ESBD_File_352618_4 - 2024-1 MISD Standard Terms and Conditions 2024.pdf

Standard Terms and Conditions

Maypearl Independent School District

STANDARD TERMS AND CONDITIONS

RFP #2024‐1: Kitchen Equipment

The words “bids,” “request for proposals,” “quotes,” “RFPs,” solicitation,” procurement,” and their derivatives may be used interchangeably in these terms and conditions. These terms and conditions apply to all bids, requests for proposals, quotes, competitive sealed quotes, and other procurement solicitations to which they are attached. The term “vendor” means each awarded vendor chosen by Maypearl Independent School District (MISD),hereinafter the “Purchaser.”

These Standard Terms and Conditions are part of the final contract for each product and/or service contract and are part of the terms and conditions of each purchase order or other bid/proposal forms issued in connection with this solicitation.

Contracts awarded pursuant to this RFP comply with the Code of Federal Regulations (CFR), 2 C.F.R. Subpart D, § 200.317‐327, the United States Department of Agriculture (USDA) and Texas Department of Agriculture (TDA) Administrator Reference Manual (ARM), rules and regulations per the school nutrition programs. It is the intent of the Purchaser to comply with the most restrictive rules and regulations as required by the State of Texas and the School Nutrition Programs (SNP’s).

This Agreement is entered into and between the Purchaser and the Vendor having submitted a proposal in response to a procurement solicitation issued by the Purchaser and whose proposal has been accepted and awarded by the Purchaser. In consideration of the mutual covenants and conditions contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the

Purchaser and Vendor, intending to be legally bound, and subject to the terms, conditions, and provisions of this

Agreement, agree as follows:

1. PROCUREMENT METHOD: The Purchaser is utilizing the Request for Proposals (RFP) formal procurement method in accordance with Texas Education Code Section 44.0313 Purchasing Contracts, Request for Proposals for services other than construction services and the Texas Department of Agriculture’s Administrator’s Reference Manual (ARM) Section 17.

2. ESTIMATED QUANTITIES: The Purchaser determines estimated quantities for each product and/or service solicited. The good(s) and/or service(s) to be purchased are common to foodservice operations and pricing proposals along with other evaluation criteria as listed in this solicitation will be used to determine best value. The Purchaser makes no guarantee or commitment of any kind concerning quantities or services that will be purchased. The Purchaser makes no guarantee or commitment of any kind regarding usage of any contracts resulting from this solicitation.

3. COMMITMENT TO PURCHASE: The Purchaser relies on Federal Funding of the School Nutrition Programs for child nutrition department purchases. Federal Funding is not guaranteed; therefore, the Purchaser cannot guarantee that any commitment to purchase will withstand if Federal Funding is discontinued or lost.

4. AWARD OF CONTRACT: In accordance with applicable laws, rules, and regulations for public procurement, the

Purchaser award(s) the most responsive and responsible Vendor(s) whose proposal(s) is/are determined after evaluation by the Purchaser to be the best value. To qualify for evaluation, proposers must submit all required documents and pricing no later than the submission deadline identified in this document. Proposals that are “copyrighted” are unacceptable. The Purchaser may utilize separate ways to determine “best value:” 1.) Analyzes the total/aggregate cost, 2.) Analyzes by line‐item totals, 3.) Analyzes a representative sample, market‐basket method, (highest volume purchases planned) of specified products.

5. RIGHTS RESERVED BY THE PURCHASER AND RESTRICTIONS ON RFP PROCESS:

a. The Purchaser reserves the right to cancel this solicitation in whole or in part by issuance of a revised or amended Request for Proposals.

b. Accept, reject, or negotiate modifications in any terms of the Vendor’s proposal or any parts thereof.

c. Conduct oral interviews/discussions or presentations necessary to select the best value Vendor and/or to obtain competitive pricing.

d. The Purchaser reserves the right to reject and/or disqualify all proposals, to award contracts for individual products and/or services as may appear advantageous, and to negotiate separately in any manner necessary to serve the best interests of the Purchaser.

e. Waive any formalities, technicalities, or other defects if deemed in the best interest of the Purchaser;

request clarification and/or correction of the Vendor(s) for the purpose of eliminating minor errors, clerical errors, and/or non‐substantive irregularities.

f. The Purchaser also reserves the right to be the sole judge of quality and equality.

g. The Purchaser further reserves the right to award one or more contracts, in part or in whole, to a single or to multiple prospective vendors or proposers. The decision to award multiple contracts, award only one contract, or to make no awards, rests solely with the Purchaser. The Purchaser may make multiple awards, and this fact should be taken into consideration by each proposer.

h. Make all decisions regarding this RFP, including, without limitation, the right to decide whether a proposal complies with the requirements of this RFP.

6. FINANCIAL RESPONSIBILITY: The Purchaser assumes no financial responsibility for any costs incurred by prospective vendors in developing and submitting a proposal or any amendments or addenda, participating in pre‐bid conferences, interviews, participating in any negotiation sessions or discussions, or any other costs incurred by proposers prior to award of a Contract/Agreement pursuant to this RFP.

7. AGREEMENT TERMS: The terms of this Agreement shall govern all procurements conducted hereunder. No pre‐ established terms on the Vendor’s order acknowledgments, invoices, or other forms shall have any force or effect.

Further, no amendment of this Agreement shall be permitted unless first approved in writing from the Purchaser, and no such amendments shall have any effect unless and until a written amendment to this Agreement is executed by the Purchaser.

8. ADDENDUM: Any interpretations, corrections, additions, or changes to this RFP will be communicated to proposers by the issuance of an addendum. It is the responsibility of the proposer, prior to submitting the proposal, to determine whether an addendum was issued. The Purchaser will indicate all Addendums by listing edits/updates/changes as “footnotes” in the solicitation and “versions” noted in the title of the solicitation document. All proposers shall comply with the requirements specified in any addendum issued by the Purchaser.

9. CLARIFICATIONS: The Purchaser may request clarification from Vendor(s) for the purpose of eliminating minor errors, clerical errors, and/or non‐substantive irregularities. Clarification does not give a Vendor the opportunity to revise, change or modify its proposal in any way except to the extent of correction of the error. Discussion between the Purchaser and Vendor can also take place after the initial receipt of proposals. The Purchaser reserves the right to conduct discussions with all, some or none of the Vendors submitting proposals. The Purchaser will not assist the Vendor in the completion, revision, or modification of its proposal.

10. ASSIGNMENT DELEGATION: Vendor may not assign this Agreement or any of its rights, duties, or obligations hereunder without the prior written approval of the Purchaser. Any attempted assignment of this Agreement by Vendor shall be null and void. Any purchase or work order made because of this Agreement may not be transferred, assigned, subcontracted, mortgaged, pledged, or otherwise disposed of or encumbered in any way by Vendor without the prior written approval of the Purchaser. Vendor is required to notify the Purchaser when any material change in operations occurs, including but not limited to, changes in distribution rights for awarded products, bankruptcy, material changes in financial condition, change of ownership, and the like, within three (3) business days of such change.

11. PROHIBITION AGAINST CONTACT: Vendors shall restrict all contact with the Purchaser and direct all questions regarding this RFP to the Point of Contact specified in this solicitation. Do not contact members of the Board of Directors, the Purchaser’s staff members, or other related individuals to the Purchaser. Contact with any of these prohibited individuals after issuance of the RFP and before execution of a contract may result in disqualification of your Proposal.

12. DISQUALIFICATION: A Vendor may be disqualified before or after the proposals are opened, upon evidence of collusion with the intent to defraud, or evidence of intent to perform other illegal activities for the purpose of obtaining an unfair competitive advantage.

13. DEVIATIONS AND EXCEPTIONS: Deviations or exceptions stipulated in a vendor’s response may result in disqualification. Any language to the effect that the Vendor does not consider this RFP to be part of a contractual obligation may result in a disqualification of the Vendor’s proposal. Vendor must not alter any language in this Agreement.

14. SPECIFICATIONS: Specifications may be those developed by the Purchaser to represent items of regularly manufactured products or services.

a. The Purchaser’s specifications have been developed to show minimal standards as to the usage, materials, and contents based on their needs.

b. Manufacturer's specifications, when used by the Purchaser, are to be considered informative to give the bidder information as to the type and kind requested. Proposals on any reputable manufacturers regularly produced product of such items similar and substantially equivalent will be considered,

c. If any conflict exists, the written specification will override any referenced brand.

Compliance with all specifications and conditions is required. All proposals must include a detailed statement of exceptions taken to any part of the request.

15. EQUIVALENT CLAUSE: Whenever an article or material is defined in this solicitation by describing a proprietary product, or by using the name of a manufacturer, brand name or vendor, the term “or equal,” if not inserted, shall be implied (as applicable). The specified article or material shall be understood as indicating type, function, minimum standard of design, efficiency, and quality desired and shall not be construed as to exclude other manufactured products or comparable quality, design, and efficiency (as applicable).

16. CODES & STANDARDS:

a. NSF Standards: Vendors must comply with applicable National Sanitation Foundation (NSF) standards and recommended criteria and provide each principal item of food service equipment with an NSF Seal of Approval.

b. UL Labels: Where available, vendors must provide UL Labels on prime electrical components of food service equipment and provide UL “recognized marking” on other items with electrical components, signifying listing by UL, where available.

c. ANSI Standards: Vendors must comply with applicable ANSI standards for electric‐powered and gas‐ burning appliances, for piping to compressed‐gas cylinders, and for plumbing fittings, including vacuum breakers and air gaps to prevent siphonage in water piping.

17. SAMPLES: Samples may be requested and are to be delivered by the bidder to the attention of Michael Mitchell at 309 Main St. P.O Box 40 Maypearl Tx 76064 and may be reached at: michael.mitchell@maypearlisd.org and 972‐435‐1041 or other location designated by the Purchaser for examination of such samples.

a. Notification of sample delivery must be sent to the contact listed above via email and provide estimated delivery date, delivery tracking information, if applicable, actual delivery date, and who signed to accept delivery.

b. Samples needed for a proposal to be evaluated properly must be delivered within ten (10) working days from the time the vendor is notified.

c. Each sample must be clearly marked to show the bidder’s name, address, proposal title and proposal item number for which the sample is being proposed.

d. Sample items from the successful bidder may be retained for the purpose of determining that the quality and workmanship of the delivered items are comparable to the sample.

18. RESPONSIVE PROPOSAL: Proposals shall be deemed responsive if they comply with all material and administrative aspects of this procurement solicitation.

19. RESPONSIBLE VENDOR: A Vendor with adequate financial resources (or the ability to obtain such resources), can comply with the delivery requirements, and is a qualified and established firm regularly engaged in the type of business that provides the products and/or services herein, and have an adequate number of trained personnel to ensure quality and performance and completion of contract within the specified time. Vendors having a history of inconsistent service and unreliability will not be considered by the Purchaser to be a responsible bidder.

20. PENALTIES: If Vendor is unable to provide the goods or services at the prices quoted in Vendor’s proposal or if Vendor fails to fulfill or abide by the terms and conditions of the Agreement, the Purchaser may take the following action(s):

a. Insist that Vendor honor the quoted price(s) specified in the Vendor’s proposal.

b. Have the Vendor pay the difference between the Vendor’s price and the price of the next acceptable proposal, as determined by the Purchaser.

c. Have Vendor pay the difference between Vendor’s price and the actual purchase price of the good or service on the open market; and/or

d. Recommend that Vendor no longer be given the opportunity to submit a proposal to the Purchaser and/or that this Agreement be terminated.

21. RIGHT TO AUDIT: The Purchaser, shall upon adequate written notice, have the right to audit and examine all of Vendor’s records and accounts relating to the products and services delivered under this Agreement as outlined below. Records to be audited shall occur during normal business hours and shall include, but are not limited to, all Purchase Orders resulting from this Agreement and records which may have a bearing on matters in connection with Vendor’s work for the Purchaser and shall be open to inspection and subject to audit/review and/or reproduction by the Purchaser at the cost of the requestor or their authorized representative(s) to the extent necessary to adequately permit evaluation and verification of:

a. Vendors compliance with this Agreement and the requirements of the solicitation.

b. Compliance with procurement laws, policies, and procedures, including without limitation, reviewing/comparing pricing on invoices for the Purchaser.

c. Compliance with provisions for computing billings to the Purchaser, and/or

d. Any other matters related to this Agreement.

22. OPEN RECORDS/PUBLIC INFORMATION: The Purchaser is considered a governmental entity subject to the Texas Public Information Act. The Purchaser considers all information, documentation and other materials requested to be submitted in response to this solicitation to be of a non‐confidential and/or non‐proprietary nature and therefore shall be subject to public disclosure under the Texas Public Information Act, (Texas Government Code, Chapter 552.001, et seq.,) after a contract/agreement is awarded or the procurement terminated. Proposers are hereby notified that the Purchaser strictly adheres to all statutes, court decisions, and opinions of the Texas Attorney General with respect to disclosure of information. Any information deemed to be confidential by Proposer should be clearly noted on the page(s) where confidential information is contained, page‐by‐page and line‐by‐line the parts of the response which it believes are exempt; however, the Purchaser cannot guarantee that it will not be compelled to disclose all or part of any public record under the Texas Public Information Act, since information deemed to be confidential by Proposer may not be considered confidential under Texas law, or pursuant to a Court order. Vague or general claims of confidentiality will not be accepted. The Purchaser assumes no obligation or responsibility relating to the disclosure or nondisclosure of information submitted by proposers.

Vendor waives any claim against and releases from liability the Purchaser, its officers, employees, agents, and attorneys with respect to disclosure of information provided under or in the Agreement or otherwise created, assembled, maintained, or held by Vendor and determined by the Purchaser, the Attorney General of Texas, or a court of law to be subject to disclosure under the Texas Public Information Act.

23. CONFIDENTIALITY: Vendor and the Purchaser agree to secure the confidentiality of all information and records in accordance with the applicable federal and state laws, rules, and regulations. Vendor and the Purchaser understand that the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g, governs the privacy and security of educational records and information and agree to abide by FERPA rules and regulations, as applicable.

24. INSPECTION AND ACCEPTANCE ON DIRECT DELIVERIES: Awarded Vendor(s) shall deliver the goods or services procured in this contract/agreement to the Purchaser’s department as noted in the scope of bid. If delivery cannot be made within the proper time, the awarded vendor must receive authorization from the Purchaser’s department for the delayed delivery. The Purchaser shall have the right to inspect the goods at delivery before accepting them. If defective, incorrect, or items not meeting specification are delivered, the Purchaser may make the determination, in its sole discretion, to return the good(s) to the vendor at no cost to the Purchaser. The vendor shall be responsible for arranging the return of defective or incorrect good(s). The vendor agrees to pay all shipping and handling costs for any such return shipment. If goods are not picked up within one (1) week after notification, the good(s) will become a donation to the Purchaser for disposition.

25. TITLE AND RISK OF LOSS: Whenever the Purchaser is purchasing (and not leasing) an item under this Agreement, title and risk of loss shall pass upon the later of the Purchaser’s acceptance of the item or payment of the applicable invoice.

26. DELIVERIES: All deliveries under this Agreement shall be freight prepaid, Free on Board (FOB) destination, Full Freight Allowed, Inside Delivery and shall be included in all pricing in Vendors proposal. The Purchaser assumes no liability for goods delivered in damaged or unacceptable condition. The successful bidder will manage all claims with carriers, and in case of damaged goods, will ship replacement goods immediately upon notification by the Purchaser. Proposal prices will include all freight and delivery charges.

27. HOURS OF DELIVERY: Deliveries will only be accepted between 8:00 AM and 2:00 PM, unless otherwise specified. Vendors are required to leave deliveries inside the receiving area unless otherwise arranged by the Purchaser. Deliveries for special events or samples during evaluations shall be made between 8:00 AM and 3:00 PM, at the designated Purchaser’s address unless prior approval for after‐hours delivery has been obtained from the Purchaser.

28. SHIPMENTS/DELIVERIES: Vendor shall ship/deliver ordered products within seven (7) working days for available goods and within four (4) to six (6) weeks for special‐order items after the receipt of the purchase order unless otherwise previously agreed to, in writing, by the Purchaser. If a product cannot be shipped/delivered within that timeframe, Vendor shall notify the Purchaser of the reasons why the product has not shipped and shall provide an estimated shipping/delivery date, if applicable. The Purchaser may cancel the order if the estimated shipping/delivery time is not acceptable to the Purchaser in its sole discretion. Consistent failure of a Vendor to meet delivery promises without a valid reason is cause for termination of contract.

Vendor may be requested to “hot shot” deliver products if failure to deliver ordered products is fault of vendor.

“Hot shot” deliveries must be managed within a 24‐hour period of the original delivery time.

29. LEAD TIME: Time of delivery is part of the proposal consideration, must be stated in definite terms, and must be adhered to completely. Proposals must show the number of calendar days required to place the materials in the possession of the Purchaser. Do not quote shipping dates. Failure to specify the lead‐time may result in disqualification from consideration. Unrealistic short or long delivery promises may cause the bid to be disregarded.

30. SHORTAGES: Vendor and/or sales agents acting on the Vendors behalf shall give 72‐hour prior notice to the ordering entity of any anticipated shortages, back orders, and/or out‐of‐stock items prior to delivery. The Vendor must keep the ordering entity always informed on the status of the order. Default in promised delivery, without acceptable reason, authorizes the Purchaser to purchase goods elsewhere, and charge any increase in cost and handling to the defaulting Vendor. The Purchaser accepts no substitutions without prior written approval.

a. Vendors must notify the Purchaser of any known shortages, back orders, out‐of‐stock items, etc., that could affect multiple ordering entities for any extended period.

b. If Vendor fails to notify the Purchaser of a shortage, Vendor must deliver a comparable product on the same day of scheduled delivery or the next day to prevent the Purchaser any hardship or an inability to meet meal pattern guidelines.

c. Vendors may not substitute a product that does not meet the Buy American Provision. If a non‐domestic substitution is made without a 72‐hour notice to the Purchaser, contractor will be considered in breach of the awarded contract and may incur penalties as described in these Terms and Conditions.

31. FORMATION OF A CONTRACT (DECLARATION OF COMPLIANCE): A response to this solicitation is an offer to contract/agreement with the Purchaser based upon the terms, conditions, scope of work, and specifications contained in this procurement solicitation. A solicitation/proposal does not become a contract/agreement unless and until it is accepted by the Purchaser after approval by the Purchaser’s Board of Directors or Designee. Policy CH (Local) requires that the Purchaser’s Superintendent, or their authorized representative shall sign all contracts or agreements. No other personnel are authorized to execute or enter contracts on behalf of the Purchaser.

Upon notice of award, Vendor will be sent a formal letter of “award” along with a “contract agreement form” that must be signed and returned and will include a copy of all Terms and Conditions and other facets of this agreement.

32. NON‐EXCLUSIVE CONTRACT: The Purchaser reserves the right to award multiple contracts/agreements for each category. Categories are established at the sole discretion of the Purchaser. Nothing in this agreement may be construed to imply that Vendor has the exclusive right to provide products and/or services to the Purchaser. Any contract resulting from this solicitation is non‐exclusive and shall be awarded with the understanding and agreement that it is for the sole convenience of the Purchaser. The Purchaser is free to have multiple contracts for the awarded goods and services and may initiate other procurement solicitations or purchasing activity with other vendors at any time, at the Purchaser’s sole discretion. During the term of this Agreement, the Purchaser reserves the right to use all available resources to procure other products and/or services as needed and doing so will not violate any rights of Vendor. Additionally, the Purchaser may have a need to purchase additional items within this category that are not listed on the bid. Vendor is to make these items available to the Purchaser through this Contract/Agreement at the same discounted pricing awarded by the Board of Directors. Bids may be awarded to primary and secondary vendors on an item‐by‐item basis or by categories. End users may go to the secondary vendors to compare items for best value. If a Vendor has an existing Agreement with the Purchaser, in the same Agreement title, upon award, the new Agreement will immediately supersede the older contract.

33. FIRM/FIXED PRICING: All prices in Vendor’s proposal shall remain fixed and firm for the Term of the Agreement.

Pricing is submitted via electronic bid submission in Bonfire. Any price changes shall be presented to the Purchaser, for acceptance or rejection by the Purchaser, in its sole discretion, using the same format as was accepted in Vendor’s original proposal; all price changes for goods and/or services provided under this Agreement, must be approved, in writing, by the Purchaser prior to taking effect. The following documentation shall be provided to support a request for price change: justification for change/increase using a known market index/market condition, terms, and conditions, and/or manufacturers/distributors’ impact (if any).

a. Pricing shall encompass the costs of the product’s receipt into storage, distribution, financing and profit, production losses, analyses cost, waste, labor, overhead, and transportation costs of the specified products.

b. Proposal price must be submitted on cases and/or units of quantity specified and extended to show total if applicable.

c. Case price must be shown “to the penny” in two decimals unless otherwise indicated. Unit price must be shown with a minimum of four decimal places.

d. In the event of discrepancies in extension, the unit price will govern.

e. Vendors are encouraged to provide pricing on specified items, even if no estimated quantity is provided.

f. A discount from List quotations may be requested, but not part of the evaluation.

g. Proposer shall not include sales tax with any pricing. The Purchaser is exempt from Federal Excise Tax, State Tax, and Local Tax. Tax exemption certificates will be furnished upon request by each participating entity.

h. Proposer agrees, upon issuance and acceptance of this proposal, to furnish awarded items or services at the bid price and all other conditions contained in the Terms and Conditions, Specifications, other Special

Options Proposal Forms and bid documents within this Proposal.

i. Title to all supplies and equipment shall be passed to the Purchaser upon receipt except where hidden defects or other bid requirements or specifications are not met.

j. The Purchaser retains the right to request Special Pricing for the remaining contract period for products or services not specifically identified in this Proposal but purchased with sufficient movement as identified by mutual agreement of the Vendor and the Purchaser.

k. The Purchaser may structure a bid with “Pricing Area’s” to allow for fair and open competition between large and small companies. Vendors must have the ability to reach all campus sites in the Service Area if

Vendor decides to submit a response for that area.

l. The Purchaser may include “direct drop” deliveries as separate “Service Areas” that a vendor may offer separate pricing. Direct drops are deliveries to the Purchaser’s private storage or may require multiple deliveries per week.

34. CREDITS/DISCOUNTS/REBATES: Any credits, discounts and/or rebates a vendor may receive due to purchasing goods must be included in the pricing proposal or applied immediately upon purchase by the Purchaser and noted on the invoice.

Any discounts for early payments should be noted in the proposal. Vendor(s) may propose volume discounts or other adjustments to the price for large orders. Discounts may be considered in determining low proposal.

35. MARKET BASKET METHOD AND ADDING PRODUCTS: The Purchaser utilizes the “Market Basket” solicitation method that allows the Purchaser to procure a list of products with varied pricing options and evaluate using a “total price cost analysis” or “simplified total cost analysis.” Per TDA’s ARM, Section 17, pages 67‐70 (https://squaremeals.org/Portals/8/files/ARM/ARM_Complete_200812.pdf) when a CE plans to make purchases beyond the products listed on a current market basket contract, these purchases should be made using the appropriate procurement method: micro, small purchase, sealed bid, or competitive proposal.

However, if the Purchaser determines that adding the purchase of a limited number of products to a current market basket contract would be advantageous, the Purchaser may do so if:

The option to add products not included in the current market basket contract is described in the original solicitation and contract as a specific percentage of the estimated value of the contract. The specified percentage must be no more than 10% of the estimated value of the contract.

Adding new products to the contract must not cause the contract to exceed the estimated total value of the contract at the beginning of the contract year.

If the value for the purchase of the added products exceeds the specified percentage (no more than 10%), a separate procurement for those products will be conducted. The purchase of any additional products on an existing market basket contract that exceeds the specified percentage (no more than 10%) is an unallowable cost.

The Purchaser includes written item specifications that have zero known estimated quantities. Vendors are highly encouraged to propose bid pricing on all written specifications. Any product with a zero‐quantity listed will be placed on a “catalog list” if Vendor is awarded. The Purchaser has the right to add items from the “catalog list” throughout the contract term if the addition of product/products does not exceed the material change threshold of 10% of total contract value.

36. SPECIAL TOOLS AND TEST EQUIPMENT: If the price includes the cost of any special test equipment fabricated or required by the Vendor for filling this order, such special tooling and/or test equipment and any related items shall become the property of the Purchaser and shall be identified by the Vendor as such.

37. PRICE CHANGES/ADJUSTMENTS: During the life of a contract only industry‐wide published price changes as reflected in a manufacturer's printed price list, published documentation, or other approved method in a proposal may be submitted to the Purchaser for price adjustment consideration. The Purchaser will accept or reject increases after receipt of a properly submitted request from the Vendor, which includes documentation as to the nature of the change substantiated by, but not limited to, the following indexes: The Food Institute Report, Urner Barry Market Indexes, Producer Price Index (PPI), Consumer Price Index (CPI) and any other relevant commodity price indexes.

a. Price changes must be measurable and auditable, and supported by a published index, and supporting documentation must be submitted for review. The Producers Price Index is an accurate index for basing product price escalations and de‐escalations. The monthly “PPI Detailed Report,” “Table 9: Producer price indexes and percentage changes for commodity and service groupings and individual items, not seasonally adjusted” can be used as a reference for price adjustments, both up and down.

b. The Purchaser will respond to such requests by 1) granting the request; 2) reassigning the item(s) to another awarded vendor; 3) rebidding the item(s); 4) taking any other action as deemed necessary.

c. If a properly submitted increase is rejected, the vendor may cancel such items from the contract by giving the Purchaser written notice. Cancellation will not go into effect for thirty (30) working days after receipt of the written request. Old prices must be honored on orders dated up to the official date of cancellation. Vendors are required to immediately implement any industry wide price decreases that become available. The Purchaser must be notified in writing of any decrease for file updating purposes.

In the event a price change request is submitted based on Force Majeure due to COVID/or any Variant, or any other like‐type pandemic, the Purchaser will review each request on an as‐need basis. Vendor shall:

a. Notify the Purchaser of any pricing increases or decreases due to pandemic forces out of their control immediately.

i. Submit a formal letter along with any available supporting documentation stating the reasons for the increase, the percentage of vendor’s cost increase, and start date of new pricing (no sooner than 2‐weeks from time of notice to the Purchaser)

d. Submit a copy of the awarded price list that shows both original bid price and new increased or decreased price for each affected item on bid.

e. Receive written approval from the Purchaser for the acceptance of any increase.

f. Not increase original profit margin as submitted in the Vendor’s original bid response. Only external cost increases incurred by the Vendor to manufacture the awarded product will be approved.

Pricing increases implemented without the knowledge of the Purchaser and proper documentation with a minimum of 2 weeks prior notice submitted to the Purchaser will not be accepted and a credit back to the

Purchaser will be required.

38. PRODUCT SUBSTITUTION: All substitutions require prior written approval by the Purchaser unless otherwise pre‐ arranged (phone call, text). If applicable, the product substitution request must be accompanied by CN Label or Nutritional Analysis information, and/or other product information. The Purchaser reserves the right to require the Vendor to offer substitutes if any material or equipment becomes unobtainable during the term of the contract. Outstanding orders are not automatically amended by an approved substitution. The Vendor must contact the qualified ordering entity 72‐hours prior to shipment of the approved substitution.

a. If substitutions are made without prior written or verbal approval of the ordering entity, under Uniform Commercial Code, the entity shall retain the Right to Remedy and purchase the product(s) from another supplier, charging the difference of the bid price to the Vendor.

b. Bid pricing, based on “per serving cost,” for the product substituted will apply to the substitute product unless substitute product is of a lesser price and/or vendor can prove that reason for substituted product is not the fault or their own.

c. The Purchaser provides all awarded contractors with estimated quantities. Vendors are required to gather forecasted products and quantities from the Purchaser. Failure to effectively manage forecasts and order products in a timely fashion to meet the Purchaser’s needs will be considered as fault on the contractors’ behalf. It is recommended to forecast a minimum of 4‐6 weeks out to ensure proper and timely ordering.

d. Vendors may not substitute a product that does not meet the Buy American Provision. If a non‐domestic substitution is made without a 72‐hour notice to the Purchaser, contractor will be considered in breach of the awarded contract and may incur penalties as described in these Terms and Conditions.

39. ADDITIONAL GOODS AND/OR SERVICES: The Purchaser may request special pricing for new goods and/or services throughout the term of this contract. New goods and/or services must have prior written approval from the Purchaser. Only goods and/or services not specified elsewhere in the contract may be considered new. The additional goods and/or services allow the Purchaser to order items under the umbrella of a “market basket,” see definition above (#35). 1) “Additional Goods and/or Services” shall cover all items carried by the successful Vendor that are not specifically listed on the Item specifications. 2) The addition of new goods and/or services shall not exceed 10% of the contract value. The Purchaser remains the right to add new goods and/or services at the time of each one‐year extension option, if all parties are in agreement, for the following reasons:

1) allows for the replacement of items that were discontinued during the contract year if no other comparable item is available on bid;

2) allows for the replacement of goods and/or services that no longer meet the needs of the Purchaser due to nutritional changes or;

3) allows for the addition of new goods and/or services introduced by existing awarded Vendors that may better serve the Purchasers’ needs. Goods and/or services may not be added to avoid competitive procurement procedures. The addition of new goods and/or services cannot materially change the contract between the Purchaser and the Vendor. The Purchaser may reject any proposed additions, without cause, in its sole discretion.

40. MATERIAL CHANGE: If a material change occurs to a contract entered between the Purchaser and Vendor, the contract will not be renewed upon the conclusion of its term. Upon the expiration of the term, the Purchaser may issue a new RFP for the goods or services procured under the previously existing contract. Material change means a modification that exceeds and/or alters the terms of the original contract between the Purchaser and Vendor, and/or the total contract value greater than 10%. The following anticipated and unanticipated changes are to be considered as well do not qualify as a material change: 5% upward or downward trend in student enrollment and/or participation to allow flexibility for program growth or decline or unanticipated program and/or regulation changes.

41. CUSTOMER SUPPORT: Vendor shall provide timely and accurate technical advice and sales support to the

Purchaser. Vendor must provide an assigned Sales Rep(s) to the awarded contract and a direct phone number.

General “800” numbers are not allowed. Response time must be within a 24‐hour window unless during a holiday closure.

42. COMPLIANCE WITH LAWS: Vendor shall comply with all federal, state, and local laws, statutes, ordinances, rules, and regulations, including, if applicable, workers’ compensation laws, minimum and maximum salary and wage statutes and regulations, prompt payment and licensing laws and regulations. For the entire duration of this contract/agreement, Vendor shall maintain all required licenses, certifications, permits, and any other documentation necessary to perform this Agreement. When required or requested by the Purchaser, Vendor shall furnish the Purchaser with satisfactory proof of Vendor’s compliance with this provision.

43. SAFETY: Vendors, its subcontractors, and their respective employees shall comply fully with all applicable federal, state, and local safety and health laws, ordinances, rules, and regulations in the performance of services under this Agreement, including, without limitation, those promulgated by the Purchaser and by the Occupational Safety and Health Administration (“OSHA”). All items must meet all applicable OSHA standards and regulations and all electrical items must bear the appropriate listing from UL, FMRC or NEMA. In case of conflict, the most stringent safety requirements shall govern. Vendor shall comply with all other safety guidelines and standards as required by the Purchaser. Vendor shall indemnify and hold the Purchaser harmless from all claims, demands, suits, actions, judgements, fines, penalties, and liability of every kind arising from the breach of Vendor’s obligations under this provision.

44. NUTRITIONAL FACT SHEETS AND CN ANALYSIS: The Purchaser requires easy access to all nutritional labels and supporting CN documentation. The Purchaser prefers all vendors to utilize the Global Data Synchronization Network (GDSN), however it is not a requirement. Vendors are required to indicate in their bid response how they will provide access to current product data. Product data must include the nutritional fact sheet along with a signed and dated product analysis sheet for each product proposed in this solicitation. All labels and analysis are required to be within a 5‐year range from the current year. A vendor is required to maintain current labels throughout the life of the awarded contract.

45. BUY AMERICAN PROVISION: The Purchaser participates in the National School Lunch Program and School Breakfast Program and are required to use the nonprofit food service funds, to the maximum extent practicable, to buy domestic commodities or products for Program meals. A domestic commodity or product is defined as one that is either produced in the U.S. or is processed in the U.S. using agricultural commodities that are produced in the U.S. as provided in 7 CFR 210.21(d).

The Purchaser requires that all suppliers indicate in their proposal whether a bid product is domestic or non‐ domestic. Vendor is required to certify that each food product meeting the Buy American Provision is 51% of the final processed product (by weight or volume) that consists of agricultural commodities grown in the U.S. Any vendor not providing the required and requested information will be designated as “non‐responsive.”

Awarded vendors must provide all requested certifications and include information in their ordering systems if any product does not meet the Buy American Provision. Vendors found to be out of compliance repetitively with adhering to the terms of the awarded contract to provide the Purchaser with foods that meet the Buy American Provision will be terminated and the award will go to the next responsible and eligible bidder.

The Purchaser requires each vendor to submit documentation to include but not limited to vendor certification letters, pricing comparison for products also offered as domestic, and questions regarding country of origin or other information pertaining to justifications. Vendors are required to contact a CE within 72‐hours prior to delivery if a product is to be subbed with a non‐compliant/non‐domestic product. This allows the CE to reject the product or accept it after review of a justification for exception.

Vendor is required to certify that vendor complies with all applicable provisions of the Buy American Act. The Buy

American Provision requires school food authorities to schools to purchase, to the maximum extent practicable, domestic commodities or products. For a product to meet the Buy American requirement, over 51% of the final processed product (by weight or volume) must consist of agricultural commodities that were grown domestically and processed domestically. Unprocessed foods must be 100% domestic. See 7 CFR § 210.21(d), and USDA‐FNS memo SP 38‐2017 Compliance with and Enforcement of the Buy American Provision in the National School Lunch

Program. The Buy American provision applies to all purchases made with School Nutrition Program (SNP) funds.

Purchases made in accordance with the Buy American Provision must still follow the applicable procurement rules calling for full and open competition.

46. RECYCLED MATERIAL: Texas state law requires that a purchasing preference be given to any product made from recycled material if the product meets written specifications as to quality and quantity. If a product offered on this solicitation contains recycled material, identify the item number, and report the percentage of all recycled material in the product and the percentage of post‐consumer material used in the product. "Post‐ consumer" means material that has been recycled after sale to a consumer as opposed to reuse of manufacturing waste material prior to sale. In addition, identify any products that meet the criteria of "Environmentally Sensitive."

a. Send information on any products not listed in this contract that are related and available through your company which contain recycled material along with the percent of post‐ and pre‐consumer content to:

ATTN: “Michael Mitchell, Maypearl Independent School District, 309 Main St PO Box 40 Maypearl, Tx 76064

b. Packing & Packaging: Use of the minimum amount of packing and packaging material consistent with assuring no damage to product in transit. The use of recyclable and recycled material content packing and packaging material is preferred.

c. New or Un‐used: The terms shall not be interpreted to exclude the use of recycled content materials in products supplied. Nothing in a solicitation shall be construed to preclude the use of recycled content materials in a product regardless of any referenced specifications such as ANSI, ASTM, or Federal specifications so long as the material meets the performance requirements of such specifications and all required laws and regulations.

47. FORCE MAJEURE: If by any reason of Force Majeure, either party hereto shall be rendered unable wholly or in part to carry out its obligations under this agreement then such party shall give notice and full particulars of Force Majeure in writing to the other part within a reasonable time after occurrence of the event or cause relied upon, and the obligation of the party giving such notice, so far as it is affected by such Force Majeure, shall be suspended during the continuance of the inability then claimed, except as herein provided, but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term Force Majeure as employed herein, shall mean acts of God, strikes, lockout, or other industrial disturbances, pandemics, network failures, energy crisis, fires, transportation contingencies, interruptions in third‐party telecommunications or Internet equipment or service, act of public enemy, orders of any kind of government of the United States or the State of Texas or any civil or military authority, insurrections, riots, epidemics, arrests, restraint of government and people, civil disturbances, explosions, acts of war, other catastrophes, or any other occurrences which are reasonably beyond such party’s control. The parties to this Agreement are required to use due caution and preventative measures to protect against the effects of force majeure, and the burden of proving that a force majeure event has occurred shall rest on the party seeking relief under this provision. The party seeking relief due to force majeure is required to promptly notify the other party in writing, citing the details of the force majeure event and relief sought, and shall resume performance immediately after the obstacles to performance caused by a force majeure event have been removed, provided the Agreement has not been terminated. Delay or failure of performance, by either party to this Agreement, caused solely by a force majeure event, shall be excused for the period of delay caused solely by the force majeure event. Neither party shall have any claim for damages against the other resulting from delays caused solely by force majeure. Notwithstanding any other provision of this Agreement, in the event the Vendor’s performance is delayed or stopped by a force majeure event, the Purchaser shall have the option to terminate this Agreement. This section shall not be interpreted as to limit or otherwise modify any of the Purchaser’s contractual, legal, or equitable rights.

48. GOVERNING LAW AND VENUE: The laws of the State of Texas, without regard to its provisions on conflicts of laws, shall govern this Agreement. Any dispute under this Agreement may be brought in the state and federal courts located in Dallas County, Texas, and the parties hereby submit to the exclusive jurisdiction of said courts.

49. PROPERTY: In the event of loss, damage, or destruction of any property owned by or loaned by the Purchaser that is caused by Vendor or Vendor’s representative, agent, employee or contractor, Vendor shall indemnify the Purchaser and pay to the Purchaser the full value of or the full cost of repair or replacement of such property, whichever is greater, within thirty (30) days of the Vendor’s receipt of written notice of the Purchaser determination of the amount due. If the Vendor fails to make timely payment, the Purchaser may obtain such money from Vendor by any means permitted by law, including, without limitation, offset or counterclaim against any money otherwise due to Vendor by the Purchaser.

50. INDEMNIFICATION: The Vendor shall indemnify, defend, and hold harmless the Purchaser its board of directors, officers, employees, agents, and representatives from and against all claims, demands or liability for damages, losses, or other relief, including, without limitation attorneys’ fees and costs which the Purchaser may incur arising from the Vendor’s performance of its obligations under this agreement. The foregoing shall include, without limitation: (i) injuries to or death of person; (ii) damage to property; or (iii) theft or loss of property, resulting from, in whole or part, any acts omissions or other conduct of Vendor and/or of any of Vendor’s agents, servants, or employees, or any other person or entity employed directly or indirectly by Vendor in connection with performance of the Vendor’s obligations and their respective agents, officers or employees. If any action or proceeding, whether judicial, administrative, or otherwise, shall be commenced against the Purchaser on account of any claim, demand, or liability subject of this indemnification agreement the Vendor shall, at its sole cost and expense, defend the Purchaser in such action or proceeding with counsel reasonably satisfactory to the Purchaser. In the event that there shall be any judgment, award, ruling, settlement, or other relief arising out of any such action or proceeding to which the Purchaser is bound by, Vendor shall pay, satisfy or otherwise discharge any such judgment, award, ruling, settlement or relief; Vendor shall indemnify and hold harmless the Purchaser, from any and all liability or responsibility arising out of any such judgment, award, ruling, settlement or relief.