SC035_Contract_Mansfield_Execut.pdf

ELECTRONIC FUEL DISPENSING & FLEET CREDIT CARD PROCESSOR

MASTER CONTRACT # 035

1. PARTIES

The parties to this Master Contract (Contract) are the state of North Dakota, acting through its North Dakota Department of Transportation (NDDOT) State Fleet Services in conjunction with the North Dakota State Procurement Office (STATE), and Mansfield Oil Company having its principal place of business at 1025 Airport Pkwy SW, Gainesville, GA 30501 (CONTRACTOR);

2. DEFINITIONS

a. Participating Entity means an entity (such as a political subdivision), considered eligible by meeting the requirements of section 4 “Cooperative Purchasing” listed in this Contract, who has indicated its intent to participate in this Contract by signing a Participating Addendum (Exhibit A) with the consent of its State Procurement Official.

b. Participating Addendum means a bilateral agreement executed by the CONTRACTOR and a Participating Entity (with the consent of its State Procurement Official) that clarifies the operation of the price agreement for the Participating Entity concerned (e.g. procedures or equipment specific to the Participating Entity) and may add other Participating Entity-specific language or other requirements. Participating Entities shall complete Exhibit A (Participating Addendum Template) and provide an executed Participating Addendum to the State Contract Manager prior to receipt of the commodities and services provided through this Contract.

c. State Contract Manager means the STATE’s designated Procurement Officer who will manage and approve any modifications throughout this Contract.

3. SCOPE OF WORK

CONTRACTOR, in exchange for the compensation paid by STATE under this Contract, agrees to provide the following:

CONTRACTOR, in exchange for the compensation paid by STATE or Participating Entity under this Contract, must perform all services and provide all deliverables related to electronic fuel dispensing and fleet credit card processor as set forth in the State of North Dakota Request for Proposal (RFP) 110.7-19.067, Mansfield Oil Company’s technical and cost proposal response (dated December 8, 2019), Mansfield Oil Company’s Best and Final Offer (BAFO) response (dated February 5, 2020), and Exhibits B and C, hereby incorporated and made part of this Contract by reference.

4. COOPERATIVE PURCHASING

This contract is a cooperative purchasing contract established pursuant to N.D.C.C § 54-44.4-13. This contract is made available to state entities, institutions under the jurisdiction of the State Board of Higher Education, other government entities (including counties, cities, townships, public primary and secondary educational entities, governmental boards and commissions), nonprofit entities established on behalf of public entities, tribal agencies, transportation providers under N.D.C.C § 39-04.2, and the International Peace Garden (hereafter known as “Ordering Agencies”). Participation in this open-ended Contract is not mandated; therefore, the estimated volume of this Contract is not known.

CONTRACTOR may contact the State Contract Manager for assistance in determining whether an entity is eligible to purchase under this Contract. Participating Entities shall complete Exhibit A (Participating Addendum Template) and provide an executed Participating Addendum to the State Contract Manager prior to receipt of the commodities and services provided through this Contract.

http://www.legis.nd.gov/cencode/t54c44-4.pdf http://www.legis.nd.gov/cencode/t39c04-2.pdf

5. COMPENSATION

STATE will pay for the services and deliverables provided by CONTRACTOR under this Contract accordingly:

Fuel Pricing: The retail fuel will consist of retail (actual cost) of product minus federal taxes plus a minimal administrative fee.

Fuel Type Gasoline E-10 Diesel – ULSD

Summer Diesel – ULSD Winter

Delivery Fee Per Gallon $0.1177 $0.1438 $0.2648

Bulk Adm. Processing Fee Per Gallon $0.0150 $0.0150 $0.0150

Retail Admin. Fee Per Gallon $0.0150 $0.0150 $0.0150

Bulk fuel pricing on gas and diesel are to be based on OPIS Fargo average daily contract pricing (for all sites in ND), supplied each morning.

Biodiesel purchasing for summer grade diesel will occur at levels administered by the STATE. The cost of those products over and beyond the cost of diesel fuel delivered without a biodiesel addition, will be billed at cost to the STATE as it occurs. This billing will occur on a monthly basis during the biodiesel blending season.

Diesel Exhaust Fluid (DEF):

Quantities (100-gallon minimum delivery) -

330 RSV

(delivered full)

275 RSV

(delivered full)

55 Gallon Drum (Minimum 2)

Bulk Delivery (per gallon)

DEF cost per gallon (Delivery included)

$1.6514 ($544.962 total)

$1.6514 ($454.135 total)

$175 per 55-gallon drum ($350 total)

$1.6514

*DEF freight is included in pricing of order of 100 gallons or more. Deliveries are requested to be made with a minimum of 100 gallons per order in order to prevent a $65 charge to the account for delivery of smaller quantities.

Percentage Markup: The STATE will make purchases using the CONTRACTOR’s credit card provided for the proposed fuel dispensing system for the purchase of miscellaneous vehicle supplies at commercial stations nationwide and repairs from numerous service garages and parts houses. The percentage markup is as follows:

Percentage markup with straight pass through (applicable federal tax exemption will be applied for purchases) 0%

Vehicle Maintenance Program: Upon implementation of the CONTRACTOR’s Vehicle Maintenance Program, the STATE will use the CONTRACTOR’s credit card for purchases under the program at commercial stations nationwide and repairs from numerous service garages and parts houses. The CONTRACTOR will implement the following cost per transaction as a straight pass-through to the STATE after the first full year of Vehicle Maintenance Program implementation in addition to the 0% markup for straight pass-through maintenance items:

Cost per transaction – after first full year of Vehicle Maintenance Program implementation (applicable federal tax exemption will be applied for purchases and 0% markup for straight pass-through maintenance items)

$1.00

Alternative Fuels: For purchases by the STATE of alternative fuels from retail locations, whereby level 3 data occurs, CONTRACTOR shall waive the cost-plus amount of $0.02 incorporating the applicable federal tax exemption. For purchases by the STATE of alternative fuels at a STATE site or motor pool site, the following cost-plus amount (incorporating the applicable federal tax exemption) applies to each alternative fuel gallon dispensed until an agreement for a fair pricing index is established for the alternative product requested:

Cost-Plus Amount (incorporating the applicable federal tax exemption) for Alternative Fuel Purchases at STATE sites or Motor Pool Site locations:

$0.02 cost per gallon

Maintenance and Environmental Testing Services: For purchases by the STATE for maintenance and environmental testing services, the CONTRACTOR shall charge a cost-plus percentage of standard industry rates and incorporate the applicable federal tax exemption. The cost-plus percentage of standard industry rates is as follows:

Cost-Plus Percentage (excluding tax) for maintenance and environmental testing services as described in requirement B, Fuel Dispensing Services, of section 3.3, Scope of Work:

15%

Pricing Mechanisms: When the STATE enters into advantageous pricing mechanisms provided by the CONTRACTOR for lower priced fuel products, these mechanisms shall be subject to the terms of this Contract and the additional terms and conditions listed in Exhibit C, Pricing Mechanisms – Additional Terms and Conditions.

Fuel Tank Inspection and Cleaning Services: Fuel tank inspection and cleaning services, if requested by the STATE, shall be charged at the following rates per site listed in the table below:

Site

LOCATION

EA

FUEL

TYPE

TANK TYPE

PRICE

Capital Motor Pool Fleet Services

Gas

Cathodically protected steel (Underground.) 10,000 Gal $5,500.00

Sub-total Site 1 $5,500.00

2 Bismarck District 1 Gas Fireguard double walled (Aboveground.) 12,000 Gal $4,460.00

1 Diesel Fireguard double walled (Aboveground.) 12,000 Gal $4,460.00

Sub-total Site 2 $8,920.00

3 Devils Lake District 1 Diesel Double wall steel storage (Above ground) 10,000 Gal $5,800.00

Sub-total Site 3 $5,800.00

4 Dickinson District 1 Gas Fiberglass reinforced plastic (Underground.) 10,000 Gal $4,135.00

1 Diesel Fiberglass reinforced plastic (Underground.) 10,000 Gal $4,135.00

Sub-total Site 4 $8,270.00

5 Fargo District 1 Gas Fiberglass reinforced plastic (Underground.) 10,000 Gal $4,135.00

1 Diesel Fiberglass reinforced plastic (Underground.) 10,000 Gal $4,135.00

Sub-total Site 5 $8,270.00

Grand Forks District

Fireguard double walled (Aboveground.) 10,000 Gal $4,135.00

1 Diesel Fireguard double walled (Aboveground.) 10,000 Gal $4,135.00

Sub-total Site 6 $8,270.00

7 Minot District 1 Gas Fiberglass reinforced plastic (Underground.) 10,000 Gal $4,135.00

1 Diesel Fiberglass reinforced plastic (Underground.) 10,000 Gal

Sub-total Site 7 $8,270.00

8 Valley City District 1 Gas Fiberglass reinforced plastic (Underground.) 10,000 Gal

1 Diesel Fiberglass reinforced plastic (Underground.) 10,000 Gal

Sub-total Site 8 $8,270.00

Jamestown Section

Valley City District

Double wall steel storage (Above ground) 10,000 Gal $4,135.00

1 Diesel Double wall steel storage (Above ground) 10,000 Gal

Sub-total Site 9 $8,270.00

10 Williston District 1 Gas Fireguard double walled (Aboveground.) 12,000 Gal $4,460.00

1 Diesel Fireguard double walled (Aboveground.) 12,000 Gal $4,460.00

Sub-total Site 10 $8,920.00

a. Payment

1) Payment made in accordance with this Compensation section shall constitute payment in full for the services and work performed and the deliverables and work(s) provided under this Contract and CONTRACTOR shall not receive any additional compensation hereunder.

2) STATE shall make payment under this Contract within forty-five (45) calendar days after receipt of a correct invoice.

3) Payment of an invoice by STATE will not prejudice STATE’s right to object to or question that or any other invoice or matter in relation thereto. CONTRACTOR's invoice will be subject to reduction for amounts included in any invoice or payment made which are determined by STATE, based on audits conducted in accordance with the terms of this Contract, not to constitute allowable costs. At STATE’s sole discretion, all payments shall be subject to reduction for amounts equal to prior overpayments to CONTRACTOR.

4) For any amounts that are or will become due and payable to STATE by CONTRACTOR, STATE reserves the right to deduct the amount owed from payments that are or will become due and payable to CONTRACTOR under this Contract.

b. Travel CONTRACTOR acknowledges travel costs are covered by the Contractual Amount and shall not invoice STATE for travel costs.

c. Prepayment STATE will not make any advance payments before performance by CONTRACTOR under this Contract.

d. Payment of Taxes by STATE STATE is not responsible for and will not pay local, state, or federal taxes. STATE sales tax exemption number is E 2001. STATE will furnish certificates of exemption upon request by the

CONTRACTOR.

e. Taxpayer ID CONTRACTOR’S federal employer ID number is: 58-1091383.

6. TERM OF CONTRACT

This Contract begins on July 1, 2020 or its effective date and ends on June 30, 2022.

a. No Automatic Renewal This Contract will not automatically renew.

b. Extension Option STATE reserves the right to extend the Contract for an additional period of time, not to exceed twelve (12) months, beyond the current termination date of the Contract.

c. Renewal Option STATE may renew this Contract upon satisfactory completion of the initial Contract term.

STATE reserves the right to execute up to four (4) options to renew this Contract under the same terms and conditions for a period of twenty-four (24) months each.

7. TERMINATION

a. Termination by Mutual Agreement

This Contract may be terminated by mutual consent of both parties executed in writing.

b. Early Termination in the Public Interest STATE is entering into this Contract for the purpose of carrying out the public policy of the State of the North Dakota, as determined by its Governor, Legislative Assembly and Courts. If this Contract ceases to further the public policy of the State of North Dakota, STATE, in its sole discretion, by written notice to the CONTRACTOR, may terminate this Contract in whole or in part.

c. Termination for Lack of Funding or Authority STATE by written notice to CONTRACTOR, may terminate the whole or any part of this Contract under any of the following conditions:

1) If funding from federal, state, or other sources is not obtained and continued at levels sufficient to allow for purchase of the services or supplies in the indicated quantities or term.

2) If federal or state laws or rules are modified or interpreted in a way that the services are no longer allowable or appropriate for purchase under this Contract or are no longer eligible for the funding proposed for payments authorized by this Contract.

3) If any license, permit, or certificate required by law or rule, or by the terms of this Contract, is for any reason denied, revoked, suspended, or not renewed.

Termination of this Contract under this subsection is without prejudice to any obligations or liabilities of either party already accrued prior to termination.

d. Termination for Cause

STATE may terminate this Contract effective upon delivery of written notice to CONTRACTOR, or any later date stated in the notice:

1) If CONTRACTOR fails to provide services required by this Contract within the time specified or any extension agreed to by STATE; or

2) If CONTRACTOR fails to perform any of the other provisions of this Contract, or so fails to pursue the work as to endanger performance of this Contract in accordance with its terms.

The rights and remedies of STATE provided in this subsection are not exclusive and are in addition to any other rights and remedies provided by law or under this Contract.

8. FORCE MAJEURE

Neither party shall be held responsible for delay or default caused by fire, riot, terrorism, acts of God or war if the event is beyond the party’s reasonable control and the affected party gives notice to the other party promptly upon occurrence of the event causing the delay or default or that is reasonably expected to cause a delay or default.

9. INDEMNIFICATION

CONTRACTOR agrees to defend, indemnify, and hold harmless the state of North Dakota, its agencies, officers and employees (STATE), from and against claims based on the vicarious liability of the STATE or its agents, but not against claims based on the STATE’s contributory negligence, comparative and/or contributory negligence or fault, sole negligence, or intentional misconduct. This obligation to defend, indemnify, and hold harmless does not extend to professional liability claims arising from professional errors and omissions. The legal defense provided by CONTRACTOR to the STATE under this provision must be free of any conflicts of interest, even if retention of separate legal counsel for the STATE is necessary. Any attorney appointed to represent the STATE must first qualify as and be appointed by the North Dakota Attorney General as a Special Assistant Attorney General as required under N.D.C.C. § 54-12-08. CONTRACTOR also agrees to reimburse the STATE for all costs, expenses and attorneys' fees incurred if the STATE prevails in an action against CONTRACTOR in establishing and litigating the indemnification coverage provided herein. This obligation shall continue after the termination of this agreement.

10. INSURANCE

CONTRACTOR shall secure and keep in force during the term of this agreement and CONTRACTOR shall require all subcontractors, prior to commencement of an agreement between CONTRACTOR and the subcontractor, to secure and keep in force during the term of this agreement, from insurance companies, government self-insurance pools or government self-retention funds, authorized to do business in North Dakota, the following insurance coverages:

a) Commercial general liability, including premises or operations, contractual, and products or completed operations coverages (if applicable), with minimum liability limits of $1,000,000 per occurrence.

b) Automobile liability, including Owned (if any), Hired, and Non-Owned automobiles, with minimum liability limits of $250,000 per person and $1,000,000 per occurrence.

c) Workers compensation coverage meeting all statutory requirements. The policy shall provide coverage for all states of operation that apply to the performance of this contract.

d) Employer’s liability or “stop gap” insurance of not less than $1,000,000 as an endorsement on the workers compensation or commercial general liability insurance.

e) Professional errors and omissions with minimum limits of $1,000,000 per claim and in the aggregate, CONTRACTOR shall continuously maintain such coverage during the contract period and for three years thereafter. In the event of a change or cancellation of coverage, CONTRACTOR shall purchase an extended reporting period to meet the time periods required in this section.

The insurance coverages listed above must meet the following additional requirements:

a) Any deductible or self-insured retention amount or other similar obligation under the policies shall be the sole responsibility of the CONTRACTOR. The amount of any deductible or self-retention is subject to approval by the STATE.

b) This insurance may be in policy or policies of insurance, primary and excess, including the so-called umbrella or catastrophe form and must be placed with insurers rated “A-” or better by A.M. Best Company, Inc., provided any excess policy follows form for coverage. Less than an “A-” rating must be approved by the STATE. The policies shall be in form and terms approved by the STATE.

c) The duty to defend, indemnify, and hold harmless the STATE under this agreement shall not be limited by the insurance required in this agreement.

d) The state of North Dakota and its agencies, officers, and employees (STATE) shall be endorsed on the commercial general liability policy on a primary and noncontributory basis, including any excess policies (to the extent applicable), as additional insured. The STATE shall have all the benefits, rights and coverages of an additional insured under these policies that shall not be limited to the minimum limits of insurance required by this agreement or by the contractual indemnity obligations of the CONTRACTOR.

e) A “Waiver of Subrogation” waiving any right to recovery the insurance company may have against the STATE.

f) The CONTRACTOR shall furnish a certificate of insurance to the undersigned STATE representative prior to commencement of this agreement. All endorsements shall be provided as soon as practicable.

g) Failure to provide insurance as required in this agreement is a material breach of contract entitling the STATE to terminate this agreement immediately.

h) CONTRACTOR shall provide at least 30-day notice of any cancellation or material change to the policies or endorsements. CONTRACTOR shall provide on an ongoing basis, current certificates of insurance during the term of the contract. A renewal certificate will be provided 10 days prior to coverage expiration. An updated, current certificate of insurance shall be provided in the event of any change to a policy.

11. WORKS FOR HIRE

CONTRACTOR acknowledges that all work(s) under this Contract is "work(s) for hire" within the meaning of the United States Copyright Act (Title 17 United States Code) and hereby assigns to STATE all rights and interests CONTRACTOR may have in the work(s) it prepares under this Contract, including any right to derivative use of the work(s). All software and related materials developed by CONTRACTOR in performance of this Contract for STATE shall be the sole property of STATE, and CONTRACTOR hereby assigns and transfers all its right, title, and interest therein to STATE.

CONTRACTOR shall execute all necessary documents to enable STATE to protect STATE’s intellectual property rights under this section.

12. WORK PRODUCT

All work product, equipment or materials created for STATE or purchased by STATE under this Contract belong to STATE and must be immediately delivered to STATE at STATE'S request upon termination of this Contract.

13. NOTICE

All notices or other communications required under this Contract must be given by registered or certified mail and are complete on the date mailed when addressed to the parties at the following addresses:

CONTRACTOR

NDDOT STATE FLEET

SERVICES

ND STATE PROCUREMENT

OFFICE

Josh Epperson Mike Gerhart Jamie Bostyan

Director, Government Services Director, NDDOT State Fleet Services

State Procurement Officer / State Contract Manager

1025 Airport Pkwy SW 608 E Boulevard Ave 14th Floor Capitol Tower 600 E Boulevard Ave, Dept 012

Gainesville, GA 30501 Bismarck, ND 58505-0700 Bismarck, ND 58505-0310 jepperson@mansfieldoil.com mgerhart@nd.gov jbostyan@nd.gov

(970) 333-1475 (701) 328-2543 (701) 328-4912

Notice provided under this provision does not meet the notice requirements for monetary claims against the State found at N.D.C.C. § 32-12.2-04.

14. CONFIDENTIALITY

CONTRACTOR shall not use or disclose any information it receives from STATE under this Contract that STATE has previously identified as confidential or exempt from mandatory public disclosure except as necessary to carry out the purposes of this Contract or as authorized in advance by STATE. STATE shall not disclose any information it receives from CONTRACTOR that CONTRACTOR has previously identified as confidential and that STATE determines in its sole discretion is protected from mandatory public disclosure under a specific exception to the North Dakota public records law, N.D.C.C. ch. 44-04.

The duty of STATE and CONTRACTOR to maintain confidentiality of information under this section continues beyond the term of this Contract.

15. COMPLIANCE WITH PUBLIC RECORDS LAWS

CONTRACTOR understands that, STATE must disclose to the public upon request any records it receives from CONTRACTOR. CONTRACTOR further understands that any records obtained or generated by CONTRACTOR under this Contract, except for records that are confidential under this Contract, may, under certain circumstances, be open to the public upon request under the North Dakota public records law. CONTRACTOR agrees to contact STATE promptly upon receiving a request for information under the public records law and to comply with STATE’s instructions on how to respond to the request.

16. INDEPENDENT ENTITY

CONTRACTOR is an independent entity under this Contract and is not a STATE employee for any purpose, including the application of the Social Security Act, the Fair Labor Standards Act, the Federal Insurance Contribution Act, the North Dakota Unemployment Compensation Law and the North Dakota Workforce Safety and Insurance Act. CONTRACTOR retains sole and absolute discretion in the manner and means of carrying out CONTRACTOR’S activities and responsibilities under this Contract, except to the extent specified in this Contract.

17. ASSIGNMENT AND SUBCONTRACTS

CONTRACTOR may not assign or otherwise transfer or delegate any right or duty without STATE’S express written consent. However, CONTRACTOR may enter into subcontracts provided that any subcontract acknowledges the binding nature of this Contract and incorporates this Contract, including any attachments. CONTRACTOR is solely responsible for the performance of any subcontractor with whom CONTRACTOR contracts. CONTRACTOR does not have authority to contract for or incur obligations on behalf of STATE.

18. SPOLIATION – PRESERVATION OF EVIDENCE

CONTRACTOR shall promptly notify STATE of all potential claims that arise or result from this Contract. CONTRACTOR shall also take all reasonable steps to preserve all physical evidence and information that may be relevant to the circumstances surrounding a potential claim, while maintaining public safety, and grants to STATE the opportunity to review and inspect the evidence, including the scene of an accident.

mailto:jepperson@mansfieldoil.com mailto:mgerhart@nd.gov mailto:jbostyan@nd.gov http://www.legis.nd.gov/cencode/t44c04.pdf

19. MERGER AND MODIFICATION, CONFLICT IN DOCUMENTS

This Contract, including the following documents, constitutes the entire agreement between the parties.

There are no understandings, agreements, or representations, oral or written, not specified within this Contract. This Contract may not be modified, supplemented or amended, in any manner, except by written agreement signed by both parties.

Notwithstanding anything herein to the contrary, in the event of any inconsistency or conflict among the documents making up this Contract, the documents must control in this order of precedence:

a. STATE’s or Participating Entity’s Participating Addendum;

b. The terms of this Contract as may be amended;

c. STATE’s Solicitation Amendment 1 to Request for Proposal (“RFP”) number 110.7-19-067 dated November 20, 2019;

d. STATE’s Request for Proposal (“RFP”) number 110.7-19-067, dated November 13, 2019;

e. CONTRACTOR’s Best and Final Offer (BAFO) response dated February 5, 2020 in response to

Request for Best and Final Offer (BAFO) issued January 17, 2020;

f. CONTRACTOR’s technical and cost proposal dated December 8, 2019 in response to RFP number 110.7-19-067.

g. All terms and conditions contained in any automated end-user agreements (e.g., click-throughs, shrink wrap, or browse wrap) are specifically excluded and null and void, and shall not alter the terms of this Contract.

17. SEVERABILITY

If any term of this Contract is declared by a court having jurisdiction to be illegal or unenforceable, the validity of the remaining terms is unaffected and, if possible, the rights and obligations of the parties are to be construed and enforced as if the Contract did not contain that term.

18. APPLICABLE LAW AND VENUE

This Contract is governed by and construed in accordance with the laws of the State of North Dakota.

Any action to enforce this Contract must be adjudicated exclusively in the state District Court of Burleigh County, North Dakota. Each party consents to the exclusive jurisdiction of such court and waives any claim of lack of jurisdiction or forum non conveniens.

19. ALTERNATIVE DISPUTE RESOLUTION – JURY TRIAL

STATE does not agree to any form of binding arbitration, mediation, or other forms of mandatory alternative dispute resolution. The parties have the right to enforce their rights and remedies in judicial proceedings. STATE does not waive any right to a jury trial.

20. ATTORNEY FEES

In the event a lawsuit is instituted by STATE to obtain performance due under this Contract, and STATE is the prevailing party, CONTRACTOR shall, except when prohibited by N.D.C.C. § 28-26-04, pay STATE’S reasonable attorney fees and costs in connection with the lawsuit.

21. NONDISCRIMINATION AND COMPLIANCE WITH LAWS

CONTRACTOR agrees to comply with all laws, rules, and policies, including those relating to nondiscrimination, accessibility and civil rights. CONTRACTOR agrees to timely file all required reports, make required payroll deductions, and timely pay all taxes and premiums owed, including sales and use taxes, unemployment compensation and workers' compensation premiums. CONTRACTOR shall have and keep current at all times during the term of this Contract all licenses and permits required by law.

22. STATE AUDIT

All records, regardless of physical form, and the accounting practices and procedures of CONTRACTOR relevant to this Contract are subject to examination by the North Dakota State Auditor, the Auditor’s designee, or Federal auditors, if required. CONTRACTOR shall maintain all of these records for at least three (3) years following completion of this Contract and be able to provide them at

Jamie Bostyan

4-7-2020 any reasonable time. STATE, State Auditor, or Auditor’s designee shall provide reasonable notice to CONTRACTOR prior to conducting examination.

23. EFFECTIVENESS OF CONTRACT

This Contract is not effective until fully executed by all parties. If no start date is specified in the Term of Contract, the most recent date of the signatures of the parties shall be deemed the Effective Date.

APPROVED by:

CONTRACTOR, Mansfield Oil Company (TYPE OR PRINT)

SIGNATURE

DATE

DEPUTY DIRECTOR, NDDOT Driver Safety Services (TYPE OR PRINT)

APPROVED as to substance by:

DIRECTOR, NDDOT State Fleet Services (TYPE OR PRINT)

STATE, ND State Procurement Office (TYPE OR PRINT)

Exhibit A: Participating Addendum Template

PARTICIPATING ADDENDUM

NORTH DAKOTA

ELECTRONIC FUEL DISPENSING & FLEET CREDIT CARD PROCESSOR

MANSFIELD OIL COMPANY

MASTER CONTRACT

CONTRACT NUMBER 035

1. Scope: (Replace these instructions with a brief description of the jurisdiction of the governmental entity signing this addendum. For example, the jurisdiction of a state may include all state agencies, universities, public schools and political subdivisions of the state. The jurisdiction of a political subdivision such as a county generally includes all governmental entities within the county.)

2. Changes: (Replace this with specific changes or a statement that no changes are required)

Examples ONLY… A. Confidentiality and Compliance with Public Record Laws – (insert Purchasing Entity’s laws).

B. Reporting Requirements - (insert Purchasing Entity’s requirements).

3. Primary Contacts: Primary contacts for this Participating Addendum are

Purchasing Entity Name Name:

Title:

Address:

Telephone:

Fax:

E-mail:

The following individuals will act as key personnel for Mansfield Oil Company:

State Contract Manager for North Dakota (contact person for contract/addendum-related issues, modifications, and notices).

Contractor’s Primary Contact Name:

Title:

Address:

Telephone:

Fax:

E-mail:

Contractor’s Alternate Contact Name:

Title:

Address:

Telephone:

Fax:

E-mail:

Project Manager for (insert Purchasing Entity name) (contact person for questions about Mansfield Oil Company’s commodities and services offered, pricing, and basic account management):

Contractor’s Primary Contact Name:

Title:

Address:

Telephone:

Fax:

E-mail:

Contractor’s Alternate Contact Name:

Title:

Address:

Telephone:

Fax:

E-mail:

4. Subcontractors: The following subcontractor(s) are authorized to perform services: NONE.

5. Services Contract Number: All Purchase Orders issued by Purchasing Entities within the jurisdiction of this Participating Addendum shall include the North Dakota State Master Contract number: 035.

6. Purchase Orders: All Purchasing Entities issuing valid Purchase Orders will be bound by the terms and conditions of the North Dakota State Master Contract including, without limitation, the obligation to pay Contractor for Services provided. The parties acknowledge and agree that orders submitted to Contractor from a Purchasing Entity through the Purchasing Entity’s Business Procurement Card are authorized Purchase Orders under the North Dakota State Master Contract.

7. Order of Precedence: The parties acknowledge and agree that:

(a) In the event of a conflict between the terms contained in the North Dakota State Master Contract and this Participating Addendum, the terms and conditions of this Participating Addendum will control as between Contractor and the Participating Entity.

8. Effective Dates: This Participating Addendum shall be effective upon approval by the

(Purchasing Entity ) and will continue until the Termination Date of the Master Services Contract, unless terminated early in accordance with the terms and conditions of the Master Services Contract or this Participating Addendum.

9. Effect of Contract: This Addendum and the Services Contract together with its exhibits, set forth the entire Contract between the parties with respect to the subject matter of all previous communications, representations or agreements, whether oral or written, with respect to the subject matter hereof. Terms and conditions inconsistent with, contrary or in addition to the terms and conditions of this Addendum and the Master Services Contract, together with its exhibits, shall not be added to or incorporated into this Addendum or the Master Services Contract and its exhibits, by any subsequent purchase order or otherwise, and any such attempts to add or incorporate such terms and conditions are hereby rejected. The terms and conditions of this Addendum and the Master Services Contract and its exhibits shall prevail and govern in the case of any such inconsistent or additional terms.

10. Cancellation of the Participating Addendum: At the time of termination or expiration of a

Participating Addendum, any existing multi-year agreement between the Contractor and a Participating Agency as allowed under the Price Schedules, will remain in effect and continue to exist under the terms and conditions of the Master Price Contract until the term expires as set forth in that multi-year agreement.

11. No Amendment. This Participating Addendum does not and shall not be deemed to amend, change or modify the Master Contract.

EFFECTIVENESS OF PARTICIPATING ADDENDUM

This addendum does not become effective until fully executed by all parties.

IN WITNESS WHEREOF, the parties have executed this Participating Addendum as of the date of execution by parties below.

Purchasing Entity Name: Contractor: Mansfield Oil Company

Signature: ___________________ Signature: ____________________

Name: ______________________ Name: ________________________

Title: _______________________ Title: _________________________

Date: _________________________ Date: _________________________

State of North Dakota - ND State Procurement Office The below STATE signature is for the sole purpose of verification that the above Participant is statutorily authorized to participate in the Contract.

Signature: __________________________

Name: Jamie Bostyan

Title: State Procurement Officer

Date: _________________________

Exhibit B: Discussions for Rollout of Program

(March 9, 2020)

1. Clarified that contract start will be July 1st, 2020. All program requirements will be in place before that time which include the following:

• Clean up and Redistribution of site cards (yard cards) that are due to expire in summer of 2020.

• Order, install and make operational daughterboard upgrades to all ND facility FuelMaster equipment. Execution of this order requires signature representing purchase order for work to be completed prior to July 1, 2020. This work and equipment will be billed directly to State Fleet Services per the contract requirements.

2. State staff will outline to Mansfield during implementation desired changes in existing contract other than those proposed. Those changes may include, but are not limited to, changes in maintenance program as negotiated, including card or process changes, installation of daughterboards to existing FMUs, pricing changes, pricing index changes, custom reporting program changes. As this program already exists, any changes necessitated by program administrators, IT staff, cardholders, supervisors, management, etc. may be communicated through State Fleet Services. As Mansfield is the incumbent contractor, a full implementation will not be required should Mansfield be awarded this contract. A project plan for necessary modifications and changes may be utilized. Necessary changes will be completed by Mansfield IT staff and Customer Service within the time parameters allowed for new contract conversion. The only exception to this may be the daughterboard changes which may require an additional 30 days for installation and rollout but will be completed prior to startup of new Mansfield contract.

3. No price changes will occur, other than scheduled changes (summer) in existing contract until July 1, 2020. Modifications to pricing and/or maintenance card program will be completed prior to July 1, 2020 and will be rolled into the existing program. Pricing changes per this new contract will be completed by July 1, 2020.

4. A minimum 50% capacity will be in effect for winter diesel volumes in fuel tanks.

5. Should a card change be required, Mansfield will manage that changeover, as the databases are already available to Mansfield with the existing contract. As the existing cards in place are still active and plans include continuation using the Mansfield program, Mansfield will leave the existing retail cards in place until their expiration. Should new cards be requested or required by the State, new cards will be ordered upon award for distribution prior to July 1, 2020. They will be exchanged, with or without custom graphics, per the State’s decision at that time. Custom graphics may require more time. Site cards that expire, will be replaced prior to expiration. Any changes desired for that service will be completed prior to June 30, 2020. New cards or custom programming to system can be achieved within 10 business days of delivery of change requirements with data.

6. No training is required of field personnel. Mansfield Oil is the incumbent supplier on the existing contract and is willing to provide a pre-conversion meeting, following award, with all necessary state departments and agencies to explain contractual changes and processes. State Fleet Services may choose to have Mansfield staff available for a pre-conversion meeting in Bismarck, or this may be conducted in Gainesville, Georgia. Any training to additional agencies or users can be provided by Mansfield as the State Fleet Services deems necessary or the users’ needs it to accomplish their needs.

7. OPIS subscription for Fargo postings daily will be purchased by Mansfield and executed for use by

North Dakota prior to July 1st, 2020. Diane at dmlipp@nd.gov mailto:dmlipp@nd.gov

8. Leisa Borstad to provide list of all managers in fleet for access to FuelNet. Please provide their access level as well, such as, view only or administrator level. Mansfield to provide Diane and Mike log ins to Fuel Net within the week by email notification.

Exhibit C: Pricing Mechanisms – Additional Terms and Conditions

(March 9, 2020)

These Terms and Conditions for Fixed Hedge Agreement (the "Terms and Conditions") are hereby made by and between the State of North Dakota ("Buyer") and Mansfield Oil Company of Gainesville, Inc. ("Seller"). From time to time, Buyer and Seller may enter into a Fixed Hedge Confirmation (the "Confirmation"), a sample form of which is attached hereto. The parties agree that these Terms and Conditions shall apply to all Confirmations, shall survive termination and remain in full force and effect for so long as any Confirmation(s) remains in effect. Capitalized terms used herein, if not otherwise defined in these Terms and Conditions, shall take the meaning as given in the applicable Confirmation.

1. FUEL. "Fuel" shall mean those certain refined petroleum products, as specified on the applicable Confirmation, which shall meet the applicable ASTM specifications of the respective jurisdictions where any such Fuel shall be supplied.

2. QUANTITY AND TERM. Buyer shall purchase from Seller the Minimum Guaranteed Quantity of such Fuel Type per the time period set forth in any Confirmation between the parties. Buyer and Seller shall mutually agree upon a delivery schedule prior to the initial Fuel delivery, which schedule may be adjusted from time to time upon the mutual agreement of the parties, provided that any such delivery schedule continues to satisfy the terms of the applicable Confirmation. If Buyer fails to take the Fuel in accordance with the agreed upon delivery schedule, Seller may charge Buyer for any hedge inefficiencies caused as a result. In the event Buyer purchases from Seller a volume exceeding the Minimum Guaranteed Quantity, then Buyer shall pay Seller cost plus $0.06 per each excess gallon.

3. PURCHASE PRICE. The Price Per Gallon is the commodity price only and does not include the applicable freight expenses, taxes, environmental or other regulatory fees or expenses, unless otherwise specified on the applicable Confirmation, which may be incurred by Seller pursuant to the transactions contemplated hereunder; and any such additional charges shall be passed through to and is the responsibility of Buyer. Absent any mutually executed Confirmation, any and all prices furnished to Buyer from Seller are considered indication only and are non-binding on either party.

4. FAILURE TO TAKE AT LEAST THE MINIMUM GUARANTEED QUANTITY. In the event that

Buyer fails to take the Minimum Guaranteed Quantity for any reason whatsoever, except as otherwise contemplated herein, then Buyer shall be liable to Seller for the Loss (as defined below).

Any such Loss shall be made payable to Seller in accordance with the payment terms herein.

Loss is defined using either the Liquidation or Roll methodology, defined as follows: a) Liquidation:

The Price Per Gallon minus the OPIS Net Contract Unbranded Low (in the applicable terminal market on the day(s) the Seller closes out the hedges) multiplied by the number of gallons Buyer failed to take, plus a $.03 administrative fee multiplied by the number of gallons Buyer failed to take;

orb) Roll: Seller shall apply the volume of gallons which Buyer failed to take to the next successive month or months following the final month specified in the Confirmation at a price assessed in accordance with the following formula: Price per Gallon plus Roll Cost (Roll Cost is based upon market conditions, the location of the sale and the time value risk, at Mansfield's sole and reasonable discretion) and plus a$ 0.03 administrative fee per gallon for each gallon Buyer failed to take.

Buyer and Seller shall agree upon which Loss methodology is used within three days of Seller's notification of Buyer's failure take the Minimum Guaranteed Quantity. In the event the aforementioned election is not agreed upon within the specified time frame Seller shall utilize the Loss Liquidation methodology.

5. SELLER TERMINATION. Notwithstanding anything to the contrary contained herein, Seller may immediately suspend deliveries to Buyer in the event Buyer fails to pay any invoices issued hereunder when due.

Termination shall not relieve Buyer of responsibility for obligations incurred prior to termination.

Buyer shall be responsible to Seller for all amounts owed pursuant to the following calculation:

[(Price Per Gallon - Settlement Price) + $ 0.03 administrative fee] x (gallons undelivered on the date of termination).

The Settlement Price is determined using the following formula, as of the close of business on the date of termination: (Heating Oil Contract price (as quoted by the Chicago Mercantile Exchange)+ Seller's good faith estimate of the regional basis market and Seller's good faith estimate of the local terminal market differential using the regional Platt's Index).

In the event any of the above components of the Settlement Price is not quoted for the applicable forward months, then Seller shall estimate that component in good faith.

6. BUYER TERMINATION. In the event of Buyer's termination for cause of these Terms and Conditions or any or all the Confirmations hereunder, the parties shall settle in accordance with the following calculation:

(Price Per Gallon- Settlement Price) x (gallons undelivered on the date of termination).

The Settlement Price is determined using the following formula, as of the close of business on the date of termination: (Heating Oil Contract price (as quoted by the Chicago Mercantile Exchange)+ Seller's good faith estimate of the regional basis market and Seller's good faith estimate of the local terminal market differential using the regional Platt's Index).

In the event any of the above components of the Settlement Price is not quoted for the applicable forward months, then Seller shall estimate that component in good faith.

7. DAMAGES IN THE EVENT OF SELLER'S FAILURE TO DELIVER. In the event that Seller cannot deliver Fuel to Buyer within seventy-two (72) hours of Buyer's target delivery date (except in the event of Force Majeure) and (i) the OPIS Gross Contract Average price in the applicable terminal city on the date of the missed delivery is greater than the Price Per Gallon, then Seller shall pay to Buyer the difference per gallon plus an additional sum of $0.03 per gallon; or (ii) if the OPIS Gross Contract Average price in the applicable terminal city on the date of the missed delivery is less than the Price Per Gallon, then Buyer shall pay to Seller the difference per gallon less an amount of $0.03 per gallon. Any gallons purchased by Buyer from another supplier pursuant to this paragraph shall count towards Buyer's applicable Minimum Guaranteed Quantity.

8. LIQUIDATION AND CLOSEOUT. The parties acknowledge that any Confirmation entered into pursuant these Terms and Conditions constitutes a forward agreement as defined in the Bankruptcy Code [11 U.S.C.A. §101(25)]. If one party shall voluntarily file a petition in bankruptcy, reorganization, or receivership, shall be forced by its creditors into bankruptcy, reorganization, or receivership, shall become insolvent, shall fail to pay its debts as they become due, or shall fail to give adequate assurance or security of its ability to perform its obligations hereunder within forty-eight (48) hours after receipt of a request (the "Defaulting Party") then the Seller shall have the immediate right to liquidate and close out any affected Confirmation and all other forward agreements between the parties. Upon liquidation, Seller shall be reimbursed for its good faith determination of its losses and costs incurred as a result of its termination or liquidation of any hedge or related trading position. Any and all amounts in excess of the aforementioned losses and costs realized by Seller shall be paid to or retained by the Non-Defaulting Party. If applicable, the Defaulting Party shall pay the other party by wire transfer in immediately available funds within twenty-four (24) hours after receiving the results of the calculation. The liquidation and close-out of any affected Confirmation and all other forward agreements is in addition to any other rights and remedies which the other party may have.

9. BUYER'S ACKNOWLEDGEMENT OF FUEL PRICE RISK AND WAIVER OF CLAIM AGAINST

SELLER. Buyer acknowledges, and assumes the risk, that Fuel market prices may fluctuate during the term of any Confirmation, possibly causing Buyer to purchase Fuel pursuant such Confirmation at prices significantly higher than prevailing current fuel market prices. Buyer further acknowledges and accepts that Seller is not providing any investment advice or recommendations or projections regarding future Fuel prices. Both Buyer and Seller acknowledge and agree that any Confirmation entered into between the Parties hereto under these Terms and Conditions is in no way intended, nor shall it be construed or used, as a trading tool or device for Buyer, and that all transactions contemplated hereunder are solely for the provision of fuel deliveries from Seller to Buyer. Buyer waives any potential claim against Seller pertaining to Buyer's election to enter into these Terms and Conditions and/or any subsequent Confirmation(s).

10. SET-OFF. Seller shall have the right to set off any and all amounts owed to Seller from Buyer upon the termination of these Terms and Conditions or any Confirmation(s).

11. FORCE MAJEURE. The definition of force majeure shall be defined by the applicable language set forth in Contract #035 as executed between the parties hereto.

Notwithstanding anything in this section to the contrary, the parties shall settle in accordance with the Loss Liquidation calculation plus Seller's good faith determination of its losses and costs incurred as a result of the termination or liquidation of any hedge or related trading position; any and all additional amounts, if any, realized by Seller shall be paid to Buyer.

In the case that one party is rendered unable to perform due to any declared Force Majeure Event for a period of thirty (30) days or more, the non-declaring party may terminate any affected Confirmation(s) and Seller shall have the immediate right to liquidate and close out any affected Confirmation(s). Upon termination, Seller shall be reimbursed for its good faith determination of its losses and costs incurred as a result of the termination or liquidation of any hedge or related trading position. Seller shall charge Buyer a $0.03 administrative fee per gallon for all gallons undelivered on the date of termination. Any and all amounts in excess of the aforementioned losses and costs and administrative fee realized by Seller shall be paid to Buyer.

12. CHANGE IN LAW. The parties acknowledge that they are entering into any Confirmation(s) in reliance on the then effective federal, state, and local laws, ordinances, regulations, rule and orders to include environmental laws and regulations relating to any Fuel sold hereunder (collectively "Laws") as of the effective date set forth therein. Insofar as such Laws, through their implementation, change, interpretation or effect, regardless of the date of any such change, results in the imposition of materially detrimental conditions, requirements, or costs with respect to the transactions entered into hereunder as reasonably determined by Seller in good faith, then Seller may submit to Buyer notice detailing any such change and Seller's proposed revised pricing as a result. Buyer shall have thirty (30) days from the receipt of any such notice to accept or reject such pricing. In the event the revised pricing is rejected by Buyer, Buyer or Seller may terminate any affected Confirmation without liability. Upon termination, Seller shall be reimbursed for its good faith determination of its losses and costs incurred as a result of the termination or liquidation of any hedge or related trading position. Seller shall charge Buyer a $0.03 administrative fee per gallon for all gallons undelivered on the date of termination.