Exhibit D Contract.docx

CONTRACT

NO. 02524

FOR

FRESH DAIRY PRODUCTS

FOR USE IN THE FOLLOWING:

REGION(S)_________

CATEGORY(IES)________

For Use by Eligible Purchasers

By and Between

STATE OF WASHINGTON

DEPARTMENT OF ENTERPRISE SERVICES

and

Dated _____________________, 2025

CONTRACT NO. 02524– FRESH DAIRY PRODUCTS 7

(Rev. 2024-08-19)

CONTRACT NO. 02524

FOR

FRESH DAIRY PRODUCTS

REGION ______________

CATEGORY(IES) ____________

This Washington Statewide Contract (“Contract”) is made and entered into by and between the State of Washington acting by and through the Department of Enterprise Services, a Washington State governmental agency (“Enterprise Services”) and ____________________, a ________________ (“Contractor”) and is dated and effective as of _______________ __, 2025.

R E C I T A L S A. Pursuant to Legislative authorization, Enterprise Services, on behalf of the State of Washington, is authorized to develop, solicit, and establish enterprise procurement solutions, including contracts, for goods and/or services to support Washington state agencies. See RCW 39.26.050(1). The Washington State Legislature also has authorized Enterprise Services to make these contracts available, pursuant to an agreement in which Enterprise Services ensures full cost recovery, to other local or federal government agencies or entities, public benefit nonprofit organizations, and any tribes located in the State of Washington. See RCW 39.26.050(1) & (2).

B. The State of Washington, through various state agencies (e.g., Department of Corrections, Department of Social and Health Services, Department of Veterans Affairs,) is entrusted with the care of individuals, including the provision of meals. Accordingly, to provide an enterprise procurement solution for all Washington state agencies as well as other eligible purchasers as defined in this Contract, including school districts and higher education, to procure such products as milk, cheese, yogurt, buttermilk, butter, sour cream, cottage cheese, and ice cream (“Fresh Dairy Products”) in a cost-effective and efficient manner from responsible, qualified Contractors using the terms and conditions of this contract.

C. On behalf of the State of Washington, Enterprise Services, as part of a competitive governmental procurement, issued Competitive Solicitation No. 02524 dated __________, 2025 for Fresh Dairy Products.

D. Enterprise Services evaluated all responses to the Competitive Solicitation and identified Contractor as an apparent successful bidder for the above-stated Geographic Area(s).

E. Enterprise Services has determined that entering into this Contract will meet the identified needs and be in the best interest of the State of Washington.

F. The purpose of this Contract is to enable eligible purchasers to purchase the Goods and/or Services as set forth herein.

A G R E E M E N T NOW THEREFORE, in consideration of the mutual promises, covenants, and conditions set forth herein, the parties hereto hereby agree as follows:

1. TERM. The term of this Contract is twenty-four (24) months, commencing July 1, 2025 and ending June 30, 2027; Provided, however, that if Contractor is not in default and if, by July 1, 2027, in Enterprise Services’ reasonable judgment, Contractor satisfactorily has met the performance-based goals for contract extension, Enterprise Services may extend the term of this Contract, by written amendment, for up to thirty-six (36) additional months. Such extension amendment shall be on the same terms and conditions as set forth in this Contract. To earn the performance-based Contract term extension, Contractor must achieve the following performance-based metrics:

Note: Contractor must pay the VMF within thirty (30) calendar days of invoice from Enterprise Services. If Contractor is delinquent in timely paying the VMF for three (3) or more quarters within the first nine (9) quarters of the Contract term, Contractor shall not be eligible for a performance-based extension.

Contract Sales Reports:

Contractor timely provides to Enterprise Services, with no less than a 90% on time rate over the contract term, the required Contract quarterly sales reports.

Note: Contractor must provide the quarterly sales reports to Enterprise Services within thirty (30) calendar days of the quarter’s end. If Contractor is delinquent in providing the quarterly sales reports for three (3) or more quarters within the first nine (9) quarters of the Contract term, Contractor shall not be eligible for a performance-based extension.

2. ELIGIBLE PURCHASERS. This Contract may be utilized by any of the following types of entities (each an eligible “Purchaser”):

2.1. WASHINGTON STATE AGENCIES. All Washington state agencies, departments, offices, divisions, boards, and commissions.

2.2. WASHINGTON STATE INSTITUTIONS OF HIGHER EDUCATION. Any the following institutions of higher education (colleges) in Washington:

· State universities – i.e., University of Washington & Washington State University;

· Regional universities – i.e., Central Washington University, Eastern Washington University, & Western Washington University

· Evergreen State College;

· Community colleges; and

· Technical colleges.

2.3. CONTRACT USAGE AGREEMENT PARTIES. Any of the following types of entities that have executed a Contract Usage Agreement with Enterprise Services:

· Political subdivisions (e.g., counties, cities, school districts, public utility districts) in the State of Washington;

· Federal governmental agencies or entities;

· Public-benefit nonprofit corporations (i.e., public benefit nonprofit corporations as defined in RCW 24.03A.245) who receive federal, state, or local funding); and

· Federally recognized Indian Tribes located in the State of Washington.

3. SCOPE: INCLUDED GOODS AND/OR SERVICES & PRICES.

3.1. CONTRACT SCOPE. Pursuant to this Contract, Contractor is authorized to sell and provide only those specified Fresh Dairy Products for the specified Geographic Area(s) for the prices set forth in Exhibit A –Included for Goods/Services & Pricing. Contractor shall not represent to any Purchaser under this Contract that Contractor has contractual authority to sell or provide any Goods and/or Services beyond those set forth in Exhibit A – Included Goods/Services & Pricing.

(a) Goods. For purposes of this Contract, “Goods” means Fresh Dairy Products included in Exhibit A – Included Goods/Services & Pricing purchased by Purchaser pursuant to this Contract and as identified in the Purchase Order.

(b) Services. For purposes of this Contract, “Services” means all services of any nature ordered by Purchaser pursuant to this Contract and as identified in the Purchase Order.

(c) Specifications. Where applicable, specifications for Goods and/or Services are detailed in this Contract and the Purchase Order.

3.2. STATE’S ABILITY TO MODIFY SCOPE OF CONTRACT. Subject to mutual agreement between the parties, Enterprise Services reserves the right to modify the Goods and/or Services included in this Contract; Provided, however, that any such modification shall be effective only upon thirty (30) calendar days advance written notice; and Provided further, that any such modification must be within the scope of the Competitive Solicitation for this Contract.

3.3. ECONOMIC ADJUSTMENT. Beginning May 2026, Contractor may request price adjustments to the Fixed Fee set forth in Exhibit A – Prices for Goods/Services & Pricing. Requests for price adjustments must be made in writing and received thirty (30) days prior to the adjustment date. Adjustments to the Fixed Fee shall occur no more frequently than once annually based upon the percent change in the United States Department of Labor, Bureau of Labor and Statistics (BLS) Consumer Price Index for “Delivery and Warehouse Industries, not seasonally adjusted” (PCUADLVWRADLVWR).

All calculations for the index shall be based upon the percentage changes (whether up or down) in the BLS latest version of data published. If an index is recoded (i.e., the recoded index is a direct substitute for the prior index according to the BLS), this Contract will use the recoded index, as applicable. If an index becomes unavailable, Enterprise Services shall substitute a proxy index. If there is not a direct substitute, the next higher aggregate index available shall be used. The economic adjustment shall be calculated as follows:

New Price = Old Price x (Current Period Index/Base Period Index).

The “Current Period Index” is the average of the most recent twelve months of non-Preliminary BLS index values, and the “Base Period Index” is the average of the twelve months of non-preliminary BLS index values prior to the Current Period Index.

Request for Economic Adjustment must occur between May 1 and May 31 of each year. Effective date of change will occur on July 1 of that year. Enterprise Services reserves the right to accept request outside of this period.

3.4. Monthly Pricing Adjustments.

Contractor is permitted, monthly, to update “Bidder Cost FOB (landed)” as indicated in Exhibit A – Prices for Goods/Services & Pricing as applicable. Price updates shall be based upon the Federal Milk Marketing Order (FMO) price or the Pacific Northwest FO 124 or a combination of both.

Updated contract dairy pricing is to be provided to Enterprise Services no later than three business days prior to the next month. Bidders’ will submit Enterprise Services provided price sheet showing separately Bidder’s Landed Cost, Bidder Fixed Fee, and Unit Price. Price sheet to be provided at time of Vendor On-Boarding. Enterprise Services will update Bidder’s price sheet in the event of an Economic Adjustment.

Bidders’ who do not submit prices three business days prior to the next month will honor their prior months prices for any orders placed within the first week of the new month, at a minimum, or until new pricing has been submitted and updated by Enterprise Services. Bidder needs to allow Enterprise Services three (3) days for processing.

3.5. PRICE CEILING. Although Contractor may offer lower prices to Purchasers, during the term of this Contract, Contractor guarantees to provide the Goods and/or Services at no greater than the prices set forth in Exhibit A – Prices for Goods/Services & Pricing (subject to economic or other adjustment, such has the Monthly Pricing Adjustment for Landed Costs in Section 3.4 or other adjustments as set forth herein).

3.6. CONTRACT INFORMATION. Enterprise Services shall maintain and provide to eligible Purchasers information regarding this Contract, including scope, pricing, and lowest responsive, responsible bidder designation. In addition, Enterprise Services identifies awarded contractors who qualify as Washington Small Businesses, Certified Veteran-Owned Businesses, or that, pursuant to the Contract provide Goods/Services that meet specified state procurement priorities as set forth in the Competitive Solicitation.

4. CONTRACTOR REPRESENTATIONS AND WARRANTIES. Contractor makes each of the following representations and warranties as of the effective date of this Contract and at the time any order is placed pursuant to this Contract. If, at the time of any such order, Contractor cannot make such representations and warranties, Contractor shall not process any orders and shall, within three (3) business days notify Enterprise Services, in writing, of such breach.

4.1. QUALIFIED TO DO BUSINESS. Contractor represents and warrants that Contractor is (a) in good standing; (b) qualified to do business in the State of Washington; and (c) registered with the Washington State Department of Revenue and the Washington Secretary of State.

4.2. TAXES. Contractor represents and warrants that Contractor is current, in full compliance, and has paid all applicable taxes owed to the State of Washington.

4.3. LICENSES; CERTIFICATIONS; AUTHORIZATIONS; & APPROVALS. Contractor represents and warrants that Contractor possesses and shall keep current during the term of this Contract all required licenses, certifications, permits, authorizations, and approvals necessary for Contractor’s proper performance of this Contract.

4.4. SUSPENSION & DEBARMENT. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that neither Contractor nor its principals or affiliates presently are nor have ever been debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in any governmental contract by any governmental department or agency within the United States.

4.5. CIVIL RIGHTS. Contractor represents and warrants that Contractor complies with all applicable requirements regarding civil rights. Such requirements prohibit discrimination against individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin.

4.6. WASHINGTON STATE WAGE THEFT PREVENTION. Contractor represents and warrants as previously certified in Contractor’s Bidder’s Certification, that during the term of this Contract and the three (3) year period immediately preceding the award of the Contract, Contractor has not been determined, by a final and binding citation and notice of assessment issued by the Washington Department of Labor and Industries or through a civil judgment entered by a court of limited or general jurisdiction, to be in willful violation of any provision of Washington state wage laws set forth in RCW 49.46, 49.48, or 49.52.

4.7. WASHINGTON STATE WORKERS’ RIGHTS (EXECUTIVE ORDER 18-03) TBD. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor does NOT require its employees, as a condition of employment, to sign or agree to mandatory individual arbitration clauses or class or collective action waivers. Contractor further represents and warrants that, during the term of this Contract, Contractor shall not, as a condition of employment, require its employees to sign or agree to mandatory individual arbitration clauses or class or collective action waivers.

4.8. WASHINGTON STATE PAY EQUALITY FOR ‘SIMILARLY EMPLOYED’ INDIVIDUALS. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that, among Contractor’s employees, ‘similarly employed’ individuals are compensated as equals. For purposes of this provision, employees are similarly employed if the individuals work for the same employer, the performance of the job requires comparable skill, effort, and responsibility, and the jobs are performed under similar working conditions. Job titles alone are not determinative of whether employees are similarly employed. Contractor may allow differentials in compensation for Contractor’s workers based in good faith on any of the following: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; a bona fide job-related factor or factors; or a bona fide regional difference in compensation levels. A bona fide job-related factor or factors may include, but is not limited to, education, training, or experience that is: consistent with business necessity; not based on or derived from a gender-based differential; and accounts for the entire differential. A bona fide regional difference in compensation level must be consistent with business necessity; not based on or derived from a gender-based differential; and account for the entire differential. Notwithstanding any provision to the contrary, upon breach of warranty and Contractor’s failure to provide satisfactory evidence of compliance within thirty (30) days, Enterprise Services may suspend or terminate this Contract and any Purchaser hereunder similarly may suspend or terminate its use of the Contract and/or any agreement entered into pursuant to this Contract.

4.9. WASHINGTON SMALL BUSINESS TBD. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor qualifies as a Washington Small Business as defined and set forth in Contractor’s Bidder’s Certification.

4.10. CERTIFIED VETERAN-OWNED BUSINESS TBD. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor qualifies as a Certified Veteran-Owned Business as defined and set forth in Contractor’s Bidder’s Certification.

4.11. PUBLIC CONTRACTS AND PROCUREMENT FRAUD. Contractor represents and warrants that, within the three (3) year period prior to this Contract, neither Contractor nor its principals or affiliates: (a) have been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offence in connection with obtaining, attempting to obtain, or performing a public (federal, state, local, or tribal) contract or purchase order under a public contract; (b) have been in violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements or receiving stolen property; (c) have been indicted for or otherwise criminally or civilly charged by a government entity (federal, state, local, or tribal) with commission of any of the offense enumerated in subsection (b) of this provision; or (d) had one or more public contracts (federal, state, local, or tribal) terminated for cause or default.

4.12. PROCUREMENT ETHICS & PROHIBITION ON GIFTS. Contractor represents and warrants that Contractor complies fully with all applicable procurement ethics restrictions including, but not limited to, restrictions against Contractor providing gifts or anything of economic value, directly or indirectly, to Enterprise Services and Purchasers’ employees.

4.13. WASHINGTON’S ELECTRONIC BUSINESS SOLUTION (WEBS). Contractor represents and warrants that Contractor is registered in Washington’s Electronic Business Solution (WEBS), Washington’s contract registration system and that, all of Contractor’s information therein is current and accurate and that throughout the term of this Contract, Contractor shall maintain an accurate profile in WEBS.

4.14. WASHINGTON’S STATEWIDE PAYEE DESK. Contractor represents and warrants that Contractor is registered with Washington’s Statewide Payee Desk, which registration is a condition to payment.

4.15. CONTRACT PROMOTION; ADVERTISING AND ENDORSEMENT. Contractor represents and warrants that Contractor shall use commercially reasonable efforts both to promote and market the use of this Contract with eligible Purchasers and to ensure that those entities that utilize this Contract are eligible Purchasers. Contractor understands and acknowledges that neither Enterprise Services nor Purchasers are endorsing Contractor’s Goods and/or Services or suggesting that such Goods and/or Services are the best or only solution to their needs. Accordingly, Contractor further represents and warrants that Contractor shall make no reference to Enterprise Services, any Purchaser, or the State of Washington in any promotional material without the prior written consent of Enterprise Services.

4.16. CONTINGENT FEES. Contractor represents and warrants that no person or selling agent has been employed or retained to solicit or secure this Contract upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established agents as defined in the Federal Acquisition Regulations.

4.17. FINANCIALLY SOLVENT. Contractor represents and warrants that Contractor has not commenced bankruptcy proceedings and that there are no judgment, liens, or encumbrances of any kind affecting title to any Goods and/or Services that are the subject of this Contract.

4.18. OPERATIONAL CAPABILITY. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification, that Contractor has the operational and financial capability to perform the Contract.

4.19. CONTRACT TRANSITION. Contractor represents and warrants that, in the event this Contract or a similar contract, is transitioned to another contractor (e.g., Contract expiration or termination), Contractor shall use commercially reasonable efforts to assist Enterprise Services (including the Purchasers hereunder) for a period of sixty (60) calendar days to effectuate a smooth transition to another contractor to minimize disruption of service and/or costs to the State of Washington and such Purchasers; Provided, however, that, if costs are incurred, Contractor shall be compensated for such costs consistent with the terms and conditions pertaining to this Contract for the sixty (60) day period immediately before such transition.

4.20. WASHINGTON GROWN FOOD/PRODUCTS. Contractor represents and warrants, as previously certified in Contractor’s bidder certification, that it will use commercially reasonable efforts to: (a) meet Purchaser demand for Fresh Dairy Products that qualify as Washington Grown Food/Products; (b) identify in Contractor’s catalog those products included with Fresh Dairy Products that qualify as Washington Grown Food/Products; and (c) continually work to offer Fresh Dairy Products that qualify as Washington Grown Food/Products at a competitive price. Fresh Dairy Products that qualify as Washington Grown Food/Products, if available, shall be designated as ‘Washington Grown.’ With the exception of the ‘landed cost,’ such Washington Grown Fresh Dairy Products shall be priced as set forth in this Contract. Contractor, to the greatest extent possible, shall provide a ‘landed cost’ for such Washington Grown Fresh Dairy Products consistent with this Contract.

4.21. BUY AMERICAN. Contractor represents and warrants, as previously certified in Contractor’s Bidder’s Certification – Buy American, that Contractor shall offer dairy and/or juice products that complies with the Buy American Requirements. Accordingly, Contractor shall provide dairy and/or juice products for purchases and certify that such dairy and/or juice products are either unprocessed commodities or products that are produced in the United States or are processed in the United States and contain over 51% of its agricultural food component, by weight or volume, from the United States in accordance with section 12(n) of the National School Lunch Act and the implementing regulations. See 42 USC § 1760(n); and 7 CFR § 210.21(d).

4.22. FEDERAL LOBBYING – BYRD ANTI-LOBBYING AMENDMENT. Contractor represents and warrants, as previously certified in Contractor’s bidder certification, that Contractor complies with the federal Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104-65 [to be codified at 2 U.S.C. § 1601, et seq.].

4.23. DELIVERIES TO SCHOOLS – CONTRACTOR PERSONNEL. Contractor represents and warrants, as previously certified in Contractor’s bidder certification, that, for any Contract deliveries to schools, Contractor shall use commercially reasonable efforts to ensure that such deliveries shall not be performed by any Contractor personnel who Contractor, upon reasonable inquiry and investigation, has reason to know has pled guilty to or been convicted of any felony crime specified under RCW 28A.400.322 (crimes against children).

4.24. WAREHOUSING AND SANITATION PROGRAM. Contractor represents and warrants that Contractor has developed and will maintain a sanitation program to comply, with the Code of Federal Regulation, Title 21 Part 110 and other applicable federal, state, or local standards. Records of inspections performed by Contractor, subcontractor, or recognized industry association shall be maintained and made available to Enterprise Services upon request. Any findings by Contractor or its agent documenting a critical sanitation deficiency shall be reported immediately to Enterprise Services with an attached report of corrective action.

4.25. PRODUCT SANITARY APPROVED SOURCE REQUIREMENTS. Applicable food products, delivered to customers shall originate either from an establishment which has been inspected under the guidance of the United States Department of Commerce (USDC) or the United States Department of Agriculture (USDA).

4.26. STORED PRODUCTS PEST MANAGEMENT PROGRAM. Contractor shall develop and maintain a stored products pest management program for all Fresh Dairy Products sold and delivered pursuant to this Contract. Accepted industry standards for pest management shall include, but are not limited to, the Code of Federal Regulations, Title 21, part 110, Food Manufacturing Practices, the Federal Insecticide, Fungicide and Rodenticide Act (as amended), the Food, Drug, and Cosmetic Act of 1938, and pertinent federal, state, and local laws and regulations.

4.27. HAZARD ANALYSIS CRITICAL CONTROL POINT (HACCP) PROGRAM. Contractor represents and warrants that Contractor has developed and will maintain a HACCP Program or good manufacturing practices (GMP). Upon request, Contractor shall provide Enterprise Services a copy of their HACCP program.

5. QUALITY; WARRANTY; REMEDIES.

5.1. GOODS WARRANTY. Contractor warrants that, for a period of twelve (12) months from the date when the Goods are put into use, or eighteen (18) months after delivery of the Goods, whichever is later (“Goods Warranty Period”), the Goods: (a) are free from defects in design, material, and workmanship; (b) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any); (c) are consistent with recognized industry quality standards; (d) comply with the requirements, specifications, drawings, standards, and descriptions included in this Contract; and (e) are produced and delivered in full compliance with applicable law (“Goods Warranty”). Contractor further warrants that it has good and marketable title to the Goods and shall keep Purchaser’s property free of liens. If Purchaser receives notice of a lien caused by Contractor, Purchaser may withhold any payment otherwise due Contractor until Contractor submits proof, in a form satisfactory to Purchaser, that all lienable claims have been fully paid or waived.

5.2. GOODS REMEDY. If Goods do not comply with the Goods Warranty or any defects develop during the Goods Warranty Period under normal use, at Purchaser’s election, Contractor promptly shall remedy the defect by removing, repairing, correcting, or replacing, and/or reinstalling any defective Goods. Contractor’s Goods Warranty support shall include, at Contractor’s sole expense, all technical support, parts, materials and equipment, and labor, including freight and “in/out” costs required to address the defect. If, in Purchaser’s judgment, repair or replacement is inadequate, or fails of its essential purpose, Contractor shall refund the full amount of any payments that have been made. The rights and remedies of the parties under this warranty are in addition to any other rights and remedies of the parties provided by law or equity, including, without limitation, actual damages, and, as applicable and awarded under the law, to a prevailing party, reasonable attorneys’ fees and costs.

5.3. FAILURE TO REMEDY. If Contractor does not remedy a defect or nonconformity within ten (10) calendar days after receipt of written notice from Purchaser, or if an emergency exists rendering it impossible or impractical for Purchaser to have Contractor provide a remedy, Purchaser may, without prejudice to any other rights or remedies available to it, make or cause to be made required modifications, adjustments, or repairs, or may replace Goods, Services, IT Goods, or IT Services, in which case Contractor shall reimburse Purchaser for its actual costs or, at Purchaser’s option, Purchaser shall offset the costs incurred from amounts owing to Contractor.

5.4. TECHNICAL SUPPORT. During any applicable warranty period, Contractor shall provide all warranty service and telephone support, including after-hour technical support, at its own cost. Contractor shall maintain a technical support hotline to address breakdowns and safety incidents.

6. SAFETY; SECURITY; CONTRACTOR REQUIREMENTS WHILE ON PURCHASER’S PREMISES. Contractor’s failure to comply with any of the requirements in this Section shall be cause for termination.

6.1. REGULATORY REQUIREMENTS/SAFETY. Fresh Dairy Products supplied by Contractor shall meet all applicable health, safety, and other federal, state, local, and/or tribal regulatory requirements applicable to the Goods and/or Services.

6.2. MATERIAL SAFETY DATA SHEETS. As applicable, Contractor shall provide Purchaser with all appropriate current Material Safety Data Sheets (“MSDS”) at the time of delivery of each shipment of Goods which requires such compliance.

6.3. CLEAN-UP. In performing this Contract, Contractor, its agents, employees, or subcontractors shall remove all excess materials, equipment, packaging, and garbage from Purchaser’s premises and leave such premises in the same condition as existed prior Contractor’s activity. Should Contractor fail to clean up a Site after completion of work, Purchaser shall have the right to remove the debris and set off the cost of clean up against amounts owed to Contractor.

6.4. ACCIDENT AND INJURY REPORTING. If Contractor, its agents, employees, or subcontractors are present at Purchaser’s premises, Contractor promptly shall report in writing all injuries, accidents, property damage, near-miss incidents, or any claims regarding damages or injury involving Contractor, its agents, employees, or subcontractors occurring at such premises. Contractor agrees to cooperate and assist Purchaser in any investigation of incidents.

6.5. ON-SITE REQUIREMENTS. As applicable, while on Purchaser’s premises or while interacting with Purchaser and/or Enterprise Services’ personnel, Contractor, its agents, employees, or subcontractors shall comply, in all respects, with Purchaser’s physical, fire, access, safety, health, and security requirements and not interfere with Purchaser’s operations. Contractor represents and warrants that Contractor, its agents, employees, or subcontractors who access Purchaser’s premises shall be adequately trained and at all times comply with Purchaser’s requirements. Contractor may be required to comply with conditions prior to gaining access to certain Purchaser locations (i.e., background checks, searches, etc.) as referenced in Section 8.12 Restricted Delivery/Personnel.

6.6. IT SECURITY POLICIES. Contractor, its agents, employees, or subcontractors shall comply with all Washington State IT security policies and standards which shall be made available to Contractor upon request.

7. SUBCONTRACTORS.

7.1. CONTRACTOR RESPONSIBILITY. Notwithstanding any provision to the contrary, in the event Contractor elects to utilize subcontractors to perform this Contract, Contractor shall: (a) incorporate Contractor’s responsibilities under this Contract into its subcontracts; (b) be fully responsible for the performance of any such subcontractors (regardless of tier) and ensure that subcontractors comply with each and every Contractor obligation set forth in this Contract; (c) be the sole point of contact for Enterprise Services and any Purchasers regarding all contractual matters; (d) ensure that such subcontractors are registered in WEBS; and (e) defend, indemnify, and hold Enterprise Services and Purchasers harmless in case of negligence, other tortious fault, or intentional misconduct by any such subcontractors (regardless of tier). Prior to utilizing any subcontractor to perform this Contract, Contractor shall provide written notice to Enterprise Services’ contract administrator. Such notice shall confirm that the subcontractor is registered in WEBS and provide the necessary information for Enterprise Services’ contract administrator to include such subcontractor(s) in Washington’s Purchasing Contract Management System (PCMS).

7.2. REPORTING. If Contractor is required to report to Purchaser and/or Enterprise Services, such report(s) shall include subcontractor data, by subcontractor, for any data that Contractor is required to report as well as a consolidated ‘rollup’ report combining Contractor and subcontractor data.

7.3. SUBCONTRACTOR REPRESENTATIONS AND CERTIFICATIONS. Any Contractor representations or certifications set forth in this Contract shall apply to subcontractors (at any tier) and Contractor shall not utilize any subcontractors (at any tier) who cannot provide such representations or certifications, excepting the certification to be registered with Washington’s Statewide Payee Desk, unless Purchaser shall pay such subcontractor directly.

8. USING THE CONTRACT – PURCHASES.

8.1. ORDERING REQUIREMENTS. Eligible Purchasers shall order Fresh Dairy Products from this Contract, consistent with the terms hereof and by using any ordering mechanism agreeable both to Contractor and Purchaser but including, at a minimum, a purchase order. When practicable, Contractor and Purchaser also shall use telephone orders, email orders, web-based orders, and similar procurement methods (collectively “Purchaser Order”). All Purchase Orders must reference the Contract number. The terms of this Contract shall apply to any Purchase Order, and, in the event of any conflict, the terms of this Contract shall prevail. Notwithstanding any provision to the contrary, in no event shall any ‘click-agreement,’ software or web-based application terms and conditions, or any other agreement modify the terms and conditions of this Contract.

8.2. CONTRACTOR’S ORDERING PORTALS. Contractor, at a minimum, shall provide, at no additional cost or expense to Purchasers, the following ordering portals:

(a) Email: Contractor shall provide an email address for orders and must respond within twenty-four (24) hours of orders placed by email.

(b) Phone: Contractor shall provide a toll-free telephone number for orders that is available, between the hours of 8AM to 5PM Pacific Time Monday thru Friday.

(c) Online Ordering System (TBD): Contractor shall maintain and provide an online ordering system. Such website shall be specific to this Contract and limited to included Fresh Dairy Products, and the pricing for such that is required pursuant to this Contract. When applicable, such website also shall identify Washington Grown Fresh Dairy Products. Contractor’s website design must provide for efficient use by Purchasers.

8.3. DELIVERY REQUIREMENTS. Contractor must ensure that all Fresh Dairy Products are delivered or provided as required by this Contract, the Purchase Order used by Purchaser, and as otherwise mutually agreed in writing between Purchaser and Contractor. The following apply to all deliveries:

(a) Contractor shall make all deliveries to the applicable delivery location specified in the Purchase Order. Such deliveries shall occur during Purchaser’s normal work hours and within the time period mutually agreed in writing between Purchaser and Contractor.

(b) Contractor must place dairy products in the delivery location coolers immediately upon delivery or at the agreed upon area. Products shall not be left on receiving docks, shelves, or non-refrigerated areas.

(c) Contractor shall ship all Fresh Dairy Products purchased pursuant to this Contract, freight charges prepaid by Contractor, FOB Purchaser’s specified destination with all transportation and handling charges included. Contractor shall bear all risk of loss, damage, or destruction of the Fresh Dairy Products ordered hereunder that occurs prior to delivery, except loss or damage attributable to Purchaser’s fault or negligence.

(d) All packing lists, packages, instruction manuals, correspondence, shipping notices, shipping containers, and other written materials associated with this Contract shall be identified by the Contract number set forth on the cover of this Contract and the applicable Purchaser’s Purchase Order number. Packing lists shall be enclosed with each shipment and clearly identify all contents and any backorders.

8.4. RECEIPT AND INSPECTION OF GOODS AND/OR SERVICES. Fresh Dairy Products purchased under this Contract are subject to Purchaser’s reasonable inspection, testing, and approval at Purchaser’s destination. Purchaser reserves the right to reject and refuse acceptance of Fresh Dairy Products that are not in accordance with this Contract and Purchaser’s Purchase Order. If there are any apparent defects in the Fresh Dairy Products at the time of delivery, Purchaser promptly shall notify Contractor. At Purchaser’s option, and without limiting any other rights, Purchaser may require Contractor to repair or replace, at Contractor’s expense, any, or all of the damaged Fresh Dairy Products or, at Purchaser’s option, Purchaser may note any such damage on the receiving report, decline acceptance, and deduct the cost of rejected Fresh Dairy Products from final payment. Payment for any Fresh Dairy Products under such Purchase Order shall not be deemed acceptance.

8.5. HOLIDAYS/SCHOOL DAYS. All orders are to be delivered on the specified delivery date unless otherwise requested by Purchaser as outlined below:

(a) When a scheduled delivery day falls on a holiday or a holiday designated by Contractor, delivery should occur on the next business day, unless otherwise agreed to by Purchaser in advance. Deliveries for emergency responses, however, shall be made as directed notwithstanding holidays or weekends.

(b) Delivery schedules may be altered during the school year and may be negotiated for mutual agreement between the Purchaser and Contractor. Deliveries may be cancelled due to holidays, non-student days, and school breaks.

(c) State of Washington Holidays: New Year’s Day, Dr. Martin Luther King Jr’s Birthday, Presidents Day, Memorial Day, Juneteenth, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, and the day after, and Christmas Day. Note: Saturday holidays are celebrated on the proceeding Friday; Sunday holidays are celebrated on the following Monday.

8.6. PRODUCT SHELF LIFE. All products furnished shall be dated to provide adequate shelf-life normal use. Milk and cream shall have a minimum shelf life of ten (10) days from day of delivery. Cottage Cheese, cheese, yogurt, sherbert, and ice cream shall have a minimum shelf life of fourteen (14) days.

8.7. MINIMUM ORDER REQUIREMENT. Contractor may impose a minimum order fee but cannot exceed the amount of (TBD)_for any deliveries within the region or county. Contractor can choose to lower the minimum order requirement or not require a minimum on any orders placed.

Orders that do not exceed the minimum order may be charged a delivery free. The delivery fee for orders that do not meet the minimum order requirement will not exceed (TBD) per order.

8.8. QUALITY PROGRAM. Contractor represents and warrants that Contractor will meet the quality or exceed the specifications stated for each item on the order. All product requirements, temperature requirements and specifications must be met, and milk products must be delivered fresh, free of visible spoilage, contamination, rodents, insects and/or any matter which render the products unsafe for human consumption. Any Fresh Dairy Products deemed unacceptable by Purchaser may be rejected and returned at Purchaser’s discretion. Reasons for rejection include, but not limited to:

· Items warmer than 40 degrees Fahrenheit;

· Frozen items warmer than 0 degrees;

· Items damaged in shipment;

· Any unauthorized substitutions;

· Any unauthorized delivery;

· Item does not meet shelf-life requirement;

· Any recalled items(s);

· Shipment delivered after normal working hours;

· Unsatisfactory service, products, or unsanitary conditions of delivery equipment; and

· Items shipped due to Contractor error.

8.9. REJECTION PROCEDURES. If any item is determined not to be in compliance with the requirements of this Contract, those items or shipments may be rejected by Purchaser.

(a) When any item is found to be nonconforming or damaged, Purchaser will determine the course of action to be taken with the item in question. The final decision rests with Purchaser. For unauthorized substitutions, Purchaser will determine whether to reject or accept such items. If accepted, Purchaser reserves the right to pay Contractor only that amount allotted for the original item ordered. Items transported in vehicles which are not sanitary, or which are not equipped to maintain industry standard temperatures, may be rejected without further inspection.

(b) In the event an item is rejected, the delivery ticket/invoice shall be annotated as to the item(s) rejected. These items shall then be deducted from the delivery ticket/invoice. The invoice total must be adjusted to reflect the correct dollar value of the shipment. Replacements will be authorized based on Purchaser needs. To the greatest extent possible, on an as-needed emergency basis, same day re-delivery of items that were previously rejected shall be made, so that food service requirements do not go unfulfilled for that day. The re-delivered items will be re-delivered under a separate invoice, utilizing the same Purchase Order number for the discrepant line. These re-deliveries will not constitute an emergency or supplemental requirement, and therefore, will have no additional charges.

(c) Contractor shall pick up rejected item(s) within twenty-four (24) hours or less if possible. Pick up may be extended if both parties agree in writing. If Contractor fails to pick up the rejected items within time frames specified, Purchaser reserves the right to consider any such items the property of the state and dispose of them as Purchaser desires, with no payment to Contractor.

(d) If a Purchaser requires a one-to-one replacement, no additional paperwork is necessary. Contractor’s delivery ticket/invoice will show that such item is a replacement for a rejected item. The invoice shall reference the Purchase Order number of the originally ordered item. In addition, a copy of the credit memo from any returned item is to be attached to the invoice.

8.10. PRODUCT SUBSTITUTION/MATCH. Substitutions must be approved by authorized Purchaser personnel in writing prior to shipment. Sufficient advance notification, (forty-eight (48) hours prior to shipping) must be provided of substitutions to give Purchaser adequate opportunity to change menus.

Substitutions must be of a like item and of equal or greater value that both parties agree upon, and that meet or exceeding the outlined specifications and charged to Purchaser at the contracted price. The substitution item must also be of comparable size, quantity, quality, case count or content, and nutritive value. All items not provided as ordered, or without a substitution, will count against the monthly fill rate and must be reported in writing on a monthly basis to the affected Purchaser.

8.11. PRODUCT RECALL. In the event of a product recall, Contractor must notify all Purchasers. Purchasers will then have sole discretion to either accept a viable replacement product or receive a full refund for recalled items.

8.12. RESTRICTED DELIVERY/PERSONNEL. To comply with security procedures, institutions may designate specific days of the week and/or hours in the day during which a scheduled and authorized delivery may be made. Failure to comply with this requirement may subject the Contractor to non-delivery assessment charges and/or liquidated damages as appropriate. Contractor is required to have sufficient personnel to rotate drivers for deliveries at secured institutions. Background checks and other requirements may apply as noted in Section 6.5 On-Site Requirements.

8.13. EQUIPMENT. Contractor is expected to maintain sufficient and reliable delivery equipment to execute and accomplish deliveries. All dairy products must be delivered in refrigerated truck only. The temperature of the dairy products upon delivery must not be warmer than 40 degrees Fahrenheit. All containers/crates shall be clean and sanitized. All empty containers/crates from prior deliveries shall be picked up on a regular basis. Any dairy products delivered that does not conform to these requirements may be returned at the contractor’s expense.

8.14. DISPENSER REQUIREMENTS. If offered, Contractor shall provide countertop refrigerated bulk milk dispenser(s) to institutions/facilities on an as needed basis. Contractor shall train personnel on the proper daily maintenance routine of equipment. Maintenance and repair costs shall be included in the cost of the product sold to the facilities. Dispensers are typically owned by the incumbent contractor and occasionally need to be replaced. It will be negotiated between Contractor and Purchaser for replacement costs.

8.15. PACKAGING AND LABELING. All packaging and packing shall be in accordance with good commercial practice. Labeling shall be in accordance with national UPC bar coding complying with the Federal Food, Drug and Cosmetic Act and regulation promulgated there under. USDA nutritional labels shall be included on products delivered to institutions requesting this labeling (such labeling is mandatory for purchasers receiving National School Lunch Program reimbursement). Shipping containers shall comply with the National Motor Freight Classification and Uniform Freight Classification Code.

Items shall be packed in single or multi-service shipping containers that fully comply with the National Motor Freight Classification and Uniform Freight Classification Code, as applicable. Individual shipping cartons shall be labeled with the following:

· Name of the ordering agency;

· Order number and contract number;

· Contractor and state stock number; and

· Date of manufacture, batch number, storage requirements, conditions, and recommended shelf life, if applicable.

8.16. Order Fill Rate. Contractor shall maintain a 95% fill rate per month with a goal of 100% per month. Monthly order fill rates shall be calculated on an on-time, per order basis and tracked for quarterly submission or as requested by Enterprise Services.

8.17. CUSTOMER SERVICE. Contractor shall provide friendly and professional customer service during normal business hours (8:00 a.m. – 5 p.m.) Monday thru Friday. Contractor shall respond to Purchaser messages, administrative concerns, and order submissions within 24 hours. Contractor shall provide an emergency phone number for any delivery issues outside of normal business hours.

9. INVOICING & PAYMENT.

9.1. CONTRACTOR INVOICE. Contractor shall submit properly itemized invoices to Purchaser’s designated invoicing contact for Goods and/or Services delivered under this Contract. Such invoices shall itemize the following:

(a) Contract No.02524;

(b) Contractor name, address, telephone number, and email address for billing issues (i.e., Contractor Customer Service Representative);

(c) Contractor’s Federal Tax Identification Number;

(d) Date(s) of delivery;

(e) Itemized list of Fresh Dairy Products;

(f) Invoice amount; and

(g) Payment terms, including any available prompt payment discounts.

Contractor’s invoices for payment shall reflect accurate Contract prices. Invoices shall not be processed for payment until receipt of a complete invoice as specified herein.

9.2. PAYMENT. Payment is the sole responsibility of, and shall be made by, the Purchaser. Purchaser’s obligation to pay invoices is subject to receipt of a timely and accurate invoice and conforming Fresh Dairy Products. Unless Contractor has provided a prompt payment discount set forth in Exhibit A – Prices for Goods/Services & Pricing, Purchaser’s payment is due within thirty (30) calendar days of invoice. Purchaser retains the right of setoff for any amount due or owing to Purchaser. Purchaser may make payments electronically (e.g., ACH payments). Contractor shall provide information necessary to facilitate electronic payments. If Purchaser fails to make timely payment(s), Contractor may invoice Purchaser in the amount of one percent (1%) per month on the amount overdue or a minimum of $1. Payment shall not be considered late if a check or warrant is mailed within the time specified.

9.3. OVERPAYMENTS. Contractor promptly shall refund to Purchaser the full amount of any erroneous payment or overpayment. Such refunds shall occur within thirty (30) calendar days of written notice to Contractor; Provided, however, that Purchaser shall have the right to elect to have either direct payments or written credit memos issued. If Contractor fails to make timely refunds of overpayment(s) (either directly or by credit memo), Contractor shall pay Purchaser interest at the rate of one percent (1%) per month on the amount overdue thirty (30) calendar days after notice to Contractor.

9.4. ADVANCE PAYMENT PROHIBITED. Except as authorized by law, Contractor shall not request or receive advance payment for any Fresh Dairy Products furnished by Contractor pursuant to this Contract.

9.5. NO ADDITIONAL CHARGES. Unless otherwise specified herein, Contractor shall not include or impose any additional charges including, but not limited to, charges for…