ESBD_535366_1783548411532_Attachment A - Freight Transportation Service Provider Agreement.docx

ATTACHMENT A

FREIGHT TRANSPORTATION SERVICE PROVIDER AGREEMENT

Attachment A – Freight TSP Agreement Instructions: Transportation Service Providers (“TSP”s) that would like to provide freight services for the Federal Surplus Property Program will need to provide the requested information and documentation.

Contact Information:

Company Name:

Company Address:

Company Contact Name: (will receive Purchase Order & Change Notices)

Email:

Phone:

Fax:

Quote Contact Name: (will receive requests for quotes):

Email:

Phone:

Fax:

Federal EIN #:

TSP Type:

(Check At Least One) Motor Carrier:

Broker:

FMCSA MC Number:

USDOT Number:

SCOPE OF SERVICES

Scope of Services. TSPs shall provide pickup and delivery of federal and State of Texas property in the continental United States. These services are not awarded to one specific TSP; additional TSPs may be approved by the Texas Facilities Commission (“TFC”) on an annual basis during an open enrollment period throughout the term of this Contract, as defined below. TSPs must have the ability to provide freight services for a variety of loads ranging from small bulk items to heavy equipment and machinery.

TFC routinely contracts for transport of surplus property from the United States Department of Defense installations and other federal agencies to the following locations in Texas:

Definitions:

· Broker means an individual other than a motor freight TSP that as a principal or agent sells, offers for sale, negotiates for, or holds itself out by solicitation, advertisement or otherwise as selling, providing, or arranging for, transportation by a TSP for compensation.

· Contract refers to the resulting Purchase Order upon approval and acceptance of this agreement and the TFC Standard Terms and Conditions submitted by TSP.

· Department of Transportation (“DOT”) means the federal agency charged with setting out laws, rules, and procedure to keep the traveling public safe and secure.

· Freight Award Document (“FAD”) is a form and written notice issued to TSP by TFC that informs the TSP that a freight shipment has been awarded to TSP and the date when TSP will begin work.

· Freight Quote Document (“FQD”) is a form that TFC provides to TSPs to request a quote for the rate which would be charged for a shipment.

· Force Majeure is occurrence(s) beyond the reasonable control of the party affected, and which by the exercise of due diligence such Party is unable to prevent, including acts of God or the public enemy, sabotage, war, mobilization, revolution, civil unrest, riots, strikes, lockouts, fires, accidents breakdowns, or floods, earthquakes, hurricanes, or any other natural disaster or governmental actions.

· Letter of Authorization to Release (“LOAR”) is a form that TFC provides to awarded TSPs that identifies trucking companies, truck lines and driver names and authorizes TSP to pick up freight from federal locations.

· Property Damage is damage caused by TSP or its agents to TFC or a federal agency’s personal or real property, including rental property, or grounds associated with the property.

· Subcontractor means a Person, including a supplier that enters into an agreement with TSP to perform any part of the contract.

· TFC Contract Administrator means the individual designated by TFC as the owner’s designated representative with the direct responsibility to properly administer the Contract.

Bidding Process.

· TFC solicits and awards pickup and delivery services on behalf of all TFC warehouses using a Freight Quote Document and a Freight Award Document.

· Requests for quotes will be solicited by sending an e-mail to all approved TSPs via the contact information included in the submission packet. The e-mail will include relevant shipment information and a deadline for response.

· All approved TSPs that would like to do business with TFC shall submit their quotes via e-mail to surplusfreight@tfc.texas.gov or by fax to 512-263-6173 following the instructions outlined in this Agreement.

· Quotes should include any foreseeable tolls, weight surcharges, fines or other charges that may be associated with the load. Additional costs incurred by TSP due to a lack of information regarding the load’s size and condition may be requested via email to the TFC Contract Administrator to recover the unknown costs. Any additional costs not included in the FAD must be pre-approved, in writing, by the TFC Contract Administrator.

· Requests for expedited shipping quotes may be solicited over the phone by TFC.

· TFC will notify TSP of an awarded truckload by sending TSP a signed and dated FAD. TFC may also send TSP a Release Authorization Form and copies of the appropriate transfer order forms. TSP may be asked to produce a copy of the Release Authorization Form to the federal holding agency at the time of pickup; however, there may be times when TFC will provide the Release Authorization Form directly to the federal holding agency. TFC will inform TSP if TFC will be providing the Release Authorization Form directly to the federal holding agency prior to pickup.

· On the Freight Quote Document, TFC may order specific equipment that will be necessary to accomplish TSPs Scope of Services in an effective manner. When TFC orders a specific type or size of equipment and TSP represents that it will provide such equipment in its FQD, then TSP shall be responsible for providing the ordered equipment. If equipment other than what is ordered by TFC is used, TFC reserves the right to assess a discounted rate to TSP as penalty for the use of improper equipment. Further, if TSP is unable to complete the work assigned to it because TSP used equipment other than what was ordered by TFC, then TSP shall incur all expenses related to ensuring that the work is complete.

· TSP accepting shipments for motor freight under this contract must maintain effective service controls for prompt and complete performance of all ordered origin, line haul, destination services and all associated accessorial charges, line haul services including appropriate security, ensuring safety of shipments during transit and oversight of additional parties used in-transit.

Pre-Pickup Phase. Upon receipt of a Freight Award Document (FAD), TSP shall commence as soon as reasonably practicable to timely complete the following Pre-Pickup Tasks for the following Scope of Services. TSP shall provide:

· (i) pickup and delivery pursuant to the standards set forth in this Agreement.

· (ii) transportation equipment approved by the TFC Contract Administrator. Equipment found unsuitable for freight loading or unloading will be rejected by the TFC Contract Administrator;

· (iii) prompt inspection and reporting of damaged material. Any known damage to property during loading or transport shall be reported to TFC Contract Administrator immediately;

· (iv) ensure all reasonable accommodations are taken to prevent damage to property during loading and transport;

· (v) protection of freight from the elements and secure loads;

· (vi) all services, (for example, spotting of trailers, assisting in the loading of freight into conveyance and reporting to the agency or organization’s shipping facility at the time requested) as requested by the TFC Contract Administrator for shipments awarded;

· (vii) information to property location for scheduling pick up or performing required background checks on drivers and/or trucking companies up to seventy-two hours (72) prior to pickup;

· (viii) the name of the trucking company and driver to the TFC Contract Administrator prior to picking up the property for entry on the LOAR Form; and

· (ix) notice to TFC warehouse location twenty-four (24) hour notification prior to delivery.

Pickup and Delivery Phase. During the pickup phase TSP shall adhere to the following requirements.

· Pickups and deliveries will generally not occur on weekends, state holidays, and federal holidays.

· Delivery shall be made between 8:00 am and 4:30 pm Monday through Friday except on regularly observed State or federal holidays, unless prior approval has been obtained from TFC. Warehouses close from 12-1 PM for lunch each day, and may not accept deliveries during this time.

· The deadline for pickup will be included in the FAD. If this deadline is not met, the TFC Contract Administrator may reassign the truckload to another TSP, the TFC Contract Administrator will notify the TSP via e-mail of the cancellation.

· If property becomes unavailable during a forty-eight (48) hour period due to the holding agency’s policy, then TFC will notify the TSP that the truckload has been cancelled or reassigned, and the TSP will not be required to provide a replacement trailer.

· TSP pickup service includes arriving on time for pickup with the type and quantity of equipment ordered by TFC. TFC and the federal holding agency may inspect the TSPs equipment upon arrival and, if determined unsuitable for freight loading, reject the equipment. No charges are due to TSP for equipment rejected for valid reasons. The TSP shall be provided with the federal holding agency’s reason for rejecting the equipment.

· Pickup may be delayed only if TSP has requested and received permission to delay from the TFC Contract Administrator; otherwise the shipment pickup will be considered late. The TFC Contract Administrator must record the permitted delay in TFC records.

· Carrier trailers will meet minimum DOT standards upon assignment to a TFC freight service. Trailers found unserviceable will be rejected and TSP shall be responsible for providing replacement trailers that meet DOT standards within forty-eight (48) hours.

· Pickup or delivery service shall not be performed by TSP at any site from or to which it is impracticable to operate vehicles because of: (i) the condition of roads, streets, driveways, alleys or approaches thereto, (ii) inadequate loading or unloading facilities, and or (iii) Force Majeure events or conditions.

· TSP shall not accept freight that is unsafe to transport.

Load and Unload Times.

· Three (3) hours of load time shall be included in quotes provided by TSPs for each pickup location. In the event that it takes longer than three (3) hours for the freight to be fully loaded, the TSP may request additional payment for Detention Time Fees at a rate not to exceed Sixty and No/100 Dollars ($60.00) per hour after the first three (3) hours included in the original freight quote. Detention time shall begin from the TSP’s scheduled arrival time and ends when freight loading has been completed, with partial hours prorated. Requests for Detention Time Fees will not be approved by TFC if the request is submitted after the property has been picked up. TFC will only pay Detention Time Fees for actual detention time. TFC shall confirm loading hours with the federal holding location prior to approving Detention Time Fee requests. Detention Time Fees may only be requested if the TSP had a confirmed appointment with the holding location prior to arrival, and if the driver arrived at the holding location at the scheduled date and time.

· Three (3) hours of unload time shall be included in quotes provided by TSPs for each location. In the event that it takes longer than three (3) hours for freight to be fully unloaded, the TSP may request additional payment for Detention Time Fees at a rate not to exceed Sixty and No/100 Dollars ($60.00) per hour after the TSP’s arrival time and ends when freight unloading has been completed, with partial hours prorated. Requests for Detention Time Fees will not be approved by TFC if the request is submitted after the property has been unloaded. TFC will only pay Detention Time Fees for actual detention time. TFC shall confirm unloading hours with the warehouse location prior to approving Detention Time Fee requests. Detention Time Fees may only be requested if the TSP had notified the warehouse prior to arrival, and if the driver arrived at the warehouse location during specified hours.

Overnight Fee. If, after arrival at the holding location, TSP’s pickup appointment is rescheduled by the federal holding location to the following day, TFC may either cancel the pickup or provide the option of staying overnight in order to have the freight loaded the next day. An overnight stay shall be approved by the driver, the TSP, the TFC Contract Administrator, and the federal holding agency. Should an overnight stay be approved by all parties, the TSP may request payment for the overnight stay. The rate for an overnight stay shall not exceed Two Hundred Fifty and No/100 ($250.00) per night. TFC shall reject requests for Overnight Fees if:

· TSP did not have a scheduled appointment with the federal holding location prior to the attempted pickup;

· due to fault of driver or TSP the freight is unable to be loaded; and

· overnight stay was not approved by the driver, TSP, TFC Contract Administrator, and the federal holding agency.

Truck Order Not Used Fee. Should TFC choose to cancel the pickup after the TSP has arrived at the federal holding location, or if the holding location cancels the appointment after the driver’s arrival, then TSP may be eligible for a Truck Order Not Used Fee. Truck Order Not Used Fee may only be requested if the TSP had a confirmed appointment with the federal holding location prior to arrival and if the driver arrived at the holding location at the scheduled date and time. Truck Order Not Used Fees shall be determined based on the total amount awarded for that particular load and length of time the driver had to wait at the holding location prior to the load being cancelled. The following fee schedule applies to Truck Order Not Used Fees:

· The TFC Contract Administrator shall confirm the appointment and detention time with the federal holding location prior to approval of fees. Detention Time Fees shall not be added to Truck Order Not Used Fees. Truck Order Not Used Fees shall not be paid if the driver refuses the load once at the holding location or abandons a freight shipment after acceptance of the freight.

Loss or Damage Claims. Loss or damage claims attributable to TSP’s performance must be acknowledged and settled in accordance with Federal and Texas law. Information used by TFC to file a single or aggregate claim against a TSP could include, but is not limited to: (i) reports; (ii) records; or (iii) historical agency/organization files.

· If TFC files an aggregate claim against an individual TSP, each item must be settled and reported on separately by TSP. For example, the claim must have an amount requested with the supporting documentation for each claim on the aggregate filing.

· TSP shall provide an initial report in writing to the TFC Contract Administrator no later than the first business day after the incident, detailing any event of major significance that produces substantial loss, damage, or delay to a shipment(s), such as theft or seizure of shipment, strikes, embargoes, fires, or other similar incidents.

· TSP shall follow up the initial report with a detailed written report that includes an assessment of the loss or damage, delays encountered, and final disposition of the property. The following is the required information: (i) type of incident; (ii) location of incident; (iii) description of any hazardous cargo; (iv) FAD date issued; (v) FAD issuing person; (vi) origin; (vii) destination; (viii) date shipment received by TSP; (ix) required delivery date, if applicable; (x) date and time of incident; (xi) estimated amount of loss and extent of damage; (xii) current status of shipment(s), including new estimated time of arrival; (xiii) location of shipments, if applicable; and (xiv) copy of police report, if applicable.

· If TSP claims TFC’s actions damaged a trailer, it is the responsibility of TSP to provide the evidence to support the claim.

· If freight is separated from TSP, the TSP will contact the TFC Contract Administrator within twenty-four (24) hours for further instructions.

Request for waiver from Contract or FAD. The TFC Contract Administrator may, for an individual shipment, waive one or more of the requirements in this Contract or of the FAD in whole or in part because of the incompatibility of such requirements with the prevailing circumstances. An affected TSP may submit the waiver request to the TFC Contract Administrator via e-mail, surplusfreight@tfc.texas.gov within one business day of the initial award or upon discovery or incompatibility of requirements. If the TFC Contract Administrator determines that a waiver is justified, he or she will issue a waiver in writing, by amending the FAD and distributing copies of the amendment, including a copy to TSP within forty-eight (48) hours after receiving TSP’s request.

Non-Applicable Charges. TSP shall not charge any detention, demurrage or storage charges against any TFC shipment when the delay is caused by acts or omissions beyond TFC’s contractors or its agent’s control.

· The delivery commitment guarantee does not apply when the delays in delivery are caused by Force Majeure. In each instance, the failure to perform must be beyond the control and without the fault or negligence of TSP.

· TSP will inform the shipper of weight limitations and verify that the weight on any vehicle loaded by or on behalf of TFC does not exceed limitations imposed by any state or municipality in which the shipment will be transported.

· When TSP performs services that are required for normal movement of freight shipments and such services are not identified in this Contract, the charges for these services will be negotiated between TFC and TSP. Trailer recovery is not an allowable charge.

· Freight will be delivered in the same condition as received at origin. Any damage or loss will be the responsibility of TSP unless due to Force Majeure event or circumstance.

INSURANCE REQUIREMENTS

Insurance. TSP agrees to carry and maintain insurance in the following types and amounts for the duration of the Contract, to furnish certificates of insurance, and make available, at no cost to TFC, copies of policy declaration pages and policy endorsement as evidence thereof.

Insurance Requirements. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Texas and shall be in a form satisfactory to TFC. TSP agrees that with respect to the required insurance, all insurance contracts and certificate(s) of insurance will contain and state in writing the following required provisions:

· Amounts and Types of Insurance Coverages. The amounts and types of required insurance coverages are as follows:

· TSP shall provide Commercial General Liability Insurance, including independent TSP’s liability with a combined single limit of liability of $1,000,000 per occurrence for bodily injury or death and property damage.

· The policy shall name TFC, its Board/Trustees, Officers, Directors, Employees, agents, and volunteers as Additional Insured and considered as primary for all claims.

· The policy must be endorsed to include Waiver of Subrogation in favor of the Texas Facilities Commission.

· The policy must be endorsed to include 30 day Notice of Cancellation, 10 day notice for non-payment, in favor of the Texas Facilities Commission.

· TSP shall provide Commercial Automobile Liability Insurance covering owned, leased, hired, non-owned vehicles, and employee non-owned vehicles with a minimum combined single limit for bodily injury, including death, and property damage of $1,000,000 per occurrence.

· The policy shall name TFC, its Board/Trustees, Officers, Directors, Employees, agents, and volunteers as Additional Insured and considered as primary for all claims.

· The policy must be endorsed to include Waiver of Subrogation in favor of the Texas Facilities Commission.

· TSP shall provide Workers Compensation Insurance with limits as required by the Texas Workers’ Compensation Act and Employers’ Liability coverage with a minimum limit of $1,000,000 per occurrence, covering all personnel who will provide services under this Contract.

· The policy shall include Waiver of Subrogation in favor of the Texas Facilities Commission.

· Worker’s Compensation may be waived if the TSP is a sole proprietor and is covered by his or her own medical insurance. In order to opt out of the Worker’s Compensation Insurance requirement, the TSP must sign and submit Exhibit D, Workers’ Compensation Waiver.

General Requirements for All Insurance. The following provisions shall apply to all insurance requirements:

· TSP shall be responsible for all deductibles and self-insured retentions, if any, stated in policies. All deductibles and self-insured retentions shall be disclosed on the certificates of insurance.

· If coverage is underwritten on a claims-made basis, the retroactive date for the policy and all renewals shall be coincident with the Effective Date of this Contract and the certificate of insurance shall state that the coverage is claims-made and the retroactive date. Any premiums for this extended reporting period shall be paid by Contractor.

· In the event the primary insurance policy does not so provide, TSP shall obtain and maintain endorsements as to each deficient policy, or provide such other document(s) as may be approved in advance by TFC, that satisfy all of the following requirements:

· naming “Texas Facilities Commission, P.O. Box 13047, Austin, Texas 78711, its officials, directors, employees, representatives, and volunteers,” as additional insureds, provided however, this requirement does not apply to Workers’ Compensation Insurance;

· the policy, or such other document(s) as may be acceptable to TFC, must obligate the insurer, or a third-party acceptable to TFC, notify the TFC Insurance Analyst, TFC - Legal, P.O. Box 13047, Austin, Texas 78711, of any: (i) non-renewal; (ii) cancellations; or (iii) material changes, at least thirty (30) days prior to change or cancellation for any reason except in the case of cancellation for non-payment of premiums, the notification must be at least ten (10) days prior to cancellation;

· “Material Change” means any of the following changes to the policy during the term of the Policy:

· a change in the policy period;

· a material revision to, or removal of, a coverage section;

· a reduction of the amount of limits of insurance, provided such reduction is not the result of payment of damages, medical expenses, or claim expenses; or

· an increase of the amount of any self-insured retentions; and

· as to those policies wherein TFC is an additional insured, said insurance coverages must be primary and non-contributing with respect to insurance or self-insurance carried by TFC, if any; and

· the policy must provide a waiver of subrogation rights to TFC for the workers’ compensation, employers’ liability, commercial general liability, and business automobile liability policies.

· TSP shall not, nor allow any Subcontractor(s) to commence work until the FAD is provided by TFC. However, any approval of the insurance requirements by TFC shall not relieve or reduce the liability of TSP hereunder.

· All insurance must be written by a company licensed to do business in the State of Texas at the time the policy and any renewals are issued, and must be written by a company with an A.M. Best rating of A- or better and have an A.M. Best Financial Size Category Class of “VII” or better.

No Cancellation or Lapse. TSP shall not cause or permit any required insurance to cancel or lapse prior to the expiration of all warranty periods, provided however, policy duration for builder’s risk (or as applicable, an installation floater) is not governed by this provision.

Notice of Erosion. TSP shall provide TFC thirty (30) days written notice of erosion of any aggregate limits below the minimum amounts required by the Contract.

Right to Review. TFC reserves the right to review the insurance requirements during the effective period of the Contract and to make reasonable adjustments to insurance coverage and their limits when deemed necessary and prudent by TFC based upon changes in statutory law, court decisions or the claims history of the industry and/or of TSP, provided however, such modifications must be commercially available to TSP. TFC shall make an equitable adjustment to the Contract Sum for any additional cost resulting therefrom.

Losses Paid by TSP. Actual losses not covered by insurance as required by this Contract shall be paid by TSP.

Failure to Obtain or Maintain. Failure to timely obtain and maintain the insurance coverages as required under this Contract may subject TSP to, among other remedies, the following:

· disqualification from eligibility to participate in any other or future projects with TFC;

· suspension of work for cause;

· in the event TSP fails to timely renew or pay any of the renewal premiums for any expiring policies, TFC shall have the right (but not the obligation) to: (i) make such payments; and/or (ii) acquire replacement coverage, and set off the amount(s) or costs thereof against the next payment(s) coming due to TSP under the Contract or under any other contract between TFC and TSP; and/or

· TFC may withhold any payments due to TSP until satisfaction is achieved.

TFC a Third-Party Beneficiary. It is hereby acknowledged and agreed that TFC is a third-party beneficiary of any agreement(s) between TSP and any and all Persons who procure, or cause to be procured, the above-described insurance coverages, and all renewals thereof, for the Scope of Services under this Contract.

CHANGES TO TFC STANDARD TERMS AND CONDITIONS: In the event of conflict between the Freight TSP Agreement and TFC Standard Terms and Conditions, the Freight TSP Standard Agreement will take precedence.

· Clauses in TFC Standard Terms and Conditions are deleted in their entirety and replaced with the following:

10.3 HISTORICALLY UNDERUTILIZED BUSINESSES (HUBS). In accordance with State law, it is TFC’s policy to assist VetHUBs, whenever possible, to participate in providing goods and services to the agency. TFC encourages those parties with whom it does business for the provision of goods and services to adhere to this same philosophy in selecting subcontractors to assist in fulfilling Vendor's obligations with TFC.

Applies to Sole Proprietors ONLY:

WORKERS’ COMPENSATION WAIVER

ALL EMPLOYERS MUST PROVIDE EVIDENCE OF COMPLIANCE WITH THE INSURANCE REQUIREMENTS OF THE TEXAS WORKERS’ COMPENSATION ACT.

Generally, an employer with one or more employees carries workers’ compensation insurance to cover those employees or elects coverage through self-insurance as permitted by Texas Labor Code, Section 406.003.

Sole proprietorships who wish to perform freight services pursuant to Texas Facilities Commission’s Freight Transportation Service Provider Agreement that do not carry workers’ compensation insurance must comply, agree, and attest to the following:

A signed statement (see below) that the business is a sole proprietorship as defined by the Texas Workers’ Compensation Act.

I am the owner of a sole proprietorship, doing business as, ______________ and am the sole employee of this business entity. I, as an individual employer, have not elected to be covered under the Texas Workers’ Compensation Act.

I, and the sole proprietorship that I represent, am covered by medical insurance that will be used to cover any injuries obtained in providing freight services to Texas Facilities Commission (TFC).

I, and the sole proprietorship that I represent, waive all rights to sue the Texas Facilities Commission or its officers, employees, or commissioners or the State of Texas for injuries not caused by its negligence.

I, and the sole proprietorship that I represent, release liability of the Texas Facilities Commission or its officers, employees, or commissioners or the State of Texas for any injuries to myself in the course of performing work in conjunction with providing freight services to TFC.

Applies to Brokers ONLY:

Broker’s Affidavit re Underlying Carriers

I, the undersigned, as a duly appointed agent for in accordance with the requirements of the Freight Transportation Service Provider Agreement and TFC Standard Terms and Conditions, do hereby ensure that in providing Freight Transportation Services to the Texas Facilities Commission will ensure that:

1. All contracted underlying carriers possess proper operating authority;

1. All contracted underlying carriers shall adhere to all insurance requirements of the Freight Transportation Service Provider Agreement;

1. Notification has been given to all contracted underlying carriers that the Texas Facilities Commission assumes no responsibility for payment of services to carriers hired by brokers; and

1. Notification has been given to all contracted underlying carriers that the Texas Facilities Commission assumes no liability for loss of property or personal injury.

I certify under penalty of perjury under the laws of the State of Texas that the forgoing information is true and correct.

Initial next to each applicable item:

All Interested Transportation Service Providers:

I have reviewed and agree to the Scope of Work and Insurance Requirements

I have reviewed and agree to the Attachment B, TFC Standard Terms and Conditions

I have attached a Certificate of Insurance that meets the Insurance Requirements provided

Brokers Only:

I have reviewed and agree to the BROKERS’ AFFIDAVIT RE UNDERLYING CARRIERS

Sole Proprietors Only:

I have reviewed and agree to the WORKERS’ COMPENSATION WAIVER

Signature of Authorized Agent

Title

Date

STATE OF____________________

COUNTY OF__________________

Before me, a notary public, on this day personally appeared _____________________________, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are true and correct.

Must be notarized to be accepted by TFC