RA-Agreement.pdf

Agreement for Direct Distribution of USDA Foods

THIS AGREEMENT IS BETWEEN THE STATE OF NEW YORK, EXECUTIVE DEPARTMENT, OFFICE OF

GENERAL SERVICES, DIVISION OF FOOD DISTRIBUTION AND

RA Name:

Address:

County: RA Code: LEA Code:

A Recipient Agency (RA) is:

• A New York State School Food Authority which is defined as the governing body responsible for the administration of one or more schools, and that has the legal authority to operate a nonprofit school food service or National School Lunch Program (NSLP) in New York State.

OR

• A New York State licensed or approved child care center, adult day care program, or other eligible non-profit organization that participates in the Child and Adult Care Feeding Program (CACFP) to provide nutritious meals and snacks to eligible children (infants through age 12, or up to age 18 in some circumstances) and enrolled adults in care, in accordance with federal United States Department of Agriculture (USDA) guidelines and New York State Department of Health (NYSDOH) regulations.

OR

• A New York State non-profit organization, governmental agency, or other authorized entity that provides free and nutritious meals to children and teenagers during the summer months when school is not in session, in accordance with the USDA Summer Food Service Program (SFSP) guidelines and state regulations.

AND

The Recipient Agency certifies that it is not-for-profit and tax exempt and hereby makes application for USDA Foods purchased by the United States Department of Agriculture (USDA) to the State of New York Executive Department, Office of General Services, Division of Food Distribution, hereinafter referred to as the State Distributing Agency (SDA), for distribution to said Recipient Agency, and agrees to the terms and conditions regarding the receipt, transportation, handling, storage, record keeping, preparation, use, and disposal of such USDA Foods, as set forth by the State Distributing Agency, and to charges that the State Distributing Agency assesses for the administration of said program, including storage, transportation, and administrative charges. The Recipient Agency further agrees to abide by applicable Federal regulations found at 7 CFR Part 210 and 250, and all related program Instructions and Policies.

TERM OF THIS AGREEMENT

THE TERM OF THIS AGREEMENT SHALL COMMENCE EFFECTIVE

AND SHALL BE CONSIDERED PERMANENT UNLESS TERMINATED BY EITHER PARTY (SEE ITEM 21.)

DELIVERY, DISTRIBUTION AND CONTROL OF USDA FOODS

1. The State Distributing Agency agrees that it will make available to the Recipient Agency, foods purchased by the USDA and accepted by the State Distributing Agency in such quantities and at such times as the State Distributing Agency shall determine based on input from Recipient Agencies and USDA’s purchasing schedule, but not to exceed such quantities as the Recipient Agency declares it can accept without loss.

2. The terms “distribute” or “distribution” as used in this agreement, shall be deemed to mean the allocation and making available to such Recipient Agency, or its authorized agent, USDA foods at the State Distributing Agency ’s place of storage of such foods.

3. The Recipient Agency shall designate a representative(s) who shall be charged with the responsibility for the proper management and control of all activities pertaining to the acceptance and use of USDA Foods. Such representative(s) shall be authorized to sign on behalf of the Recipient Agency, requests for USDA Foods, reports or other documents necessary in the operation of the program. This provision shall not prevent a Recipient Agency from authorizing an agency to accept or sign and acknowledge receipt for such USDA Foods, but any authorized act of the agent shall be deemed to be an act of the Recipient Agency.

4. The Recipient Agency further agrees to confine distribution or use of USDA Foods received from the State Distributing Agency, to or by persons served in the not-for-profit Child Nutrition Programs.

5. Immediately upon notice to the Recipient Agency that USDA Foods have been made available and are ready for delivery, the Recipient Agency agrees that it will accept delivery of such USDA Foods from the warehouse or commercial distributor of the State Distributing Agency, or other designated place, to the place where the Recipient Agency will utilize or store such USDA Foods in accordance with this agreement. Upon transfer or delivery to the Recipient Agency or its authorized agent, the care of the USDA Foods becomes the responsibility of the Recipient Agency.

6. It is the States Distributing Agency’s mission to keep the distribution cost of USDA Foods low. The Recipient Agency agrees to accept all USDA Foods within 60 days of arrival at the Distributors warehouse or 90 days for a State-owned facility. For any USDA Foods that cannot be accepted by the Recipient Agency within the timeframe forementioned, the Recipient Agency must contact the State Distributing Agency to request a redistribution. If no request to redistribute has been received, the distributing contractor may force ship it. If a Recipient Agency is the receiver of a redistribution, they must accept delivery of the product on their next delivery. The receiver may not push back or skip a regularly scheduled delivery to delay receiving redistributed items.

7. Recipient Agency’s USDA food planned assistance level (PAL) is computed by the State Distributing Agency based on the national per-meal value of donated food assistance multiplied by the number of reimbursable lunches served by the school food authority in the previous school year. This data is provided by the NYS Department of Education, and the national per-meal rate established by the USDA. The Recipient Agency agrees to enter their order into the USDA’s online ordering system. The State Distributing Agency does not guarantee that all requests will be filled in total.

STORAGE AND INVENTORY MANAGEMENT OF USDA FOODS

8. Recipient Agencies must provide facilities for the storage and control of USDA Foods that protect against theft, spoilage, damage or other loss. Storage facilities must maintain USDA Foods in sanitary conditions at the proper temperature and humidity and with adequate air circulation. Recipient Agencies must ensure that storage facilities comply with all federal, state or local requirements relative to food safety and health and procedures for responding to a food recall, as applicable, and obtain all required health inspections.

9. The Recipient Agency agrees to furnish adequate personnel and proper facilities to receive, handle, store, distribute, prepare, and serve USDA Foods. The Recipient Agency may store and inventory USDA Foods together with commercially purchased foods and other foods, under a single inventory management system. The Recipient Agency agrees to exercise the highest degree of diligence to prevent loss or damage of USDA Foods through fire, theft, freezer or cooler failure, infestation, or deterioration, or any other cause during the time when said USDA Foods are stored by the Recipient Agency.

10. If the Recipient Agency utilizes the services of a commercial distributor or warehouse, an agreement must be in place stating that the value of USDA Foods is insured.

11. In compliance with 7 CFR 250 – any person who embezzles, willfully misapplies, steals, or obtains by fraud any USDA Foods will be subject to Federal criminal prosecution and other penalties.

12. USDA Foods received under this agreement will be used solely for the benefit of those persons served by the Recipient Agency, and only on the premises and will not be sold or exchanged. Furthermore,any person who receives, conceals, or retains such donated foods or funds, assets, or property deriving from such foods, with the knowledge that they were embezzled, willfully misapplied, stolen, or obtained by fraud, will also be subject to Federal criminal prosecution and other penalties.

13. The Recipient Agency agrees to investigate promptly all complaints received regarding the distribution or use of USDA Foods and to correct any irregularities disclosed, reporting all such complaints promptly to the State Distributing Agency. If the State Distributing Agency determines that a claim must be made against the Recipient Agency for failure to have properly distributed or use USDA Foods, then said Recipient Agency shall promptly pay any such claim presented.

14. The Recipient Agency agrees to utilize all USDA Foods sent to processors in the year in which it was intended to be used. Failure to utilize these foods will result in the State Distributing Agency absorbing the unutilized pounds into the State Distributing Agency account to be redistributed to other Recipient Agencies.

15. No warranty, in law, or in fact, is to be deemed to exist from the State Distributing Agency or to any persons, groups or other recipients of USDA Foods with respect to the USDA Foods distributed under this agreement. No liability upon the part of the State Distributing Agency shall arise under or by virtue of this agreement.

COMMERCIAL TRUCKING

16. If a Recipient Agency utilizes the services of a commercial trucking company, an agreement must be in place stating that the value of USDA Foods is insured and clarifying responsibilities for the transportation of USDA Foods. OGS Food Distribution will always hold the Recipient Agency responsible for the value of the USDA Foods and may subsequently charge the Recipient Agency at any time in which the USDA Foods become unwholesome due to improper transportation and/or storage.

INSPECTION

17. The Recipient Agency agrees that representatives of the USDA and/or the State Distributing Agency may inspect the

Recipient Agency’s facilities at any reasonable time.

RECORDKEEPING

18. The Recipient Agency will maintain and keep accurate records with respect to the receipt of USDA Foods including end products processed from USDA Foods for a period of three years from the close of the fiscal year or school year to which they pertain. These records shall be open to inspection by representatives of the USDA Foods and/or the State Distributing Agency.

ADMINISTRATIVE AND LEGAL CHARGES

19. The Recipient Agency agrees to pay, to the State Distributing Agency, its proportionate share of all administrative costs associated with the distribution of USDA Foods to such Recipient Agency, including the cost of storage, handling, processing and transportation of USDA Foods distributed by the State Distributing Agency (i.e., the costs associated with the receipt, storage and distribution of locally grown produce), and of such other miscellaneous costs as are incurred on behalf of Recipient Agencies, based on an equitable formula established by the State Distributing Agency whenever such cost is billed to the Recipient Agency by the State Distributing Agency. Payment by the Recipient Agency shall be deducted from the amount apportioned by the State of New York to such Recipient Agencies under the National School Lunch Program. In the case of Recipient Agencies not participating in the National School Lunch Program, the said costs shall be paid within thirty days of billing.

20. In the event any claim shall arise under this agreement against the Recipient Agency, the State Distributing Agency or the United States Department of Agriculture shall be entitled to seek all costs of litigation and reasonable attorney fees.

TERMINATION

21. Either agency may terminate this agreement for convenience by giving at least 60 days’ notice in writing to the other party. The State Distributing Agency may cancel this agreement immediately upon receipt of evidence that the Recipient Agency has not been in full compliance with the terms and conditions herein.

DISCRIMINATION

22. The Recipient Agency further agrees that in accordance with the Civil Rights Act of 1964 as amended and Article 15 of the Executive Law (also known as the Human Rights Law) and all other State and Federal statutory, regulatory and constitutional non-discrimination provisions, the Recipient Agency will not discriminate against employee or applicant for employment because of race, creed, color, sex, national origin, sexual orientation, gender identity, age, disability, genetic predisposition or carrier status, or marital status. The New York State Human Rights Law further protects individuals from discrimination based on their age, creed, race, color, sex, sexual orientation, national origin, marital status, domestic violence victim status, disability, pregnancy-related condition, military status, arrest record, conviction record, and predisposing genetic characteristics. This agreement may be forthwith canceled, terminated or suspended, in whole or in part, by the State Distributing Agency upon the basis of a finding made by the State Division of Human Rights that the Recipient Agency has not complied with these non-discrimination clauses.

USDA NON-DISCRIMINATION STATEMENT

23. Recipient agencies agree to conspicuously display the “And Justice for All”, poster in a prominent place (s) to be seen by students and school employees.

24. Assurance of Civil Rights Compliance

The Recipient Agency hereby agrees that it will comply with:

i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.)

ii. Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.);

iii. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794);

iv. Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.);

v. Title II and Title III of the Americans with Disabilities Act (ADA) of 1990 as amended by the ADA Amendment Act of

2008 (42 U.S.C. 12131-12189);

vi. Executive Order 13166, “Improving Access to Services for Persons with Limited English Proficiency.” (August 11, 2000);

vii. All provisions required by the implementing regulations of the Department of Agriculture (USDA) (7 CFR Part 15 et seq.);

viii. Department of Justice Enforcement Guidelines (28 CFR Parts 35, 42 and 50.3);

ix. Food and Nutrition Service (FNS) directives and guidelines to the effect that, no person shall, on the grounds of race, color, national origin, sex, sexual orientation, gender identity, age, or disability, be excluded from participation in, be denied the benefits of, or otherwise be subject to discrimination under any program or activity for which the Program applicant receives Federal financial assistance from USDA; and hereby gives assurance that it will immediately take measures necessary to effectuate this Agreement.

x. The USDA non-discrimination statement that in accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/ parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs).

This assurance is given in consideration of and for the purpose of obtaining any and all Federal financial assistance, grants, and loans of Federal funds, reimbursable expenditures, grant, or donation of Federal property and interest in property, the detail of Federal personnel, the sale and lease of, and the permission to use Federal property or interest in such property or the furnishing of services without consideration or at a nominal consideration, or at a consideration that is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale, lease, or furnishing of services to the recipient, or any improvements made with Federal financial assistance extended to the Program applicant by USDA. This includes any Federal agreement, arrangement, or other contract that has as one of its purposes the provision of cash assistance for the purchase of food, and cash assistance for purchase or rental of food service equipment or any other financial assistance extended in reliance on the representations and agreements made in this assurance. By accepting this assurance, the Recipient Agency agrees to compile data, maintain records, and submit records and reports as required, to permit effective enforcement of nondiscrimination laws and permit authorized USDA personnel during hours of program operation to review and copy such records, books, and accounts, access such facilities and interview such personnel as needed to ascertain compliance with the nondiscrimination laws. If there are any violations of this assurance, the Department of Agriculture, FNS, shall have the right to seek judicial enforcement of this assurance. This assurance is binding on the Recipient Agency, its successors, transferees and assignees as long as it receives assistance or retains possession of any assistance from USDA. The person or persons whose signatures appear below are authorized to sign this assurance on behalf of the Recipient Agency.

MISCELLANEOUS

25. The Recipient Agency agrees to provide the State Distributing Agency with any information updates regarding changes in the Recipient Agency’s address, telephone number, contact person, etc.

26. This agreement shall be deemed executory only to the extent of monies available to the State Distributing Agency for the performance of the terms hereof and no liability shall be incurred by the Office of General Services and/or the People of the State of New York beyond the money available for such purpose.

27. The Recipient Agency agrees to preserve the right to assert claims against other persons to whom they deliver USDA Foods for care, handling or distribution and to take action to obtain restitution where appropriate or as directed by the State Distributing Agency.

28. The Recipient Agency agrees that it will observe and comply with Sections 139a and 139b of the New York State Finance Law, together with all applicable provisions of the State Labor Law in the performance of this agreement.

VENDING AND BACKHAULING ACKNOWLEDGMENT

New York State does not allow backhauling of USDA Foods. Therefore, recipient agencies, including vended schools, may not backhaul USDA Foods to a vendor for further preparation. USDA Foods will only be delivered to approved recipient agency drop sites.

Vending (Vended) means that your district’s meals are partially or fully prepared offsite by a processor/vendor and sent to your district for consumption.

Backhauling means the delivery of USDA Foods to a processor for processing (or repackaging), from a distributing or recipient agency’s storage facility.

USDA Foods may be used to supplement a vended program by being utilized and portioned out by your school district on premise (i.e., your district receives your vended meals and then adds USDA Foods to the tray prior to serving at the cafeteria.)

Vended schools may find that there are fresh fruit and vegetables from the USDA DoD Fresh Program, USDA Directly Delivery and USDA Direct Diversion that fit these criteria.

By signing below, you confirm that if your district receives USDA Foods they will be stored, utilized, portioned, and fed on premise and they will not be backhauled. Backhauling USDA Foods may result in termination of the Agreement for the Direct Distribution of USDA Foods between the recipient agency and New York State.

Are meals prepared: Onsite Vended

NOTE: This agreement must be signed by an employee of the school who is authorized to enter into agreements with outside agencies (i.e.; Food Service Director, Business Manager, or Superintendent).

PRIMARY CONTACT

Print Name & Title

Email Address Phone Number

Signature Date

SECONDARY CONTACT

Print Name & Title

Email Address Phone Number

OGS FOOD DISTRIBUTION (SDA):

Print Name & Title

Email Address

OGSDonatedFoods@ogs.ny.gov

Phone Number

518-474-5122

Signature