LTS wish to
enter into this Agreement to amend and restate the existing agreement between
them (the "Original Agreement") in order to give effect to the agreement and
understanding among the parties with respect to the provision of terminal
services and rates, to make certain technical changes and corrections, and to
set forth the terms and conditions pursuant to which APL and LTS agree to
purchase and CSXI agrees to arrange for or provide such services.
A G R E E M E N T:
For and in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties agree as
follows:
1. INTERPRETATION
1.1 Definitions. Defined terms are set forth in Appendix 1.1.
1.2 Other Terms. Other capitalized terms shall have the meaning given them
in the text of this Agreement.
1.3 Headings. The section headings contained in this Agreement are for
reference and convenience only and shall not enter into the interpretation of
this Agreement. References to Articles shall mean articles of this Agreement
unless otherwise stated. References to Sections shall mean sections of this
Agreement, including sections in an Appendix, unless otherwise stated.
References to Sections in an Appendix shall mean sections of that Appendix
unless otherwise stated. References to Paragraphs in an Exhibit shall mean
paragraphs in that Exhibit unless otherwise stated.
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1.4 Plural; Singular Usage. All terms used in the plural shall include the
singular; and all terms used in the singular shall include the plural.
2. RECITALS
The above recitals are true and correct and are incorporated herein by this
reference.
3. TERM
3.1 Commencement. This Agreement shall become effective on and as of the
date first written in the first paragraph of this Agreement. The Original
Agreement became effective as follows:
3.1.1 Southeastern Traffic. As to the southeast traffic, January 1,
2000.
3.1.2 Northeastern Traffic. As to the Conrail northeast traffic, the
date one hundred eighty one (181) days after the Closing Date.
3.1.3 Kearny Terminal. As to the obligations with respect to
integration of the Terminal in South Kearny, New Jersey set forth in
Article 6, upon the signing of the Original Agreement.
3.2 Termination. This Agreement will terminate at 11:59 p.m. on December
31, 2014, subject to Section 3.5 of this Agreement.
3.3 Early Commencement. APL/LTS may jointly commence the Agreement as to
their southeast traffic prior to January 1, 2000 by providing CSXI with no less
than sixty (60) days prior notice of such election.
3.4 Effective Date. The date that the Original Agreement became effective
with respect to each area of traffic or responsibility shall be the "Effective
Date" with respect to that area.
3.5 Renewal. This Agreement will automatically renew for two successive
five (5) year periods, unless terminated by CSXI, APL or LTS upon no less than
one hundred eighty (180) days notice prior to the expiration of the original or
first renewal term.
4. CSXI'S SERVICES
4.1 Rail Services and Linehaul Rates. Upon the Effective Date and during
the term of this Agreement, CSXI will arrange for rail transportation linehaul
services for the movements described in Appendix 4.1 and at the rates set forth
in the Rate Exhibits, in each case as the same shall have been and shall be
adjusted in accordance with the terms and provisions of this Agreement.
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4.2 Services Included in Linehaul Charges. CSXI shall provide the following
services as part of the linehaul movement between CSXI origin or destination and
CSXI interchange, and such services are included in the linehaul charges
provided in the Rate Exhibits:
4.2.1 Lifts. CSXI will perform, when necessary, one lift of Equipment
onto an Intermodal Car and secure Equipment thereto and unsecure Equipment
and perform one lift of Equipment from an Intermodal Car.
4.2.2 Placement on Chassis. CSXI will place Containers on APL or LTS
Chassis when timely supplied by APL or LTS. If there are sufficient Chassis
in a Chassis pool at the Terminal to which APL and LTS have access, such
Chassis shall be considered to be timely supplied.
4.2.3 EIRs and Interchange Inspections. CSXI will prepare Equipment
receipt and interchange inspection reports evidencing the apparent
condition of the Equipment at times of interchange to motor carriers.
4.2.4 Notifications. CSXI will provide notification of arrival and
availability of shipments to APL/LTS in accordance with Section 4.6 of this
Agreement.
4.2.5 CY Inventories. Upon request of APL/LTS, CSXI will provide daily
CY inventory reports verifying the number of APL or LTS Containers and
Chassis at each CSXI-served rail CY. In addition, CSXI shall perform a
physical yard check once a week and shall provide a report to APL/LTS by
yard and equipment number. This report will be given to appropriate offices
of APL/LTS as specified in writing from time to time.
4.2.6 Physical Possession. CSXI will exercise reasonable efforts to
give physical possession of Chassis and Containers only to authorized
individuals. APL/LTS will provide CSXI's Director of Intermodal Operations
with a complete list of all authorized entities prior to the Effective
Date. Thereafter APL/LTS shall give CSXI at least five (5) days notice of
any change in the identity of authorized entities.
4.2.7 Outgate and Ingate Notification. CSXI will provide notification
of ingate and outgate times for each Container and Chassis by EDI or other
mutually agreeable means.
4.2.8 Storage Charges. CSXI will assess and collect any Equipment
storage charges due at any Terminal beyond the applicable free time. CSXI
will directly assess storage charges for loaded shipments in Domestic
Service or for TPI Customers against the customer or its agent, including
but not limited to LTS if LTS is the notify party or is providing or
arranging for destination motor carrier service. Other provisions regarding
storage charges are set forth in Exhibits 4.3 and 6.1. CSXI may elect to
xxxx the responsible party or collect such charges at the time of outgate.
CSXI will calculate free time and assess storage charges against parties
other than APL or LTS in accordance with Directory No. 1. Any storage
charges so collected will be for CSXI's account.
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4.3 Terminal and Container Yard Services. Terminal and CY services shall be
provided on the terms and conditions set forth in Appendix 4.3.
4.4 Dedicated Trains.
4.4.1 Request and Scheduling of Dedicated Trains. Upon no less than
twenty-four (24) hours verbal notice by APL/LTS to CSXI's Operations
Center, CSXI will arrange for locomotives and a crew to operate a Dedicated
Train for APL/LTS between the points and at the charges set forth in
Exhibit 4.4. If APL/LTS requests that a Dedicated Train be operated under a
mutually agreed upon pre-arranged and ongoing schedule, then CSXI will
operate the Dedicated Train under that schedule. If APL/LTS requests
movement of a non-scheduled Dedicated Train, such train will depart the
origin terminal at the time agreed upon between APL/LTS and CSXI. Such
agreement will be made at the time the non-scheduled Dedicated Train is
requested by APL/LTS. Further, such train will be operated from origin to
destination under a transit schedule no greater than the maximum number of
hours shown in Exhibit 4.4.
4.4.2 Dedicated Train Pricing. Pricing for Dedicated Trains is set
forth in Exhibit 4.4.
4.4.3 Cancellation of a Dedicated Train. APL will have the option to
cancel a Dedicated Train on no less than seven (7) hours' notice to CSXI
before the scheduled departure.
4.4.4 Cooperative Efforts to Minimize Costs. Provisions regarding the
parties' efforts to minimize costs are set forth in Appendix 4.4.
4.5 NS Exclusive Point Service. Terms and conditions regarding CSXI's
service for rail points exclusively served by NS are set forth in Appendix 4.5.
4.6 Notification and Reporting. CSXI will notify the notify party specified
in the shipping documents of the arrival of a Container and its availability for
pickup. If no notify party is specified on the shipping documents, CSXI will
notify the appropriate offices of APL/LTS as specified in writing from time to
time. CSXI will supply to APL/LTS via direct computer access (or until such
access is available, via electronic mail or facsimile transmission) a network
status report or an update on changes thereto containing the following items:
(a) train symbol and date, (b) number of APL/LTS Equipment on each train, (c)
billed destination of Equipment on each train, (d) current location, on-time vs.
schedule and delay amount and explanation and ETA train destination and (e)
bad-ordered cars and a recovery plan (by telephone) and new ETA for the car at
destination (by telephone). CSXI will supply to APL/LTS weekly service bulletins
and proactive maintenance of way advisories and current organization charts and
contact lists periodically when changed. To the extent that it is not presently
available, CSXI will work with APL/LTS to develop efficient and effective
computer systems to provide APL/LTS with direct electronic access to this
operational data.
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4.7 Loading Containers. CSXI shall use commercially reasonable efforts to
load the Containers tendered under this Agreement onto Intermodal Cars in a
timely fashion and to load Intermodal Cars properly in accordance with any safe
operating procedures given by connecting rail carriers to CSXI or established by
CSXI or any regulatory agency. At Terminals where stack Intermodal Car
capability exists, CSXI will give preference to loading APL/LTS Containers on
stack Intermodal Cars in lieu of standard flat Intermodal Cars.
4.8 Train Schedules and Routing. Provisions for train schedules and routing
are set forth in Appendix 4.8.
4.9 CSXI's Right to Modify. CSXI may modify, add or delete Terminal
services, hours of operation, Terminals or other facilities and change the
services it offers to customers from time to time. CSXI will notify APL/LTS of
any such modifications, additions or deletions at least sixty (60) days in
advance (unless law, regulation or overriding commercial circumstances require a
shorter notice period) and on a continuing basis through communications between
the CSXI Customer Service Center and appropriate offices of APL/LTS, semi-annual
service improvement meetings and APL/LTS and CSXI service design group
discussions. The consequences of a failure to agree on subsequent changes to
CSXI's services related to Terminals are set forth in Appendix 4.9.
4.10 No Obligation To Provide Temperature Protection Services. CSXI does
not provide protective services for refrigerated Containers, and the rates set
forth in the Rate Exhibits do not include such protective services.
4.11 Applicability of Directory No. 1. The provisions relating to the
applicability of Directory No. 1 to APL/LTS are set forth in Appendix 4.11.
4.12 Applicability of Standard Practice and Industry Rules. All services
provided by CSXI to APL and LTS will also be subject to CSXI's standard hours of
operation and AAR rules, unless modified in this Agreement.
4.13 Other Types of Traffic. Movements not covered in the Rate Exhibits
will be handled as set forth in Appendix 4.13.
5. APL'S/LTS' RESPONSIBILITIES
5.1 Payments. APL and LTS shall pay all sums owed to CSXI pursuant to this
Agreement in a timely manner and as set forth in Article 11.
5.2 Volume Commitment. Appendix 5.2 sets forth APL's/LTS' volume
commitments to CSXI and the remedies if APL or LTS fails to meet those
commitments.
5.3 Condition of Equipment. All Equipment tendered by APL or LTS to CSXI or
its underlying carriers for movement hereunder will be in good working order
without defects and shall comply with all applicable AAR and governmental
standards. All Containers tendered by APL or LTS to CSXI or its underlying
carriers for movement hereunder will be suitable to be stacked (on top and
bottom) for transportation on stack Intermodal Cars.
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5.4 Draymen. APL and LTS will, with respect to trucking activities
involving a Terminal, engage or cause to be engaged only draymen with which both
APL/LTS and CSXI have a motor carrier interchange agreement or a Uniform
Intermodal Interchange Agreement.
5.5 Tendering of Chassis. APL and LTS will provide a sufficient number of
APL or LTS Chassis of the proper dimensions to accommodate the volumes of APL or
LTS Containers at each Terminal. CSXI will store up to the number of APL and LTS
Chassis set forth in the applicable Terminal exhibits at no charge to APL or
LTS. To the extent that APL and LTS provide Slider Chassis, CSXI will make or
arrange for adjustment of the size of Slider Chassis as required to accommodate
APL/LTS daily Container volumes. If sufficient numbers of APL and LTS Chassis of
the proper dimensions are not available upon train arrival, CSXI may, in order
to expedite the unloading of trains, use other available Chassis and provide
secondary lifts as necessary at the rates set forth in Directory No. 1;
provided, however, an APL or LTS Container will not be allowed to exit the
Terminal when loaded on other than an APL/LTS Chassis. To the extent that CSXI
must transfer an APL or LTS Container from a non-APL/LTS Chassis, CSXI will
assess and APL/LTS will pay an extra lift fee as set forth in Exhibit 4.3 or
6.1, whichever is applicable to that Terminal. CSXI may use APL or LTS Chassis
to handle the Containers of other CSXI customers or for CSXI Containers;
provided, however, that if in APL's/LTS' opinion CSXI abuses this right, APL/LTS
may revoke this right. CSXI will not allow bare APL or LTS Chassis or APL or LTS
Chassis with a non-APL/LTS Container to leave a Terminal without the specific
authorization of APL or LTS. If CSXI should allow bare APL or LTS Chassis or an
APL or LTS Chassis with a non-APL/LTS Container to leave a Terminal without
authorization, CSXI will use commercially reasonable efforts to return the
Chassis to APL's or LTS' possession, will pay reasonable Chassis rental charges
therefor and will be responsible for any loss or damage to that Chassis in
accordance with Section 14.2 of this Agreement. If APL or LTS receives any
Chassis rental charges, reimbursement of loss or damage to Chassis or other
amounts from the party to whom the Chassis was interchanged and CSXI has also
been required to pay these amounts to APL or LTS under the foregoing sentence,
APL or LTS will pay the amounts remitted by the other party to CSXI.
5.6 Customs Services.
5.6.1 Movement under APL's, LTS' or TPI Customer's Bond. All in-bond
shipments under this Agreement shall move under APL's, LTS' or the Existing
TPI Customer's U.S. Customs custodial bond, unless otherwise mutually
agreed in writing.
5.6.2 Allocation of Responsibility. The following sets forth the
respective responsibilities and liabilities of APL/LTS and CSXI with
respect to in-bond shipments.
(a) APL and LTS' Responsibility. APL and LTS shall be liable for,
and shall defend and indemnify CSXI, its Affiliates and their
respective officers, directors, employees, and agents against, any
Losses imposed by the U.S. Customs Service or the Internal Revenue
Service related to their Containers moving in-bond unless otherwise
provided in Section 5.6.2(b) of this Agreement.
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(b) CSXI's Responsibility. CSXI will, upon confirmation of
Customs clearance, interchange a Container to APL's/LTS' motor carrier
or its agents or employees in accordance with the relevant interchange
agreement during the Terminal's normal business hours. CSXI shall be
responsible for any duties or fines arising from Customs violations
actually and directly caused by CSXI during the period in-bond
Containers are in its or its agent's possession and control. CSXI
agrees not to open any APL or LTS in-bond Containers without U.S.
Customs Service supervision and approval, except in a force majeure
condition or other emergency, such as a leaking Container, or with APL
or LTS' permission.
5.7 Compliance with Directory No. 1. APL and LTS will comply with all
requirements of Directory No. 1 with respect to shipments under this Agreement,
unless those requirements conflict with or are excluded or modified by the terms
of this Agreement.
5.8 Notification to Customers of Directory No. 1. APL and LTS shall inform
its customers that the provisions of Directory No. 1 apply to their shipments
using CSXI's transportation services and they must comply with provisions of
Directory No. 1 as more specifically set forth in Appendix 5.8.
5.9 Prior Notice. To facilitate loading of trains at each Terminal, APL and
LTS will make a good faith effort to provide CSXI's Terminal Manager with
twenty-four (24) hours advance notice of the expected number of pieces of
Equipment to be received by CSXI at each Terminal.
5.10 Point of Contact. CSXI shall not be required to provide notices to,
interact with or obtain the agreement of APL and LTS acting as separate entities
under this Agreement with respect to any daily operational matters. CSXI shall
be required to provide notices to, interact with or obtain the agreement of APL
and LTS acting as separate entities under this Agreement with respect to any
changes in this Agreement, including but not limited to the Rate Exhibits,
Exhibit 4.3 and Directory No. 1 and if APL pays CSXI directly, with respect to
charges billed under Article 11. Accordingly, APL and LTS shall appoint a single
joint point of contact for each functional area to represent both APL and LTS in
working on a daily basis with CSXI and CSXT under this Agreement.
5.11 Routing. With respect to Container movements subject to the volume
commitments under Section 5.2 of this Agreement, APL and LTS shall route their
Containers in Transcontinental International or Domestic Service through
Gateways served by CSXI.
6. SOUTH KEARNY TERMINAL
Appendix 6 sets forth the parties' mutual obligations and responsibilities
regarding rail terminal operations at south Kearny, N.J.
7. RAIL RATES AND OTHER CHARGES
7.1 Linehaul Rates. Linehaul rates made available under this Agreement are
set forth in the Rate Exhibits, Directories Nos. 3 and 8 and by SPQ. To the
extent that the rates in
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Directories Nos. 3 or 8 applicable to a type and size of Container between any
O/D Pair are lower than the applicable rate in the Rate Exhibits, then the lower
Directory rate shall apply.
7.2 Nonapplicability of Rates. Provisions regarding the inapplicability of
APL's/LTS' linehaul rates are set forth in Appendix 7.2.
7.3 No Co-Loading. APL/LTS shall not use the linehaul rates provided under
this Agreement for movements of empty or loaded Containers owned or leased by
certain other parties as set forth in Appendix 7.3.
7.4 Combination of Prices. The rates set forth in Rate Exhibits may not be
combined to construct a lower price where a through price for an O/D Pair is set
forth in a Rate Exhibit.
7.5 FAK Cargo Only. The rates set forth in the Rate Exhibits apply only to
cargo which is accepted under freight, all kinds ("FAK") pricing as defined in
Directory No. 1; provided, however, that the rates in the Rate Exhibits shall
apply to certain other freight as specified in Appendix 7.5. If APL or LTS wish
to transport non-FAK cargo (other than that cargo specified in Appendix 7.5) in
movements otherwise covered under a Rate Exhibit, APL or LTS may request an SPQ.
7.6 Conventional/Stack Car Rates. Separate rates are set forth in the Rate
Exhibits for Containers moving in stack Intermodal Car service and Containers
moving TOFC in conventional service and shall apply depending on whether the
shipments are moved in stack or conventional service. CSXI acknowledges that
prior to the Effective Date, APL and LTS moved a certain percentage of its
Containers in the Southeast in stack service and the remaining percentage in
conventional service. The future application of rates as between stack service
and conventional service is set forth in Appendix 7.6.
7.7 Changes in Container Sizes. If ISO standard dimensions for Containers
or the sizes and types of other Containers are otherwise changed, CSXI will
propose linehaul rates for Containers with such new dimensions. Such rates will
take effect upon the mutual agreement of the parties.
7.8 Addition of New O/D Pairs. If from time to time CSXI adds O/D Pairs to
the Core Network as a result of corporate transactions or otherwise, CSXI will
propose linehaul charges for these new O/D Pairs. Such rates will take effect
upon the mutual agreement of the parties. CSXI and APL/LTS shall also agree as
to which Eastern Zone the new origin or destination shall be allocated.
7.9 Rates for Moves Not Covered by Rate Exhibit. Movement of Containers
covered by this Agreement for which no rate is provided under a Rate Exhibit may
be moved at the rates set forth in Directory Nos. 3 or 8 or pursuant to an SPQ.
7.10 Northeast Rates. Provisions regarding the effective date of linehaul
rates for Northeastern traffic are set forth in Appendix 7.10.
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8. RATE ADJUSTMENTS
Appendix 8 sets forth the adjustment mechanisms applicable to CSXI's
linehaul rates and charges.
9. COMPETITIVE PROPOSALS
Appendix 9 sets forth provisions for the adjustment of CSXI's rates and
charges to APL as a result of specified market conditions and competitive
circumstances.
10. SERVICE LEVEL COMMITMENT
Appendix 10 sets forth the standards for CSXI's service performance and the
remedies if CSXI fails to meet those standards.
11. PAYMENT OF PRICES AND CHARGES
11.1 Payment of Charges Owed to CSXI. CSXI will provide APL/LTS with a
detailed statement of linehaul and other charges for transportation, terminal
and other services rendered by CSXI and any other sums owed CSXI pursuant to
this Agreement, via EDI transmission or, if EDI transmission is not available,
by facsimile transmission or overnight courier. Each statement will bear a
unique number. APL/LTS must notify CSXI of any disputed charges listed on the
statement and provide documentary evidence to support its dispute of any charges
by 12:00 noon (EST) no later than twenty five (25) calendar days from the date
the statement is received. No response within this period will constitute
APL's/LTS' acknowledgment that the statement is accurate. The parties will work
together to resolve any disputed charges. If the parties are unable to resolve
disputed charges, either party may invoke the dispute resolution procedures in
Article 22. APL and LTS will pay amounts owed for undisputed charges (including
the undisputed portion of disputed charges) by electronic funds transfer within
twenty-five (25) days from the date the statement is received. APL and LTS will
pay disputed charges that have been resolved within fifteen (15) days of the
date of resolution. APL, LTS and CSXI will develop procedures for promptly
acknowledging receipt of CSXI's statement xxxx.
11.2 Payment of Charges Assessed by APL/LTS. APL/LTS will provide CSXI with
a statement for any charges properly assessed against CSXI. The statement will
be delivered via EDI transmission or, if EDI transmission is not available, by
facsimile transmission or overnight courier to the address set forth in Section
24.3 of this Agreement. The parties will work together to resolve any disputed
charges. If the parties are unable to resolve the disputed charges, either party
may invoke the dispute resolution procedures in Article 22. CSXI will pay
undisputed charges (including the undisputed portion of disputed charges) by
electronic funds transfer within twenty-five (25) days from the date of the
statement is received. CSXI will pay disputed charges that have been resolved
within fifteen (15) days of the date of resolution. CSXI, APL and LTS will
develop procedures for promptly acknowledging receipt of APL's or LTS'
statement.
11.3 No Offset. Each party shall pay all transportation and other charges
due under this Agreement and shall not offset such charges in any circumstances
against amounts alleged to
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be due as a result of prior billing error, unsettled loss or damage claims,
unpaid items, or other dispute with the other party.
11.4 Late Fee. Any payment that is not received when due will be subject to
a late payment charge equal to a rate of one and one-half percent (1 1/2%) per
month (or the maximum rate permitted by law if less than 1 1/2% per month). No
late fee will accrue on disputed charges unless it is determined under the
dispute resolution procedures that the disputing party had no reasonable basis
for the dispute or was not acting in good faith in connection with the dispute.
12. COMMUNICATIONS
12.1 Shipping Order. Prior to gate arrival of APL and LTS Containers for
gate interchange to CSXI, APL/LTS shall provide CSXI with a single final
shipping order by EDI in the format specified by CSXI and including the data
required under Directory No. 1 except as such data requirements are modified in
Exhibit 4.11. APL and LTS acknowledges that it is CSXI's policy that no APL or
LTS Containers will be accepted for gate interchange onto a Terminal unless a
shipping order in accordance with Directory No. 1, as modified in Exhibit 4.11,
has been provided for the Container prior to ingate or appropriate documentation
physically accompanies the Container. For a reasonable transition period, CSXI
will work with APL/LTS to facilitate APL's/LTS' compliance with this policy.
Thereafter, APL and LTS shall comply and cause its draymen to comply with this
policy. CSXI will handle exceptions to the policy requested by APL/LTS on a
case-by-case basis. The format specified by CSXI for shipping or destination
transmission may be changed from time to time to conform to then current ANSI or
other standards for electronic information exchange. CSXI will provide APL/LTS
with six (6) months prior notice of any change in its EDI format, and APL/LTS
will transmit data in such revised format no later than six (6) months after
such notice.
12.2 APL'S/LTS' Responsibility for Data. APL and LTS will be responsible
for correctly transmitting shipping order and other electronic data to CSXI.
12.3 Information on Cargo Not Eligible for FAK pricing. If the subject
cargo cannot be shipped under FAK pricing, the transmission (or any written
documentation provided at the Terminal gate if permitted by CSXI) must include
all relevant information regarding such shipment, including, but not limited to,
in the case of hazardous material as defined by the Hazardous Material
Regulations of the Department of Transportation, all descriptive elements
required by 49 Code of Federal Regulations, part 172, Subpart C, and in the case
of cargo requiring refrigeration services a description of the specific
commodity (i.e., frozen fish, tomatoes) being transported.
12.4 Shipping Order Changes. Diversion or re-consignment of a shipment will
only be permitted prior to loading of the Container onto the train at the origin
Terminal. Diversion or re-consignment must be arranged and have been approved by
CSXI in advance. If the number of diversion and re-consignments requested by APL
or LTS become burdensome to CSXI, CSXI reserves the right to charge a processing
fee of $10.00 per diversion or re-consignment. This fee will be in addition to
any diversion or re-consignment charges assessed by a rail carrier, charges for
the shipment as originally tendered and any charges quoted at the time of
request. Diversion
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or re-consignment requests must be confirmed by APL/ LTS via EDI transmission or
in writing. CSXI agrees to attempt to make the diversion requested in those
situations where the request is timely received and a confirmed agreement of
diversion is entered into in time for shipping orders to be issued to the proper
party for the diversion, but CSXI will not guarantee nor be responsible if the
relevant carrier cannot or does not effectuate or complete the diversion.
12.5 Voids of Shipping Order. Requests to void a shipping order will not be
accepted after the loading of the Container onto the train at the origin
Terminal.
12.6 Transportation Incidents and Exceptions. CSXI shall use reasonable
efforts to notify APL/LTS as soon as reasonably possible of all major incidents
affecting the movement of APL's/LTS' shipments. Incidents shall include, but are
not limited to, set-outs, bad-order cars, derailments and reroutes and any
matter considered by CSXI to constitute a force majeure condition as described
in Article 16.
12.7 Day-to-Day Management. CSXI will arrange for APL/LTS to have suitable
and direct lines of communications with both CSXI's Director of Intermodal Train
Operations and appropriate CSXT operational personnel.
13. USE OF CSXI'S FACILITIES; COMPLIANCE WITH LAWS
13.1 Subcontractor's Access to CSXI Facilities. In order to efficiently and
safely operate the Terminals and its other facilities, CSXI must, among other
precautions, limit access by APL and LTS and other parties to its facilities.
Accordingly, neither officers, employees or agents of APL or LTS nor any APL or
LTS Subcontractor shall have access to the Terminals or other facilities of CSXI
or CSXT without the prior written consent of the relevant CSXI Terminal General
Manager or the supervisors of the Terminal General Managers, which consent shall
not be unreasonably withheld. CSXI will inform APL/LTS from time to time of
those officers authorized to grant such access to Terminals. If CSXI does permit
an APL or LTS officer, employee or agent or a Subcontractor to have access to a
Terminal or other premises, CSXI reserves the right thereafter to exclude such
persons from the Terminals and other facilities and to require APL and LTS
officers, employees and agents and each Subcontractor to execute a separate
access agreement with CSXI as a condition to their access.
13.2 Compliance with Laws and Rules. APL, LTS and CSXI shall comply, and
APL and LTS shall cause Subcontractors to comply, at all times, with (a) all
applicable laws, rules, regulations, policies, procedures, and ordinances,
whether state, federal, municipal or other, (b) all of CSXI's operating rules,
policies and procedures, including without limitation safety inspection,
training and operations guidelines, accident reporting rules, and Terminal and
yard guidelines and requests; (c) applicable AAR rules and procedures; and (d)
any other laws, regulations, ordinances or standards relating to railroad, safe
container, trucking or other transportation operations, environmental
protection, clean air and water, workers' compensation, industrial accidents,
employer liability, safety and health.
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14. LIABILITY AND CLAIMS PROCEDURES
14.1 CSXI's Liability for Cargo. CSXI's liability for loss, damage,
destruction or delay to cargo shall be governed by the terms of Directory No. 1
and Appendix 14.1.
14.2 CSXI's Liability for Equipment.
14.2.1 Determination of CSXI's Equipment Liability. Responsibility for
loss, damage, maintenance and repair of Equipment shall be governed by the
Container Rules. The cost of repairs to Equipment will be allocated as set
forth in this Section. APL will pay for or perform the owner's
responsibility repairs under the Container Rules. CSXI will pay for or
perform those handling carrier responsibility repairs under the Container
Rules that become necessary while Equipment is in the possession of CSXI.
If after joint investigations by APL/LTS and CSXI, the responsible party
cannot be determined, APL/LTS and CSXI shall share the cost of handling
carrier responsibility repairs equally. As between APL/LTS and CSXI and
except as provided in Section 5.5 of this Agreement, APL and LTS shall be
responsible for all repairs while Equipment is in the possession of a third
party, including but not limited to a motor carrier and other rail
carriers. If either party performs repairs to Equipment for which the other
party is responsible under this Section, the responsible party shall pay
the performing party as set forth in the Container Rules. If APL or LTS
Equipment in CSXI's possession is lost, stolen, destroyed or becomes a
constructive total loss, CSXI will promptly notify APL or LTS. Within
thirty (30) days after the Equipment's depreciated value is calculated,
CSXI will promptly pay APL or LTS the depreciated value of the Equipment,
less salvage value if the Equipment is returned to APL of LTS. For purposes
of this Section, depreciation will be calculated according to the formula
in Exhibit 14.2.1. Equipment will be considered a constructive total loss
if the estimated repair cost of the Equipment exceeds its depreciated
value, less salvage. If Equipment in CSXI's possession becomes a
constructive total loss, CSXI will provide APL or LTS with a list of major
items of damage to the Equipment within fifteen (15) days after the
Equipment's depreciated value is calculated. APL or LTS will advise CSXI of
its desired disposition of the Equipment within ten (10) days after receipt
of the list. If APL or LTS requests return of its Equipment and if in the
sole judgment of CSXI return of the Equipment is practicable, APL or LTS
will pay CSXI transportation and other charges (including conditioning and
loading) applicable to the return. If APL or LTS does not desire the return
of the Equipment or if CSXI determines that return is not practicable, APL
or LTS will provide CSXI with title to the Equipment prior to CSXI's
payment to APL of the depreciated value of the Equipment.
14.2.2 CSXI's Payment of Repairs. If CSXI is responsible for repairs
to a Container under Section 14.2.1 of this Agreement, it will pay the
vendor providing the repairs directly. If CSXI does not have a direct
billing relationship with the repair vendor and APL/LTS arranges the
repairs, CSXI will pay APL/LTS, as applicable, the amount billed to it by
its repair vendor for such repairs as evidenced by the vendor's invoice.
Payments by CSXI to APL/LTS will be subject to the procedures set forth in
Section 11.2 of this Agreement.
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14.3 Submission of Claims. The procedures for submitting claims to
CSXI are set forth in Appendix 14.3.
14.4 Xxxxxxx Liability. CSXI has declined to purchase Xxxxxxx
Amendment liability coverage from its rail carriers. If APL, LTS or its
shipping customers wish to purchase Xxxxxxx Amendment liability coverage,
APL, LTS and its shipping customers must obtain such coverage through an
SPQ.
14.5 General Disclaimer of Certain Damages. NO PARTY SHALL BE LIABLE
TO ANY OTHER PARTY TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN
OR EXCEPT WHERE A PARTY TO THIS AGREEMENT IS REQUIRED TO PAY SUCH DAMAGES
TO A THIRD PARTY AND TO THE EXTENT THAT PARTY IS ENTITLED TO FULL OR
PARTIAL INDEMNITY FROM ANOTHER PARTY UNDER THIS AGREEMENT.
15. INDEMNIFICATION
15.1 Indemnification by APL and LTS. Subject to the terms, conditions and
limitations of liability set forth in this Agreement, APL and LTS shall defend,
indemnify and hold harmless CSXI, its Affiliates and the respective officers,
directors, employees, and agents of each from and against Losses associated with
(a) damage to property or injury or death of any persons to the extent resulting
from or arising out of APL's or LTS' or their Subcontractors' or their
officers', directors', employees', or agents' negligence or willful misconduct,
(b) damage to property and injury or death to persons to the extent resulting
from or arising out of APL's or LTS' breach of this Agreement; or (c) claims by
any person or entity other than APL or LTS related to loss, damage, destruction
or delay to cargo or Equipment in excess of the limitations in, or other than as
permitted by Directory No. 1 as it applies to APL/LTS hereunder if APL or LTS
failed to comply with Appendix 5.8. If, however, APL or LTS demonstrates that it
has complied with Appendix 5.8, it shall have no obligation to indemnify CSXI
under Section 15.1(c).
15.2 Indemnification by CSXI. Subject to the terms, conditions and
limitations of liability set forth in this Agreement (including Directory No.
1), CSXI shall defend, indemnify and hold harmless APL and LTS and their
officers, directors, employees, and agents from all Losses associated with (a)
damage to property or injury or death of any persons to the extent resulting
from or arising out of CSXI's or its Subcontractors' or their officers',
directors', employees', or agents' negligence or willful misconduct or (b)
damage to property and injury or death to persons to the extent resulting from
or arising out of its breach of this Agreement.
16. FORCE MAJEURE
A party shall be excused from fulfilling its contractual obligations
hereunder if it is prevented or delayed in such performance by force majeure
conditions beyond such party's reasonable control including, but not limited to,
fire or explosions; lockouts; strikes; labor shortages or disturbances; acts of
God, including, but not limited to, floods, hurricanes, tornadoes, earthquakes,
unusually severe weather, and natural disasters; war; insurrection;
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derailment that causes the normal route of movement to be impassable or other
casualty; acts of the public enemy; acts of governmental authority; embargo;
quarantine; and acts or omissions of third parties. The party claiming force
majeure will, within five (5) business days from the date of disability, notify
the other when it learns of the existence of a force majeure condition and will
similarly notify the other within a period of two (2) business days when the
force majeure condition has ended. The party claiming force majeure shall take
all commercially reasonable efforts to continue to perform its obligations to
the extent practicable and to recommence performing all obligations as soon as
possible after the force majeure condition has ended.
17. CONFIDENTIALITY
17.1 Confidentiality Obligations. Each party agrees to hold in confidence
any Confidential Information of the disclosing party acquired during the term of
this Agreement, not to disclose the Confidential Information to any third
parties, to restrict disclosure to those employees, partners, shareholders or
Subcontractors with a need to know and bind such employees, partners,
shareholders or Subcontractors to these confidentiality restrictions, and not to
use the Confidential Information for any purpose except as contemplated by this
Agreement. Either party may disclose Confidential Information to the extent
required by a governmental agency, under a court order or as otherwise required
by law, provided that the party subject to the legal requirements has notified
the other party of such governmental or court action prior to disclosing the
Confidential Information.
17.2 Exclusion of Certain Information. This Article 17 will not prohibit or
limit a party's use of information (a) previously known to it and not subject to
any confidentiality restrictions, (b) independently developed by it, (c)
acquired by it from a third party which is not, to such party's knowledge, under
an obligation not to disclose such Confidential Information, or (d) which is or
becomes publicly available through no breach by such party of these
confidentiality obligations.
17.3 Right to Equitable Relief. Each party acknowledges the value of the
Confidential Information to the other party and the inadequacy of money or
damages in the event of breach or threatened breach and agrees that the other
shall be entitled to obtain an injunction against a breach of these
confidentiality obligations from any court of competent jurisdiction immediately
upon request, without being required to post a bond or prove that damages are
inadequate.
17.4 Internal Discipline. Appendix 17.4 sets forth internal procedures to
preserve the confidentiality of APL's/LTS' rates.
18. FEDERAL CONTRACTOR REQUIREMENTS
18.1 Compliance with Federal Contractor Requirements. To the extent
applicable, APL/LTS and CSXI will comply with and give all representations and
assurances required by any law or regulation applicable to federal contracts and
subcontracts including but not limited to the following:
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18.1.1 Renegotiation and Contract Work Hours and Safety Standards Act.
To the extent applicable, the Renegotiation Act of 1951, as amended (50
U.S.C.ss.ss.35, 45), and the Contract Work Hours and Safety Standards Acts,
as amended (40 U.S.C.ss.ss.327,333).
18.1.2 Certain Executive Orders. To the extent applicable, Executive
Order No. 11246, dated September 14, 1965, as amended, concerning equal
employment opportunity and affirmative action in employment of persons
without regard to race, religion, sex, or national origin; Executive Order
No. 11701, dated January 24, 1973, concerning affirmative action in
employment of certain veterans; Executive Order No. 11758, dated January
15, 1974, concerning affirmative action in employment of handicapped
individuals; Executive Order No. 11625, dated October 13, 1971, concerning
assistance to minority business enterprises; Executive Order No. 12138,
dated May 18, 1979, concerning assistance to women's business enterprises;
the Age Discrimination Act of 1975; all applicable regulations of the
Secretary of Labor, including but not limited to 41 X.X.X.xx. 60-1.4 et
seq., 41 X.X.X.xx. 60-250 et seq., and 41 C.F.R.ss.60-741 et seq., and all
applicable Federal Procurement Regulations, including but not limited to 41
C.F.R.ss.1-1.13 et seq.; and
18.1.3 Defense Acquisition Regulations. To the extent applicable,
Defense Acquisition Regulations 7-104.14, concerning use of small business
and minority business concerns, and 7.104.20, concerning use of labor
surplus area concerns.
18.2 No Segregated Facilities. To the extent applicable and required, APL,
LTS and CSXI each hereby certify to the other that it does not and will not
maintain any facilities for employees that are unlawfully segregated or permit
employees to perform services at any location under its control or that of its
subcontractors where unlawfully segregated facilities are maintained and that it
will require its nonexempt subcontractors to furnish a similar certification
prior to the award of any nonexempt subcontract.
19. DEFAULT
19.1 Events of Default. The following shall be deemed an Event of Default:
(a) APL's or LTS' failure to make timely payments under this Agreement unless
such failure is cured within five (5) days of the date of CSXI's notice of such
failure or (b) any other material breach of the terms and conditions of this
Agreement which has or is likely to have a material adverse effect on the
nondefaulting part(ies) if such breach is not cured within sixty (60) days of
the date of the non-defaulting party's notice of such breach.
19.2 Remedies Upon an Event of Default. In addition to any other remedies
under this Agreement, at law or in equity, the nondefaulting part(ies) may, upon
any Event of Default by the defaulting party, terminate this Agreement as to the
defaulting party upon written notice of such termination or suspend performance,
in whole or in part, of this Agreement with respect to the defaulting party
until such Event of Default is cured. All rights and remedies which may have
accrued prior to any termination upon an Event of Default shall survive
termination of this Agreement.
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19.3 Obligations During Notice Period. Each party shall continue to perform
its respective responsibilities hereunder through the effective date of
termination.
19.4 Obligations Upon Termination. Upon termination of this Agreement for
any reason, each party shall complete their performance and fulfill all
obligations which accrued prior to the date of termination, including but not
limited to APL's and LTS' obligation to pay all accrued charges and CSXI's
obligation to provide transportation for all Containers previously tendered and
to return to the defaulting party, at an interchange point or other location or
locations mutually agreed upon, all Containers and Chassis owned or provided by
the defaulting party. If solely as a result of a default by one party, a
nondefaulting party terminates this Agreement as to the defaulting party
pursuant to Section 19.2 of this Agreement the transportation of Containers and
Chassis owned or provided by the defaulting party to an interchange point or
other location or locations mutually agreed upon will be at the sole cost and
expense of the defaulting party.
19.5 Transition Cooperation. Upon the failure of the parties to agree upon
renewal of this Agreement or upon giving by a party of notice of intent to
terminate this Agreement, pursuant to Section 19.2 of this Agreement, the
parties will use good faith efforts to establish a reasonable schedule and
reasonable procedures for cessation of transportation and related Terminal and
other activities with respect to the party being terminated that will endeavor
to minimize the disruption to the extent reasonably possible to the parties and
their customers. The terms of this Agreement will govern transportation and
related Terminal services and other activities during this transition.
20. INDEPENDENT CONTRACTOR
APL/LTS agree that CSXI will be an independent contractor and not an
agent of them. This Agreement does not grant APL or LTS authority to enter into
any contracts or obligations on behalf of CSXI or otherwise bind CSXI, and
neither APL nor LTS shall hold itself out as having such authority. This
Agreement shall not be construed to grant CSXI authority to enter into any
contracts or obligations on behalf of APL or LTS or otherwise bind APL or LTS,
and CSXI shall not hold itself out as having such authority.
21. ASSIGNMENT
21.1 Assignment by APL or LTS.
21.1.1 No Assignment without CSXI Approval. Except as provided for
herein, neither APL nor LTS, as the case may be, may assign this Agreement
without the prior written approval of CSXI.
21.1.2 Effect of Certain Transactions. For purposes of this Article
21, a merger, sale of all or substantially all business and assets, a
reorganization, a consolidation or other change in control of a party
hereto shall not constitute an assignment of this Agreement by that party
so long as such successor-in-interest or surviving entity retains or
succeeds to ownership and control of all or substantially all
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of the business and assets ofAPL or LTS, as applicable, and is and shall be
bound by the terms of, and shall assume all obligations of such party
under, this Agreement.
21.1.3 Transfers or Assignments To Railroad. Section 21.1.2 of this
Agreement notwithstanding, the prior written approval of CSXI shall be
required with respect to a merger, sale of all or substantially all
business and assets, a reorganization, a consolidation or other change in
control of APL or LTS if the successor-in-interest or surviving entity is a
railroad or an Affiliate thereof. If CSXI withholds such approval, APL or
LTS, as applicable, may elect to proceed with such transaction with a
railroad or an Affiliate thereof, and upon consummation of such
transaction, this Agreement shall terminate as to such party. If CSXI
grants its approval in certain circumstances as set forth in Appendix
21.1.3, Section 9.3 of Appendix 9 and Exhibits 9.3 and 9.3.2 shall be void.
21.2 Assignment by CSXI. CSXI may not assign this Agreement without the
prior written approval of each of APL and LTS, except to an Affiliate (other
than Sea-Land Service, Inc. or its successor or any other ocean carrier
Affiliate) of CSXI.
21.3 Binding Effect. To the extent not prohibited hereunder, the covenants,
terms, provisions and conditions of this Agreement shall apply to, bind and
inure to the benefit of the respective permitted successors and assigns of APL,
LTS and CSXI.
22. DISPUTE RESOLUTION
22.1 Disputes Subject To Procedures. All disputes, whether sounding in
contract, tort or otherwise, arising out of or relating to this Agreement,
including but not limited to the arbitrability of a party's claim or dispute or
the breach of this provision, default under or breach of any provision in this
Agreement, termination of this Agreement, all claims for indemnification,
payments for services, liability for cargo loss or damage, and liability for
personal injuries shall be resolved pursuant to the provisions of this Article
22 exclusively.
22.2 Internal Review. The parties intend to expeditiously and amicably
resolve any and all disputes that may arise between them. Within fifteen (15)
days after receipt by either party of written notice from the other party of the
existence of a dispute, the party receiving the notice shall deliver to the
other party a written response. The foregoing notice and response shall describe
the nature and circumstances of the dispute, state the party's position with
respect to the dispute and summarize the evidence and arguments supporting the
position. The managers participating in the dispute shall arrange to meet, in
person or by teleconference, at a mutually agreeable time and location as soon
as practicable and shall diligently attempt to resolve the dispute over the next
fifteen (15) days following receipt of the response. If the parties'
participating managers are not able to resolve the dispute within this fifteen
(15) day period, either party may submit the dispute to CSXI's Executive Vice
President of Marketing and Sales and APL's/LTS' Vice President-Transportation
Purchasing or such other senior executives as may be mutually agreed upon by the
parties from time to time. The submission shall be accompanied by the original
notice of dispute and response thereto and any additional evidence and arguments
that may be relevant. The designated executives shall then arrange to meet, in
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person or by teleconference, at a mutually agreeable time and location as soon
as practicable and shall diligently attempt to resolve the dispute over the next
fifteen (15) days following submission of the dispute to them. If such
executives do not agree upon a decision within fifteen (15) days after
submission of the dispute to them, or such longer time as they may agree upon,
then either party may, by providing a notice of arbitration to the other party,
submit the dispute to arbitration in accordance with the following provisions.
22.3 Arbitration Procedures. All disputes described in Section 22.1 of this
Agreement which are not resolved under Section 22.2 of this Agreement shall be
submitted for final resolution pursuant to the Commercial Arbitration Rules of
the American Arbitration Association then in effect, and the parties hereby
consent to the entry of judgment by any court of competent jurisdiction with
respect to the decision of the arbitrator(s). The provisions of this Agreement
shall control if they conflict with the Commercial Arbitration Rules. The U.S.
Arbitration Act, 9 U.S.C. Sections 1-16, to the exclusion of any provisions of
state law inconsistent therewith or which would produce a different result,
shall govern the arbitrability of all claims. The arbitration shall be before an
arbitrator selected in accordance with the Commercial Arbitration Rules. Any
decision of the arbitrator shall be rendered within thirty (30) days after the
completion of the presentation of evidence and witnesses. The arbitrator shall
have the authority to award costs, such as pre-award interest, post\award
interest, expert fees and attorneys fees as deemed equitable considering the
circumstances, the outcome of the arbitration and the conduct of the parties,
but shall not have the authority to award indirect, special, consequential or
punitive damages or to issue equitable relief.
22.4 Discovery and Rules. The arbitrator shall permit and facilitate such
discovery as he or she shall determine is appropriate under the circumstances
taking into account the needs of the parties, the relevance of the requested
discovery to the matter in controversy, and the desirability of making discovery
expeditious and cost-effective. The rules of arbitration may not deprive a party
of the right to be represented by counsel, to present evidence, or to
cross-examine witnesses presented by another party.
22.5 Allocation of Expenses. Subject to the arbitrator's power to award
costs, each party shall be responsible for the expenses, fees and costs of the
arbitrator.
22.6 Location for Arbitration. Any non-telephonic arbitration shall be held
in Atlanta, Georgia.
22.7 Judicial Proceeding. The parties agree that the only circumstances in
which the parties may initiate judicial proceedings under this Agreement are to
obtain injunctive relief under Section 17.3 of this Agreement or to enforce this
Article 22. In any judicial proceeding to enforce this Article 22, the only
issues to be determined will be the existence of an agreement to arbitrate and
the failure of a party to comply with such agreement, and those issues will be
determined summarily by the court without a jury.
22.8 Conduct of Operations. Pending resolution of any dispute brought in
good faith, each party will continue to perform its obligations under this
Agreement, including, but not
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limited to, the payment of all amounts due to the other party that are not
in dispute, provided that the other party also continues to perform its
obligations under this Agreement.
22.9 Confidentiality of Arbitration. All aspects of the arbitration,
including but not limited to all documents, testimony, information or other
things produced, inspected or otherwise made available in connection with the
arbitration, shall be treated as Confidential Information. Neither the parties
nor the arbitrators may disclose the existence, content or results of the
arbitration, except as necessary to comply with applicable law or regulatory
requirements. Before making any disclosure required by law, a party shall give
written notice to all other parties and shall allow such parties a reasonable
opportunity to protect their interests. In no event shall such disclosure to
comply with legal or regulatory requirements be deemed to waive the confidential
nature of the disclosed information.
23. AUDIT
23.1 CSXI's Right to Audit.
23.1.1 Timing of CSXI's Audit. CSXI shall have the right to audit APL
and LTS as described in this Section from time to time upon thirty (30)
days written notice to the applicable party, but no more frequently than
once per six month period; provided however, that CSXI may conduct a
follow-up audit within three (3) months of completion of any audit that
reveals any material irregularities or noncompliance in the obligations
being audited. CSXI's right to audit will remain in effect for twelve
months after any termination or expiration of this Agreement. APL/LTS shall
have the right to approve the auditor, which approval may not be
unreasonably withheld or delayed.
23.1.2 Matters Subject to CSXI's Audit. CSXI shall have the right, at
its own cost and expense, to cause an independent auditor to audit APL's
and LTS' books and records to confirm compliance with the items set forth
in Appendix 23.1.2.
23.1.3 Conduct of Audit. Any such audit shall be conducted at CSXI's
expense during normal business hours at APL or LTS' offices and at times
which do not unreasonably interfere with their business operations. The
independent auditor shall protect the Confidential Information of APL and
LTS and such auditor will execute confidentiality agreements in forms
reasonably acceptable to CSXI and APL/LTS.
23.1.4 Maintenance of Books and Records. APL and LTS shall maintain
all necessary books and records containing information needed to
effectively perform an audit for a period of three (3) years (or such
longer period as may be required by law) from the date of the event
reflected in such books or records and shall provide the auditor with
reasonable access to such books and records.
23.1.5 Expenses; Subject to Arbitration. If an audit determines that,
as a result of misinformation provided by APL or LTS, or LTS' other failure
to comply with this Agreement, CSXI undercharged APL or LTS by five percent
(5%) or more with respect to any audited matter, APL and LTS will reimburse
CSXI for the reasonable out-of-pocket
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expense of such audit. If APL or LTS disagrees with the report of any
audit, the matter will be submitted to arbitration pursuant to Article 22.
23.2 APL's/LTS' Right to Audit.
23.2.1 Timing of APL's/LTS' Audit. APL/LTS shall have the right to
audit CSXI as described in this Section from time to time upon thirty (30)
days written notice to CSXI, but no more frequently than once per six month
period; provided however that APL/LTS may conduct a follow-up audit within
three (3) months of completion of any audit that reveals any material
irregularities or noncompliance in the obligations being audited. This
APL/LTS right to audit will remain in effect for twelve months after any
termination of this Agreement. CSXI shall have the right to approve the
auditor, which approval may not be unreasonably withheld or delayed.
23.2.2 Matters Subject to APL and LTS Audit. APL/LTS shall have the
right, at its own cost and expense, to cause an independent auditor to
perform an audit of CSXI's books and records solely for the purposes of
verifying the matters set forth in Appendix 23.2.2.
23.2.3 Conduct of Audit. Any such audit shall be conducted, at
APL's/LTS' expense, during normal business hours at CSXI's offices and at
times which do not unreasonably interfere with its business operations. The
independent auditor shall protect the Confidential Information of CSXI, and
such auditor will execute confidentiality agreements in forms reasonably
acceptable to CSXI and APL/LTS.
23.2.4 Maintenance of Books and Records. CSXI shall maintain all
necessary books and records containing information needed to effectively
perform an audit for a period of three (3) years (or such longer period as
may be required by law) from the date of the event reflected in such books
or records and shall provide the auditor with reasonable access to such
books and records.
23.2.5 Expenses; Subject to Arbitration. If an audit determines that,
as a result of misinformation provided by CSXI, CSXI's failure to properly
apply the methodologies under Article 9 or other failure to comply with
this Agreement, CSXI overcharged APL or LTS by five percent (5%) or more
with respect to any audited matter, CSXI shall reimburse APL or LTS, as
applicable, for the expense of such audit.
23.3 Audits Under Appendix 9. Provisions for payment of audit costs under
Appendix 9 are set forth in Appendix 23.3.
24. GENERAL
24.1 Additional Documents. Subject to the terms and conditions of this
Agreement, each party will use reasonable efforts to do, or cause to be done,
all actions and things necessary or advisable to consummate the transactions
contemplated by this Agreement.
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24.2 Modification. This Agreement constitutes the entire agreement between
the parties with respect to the transportation under this Agreement and
supersedes all previous oral or written understandings, agreements and
commitments as to the subject matter hereof. This Agreement, other than Exhibits
which may be modified by one party as set forth herein, may not be modified,
changed or altered except by written agreement signed by authorized
representatives of the parties.
24.3 Notices. Except as otherwise provided in this Agreement, any notice,
request, demand or approval to be given hereunder shall be in writing and shall
be considered delivered three (3) days after deposit with United States mail,
postage prepaid, certified or registered mail, return receipt requested, or one
day after deposit with UPS or other nationally recognized overnight courier
service, postage prepaid or upon hand delivery, as follows:
If to CSXI: CSX Intermodal, Inc.
000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Executive Vice President of Marketing and Sales
If to APL: APL Limited/APL Co. Pte Ltd.
0000 Xxxxxxxx
Xxxxxxx, XX 00000
Attn: Law Department
If to LTS: Pacer International, Inc.
d/b/a Pacer Stacktrain
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Vice President Transportation Purchasing
Any party may change the person to be notified or its address by written notice
to the other.
24.4 Waiver. If a party delays or fails to enforce any term or condition of
this Agreement, it will not be considered a waiver of enforcement or further
enforcement of that or any other term or condition. If a party consents or
approves of any act by the other party, it will not be considered to waive or
render unnecessary consent to or approval of any subsequent similar act.
24.5 Severability. Each and every clause of this Agreement shall be
severable from each other. In the event that any particular clause herein shall
be held invalid and null and void in any judicial proceeding, such finding shall
have no effect on the remaining clauses.
24.6 Applicable Law. This Agreement is subject to, and shall be construed
and enforced in accordance with, the laws of the State of Florida (excluding the
principles thereof governing conflicts or choice of law).
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24.7 Jurisdiction and Venue. Subject to the parties' agreement to
arbitrate, each party (a) agrees that any suit, action or other legal proceeding
arising out of or relating to this Agreement may be brought in any court of
competent jurisdiction in the City of Jacksonville or in the United States
District Court for the Middle District of Florida, (b) consents to the
jurisdiction of each such court in any such suit, action or proceeding, and (c)
waives any objection which it may have to the laying of venue of any such suit
or proceeding in any of such courts.
24.8 Survival. The provisions of Articles 11, 13, 14, 15, 17, 22 and 23,
and the Exhibits and Appendices referenced in such Articles, and Sections 19.4,
19.5, 24.6, 24.7 and 24.8 of this Agreement and any other provision that by its
terms or meaning is intended to survive, shall survive any termination of this
Agreement.
24.9 Benefit of Parties. Nothing in this Agreement shall be construed to
give any person or entity other than CSXI, APL and LTS, and their respective
successors and permitted assigns, any legal or equitable right, remedy or claim
under this Agreement.
24.10 Time is of Essence. Time is of the essence in the performance of each
party's obligations under this Agreement.
24.11 Interpretation. The parties acknowledge that the terms and conditions
of this Agreement are the result of their cooperative effort and, as such, no
provision shall be more strictly construed against a party on the basis that
such party was responsible for drafting such provision.
24.12 Joint and Several Liability. APL and LTS each agree that it shall be
jointly and severally liable for all APL or LTS obligations hereunder.
24.13 Cumulative Remedies. All rights and remedies conferred under this
Agreement or by any other instrument or law shall be cumulative and may be
exercised singularly or concurrently.
24.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers the day and year first above written.
CSX INTERMODAL, INC.
By: /s/ Xxxxxxxx X. Xxxxxx
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Print Name: Xxxxxxxx X. Xxxxxx
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Title: President
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PACER INTERNATIONAL, INC.,
d/b/a PACER STACKTRAIN
By: /s/ Xxxxx Xxxxxxxx
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Print Name: Xxxxx Xxxxxxxx
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Title: Executive Vice President
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APL LIMITED
By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
------------------------------------------
Title: Vice President
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APL CO. PTE LTD.
By: /s/ Xxxxxxx X. Xxxxxx
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Print Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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