Purchase of Bread Products

Muscogee County School District

Columbus, Georgia Aileen Arrighi, CPPB Senior Buyer

Purchasing Department 2960 Macon Road (31906) ● P.O. Box 2427 ● Columbus, Georgia 31902-2427

Phone (706) 748-2352 ● FAX (478) 223-0199 E-Mail: arrighi.aileen@muscogee.K12.ga.us

March 16, 2022

INVITATION TO BID (ITB)

Bid Number: 22-026 Bid Name: Purchase of Bread Products

The Muscogee County School District (MCSD) is soliciting sealed bids for the purchase and direct delivery of bread products for the School Nutrition Program. Bid terms, conditions, specifications, and price quote sheets are contained herein.

** The District offices will be closed 04/04/2022 through 04/08/2022 for Spring break. **

BID DUE DATE/TIME: April 14, 2022 at 11:00 am (Eastern Standard Time)

RETURN BID VIA: Bids are to be delivered via Standard or Priority Mail to include all required documents on the bid checklist.

All bids must be mailed or hand-delivered to:

Muscogee County School District

Attn: Purchasing Department Bid #22-026 – Purchase of Bread Products

2960 Macon Road, Room 3003 Columbus, GA 31906

Direct all questions concerning this ITB to:

Aileen Arrighi, CPPB Senior Buyer

(706) 748-2352 arrighi.aileen@muscogee.k12.ga.us https://www.muscogee.k12.ga.us/Pages/MCSDHome.aspx mailto:arrighi.aileen@muscogee.k12.ga.us

MUSCOGEE COUNTY SCHOOL DISTRICT

INVITATION TO BID 22-026

PURCHASE OF BREAD PRODUCTS

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BID CHECKLIST

This standardized checklist has been provided to assist the vendor with the submission of their Bid package.

This checklist cannot be construed as identifying all required submittal documents for this project. Vendors remain responsible for reading the entire Bid document to ensure that they comply. Bids may be considered subject to rejection if, in the sole opinion of the District, there is a serious omission, unauthorized alteration of form, an unauthorized alternate Bid, incomplete or unbalanced unit price, or irregularities of any kind.

□ Bid Signature and Certification Form – all information completed and signed

□ United States Department of Agriculture Lobbying Certification Form – signed

□ Debarred, Suspended, and Ineligible Status Form – signed

□ Civil Rights Assurance Form – signed

□ Federal Work Authorization Contractor Affidavit (if awarded)

□ Federal Work Authorization Subcontractor Affidavit (if awarded)

□ Exceptions or Deviations to Specifications – signed and/or information completed

□ Disclosure of Subcontractors and Subconsultants – signed and/or information completed

□ Reference Request Form – list three (3) references of similar size and scope

□ Quote Form – signed

□ W-9 – completed and signed (if not a District registered vendor)

□ Copy of Business License

□ Copy of Required/Applicable Licenses or Certifications per Specifications

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Muscogee County School District –Terms and Conditions

1. GENERAL

A. It is the purpose and intent of this Invitation to Bid (ITB) to award an annual contract for the purchase and direct delivery of bread products for the School Nutrition Progam as listed herein for the Muscogee County School District (MCSD or the Board).

B. The undersigned agrees to quote only on the items that can be delivered to the Muscogee County School District in accordance with the terms and conditions set forth in this bid document.

C. The laws of the State of Georgia shall prevail concerning all purchases and services under this ITB and subsequent contract(s). Venue shall be in the court of competent jurisdiction in Columbus, Muscogee County, Georgia. Several Georgia statutes proscribe jurisdiction and venue for different types of cases that involve state agencies. Any provision that requires legal action that would require travel by MCSD employees likely violates the Constitutional provisions noted above.

D. The undersigned agrees to abide by all Muscogee County School District Board policies to be found at https://simbli.eboardsolutions.com/index.aspx?s=4121.

2. QUOTATIONS

A. Muscogee County School District reserves the right to:

1. Waive formalities and technicalities in any quotation

2. Reject any and/or all quotations wherein its judgment, it will be in the best interest of the school district

3. Accept the quotation that in its judgment will be in its best interest

4. Purchase from any source, in part or whole, any desired supplies, equipment, or services

5. At its option, award on individual items/services or a lump sum basis

6. Award this bid to the vendor who in the school district’s opinion is most responsive and responsible, and will perform in the best interest of the Muscogee County School District B. Price alone will not be the determining factor in the award of this bid.

C. Bids shall be firm for at least 60 days after bid opening.

D. The vendor may give quotations on any one or more items and may offer alternates where indicated.

No substitutes will be accepted once the order is placed.

3. PRICES Unit and total prices quoted shall include all charges to include, but not limited to, purchasing, packing, and delivery of the bread products to the destination(s). Vendors must quote based on the unit listed. Any vendor who does not quote prices based on the unit listed may be disqualified for that item. The District is exempt from state sales tax. Bid prices shall exclude Federal or State taxes that can be eliminated in sales to public school systems in the State of Georgia.

4. BID AWARD The contract will be awarded to the vendor with the largest number of lowest delivered prices.

5. OTHER GOVERNMENT ENTITIES Other government entities, including Chattahoochee, Marion, Harris, and Webster Counties will be allowed to piggyback off this annual contract to the extent allowed by their local policies. Please note that the projected quantities provided are for Muscogee County only

6. TRADE NAME Suppliers are required to indicate the brand name and model of merchandise quoted. Brand names and models listed in the specifications are used as a standard of quality and are not meant to limit competition.

7. NO ASSIGNMENT, DELEGATION, OR SUBCONTRACT WITHOUT DISTRICT CONSENT

Except as may be specifically permitted, vendor shall not delegate, subcontract, assign, or otherwise permit anyone other than vendor personnel to perform any of the work and/or provide any of the services required of vendor under this contract, or assign any of its rights or obligations hereunder, without the prior written consent of the Muscogee County School District, which consent may be withheld by the Muscogee County School District in its sole discretion.

https://simbli.eboardsolutions.com/index.aspx?s=4121

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8. CONTRACT PERIOD The contract period shall cover the period August 1, 2022 through July 31, 2023. Prices shall remain firm and fixed throughout the contract period. In compliance with State of Georgia law, O.C.G.A. 20-2-506, the contract shall terminate absolutely and without further obligation at the close of the calendar year. The Board may renew the contract in one-year increments, not to exceed a total of three years.

Georgia law at OCGA s 20-2-506 contains very specific provisions regarding the limited authority of school boards to enter into contracts whose terms could financially obligate future boards of education.

Boilerplate or standard termination clauses, therefore, are often problematic for the MCSD. A board of education cannot unreasonably financially obligate a future board of education. The terms of the law will be summarized below, as a thorough discussion of the requirements is outside of the scope of this document.

Under certain conditions, school systems may enter into multi-year lease, purchase, or lease-purchase contracts, and these contracts may be used to acquire construction project sites or buildings, or for other purposes. Each such contract must terminate at the end of the calendar year in which the contract was entered into, and at the end of each succeeding calendar year. The contract may provide that it shall be automatically renewed for each successive year unless the school system takes affirmative steps to terminate the contract. The contract must contain a clear statement of the school system’s total financial obligation for the original and each succeeding calendar year. Except for guaranteed energy savings contracts, the total value of all such contracts for any calendar year may not exceed 7.5 percent of the total local revenue collected in the most recently completed fiscal year. Failure to comply with the specific requirements of the code section can make the contract void.

9. RESPONSE, INTERPRETATION, AND COMMUNICATION

A. Response shall be on the bid forms provided only.

B. Bids received after the stated due date and time will not be accepted.

C. If you do not wish to bid, respond with “No Bid” and give a reason for this response.

D. If a bidder contemplating submitting a price quotation is in doubt as to the true meaning of any part of these documents or knows of an error, submit a request for interpretation to the Director of Purchasing and Supply Management 706-748-2349.

E. Communication about this active bid should not be made with any employee of the MCSD except the Buyer or the Director of Purchasing and Supply Management.

F. Procedures for formal protests of bids are available at www.muscogee.k12.ga.us > Vendors > Additional Information.

G. Any addenda will be posted to www.muscogee.k12.ga.us.

10. MARKING Merchandise in full cases shall have an identification marking on the outside of the case.

Each case, shipping container, etc. shall be marked with the Purchase Order Number supplied by the school district.

11. DELIVERY

A. Delivery of all materials from this quotation shall be FOB destination to the address specified on the purchase order. Delivery shall be made within the vendor’s quoted days after receipt of the order.

Any item(s) not delivered within the time limit may be canceled by the school district at no expense to the same.

B. Direct Delivery. The vendor shall deliver to each school kitchen receiving point. Orders shall be placed via manager to the delivery person. The School Nutrition Program Director or a staff member will telephone emergency orders to the vendor. The vendor will backorder any item or items they are not able to deliver on any given delivery day. The vendor shall make prior notification to the Purchasing Technician of any backorders. Under no circumstances shall an item be on backorder for more than 10 calendar days beyond the original date of requested delivery.

Delivery shall be made on the date specified on the order. Delivery personnel is required to place products in areas that will not obstruct any aisle, doorway, or passageway as designated by the http://www.muscogee.k12.ga.us/ http://www.muscogee.k12.ga.us/

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School Nutrition Program Manager or staff. Deliveries are not to be left outside under any circumstances.

12. ORDERS Each job or delivery shall be initiated by a purchase order specifying the location and the work to be performed. No work or delivery should be performed without an authorized purchase order number.

13. INSPECTION All articles shall be subject to inspection after arrival at destination. If any item is found to be defective or otherwise not conforming to the specifications, the school district shall have the right to reject the product and return it at the sellers’ expense.

14. SAFETY Material Safety Data Sheets shall be provided for all applicable items.

15. PAYMENT The payment terms for the District are Net 30. Payment shall be approved upon receipt, inspection, and acceptance of the materials at destination and receipt of proper itemized invoices. The District has determined issuing payments electronically is the preferred method of payment. The District reserves the right to remit payments using an electronic method in lieu of issuing a check at no additional cost to the District. Payment of interest / late fees is prohibited by the gratuities clause of the Georgia constitution. Similarly, MCSD cannot enter into an agreement that requires it to pay attorney’s fees or goods/services not priced in the contract or authorizes the payment of unknown/unspecified cost increases that cannot be calculated.

16. BID RECAP A bid summary shall be sent to all participating vendors.

17. EQUAL OPPORTUNITY POLICY Vendors shall abide by the school district’s non-discrimination policy (DJED). The vendor/contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, handicap, or national origin. The vendor/contractor shall take appropriate action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex, handicap, or national origin. Such action shall include, but shall not be limited to the following: employment, upgrading, demotion, transfer, recruitment, layoff, termination, rates of pay or other forms of compensation, and training. It is the further policy of the Board to ensure equal opportunity for minority-owned businesses and minority professionals with regard to all work, services, and supplies purchased by the Board and all construction projects undertaken by the Board which are competitively bid by the Board.

18. Bond Requirements. A bond is not required for this bid.

19. FACILITIES AND EQUIPMENT

A. The vendor shall be responsible and liable for damage to the storage, building, and grounds areas if the vendor’s employees or agents cause damage during delivery.

B. The MCSD reserves the right to reject any product delivered by a carrier if the carrier’s equipment is not in a clean, sanitary condition, suitable for hauling, moving, or transporting all goods. Carriers shall utilize only properly insulated, mechanical, or thermostatic temperature-controlled refrigeration equipment. Such equipment shall maintain proper temperatures for the type of product being transported.

20. CERTIFICATION REGARDING NON-COLLUSION The undersigned hereby certifies that the price(s) and amounts of this bid have been arrived at independently and without consultation, communication, or agreement with any other contractor, bidder, or potential bidder. Neither the price(s) nor the amount of this bid, and neither the approximate price(s) nor the approximate amount of this bid, have been disclosed to any other firm or person who is a bidder or potential bidder, and they will not be disclosed before bid opening. No attempt has been made or will be made to induce any firm or person to refrain from bidding on this contract, or to submit a bid higher than this bid, or to submit any intentionally high or noncompetitive bid or other form of complementary bid. The bid is made in good faith and not pursuant to any agreement or discussion with, or inducement from, any firm or person to submit a complementary or other noncompetitive bid. The bidder, its affiliates, subsidiaries, officers, directors, and employees are not currently under investigation by any government agency and have not in the last three years been convicted or found liable for any act prohibited by State or Federal law in any

Page 6 of 35 031622 jurisdiction, involving conspiracy or collusion with respect to bidding on any public contract. The bidder understands that collusive bidding is a violation of state and federal law and can result in fines, prison sentences, and civil damage awards.

21. CERTIFICATION REGARDING DEBARMENT The undersigned hereby certifies and swears that neither this vendor nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal or State department or agency.

22. CERTIFICATION REGARDING GEORGIA SECURITY AND IMMIGRATION COMPLIANCE ACT

OF 2006 The undersigned hereby certifies that the bidder and any subsequent subcontractors have registered with and are participating in a federal work authorization program as outlined in the O.C.G.A.

13-10-91.

23. INSURANCE The successful bidder shall supply to the school district proof of insurance for automobile, workers compensation, and general liability. The awarded contractor shall furnish to MCSD a current Certificate of Insurance. Insurance certificates will be reviewed by the MCSD Department of Risk Management. MCSD is a member of an interlocal risk management agency, the Georgia School Board Association (GSBA). GSBA Risk Management Services (RMS) offers protection through its group-self-insurance plans for workers’ compensation, property, and liability risks. Provisions mandating the MCSD to purchase insurance, increase policy limits, or name the vendor or other third party as an additional insured party cannot be included in contracts with the MCSD. Muscogee County School District must be shown as Additional Insured with respect to liability. Attach a copy of the policy “Additional Insured” endorsement or state on the certificate that the policy has been specifically endorsed to provide coverage, including Defense Cost Coverage for Muscogee County School District as an Additional Insured. Professional Liability is excluded.

A. COMPREHENSIVE GENERAL LIABILITY

Standard 1986 ISO (Insurance Services Office) Occurrence Form Bodily Injury - $1,000,000 Each Occurrence

- $2,000,000 Aggregate Property Damage - $1,000,000 Each Occurrence

- $2,000, 000 Aggregate Or Bodily Injury/Property Damage - $2,000,000 CSL (Combined Single Limit) Each Occurrence/Aggregate

B. COMPREHENSIVE AUTOMOBILE LIABILITY

Including Owned, Non-Owned and Hired Vehicles – Bodily Injury/Property Damage - $2,000,000 CSL per Accident

C. WORKERS’ COMPENSATION

Georgia Statutory Coverage Employer’s Liability $500,000 Each Accident $500,000 Disease Policy Limit $500,000 Disease Each Employee

D. UMBRELLA/EXCESS (if appropriate)

$5,000,000 limit of liability each occurrence and aggregate

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E. PROFESSIONAL LIABILITY (if appropriate) $1,000,000 per person

24. INDEMNIFICATION / HOLD HARMLESS CLAUSE: The MCSD cannot enter into an agreement whereby it agrees to indemnify or hold harmless a vendor or other third party. This language typically looks like “agrees to hold harmless from any liability, personal injury, or property damage arising out of the performance…” There are three legal principles that come into play here. First, indemnification provisions have been held by Georgia courts to be an unauthorized attempt to waive the State’s sovereign immunity. An opinion of the Georgia Attorney General (AG) counsels that an unauthorized attempt to waive sovereign immunity through an indemnification agreement in a contract would be ultra vires and void. 1980 Op. Atty. Gen. 80-67. The Georgia Supreme Court has held that an indemnification clause is invalid where the governmental entity didn’t have express statutory authority to waive its sovereign immunity. CSX Transp., Inc. v. City of Garden City, 588 S.E.2d 688 (Ga. 2003). Second, an indemnification violates Georgia’s Constitutional ban on gratuities. The Georgia Constitution does not all any donation or gratuity or the forgiving of any debt owed to the public. Ga. Const. Art. III, s VI, Para VI (a). The Georgia AG has issued an opinion expressly stating that indemnification provisions are gratuitous undertakings in violation of the gratuities clause. 1980 Op. Atty. Gen. 80-67. Third, the Georgia Constitution does not allow the credit of the state to be pledged or loaned to any individual, company, corporation, or association. Ga. Const. Art. VII s IV Para VIII. The AG has opined that the constitutional debt restriction does not allow any state agency from contractually agreeing to any indemnification or “hold harmless” clause. See 1980 Op., supra. An indemnification is open-ended in nature because, at the time of contracting, neither party knows if nor when it will be triggered. As such, it violates the debt restriction.

25. FORCE MAJEURE If the Muscogee County School District, in its reasonable discretion, determines that the Force Majeure event is likely to delay the Contractor’s performance for more than thirty (30) days, the Muscogee County School District reserves the right to cancel the agreement between the parties. In that event, neither party shall have any further liability to the other, subject only to the Muscogee County School District’s obligation to pay the Contractor for work already completed by the Contractor and the Contractor’s warranty for work already completed.

26. EXCEPTIONS To take exception to a provision of this Invitation to Bid, the Bidder must clearly identify the BID EXCEPTION when submitting the bid.

27. CONFIDENTIALITY:

MCSD and its student records are subject to the terms of The Family Educational Rights and Privacy Act (34 CFR § 99.33). If the vendor becomes privy to certain personally identifiable student information (“Student Information”), the vendor agrees to abide by the limitations on re-disclosure of any such Student Information, which constitutes an education record as defined in FERPA (34 CFR § 99.33 (a)(2)) and with the terms set forth below. 34 CFR 99.33 (a) (2) states that the officers, employees, and agents of a party that receive education record information from the MCSD may use the information, but only for the purposes for which the disclosure was made.

The parties acknowledge that such Student Information includes any paper and electronic Student Information as may be supplied by MCSD, as well as any data provided by MCSD’s students to the vendor. The vendor agrees to hold any Student Information in strict confidence. The vendor shall not use or disclose any Student Information received from or on behalf of MCSD (or its students) except as permitted or required by the Sales Agreement, as required by law, or as otherwise authorized in writing by MCSD. The vendor agrees not to use any Student Information for any purpose other than the purpose for which the disclosure was made.

Upon termination, cancellation, expiration, or other conclusion of the Sales Agreement, the vendor shall return all education records or, if the return is not feasible, destroy any and all Student Information. If the vendor destroys the Student Information, the vendor shall provide MCSD with a certificate confirming the date of the destruction of the data.

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If MCSD reasonably determines in good faith that the vendor has materially breached any of its obligations under this agreement, MCSD, in its sole discretion, shall have the right to require the vendor to submit to a plan of monitoring and reporting; provide the vendor with a fifteen (15) day period to cure the breach, or terminate the Sales Agreement immediately if cure is not possible. Before exercising any of these options, MCSD shall provide written notice to the vendor describing the violation and the action it intends to take. If the Family Policy Compliance Office of the U.S. Department of Education determines that the vendor improperly disclosed personally identifiable information obtained from MCSD’s education records, MCSD may not allow the vendor access to education records for at least five years.

The vendor shall develop, implement, maintain and use appropriate administrative, technical, and physical security measures to preserve the confidentiality, integrity, and availability of all electronically maintained or transmitted Student Information received from, or on behalf of MCSD or its students.

These measures will be extended by contract to all affiliates and subsidiaries of the vendor.

The vendor shall, within one day of discovery, report to MCSD any use or disclosure of Student Information not authorized by this agreement or in writing by MCSD. The vendor’s report shall identify:

(i) the nature of the unauthorized use or disclosure, (ii) the Student Information used or disclosed, (iii) who made the unauthorized use or received the unauthorized disclosure, (iv) what the vendor has done or shall do to mitigate any deleterious effect of the unauthorized use or disclosure, and (v) what corrective action the vendor has taken or shall take to prevent future similar unauthorized use or disclosure. The vendor shall provide such other information, including a written report, as reasonably requested by MCSD.

The vendor shall defend and hold MCSD harmless from all claims, liabilities, damages, or judgments involving a third party, including MCSD’s costs and attorney fees, which arise as a result of the vendor’s failure to meet any of its obligations under this agreement.

28. OPEN RECORDS ACT: MCSD is subject to Georgia’s Open Records Act at OCGA s 50-18-70, et.

seq. This law allows individuals to view MCSD records [whether maintained electronically or through paper] and/or make copies unless the records are specifically exempted by the law. The law does contain specific language addressing valid trade secrets but requires specific action from the vendor to ensure confidentiality.

You are hereby notified by MCSD that it is the submitting party’s obligation to indicate whether any of the information submitted to MCSD constitutes a “trade secret” as defined by law and if so, what specific information constitutes a “trade secret.” The Georgia Open Records Act, as amended in April 2012, requires that any “trade secret” information be designated as such at the time it is provided to a governmental agency. The Act further indicates that a failure to make such a designation may result in a waiver of the right to subsequently claim that such information is confidential or otherwise protected from public disclosure.

OCGA 50-18-72 (a) (34). Specifically, OCGA 50-18-72 (a) (34) states in material part:

“(a) Public disclosure shall not be required for records that are:

(34) Any trade secrets obtained from a person or business entity that are required by law, regulation, bid, or request for proposal to be submitted to an agency. An entity submitting records containing trade secrets that wishes to keep such records confidential under this paragraph shall submit and attach to the records an affidavit affirmatively declaring that specific information in the records constitutes trade secrets pursuant to Article 27 of Chapter 1 of Title 10. If such entity attaches such an affidavit, before producing such records in response to a request under this article, the agency shall notify the entity of its intention to produce such records as set forth in this paragraph. If the agency makes a determination that the specifically identified information does not, in fact, constitute a trade secret, it shall notify the entity submitting the affidavit of its intent to disclose the information within ten days unless prohibited from doing so by an appropriate court order. In the event the entity wishes to prevent disclosure of the requested records, the entity may file an action in superior court to obtain an order that the requested records are trade secrets exempt from disclosure. The entity filing such action shall serve the requestor

Page 9 of 35 031622 with a copy of its court filing. If the agency makes a determination that the specifically identified information does constitute a trade secret, the agency shall withhold the records, and the requester may file an action in superior court to obtain an order that the requested records are not trade secrets and are subject to disclosure;”

29. COMPLIANCE WITH LAWS The successful proposer shall procure all permits, bonds, and licenses, pay all charges, taxes, and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. All costs thereof shall be deemed to be included in the proposal price. The successful proposer shall, at all times, observe and comply with all Federal, State, City, and other laws, codes, ordinances, rules, and regulations in any manner affecting the conduct of the work.

30. MCSD REQUIREMENTS- Muscogee County School District intends to continue some school business functions during the project.

A. The contractor must coordinate the service schedule with a representative from School Nutrition.

This project must not interfere with any school business function.

B. Proposers shall carefully examine the worksite to obtain first-hand knowledge of existing conditions.

C. School District Regulations - The contractor shall follow all applicable Muscogee County School

District regulations while on Muscogee County School District property, including the no alcohol, no tobacco products, no weapons, no idling, and drug-free policies.

31. The vendor shall protect all buildings, trees, shrubs, lawns, and all landscape work from damage. Any damaged property shall be repaired and replaced at the vendor’s expense. Additionally, the vendor shall protect all private roads, streets, sidewalks, driveway aprons, driveways, and shall make all necessary repairs at their own expense. The Vendor shall be responsible for any damage done while operating on MCSD property. Damage must be reported within 24 hours to the School Nutrition Department. Failure to do this may result in the termination of the contract/services. Damage must be repaired or replaced within a reasonable time.

Muscogee County School District Terms and Conditions Specific to the School Nutrition Program

1. Debarred, Suspended, and Ineligible Status. Contractor certifies that the Contractor and/or any of its subcontractors have not been debarred, suspended, or declared ineligible by any agency of the State of Georgia or the Muscogee County School District or as defined in the Federal Acquisition Regulation (FAR) 48 C.F.R. Ch.1 Subpart 9.4. The Contractor will immediately notify the Muscogee County School District if Contractor is debarred or placed on the Consolidated List of Debarred, Suspended, and Ineligible Contractors by a federal entity.

2. Contract Extension. In the event that this Standard Contract shall terminate or be likely to terminate prior to the making of an award for a new contract for the identified goods and services, the Muscogee County School District may, with the written consent of the Contractor, extend this Contract for such period as may be necessary to afford the Muscogee County School District a continuous supply of the identified goods and services. Pursuant to O.C.G.A. Section 50-5-64, this Contract shall not be deemed to create a debt of the State for the payment of any sum beyond the fiscal year of execution or, in the event of a renewal, beyond the fiscal year of such renewal.

3. Buy American Act - 7 CFR 210.21 (d) The Contractor must comply with Buy American Act which states that a school food authority purchase, to the maximum extent practicable, domestic commodities or products. Buy American (1) Definition of domestic commodity or product. In this paragraph (d), the term ‘domestic commodity or product’ means—(i) An agricultural commodity that is produced in the United States; and (ii) A food product that

Page 10 of 35 031622 is processed in the United States substantially using agricultural commodities that are produced in the United States.

4. Non-Performance and/or Termination Clauses

a. Immediate Termination. This Contract will terminate immediately and absolutely if the Muscogee County School District determines that adequate funds are not appropriated or granted or funds are de-appropriated such that the Muscogee County School District cannot fulfill its obligations under the Contract, which determination is at the Muscogee County School District's sole discretion and shall be conclusive. Further, the Muscogee County School District may terminate the Contract for any one or more of the following reasons effective immediately without advance notice:

(i) In the event the Contractor is required to be certified or licensed as a condition precedent to providing goods and services, the revocation or loss of such license or certification may result in immediate termination of the Contract effective as of the date on which the license or certification is no longer in effect;

(ii) The Muscogee County School District determines that the actions, or failure to act, of the Contractor, its agents, employees or subcontractors have caused, or reasonably could cause, life, health or safety to be jeopardized;

(iii) The Contractor fails to comply with confidentiality laws or provisions; and/or

(iv) The Contractor furnished any statement, representation, or certification in connection with the Contract or the bidding process which is materially false, deceptive, incorrect, or incomplete.

b. Termination for Cause. The occurrence of any one or more of the following events shall constitute cause for the Muscogee County School District to declare the Contractor in default of its obligations under the Contract:

(i) The Contractor fails to deliver or has delivered nonconforming goods or services or fails to perform, to the Muscogee County School District’s satisfaction, any material requirement of the Contract or is in violation of a material provision of the Contract, including, but without limitation, the express warranties made by the Contractor;

(ii) The Muscogee County School District determines that satisfactory performance of the Contract is substantially endangered or that a default is likely to occur;

(iii) The Contractor fails to make substantial and timely progress toward the performance of the Contract;

(iv) The Contractor becomes subject to any bankruptcy or insolvency proceeding under federal or state law to the extent allowed by applicable federal or state law including bankruptcy laws; the Contractor terminates or suspends its business, or the Muscogee County School District reasonably believes that the Contractor has become insolvent or unable to pay its obligations as they accrue consistent with applicable federal or state law;

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(v) The Contractor has failed to comply with applicable federal, state, and local laws, rules, ordinances, regulations, and orders when performing within the scope of the Contract;

(vi) The Contractor has engaged in conduct that has or may expose the Muscogee County School District or the State to liability, as determined in the Muscogee County School District’s sole discretion; or

(vii) The Contractor has infringed any patent, trademark, copyright, trade dress, or any other intellectual property rights of the Muscogee County School District, the state, or a third party.

c. Notice of Default. If there is a default event caused by the Contractor, the Muscogee County School District shall provide written notice to the Contractor requesting that the breach or non-compliance be remedied within the period of time specified in the Muscogee County School District’s written notice to the Contractor. If the breach or noncompliance is not remedied within the period of time specified in the written notice, the Muscogee County School District may:

(i) Immediately terminate the Contract without additional written notice; and/or

(ii) Procure substitute goods or services from another source and charge the difference between the Contract and the substitute contract to the defaulting Contractor; and/or,

(iii) Enforce the terms and conditions of the Contract and seek any legal or equitable remedies.

d. Termination upon Notice. Following thirty (30) days written notice, the Muscogee County School District may terminate the Contract in whole or in part without the payment of any penalty or incurring any further obligation to the Contractor. Following termination upon notice, the Contractor shall be entitled to compensation, upon submission of invoices and proper proof of claim, for goods and services provided under the Contract to the Muscogee County School District up to and including the date of termination.

e. Termination Due to Change in Law. The Muscogee County School District shall have the right to terminate this Contract without penalty by giving thirty (30) days written notice to the Contractor as a result of any of the following:

(i) The Muscogee County School District’s authorization to operate is withdrawn or there is a material alteration in the programs administered by the Muscogee County School District; and/or

(ii) The Muscogee County School District’s duties are substantially modified.

f. Payment Limitation in Event of Termination. In the event of termination of the Contract for any reason by the Muscogee County School District, the Muscogee County School District shall pay only those amounts, if any, due and owing to the Contractor for goods and services actually rendered up to and including the date of termination of the Contract and for which the Muscogee County School District is obligated to pay pursuant to the Contract or Purchase Instrument.

Payment will be made only upon submission of invoices and proper proof of the Contractor’s claim. This provision in no way limits the remedies available to the Muscogee County School

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District under the Contract in the event of termination. The Muscogee County School District shall not be liable for any costs incurred by the Contractor in its performance of the Contract, including, but not limited to, startup costs, overhead or other costs associated with the performance of the Contract.

g. The Contractor’s Termination Duties. Upon receipt of notice of termination or upon request of the Muscogee County School District, the Contractor shall:

(i) Cease work under the Contract and take all necessary or appropriate steps to limit disbursements and minimize costs, and furnish a report within thirty (30) days of the date of notice of termination, describing the status of all work under the Contract, including, without limitation, results accomplished, conclusions resulting therefrom, and any other matters the Muscogee County School District may require;

(ii) Immediately cease using and return to the Muscogee County School District, any personal property or materials, whether tangible or intangible, provided by the Muscogee County School District to the Contractor;

(iii) Comply with the Muscogee County School District’s instructions for the timely transfer of any active files and work product produced by the Contractor under the Contract;

(iv) Cooperate in good faith with the Muscogee County School District, its employees, agents, and contractors during the transition period between the notification of termination and the substitution of any replacement contractor; and

(v) Immediately return to the Muscogee County School District any payments made by the Muscogee County School District for goods and services that were not delivered or rendered by the Contractor.

5. Clean Air/Clean Water Statement - Compliance with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 U.S.C. 1857 (h) Clean Air and Water Certification. Contractor certifies that none of the facilities it uses to produce goods provided under the Contract are on the Environmental Protection Authority (EPA) List of violating Facilities. The Contractor will immediately notify the Muscogee County School District of the receipt of any communication indicating that any of the Contractor’s facilities are under consideration to be listed on the EPA List of Violating Facilities. Compliance with Federal Clean Water Act - section 508 - (33 U.S.C. 1368) and Executive Order 11738 and Environmental Protection Agency regulations (40 CFR 15)

6. Civil Rights statement - In accordance with Federal Law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, and disability. To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410 or call (202) 720-5964 (voice and TDD). USDA is an equal opportunity provider and employer.

7. Record retention requirement (5 years per Sec. of State) and access to files – Record Retention and Access. The Contractor shall maintain books, records, and documents in accordance with generally accepted accounting principles and procedures and which sufficiently and properly document and

Page 13 of 35 031622 calculate all charges billed to the Muscogee County School District throughout the term of the Contract for a period of at least five (5) years following the date of final payment or completion of any required audit, whichever is later. Records to be maintained include both financial records and service records.

The Contractor shall permit the Auditor of the State of Georgia or any authorized representative of the Muscogee County School District, and where federal funds are involved, the Comptroller General of the United States, or any other authorized representative of the United States government, to access and examine, audit, excerpt and transcribe any directly pertinent books, documents, papers, electronic or optically stored and created records or other records of the Contractor relating to orders, invoices or payments or any other documentation or materials pertaining to the Contract, wherever such records may be located during normal business hours. The Contractor shall not impose a charge for audit or examination of the Contractor’s books and records. If an audit discloses incorrect billings or improprieties, the Muscogee County School District reserves the right to charge the Contractor for the cost of the audit and appropriate reimbursement. Evidence of criminal conduct will be turned over to the proper authorities.

8. Equal Employment Opportunity Compliance Statement –

In accordance with Federal Law and U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, or disability. To file a complaint of discrimination, write USDA, Director, Office of Adjudication, 1400 Independence Avenue, SW, Washington, D.C. 20250-9410 or call toll-free (866) 632-9992. (Voice) Individuals who are hearing impaired or have speech disabilities may contact USDA through the Federal Relay Service at (800) 877- 8339; or (800) 845-6136 (Spanish). USDA is an equal opportunity provider and employer.

9. Energy Policy and Conservation Act Statement - Compliance with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Public Law 94-163, 89 Stat.871)

10. Minority Firms, Women's Enterprises, and Labor Surplus Area Firms - It is the intent of the

Muscogee County School District to provide maximum practicable opportunities in its solicitations to small businesses, minority firms, women's enterprises, and labor surplus area firms.

11. Non-Collusion - Contractor must comply with USDA Federal Regulations regarding procurement for

Child Nutrition Programs - 7 CFR Part 3015 to CFR Parts 3016 and 3019. I further certify that the provisions of the official code of Georgia annotated 45-10-20 et seq. have not and will not be violated in any respect."

12. Copyrights and Patents -

48 CFR-Chapter 1-Subchapter H- Part 52.227-2 - Notice and Assistance Regarding Patent and Copyright Infringement.

a. The Contractor shall report to the Muscogee County School District, promptly and in reasonable written detail, each notice or claim of patent or copyright infringement based on the performance of this contract of which the Contractor has knowledge.

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b. In the event of any claim or suit against the Government on account of any alleged patent or copyright infringement arising out of the performance of this contract or out of the use of any supplies furnished or work or services performed under this contract, the Contractor shall furnish to the Government, when requested by the Contracting Officer, all evidence and information in the Contractor’s possession pertaining to such claim or suit. Such evidence and information shall be furnished at the expense of the Government except where the Contractor has agreed to indemnify the Government.

c. The Contractor shall include the substance of this clause, including this paragraph (c), in all subcontracts that are expected to exceed the simplified acquisition threshold.

52.227-3 - Patent Indemnity

a. The Contractor shall indemnify the Government and its officers, agents, and employees against liability, including costs, for infringement of any United States patent (except a patent issued upon an application that is now or may hereafter be withheld from issue pursuant to a Secrecy Order under 35 U.S.C. 181) arising out of the manufacture or delivery of supplies, the performance of services, or the construction, alteration, modification, or repair of real property (hereinafter referred to as “construction work”) under this contract, or out of the use or disposal by or for the account of the Government of such supplies or construction work.

b. This indemnity shall not apply unless the Contractor shall have been informed as soon as practicable by the Government of the suit or action alleging such infringement and shall have been given such opportunity as is afforded by applicable laws, rules, or regulations to participate in its defense. Further, this indemnity shall not apply to—

(i) An infringement resulting from compliance with specific written instructions of the Contracting Officer directing a change in the supplies to be delivered or in the materials or equipment to be used, or directing a manner of performance of the contract not normally used by the Contractor;

(ii) An infringement resulting from addition to or change in supplies or components furnished or construction work performed that was made subsequent to delivery or performance; or

(iii) A claimed infringement that is unreasonably settled without the consent of the Contractor, unless required by a final decree of a court of competent jurisdiction.

13. Originality and Title to Concepts, Materials, and Goods Produced - Contractor represents and warrants that all the concepts, materials, goods, and services produced, or provided to the Muscogee County School District pursuant to the terms of the Contract shall be wholly original with the Contractor or that the Contractor has secured all applicable interests, rights, licenses, permits or other intellectual property rights in such concepts, materials, and works. The Contractor represents and warrants that the http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t33t36+1394+1++%2835%29%20%20AND%20%28%2835%29%20ADJ%20USC%29%3ACITE%20%20%20%20%20%20%20%20%20

Page 15 of 35 031622 concepts, materials, goods and services and the Muscogee County School District’s use of same and the exercise by the Muscogee County School District of the rights granted by the Contract shall not infringe upon any other work, other than material provided by the Contract to the Contractor to be used as a basis for such materials, or violate the rights of publicity or privacy of, or constitute a libel or slander against, any person, firm or corporation and that the concepts, materials, and works will not infringe upon the copyright, trademark, trade name, trade dress patent, literary, dramatic, statutory, common law or any other rights of any person, firm or corporation or other entity. The Contractor represents and warrants that it is the owner of or otherwise has the right to use and distribute the goods and services contemplated by the Contract.

14. Lobbying - The undersigned certifies, to the best of his or her knowledge and belief, that:

a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.

b. If any funds other than Federally appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

c. The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.

This certification is a material representation of the fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.

Statement for Loan Guarantees and Loan Insurance

The undersigned states, to the best of his or her knowledge and belief, that:

If any funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.

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