DOCKAGE AGREEMENT W I T N E S S E T H:

Transcription

1 DOCKAGE AGREEMENT THIS DOCKAGE AGREEMENT (the Agreement ) is made and entered into as of the day of, 20, by and between the PORT OF LONGVIEW, a municipal corporation and political subdivision of the State of Washington (the Port ), and HAVEN ENERGY TERMINALS LLC, a Delaware limited liability company ( Haven ). W I T N E S S E T H: WHEREAS, Port, as a public port district organized and existing under the laws of the State of Washington and in furtherance of its statutory purposes and the Comprehensive Scheme of Harbor Improvements and Industrial Developments for the Port of Longview Port District, as amended, is authorized to develop and operate harbor, dock and other improvements and to make available associated public services and amenities at the Port of Longview; and WHEREAS, Port and Haven have entered into a Ground Lease Agreement of even date herewith (the Lease ) pursuant to which Port has leased certain Demised Premises to Haven and granted certain easements to Haven, as more particularly described therein, all for the Permitted Use (as defined in the Lease); and WHEREAS, it is customary and appropriate for Port to charge all vessels for the privilege of berthing or mooring alongside docks located at the Port of Longview, given Port s investments in dock improvements and associated port infrastructure, amenities and general administrative resources, and WHEREAS, given the substantial capital investment which Port is making for the construction costs of the Ship Dock, it is appropriate for Port, during the term of the Lease but separately and independent from the Lease, to assess dockage charges, for Port s own account, against vessels berthing or mooring alongside the Ship Dock; and WHEREAS, Port and Haven have determined that, during the term of the Lease but separately from and independent of the Lease, the dockage charges assessed by Port against vessels for the privilege of berthing or mooring, should be assessed on the basis of tariffs adopted from time to time by Port in conformity with this Agreement, to be billed and collected by Port on and subject to the terms and conditions hereof; and WHEREAS, Port, acting through the Port Commission and in accordance with applicable law, has determined that these arrangements are in the best interests of the Port of Longview and the general public; NOW, THEREFORE, for and in consideration of the mutual covenants and agreements herein set forth and for other good and valuable consideration, it is mutually covenanted and agreed between the parties as follows:

2 ARTICLE 1 Definitions The underscored terms set forth below shall have the respective meanings indicated for purposes of this Agreement. In addition, any capitalized term used in this Agreement but not defined herein shall have the meaning ascribed to such term in the Lease. Dockage. The term Dockage means the charges assessed by Port against a vessel for berthing or mooring at a wharf, pier, bulkhead structure, or bank (including vessels mooring to a vessel so berthed). LPG Vessels. The term LPG Vessels (or singly, LPG Vessel ) means oceangoing vessels calling at the Ship Dock for loading of LPG from Haven s Facility and all other vessels (including, without limitation, barges) otherwise accepted for loading of LPG at the Ship Dock in conjunction with Haven s operation of its Facility under the Lease. Month. The term Month, including the correlative term Monthly, refers to calendar months. Port Commission. The term Port Commission means the publicly-elected Port Commissioners of the Port of Longview. ARTICLE 2 Term The term of this Agreement (the Term ) shall commence on the earlier of (i) ninety (90) days after the Completion Date under the Lease or (ii) the date when Haven first commences to load LPG from its Facility into a LPG Vessel, and shall thereafter run concurrently with the Initial Term of the Lease; provided, however, that the Term shall be automatically extended for any Renewal Terms of the Lease exercised by Haven as provided in the Lease, but will terminate upon the expiration or earlier termination of the Lease. ARTICLE 3 LPG Vessels Section 3.1 Port s Right to Assess and Collect Dockage. (a) Haven shall provide Port with not less than seven (7) days prior notice of the scheduled time of arrival of each LPG Vessel at the Ship Dock. All such LPG Vessels shall be obliged to comply with any and all rules and regulations incorporated into Port s terminal tariffs as published from time to time and then currently applicable. In connection with any such berthing or mooring: 2

3 (i) Port (and only Port) shall be entitled to assess and collect Dockage from each LPG Vessel as more fully set forth in Sections 3.2 and 3.3 hereof; and (ii) Port may also charge each LPG Vessel for ancillary services of Port to such vessels, as more fully set forth in Section 3.4 hereof. (b) The permission for any LPG Vessel to so berthed or moored at the Ship Dock shall not, however, imply any right to possess, use or occupy the Ship Dock, but shall only allow such vessels the privilege of temporarily berthing or mooring alongside the Ship Dock. (c) Provided that Port receives not less than twenty-four (24) hours notice from Haven of an incoming LPG Vessel for the Ship Dock, Port shall ensure, to the extent of its authority, that the Ship Dock has been cleared. The Port will be responsible for any demurrage and similar costs and expenses incurred by Haven in the event that, after such twenty-four (24) hour notice period, the Ship Dock has not been cleared, provided, however, that the Port shall not be responsible for demurrage and similar costs in the event that moving such other vessel is beyond the authority of the Port (such as any vessel berthed at the Ship Dock under order of the U.S. Coast Guard). In such event, the Port shall use its best efforts to (i) work cooperatively with such other governmental authority with jurisdiction to so clear the Ship Dock and (ii) notify Haven of the situation within three (3) hours of becoming actually aware thereof. Section 3.2 Assessment of Dockage. (a) The Dockage charges with respect to each LPG Vessel shall be calculated and assessed upon the basis of Port of Longview tariffs for Dockage at non-grain berths, as promulgated by the Port Commission from time to time and published by Port. (b) The Dockage rate applicable to each such LPG Vessel and the method of calculating Dockage, based upon the LPG Vessel s length-over-all and duration of moorage or docking, is currently set forth in Item (Dockage Rates Berth 1-8) of the Port of Longview Terminal Tariff No., attached as Exhibit A hereto. (c) Revisions of Port s tariffs for Dockage applicable to LPG Vessels berthing or mooring at the Ship Dock (including, without limitation, increases in Dockage rates) will, from time to time during the Term of this Agreement, be promulgated by the Port Commission and published by Port and shall, from and after the publication date of such revisions, be applicable to LPG Vessels thereafter berthing or mooring at the Ship Dock, provided that any such Dockage tariff increases or other revisions shall be applied in a non-discriminatory basis consistent with the dockage charges at other non-grain berths at the Port of Longview. (d) Notwithstanding subparagraphs (a), (b) and (c) above, in the event that any federal, state or local regulatory requirements require the establishment of exclusion zones for LPG vessels which impact more of the Port s berths than Berth 4 or adversely impact the use of Port uplands, the Port Commission shall have the right to promulgate dockage tariffs against 3

4 LPG Vessels utilizing Berth 4 that are higher than the non-grain dockage tariffs ordinarily applicable to Berths 1 through 8, to the extent such higher dockage tariffs for LPG Vessels are determined by the Port Commission, acting in public session, to be reasonable and necessary adjustments for the adverse impact of LPG Vessel exclusion zones upon other Port berths and uplands. Section 3.3 Collection of Dockage. Dockage with respect to LPG Vessels shall be collected by Port through deposits from such LPG Vessels calling at the Ship Dock, shall be calculated and assessed by Port, and shall be reflected on billing statements or invoices presented to such vessels by and collected by Port. In respect to its records of Dockage from LPG Vessels, Port hereby agrees that: (a) During the Term, Port shall provide to Haven on a Monthly basis, within fifteen (15) Business Days after the beginning of each Month, a Monthly report on the amount of Dockages Fees collected by Port from LPG Vessels during the preceding Month. (b) Port shall maintain daily logs of the number of LPG Vessels to berth or moor at the Ship Dock, and shall submit the applicable daily logs to Haven within five (5) days following the end of each Month. Haven shall have the right to audit from time to time, at its sole cost and expense and no more frequently than once each Dockage Year, the daily logs and other records of Port upon not less than five (5) Business Days notice to the Port. Any such audit shall be scheduled for a Business Day, shall be conducted during normal business hours, and shall be conducted in a manner to minimize the disruption of Port s normal business operations. Section 3.4 Ancillary Services. In addition to Dockage, Port may offer and charge for ancillary services to LPG Vessels, and shall have the right to bill the LPG Vessel and collect for, ancillary services as follows: (a) Port s ancillary services to LPG Vessels shall include berth security and line handling (including tie up), and may include tug assist, stow and trim, freshwater service and any other support and services which Port may elect to offer from time to time. (b) Port s ancillary services to LPG Vessels shall be at such pricing as Port shall determine appropriate from time to time in its published tariffs (but such costs shall be applied in a non-discriminatory basis consistent with the charges for the same services at other non-grain berths at the Port of Longview). ARTICLE 4 Other Vessels Section 4.1 Port s Right to Assess and Collect Dockage. 4

5 (a) Vessels which are not LPG Vessels ( Other Vessels ) may be permitted by Port to berth or moor at the Ship Dock for layover or other non-lpg purposes, during any period when LPG Vessels are not making preferential use of the Ship Dock in accordance with the terms hereof and the terms of the Lease. Such Other Vessels shall be obliged to comply with any and all regulations incorporated into the tariffs published as set forth in Section 4.2 and then currently applicable. (b) In connection with any such berthing or mooring of Other Vessels: (i) Port, and only Port, shall be entitled to assess and collect Dockage from such Other Vessels as more fully set forth in Section 4.2; and (ii) Port may also charge such Other Vessels for ancillary services of Port to such vessels, as set forth in Section 4.3 hereof. (c) The permission for such Other Vessels to so berth or moor at the Ship Dock, during any period when LPG Vessels are not making preferential use of the Ship Dock in accordance with the Lease, shall be at the discretion of Port; provided, however, that Port shall ensure that the terms of Section 6.3(b) of the Lease are complied with and that no vessels engaged in LPG transport, other than LPG Vessels shipping from the Facility, shall be allowed to dock at the Ship Dock. Provided that Port receives not less than twenty-four (24) hours notice from Haven of an incoming LPG Vessel for the Ship Dock, Port shall ensure, to the extent of its authority, that any Other Vessel laying-over or otherwise berthed at the Ship Dock has been cleared from the Ship Dock (Berth 4). The Port will be responsible for any demurrage and similar costs and expenses incurred by Haven in the event that, after such twenty-four (24) hour notice period, any Other Vessel laying-over at the Ship Dock has not been cleared, provided, however, that the Port shall not be responsible for demurrage and similar costs in the event that moving such other vessel is beyond the authority of the Port (such as any vessel berthed at the Ship Dock under order of the U.S. Coast Guard). In such event, the Port shall use its best efforts to (i) work cooperatively with such other governmental authority with jurisdiction to so clear the Ship Dock and (ii) notify Haven of the situation within three (3) hours of becoming actually aware thereof. The Port does not assure Haven that Other Vessels will be cleared from any berth other than the Ship Dock (Berth 4). Section 4.2 Assessment of Dockage. Dockage with respect to such Other Vessels berthing or mooring at the Ship Dock shall be calculated and assessed by Port upon the basis of the tariffs for Dockage at non-grain berths as determined from time to time by the Port Commission and published by Port, and shall be applied on a non-discriminatory basis consistent with the dockage charges at other non-grain berths at the Port of Longview. Section 4.3 Ancillary Services. Port (and only Port) may offer and charge for, and shall bill and collect for ancillary services to such Other Vessels, including berth security, line handling (including tie up), tug assist, stow and trim, freshwater service and any other support and services which Port may elect to offer from time to time, at such pricing as Port shall 5

6 determine from time to time in its published tariffs (but such costs shall be applied on a nondiscriminatory basis consistent with the charges for the same services at other non-grain berths at the Port of Longview). ARTICLE 5 Government Charges Section 5.1 Federal, State or Local Taxes. Port shall pay any federal, state or local taxes payable by Port, under applicable law, on Port s Dockage and its charges for any ancillary services offered by Port to LPG Vessels and Other Vessels in accordance with this Agreement. For example, Port would pay Washington business and occupation tax on Port s Dockage and its charges for ancillary services to LPG Vessels and Other Vessels. Section 5.2 Right to Contest. Port and Haven have each determined, reasonably and in good faith, that the Washington leasehold excise tax is not payable under applicable law against the Dockage assessed by Port against LPG Vessels under this Agreement. In the event that the State of Washington assesses a leasehold excise tax against such Dockage, and such assessment is not successfully contested by Port, then Port s Dockage charges assessed against LPG Vessels under this Agreement shall be deemed inclusive of the leasehold excise tax, and shall be paid by Port from such Dockage collections. Port shall have the right, by appropriate legal proceedings and at its sole cost and expense, to contest the amount or validity of any assessment of leasehold excise taxes against Dockage by the State of Washington; but this shall not be construed as modifying Port s obligation to pay such tax in the event the same is determined in such proceedings to be payable. Any such contest may be made in the name of Haven or Port, or both, as Port shall determine, and Haven agrees to cooperate reasonably with Port in any such contest. Section 5.3 Survival. The obligations of Section 5.1 and Section 5.2 hereof shall, as applicable, survive the expiration or earlier termination of this Agreement. ARTICLE 6 Notices Section 6.1 Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall either be mailed by first class United States mail, postage prepaid, registered or certified with return receipt requested, and addressed as set forth in this Section, or delivered in person or by reliable overnight courier to the intended addressee, sent by prepaid telegram, cable or telex followed by a confirmatory letter, or sent by electronic mail with confirmed delivery. Notice mailed in the aforesaid manner shall become effective two (2) Business Days after deposit; notice given in any other manner, and any notice given to Port, shall be effective only upon receipt by the intended addressee. For the purposes of notice, the address of: 6

7 Port shall be: and Haven shall be: Port of Longview 10 Port Way P. O. Box 1258 Longview, WA Attn: Chief Executive Officer Fax: (360) Haven Energy Terminals LLC 111 Bagby Street, Suite SL-4 Houston, Texas Attn: Greg Bowles Fax: (713) Each Party shall have the continuing right to change its address for notices hereunder by the giving of five (5) days prior written notice to the other party in accordance with this Section. Section 6.2 Last Designated Address. Notwithstanding anything in this Section to the contrary, any notice mailed to the last designated address of any person or Party to which a notice may be or is required to be delivered pursuant to this Agreement or this Section shall not be deemed ineffective if actual delivery cannot be made due to a change of address of the person or Party to which the notice is directed or the failure or refusal of such person or Party to accept delivery of the notice. ARTICLE 7 Assignments Section 7.1 Assignment. In the event Haven shall, at any time, Transfer its interest as tenant under the Lease to any Person as may be permitted under the Lease, Haven shall concurrently Transfer its rights under this Agreement to such Person, by written instrument (a copy of which shall be provided to Port) in which such Person shall assume and agree to pay and perform the obligations of Haven under this Agreement for the Term of this Agreement in the case of such an assignment under the Lease, and for the term of the sublease in the case of such a sublease under the Lease. In addition, in the event Haven is required to obtain Port s consent to Transfer the Lease pursuant to the terms thereof, and the Port provides such consent, then the Port shall also consent to the Transfer of this Agreement. Section 7.2 Notification to Port. Haven shall, promptly after making any such permitted assignment of this Agreement, deliver to Port notification of such assignment, together with the business address of the assignee and a copy of the written instrument in which such 7

8 assignee assumes and agrees to pay and perform the obligations of Haven hereunder as set forth in Section 7.1 hereof. Section 7.3. Pledge to Permitted Leasehold Mortgagee. Notwithstanding the foregoing, Haven may pledge, collaterally assign or otherwise grant as security its rights under this Agreement to, and the terms and conditions of this Agreement shall inure to the benefit of and be binding upon, any Permitted Leasehold Mortgagee under the Lease. ARTICLE 8 Miscellaneous Section 8.1 Entire Agreement; Amendment and Binding Effect. This Agreement, together with the Wharfage Agreement, the SEPA Reimbursement Agreement, and the Lease, constitutes the entire agreement between Port and Haven relating to the subject matter hereof and all prior agreements relative hereto which are not contained herein are terminated. This Agreement may be amended only by a written document duly executed by Port and Haven, and any alleged amendment which is not so documented shall not be effective as to either Party. The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their heirs, executors, administrators, successors and assigns; provided, however, that this Section shall not negate, diminish or alter the restrictions on transfers applicable to Haven as set forth in the Lease and Article 5 above. Section 8.2 Severability. This Agreement is intended to be performed in accordance with and only to the extent permitted by all Legal Requirements. If any provision of this Agreement or the application thereof to any Person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, but the extent of the invalidity or unenforceability does not destroy the basis of the bargain between the Parties as contained herein, the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted by law. Section 8.3 Remedies Cumulative. No remedy shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute; and every power and remedy given by this Agreement to Port or Haven may be exercised from time to time and as often as occasion may arise or as may be deemed expedient by Port or Haven, as the case may be. No delay or omission of Port or Haven to exercise any right or power arising from any default shall impair any such right or power, nor shall it be construed to be a waiver of any such default or an acquiescence therein; and no waiver of any breach of any of the covenants or conditions of this Agreement shall be construed to be a waiver of any other breach or to be a waiver of, acquiescence in, or consent to any further or succeeding breach of the same or similar covenant or condition. 8

9 Section 8.4 Interpretation. Unless the context of this Agreement clearly requires otherwise, (a) pronouns, wherever used herein, and of whatever gender, shall include natural persons and corporations and associations of every kind and character; (b) the singular shall include the plural wherever and as often as may be appropriate; (c) the term includes or including means including without limitation ; and (d) the words hereof or herein refer to this entire Agreement and not merely the Section, Article or Paragraph number in which such words appear. Article and Section headings in this Agreement are for convenience of reference and shall not affect the construction or interpretation of this Agreement. Any reference to a particular Article or Section or Paragraph shall be construed as referring to the indicated article or section or paragraph of this Agreement, except as the context may otherwise require. Section 8.5 Singular and Plural. Any word contained in the text of this Agreement shall be read as the singular or the plural and as the masculine, feminine or neuter gender as may be applicable in the particular context. Section 8.6 Captions and Recitals. The captions of this Agreement are for convenience and reference only and in no way define, limit or describe the scope or intent of this Agreement. The recitals to this Agreement, however, are incorporated into and constitute an integral part of this Agreement. Section 8.7 Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Washington. Section 8.8 Arbitration, Jurisdiction and Venue. The arbitration provisions of Section 23 of the Lease shall apply to this Agreement and are incorporated herein by this reference. Any action arising out of or in connection with this Agreement, or the enforcement or interpretation of this Agreement, which is not covered and resolved by an agreement to arbitrate, shall be brought in the Superior Court of Washington in and for Pierce County, Washington, or in the federal district court sitting in Tacoma, Washington, and having subject matter jurisdiction in the Western District of Washington. Each of Port and Haven hereby consents to the personal jurisdiction and venue of the Superior Court of the State of Washington in and for Pierce County and of the federal district court sitting in Tacoma, Washington, and having subject matter jurisdiction in the Western District of Washington. Section 8.9 No Joint Venture. Nothing in this Agreement creates any relationship of trust or fiduciary relationship between Haven and Port; and this Agreement does not create any obligations of, or attendant upon, a joint venture or other similar legal relationship. Section 8.10 Counterparts; Facsimile Copies. This Agreement may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute but one instrument. Any Party delivering this Agreement by facsimile transmission shall deliver to the other Parties, as soon as practicable after such delivery, an original executed counterpart signature page of this Agreement. 9

10 Section 8.11 Attorneys Fees. If any Party initiates any litigation against relating to the interpretation or enforcement of this Agreement, or in the event any Party appears in any arbitration, bankruptcy, insolvency or similar proceeding to interpret, enforce or protect its interests under this Agreement, then the prevailing Party shall be entitled to recover, in addition to all damages allowed by law and other relief, all court costs and reasonable attorneys fees incurred in connection with such litigation or proceeding, including on any appeal. 10

11 IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the day and year first above mentioned. PORT OF LONGVIEW HAVEN ENERGY TERMINALS LLC By: Name: Title: By: Name: Title: By: Name: Title: [Notarial acknowledgements are on the following two pages]

12 STATE OF WASHINGTON ) ) ss. County of Cowlitz ) On this day of, 20, before me, the undersigned, a Notary Public in and for the State of Washington, duly commissioned and sworn, personally appeared and, to me known to be the President and Secretary of the Port Commission of the PORT OF LONGVIEW, the municipal corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said municipal corporation, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute the said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. Signature Printed Name Notary Public for the State of Washington Residing at My Appointment Expires

13 STATE OF ) ) ss. County of ) On this day of, 20, before me, the undersigned, a Notary Public in and for the State of, duly commissioned and sworn, personally appeared, to me known to be the of HAVEN ENERGY TERMINALS LLC, a Delaware limited liability company, the company that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said company, for the uses and purposes therein mentioned, and on oath stated that was authorized to execute the said instrument. WITNESS my hand and official seal hereto affixed the day and year first above written. Signature Printed Name Notary Public for the State of Residing at My Appointment Expires