EXHIBIT 10.4
MOTOR CARRIER AGREEMENT
This MOTOR CARRIER AGREEMENT (hereinafter referred to as "Agreement") made as
the 1st day of November, 2002, between XXXXXX OPERATING PARTNERSHIP L.P.
(hereinafter referred to as "SHIPPER"), a Delaware limited partnership, and
XXXXXX TRANSPORT, INC. (hereinafter referred to as "CARRIER"), a Texas
corporation, for the interstate and unregulated intrastate transportation of
petroleum or other bulk liquid products (hereinafter referred to as
"COMMODITIES"), by tank truck, in the contiguous United States, shall be under
the terms and conditions hereinafter set forth. This Agreement shall be subject
to amendment and/or modification by Addendum hereafter executed by both SHIPPER
and CARRIER and attached hereto and made a part hereof.
1. AGREEMENT
A. General: CARRIER agrees to accept interstate and unregulated
intrastate lawful shipments of the subject COMMODITIES
tendered to it by SHIPPER, pursuant to this Agreement and to
transport such COMMODITIES to the destination or destinations
designated by SHIPPER, provided such points of origin and
destination are within the scope of CARRIER's operating
authority subject to the rates and provisions of the
applicable Schedule of Actual Rates and Charges as provided in
the Addendum and Exhibit A, which are attached hereto and made
a part hereof.
B. Licenses, Laws and Regulations: CARRIER, at its sole cost, and
expense, shall procure and maintain all licenses and permits
required by local, state, or federal authorities with respect
to the transportation and related services rendered hereunder
and shall comply with all applicable laws and regulations
pertaining to such transportation and services.
2. EFFECTIVE DATE AND TERM
The initial term of this Agreement shall be effective for a
three year period beginning on the commencement date (as
herein defined) and shall continue in effect thereafter on an
annual basis, until canceled by either party upon thirty (30)
days prior written notice to the other party. For the purposes
of this Agreement, the "commencement date" shall be November
1, 2002.
3. EQUIPMENT
CARRIER shall provide all equipment necessary to perform the
transportation required hereunder, which equipment shall: (i)
be suitable for particular transportation required, (ii)
include any special equipment that is requested by SHIPPER and
agreed to by CARRIER when the shipping order is placed, and
(iii) comply with the specifications for equipment for such
transportation prescribed by any applicable governmental
regulations (including those of the United States Department
of Transportation). CARRIER shall maintain, and at all times
make available to SHIPPER, sufficient suitable equipment to
transport SHIPPER'S COMMODITIES.
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4. CARRIER'S PERFORMANCE
A. General: CARRIER agrees to accept from SHIPPER, and provide
transportation services for all COMMODITIES required by
SHIPPER, during each annual period of the initial term of this
agreement. All transportation hereunder shall be performed:
(i) at Carrier's sole expense, (ii) to the best of CARRIER's
knowledge, in full compliance with all applicable governmental
laws, ordinances, regulations, orders licenses, permits, and
all requirements of CARRIER's insurance, and (iii) with
maximum dispatch consistent with the CARRIER's best judgment
as to safety and efficiency, except as is specifically
provided to the contrary elsewhere in this Agreement.
B. Services: It is understood that the CARRIER shall secure the
services of, supervise and be responsible for all persons
operating trucking equipment hereunder and CARRIER shall hold
SHIPPER harmless from any claim, except for SHIPPER
negligence, including fees in defense thereof, by drivers for
wages, industrial accidents, workers compensation, withholding
and unemployment taxes, or any other actions arising from the
performance of this contract which shall be subject to Section
8(C) below.
C. Drivers: CARRIER's drivers shall comply with all reasonable
operational procedures requested by SHIPPER. CARRIER's drivers
shall promptly report all commodity spills, shortages (less
routine heels) or accidents which occur in the course of the
performance of this Agreement. In the interest of safety,
CARRIER's drivers shall not unload COMMODITIES until the
SHIPPER, its agents or employees shall have inspected the
shipping orders and have directed the driver to and specified
the proper unloading facilities.
5. SHIPPER'S PERFORMANCE
A. Minimum Amount: SHIPPER agrees, during each annual period of
the initial term of this Agreement, to offer for shipment, a
minimum of one thousand (1000) tons of COMMODITIES. It is
understood by CARRIER that the minimum tonnage designation is
for planning purposes only and is not intended as a "take or
pay" commitment by SHIPPER.
B. Payment: CARRIER shall xxxx XXXXXXX for the freight charges on
all shipments as soon after delivery of such shipments as
sufficient information is received to prepare such invoices.
All invoices for linehaul expenses are to be paid in full
within ten (10) days of receipt by SHIPPER of CARRIER's
invoice or such other notification as is mutually agreeable to
the parties. Payments to CARRIER by SHIPPER hereunder shall be
sent to the following address:
Xxxxxx Transport, Inc.
P. O. Xxx 000
Xxxxxxx, Xxxxx 00000
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6. COMPUTATION OF CHARGES
Freight charges shall be computed on the actual basis of the rates
provided in the applicable Schedule of Actual Rates and Charges set
forth on Exhibit A attached hereto, subject to the terms and conditions
contained therein.
7. TERMINATION
A. Non-performance: In the event of non-performance by SHIPPER or
CARRIER, as the case may be, of any of the obligations
contained in the Agreement, SHIPPER or CARRIER as the
complaining party shall provide written notice of such
non-performance to the other party. The non-performing party
shall then have (14) days from the date of such notice within
which to remedy the non-performance. Thereafter, if the
non-performance remains uncorrected or if an acceptable remedy
is not reached within fourteen (14) days of such notice, the
complaining party may terminate this Agreement at any time
upon giving the non-performing party seven (7) days prior
written notice. If this Agreement is terminated in accordance
with this subsection, all obligations of the parties, as
contained in this Agreement and the Addendum and Exhibits
hereto, shall be terminated; provided, SHIPPER shall continue
to be responsible for all sums due to CARRIER for services
received prior to the date of termination.
B. Default or Insolvency: If a petition in bankruptcy should be
filed by CARRIER, or if CARRIER should be adjudicated as
bankrupt, or if CARRIER should make a general assignment for
the benefit of creditors, or if a receiver should be appointed
on account of the insolvency of CARRIER, SHIPPER may, without
prejudice to any other right of remedy, terminate this
Agreement upon giving CARRIER at least five (5) days prior
written notice to such termination. CARRIER shall have the
same rights as SHIPPER under this item.
8. INSURANCE AND INDEMNITY
A. Liability: CARRIER shall be responsible for any loss, damage
or destruction of shipments tendered to it by SHIPPER from the
time such shipments are loaded at the delivery point until
accepted by SHIPPER as evidenced by unloading at destination
point. CARRIER shall reimburse SHIPPER for loss, damage or
injury to the COMMODITIES except when such loss, damage or
injury is caused by the wrongful act or negligence of SHIPPER,
its agents or employees in which case SHIPPER, its agents or
employees shall bear it's proportionate share of
responsibility for all loss, damage or injury and all
consequential and incidental damages related thereto.
B. Insurance: CARRIER shall maintain at all times Worker's
Compensation Insurance fully complying with the law of every
jurisdiction to which CARRIER is subject, Employer's Liability
Insurance in amounts not less than $250,000 and automotive and
general public liability insurance against injury or death in
amounts of not less than $3,000,000 for any one person and
$10,000,000 for any one accident or occurrence and against
property damage in amounts not less than $250,000 for any one
accident or occurrence. All liability insurance policies
obtained or maintained by CARRIER to meet the requirements of
this Agreement shall name SHIPPER as an additional insured as
to the operations of CARRIER under this Agreement and shall
contain severability of interests provisions. Promptly after
execution of this Agreement, CARRIER shall furnish SHIPPER
properly executed certificates of insurance evidencing that
the insurance
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coverages and limits required by this Agreement are in effect.
If any insurance provided pursuant to this Agreement expires
during the term of the Agreement, renewal certificates of
insurance shall be furnished by CARRIER to SHIPPER 30 days
prior to the date of expiration. In addition, certified, true
and exact copies of all insurance policies required under this
Agreement shall be provided to SHIPPER by CARRIER, on timely
basis if requested by SHIPPER. All such certificates and
policies shall contain provisions that thirty (30) days'
written notice by registered or certified mail shall be given
the SHIPPER of any cancellation, intent not to renew, or
reduction in the policies' coverages, except in the
application of the aggregate limits provisions. CARRIER or any
party liable on accounts of loss of or damage to any of said
transported COMMODITIES shall have the full benefit of any
insurance that may have been effected upon or on account of
said COMMODITIES, insofar as this shall not void the contracts
or policies of insurance. CARRIER shall not be obligated to
reimburse the claimant for any premium paid therein.
C. Indemnity: CARRIER shall be responsible for, and shall
indemnify, defend and save harmless SHIPPER and its owned,
controlled, affiliated, subsidiary, associated, interrelated
and operated companies and the stockholders, directors,
officers, agents, employees and representatives of each from
and against, any and all claims, demands and causes of action
brought by any and all persons, including without limitation,
CARRIER's officers, agents, employees, representatives, or
subcontractors or any third parties, and against any and all
judgments in respect thereto on account of personal injury or
death or on account of property damage or destruction or loss
arising out of the negligence or willful misconduct of
CARRIER, its officers, employees, agents, representatives and
subcontractors.
SHIPPER shall be responsible for, and shall indemnify, defend
and save harmless CARRIER and its owned, controlled,
affiliated, subsidiary, associated, interrelated and operated
companies and the stockholders, directors, officers, agents,
employees and representatives of such from and against, any
and all claims, demands and causes of action brought by any
and all persons, including without limitation, SHIPPER's
officers, agents, employees, representatives, or
subcontractors or by any third parties, and against any and
all judgments in respect thereto on account of personal injury
or death or on account of property damage or destruction or
loss arising out of the negligence or willful misconduct of
SHIPPER, its officers, employees, agents, representatives and
subcontractors.
Where personal injury, death, or loss of or damage to property
is the result of the joint negligence or misconduct of CARRIER
and SHIPPER, each party's duty of indemnification shall be in
proportion to its allocable share of such joint negligence or
misconduct.
9. FORCE MAJEURE
Either CARRIER or SHIPPER shall be excused from performance of its
obligations hereunder in the event and to the extent that such
performance is delayed or prevented by any circumstances reasonably
beyond its control, including by fire, explosion, interruption of raw
materials, equipment source or fuel supply, strike or other labor
dispute, riot or other civil disturbance, or act or omission of any
governmental authority.
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10. LIMITATIONS OF LIABILITY
CARRIER's obligations under this Agreement shall always be subject to
any limitations imposed by applicable laws, regulations or other of any
governmental authority. In no event shall CARRIER be responsible for
any loss, damage, destruction or delay of shipments which occurs by
reason of any act of God, terrorist attack, labor disturbance, strike,
war, riot or civil disturbance, prohibition by government agency of the
movement of goods or any other such similar causes which affect the
obligations or performance of CARRIER, and CARRIER shall not be liable
for any loss, damage, destruction or delay occurring while the
COMMODITIES are stopped and held in transit upon the request of SHIPPER
or from riots or strikes. CARRIER shall not be liable for delay causes
by highway obstruction, faulty or impassible highway or lack of
capacity on any highway, bridge or ferry.
11. AGREEMENT CONCLUSIVE
SHIPPER shall arrange for shipments to be tendered to CARRIER on a
standard uniform xxxx of lading or other such document as may be
mutually agreed to between CARRIER and SHIPPER, i.e., scale weight
ticket, subject to the conditions of this Agreement and the attached
Addendum or Exhibits. In the event there is a conflict between the
terms of this Agreement and any schedule or xxxx of lading otherwise
applicable to CARRIER and SHIPPER respecting the movements contemplated
hereunder, the terms of this Agreement and the attached Addendum or
Exhibits shall be construed as controlling the intent of the parties.
12. ASSIGNMENT
This Agreement and all Addends or Amendments hereto shall be binding
upon and inure to the benefit of the successors of SHIPPER and CARRIER.
Neither party may assign its rights under this Agreement without the
non-assigning party's written approval. However, notwithstanding the
above, the parties may assign their right, duties, obligations and
interests in and to this Agreement to a parent, subsidiary, affiliate
or sister corporation; provided, however, the parties shall not be
thereby relieved of the responsibilities or obligations hereunder.
13. CONFIDENTIALITY
The terms of this Agreement shall be held in strict confidence by
SHIPPER and CARRIER and shall not be disclosed to any third party,
provided, however, SHIPPER shall have the right to disclose the terms
to it's freight auditors, provide that a binding confidentiality
agreement is continually maintained between SHIPPER and each such
freight auditor.
14. WAIVER
Failure of either party to insist, in one or more instances, upon
performance of any of the terms of this Agreement, or the waiver by
either party of any term or right of the other party hereunder, will
not be deemed or construed as a waiver or a relinquishment of any such
term or right.
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15. APPLICABLE LAW
This Agreement is to be construed in accordance with the laws of the
State of Texas without giving effect to the principles of conflict
laws. Any legal actions filed may be brought only to the state or
federal courts in Texas.
16. NOTICE
Notice, as may be required hereunder, by either party of this Agreement
to the other party shall be deemed to have been accomplished on date of
delivery by the United States mail as evidenced by date of return
receipt, when sent by certified mail, postage prepaid, to the following
addresses:
SHIPPER
Martin Operating Partnership L.P.
0000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
CARRIER
Martin Transport, Inc.
P. O. Xxx 000
Xxxxxxx, Xxxxx 00000
17. COMPLIANCE WITH NEGOTIATED RATES ACT OF 1993:
CARRIER represents to SHIPPER that CARRIER has complied with (and will
continue to comply with) all provisions of the Negotiated Rates Act of
1993, including but not limited to Section 6 thereof. This Agreement
provides service designed to meet the distinct needs of the SHIPPER,
including price and service considerations tailored to the SHIPPER's
needs.
18. ENTIRE CONTRACT
Except for the provisions of the schedules and Addenda or Amendments
made a part hereof by reference, this instrument embodies the entire
Agreement and understanding between SHIPPER and CARRIER as of the
effective date of this Agreement, and there are no agreements,
understandings, conditions, warranties or representations, oral of
written, express or implied, with reference to the subject matter
hereof that are not merged herein or superseded hereby as of the
effective date of this Agreement. This Agreement may be modified only
in writing signed by other parties.
19. AUTHORITY
Each party represents to the other that is has full authority and the
necessary approval to enter into and perform this Agreement in
accordance with its terms.
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IN WITNESS THEREOF, the parties have caused this Agreement to be signed by their
duly authorized representatives.
XXXXXX OPERATING PARTNERSHIP X.X. XXXXXX TRANSPORT, INC.
(SHIPPER) (CARRIER)
BY: Xxxxxx Operating GP LLC, its general BY: /s/ Xxxxx X. Xxxxxx, III
partner
TITLE: President
BY: Xxxxxx Resource LLC, its sole
member DATE: Nov. 1, 2002
BY: Xxxxxx Resource Management WITNESS: /s/ Xxxx Xxxxxxxxx
Corporation, its sole member
BY: /s/ Xxxxx X. Xxxxxx, III
NAME: Xxxxx X. Xxxxxx, III
TITLE: President
DATE: Nov. 1, 2002
WITNESS: /s/ Xxxx Xxxxxxxxx
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ADDENDUM TO
MOTOR CARRIER AGREEMENT
CONTRACT SCHEDULE OF ACTUAL RATES AND CHARGES
Schedule of rates, charges, rules and other provisions (hereinafter referred to
as "Addendum") which govern that certain
MOTOR CARRIER AGREEMENT (hereinafter
referred to as "Agreement"), dated the 1st day of November, 2002, to which this
Addendum is attached, by and between Xxxxxx Operating Partnership L.P.
(hereinafter referred to as "SHIPPER" and Xxxxxx Transport, Inc. (hereinafter
referred to as "CARRIER").
Except as otherwise specifically provided in this Addendum to the contrary, the
rates, rules and charges published in CARRIER's Rules and Regulations attached
as Exhibit B shall govern the transportation, by tank truck, in interstate and
unregulated intrastate commerce, of petroleum or other bulk liquid products
(hereinafter referred to as "COMMODITIES"), to and from points in the contiguous
United States. Reissues or revisions of the subject Rules and Regulations
subsequent to the date of this Agreement shall be applicable to this Agreement
and shall become a part hereof effective with the acceptance by SHIPPER of each
reissue or revision.
Each shipment tendered to CARRIER is deemed to be a tender to CARRIER as a
contract motor carrier and is subject to the terms, conditions and provisions of
this Agreement and to the provisions of law applicable to contract motor
carriage.
1. RECEIPTS AND BILLS OF LADING
Each shipment will be evidenced by a receipt in the form specified by
SHIPPER and will be signed by CARRIER or CARRIER's agent or employee
showing the kind and quantity of freight received by CARRIER at origin,
but the absence or loss of any such receipt will not relieve CARRIER of
its obligations and responsibilities with respect to any shipment made
hereunder. If SHIPPER elects to use a xxxx of lading, manifest or other
form of freight receipt or contract, that includes any terms,
conditions and provisions that conflict with this Agreement, the terms
and conditions of this Agreement will supersede. Upon delivery of each
shipment made hereunder, CARRIER shall obtain a receipt, in a form
specified or approved by SHIPPER, showing the kind and quantity of
freight delivered to the CONSIGNEE of such shipment at the destination
specified by SHIPPER and the time of such delivery, and CARRIER shall
cause such receipt to be signed by such receiving personnel or by such
agent or employee at such destination.
2. RATES AND CHARGES
Applicable Rates: Exhibit A affixed hereto and made a part hereof
specifies the rates applicable to shipments by tank truck of
"COMMODITIES" hereunder.
3. DUTIES OF CARRIER AT DESTINATION
Drivers and employees, agents, contractors or subcontractors of
CARRIERS shall, during loading and unloading and at all times while on
the premises of SHIPPER, consignor or consignee, comply with all safety
laws, regulations and rules applicable to the facility, and of which it
has actual or constructive knowledge, including but not limited to
vacating the vehicles during loading and unloading and remaining in
assigned areas.
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4. DELIVERY
A. Shipments Not Delivered.
i. Any shipment or part thereof which for any reason is
refused, rejected or otherwise not accepted, received
or claimed shall be held by CARRIER for further
instructions from SHIPPER.
ii. In such event, CARRIER shall contact SHIPPER and
request further transportation instructions,
including the location for delivery and the desired
delivery time.
iii. The freight charges for any further movement for a
shipment not delivered shall be computed in
accordance with the CARRIER's Rules and Regulations
or jointly agreed to freight charges.
B. Shipment Delivery: Unless instructed otherwise by SHIPPER,
CARRIER shall connect product hose to trailer discharges
outlet, operate equipment on trailer to discharge product, and
remain in immediate attendance of trailer during product
off-loading procedure.
5. SPECIAL SERVICES
Safety Equipment: Safety equipment which is utilized or worn by drivers
or which is required by law or reasonably necessary or desirable for
the safe transportation, delivery, loading, or unloading of transported
"COMMODITIES" shall be the responsibility of, and provided by CARRIER
at no charge to SHIPPER.
6. EQUIPMENT
A. Inspection: CARRIER's equipment offered to SHIPPER for loading
of the "COMMODITIES" to be transported is subject to
inspection for suitability and cleanliness by SHIPPER at
SHIPPER's discretion. The cleanliness or suitability of
equipment shall meet SHIPPER's standards of acceptability and
SHIPPER shall have the right to reject such equipment for
loading and require CARRIER to comply with SHIPPER's standard.
SHIPPER's standards shall be reasonable and conform to others
in the industry.
B. Lead Time: CARRIER shall provide all requested transportation
services, provided CARRIER has received notice at least
twenty-four (24) hours prior to the time which the services
are requested.
7. MISCELLANEOUS
In the performance of transportation service hereunder, CARRIER shall
be an independent contractor and not an agent or employee of SHIPPER
and CARRIER agrees, at its expense, to furnish suitable equipment to
transport the "COMMODITIES", tendered hereunder and to assume all costs
and expenses incidental to the transportation of such "COMMODITIES",
including, but not limited to, all costs and expenses incidental to or
arising out of maintenance, repair or operation of equipment, labor,
fuel supplies, insurance and/or accident.
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The provisions of the Agreement shall, in the event of conflict with this
Addendum, control.
XXXXXX OPERATING PARTNERSHIP X.X. XXXXXX TRANSPORT INC.
(SHIPPER) (CARRIER)
BY: Xxxxxx Operating GP LLC, its general BY: Xxxxx X. Xxxxxx, III
partner
TITLE: President
BY: Xxxxxx Resource LLC, its sole
member DATE: Nov. 1, 2002
BY: Xxxxxx Resource Management WITNESS: /s/ Xxxx Xxxxxxxx
Corporation, its sole member
BY: /s/ Xxxxx X. Xxxxxx, III
NAME: Xxxxx X. Xxxxxx, III
TITLE: President
DATE: Nov. 1, 2002
WITNESS: /s/ Xxxx Xxxxxxxx
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EXHIBIT A
The below rates are hereby adopted as the applicable charges as provided for in
this Agreement between the identified parties and is herein made a part of the
Agreement.
MILEAGE SCALE
TO BE PROVIDED
11
POINT TO POINT RATES WITHIN U.S.
--------------------------------------------------------------------------------
Origin Consignee Destination Miles Rate
TO BE PROVIDED
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RATE ADJUSTMENTS
All rates as shown in this EXHIBIT A, are to remain in effect without change for
a period of one year from the "commencement date". Exceptions to this rate
provision will occur only when due to circumstances beyond the control of the
CARRIER, a cost item is imposed which would normally affect any similar private
trucking operation (an "Industry Cost Adjustment"). These items may be reflected
in, but not limited to, taxes on fuel, workers compensation tax increases, etc.
It is agreed between the parties that beginning with the second year a rate
adjustment will be implemented at least on an annual basis. Both parties
recognize that costs may change during the initial one-year period and agree to
fairly negotiate such rate changes. In the event that both parties cannot
satisfactorily agree on an appropriate annual rate adjustment within thirty (30)
days of each anniversary of the Agreement, then the cost item will be adjusted
in accordance with the following index.
The Gross National Product (GNP) Implicit Price Deflator which is
indexed quarterly and published by the U.S. Department of Commerce,
Economic Statistical Administration, Bureau of Economic Analysis. The
most recently published Implicit Price Deflator index as of the
"commencement date" shall be the basis for all future rate adjustments.
Industry Cost Adjustments also carry forward in addition to annual rate
adjustments. Additionally, Industry Cost Adjustments will be made as required
during the term of the Agreement.
FUEL ADJUSTMENT CHARGES
Fuel adjustment shall be as shown in Attachment I.
INSURANCE SURCHARGES
Three percent (3%) of line haul charges to cover increased insurance cost due to
the events of September 11, 2001.
GENERAL CONDITIONS
Standard accessory charges shall be as shown in Attachment II.
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