RFPAttA - SPS Sample Price Agreement FoodSrvsProducts - DOJ Exmpt.docx

ATTACHMENT A – SAMPLE PRICE AGREEMENT

State of Oregon

PRICE AGREEMENT

WITH

[CONTRACTOR NAME]

FOR FOOD SERVICES PRODUCTS INCLUDING RELATED PRODUCTS AND SERVICES;

Any or all that apply Type 1 – Grocery (specify each category that applies) Type 2 – Broadline – All Categories Type 3 -Truckload (by Category)

PO-10700-000XXXXX

[Buyers option to insert a Table of Contents]

This Price Agreement (“Agreement’) is between the State of Oregon (“State”), acting by and through its Department of Administrative Services – State Procurement Services (“DAS-SPS”) and [Awardee], a [State] Corporation (“Contractor”).

Section 1 –Agreement

1.0 DEFINITIONS

a. Authorized Agency – means those State Agencies that are subject to the procurement authority of the Director of the Department pursuant to ORS 279A.050 and 279A.l40 and with delegated authority pursuant to OAR 125-246-0170. This term also includes the Oregon Department of Administrative Services (the "Department") when the Department is engaged in Public Contracting (as defined under ORS 278A.010 (I) (a)).

b. “Authorized Purchaser” – means Any State Agency of the State of Oregon, ORCPP (Oregon Cooperative Purchasing Program) members in good standing, and MCUA participants.

c. “Broadline Distributor” – means a Food Service Products company that distributes Food Service Products in the majority of categories or all categories.

d. “Business Days” – means all days Monday through Friday excluding weekends and public holidays.

e. “Canned Food” - means any kind of food that is in a store-bought can, e.g. beef, pork, poultry, fruit, produce, or dairy, that is sterilized by heat in a closed, durable container such as tin and aluminum cans, flexible aluminum foil and thermoplastic containers including squeeze tubes.

f. “Compostable Goods” - means food service ware in which a product is capable of disintegrating into natural elements in a compost environment, leaving no toxicity in the soil.

g. “Contract” - means the entire agreement between the Contractor and the Authorized Purchaser, comprised of this Agreement, including any Addenda and Amendments and a signed Ordering Instrument, if hard copy, or acknowledged Ordering Instrument, if in electronic form.

h. “Contractor Reject” - means Food Service Products delivered to an Authorized Agency in a condition resulting in a material breach of the Contract or with problem related to quality or condition of the Food Service Products.

i. “Cooperative Procurement” - is defined in OAR 125-246-0400.

j. “Delivery” - means the process of transporting goods from a source location to a predefined destination.

k. “Disposable Goods” - means Food Service Products that are used up a short time after purchase, including and not limited to perishables, clothes, paper goods, plastic wear, sanitary and cleaning supplies, etc. Also called disposables.

l. “Distressed Good(s)” - means a Food Service Product, packaging or container that has been damaged, or label has been defaced, such that it is unsuitable for retail sale, but which does not change the integrity or edibility of the Food Service Product.

m. “Distribution” - means the process of making a product or service available for use or consumption by a consumer or business user.

n. “Food Service Products” - means all raw and processed food products used for human consumption, Smallware’s used in the preparation, serving and Disposable Goods used in maintaining, integrity and sanitary conditions of food services.

o. “Grocery” - means Food Service Products offered and delivered that are not provided by a Broadline Distributor or delivered on by Truckload.

p. “Independent Agencies” - means those State Agencies with independent procurement authority pursuant to ORS 279A.050, 279A.170 and other provisions of applicable State law.

q. “Manufacturers’ Reject” - is defined as an incorrectly manufactured Food Service Product that fails to meet the manufacturer quality control standards or that a retailer will not accept for sale, and for which the integrity or edibility of the Food Service Product is not changed.

r. “MCUA” - means Master Contract Use Agreement between State of Oregon and State of Washington.

s. "ORCPP" - means the Oregon Cooperative Purchasing Program, whose participants include but are not limited to State Agencies not subject to DAS PS purchasing authority, cities, counties, school districts, special districts, the Oregon Forward program participants, residential programs under contract with the Oregon Department of Human Services, United States governmental agencies, and American Indian tribes or agencies.

t. “Ordering Instrument” - means a document used by an Authorized Agency in compliance with the Public Contracting Code, these Rules, and Department policies, for the general purpose of purchasing Food Service Products under the Price Agreement. An Ordering Instrument may also be known as an order, purchase order, work order, delivery order contract or other name assigned by an Authorized Purchaser. Food Service Products

u. “Processed Foods” - means food products that are varied from their original form through transformation of raw ingredients into food, or of food into other forms. Food processing takes clean, harvested crops or butchered animal products and uses these to produce attractive, marketable and long shelf life Food Service Products.

v. “Salvaged” - means reconditioned or prepared for sale or use as food, including cleaning, culling, sorting, scouring, labeling, and packaging, which does not change the integrity or edibility of the Food Service Product(s).

w. “Service” - means accommodations and process to fulfill Food Service Products Order requirements.

x. “Shipping” - means the physical process of transporting Food Service Products.

y. “Smallware’s” - means Food Service Products that are used to handle, prepare, carry, package, and wrap, any food that can be ingested by human consumption. Including and not limited to, cooking utensils, plastic ware, hairnets, gloves, aprons, dishes, pots and pans, knives, small hand mixers, mixer blades, cookware, beverage dispensers, etc. This does not include capitalized kitchen equipment or kitchen appliances i.e., microwave ovens, ovens, racks, etc.

z. “Specifications” - means the specific attributes of the Food Service Products to be purchased, including and not limited to availability, quality, shipping, Service and Delivery.

aa. “State” - means the State of Oregon.

ab. "State Agency" or "State Agencies" - means those agencies of the State of Oregon that are subject to the procurement authority of the Director of the Department of Administrative Services according to ORS 279A.050 and 279A140.

ac. “Truckload” - means a load of requested Food Service Products that fills a 40 ft. trailer; minimum weight of 40,000 lbs. for shipping at truckload rates.

ad. “Types” - means Service area: Type 1 is Grocery; Type 2 is Broadline Distributor; Type 3 Truckload.

ae. “USDA” - means the United States Department of Agriculture.

1.1 PARTIES

The only parties to this Agreement are Contractor and SPS.

Authorized Purchasers may purchase goods and related services specified in Exhibit A (“Goods”) by issuing ordering instruments that create and become part of separate contracts (“Contracts”). The only parties to Contracts created by ordering instruments are the applicable Authorized Purchaser and Contractor. DAS-SPS is an intended beneficiary of each Contract created by an ordering instrument.

As used in this Agreement, “Authorized Purchaser” means:

a. Any agency of the State of Oregon,

b. Any participant in the Oregon Cooperative Purchasing Program (“ORCPP”)in good standing,

c. Any Washington State Contracts Use Agreement (MCUA) participants, and

1.2 PROCESS

1.2.1 ORDERING INSTRUMENT

Authorized Purchasers may order Goods during the Term of this Agreement using an ordering instrument:

a) Authorized Purchasers who are agencies of the State of Oregon under DAS procurement authority may issue ordering instruments under this Price Agreement for any dollar amount without further delegation of procurement authority from DAS. Notwithstanding the foregoing DAS delegation, Authorized Purchasers who are agencies of the State of Oregon must obtain all other necessary approvals, including but not limited to legal sufficiency approval as required.

b) Authorized Purchasers that are agencies of the State of Oregon may use one of the following as ordering instruments: i) the DAS-SPS-approved purchase order form. Exhibit B is a sample DAS-SPS-approved purchase order form; or ii) an electronic ordering method when the Authorized Purchaser is using a Small Purchase Order Transaction System (SPOTS) card. Unless expressly authorized by DAS-SPS in writing, Contractor shall not accept a different type of ordering instrument from a State agency.

c) Authorized Purchasers that are not agencies of the State of Oregon may use their own Purchase Order forms as ordering instruments or any of the above mentioned methods.

c) To be effective, the ordering instrument must specify all of the following:

i) Language stating that the ordering instrument is submitted under this Agreement (and include the Agreement reference number from the Agreement coversheet).

ii) The specific Goods and quantity of each item ordered.

iii) The net price.

iv) The requested delivery schedule.

v) The delivery location(s).

vi) The invoicing address.

vii) The Authorized Purchaser’s authorized representative and relevant contact information, including an e-mail address or fax number.

1.2.2 A Contract created by an ordering instrument consists only of the terms specified or required by this Agreement. Additional, different or conflicting terms and conditions in any purchase order or any other form of either an Authorized Purchaser or the Contractor may not vary the terms of a Contract. Additional, different or conflicting terms and conditions on a purchase order or other form are of no effect.

1.2.3 Contactor shall be required to furnish all Food Service Products materials, supplies and associated services under applicable workmanship used in the production and delivery of Food Service Products and shall conform to all applicable federal, State and local codes, laws, rules, regulations and other requirements for such Food Service Products as specified herein and under Exhibit A and the normal uses for which they are intended. All material goods and equipment shall be manufactured in accordance with the best commercial standards and practices for this types of “goods”.

1.2.4 DAS SPS award by region does not limit Contractor statewide sales by Contractor or purchases by Authorized Purchases.

1.2.5 If Contractor expands its business, and can offer Food Service Products in another region, company may offer other regions as requested by Authorized Purchasers.

1.2.6 A Contract created by an ordering instrument consists only of the terms specified or required by this Agreement. Additional, different or conflicting terms and conditions in any purchase order(s) or any other form of either an Authorized Purchaser or the Contractor shall not vary the terms of a Contract. Additional, different or conflicting terms and conditions on a purchase order or other form are of no effect.

a) Department of Administrative Services : Oregon Cooperative Procurement Program : State Procurement Services : State of Oregon

b) Department of Enterprise Services : State of Washington; Master Contract Use Agreement Participants

1.2.9 Due to the use of the US Department of Agriculture (USDA) and other federal funds that Authorized Purchasers may use for some or all Food Service Product purchases, federal procurement regulations including but not limited to 2 CFR 200.317, 2 CFR 200.318, & 2 CFR part 400 may apply, and Authorized Purchasers using federal funds may issue two Ordering Instruments issued at one time for any particular Food Service Product category (one for federal funds, one for non-federal funds).

1.2.10 Contractor shall reject an ordering instrument that does not meet the requirements of this Agreement.

1.3 PRICES

1.3.1 Except as provided in this Section, during the Term of this Agreement, Contractor shall offer Goods and related services to Authorized Purchasers at prices not Contractor represents that all prices, terms and benefits offered by Contractor under this Agreement are equal to or better than the equivalent prices, terms and benefits being offered by Contractor to any other state or local government unit or commercial customer.

1.3.1.1 Should the Contractor, during the term of the Agreement, enter into any contract, agreement or agreement that provides lower prices, more favorable terms or greater benefits to any other such government unit or commercial customer, this Contract shall thereupon be deemed amended to provide the same price or prices, terms and benefit to the State. This provision applies to comparable Food Service Products and Services, and purchase volumes by the State that are not less than the purchase volumes of the government unit or commercial customer that has received the lower prices, greater benefits or more favorable terms.

1.3.1.2 Section 1.3.1.1 does not apply to donations of Food Service Products to charitable, nonprofit or government entities, if the donations are recognized as such and are deductible under Federal Internal Revenue Code, such donations shall not be considered contracts, agreements, sales, or arrangements with other government units or commercial customers that call for the application of section 1.3.1.1.

1.3.2 Contractor shall subtract from prices charged to Authorized Purchasers any unit price decrease that has been achieved or gained by the Contractor, whether through the manufacturer or otherwise. Contractor shall give Authorized Purchasers the immediate benefit of the decrease. Contractor shall promptly notify Contract Administrator of the amount and effective date of the decrease.

1.3.5.1 Contractor Pricelist information required to be input into the form must clearly identify any and all Food Service Products offered in the Food Service Products Category Pricelist as follows:

i) Contractor Name and Address

ii) Food Service Product

iii) Variety/Description

iv) Vendor Item Number

v) Manufacturer Item Number

vi) Pack/Size

vii) Fixed Price per Item

viii) Fixed Price per Case

ix) Fixed Price Per Pallet

x) Locally Produced (Yes/No)

xi) Local Supplier Name/Location (if different)

xii) Quantity Supplied Annually

1.3.6 For Pricelist Tab 1 provide the following information as needed;

i) Contractor Name

ii) Office Address

iii) Warehouse Address(es)

iv) Grocery Types Providing

v) Category(ies)if Providing targeted Type 2 Groceries

vi) Delivery Regions

vii) Additional Charges and Fee’s

viii) Discounts and Reductions

fixed pricing under this agreement will be available to Authorized Purchasers either via an OregonBuys catalog developed cooperatively between Contractor and OregonBuys catalog specialists or via a Contractor developed, agreement specific catalog, and provided by a punch-through process via OregonBuys.

1.3.8 Fixed Food Service Price Lists for each Type and Category awarded will be used throughout the life of the Agreement for pricing verification, price change evaluations and Volume Sales Report (VSR) audits (as needed) and other processes as deemed necessary. Therefore, Fixed Price Lists for the Type and Category will remain static, placing a -0- in the price column(s) to indicate no longer available or offered under a new Pricelist submission. If an item is added, it will be added at the bottom of the static Pricelist form. Items being replace by a similar item will be noted under item number…replaced with/replacement for. DAS SPS reserves the right to change the form as appropriate.

1.3.9 Either party to this Agreement may request a price adjustment, in whole or in part.

1.3.10 Throughout the Term of this Agreement, additional Food Service Products may be added and deleted from the original Food Service Product Category awarded due to seasonal availability, reasonable order quantities, product availability, and other reasonable incidences.

1.3.11 Except as listed below in section 1.3.12, Contractor will maintain initial pricing for a minimum of 1 year then may request unit price increases from SPS no more often than bi-annually, commencing July 1 and January 1 each year.

1.3.11.1 Contractor must submit a request to the SPS Contract Administrator in writing at least 30 days before the proposed effective date of the increase, unless otherwise agreed upon.

1.3.11.2 The request must show all proposed increases by line item and include supporting documentation acceptable to SPS or as required by USDA. DAS SPS may require Contractor to provide U.S. Bureau of Labor Statistics Producer Price Index, Consumer Price Index data or any other relevant manufacturer or industry data substantiating the increase. However, a price increase may not produce a higher profit margin for Contractor than at the beginning of the initial term of this Agreement.

1.3.11.3 Purchase Price Index (PPI) and Consumer Price Index (CPI) will be used to determine the validity of the requested increase.

Established Price List must contain current valid prices that includes discounts originally offered.

1.3.11.4 DAS PS has sole discretion to approve or deny a price increase request. DAS PS will determine whether the documentation is sufficient to substantiate an increase or whether to require Contractor to submit additional supporting documentation.

1.3.11.5 DAS PS also reserves the right to independently verify the basis for and validity of any proposed price increase in pricing as stated in section 3.3 above.

1.3.11.6 Price decreases are encouraged and accepted by DAS-SPS.

1.3.11.7 Contractor shall update Exhibit 2, Food Services Products Price as referenced in section 1.3, with approved changes, and send the updated Category Pricelists to DAS SPS Contract Administrator, and as applicable, post to Contractors OregonBuys Catalog or on Contractor’s business website as relevant.

1.3.12 A number of Food Service Products due to limited shelf life, limited durability or specialized market pricing programs may elect to have their Exhibit A-2 Food Service Products Price List changed at the frequency not more often than the following:

a) Produce – weekly; Contractor will define the day of the week prices will be set

b) Fresh Dairy – monthly; Products including but not limited to fluid milk, non-aged cheeses, sour cream, cottage cheese, cream cheese, ice cream –based on the Federal Milk Marketing Order.

c) Bakery Products – weekly; Contractor will define the day of the week prices will be set.

d) Fresh Raw Refrigerated Meats – weekly; Products including but not limited to beef, pork, poultry, buffalo, lamb, rabbit, and sea food.

1.3.13 Price changes as defined in 1.3 are considered a matter of contract administration and no Amendment is required.

1.4.1.1 In the event there are discrepancies found during the audit DAS SPS reserves the right to execute the following formal process:

(i) Contractor shall supply at DAS SPS's request the manufacturer's invoice for the Food Service Products within the Category that the Contractor was awarded;

(ii) The audit shall be conducted at the Contractor's location by an independent third-party auditing firm that DAS SPS has selected;

(iii) Contractor shall pay the cost of the audit. Contractor shall provide all documentation that substantiates any manufacturer's price increase or decrease;

(iv) Any decrease in Price documented in the audited period shall be credited back to the applicable Authorized Purchaser;

1.5 RETURN GOODS

Contractor shall accept returned Food Service Products when one or more of the following conditions are present:

1.5.1 Breakage, spoilage or other damage has occurred from shipment or otherwise, when the Food Service Products have been handled by Authorized Purchaser personnel with reasonable care;

1.5.2 Food Service Products dating, where applicable, is discovered to be less than required by Specification Section 4.1.1.2, “use by date” or ‘date of manufacture” Food Service Products, quality, packaging, appearance, or other feature is not as specified in the Contract or as sampled, if sample is requested;

1.5.3 Food Service Products supplied are the result of Contractor error, and Authorized Purchaser is not willing to keep the shipment of Food Service Products.

1.6 RECALLS AND RETURNS

In addition to its obligations under “Section 3.3”, throughout the duration of this Agreement and any resulting contracts and warranty periods, Contractor shall maintain and comply with its written policy and procedure for handling returns and recalls related to food safety as submitted to DAS SPS as part of Contractor's Proposal to this Agreement under RFP 10700-00013784

1.7 VENDOR COLLECTED ADMINISTRATIVE FEE (VCAF) AND VOLUME SALES REPORTS (VSR)

Contractor shall remit to SPS a VCAF and VSR as described in “Exhibit C”.

Contractor shall obtain insurance specified in “Exhibit D” and shall maintain the insurance until all Contracts under this Agreement are terminated.

In the event of any such delay, Contractor’s obligations are suspended to the extent of and for the duration of such causes. However, Contractor shall take all good faith efforts to eliminate the cause of any such delay, and upon the cessation of such cause, shall resume performance of Contractor’s obligations with all reasonable diligence. If necessary, the period for performance under this Agreement will be extended to enable Contractor, once such causes have been removed, to fulfill its obligations hereunder.

The Contract Administrators are identified in Sections 4 and 5, respectively.

1.10.9 No Third Party Beneficiaries. DAS SPS and Contractor are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or will be construed to give or provide, any benefit or right, whether directly, indirectly, or otherwise, to third persons unless such third persons are individually identified by name herein and expressly described as intended beneficiaries of the terms of this Agreement.

1.10.10 Waiver. The failure of SPS to enforce any provision of this Agreement or the waiver of any violation or nonperformance of this Agreement in one instance does not constitute a waiver by SPS of that or any other provision nor is it a waiver of any subsequent violation or nonperformance. Such failure to enforce waiver, if made, is effective only in the specific instance and for the specific purpose given.

1.10.11 Certification of Compliance with Tax Laws. By signature on this Agreement for Contractor, the undersigned hereby certifies under penalty of perjury that the undersigned is authorized to act on behalf of Contractor and that Contractor is, to the best of the undersigned’s knowledge, not in violation of any Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means a state tax imposed by ORS 320.005 to 320.150 and 403.200 to 403.250 and ORS chapters 118, 314, 316, 317, 318, 321 and 323 and the elderly rental assistance program under ORS 310.630 to 310.706 and local taxes administered by the Department of Revenue under ORS 305.620.

1.10.15 Sustainability. Under OAR 125-246-0324 the State of Oregon promotes the use of recyclable or biodegradable products for food service and packaging. Additionally, the State of Oregon and many Authorized Purchasers have adopted Sustainability laws, principles and practices and are committed to meeting the Food Services Products needs of Authorized Purchasers while not harming the environment or human health. State law (ORS 279B.025) requires that agencies establish procurement practices that ensure, to the maximum extent economically feasible, the procurement of goods that may be recycled or reused when discarded.

Describe and list Proposer’s company programs and efforts related to sustainability practices within the Proposers Control. Additionally, if the proposers has resources to aid Authorized Purchasers achieve sustainability goals please describe that as well.

Detail provisions used for the recyclable or biodegradable products for food service and packaging

(a) Best practices used by Proposer encouraging the recycle, reuse

(b) Reducing company’s environmental footprint (e.g. being registered as a B corporation, reducing carbon output, using carbon credit offsets, or minimizing use of products with hazardous chemicals energy efficient vehicles, etc.)

(c) Current or anticipated programs related to inclusiveness, diversity in the workforce and sustainability practices related to employee well-being.

(d) Current practices in reducing and reusing packaging, and shipping containers associated with the service and Delivery of Food Service Products while maintain product integrity and complying with Exhibit A, Sections 3 and 4, at no additional cost to the end user.”

Section 2 – Standard Terms for Contracts under this Agreement

a) Price Agreement number.

b) Ordering instrument number.

c) Goods ordered.

d) Date delivered.

e) Volume or quantity of Goods delivered.

f) The price per item of Goods.

g) The total amount invoiced.

h) The address to which payment is to be sent.

2.7.4 Liquidated Damages for late delivery. Actual damages for delay will be difficult and unduly burdensome to establish precisely; it is agreed that the Contractor shall pay to the Authorized Purchaser, not as a penalty but as liquidated damages for delays in delivery, the sum of 1/10 of 1 percent of the basic Unit proposed price for each Unit for each State recognized business day after the schedule delivery date each Unit is delivered late. For purposes of calculating liquidated damages, Units will not be considered “delivered” unless and until they conform to Contract specifications and are accepted by Authorized Purchaser. Nothing in this provision shall be construed to limit or preclude the Authorized Purchaser’s right to reject or revoke acceptance of the Goods, or to recover any other damages to which it may show itself entitled.

2.8 CANCELLATION; INSPECTIONS AND ACCEPTANCE: The Authorized Purchaser may cancel an order in whole or in part before Goods described in the cancelled whole or part are delivered. The Authorized Purchaser has ten (10) calendar days from date of delivery of the entire order within which to inspect and accept or reject the Goods. If the Goods are rejected, the Authorized Purchaser shall provide Contractor with written notice of rejection. Notice of rejection must include itemization of apparent defects, including but not limited to

(i) discrepancies between the Goods and the applicable specifications or warranties (including variance from demonstrations or sample characteristics where demonstrations or samples have been provided), or (ii) otherwise nonconforming Goods (including late delivery). Notice of rejection must also specify if cure will be allowed.

2.8.3 The Authorized Purchaser may elect to have Contractor deliver substitute conforming Goods at no additional cost to the Authorized Purchaser. In such an event, Contractor shall deliver substitute conforming Goods within ten (10) calendar days of receipt of notice of rejection, unless otherwise agreed upon. If Contractor is unable to supply a replacement shipment within the allotted period of time, Authorized Purchaser may cancel the order in whole or in part and purchase needed items from another source.

2.8.4 If the Goods are rejected or acceptance is revoked, Contractor shall refund any Contract payments that have been made with regard to the rejected Goods, and shall (at Contractor’s sole cost and expense) remove the Goods within seven (7) calendar days of receiving notice of rejection or revocation of acceptance.

2.9.3 WARRANTY ON MATERIALS, DESIGN, MANUFACTURE: Contractor represents and warrants that all Food Service Products are new, unused, current production models, fit for their intended purpose, and are free from defects in materials, design and manufacture for the warranty period. Contractor further represents and warrants that all Food Service Products are in compliance with and meet or exceed all specifications in Exhibit A, and meet or exceed safety and quality standards established in the Price Agreement.

In the event of rejection or revocation of acceptance under this subsection, Contractor shall promptly remove the Goods at its sole cost and expense, and reimburse Authorized Purchaser for any payments made.

2.11 FOREIGN CONTRACTOR: If the amount of the Contract exceeds ten thousand dollars ($10,000), and if Contractor is not domiciled in or registered to do business in the State, Contractor shall promptly provide to the Oregon Department of Revenue all information required by that Department relative to the Contract. Authorized Purchaser may withhold final payment under the Contract until Contractor has met this requirement.

2.12 MATERIAL SAFETY DATA SHEET: Contractor shall provide the Authorized Purchaser at time of delivery with a Material Safety Data Sheet (MSDS) as defined by the Occupational Safety and Health Administration (OSHA) for any Goods provided under the Price Agreement which may release or otherwise result in exposure to a hazardous chemical under normal conditions of use.