Member Agency Agreement

Transcription

1 SLS SAMPLE DOCUMENT 07/09/17 Member Agency Agreement This is a Member Agency Agreement ( Agreement ) dated as of, 20, between [ ], a California nonprofit public benefit corporation ( Client ), and, a ( Agency ). BACKGROUND A. Client is a nonprofit organization that provides nutritious food and nutrition education to people in need, educates the public, and promotes public policies that address hunger and its root causes. Client distributes food through a network of over [ ] member agencies and is a member of the national network of Feeding America. B. Client offers its member agencies access to free and low-cost food, various food programs, and free trainings and skill-building sessions relating to food safety, nutrition, nutrition assistance programs, and other matters. C. Agency shares Client s goals, and desires to become a member agency of Client. Client has approved Agency s membership, on the terms and conditions set out in this Agreement. D. The agency plan attached as Exhibit A ( Plan ) includes information about Agency food program sites, contact persons, and other matters. The Client Member Agency Handbook attached as Exhibit B ( Handbook ) contains policies and procedures applicable to member agency activities. Client and Agency agree as follows: 1. CORE TERMS 1.1 Approved Sites Agency will store and distribute food and other products received from Client (together, Products ) only at sites listed on the Plan ( Approved Sites ). Agency may add or change Approved Sites with Client s prior written approval. 1.2 Contact Persons Agency and Client will each appoint one individual to act as principal contact person for notices and other communications under this Agreement. The initial appointees are identified in the Plan. Agency and Client may change its contact person at any time by written notice to the other party. 1.3 Term; Renewal The term of this Agreement is set out in the Plan. This Agreement will automatically renew each year for an additional one-year term ( Renewal Term ) unless either party notifies the other in writing, no later than 30 days before the end of the current term, of its decision not to renew. 1.4 Membership Fees In order to help cover the costs of the services provided to Agency by Client, Agency will pay Client a $[ ] membership fee for each Approved Site per term. Client will invoice Agency for applicable membership fees, and Agency will pay any such invoice within 30 days of the invoice date. 1.5 Compliance Agency and Client will comply with Feeding America rules and regulations and USDA and other federal, state, and local laws applicable to its activities under this Agreement. Note: This document does not reflect or constitute legal advice. This is a sample made available by the Organizations and Transactions Clinic at Stanford Law School on the basis set out at nonprofitdocuments.law.stanford.edu. Your use of this document does not create an attorney-client relationship with the Clinic or any of its lawyers or students.

2 1.6 Handbook Agency will operate with due care and in accordance with Client standards or policies, including, without limitation, policies set out in the Handbook (together, Client Policies ). Client may at any time update or otherwise change Client Policies in its discretion, and Client will communicate such changes to Agency. 2. FOOD SAFETY 2.1 Food Handling Agency will ensure safe and proper handling of Products in compliance with all federal, state, and local laws including, without limitation, keeping storage areas sanitary and free from infestation, stocking Products separately in an identifiable manner, safeguarding against theft, spoilage, and misuse, and maintaining refrigerators, freezers, and other equipment in proper working order to ensure Products remain in good condition from the point they are accepted from Client until they are distributed or otherwise used by Agency. 2.2 Training Client will provide Agency with access to free food safety trainings and other skill-building sessions. Agency will ensure that at least one representative of Agency attends a food safety training class provided or approved by Client and re-certifies annually or as otherwise required by Client. 2.3 Product Recalls; Notice of Claims Client will promptly notify Agency of, and Agency will promptly comply with, any product recall of Products as instructed by Client. Agency will promptly notify Client if it receives notice of any claim of liability related to food provided by either Agency or Client or any report of illness related to, or possibly related to, food provided by either Agency or Client. 3. PRODUCTS; PAYMENT 3.1 Product and Service Availability Client will provide Agency with access to a variety of Products, food programs, and services. Agency acknowledges that Client may change the amount or type of Products and services available or provided to Agency, including, without limitation, for the reasons set out in the Handbook and on the basis of Client s periodic evaluations of Agency s capacity and performance. 3.2 Amount of Products Agency will take Products only in an amount necessary for carrying out its ordinary course activities at Approved Sites. 3.3 Product Pick-Up and Delivery Client will coordinate pick-up and/or delivery logistics with Agency. Agency will comply with Client Policies regarding product pick-up and delivery, including, without limitation, complying with safety rules, shopping procedures, and accepting deliveries on the day and at the time designated. 3.4 Payment Client may require payment from Agency for certain Products and shared maintenance fees. Client may change Product charges or fee amounts without prior notice to Agency. Client will invoice Agency for fees and applicable charges in respect of Products, and Agency will pay any invoice within 30 days of the invoice date. 3.5 As-Is Condition; No Warranties Agency will accept all Products in as-is condition. Agency acknowledges that the original donor, Feeding America, and Client make no warranties about any Products. 2

3 4. CLIENT SERVICE 4.1 Client Dignity and Respect Agency will treat all food recipients ( Clients ) with dignity and in a respectful and professional manner, including using appropriate language and behavior at all times. 4.2 Non-discrimination Agency will not deny access to Products on the basis of race, color, citizenship, religion, sex, national origin, ancestry, age, marital status, disability, sexual orientation including gender identity or expression, unfavorable discharge from the military, status as a protected veteran, politics, or medical condition. 4.3 Food Recipients Agency will distribute Products only to persons who are low-income, needy, ill or infant individuals, and only for use in Alameda County. Notwithstanding that, if a Client from outside Alameda County requests food, Agency may serve them on a one-time basis and advise the Client about resources to find the proper distribution agency. Agency will ensure that neither Agency staff nor any other non-eligible persons take or otherwise make personal use of Products. 4.4 Volunteers Agency will not distribute Products to volunteers who do not meet Client eligibility criteria. If a volunteer is low-income and qualifies for receiving Products, Agency will distribute the same type, quality, and amount of Products, and in the same way, as it would distribute to any other Client. 4.5 No Charges Agency will not require any Client to make any payment for Products. Clients may make donations if the donation is not required in order to receive Products. 4.6 No Required Participation Agency will not require any Client to participate in Agency activities in order to receive Products. 4.7 No Religious Activities Agency will not require any Client to participate in religious activities (such as attending religious services, prayer, or counseling sessions) in order to receive Products. Agency will not use Products in religious programming. 4.8 No Sale or Transfer Agency will not sell, barter, or exchange Products for money, products, or services. Agency will not transfer Products to another agency without Client s prior written approval. 4.9 No Use for Fundraising Agency will not use Products at or for fundraising events, programs, or other activities Product Restrictions Client may receive Products that are donated with the condition that they be used in a certain manner. Agency will comply with any Client and donor specifications, whether identified on Product or at Client s facility, or as otherwise communicated by Client. 5. COOPERATION; COMMUNICATION 5.1 Agency Feedback Client welcomes and values input from Agency about Client s program design and operation. Client encourages Agency to share, throughout the course of this Agreement, Agency s goals and desires, and any questions or concerns Agency may have regarding Client s services. 3

4 5.2 Meetings Client will host an annual agency conference and quarterly agency network meetings. Agency will send at least one representative of Agency to any meetings reasonably requested by Client. 5.3 Reporting Agency will provide to Client monthly reports, financial information, surveys, and other information as further described in the Handbook and as reasonably requested by Client. 5.4 Changes to Contact Information Agency will promptly notify Client in writing of any: (a) change in Agency contact person, executive director, program director, billing contact, or authorized shopper; or (b) change in telephone number, mailing address, or billing address. 5.5 Material Developments Agency will promptly notify Client in writing of any: (a) change in Agency s food programs, including changes in distribution days or times; (b) large increases or decreases in the number of Clients being served by Agency; (c) change in Agency s status as a nonprofit corporation or religious organization in good standing under California law; (d) loss of taxexempt status; or (e) other events or developments which have or could have a serious adverse impact on Agency s ability to carry out its food distribution programs or perform its obligations under this Agreement, or on its financial condition generally. 5.6 Recordkeeping Agency will keep records relating to the use and distribution of Products, number of Clients served, and as otherwise contemplated by Client Policies, Feeding America rules and regulations, and applicable USDA and other legal requirements. Agency will make those records available for review by Client upon reasonable notice during the term of this Agreement and for a period of three years after its termination. 5.7 Monitoring; Inspection Client may regularly monitor Agency s activities. Client may, during normal business hours and without notice, inspect all Approved Sites and any other Agency facilities used in connection with Agency s activities under this Agreement. The presence of Client s representatives will not limit or affect in any way Agency s obligations under this Agreement. This Section 5.7 does not impose any duty on Client to assume any liability of any kind arising from inspecting or not inspecting any facility. Agency will allow Agency facilities to be inspected by federal, state, and local authorities for health requirements, and will provide Client with the results of such inspections. 6. RELATIONSHIP 6.1 Qualified Agency Agency represents that it is a tax-exempt non-profit organization or qualified religious organization as determined under Section 501(c)(3) of the Internal Revenue Code ( IRC ) and meet Internal Revenue Service eligibility requirements for receipt, transfer, and use of donated food under Section 170(e)(3) of the IRC. Agency will provide Client with proof of its 501(c)(3) status once per year, or as otherwise requested by Client. 6.2 Independence Client and Agency are and will remain independent charitable organizations. Neither Agency nor Client will not hold itself out as an agent or representative of or purport to speak or act on behalf of the other party, including, without limitation, in any advocacy activities. Neither Client nor Agency has the power or authority to bind or obligate the other to a third party or commitment in any manner. The arrangements contemplated by this Agreement do not create a partnership, joint venture, or similar relationship for any purpose. Any use of the term partner, affiliate, or comparable term in any communication is solely for convenience. 4

5 6.3 Use of Agency s Name Client may identify Agency as a member agency and use Agency s logo and trade names in internal and external communications, including on Client s website and in Client s outreach materials. 6.4 Limited Use of Client s Name and Logo Agency will not use any of Client s trademarks or identify Client as an affiliate in any promotional, advertising, or other material, or in any website, press release, or public communication, without obtaining Client s prior written approval. 7. INDEMNIFICATION; LIABILITY 7.1 Indemnification by Agency Agency will indemnify, defend, and hold the original donor, Feeding America, and Client, and their respective directors, officers, employees, and assigns (together, Indemnified Parties ) harmless from and against any and all claims, liabilities, damages, and expenses, including, without limitation, claims arising from death or personal injury, taxes, and attorneys fees and expert witness costs, arising from or in relation to: (a) Agency s storage, maintenance, transportation, use, or distribution of any Products or any other products; or (b) any breach by Agency of its obligations under this Agreement. Agency will have no obligation to indemnify any Indemnified Party to the extent the liability is caused solely by such Indemnified Party s gross negligence or willful misconduct. 7.2 Liability Release Agency waives and releases any and all tort, contract, or other claims against Indemnified Parties for any liability arising out of or relating to this Agreement, or loss, damages, claims, expenses and attorneys fees resulting from death, injury, or property damage, caused by or arising from provision by Client to Agency of, distribution by Agency of, or consumption or use by any person of, any Products, regardless of the cause and even if caused by negligence, whether passive or active, to the fullest extent permitted by law. 8. CORRECTIVE ACTION; TERMINATION 8.1 Voluntary Withdrawal by Agency Agency may terminate this Agreement and voluntarily withdraw from participation as a member agency by providing Client with written notice to that effect. Such a termination will be effective 30 days after receipt of such notice by Client. 8.2 Corrective Action If Agency is not meeting objectives or standards set by Client, Agency will cooperate with Client in addressing the problem. Client may take such actions as it considers appropriate including, without limitation, increasing frequency of site visits, providing additional training or other support to Agency, or establishing a formal corrective action plan. Client may also restrict or suspend Agency s account at any time, including, without limitation, on the basis set out in the Handbook. 8.3 Termination by Client Client values every member agency s contribution to Client s agency network and the community, and will not take any decision to terminate an agency lightly. However, Client may terminate Agency s status as a member agency at any time and for any reason. Issues that may result in termination include, without limitation: (a) Agency breach of any of its obligations under this Agreement; or (b) Agency engagement in any illegal conduct or other conduct that reflects or may reflect adversely on Client. Such termination will be effective upon delivery of written notice of such termination from Client to Agency. 8.4 Effect of Termination If this Agreement terminates, Client and Agency will cooperate in transition and will use reasonable efforts to minimize disruption to Clients and any other adverse impacts of the termination. Sections 2.3, 3.4, 3.5, 5.6, 7, 8.4, and 9 will remain effective after the termination of this Agreement. 5

6 9. GENERAL PROVISIONS 9.1 Entire Agreement This Agreement, together with the Plan, expresses Client s and Agency s final, complete, and exclusive agreement, and supersedes any and all prior or contemporaneous written and oral agreements, communications, or course of dealing between Client and Agency relating to its subject matter. If there are any inconsistencies between the Handbook and this Agreement, this Agreement will control. 9.2 Amendment This Agreement may be amended only as stated in and by a writing signed by both Client and Agency which recites that it is an amendment to this Agreement. 9.3 Severability; Waiver If any provision of this Agreement is held illegal, invalid, or unenforceable, all other provisions of this Agreement will nevertheless be effective, and the illegal, invalid, or unenforceable provision will be considered modified such that it is valid to the maximum extent permitted by law. Waiver of any breach or provision of this Agreement will not be considered a waiver of any later breach or of the right to enforce any provision of this Agreement. 9.4 Assignment Agency may not assign its rights or delegate its duties under this Agreement to anyone else without the prior written approval of Client, except that Agency may assign all of its rights and obligations under this Agreement without Client s prior written approval in connection with a merger, acquisition, reorganization, sale or transfer of substantially all of its assets, or other operation of law. 9.5 Third Party Beneficiaries Except as specifically provided in Section 7, this Agreement is for the exclusive benefit of Client and Agency, and not for the benefit of any third party, including, without limitation, any Client, landlord, funder, employee, volunteer, or vendor of Client or Agency. 9.6 Counterparts This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. Transmission by fax or PDF of executed counterparts will constitute effective delivery. * * * * * * * * * * Client and Agency signed this Agreement as of the date set out in its first paragraph. [CLIENT] [AGENCY] By: By: Title: Title: 6

7 Exhibit A Approved Site Plan Agency contact information Agency information Agency address Executive Director: [Program Director:] [Agency billing address] Agency contact person Authorized shopper Title: Telephone: Title: Telephone: Client contact person Client contact person Title: Telephone: TERM Initial Term [m/d/y] to 12/31/[y] Renewal Date January 1 SITE A Site name Address SITE B Site name Address 7