0560023344BC_ContractPreExecution.pdf

Corning Tower, Empire State Plaza, Albany, NY 12242 | https://ogs.ny.gov/procurement | customer.services@ogs.ny.gov | 518-474-6717

AGREEMENT FOR

GASOLINE AND E-85 (Statewide)

BY AND BETWEEN

NEW YORK STATE

OFFICE OF GENERAL SERVICES

AND

CONTRACT NUMBER PC_____________

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Contract # PCXXXXX

CONTENTS

1. INTRODUCTION

1.1 Overview

1.2 Scope

1.3 Estimated Quantities

1.4 NYS Comptroller Approval

1.5 Definitions

1.6 Appendices and Attachments

1.7 Conflict of Terms

2. CONTRACTOR QUALIFICATIONS

3. SPECIFICATIONS

3.1 Product Requirements

3.2 Fill and Vent Requirements/Vapor Recovery Systems

3.3 Petroleum Transfer Requirements

3.4 Topping Off Tanks

3.5 Trade Names

3.6 Automatic Replenishment

3.7 Requirements - Gasoline, Unleaded Formula (Conventional & OPRG (E) Types)

3.8 Octane Requirements - Unleaded Formula (Conventional, OPRG (E) & E-85 Types)

3.9 Gasoline Volatility Class (Conventional & OPRG (E) Types)

3.10 General Requirements, Unleaded Formula (Conventional & OPRG (E) Types)

3.11 Limits, Unleaded Gasoline (All Types)

3.12 General Requirements, Unleaded Gasoline OPRG (E)

3.13 Reformulated Gasoline, OPRG Type for the NYC-CMSA Requirements

3.14 Distribution, Gasoline, OPRG Type Reformulated (Alcohol/Ether/Oxygenated Blends)

3.15 OPRG (E) Type Gasoline, for the Ozone Non-Attainment Areas

3.16 Requirements, Gasoline, Type Reformulated

3.17 Requirements – E-85 (Table)

3.18 Related Requirements for Storage, Transfer, & Wholesale Purchaser-Consumer Posting

3.19 Labels

4. TERMS AND CONDITIONS

4.1 Contract Term and Extensions

4.2 Short term Extension

4.3 Price

4.4 Price Updates

4.5 OPIS Posting Locations Pricing

4.5.1 Location Change or Substitution

4.5.2 Calculation Change or Substitution

4.5.3 Product Change or Substitution

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4.6 Best Pricing Offer

4.7 Price Structure

4.8 Ordering

4.9 Minimum Order

4.10 Invoicing and Payment

4.11 Product Delivery

4.12 Method of Delivery

4.13 Delivery Schedule

4.14 Product Returns and Exchanges

4.15 Unanticipated Excessive Purchase

4.16 Contract Administration

4.17 NYS Financial System (SFS)

4.18 Insurance

4.19 Report of Contract Usage

4.20 Contractor Requirements and Procedures for Participation by New York State Certified Minority- and

Women-Owned Business Enterprises and Equal Employment Opportunities for Minority Group Members and Women

4.21 Participation Opportunities For New York State Certified Service-Disabled Veteran Owned Businesses

4.22 Environmental Sustainability and NYS Executive Order Number 22

4.23 Diesel Emission Reduction Act

4.24 Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or

Equipment

4.25 Guarantee

4.26 Engineering Service

4.27 NYS Vendor Responsibility

4.28 NYS Tax Law Section 5-a

4.29 Non-State Agencies Participation in Centralized Contracts

4.30 Extension of Use

4.31 New Accounts

4.32 Centralized Contract Modifications

4.33 Drug and Alcohol Use Prohibited

4.34 Traffic Infractions

4.35 Samples

4.36 Contract Documents; Electronic Format

4.37 Purchasing Card Orders

4.38 Performance and Bid Bonds

4.39 Supplier Certificate

4.40 Investigation

5. GENERAL PROVISIONS

5.1 Notices

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5.2 Captions

5.3 Severability

5.4 Counterparts

5.5 Entire Agreement

APPENDICES

Appendix A – Standard Clauses for NYS Contracts (June 2023) Appendix B – General Specifications (April 2016) Appendix C – Federal Funding Agency Mandatory Terms and Conditions (October 2023)

ATTACHMENTS

Attachment 1 – Pricing Attachment 4 – Insurance Requirements Attachment 8 – Report of Contract Usage Attachment 10 – Delivery Schedule – State Agencies Attachment 11 – Delivery Schedule – Political Subdivisions, Local Governments, & Other Eligible Non-State Agencies

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STATE OF NEW YORK

OFFICE OF GENERAL SERVICES

AGREEMENT # PC__________

CENTRALIZED CONTRACT FOR THE ACQUISITION OF

GASOLINE AND E-85 (STATEWIDE)

THIS AGREEMENT (hereinafter the “Contract” or the “Agreement”) is made this ____ day of _________, 2024, by and between the People of the State of New York, acting by and through the Commissioner of the Office of General Services (OGS), whose office is on the 36th Floor, Corning Tower, Governor Nelson A. Rockefeller Empire State Plaza, Albany, New York 12242 (hereinafter referred to as the “State” or “OGS”) and _______________, having its principal place of business at ____________________________________________ (hereinafter referred to as the “Contractor”). OGS and the Contractor are collectively referred to as the “Parties.”

WHEREAS, OGS is statutorily authorized to enter into centralized contracts for commodities for use by New York State agencies, departments, public authorities, political subdivisions and any other entities authorized by statute to utilize its centralized contracts (hereinafter “Authorized Users”); and

WHEREAS, OGS has identified a need by New York State agencies and other Authorized Users for Gasoline and E-85, as further described herein; and

WHEREAS, OGS conducted a competitive procurement to identify the bidder(s) which could provide the Gasoline and E-85 at the lowest cost, referred to as IFB #23344 (hereinafter the “IFB” or the “Solicitation”), which was advertised on ___________, 2024 in the New York State Contract Reporter, as required by New York State Economic Development Law; and

WHEREAS, awards were made to Contractors per county to the responsible bidder that submitted the lowest responsive proposal in accordance with the method of award set forth in the IFB; and

WHEREAS, the State has determined: that the Contractor submitted the lowest cost responsive proposal for the items in the applicable county or counties as described herein; that the Contractor is a responsible vendor;

and that the Contractor is willing to provide the commodities set forth herein under the terms and conditions contained herein;

NOW THEREFORE, in consideration of the terms hereinafter mentioned and also the mutual covenants and obligations moving to each party hereto from the other, the Parties hereby agree as follows:

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1. INTRODUCTION

1.1 Overview

This Contract results from a Solicitation issued by the New York State (“NYS”) Office of General Services (“OGS”), Procurement Services and is intended to provide Authorized Users with a means of acquiring various grades of Gasoline and E-85 by bulk delivery to Authorized Users’ storage facilities for use in the Authorized Users’ own pumps. The product shall be Contractor furnished, delivered and unloaded as specified herein.

This Contract is a centralized contract(s) based on Authorized Users’ filed requirements. There are separate awards for Gasoline and E-85 fuels, when applicable, for all counties that have filed requirements pursuant to the Solicitation.

1.2 Scope

This Solicitation contained a total of One Hundred Twenty-Five (125) Items to be awarded. The items consisted of seven (7) fuel types: Conventional (Regular, Mid-Grade, Premium), OPRG (E) (Regular, Mid-Grade, Premium), and E-85 in sixty-one (61) counties of New York State. Contractor was awarded the Items specified in Attachment 1 – Pricing.

The product shall be furnished, delivered and unloaded by the Contractor to Authorized Users’ storage tanks, as specified herein. The specific users, counties, and fuel grades are listed in the Delivery Schedule. See Attachments 9 and 10, Delivery Schedule – State Agencies and Delivery Schedule – Non-State Agencies respectively.

1.3 Estimated Quantities

This Contract is an estimated quantity Contract. No specific quantities are represented or guaranteed, and the State provides no guarantee of individual Authorized User participation. The estimated quantities are based on requirements submitted to OGS by Authorized Users. These Authorized Users have agreed not to enter into any other contracts for the Gasoline and E-85 that they filed for during the contract period, and the Authorized Users have agreed to purchase all of their Gasoline and E-85 needs from the contracts awarded under the Solicitation.

The Contractor must furnish all quantities actually ordered at or below the Contract prices for awarded Items. The individual value of this Contract is indeterminate and will depend upon the number of Contracts issued and the competitiveness of the pricing offered, see clause(s) in Section 4, Terms and Conditions. See Appendix B, Section 28 Estimated/Specific Quantity Contracts and Participation in Centralized Contracts.

Numerous factors could cause the actual quantities of Products purchased under this Contract to vary substantially from the estimates in the Solicitation. Such factors include, but are not limited to, the following:

• There is no guarantee of quantities to be purchased, nor is there any guarantee that demand will continue in any manner consistent with previous purchases.

• The individual value of each Contract is indeterminate and will depend upon actual Authorized User demand and actual quantities ordered during the contract period.

• The State reserves the right to terminate any Contract for cause prior to the end of the term pursuant to the terms and conditions of the Contract. Appendix B, Section 43 (Termination) subparagraph (b) (For Convenience) is hereby deleted for purposes of this Solicitation.

• Contract pricing that is lower than anticipated could result in a higher quantity of purchases by Authorized Users than anticipated.

• In accordance with the Delivery Schedule clause, the Contractor(s) shall accept orders from and deliver to any State Agency placing an order through this contract even if the State Agency does not appear on the Delivery Schedule at the time of the bid opening and may accept orders for any non-State Agency or Political Subdivision not appearing on the Delivery Schedule at the time of the bid opening.

• Contract pricing that is higher than anticipated could result in a lower quantity of purchases by Authorized Users than anticipated.

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Contractor agrees that actual good faith purchasing volumes during the term of this Contract could vary substantially from the estimates provided in this Solicitation.

1.4 NYS Comptroller Approval

In accordance with Section 112 of the State Finance Law, this Contract shall not be valid, effective or binding upon the State until this Contract has been approved by the Office of the New York State Comptroller (“OSC”).

Purchase orders or other procurement transactions issued under this Contract may also be subject to OSC approval.

1.5 Definitions

Capitalized terms used in this Contract shall be defined in accordance with Appendix B, Section 2 Definitions, or as below.

“ASTM”: The acronym “ASTM” shall be used as a designation for the American Society for Testing and Materials.

All ASTM references in the specification are understood to refer to the most recent edition of that specification/standard.

“Business Day” shall refer to Monday through Friday from 8:00 AM – 5:00 PM ET, excluding NYS Holidays and federal holidays.

“CMSA”: The acronym, “CMSA” shall be used as a designation for Consolidated Metropolitan Statistical Area.

“Conventional Gasoline”: shall be any gasoline which has not been certified under 40\CFR, Section 80.40.

NOTE: MAY CONTAIN UP TO A PERCENTAGE OF ETHANOL AS SPECIFIED IN SECTION 3.11 Limits, Unleaded Gasoline (All Types).

“DEC”: The acronym, “DEC” shall be used as a designation for Dept. of Environmental Conservation.

“Delivery”: shall be the act of taking an ordered product to person or place. Refer to Product Delivery clause in this Solicitation.

“E-10”: A blend of 10% ethanol and 90% petroleum gasoline by volume.

“E-85” (Flex Fuel): A blend containing 51% to 83% ethanol and conventional regular unleaded gasoline by volume.

“ETBE”: The acronym, “ETBE” shall be used as a designation for Ethyl Tertiary Butyl Ether.

“Gasoline/s”: shall be a volatile mixture of liquid hydrocarbons, generally containing small amounts of additives, suitable for use as a fuel in spark-ignition, internal combustion engines.

“Gasoline-Alcohol Blend”: shall be a blend consisting primarily of gasoline and an amount of one or more alcohols as described below:

Methanol: at least 1% by volume or 0.15% by mass if methanol is only alcohol present.

Other alcohols (i.e. ethanol, TBA): at least 1% by volume or 0.35% by mass.

“Gasoline-Ether Blend”: shall be a blend consisting primarily of gasoline and a substantial amount (more than

0.35 mass percent oxygen) of one or more ethers.

“Human Needs Customers”: High priority customers such as residences, hospitals and nursing homes for which failure to get fuel could be life threatening.

“LUST”: Leaking Underground Storage Tank

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“May”: denotes the permissive in a Contract clause or specification. “May” does not mean “required”. See also “Shall” and “Must”.

“MON”: The acronym, "MON" shall be used as a designation for Motor Octane Number.

“MSA”: The acronym, “MSA” shall be used as a designation for Metropolitan Statistical Area.

“MT”: Delivery by Motor Transport. Minimum delivery of 5,500 gallons at one time into one or more storage tanks at one location (one delivery ID from the Delivery Schedule).

“Must”: denotes the imperative in a Contract clause or specification. “Must” is synonymous with “required.” See also “Shall” and “May.”

“MWBE” shall refer to a business certified with NYS Empire State Development (“ESD”) as a Minority- and/or Women-owned Business Enterprise.

“NYCRR”: The acronym, “NYCRR” shall be used as a designation for New York Codes, Rules, and Regulations.

“NYS Holidays” refers to the legal holidays for State employees in the classified service of the executive branch, as more particularly specified on the website of the NYS Department of Civil Service. This includes the following:

New Year’s Day; Dr. Martin Luther King, Jr. Day; Washington’s Birthday (observed); Memorial Day; Juneteenth;

Independence Day; Labor Day; Columbus Day; Veterans’ Day; Thanksgiving Day; and Christmas Day.

“NYS Vendor ID” is a unique ten-character identifier issued by the NYS Office of the State Comptroller (OSC) when the vendor is registered on the Vendor File System.

“OPRG (E)”: The acronym "OPRG (E)" shall be used as a designation for Oxygenated fuels Program Reformulated Gasoline Ethanol.

“Oxygenated Reformulated Gasoline (OPRG {E})”: shall be a blend consisting of gasoline-alcohol, in a reformulated gasoline which is intended for use in an Oxygenated fuels Program Reformulated Gasoline control area during a program control period (i.e., 6NYCRR225.-3.4, Table 1 on page 140.2m CN 8-31-93, or latest revision thereof).

“Preferred Source Products” shall refer to those Products that have been approved in accordance with New York State Finance Law § 162.

“Preferred Source Program” shall refer to the special social and economic goals set by New York State in State Finance Law § 162 that require a governmental entity purchase select Products from designated organizations when the Products meet the “form, function and utility” requirements of the governmental entity. Under State Finance Law § 163, purchases of Products from Preferred Sources are given the highest priority and are exempt from the competitive bidding requirements. The New York State Preferred Sources include: The Correctional Industries Program of the Department of Corrections and Community Supervision (“Corcraft”); New York State Preferred Source Program for People Who Are Blind (“NYSPSP”); and the New York State Industries for the Disabled (“NYSID”). These requirements apply to a state agencies, political subdivisions and public benefit corporations (including most public authorities).

“Procurement Services” shall refer to a business unit of OGS, formerly known as New York State Procurement (“NYSPro”) and Procurement Services Group (“PSG”).

“RBOB”: The acronym, "RBOB" shall be used as a designation for Reformulated gasoline Blendstock for Oxygenate Blending.

“RFG”: The acronym, "RFG" shall be used as a designation for ReFormulated Gasoline.

“RON”: The acronym, "RON" shall be used as a designation for Research Octane Number.

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“RVP”: The acronym, “RVP” shall be used as a designation for Reid Vapor Pressure.

“SDVOB” shall refer to a NYS-certified Service-Disabled Veteran-Owned Business.

“Shall” denotes the imperative in a Contract clause or specification. “Shall” is synonymous with “required”. See also “Must” and “May”.

“Solicitation” shall refer to this document, its appendices and attachments.

“Superfund” shall refer to the petroleum Superfund excise tax which funds the Hazardous Substance Superfund to clean up hazardous waste sites. The tax became effective on January 1, 2023.

“TBA”: The acronym, “TBA” shall be used as a designation Tertiary Butyl Alcohol.

“TW”: Delivery by Tank Wagon of less than 5,500 gallons.

“Volume Discount”: shall refer to the Cents Per Gallon Discount for Orders 5,500 Gallons or Greater shown on Attachment 1 – Pricing. If no Volume Discount is entered, the Contractor is not offering a Volume Discount.

1.6 Appendices and Attachments

The following appendices and attachments, attached hereto, are hereby expressly made a part of this Contract as fully as if set forth at length herein.

Appendix A – Standard Clauses for NYS Contracts (June 2023) Appendix B – General Specifications (April 2016) Appendix C – Federal Funding Agency Mandatory Terms and Conditions Attachment 1 – Pricing Attachment 4 – Insurance Requirements Attachment 8 – Report of Contract Usage Attachment 10 – Delivery Schedule – State Agencies Attachment 11 – Delivery Schedule Political Subdivisions, Local Governments, & Other Eligible Non-State Agencies

1.7 Conflict of Terms

Conflicts among the documents shall be resolved in the following order of precedence:

1. Appendix A – Standard Clauses for New York State Contracts;

2. Appendix C – Federal Funding Agency Mandatory Terms and Conditions;

3. This document;

4. Appendix B – General Specifications;

5. All other appendices and attachments to this document.

2. CONTRACTOR QUALIFICATIONS

Contractor is advised that the State’s intent in having the Bidder Qualifications listed in the Solicitation was to ensure that only a qualified and reliable Contractor perform the work of this Contract. Contractor shall have the burden of demonstrating to the satisfaction of Procurement Services that it can perform the work required.

Procurement Services retains the right to request any additional information pertaining to the Contractor's ability, qualifications, financial capacity, financial stability, and procedures used to accomplish all work under this Contract as it deems necessary to ensure safe and satisfactory work. A Contractor shall meet all applicable Bidder Qualifications as listed in the Solicitation throughout the term of this Contract.

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3. SPECIFICATIONS

3.1 Product Requirements

Contractor guarantees that the product(s) supplied will meet or exceed the minimum specifications listed in Section 3 –Specifications.

3.2 Fill and Vent Requirements/Vapor Recovery Systems

Agencies must ensure that fill and vent equipment meets NYS Standards. Contractors have the responsibility for reporting faulty or non-compliant equipment to the end users and the appropriate NYS regulatory agencies.

The Authorized User shall be responsible for having the proper fuel transfer vapor recovery system(s) operating on their storage tank in accordance with 6NYCRR Subpart 230. The transfers include delivery tank(er) to purchaser storage tank (Stage I) and purchaser storage tank to vehicle tank (Stage II) systems.

The Contractor shall properly use and operate fuel vapor recovery system and equipment whenever it is present on a purchaser's tank. The Contractor must utilize the equipment if present regardless of whether regulations required it due to location and throughput thresholds.

NYSDOT supports the collection of vapors during transfer to prevent emissions and the use of controls whenever present. The Fire Code of New York State at Section 2205.1.3 requires that where tanks are equipped with any type of vapor recovery system, all connections required for the safe and proper functioning of the particular vapor recovery process shall be made.

3.3 Petroleum Transfer Requirements

It is the responsibility of the Contractor to conduct deliveries in accordance with petroleum bulk storage (PBS) regulations including but not limited to 6 NYCRR part 613. An additional clarification is needed to specifically note that this will require compliance with unloading/loading provisions of the U.S. Hazardous Material Transportation Standards at 49 CFR part 177.8434as well as the obligation to report spills to the NYSDEC spills hotline and other provisions of the PBS regulation. The requirements of 49 CFR Part 177.843 specify that the transporter must ensure that the cargo tank truck is attended at all times during unloading by a “qualified person.” A person is “qualified” if they have been made aware of the nature of the hazardous material which is to be loaded or unloaded, they have been instructed on the procedures to be followed in emergencies, they are authorized to move the tank truck and has the means to do so. The transporter qualified person is considered to be attending the unloading operations if, throughout the process, they are alert and is within 25 feet of the tank truck .and must have an unobstructed view of the tank truck and delivery hose to the maximum extent practicable during the unloading operation.

NOTE:

Contractor’s delivery trucks SHALL BE EQUIPPED WITH CALIBRATED METERS with the exception of motor transport, to accurately measure quantities delivered. All deliveries must be accompanied by a Delivery Ticket showing Brand or Grade and Number of Gallons Delivered. Agencies may examine, upon request, a copy of the metered ticket showing gallons loaded into the vehicle making delivery.

Supplementing §31 Product Delivery and § 32 Weekend and Holiday Deliveries, of Appendix B, General Specifications, orders will call for delivery within a specified number of days after date of order. As much time as possible should be allowed to the Contractor (with consideration for the stipulated guaranteed delivery) for making deliveries; however, the Contractor shall be in a position to make bulk deliveries within 48 hours after receipt of order.

Contractor must be prepared, at all times, to make prompt delivery as ordered. In State declared emergencies, fuel must be delivered within eight (8) to twelve (12) hours of notification. Contractor must be prepared to deliver in a timely manner, on a one-time basis per Agency tank, that amount of fuel necessary to fill subject tanks for the purpose of tank testing conducted by OGS at various locations providing minimum order requirements are met.

(See Section 4.9 “MINIMUM ORDER”).

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Normal deliveries are considered to be Monday thru Friday. Saturday/Sunday deliveries are to be made on an emergency basis (and not a regular basis) ONLY.

Contractor’s fuel delivery trucks shall be equipped with tight fill connections for those facilities with compatible appurtenances. On any tanks installed through the OGS Tank Modification Program, a 2-inch dry disconnect female fitting shall be required for the contractor to connect to the fill port.

Deliveries shall be made in accordance with petroleum bulk storage regulations including but not limited to 6 NYCRR Part 613, or latest revisions thereof.

Agencies shall be responsible to ensure that tanks are accessible by the Contractor, and it is strongly advised that an agency representative be present during the delivery.

Agencies are responsible for the implementation of monitoring programs to ensure compliance by gasoline suppliers with the specification requirements as outlined herein and in CL-804 dated July 7, 2014.

3.4 Topping Off Tanks

Agency requests to top-off tanks for testing purposes must be honored as described elsewhere herein. The requesting agency may be required to sign a waiver of liability and responsibility on behalf of the Contractor.

Contractor must maintain service facilities and have trained personnel qualified to service the product furnished at the using agency within 48 hours.

3.5 Trade Names

For convenience of ordering, delivering and servicing gasoline and E-85 under the contract, Contractor shall state the trade name for the gasoline offered under each type. Such trade name, however, shall not in any way set aside the requirement of compliance with specifications.

3.6 Automatic Replenishment

Requests for automatic replenishment are preferred in WRITING from an Authorized User, and may be required by the Contractor. Subsequent WRITTEN notification back from the Contractor, will establish automatic replenishment for tanks equal to or larger than 1,000 gallons.

Automatic replenishment for tank capacities less than 1,000 gallons will be at the Contractor’s option. If an Authorized User has not received written notification for automatic replenishment from the Contractor, a minimum order charge may apply (see Section 4.9 Minimum Order).

Determination for total gross tank capacity shall include all manifolded tanks.

If the Contractor, after having accepted the request from an Authorized User and provided written notification back to the Authorized User for automatic replenishment, permits the level of the fuel to fall below the percentages of the total capacity of the purchaser’s tank or tanks indicated in the following table, the purchaser shall have the right to purchase sufficient fuel on the open market to fill such tank or tanks and to charge any increase in price paid over the current contract price to the account of the Contractor.

MINIMUM LEVEL TOTAL TANK CAPACITY/GALS

10% 500 TO 5,500

15% 5,501 – AND OVER

The minimum order size of 500 gallons stipulated in Section 4.9 Minimum Order shall not apply to deliveries being made to Authorized Users on an automatic delivery schedule as the Contractor controls the frequency, delivery dates, and quantities of the deliveries being made.

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3.7 Requirements - Gasoline, Unleaded Formula (Conventional & OPRG (E) Types)

The gasoline/s provided shall be volatile hydrocarbon fuels, free from water, suspended matter, and shall conform to ASTM Standard D4814-18 and its annexes, appendixes, or latest revision/s thereof.

3.8 Octane Requirements - Unleaded Formula (Conventional, OPRG (E) & E-85 Types)

The Octanes specified herein shall be provided throughout the calendar year regardless of monthly climate changes and shall be determined by:

RON + MON :

Engine grade/application requirement MON (minimum) (RON + MON)/2 (minimum) Regular grade unleaded gasoline: (REG) 82 87 Mid-range grade unleaded gasoline: (MID) 82 89 Premium grade unleaded gasoline: (PREM) 82 91 E-85 96

3.9 Gasoline Volatility Class (Conventional & OPRG (E) Types)

All gasoline shall comply with Federal regulation, U.S. EPA, Clean Air Act (CAA) - 1990, Title 40 of Code of Federal Regulations (40CFR) and New York State regulations [6NYCRR, Subpart 225-3.3] for Reid Vapor Pressure and Volatility Class [as defined under ASTM D4814-18, Tables 1 and 2 and Seasonal Volatility Classes, as per Table 4], or latest amendment thereof, at its seasonal time of delivery.

3.10 General Requirements, Unleaded Formula (Conventional & OPRG (E) Types)

All fuel supplied under this Contract shall be provided in full accordance with New York Code of Rules and Regulations (NYCRR), Title 6 Environmental Conservation Law, Chapter III Air Resources, Subchapter A, Part 225, (Statutory Authority: New York State Law, Article 19, Title 3, Section 19-0301, NYS Dept. of Environmental Conservation); Agriculture. & Markets. 1NYCRR, Part 224; and meet/exceed the requirements of Title 40 of the Code of Federal Regulations (40 CFR) Sections 40CFR52 through 40CFR86. This requirement includes the providing of appropriate records at the time of gasoline delivery.

Contractor must keep all records pertaining to this contract, including delivery tickets, purchase orders etc., for the year of the transaction and for six years thereafter. Contractor must also provide a copy of the written certifications to the agency representative at the time of order or purchase for Reid Vapor pressure, fuel content.

Volatility classes as defined under ASTM D4814-18, Tables 1, 2, and 4, and quality, etc. or latest version thereof, which they must receive from their refiner or distributor pursuant to 1 NYCRR Part 224.

3.11 Limits, Unleaded Gasoline (All Types)

The maximum ethanol content shall be ten (10%) percent by volume [equivalent to three and seven tenths (3.7%) percent oxygen by weight]. To be considered for a one (1 psi) pound per square inch increase in Reid vapor pressure, the gasoline/s must have a nine (9%) to ten (10%) percent ethanol content by volume and Contractor must provide copies of the State, NYS/DEC, approval/s when the State’s requirement is stricter.

3.12 General Requirements, Unleaded Gasoline OPRG (E)

OPRG (E) gasolines shall be manufactured by EPA registered producer or supplied via a registered importer.

Additionally, all OPRG (E) gasoline supplied under this Contract shall be certified under 40\CFR Section 80.40 to meet the standards and requirements prescribed within Section 80.41. Additive packages for OPRG (E) gasoline shall comply with the standards and be certified on a stand-alone basis.

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Contractor shall provide documentation confirming registration and certification details for each OPRG (E) gasoline at the Bid opening, or as the registered, certified, fuels become available within EPA guidelines.

If Contractor cannot document registration & certification requirements, then the State reserves the right to consider the next ranking Bidder under the Solicitation qualified to supply the OPRG (E) type for period of supply that is required. When an existing certification is found by EPA to be non-conforming product, then the EPA reserves the right to revoke that certification. If a certification is revoked the Contractor shall immediately discontinue use of that OPRG (E) gasoline and notify the NYS OGS purchasing officer. Documentation for a replacement formulation shall also be provided to OGS. If certification is not provided, OGS will act to ensure a replacement formulation via another contractor within the terms of the Solicitation.

Additionally, when the Contractor is supplying only OPRG (E) gasoline for an area which is designated as requiring only conventional gasoline, then the State reserves the right to consider the next ranked Bidder under the Solicitation that is qualified/offering to supply the conventional gasoline to that area for the balance of the period of supply that is required.

3.13 Reformulated Gasoline, OPRG Type for the NYC-CMSA Requirements

Gasoline, OPRG Type Reformulated (Alcohol/Ether/Oxygenated Blends)

This section of the detailed specification shall describe the Oxygenated fuels Program Reformulated (OPRG) Gasolines including the following: gasoline-alcohol, gasoline-ether, and gasoline-oxygenate blend(s) (of) fuel(s), or combination blends thereof which are formulated for use in the New York City CMSA, or other designated [severe non-attainment] MSA’s (if any). These blends SHALL NOT be supplied or offered for the conventional or reformulated gasoline specified elsewhere herein, except as superseded by Federal & State regulation. Its use shall be limited to the counties specified hereinafter. ASTM Test Method D4815-15b, or latest version thereof shall be used to determine ether and oxygenate content of the fuel, until it is replaced or updated by the U.S. EPA test method (i.e., final rule action).

Alcohol-ether-blend/oxygenated OPRG gasoline shall meet or exceed the requirements stated previously herein for Conventional Unleaded Formula Gasoline and its own specific requirements as stated hereinafter.

3.14 Distribution, Gasoline, OPRG Type Reformulated (Alcohol/Ether/Oxygenated Blends)

Per Federal and State regulation, oxygenated (OPRG) gasoline shall be provided in the New York City Consolidated Metropolitan Statistical Area (New York City CMSA), and all other non-attainment area(s) that Filed Requirements for OPRG (E), if applicable.

As of the closing of filed requirements, these control/distribution areas shall include the following counties:

New York City CMSA and other non-attainment area(s):

• Bronx

• Dutchess

• Kings

• Nassau

• New York

• Orange

• Putnam

• Queens

• Richmond

• Rockland

• Suffolk

• Westchester

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The control/distribution areas serviced by this Contract/specification shall be amended as required to comply with the latest revision of Federal regulation, U.S. EPA, Clean Air Act (CAA) - 1990, Title 40 of Code of Federal Regulations (40CFR), or latest amendment thereof, and State regulation, NYCRR, Title 6, Chapter III, Subchapter A, Part 225; and Agriculture. & Markets. 1NYCRR, Part 224.

3.15 OPRG (E) Type Gasoline, for the Ozone Non-Attainment Areas

Gasoline, OPRG (E) Type Product provided shall be in accordance with ASTM D4814-18, Section 3 Terminology, ASTM D4815-15b (when applicable), or latest version(s) thereof and as defined in Section 1.5 Definitions.

3.16 Requirements, Gasoline, Type Reformulated

This section of the detailed specification shall describe the OPRG (E) Gasolines which shall meet the emissions reduction for 2000 and beyond using the applicable formula standard/s stated in 40\CFR Section 80.41.

OPRG (E) gasoline shall meet or exceed the requirements stated previously herein for Conventional & OPRG (E) Unleaded Gasoline and its own specific requirements as stated hereinafter.

However, the State reserves the right to adjust quantities and establish (adjust via contractual terms elsewhere within the specifications of this Contract) the pricing for these blends as they become available in the specified counties (or others).

The control/distribution areas serviced by this Contract/specification shall be amended as required to comply with the latest revision of Federal regulation, U.S. EPA, Clean Air Act (CAA) - 1990, Title 40 of Code of Federal Regulations (40CFR), Part 80 Regulation of Fuels & Fuel Additives, Standards for OPRG(E) & Conventional Gasoline, (Final Rule), or latest amendment thereof; and State regulations: Title 6, NYCRR, Chapter III, Subchapter A, Part 225; and Agriculture. & Markets. 1NYCRR, Part 224

3.17 Requirements – E-85 (Table)

ASTM D5798-17 STANDARD SPECIFICATION FOR FUEL ETHANOL (Ed75-Ed85)

FOR AUTOMOTIVE SPARK-IGNITION ENGINES

PROPERTY VALUE FOR CLASS TEST METHOD

ASTM volatility class* 1 2 3 N/A

Ethanol, plus higher alcohols (minimum, volume

79 74 70 ASTM D5501-12(2016)

Hydrocarbons (including denaturant)/ (volume %) 17-21 17-26 17-30 ASTM D4815-15b

Vapor pressure at 37.8°C kPa psi 38-59 5.5-8.5

48-65 7.0-9.5

66-83 9.5-12.0

ASTM D4953-15,

D5191-15

Lead (maximum, mg/L) 2.6 2.6 3.9 ASTM D5059-14

Phosphorus (maximum, mg/L) 0.3 0.3 0.4 ASTM D3231-13

Sulfur (maximum, mg/kg) 210 260 300 ASTM D3120-08 (2014), D1266-13, D2622-16

Methanol (maximum, volume %) 0.5 N/A

Higher aliphatic alcohols, C3-C8 (max., volume %) 2 N/A

Water (maximum, mass %) 1.0 ASTM E203-16

Acidity as acetic acid (maximum, mg/kg) 50 ASTM D1613-17

Group 05600 – Gasoline and E-85 (Statewide) PAGE 15

Inorganic chloride (maximum, mg/kg) 1 ASTM D512-12, D2988- 96 (2015)

Total chlorine as chlorides (maximum, mg/kg) 2 ASTM D4929-17

Gum, unwashed (maximum, mg/100 mL) 20 ASTM D381-12 (2017)

Gum, solvent-washed (maximum, mg/100 mL) 5.0 ASTM D381-12 (2017)

Copper (maximum, mg/L) 0.07 ASTM D1688-17

Appearance

N/A = Not applicable

Product shall be visibly free of suspended or precipitated contaminants (shall be clear and bright).

Appearance determined at ambient temperature or 21°C (70°F), whichever is higher.

Octane (R+M)/2 Minimum of 96 for E-85

*For seasonal and geographic volatility specifications for E-85 reference specification ASTM D5798-17, or latest version thereof.

3.18 Related Requirements for Storage, Transfer, & Wholesale Purchaser-Consumer Posting

Tanks/S (Storage), Gasoline-Alcohol Blend

The storage tank(s) for gasoline-alcohol blend fuel shall be clean the first time this blend of fuel is placed in the tank. The tank shall be new or cleaned [all water and precipitated-accumulated material (i.e., dyes, lacquers, varnishes, gums, etc.) shall be removed from the tank]. This tank cleaning shall be provided in full compliance with 1NYCRR, Subpart 224.8.

3.19 Labels

The Contractor shall provide fuel content labels/signs for each pumping station.

These labels shall identify significant amounts of alcohols in the fuel and satisfy the requirements of 1NYCRR, Part 224 and 6NYCRR, Part 225. An environmental awareness decal/label shall be provided and displayed on each affected pump.

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4. TERMS AND CONDITIONS

4.1 Contract Term and Extensions

The Contract shall be in effect for a term of up to two (2) years. The Contract term shall commence after all necessary approvals and shall become effective December 13, 2024, or upon the date of OSC approval of the final executed documents, whichever is later, and the Contract term shall end on December 10, 2026, or Two (2) years from the date of OSC approval, whichever is later.

All OGS Centralized Contracts resulting from this Solicitation shall have a co-terminus end date. At the State’s option, the Contract may be extended for up to three (3) years, in increments as deemed to be in the best interest of the State. Whether the optional extensions are exercised is at the sole discretion of the State. A Contractor shall retain the right to decline a Contract extension offered under this section. Any Contract extension will be under the same terms and conditions, subject to the approval of OSC and any additional applicable statutory and policy requirements. Any extensions provided under this section shall apply in addition to any rights set forth in Appendix B, Contract Term – Extension.

The Contract term provided for in this section shall extend 6 months beyond its termination date only for Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. During the 6-month period the definition of Authorized User shall be deemed to refer only to Authorized Users whose contracts must be registered with the Office of the New York City Comptroller. This extension is in addition to any other extensions available under the Contract. The extension provided for in this paragraph shall be upon the then-existing terms and conditions; provided, however, during such extension an Authorized User, as defined in this paragraph, may agree to amend such terms and conditions solely to comply with changes in statutory requirements (e.g. changes in minimum, prevailing or living wages, or regulated services).

4.2 Short term Extension

This section shall apply in addition to any rights set forth in Appendix B Contract Term – Extension. In the event that OGS determines that a short term extension is in the best interests of the State, (e.g., a replacement Contract has not been issued, or an extended period is needed for Authorized Users to transition to another procurement method), this Contract may be extended unilaterally by the State for an additional period of up to 90 days upon notice to the Contractor with the same terms and conditions as the original Contract and any previously approved modifications. With the concurrence of the Contractor, the extension may be for a period of up to 6 months in lieu of 90 days. However, unless otherwise noted in the extension notification or agreement, this extension automatically terminates should a replacement contract be issued in the interim.

4.3 Price

Pricing will be shown on Attachment 1 – Pricing.

Prices quoted shall be billed net per gallon, F.O.B. Authorized User storage tanks, including all applicable customs, duties, taxes (e.g., Superfund), including LUST, license fees and surcharges, and as designated by the ordering Authorized User. Bid prices must be expressed in U.S. currency and shall be submitted up to four (4) decimal places (priced in dollars per gallon).

Pricing for Contract purchases shall be based on the pricing in effect at the time the Authorized User places the order. Authorized Users that are on automatic delivery, shall be priced on the day of delivery, unless the Authorized User requests a separate delivery from their automatic delivery schedule. The price shall then reflect the day of the order for the separate delivery.

It shall be the Contractor's responsibility to satisfy Authorized User requirements by furnishing blended product when called for during the time period indicated in this Contract.

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Contractor may extend allowances during the term of the Contract to Federal, State, Local Governments or to commercial users in the normal course of doing business, and New York State requires that such allowances will also be available to the State in the maximum amount extended to others who contract to purchase fuel under similar contractual terms and conditions. Contract prices shall be firm except that price revisions shall be permitted in accordance with the PRICE REVISIONS clause and with respect to certain taxes and duties as follows:

"After-imposed tax" means any new or increased Federal, State and local excise tax or duty, except social security or other employment taxes, on fuel purchased under this Contract which the Contractor is required to pay or bear the burden of as the result of legislative, judicial, or administrative action taking effect after the date of Contract award.

"After-relieved tax" means any amount of Federal, State and local excise tax or duty, except social security or other employment taxes, that would otherwise have been payable on fuel purchased under the Contract which the Contractor is not required to pay or bear the burden of, or for which the Contractor obtains a refund or drawback, as the result of legislative, judicial or administrative action taking effect after the date of Contract award.

The Contract price shall include all applicable customs, duties, taxes, license fees and surcharges as stated in Appendix B, Section 8 Taxes.

NOTE: The State of New York and its political subdivisions are exempt from New York State and local sales taxes and federal excise taxes.

The price for fuel under this Contract shall be increased by the amount of any after-imposed tax, unless the legislative, judicial or administrative act says otherwise, if the Contractor states in writing that such Contract price does not include any contingency for such after-imposed tax. Such increase shall be prospective only and becomes effective upon such written notice and on the effective date of the next scheduled price revision.

The price for fuel under this Contract shall be decreased by the amount of any after-relieved tax. Such decrease shall be effective when realized or by no later than the next scheduled price revision.

The Contract price shall also be decreased by the amount of any excise tax or duty, except social security or other employment taxes that the Contractor is required to pay or bear the burden of or does not obtain a refund of through the Contractor's fault or negligence.

The Contractor shall promptly notify the Procurement Services Contract Management Specialist of all matters relating to any excise tax or duty that reasonably may be expected to result in either an increase or decrease in the contract price for gasoline.

4.4 Price Updates

Contract prices shall be firm except that price revisions will be permitted in accordance with the following procedure: Revisions to the original Contract price shall be based on prices published in the OPIS (OIL PRICE INFORMATION SERVICE) Weekly Published Newsletter as indicated in the chart below. The weekly average of the daily high and low prices shown in the publication for each of the three-conventional unleaded gasoline fuel types, RBOB, Pre-RBOB and Ethanol will be used to compute price revisions during the contract period.

Location in OPIS Newsletter Fuel Weekly Averages Spot Report location

Page 2 – In Cash Markets Northeast Reg Unl Linden Weekly Average Page 2 – In Cash Markets Northeast Mid Unl Linden Weekly Average Page 2 – In Cash Markets Northeast Pre Unl Linden Weekly Average Page 2 – In Cash Markets Northeast RBOB NY Harbor Barge Weekly Average Page 2 – In Cash Markets Northeast Pre RBOB NY Harbor Barge Weekly Average Page 10 – Spot Market Prices Ethanol New York

Please note: base prices were calculated using the following methods using the information from OPIS (OIL PRICE INFORMATION SERVICE) Weekly Published Newsletter (June 3, 2024 Vol. 46, No. 23):

Group 05600 – Gasoline and E-85 (Statewide) PAGE 18

• Conventional gasoline base prices are the published Linden Weekly Averages.

• OPRG (E) Gas Regular base price is calculated by taking 90% of the RBOB value and adding it to 10% of the ethanol value.

• OPRG (E) Gas Mid Range base price is calculated by taking 90% of the average of RBOB and Pre

RBOB and adding it to 10% of the ethanol value.

• OPRG (E) Gas Premium base price is calculated by taking 90% of Pre RBOB value and adding it to 10% of the ethanol value.

• E-85 base price is calculated by taking 15% of Conventional Gas Regular value and adding it to 85% of the ethanol value.

Procurement Services will compute any price revisions by determining the difference between the weekly average of the daily high and low prices (base prices) published in the Cash Markets – Weekly Average Spot Report on June 3, 2024 and the weekly average of the daily high and low prices published on Monday every week during the Contract period beginning with the publication on December 23, 2024 or the publication immediately following the start date of the Contract, whichever occurs first. This differential (adjustment) + or - will be added to the base bid prices. Applicable price changes will be effective as of the start of business on the Friday immediately preceding the day of publication. Generally, the weekly average published in OPIS represents a 5-day average of high and low prices; however, as holidays occur which would eliminate a given daily range of prices, the weekly average may represent less than a 5-day average. Regardless of the number of days represented in the weekly average, the published weekly average will be utilized as the basis for price revisions. Final price shall be calculated by applying the above stated price revision to the base bid price.

The State reserves the right to change to a daily, bi-weekly or monthly schedule in price revisions if the market conditions so warrant.

Should postings become unavailable or differ from current description and/or format, a posting determined by the Commissioner of the Office of General Services in their sole discretion, to be most reflective of market conditions, will be used.

Corrections to posted prices previously published will be considered when caused by a typographical or clerical error on the part of said publisher.

The following clauses shall apply to all price adjustments under any contract awarded:

(1) Price increases are limited to changes in pre-selected postings as noted above. Increases in Contract costs or prices to compensate for other increases in the cost of doing business, regardless of where such cost increases are attributable, will not be allowed during the Contract period.

(2) The EPA has determined that gasoline sold in certain counties: Bronx, Dutchess, Essex (portion of), Kings, Nassau, New York, Orange, Putnam, Queens, Richmond, Rockland, Suffolk, and Westchester [in the New York City Consolidated Metropolitan Statistical Area (CMSA)], are subject to regulations mandating the use of OPRG(E) gasoline. Recognizing that pricing differentials occur on a regular basis; the State will incorporate the following methodology in the determination of the weekly price revision in the following examples.

EXAMPLE: METHODOLOGY FOR RBOB AND ETHANOL ADJUSTMENTS

(OPRG (E) UNLEADED FUEL TYPES)

Posted Date: (hypothetical) June 3, 2024 RBOB x .90 + Ethanol x .10 = Blended Average

2.4649 x .90 = 2.2184(1)

1.9206 x .10 = 0.1920(6)

Blended Average

2.2184 + 0.1920 = 2.4104

Posted Date: (Hypothetical) August 19, 2024 RBOB x .90 + Ethanol x .10 = Blended Average

2.4314 x .90 = 2.1883(6)

1.9150 x .10 = 0.1915(0)

Group 05600 – Gasoline and E-85 (Statewide) PAGE 19

Blended Average

2.1883 + 0.1915 = 2.3798

ADJUSTMENT CALCULATION

August 19, 2024 Blended Average ± June 3, 2024 Base Blended Average = Adjustment

2.3798 – 2.1405 = +.2393*

*This figure being a positive number will be added to the base Bid price. If the figure is a negative number, it would be subtracted from the base Bid price. For the OGS web based posted pricing this adjustment will be added or subtracted to the base Bid price.

EXAMPLE: METHODOLOGY FOR E-85 ADJUSTMENTS

Posted Date: (Hypothetical) June 3, 2024 Regular Unleaded x .15 + Ethanol x .85 = Blended Average

2.4575 x .15 = .3686(2)

1.9206 x .85 = 1.6325(1)

Blended Average .3686 + 1.6325 = 2.0011

Posted Date: (Hypothetical) August 19, 2024 Regular Unleaded x .15 + Ethanol x .85 = Blended Average

2.4024 x .15 = .3604(6)

1.9150 x .85 = 1.6277(5)

Blended Average .3604 + 1.6277 = 1.9881

ADJUSTMENT CALCULATION

August 19, 2024 Blended Average ± June 3, 2024 Base Blended Average = Adjustment

1.9881 – 2.0011 = -.0130*

*This figure being a negative number will be subtracted from the base Bid price. If the figure is a positive number it would be added to the base Bid price. For the OGS web based posted pricing this adjustment will be added or subtracted to the base Bid price.

ALL FIGURES ARE TRUNCATED TO FOUR DECIMAL PLACES IN DOLLARS PER GALLON.

(3) Contractor shall designate for its…