0160023239ra.pdf

(continued) 23239ra01

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

Revised Contract Award Notification

Title : Group 01600 – Milk, Fluid (Statewide) Classification Code(s): 50

Award Number : 23239 (Replaces Award 22773)

Contract Period : September 21, 2021 Through September 20, 2027

Bid Opening Date : June 10, 2021

Date of Issue : September 14, 2021 (Revised July 28, 2026)

Specification Reference : As Incorporated In The Solicitation

Contractor Information : Appears on Page 2 of this Award

Address Inquiries To:

State Agencies & Vendors Political Subdivisions & Others

Name :

Title :

Phone :

E-mail :

Sarah Crossman Contract Management Specialist 2 518-473-9440 OGS.sm.PS_SW_Dairy@ogs.ny.gov

Procurement Services Customer Services

Phone :

E-mail :

518-474-6717 customer.services@ogs.ny.gov

Procurement Services values your input.

Complete and return "Contract Performance Report" at end of document.

Description Note: This Contract Award Notification contains a subset of information from the Solicitation. The resulting Contracts from Solicitation 23239 have been executed by Contract Award Letter. Complete Contract details including terms and conditions can be found in the Solicitation document dated revised June 2, 2021.

This Award allows for the purchase of Fluid Milk.

This Award has 0% MBE, 0% WBE and 0% SDVOB goal requirements.

PR # 23239

https://ogs.ny.gov/award-23239

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 2

NOTE: See individual contract items to determine actual awardees.

CONTRACT # CONTRACTOR FED.IDENT.# NYS VENDOR#

PC69434 Cream-O-Land Dairies, LLC 223629742 1100070111

PC69435 Hudson Valley Fresh Dairy, LLC 461053272 1100212977

PC69436 Upstate Niagara Cooperative, Inc. 160845625 1000014941

Region(s) Awarded:

REGION

NUMBER

REGION DESCRIPTIONS

(COUNTIES) CONTRACTOR

1 Richmond (Staten Island) Cream-O-Land Dairies, LLC 2 Kings (Brooklyn) Cream-O-Land Dairies, LLC 3 Queens Cream-O-Land Dairies, LLC 4 Suffolk Cream-O-Land Dairies, LLC 5 Nassau Cream-O-Land Dairies, LLC 6 Bronx, New York (Manhattan) Cream-O-Land Dairies, LLC 7 Rockland, Westchester Cream-O-Land Dairies, LLC 8 Orange, Putnam Cream-O-Land Dairies, LLC 9 Dutchess, Sullivan, Ulster Hudson Valley Fresh Dairy, LLC

Albany, Columbia, Greene, Rensselaer, Saratoga, Schenectady, Warren, Washington

Upstate Niagara Cooperative, Inc.

11 Clinton, Franklin, Essex, Hamilton NO AWARD

12 Jefferson, Lewis, St. Lawrence Upstate Niagara Cooperative, Inc.

Fulton, Herkimer, Montgomery, Oneida, Otsego, Schoharie Upstate Niagara Cooperative, Inc.

14 Broome, Chenango, Cortland, Delaware NO AWARD

15 Cayuga, Madison, Onondaga, Oswego Upstate Niagara Cooperative, Inc.

16 Chemung, Schuyler, Steuben, Tioga, Tompkins Upstate Niagara Cooperative, Inc.

Genesee, Livingston, Monroe, Ontario, Orleans, Seneca, Wayne, Wyoming, Yates

Upstate Niagara Cooperative, Inc.

18 Allegany, Cattaraugus, Chautauqua, Erie, Niagara Upstate Niagara Cooperative, Inc.

For complete Contractor information and Pricing information for this Award, please see the Contractor Information page located on the OGS Website at:

https://online.ogs.ny.gov/purchase/spg/pdfdocs/0160023239ContractorInfo.pdf

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 3

Cash Discount, If Shown, Should be Given Special Attention.

AGENCIES SHOULD NOTIFY NEW YORK STATE PROCUREMENT SERVICES

PROMPTLY IF THE CONTRACTOR FAILS TO MEET DELIVERY OR OTHER TERMS

OF THIS CONTRACT. PRODUCTS OR SERVICES WHICH DO NOT COMPLY WITH

THE SPECIFICATIONS OR ARE OTHERWISE UNSATISFACTORY TO THE AGENCY

SHOULD ALSO BE REPORTED TO PROCUREMENT SERVICES.

SMALL, MINORITY AND WOMEN-OWNED BUSINESSES

The letters SB listed under the Contract Number indicate the contractor is a NYS small business. Additionally, the letters MBE and WBE indicate the contractor is a Minority-owned Business Enterprise and/or Woman-owned Business Enterprise.

RECYCLED, REMANUFACTURED AND ENERGY EFFICIENT PRODUCTS

Procurement Services supports and encourages the purchase of recycled, remanufactured, energy efficient and "energy star" products. If one of the following codes appears as a suffix in the Award Number or is noted under the individual Contract Number(s) in this Contract Award Notification, please look at the individual awarded items for more information on products meeting the suffix description.

Code Type RS, RP, RA Recycled RM Remanufactured SW Solid Waste Impact EE Energy Efficient E* EPA Energy Star ES Environmentally

Sensitive

NOTE TO AUTHORIZED USERS

When placing purchase orders under the contract(s), the authorized user should be familiar with and follow the terms and conditions governing its use which usually appears at the end of this document. The authorized user is accountable and responsible for compliance with the requirements of public procurement processes.

The authorized user must periodically sample the results of its procurements to determine its compliance. In sampling its procurements, an authorized user should test for reasonableness of results to ensure that such results can withstand public scrutiny.

The authorized user, when purchasing from OGS contracts, should hold the contractor accountable for contract compliance and meeting the contract terms, conditions, specifications, and other requirements. Also, in recognition of market fluctuations over time, authorized users are encouraged to seek improved pricing whenever possible.

Authorized users have the responsibility to document purchases, particularly when using OGS multiple award contracts for the same or similar product(s)/service(s), which should include:

• a statement of need and associated requirements,

• a summary of the contract alternatives considered for the purchase,

• the reason(s) supporting the resulting purchase (e.g., show the basis for the selection among multiple contracts at the time of purchase was the most practical and economical alternative and was in the best interests of the State).

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 4

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. The First Amendment;

4. The Contract Award Letter;

5. The Solicitation #23239 (Revised 06/02/2021) including all Appendices and

Attachments referenced therein, with exception of Appendix A and Appendix C, and any revisions provided prior to the Bid Opening;

6. Contractor’s Bid Prices as published by OGS.

OVERVIEW

This Contract provides Authorized Users with a means of acquiring fluid milk products by New York State Agencies and Non-State Agencies, including political subdivisions, school districts and others authorized by law (See Sections titled Non-State Agencies Participation in Centralized Contracts and Extension of Use). Products for purchase by all Authorized users are described in the Section titled Scope. Procurement instructions describing requirements for Authorized Users to purchase from the Centralized Contract are found in the Section titled Procurement Instructions.

SCOPE

Solicitation 23239 and resultant Contract(s) are intended to provide the procurement mechanism for the provision and delivery of Class 1 Fluid Milk including, but not limited to, homogenized, low fat and fat-free fluid milk products. Award was made by Region to the lowest Grand Total amount for Required Milk Products offered by responsive and responsible Bidder(s) who met the minimum qualifications and offered reasonable prices as determined by OGS. A Region is comprised of one or more New York State counties as shown in the Section titled Regions below.

It is the State’s intent to award and execute a five (5) year Contract(s). If at any time the resulting Contract is canceled, terminated or expires, the Contractor has the affirmative obligation to extend appropriate and reasonable cooperation to assure the orderly transition of Contract services to the subsequent Contractor.

REGIONS

For the purposes of Contract(s) resulting from Solicitation 23239, the counties of New York State are divided into eighteen (18) separate Regions. Each Region is composed of one or more adjacent NYS counties within a designated USDA Milk Marketing Area as identified in the table and map below.

REGION

NUMBER REGION DESCRIPTIONS (COUNTIES)

MILK

MARKE

TING

AREA

1 Richmond (Staten Island) NEMMA 2 Kings (Brooklyn) NEMMA

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 5

3 Queens NEMMA 4 Suffolk NEMMA 5 Nassau NEMMA 6 Bronx, New York (Manhattan) NEMMA 7 Rockland, Westchester NEMMA 8 Orange, Putnam NEMMA 9 Dutchess, Sullivan, Ulster NEMMA

10 Albany, Columbia, Greene, Rensselaer, Saratoga, Schenectady, Warren, Washington NEMMA

11 Clinton, Franklin, Essex, Hamilton NEMMA 12 Jefferson, Lewis, St. Lawrence NEMMA 13 Fulton, Herkimer, Montgomery, Oneida, Otsego, Schoharie NEMMA 14 Broome, Chenango, Cortland, Delaware NEMMA 15 Cayuga, Madison, Onondaga, Oswego NEMMA 16 Chemung, Schuyler, Steuben, Tioga, Tompkins NEMMA

17 Genesee, Livingston, Monroe, Ontario, Orleans, Seneca, Wayne, Wyoming, Yates

WNYMM

A

18 Allegany, Cattaraugus, Chautauqua, Erie, Niagara WNYMM A

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 6

PROCUREMENT INSTRUCTIONS TO AUTHORIZED USERS

The resultant Contracts will be centralized Contracts issued under a multiple award structure for each of the Lots described in the Section titled Scope. Products offered under the Contracts, pricing, and other Contract information will be posted to the OGS website and, if applicable, the awarded Contractors’ dedicated NYS websites.

Authorized Users shall procure Products that best meet their form, function and utility requirements.

Before proceeding with their purchase, Authorized Users shall check the list of Preferred Source offerings and are reminded that they must comply with State Finance Law, particularly § 162, regarding commodities/services provided by preferred source suppliers.

If the needed Products are not available in the desired form, function and utility from a Preferred Source, the Authorized Users are encouraged to obtain quotes from all awarded Contractors within the applicable Region prior to making a purchase. The Authorized User shall review the responses from Contractors able to provide the necessary Products and shall select the most practical and economical alternative that is in the best interest of the State from among such responses in accordance with State Finance Law § 163(10)(c). The Authorized User shall document its procurement decisions in its procurement record.

Map of NYS with Region Numbers and Counties

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 7

Authorized Users will issue Purchase Orders directly to the Contractor and specify any shipping/delivery requirements.

When placing Purchase Orders under the Contract(s), the Authorized User should be familiar with and follow the terms and conditions governing the use of the Contract(s).

The Authorized User is responsible for compliance with the requirements of public procurement processes. The Authorized User, when purchasing from OGS Contracts, should hold the Contractor accountable for meeting the Contract terms, conditions, specifications, and other requirements. Also, in recognition of market fluctuations over time, Authorized Users are encouraged to seek improved pricing whenever possible.

Authorized Users have the responsibility to document purchases, and such documentation should include: statement of need and associated requirements; all necessary prior approvals; a summary of the Contract alternatives considered for the purchase; and the reason(s) supporting the resulting purchase (e.g., show that basis for the selection among multiple Contracts at the time of purchase was the most practical and economical alternative and was in the best interests of the State).

Upon Authorized User acceptance of Products itemized on the Purchase Order, Contractor will invoice Authorized User for any portion of Products accepted, and accordingly, Authorized User will arrange for payment. Contractor shall provide itemized invoicing for all Products.

Note: Contractor must disclose prior to acceptance of an order any forms or other order information that Contractor will attach to orders or require to be completed with Authorized User purchases. Documents which contain additional terms or conditions must receive pre-approval by the Authorized User. Additional terms or conditions that were not pre-approved by the Authorized User or which conflict with the Contract terms and conditions are void and unenforceable at the sole discretion of the State.

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 Contractor must furnish all quantities actually ordered at or below the Contract prices. The anticipated dollar value of all awards resulting from Solicitation 23239, based on historical usage under award 22773, is approximately $14 million annually.

The individual value of each resultant Contract is indeterminate and will depend upon the number of Contracts issued and the competitiveness of the pricing offered.

Authorized Users will be encouraged to purchase from Contractors who offer the Products and pricing that best meet their needs in the most practical and economical manner. See Appendix B, Estimated/Specific Quantity Contracts and Participation in Centralized Contracts.

Numerous factors could cause the actual quantities of Products purchased under a Contract resulting from Solicitation 23239 to vary substantially from the estimates in the Solicitation. Such factors include, but are not limited to, the following:

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 8

• Such Contracts may be non-exclusive Contracts.

• 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 or convenience prior to the end of the term pursuant to the terms and conditions of the Contract.

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

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

Contractor acknowledges the foregoing and agrees that actual good faith purchasing volumes during the term of the resulting Contracts could vary substantially from the estimates provided in Solicitation 23239.

DEFINTIONS

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

“Base Price” shall refer to the price per quart quoted by a Contractor in response to Solicitation 23239.

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

“Class I Milk” shall refer to all skim milk and butterfat: (1) Utilized and disposed of as a Fluid Milk in packaged form;(2) Moved to a plant as a Fluid Milk in bulk form where it is utilized or allocated as Class I milk, which in the case of movements to a non-pool plant not regulated by a Federal order shall be a quantity of Fluid Milks not less than that distributed as route disposition in the marketing area from such plant; (3) Contained in inventory of packaged Fluid Milks on hand at the end of the month; (4) In shrinkage assigned pursuant to section 21.32 of 1 NYCRR; and (5) Not specifically accounted for as Class II, III or IV milk.

“Fluid Milk” shall refer to (1) that except as provided in paragraph (2) of this subdivision, any Fluid Milks in fluid or frozen form containing less than nine percent butterfat that are in bulk or are packaged, distributed and intended to be used as beverages. Such products include, but are not limited to: milk, fat free milk, low fat milk, light milk, reduced fat milk, milk drinks, and cultured buttermilk, including any such beverage products that are flavored, cultured, modified with added nonfat milk solids, concentrated meaning milk that contains not less than 25.5 percent, and not more than 50 percent total milk solids, or reconstituted. (2) The term "Fluid Milk" shall not include:

(i) Plain or sweetened evaporated milk/skim milk, sweetened condensed milk/skim milk, formulas especially prepared for infant feeding or dietary use (meal replacement) that are packaged in hermetically-sealed containers, any product that contains by weight less than 6.5 percent nonfat milk solids, and whey; and (ii) The quantity of skim milk in

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 9 any modified product specified in paragraph (1) of this subdivision that is in excess of the quantity of skim milk in an equal volume of an unmodified product of the same nature and butterfat content.

USDA Federal Standards for Fluid Milk:

Milks Milk Fat Minimum

Milk Fat Maximum

Milk Solids Non Fat Minimum

Whole 3.25% - 8.25% Low fat .50% 2.0% 8.25% Skim - .5% 8.25%

“Grand Total” shall refer to the sum of all Extended Totals for Required Milk Products in a Region, which shall be used to determine lowest bid.

“Milk Marketing Orders” shall refer to Federal milk marketing orders regulate handlers that sell milk or Fluid Milks within an order region by requiring them to pay at least the established minimum price for Grade “A” milk they purchase from dairy producers.

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

“New York State Food Product” shall refer to commodities that are Food, including milk and milk Products, grown, produced, harvested, or processed in New York state.

“Northeast Milk Marketing Area” (“NEMMA “) shall refer to the USDA definition of all the territory within the bounds of the following political subdivisions, including all piers, docks and wharves connected therewith and all craft moored thereat, and all territory occupied by government (municipal, State or Federal) reservations, installations, institutions, or other similar establishments if any part thereof is within any of the listed states or political subdivisions New York Counties, Cities, and Townships All counties within the State of New York except Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Seneca, Wayne, and Wyoming; the townships of Conquest, Montezuma, Sterling and Victory in Cayuga County; the city of Hornell, and the townships of Avoca, Bath, Bradford, Canisteo, Cohocton, Dansville, Fremont, Pulteney, Hartsville, Hornellsville, Howard, Prattsburg, Urbana, Wayland, Wayne and Wheeler in Steuben County; and the townships of Italy, Middlesex, and Potter in Yates (WNYMMA)”which are included in the “Western NY Milk Marketing Area (WNYMMA)”. Class 1 differentials apply to the location of the processing plant, and not to the delivery point.

http://www.fmmone.com/Order_Language/Order_Language.pdf

“NYS Holidays” shall refer 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.

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 10

“NYS Vendor ID” shall refer to the ten-character identifier issued by New York State when a vendor is registered on the Vendor File.

“Plant Operator”, “Processor”, “Dealer”, “Distributor” shall refer to persons or entities authorized by the NYS Department of Agriculture and Markets to sell, re-sell, distribute and/or deliver Milk and milk products in NYS.

“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”).

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

“Western NY Milk Marketing Area” (“WNYMMA” ) shall refer to the USDA definition of the counties within the State of New York including Allegany, Cattaraugus, Chautauqua, Erie, Genesee, Livingston, Monroe, Niagara, Ontario, Orleans, Seneca, Wayne, and Wyoming; the townships of Conquest, Montezuma, Sterling and Victory in Cayuga County; the city of Hornell, and the townships of Avoca, Bath, Bradford, Canisteo, Cohocton, Dansville, Fremont, Pulteney, Hartsville, Hornellsville, Howard, Prattsburg, Urbana, Wayland, Wayne and Wheeler in Steuben County; and the townships of Italy, Middlesex, and Potter in Yates (WNYMMA)”which are included.

Counties not listed in this definition are listed in the Northeast Milk Marketing Area” (“NEMMA “). Class 1 differentials apply to the location of the processing plant, and not to the delivery point. http://www.fmmone.com/Order_Language/Order_Language.pdf

CONTRACT TERM AND EXTENSIONS

The Contract will be in effect for a term of up to five (5) years. The Contract term shall commence after all necessary approvals consistent with the MOU and is intended to commence upon the expiration of the current Milk, Fluid Contract Award 22773.

All OGS Centralized Contracts resulting from Solicitation 23239 shall have a co-terminus end date, including those Contracts awarded during any subsequent periodic recruitment.

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 11

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).

SHORT TERM EXTENSION

This section shall apply in addition to any rights set forth in Appendix B, Contract Term

– Extension. In the event a replacement Contract has not been issued, any Contract let and awarded hereunder by the State may be extended unilaterally by the State for an additional period of up to 30 calendar days upon notice to the Contractor with the same terms and conditions as the original Contract and any approved modifications.

With the concurrence of the Contractor, the extension may be for a period of up to 90 calendar days in lieu of 30 calendar days. However, this extension automatically terminates should a replacement Contract be issued in the interim.

PERIODIC RECRUITMENT

This Contract allows for periodic recruitment for Region(s) where no bid is received and/or if a Contract is cancelled during the term of the Contract and there is no next lowest Bidder available. Recruitment periods are optional at the discretion of the State.

Additional recruitment periods will be advertised in the NYS Contract Reporter. Bidder must register with the New York State Contract Reporter at https://www.nyscr.ny.gov in order to receive notifications regarding any periodic recruitments under this Solicitation.

Bids shall be evaluated under substantially the same terms and conditions as the original Bids. Bidders shall also be required to submit necessary documentation for any additional applicable statutory requirements in effect at the time of the new Solicitation.

If a Bid is deemed non-responsive during the initial Solicitation or any recruitment period, a Bidder cannot reapply for a future Contract until the next recruitment period.

SPECIFICATIONS

All Fluid Milk must be from sources approved by the New York State Department of Agriculture and Markets. Required licenses and inspection reports shall be effective at all times during the period of the contract. Cancellation or revocation of Contractor’s Plant Operator, Processor, Dealer, and/or Distributor of Fluid Milk license for non-compliance with any order of the Commissioner of Agriculture and Markets shall automatically cancel any resultant contract.

Standards for Fluid Milk

The Standards for Fluid Milk for this IFB are as follows:

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 12

Milks Milk Fat Minimum

Milk Fat Maximum

Milk Solids Non Fat Minimum

Whole 3.25% - 8.25% Low fat .50% 2.0% 8.25% Skim - .5% 8.25%

Based on the United States Department of Agriculture the weight of one (1) quart of Fluid Milk is 2.155 pounds.

Compliance with NYS Department of Agriculture, US Department of Agriculture, Federal Food, Drug Administration and Other Regulations

The Contractor guarantees any product shall not be adulterated or misbranded and complies in all respects with all applicable guidelines and standards defined by the NYS Department of Agriculture and Markets.

Pathogens / Contaminants

No Escherichia coli 0157:H7 (E.coli), or any other pathogens, contaminants, or debris, are permitted in any product.

Freshness Codes

Packaging shall contain a clearly legible, freshness code that contains the last date of use or sale, expressed in terms similar to “fresh thru”, “use by”, “for sale by” or some other logo easily read or understood by the general public.

Source of Supply

All Fluid Milk shall be from sources subject to the standards of the New York State Department of Agriculture and Markets, or equivalent standards recognized by of the New York State Department of Agriculture and Markets.

New York State Food Products

The Commissioner of General Services recognizes the importance of utilizing food products that are grown, produced, harvested or processed in New York State. In order to advance this objective, the New York State Office of General Services encourages Contractors to fulfill the requirements of any contract awarded pursuant to Solicitation 23239 with products that are grown, produced, harvested or processed, in whole or in part, in New York State, as supported by the Food Metrics Bill, New York State Finance Law § 165.4.

Product Integrity / Refrigeration

Contractors must agree to preserve product integrity, wholesomeness, safety, and fitness for human consumption, by maintaining proper temperature during storage and transportation through the use of fully functional refrigerated facilities, and vehicles specifically designed for safe transportation of refrigerated and frozen foods.

Fluid Milk must at all times be stored and transported at a temperature that prevents freezing and does not to exceed 45° Fahrenheit.

Ambient trailers shall not be used to ship refrigerated/frozen product

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 13

Unusable Product

Any claim that delivered product is unusable (damaged, rotten, non-edible, unacceptable substitution, etc.), shall be resolved by credit, substitution or any other applicable means for resolution within three (3) business days upon written notice from receiving Authorized User. If a satisfactory resolution is not reached between the Authorized User and the Contractor, a decision may be made by OGS that shall be final.

Inferior Quality

Inferior products will be rejected, except where milk has been used prior to receipt of laboratory reports from the New York State Department of Agriculture and Markets on official samples showing deficiency in quality. Such milk will be paid for as follows:

For each one-tenth of one percent of butterfat content found less than the minimum established requirements there shall be deducted one cent per quart.

If two or more samples taken from deliveries of milk are found to contain bacteria in excess of the standards specified, the contract shall be canceled.

Any undelivered quantities may be purchased in the open market and any difference in cost shall be charged to the contractor.

All deliveries must be made strictly in accordance with instructions appearing on the purchase order. Failure to deliver as specified will result in rejection upon arrival.

Immediate replacement may be made from the open market at the contractor’s expense.

Product Substitutions

There should be no substitution of products ordered without the express authorization of the Authorized User. Substitutions shall be of same or better grade, quality, etc. Substitutions should not be made on a continuing basis. The Authorized User will not be held liable for unauthorized product substitutions.

Approval of Non-Standard Fluid Milk Packaging

It is the responsibility of the Contractor to notify Authorized Users of any deviations in packaging from the Fluid Milks specified on the Price By Regions document posted on the OGS website. It is the responsibility of the Contractor to make sure that nonstandard containers and equipment provided by the Contractor are compatible and that this change has the approval of the Authorized User.

Bulk Milk Packaging

All containers and filling machines must have the approval of the New York State Department of Agriculture and Markets. Auto taps are required for all types of containers and sufficient caps shall be furnished to allow one for each tilt rack space.

Necessary replacements, in order to maintain constant service, are to be furnished by the contractor without charge.

Containers for Secure Facilities

Correctional Facilities, Mental Health Facilities and some other institutions or facilities, require packaging and containers which do not present security problems

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 14

(i.e., wire, metal, sharp edges, etc., which may be easily removed and fashioned into a weapon). Consequently, the Contractor may be required to modify and/or change packaging and/or containers for delivery to some locations, in order to reduce potential security problems. Unless otherwise noted, Correctional Facilities will not accept wire mesh crates or crates containing metal parts. There shall be no increase in pricing for making adjustments in packaging or containers used as a result of security requirements.

PRICE

Price shall include all customs and duties and be net, per quart, F.O.B. Destination any point in New York State. Price shall include unloading by the contractor to the location and within the time frame specified on Authorized User’s order.

Base Prices for Required Milk Product(s) and Desirable Milk Product(s) offered by the Awardee in each Region are located on the Price By Region page located on the OGS Procurement Services website.

Each year the awarded Bids will receive a base price adjustment (up or down) as per Section 6.3.2, CPI Price Adjustment.

Monthly Price Adjustment (Milk Marketing Order)

In the event of an increase or decrease in the Class 1 (one) price including butterfat and skim milk prices, pursuant to the provisions of Article 21, as amended by Chapter 383 of the Laws of 1937, of the Agriculture and Markets Law, and/or Federal or State Milk Marketing Agreement or Order, the Office of General Services, Procurement Services, will authorize an adjustment of the prices paid for Fluid Milk delivered under Contract to Authorized Users located in the milk marketing area.

In areas not subject to Federal or State Milk Marketing Orders, adjustments shall be computed on the same basis as those under the Northeast Milk Marketing Area.

Milk Marketing price adjustments are issued and updated monthly. Monthly price adjustments are posted to the OGS Procurement Services website.

CPI Price Adjustment

Base Contract pricing will remain firm through June 30, 2021. Beginning July 1, 2021, an annual price adjustment will be allowed based on the Consumer Price Index (CPI-U) for all Urban Consumers, Not Seasonally Adjusted, U.S. City Average, All Items (Series ID: CUUR0000SAO) as published by the US Department of Labor, Bureau of Labor Statistics, Washington D.C. 20212. The index is available through the internet at the Bureau of Labor Statistics (BLS) website at "www.bls.gov.com" If at any time, the above series ID is discontinued or not available, the State reserves the right to implement an applicable index.

Price adjustments using the CPI involve changing the base quart price for each type of fluid milk offered by the percent change in the level of the CPI between a “reference” period and a “subsequent” time period. The “reference” period shall be the month in which the bid opening was held and the subsequent time period shall be May of each year. Every price adjustment (up or down) shall be based on comparing the reference period (May 2021) to the following subsequent CPI-U May figure. Each price adjustment shall be effective the following July.

GROUP 01600 – Milk, Fluid (Statewide) AWARD PAGE 15

Dairy Compact

In the event a dairy compact covering New York State becomes effective pursuant to State and/or Federal law during the Contract period and such compact’s mandated price is higher than the price set for Class 1 (one) milk within the State pursuant to a State or Federal order, OGS will authorize price adjustments to reflect such compact pricing.

Deposit Charge for Milk Cases

The Contractor may assess a deposit charge as established by the New York State Department of Agriculture and Markets for each milk case delivered to the using facility and which upon delivery remains at the premises of the facility. Ownership of each milk case properly identified with the name or other business identification of the person or company who is the owner remains with that owner notwithstanding the imposition of the deposit. The deposit may be held by the Contractor so long as the milk case or its replacement remains on the facility premises and until such time as it is returned to the contractor in useful condition allowing for normal wear and use. A reconciliation statement of all deposited funds shall be made within 30 days of contract termination or return of milk cases.

Milk Coolers / Dollies / Dispensers / Carts

For designated Authorized Users location, the Contractor is required to provide milk coolers, dollies, dispensers or carts as indicated at no additional cost. No additional charge for this equipment will be allowed. The dollies, dispensers or carts are to be provided, installed, maintained, and replaced (if necessary) by the contractor at the Contractor’s expense. On conclusion of the Contract, the equipment remains the property of the contractor and is to be removed at Contractor’s expense.

Rounding of Prices

Any price which goes beyond the fourth place after the decimal point (e.g., beyond the ten thousands place) shall be rounded to the fourth decimal place (i.e., a price of $3.64528 shall be rounded to $3.6453).

BEST PRICING OFFER

During the Contract term, if the Commissioner becomes aware that the Contractor is selling substantially the same or a smaller quantity of a Product outside of this Contract upon the same or similar terms and conditions as that of this Contract at a lower price to a federal, state or local governmental entity, the price under this Contract, after consultation with the Contractor, may be reduced to a lower price on a prospective basis at the discretion of the Commissioner. The Commissioner reserves the right to request information to verify pricing for the purposes of this clause.

PRICE STRUCTURE

If, during the Contract Term, the Contractor is unable or unwilling to meet contractual requirements in whole or in part based on the price structure of the Contract, it shall immediately notify the Office of General Services, Procurement Services in writing.

Such notification shall not relieve the Contractor of its responsibilities under the Contract. The State may, but is not required to, consider an equitable adjustment in the Contract terms and/or pricing in the circumstances outlined in Appendix B, Savings/Force Majeure.

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Should the Commissioner in his or her sole discretion determine during the Contract Term that (i) the Contract price structure is unworkable, detrimental, or injurious to the State, or (ii) the Contract price structure results in prices which are unreasonable, excessive, or not truly reflective of current market conditions, and no adjustment in the Contract terms and/or pricing is mutually agreeable, the State may terminate the Contract upon 10 business days written notice mailed to the Contractor.

VOLUME DISCOUNTS

Contractors may offer volume discounts. Volume discounts may be applied per purchase order, cumulatively per Authorized User, and cumulatively statewide. Volume discounts shall be defined and applied as follows: Purchase order volume discounts shall be additional discounts applied to individual purchase orders over a specified dollar amount. Cumulative Authorized User volume discounts shall be additional discounts applied to all future orders made by the Authorized User once an established volume has been met by that Authorized User. Cumulative statewide volume discounts shall be additional discounts applied to all future orders for all Authorized User orders once an established volume has been met under this contract.

ORDERING

Purchase Orders shall be made in accordance with the terms set forth in Appendix B, Purchase Orders. Authorized Users may submit orders over the phone, and, if available, may submit orders electronically via web-based ordering, e-mail, or facsimile at any time. Orders submitted shall be deemed received by Contractor on the date submitted. Orders submitted after the end of the Busines Day shall be deemed received by Contractor on the next Business Day. See Section Titled Definitions.

Orders shall be shipped to the specified destination within 48 hours after receipt of the order or later at the direction of the Authorized User.

All orders shall reference Contract number, requisition, and/or Purchase Order number (if applicable). Upon Contractor’s receipt of an order, confirmation is to be provided to the Authorized User electronically or via facsimile. Order confirmation should be sufficiently detailed, and include, at a minimum, purchase price, date of order, delivery information (if applicable), Authorized User name, and sales representative (if applicable).

PURCHASING CARD ORDERS

If the Contractor accepts orders using the State’s Purchasing Card (see Appendix B, Purchasing Card), also referred to as the Procurement Card, the Contractor shall not charge or bill the Authorized User for any additional charges related to the use of the Purchasing Card, including but not limited to processing charges, surcharges or other fees.

MINIMUM ORDER

The minimum order is $100.00. In the event the Contractor accepts an order below the minimum order amount, Contractor may add a delivery charge of no more than $10.00.

There shall be no additional charges, fees, delivery costs, etc., for back orders (Product previously ordered and not delivered by Contractor).

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INVOICING AND PAYMENT

Invoicing and payment shall be made in accordance with the terms set forth in Appendix B, Contract Invoicing.

The Contractor is required to provide the Authorized User with one invoice for each Purchase Order at the time of delivery. The invoice must include detailed line item information to allow Authorized Users to verify that pricing at point of receipt matches the Contract price on the original date of order. At a minimum, the following fields must be included on each invoice:

• Contractor Name

• Contractor Billing Address

• Contractor Federal ID Number

• NYS Vendor ID Number

• Account Number

• NYS Contract Number

• Name of Authorized User indicated on the Purchase Order

• NYS Agency Unit ID (if applicable)

• Authorized User’s Purchase Order Number

• Order Date

• Invoice Date

• Invoice Number

• Invoice Amount

• Product Descriptions

• Unit Price

• Quantity

• Unit of Measure

• Dates of Service (if applicable)

Cost centers or branch offices within an Authorized User may require separate invoicing as specified by each Authorized User. The Contractor's billing system shall be flexible enough to meet the needs of varying ordering systems in use by different Authorized Users. Visit the following link for further guidance for vendors on invoicing:

https://bsc.ogs.ny.gov/nys-vendors.

PRODUCT DELIVERY

Delivery of all Contract Products shall be made in accordance with Appendix B, Product Delivery and Shipping/Receipt of Product.

After an Authorized User places an order, Contractor shall work with the Authorized User to establish mutually beneficial dates of delivery, to the extent possible.

Contractor shall contact Authorized User prior to making delivery if regularly scheduled delivery date is changed. Any deviations from the set delivery schedule must be acceptable to both parties.

In addition, Deliveries are to be made strictly in accordance with instructions on Purchase Order from each Authorized User, on the day and date and within the time frame specified, in clean properly sealed containers and at a maximum temperature of 45° Fahrenheit on delivery. If there is a discrepancy between the purchase order and what is listed on the contract, it is the contractor’s obligation to seek clarification from the ordering Authorized User and, if applicable, from the OGS Procurement Services.

Awarded Contractors are required to make deliveries to all Authorized User facilities that meet the minimum order in the Region for which they are awarded. Contractors https://bsc.ogs.ny.gov/nys-vendors

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In the event there is no award for a Region, Authorized Users may utilize a Contract in an adjacent Region; however, only upon mutual agreement between the awarded Contractor of the adjacent Region and the Authorized User. Please Note: Authorized Users utilizing this option, at the discretion of the Contractor, may be required to pay additional delivery charges from the Contractor’s plant to their location. Contractor is required to submit delivery billing with their invoice to substantiate delivery charges.

RESTRICTED DELIVERY

Price includes “restricted” delivery. Delivery to some Authorized Users, particularly Correctional and NYS Office of Mental Health facilities, have “restricted” deliveries, which include restrictions around time or process for delivery. Delivery must be made during certain hours, generally between 8:30 A.M. to 10:30 A.M. and 12:30 P.M. to 2:30 P.M.ET, and must be made only on weekdays (Monday through Friday) except/excluding holidays. Other restrictions, include but are not limited to, thorough inspection of vehicle/trailer and needing security clearances. These restrictions may also apply for deliveries to other Authorized Users. It should be noted that correctional facilities occasionally have “lock downs” during which time there is no exit or entry.

NOTE: There are certain Authorized Users that require specific delivery schedules due to security concerns. The hours listed herein are "general" hours and it is expected that the resultant Contractor and the Authorized Users will come to a mutual agreement on times and days for recurring delivery.

DELIVERY CERTIFICATION

Contractor shall secure a signed receipt from Authorized User certifying to physical delivery of product. In the event deficiencies are later noted and a properly signed receipt is not available, Contractor will be responsible to deliver adequate additional product, as soon as possible, to resolve the deficiency. Such certification does not imply acceptance of product. Acceptance shall be made only after the inspection of goods by the Authorized User.

DELIVERY CONDITIONS

All Fluid Milk must be delivered in clean well maintained refrigerated vehicles.

Authorized User may choose to reject a delivery because of unsatisfactory service, product or unsanitary conditions of delivery equipment.

Delivery personnel should be appropriately uniformed and readily identifiable with visible name and company identification. Contractors shall consult with Authorized Users concerning any other security procedures or delivery protocol.

The product delivered must be strictly in accordance with the Region awarded.

Contractor shall be responsible to make no shipment of the product that will be exposed to conditions during transit, detrimental to the product. Product must be delivered strictly in accordance with specifications and shall be "Ready for Use.”

SMALLER VEHICLE USE FOR DELIVERY

Since many delivery sites are located in residential areas, it is anticipated local ordinances may restrict and/or prohibit the use of 40,000 pound (40') vehicles.

Consequently, deliveries to these locations are required to be with smaller vehicles -

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26,000 pound (20' straight trucks or 24' "pups") or smaller capacity/size vehicles. In such cases, it is not only a requirement to use smaller vehicles, but it also remains the Contractor's responsibility to determine and comply with local ordinances and requirements.

MISSED DELIVERIES

In the event that a Contractor misses a regular scheduled delivery, the contractor shall work cooperatively with the Authorized user to reschedule the delivery at no additional cost to the Authorized User. If resolution cannot be reached within 24 hours, the Authorized User may purchase required quantities from the open market. Any price difference between open market price and contract price will be charged back to the awarded contractor and applied to the Authorized User account as a credit.

PRODUCTS LEFT ON DOCK

Deliveries left on the loading dock without acceptance by the Authorized User shall be considered “abandoned goods” and shall be returned at the Contractor’s expense or disposed of at the discretion of the Authorized User.

PRODUCT RETURNS AND EXCHANGES

In addition to the provisions of Appendix B, Title and Risk of Loss, Product Substitution, and Rejected Product, Products returned or exchanged due to quality problems, duplicated shipments, outdated Product, incorrect Product shipped, Contractor errors otherwise not specified, or Products returned or exchanged due to Authorized User errors, shall be replaced with specified Products or the Authorized User shall be credited or refunded for the full purchase price.

Products shall be replaced within one (1) business day of written notification to the Contractor of the Authorized User’s intent to return or exchange the Product.

Contractor can charge only a restocking fee for Product returned or exchanged due to Authorized User error that is determined not to be suitable for resale; the restocking fee cannot exceed the net price of the returned or exchanged Product.

Any credit or refund shall be applied against the next bill/invoice submitted by the Contractor to the Authorized User. If no credit or refund, or only a partial credit or refund, is made in such fashion, the Contractor shall pay to the Authorized User the amount of such credit or refund or portion thereof still outstanding, within 30 calendar days of demand.

PRODUCT RECALL

The contractor shall immediately notify the Authorized User of any recalls pertaining to contract items.

The Contractor shall have the ability to track all Products delivered. The Contractor shall have a Product recall program that provides for immediate notification to all Authorized User facilities, including OGS and Authorized Users' central offices that have received the recalled Products. The Contractor is responsible for picking up and replacing all Products that are subject to recall and ensuring that all manufacturers and suppliers to the Contractor have the same requirements in place. The Authorized User shall not be responsible for the pickup and replacement cost of any recalled Product.

Subsequent credits must be applied, as applicable. A final report shall be made to OGS and all Authorized Users' central offices stating number of cases shipped, locations and number of returns.

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UNUSABLE PRODUCT

Any claim that delivered Product is unusable (damaged, rotten, non-edible, unacceptable substitution, etc.), shall be resolved by credit, substitution or any other applicable means for resolution within three (3) business days upon written notice from receiving Authorized User.