CARRIER TRANSPORTATION AND ACCESS AGREEMENT

Transcription

1 CARRIER TRANSPORTATION AND ACCESS AGREEMENT This ( Agreement ) is made and entered into on the day of, 2014, by and between Ethanol Products, LLC, d/b/a POET Ethanol Products, a South Dakota limited liability company, 3939 N. Webb Road, Wichita, KS ( POET ), and, a, ( Carrier ). RECITALS: WHEREAS, Carrier is in the business of providing transportation services ( Services ); and WHEREAS, POET desires to utilize Services of the nature provided by Carrier. NOW, THEREFORE, in consideration of the mutual promises set forth herein, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Compliance with Laws and Regulations. A. Carrier shall comply with all applicable federal, state and local laws and regulations regarding the loading, unloading and transportation of denatured fuel ethanol and other fuels or goods from time-to-time carried by Carrier pursuant to this Agreement (the Product ), including, but not limited to, all federal, state and local vehicle gross weight limitations and security plan regulations. 2. Carrier s Operating Authority and Safety Rating. A. Carrier represents and warrants that it is fully experienced, properly licensed and qualified to perform the Services provided for herein. Carrier represents and warrants that all Services performed under this Agreement shall be contract carriage. Carrier shall notify POET immediately in the event of any suspension, cancellation, termination or withdrawal of any of its operating authorities, in which event POET shall have the right to indefinitely suspend the Services with Carrier or terminate this Agreement immediately upon written notice to Carrier. B. Carrier represents and warrants that it is a motor carrier under 49 USC 13102(14) and is duly registered with the U.S. Department of Transportation pursuant to 49 USC and with a Motor Service Provider Safety Rating of satisfactory or unrated. Carrier warrants that it will provide lawful and responsible Services to POET under this Agreement. Carrier shall promptly notify POET if Carrier is assessed an unsatisfactory or conditional safety rating, and in such event POET shall have the right to indefinitely suspend the Services with Carrier. Carrier shall provide to POET a copy of Carrier s current Motor Carrier Permit or Certificate (MC#/FMCSA Permit) and its current Hazardous Materials Certificate of Registration. Carrier shall furnish POET with copies of all applicable certificates as they become modified or renewed. C. Carrier shall provide contact and licensing information as requested on Exhibit E. 3. Freight Transportation. A. POET agrees to tender shipments to Carrier as determined by POET for transportation by Carrier in interstate and intrastate commerce, and Carrier agrees to transport such shipments in accordance with the terms and conditions of this Agreement. This Agreement is not a commitment by POET to engage Carrier for any minimum number of shipments or amount of Services. B. Carrier shall arrange for transportation of the Product by equipment that meets the insurance and prior cargo policy standards as described in Exhibit A attached hereto. 4. Rates and Payment. Page 1

2 A. Rates for the Services provided under this Agreement will be agreed upon by POET and Carrier on a case-by-case basis, in accordance with fee policy contained in Exhibit D to this Agreement. Upon execution of this Agreement, Carrier will also complete and execute Exhibit C regarding any fuel surcharges associated with the Services. B. Carrier will invoice POET for Services, and POET s obligation to pay amounts that become due under this Agreement shall survive the suspension, expiration or termination of this Agreement. POET will pay each invoice within 15 days from the load date, with all payments to be made on Thursdays, provided the invoice is submitted by Carrier to POET in a timely manner. The parties will follow and comply with the POET invoicing process set forth in Exhibit D to this Agreement. 5. Drivers and Equipment. A. Carrier shall ensure that its drivers are properly trained and licensed and are competent and capable of safely handling and transporting the Product. B. Carrier shall provide and maintain all equipment required for the Services, and all equipment shall be in good working condition at all times. Carrier s equipment shall be clean and liquid free. Carrier understands that draining compartments, hoses and pumps are strictly forbidden at ethanol facilities. Carrier s equipment shall also conform to all requirements of each facility at which loading and unloading occurs. The minimum requirements applicable to such facilities are attached hereto as Exhibit B, but each facility may have additional requirements. C. Carrier shall furnish all necessary fuel, oil, gasoline, tires and repairs for the operation of all equipment required by Carrier to provide the Services, and Carrier agrees to pay all expenses incidental to such operation, including, but not limited to, any penalties or fines incurred, including overweight fines, insurance surcharges, hose charges, tolls and parking fees. D. Wait time is typical and considered part of doing business in the transportation industry. POET realizes some incidents may cause unusual and extraordinary delay. POET will consider demurrage charges for such incidents on a case-by-case basis. POET must be notified during or immediately following such an incident so that it may confirm the event with the applicable facility and consider if demurrage charges are appropriate and, if so, to what extent. Any charges must be mutually agreed upon by the parties. E. Pump charges will be considered as a one-time incident due to a specific problem at a facility and not as a recurring fee. POET will consider pump charges on a case-by-case basis and only when it is notified during or immediately following an event so that it may confirm the event with the applicable facility. Any associated fees must be mutually agreed upon by the parties. 6. Performance and Delivery Time. A. Carrier shall transport shipments of the specified Product and volume to the specific location identified in an order and within the time period specified by POET therein. Carrier will be given a loading number for each load. Carrier shall check in and then park in designated areas at the appropriate facility upon arrival. Carrier shall present the loading number, shipment destination, Carrier name and driver s name to facility personnel before loading. Once verified, the Carrier may proceed to the designated loading area. B. Each driver of Carrier must load trailers in accordance with each facility s loading procedures. Engines must be stopped while loading and unloading unless it is necessary for the operation of a pump. Drivers should be prepared to comply with each individual facility s requirements which may include, but not be limited to, the use of a hard hat, safety glasses and wheel chocks. Each driver must be trained on loading procedures at each facility. Training at one facility does not qualify Carriers at other facilities. Page 2

3 C. Once loading is complete, Carrier shall return to the appropriate location with a copy of the loading meter ticket in order to receive a bill of lading for that particular load. Each driver shall review paperwork for accuracy and verify it has been properly signed. 7. Carrier s Indemnification. 8. Term. A. Carrier shall defend, indemnify and hold harmless POET, each facility at issue, and their affiliate companies, along with their respective directors, members, employees and agents from and against any and all losses, damages, claims, suits, liabilities, demands, judgments, and expenses (including reasonable attorneys fees and other costs of litigation) arising out of or relating to any injury, disease, or death of any persons, any damage to or loss of any property (including without limitation any contamination or environmental damage to property), and any fines or penalties caused by Carrier s breach of its obligations under this Agreement or any negligent or intentional wrongful acts or omissions of Carrier, its subcontractors and agents, or its permitted assignees, except to the extent that such injury, disease, death, or damage to or loss of property or fine or penalty is caused by the negligence or willful misconduct of POET, a facility or their employees, agents, contractors, or other customers. B. Carrier shall comply with the insurance requirements described in Exhibit A hereto. Carrier waives subrogation with respect to the general liability and workers compensation insurance coverage requirements. A. The term of this Agreement will be for a period of one year, commencing on the date of this Agreement and terminating on the first anniversary thereof. Upon the expiration of the initial term and any renewal term, this Agreement will automatically renew for an additional period of one year unless either party delivers to the other party a written notice of non-renewal no less than 90 days prior to the expiration of the current term. B. This Agreement may be terminated by a party for cause upon the material breach by the other party of any covenant or agreement contained in this Agreement and the failure of the other party to cure such breach within ten days of its receipt of written notice thereof. 9. Relationship of Parties. A. It is understood by the parties that Carrier is an independent contractor with respect to POET and not a partner or affiliate of or general agent for POET. POET will have no obligation to provide fringe benefits such as health insurance, vacation, or any other employee benefits for Carrier or any of Carrier s employees. 10. Force Majeure. A. Neither party shall be liable to the other for default in the performance of any terms and provisions of this Agreement caused by strike or other labor disturbance, riot or insurrections, acts of war, acts of terrorism, acts of God, fires, governmental order or regulation, or other similar contingency beyond the reasonable control of the affected party. In the event of a force majeure that causes a delay in performance under this Agreement, the affected party shall promptly notify the other party in writing, stating the reasons for the inability to comply with the terms of this Agreement, as well as provide an estimate as to how long the delay will continue. POET, however, shall not be relieved by any force majeure event from any obligation to amounts due under this Agreement. Page 3

4 11. Notice. A. Any notice which may be given by either party will be deemed to have been properly given if sent in writing by certified United States mail, return receipt requested, postage prepaid, or by commercial delivery service addressed to the business address of each of the parties as first set forth above. 12. Entire Agreement. A. This Agreement, including its exhibits, contains the entire agreement of the parties with respect to the Services to be provided to POET hereunder. There are no other promises or conditions that are part of this agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties relating to the subject matter hereof. 13. Amendments. A. This Agreement shall only be modified or amended if such amendment is made in writing and is signed by both parties. 14. Applicable Law; Venue. A. This Agreement shall be governed by the laws of the state of South Dakota without regard to any provision or rule that would cause the law of any other jurisdiction to be applied. Carrier hereby submits and agrees to be subject to the exclusive jurisdiction of the federal and state courts in the state of South Dakota in any suit or proceeding arising out of or relating to this Agreement. 15. Confidentiality. 16. No Lien. A. POET may provide Carrier with proprietary information about POET s business, products and customers in connection with the Services to be performed under this Agreement. Carrier acknowledges that all such information, whether or not marked confidential, by its nature is confidential and proprietary to POET. Carrier is hereby authorized to use such information only in connection with its performance of the Services. Carrier agrees to use reasonable efforts to safeguard POET s confidential information and to prevent the unauthorized or negligent disclosure thereof. Carrier shall not, without the prior written consent of POET, directly or indirectly disclose any of POET s confidential information to any person or business entity. Upon the earlier of completion of the Services or promptly following the expiration or termination of this Agreement, Carrier shall return to POET all of POET s confidential information. A. Carrier shall have no lien, and hereby expressly waives its right to any lien on any cargo, freight, or property of POET or any of its customers, consignors or consignees. 17. General Terms. A. POET and Carrier each bind themselves, their successors, assigns and legal representatives to the other party to this Agreement and to the successors, assigns and legal representatives of the other party with respect to all terms of this Agreement. Carrier may not assign or transfer any right, title or interest in this Agreement without POET s prior written consent. B. If a party breaches this Agreement, such breaching party shall be obligated to reimburse the nonbreaching party for its reasonable attorneys fees, costs and disbursements incurred as a result of such breach, whether or not litigation or other proceedings are initiated. Page 4

5 C If any part of this Agreement is found to be unenforceable or unconscionable, the remainder of this Agreement shall be enforceable without that part. D. This Agreement may be executed in any number of counterparts, each of which will be regarded as an original and all of which will constitute one and the same instrument. IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly authorized representative as of the date set forth above. ETHANOL PRODUCTS, LLC d/b/a POET ETHANOL PRODUCTS CARRIER By: Printed Name: Title: By: Printed Name: Title: Page 5

6 EXHIBIT A Insurance Requirements and Prior Cargo Policy Insurance Requirements Carrier shall provide POET and its affiliates (as identified by POET) with the following insurance certifications showing POET and its affiliates as an additional insured: A. General Liability. At all times during the term of this Agreement, Carrier shall carry comprehensive General Liability Insurance covering all operations hereunder, with limits of not less than $1,000,000 (or such higher limits as may be required by law from time to time) for all liability arising out of injury to or death of one or more persons in any one occurrence, and for all liability arising out of damage to or destruction of property in any one occurrence. The policies providing for such insurance include the liability assumed by Carrier hereunder in the amounts as are shown in this provision. In addition, POET and its affiliates shall be identified as an additional insured party with respect to such insurance. The Carrier waives subrogation with respect to the General Liability coverage required under this Agreement. B. Workers Compensation. At all times during the term of this Agreement, Carrier shall comply with all requirements of Workers Compensation laws of the jurisdiction in which an authorized terminal is located. In addition, Carry shall carry Employer s Liability Insurance covering all operations hereunder in an amount not less than $500,000 (or such higher limits as may be required by law from time to time) per occurrence. The Carrier waives subrogation with respect to the Workers Compensation policy required under this Agreement. C. Automobile Liability. At all times during the term of this Agreement, Carrier shall carry Automobile Liability Insurance on all motor vehicles, whether owned, hired, or non-owned, used in connection with operations hereunder, with limits of not less than $1,000,000 (or such higher limits as may be required by law from time to time) for all liability arising out of injury to or death of one or more persons in any one occurrence, and for all liability arising out of damage to or destruction of property in any one occurrence. In addition, POET and its affiliates shall be identified as an additional insured party with respect to such insurance. The Carrier waives subrogation with respect to the Auto Liability coverage required under this Agreement. Upon request of POET, Carrier shall furnish to POET certificates of insurance, or certified copies of insurance policies, as required above. All certificates furnished pursuant to this provision shall reflect that they are for the benefit of POET and shall provide that there will be no cancellation of the policies without providing POET at least thirty (30) days prior written notice. The parties hereto intend that the coverage provided above shall be primary to any other insurance of POET with respect to any claim or demand against POET for bodily injury or death resulting therefrom, including injury or death to Carrier and its employees or agents, and for property damage, including damage to Carrier s property, caused, or alleged to have been caused, by an act, omission or default, negligent or otherwise, of Carrier by reason of operations hereunder. Prior Cargo Policy Carrier s equipment shall be in unleaded gasoline, denatured fuel ethanol, or natural gasoline service or be cleaned prior to arriving at the loading facility. There will be absolutely no diesel priors. Cleaned vehicles must have a certificate from an approved cleaning facility, and under no circumstances will a gasoline wash or rinse be acceptable. Page 6

7 EXHIBIT B Facility Loading and Unloading Requirements Carrier s equipment shall be in good working condition prior to arriving at loading facility. Carrier s equipment shall be clean and liquid free. Draining compartments, hoses or pumps is strictly forbidden at all ethanol facilities. Carrier and Carrier s equipment shall also conform to all loading and unloading facility requirements, including prohibited items such as No Smoking policies. Please see minimum requirements below: Carrier procedures for loads at POET Ethanol Products facilities: 1. POET Ethanol Products will contact a carrier s dispatch and offer a load. 2. Upon acceptance of the offer that carrier is obligated to load and deliver the specified product and volume within the specified time window to the specific location identified by the order.* 3. A loading number will be given to the carrier for their driver to use for each particular load. 4. Driver must check in at the appropriate plant location upon arrival. Driver should park in designated areas, typically away from scale traffic. 5. Driver must present the following information to plant personnel before loading: a. Loading number b. Shipment destination c. Carrier name d. Driver name 6. Once loading number has been verified and accepted by plant personnel the driver may proceed to the designated loading area. 7. Each driver must load their trailer specific to each plant s loading procedures. Engines are to be stopped while loading or unloading unless necessary for the operation of a pump. 8. Drivers should be prepared to comply with individual plant requirements including, but not limited to: a. Hard Hat b. Safety Glasses c. Wheel Chocks 9. Prohibited Item Policies For example, many facilities ban all tobacco use on company property 10. A driver must be trained on loading procedures between the hours of 8am & 4pm Monday Friday if he/she is new to the facility. Training at one facility does not qualify drivers for other locations within the POET Ethanol Products system. 11. Upon completion of loading the driver shall return to the appropriate plant location with a copy of the loading meter ticket to receive the bill of lading for that load. 12. Each driver is responsible for reviewing paperwork to ensure accuracy and to verify that the paperwork has been properly signed. * Failure to deliver the load as agreed between Poet Ethanol Products and Carrier may result in financial loss for the Carrier. Page 7

8 EXHIBIT C Fuel Surcharge Requirements Fuel Surcharge Agreement POET Ethanol Products has established a standardized fuel surcharge schedule and any mutually agreed upon fuel surcharge will be paid accordingly. This schedule is based on the Department of Energy Weekly Retail On-Highway Diesel Prices Midwest quotation. This quotation is posted on each Monday and will determine the surcharge used for the following week. Loads lifted outside planned period: Because fuel surcharges are based on a weekly diesel price, loads that lift on days other than planned will cause potential billing discrepancies, revisions and inefficiencies for both POET Ethanol Products and the carriers we hire. The following conditions should benefit our carriers, plants and customers by increasing the efficiency of our accounting systems and maintaining shipment schedules according to our agreed plan. These conditions can be outlined in two parts: 1) Carried / pre-loaded orders are not acceptable unless special circumstances exist and the carried/pre-loaded orders have been approved or directed by POET Ethanol Products. 2) If orders are carried to another week or pre-loaded, the freight and fuel surcharge from the planned delivery week will apply. For example, if the loads are set up for Week 1 and actually load on Week 2, then the freight and fuel surcharge amount will be from the original shipping order reflecting Week 1 s economics regardless of how the market changes in Week 2. As confirmation of acceptance, please check one of the following, sign and return with your application: Include me on your list of carriers that will use a surcharge as I agree to the attached schedule. Please send the weekly surcharge to this address or fax number: ** The surcharge percentage will be ed to the above address every Wednesday prior to the effective week. I will not charge a fuel surcharge. Carrier Name: Signature: Date: Page 8

9 Fuel Surcharge Table Midwest Diesel Fuel Posting Fuel Surcharge Less than $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % $ $ % Page 9

10 EXHIBIT D Carrier Invoicing Process Freight: POET Ethanol Products requires all carriers to submit invoices electronically in a format and delivery mechanism that is acceptable. An example of an adequate format is available on our website at The red fields are required and the black fields are helpful. The black fields are useful if there is additional research needed for discrepancies. It is important that the invoice spreadsheets are submitted in the same order each time, with one load per line. Once the invoicing file is in an acceptable format, please send it to freightaccounting@poetep.com. All files must be submitted by Monday at midnight in order to be processed for the current week s payment. Payments are processed on Wednesday of each week. ACH payments are deposited on Thursday and check payments are mailed on Friday. Demurrage: Demurrage charges must be submitted separate from all other freight invoices, and will only be allowed as provided in Section 5 of the Agreement. A template of how all demurrage invoices should be submitted is also available on our website at Since demurrage is not associated with the normal freight process, any payment will be made depending on when the invoice is received. Demurrage invoices should also be sent to freightaccounting@poetep.com. To further ensure your privacy and confidentiality, all spreadsheets and manual invoices you receive from POET Ethanol Products will be password protected. The accounting contact information is provided below: Invoice Transmission freightaccounting@poetep.com Accounting Stacy Bricker stacybricker@poetep.com Accounting Manager Trishell Dreiling trishelldreiling@poetep.com Fee Policy POET Ethanol Products will recognize mutually agreed upon rates only if written notification is provided prior to establishing an order. Rates shall be quoted and invoiced on a per net gallon basis. Acceptable forms of notification are fax, , and letter. For the rate to be effective, the written notification must be received prior to the initial scheduling of the load. All rates are considered all-inclusive with the following exceptions: Fuel Surcharges: Please see Exhibit C. Demurrage: Please see Section 5.D of the Agreement. Pump Fees: Please see Section 5.E of the Agreement. Additional Charges: POET Ethanol Products does not recognize any additional charges, including, but not limited to, insurance surcharges, hose charges, tolls and parking fees. Page 10

11 EXHIBIT E Carrier Contact and Licensing Information Complete Legal Name (APPLICANT): Doing Business As: Address: Entity Type (check one): Corporation Partnership Type: Cooperative Sole Proprietorship City: State: Zip: Website: Contacts: Department Name Address (if different than above) Phone Fax Sales/Marketing Dispatch Accounting Federal ID or Social Security # (circle one): US DOT #: MC (Motor Carrier) Permit # or Certificate #: SCAC code (if applicable): Page 11