HomeMy WebLinkAboutContracts & Agreements_6-1995_CCv0001.pdf L!aLe Redlands Heights Clitrus Company
Post Office Box 778 o Menrone. California 92350, * Telephone (9091 793-2188
PAcxTNG AND MARKETING AGREEMENT
This Packing and Marketing Agreement ('Agreement') is made and entered into
this 'T-t—hday of F e_hru4r_y_, 19_-9-5, between Dole citrus, a California
corporation, (,Packer') and the (7ity of Redlands [enter business name used
by Grower] ('Grower').
i. GROWER'S OBLIGATION. Grower agrees to deliver to Packer, from year
to year until this Agreement is terminated as provided in Paragraph 9 hereafter, Grower's
entire citrus crop grown, growing or to be grown in the locations described on Exhibit 'A"
(the 'Crops"), incorporated herein by this reference. The growth, harvest and delivery of
the Crops to Packer shall be at Grower's sole cost and risk.
2. GROWER'S WARRANTIES. Grower hereby represents and warrants that:
(a) it is the owner of the Crops and has full power and authority to
sell the Crops and to enter into this Agreement; _
(b, The Crops comply with and are not adulterated within the meaning
of the Federal Food, Drug and Cosmetic Act, as amended (21 U.S.C. H 301 et seq.) (the
'Act"), and are not an article that may not, under the provisions of Sections 404 and 505 of
the Act, be introduced into interstate commerce;
(c) it will exercise extreme caution and demonstrate all due
diligence In applying or using any "Economic Poison" (as defined in Section 12753 of the
California Food and Agricultural Code) on or about the Crops or the real property upon which
they are grown or stored;
(d) The Crops comply with any and all other federal, state and local
laws and regulations regarding herbicides, pesticides and other chemical products and
hazardous materials, and have been grown and harvested in accordance with all applicable
labor laws; and (e) The Crops have been produced in full accordance with any and all
applicable federal, state or local laws, rules, regulations or orders applicable to these
items.
Each of these warranties shall be deemed ratified and repeated as to each
delivery of Crops by Grower's act of delivering them to Packer.
3. PACKER'S SERVICES. Subject to the terms of this Agreement, Packer
agrees to pack, prepare for shipment and market the Crops which, in Packer's opinion (which
shall be conclusive), are suitable for commercial shipment and sale. Grower agrees to pay
Packer's standard commissions and charges for those services at the rates on file with the
California Department of Food and Agriculture ('DF&A") as of the date the services are
performed. Packer's current (as of the date this Agreement is signed) schedule of charges
for commissions and other services is attached hereto as Exhibit "B,l incorporated herein by
this reference. This schedule of charges may be amended from time to time and Grower hereby
agrees to pay the amended charges as they are changed, such change to be effective as of the
date the amended schedule is received by the DF A. Packer shall provide Grower the current
schedule of charges at the start of each varietal year. In the event Packer performs for
Grower any services not listed on the schedule filed with the DF&A, Grower agrees to pay
- I
Packer its actual cost (includina but not limited to material costs and labor costs) for the
service performed.
4. ACCEPTANCE OF CROPS. Crops shall be picked and delivered to
Packer's packing house at Grower's risk and expense. Packer will sort and grade the Crops
upon receipt and may divert to byproducts or dispose of that portion of the Crops so
delivered that in its opinion (which shall be conclusive) do not meet Its minimum grade,
quality v or Size specifications for sale as fresh fruit. Packer's acceptance of the Crops
does not constitute any ropresentation as to the marketability or quality of any of the
Crops.
Notwithstanding anything to the contrary contained herein, Packer shall have
the right at any time or times to discontinue the marketing or selling of the Crops in their
entirety for the varietal year then in progress when, in its sole and absolute judgment,
either (a, the Crops are not fit or suitable for shipment or sale, or (b) the market price
then- prevailing for the Crops is less than the actual cost of picking, packing, hauling, and
shipping the same. in the event Packer determines that either the aforementioned (a) or (b)
applies, Packer shall give Grower notice of that fact by providing Grower written notice in
conformity with the provisions of Paragraph 13 of this Agreement. Such notice shall further
780 W. San Bernardino Avenue - Redlands, California 92-373
otherwise agreed in writing. Grower also waives the provisions of 7 C.F.R. § 46.2(aa) (1),
which provides as follows:
(as) Full payment promptly is the term used in the Act in specifying the period of
time for making payment without committing a violation of the Act. -Full payment promptly,
for the purpose of determining violations of the Act, means;
(1) Payment of net Proceeds for produce received on consignment or the pro-
rata share of the net profits for produce received on joint account, within 10 days after
the date of final sale with respect to each shipment, or within 20 days from the date the
goods are accepted at destination, whichever comes first; Grower also acknowledges receipt
of the Notice of California Commission Merchant/Consignor Law attached hereto as
Exhibit *C,' incorporated herein by this reference. Concurrently herewith, Grower shall
fill out and execute a Notice in the form of Exhibit 'C' and deliver it to Packer.
8. DELIVERY OF CROPS AS CONSIGNMENT. The delivery of the Crops to
Packer shall be deemed a consignment within the meaning of California Food and Agricultural
Code Section 56105, and not a sale to Packer at any guaranteed price. Packer shall have,
upon delivery, the exclusive right to possession of the Crops (after delivery by Grower and
prior to sale) for the purpose of performing its obligations under this Agreement. Packer
shall account to Grower for the Crops or their proceeds and make payment of proceeds as
required by this Agreement and applicable law except to the extent that applicable law has
been modified or waived by this Agreement.
9. TERM AND TERMINATION. This Agreement shall be effective from the
date hereof until terminated by written notice from either party. The termination shall be
effective as of the thirtieth (30th) day after receipt (as that term is defined in paragraph
13(1)) by the other party of such written notice of termination. Grower shall not be
entitled to give notice of termination, however, unless Grower first satisfies any
outstanding indebtedness to Packer. Packer may give notice of termination while Grower is
indebted to Packer. The Parties' exercise of their rights to discontinue delivery and
marketing for a particular season as set forth in paragraph 4 above shall not be deemed a
termination of this Agreement. After termination by either party, Packer's duties shall be
limited to making remittance in accordance with, and at the time required by, the terms of
this Agreement of any proceeds not paid prior to termination.
10. SEPARATE BUSINESSES. Grower shall grow the Crops and Packer shall
market the Crops as provided in this Agreement. Grower and Packer operate independent
businesses, each acting for its own individual account and profit and not for any joint
business of the parties. The parties do not intend by the making of this Agreement to form
or operate a partnership or joint venture.
11. INTERRUPTION OF SERVICES. Packer shall exercise reasonable care in
packing, shipping and marketing Crops, and all other services rendered pursuant hereto, but
Packer shall not be liable for loss or damage which is caused by strikes, lockouts, legal
process, water shortages, truck, railcar or labor shortages, total or partial failure of
transportation or delivery facilities, interruption of power, fire, flood, storm, acts of
God or by any law, regulation or order of any federal, state, county or municipal authority,
or other cause beyond the reasonable control of Packer.
12. MISCELLANEOUS.
(a) This Agreement shall be binding upon each party and its
successors or assigns.
(b) This Agreement and the rights of the parties shall be interpreted
in accordance with California law.
(c) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, and all of which shall constitute one and the same
Agreement.
(d) This instrument constitutes all of the understandings and
agreements existing between the parties concerning this Agreement and the rights, interests,
understandings, covenants, and obligations created by this Agreement,
(e) if any one or more of the provisions contained in this Agreement
shall for any reason be held to be inx.ralid, illegal, or unenforceable in any respect, the
invalidity, illegality, or unenforceability shall not affect any other provision, and this
Acreement shall be construed as if it did not contain the invalid, illegal, or unenforceable
provision.
(f) Any changes in this Agreement shall be embodied in a written
amendment to this Agreement, signed by both parties, and shall be effective from the date
specified in the amendment,
Z=XBXT C
NoTxcz or cALxroxNxA cowassxoN
MZRCUMT/COXSXGNOR LAWS
Attached are excerpts from the revised laws of the California Food and
Agricultural Code that are applicable to commission merchants. We are required to notify
you, because you are a consignor of fare products, of the provisions of Sections 56271,
56273, 56280, 56281, 56282 and 56351.
We wish to further notify you of the following:
(1) we intend to offer our customers the services of a related
company, Dole Logistic Services, Inc., which will provide brokerage services to our
customers who choose to use such services. Dole Logistic Services, Inc. will receive
compensation from our customers for the services it renders to them. The amount of
compensation will vary depending upon the services provided and market conditions. we will
provide You. at the and of each season, information regarding amounts paid to Dole Logistic
Services, Inc. during the season by Dole Citrus, customers for services rendered in
connection with shipments frnm its California packing facilities.
(2) Dole markets fresh fruit through a network of regional offices in
North America and through Dole Fresh Fruit Company affiliates in principal overseas markets.
Dole occasionally sells fruit to these affiliates and offices. In those cases, prices are
based on fair market value at the time of sale. The proceeds from all fruit mass are
credited to the pools in relation to the fruit's relative grade and size.
Statements 1 and 2 below waive certain additional notices available under the
Food and Agricultural Code. Please sign and return the original copy of this Notice to our
office to indicate you agree to waive (give up) these additional notice provisions. The
duplicate copy should be retained for your records.
1. 1 do not require independent inspection of any farm products alleged by
the Purchaser upon receipt to be of substandard condition as provided in Section 56280.
2. 1 do not request notice of any downward price adjustment or reduction
in the quantity of fare Products delivered and the reasons for such adjustment as provided
in Sec ion 56283,,0111
Z420140-� February 7, 1995
o onsi
nsignor.s Signature Date
Swen Larson Mayor
City of Redlands
Thank you for assisting us in meeting the requirements of the aforesaid
sections.
ATTEST: Sincerely,
Dole Citrus
Ld—r;Xe Poy City Clerk
Please place an Ix, in the space at the start of this paragraph, and sign and date
this form below where indicated, should you wish to receive from Packer notice each time the
sales price of fa= products is*aced or the quantity of goods sold is reduced after the
initial sales order is placed 1*"a Purchaser with the Packer.
Consignor Date
X
WAIVER OF TERMINATION NOTICE
AND
ACKNOWLEDGMENT OF TERMINATION
The undersigned grower hereby waives the notice of termination
provided for in the prior Packing and Marketing Agreement between
the undersigned grower and Dole Citrus and acknowledges that said
agreement is terminated and superseded by the Packing and Marketing
Agreement between the parties entered into on or about the date
noted below.
Swen Larson, Mayor
Grower City of Redlands
Dated: February 7, 1995 P. Q. Box 3005
Redi-an(Als, CA 92373
ATTEST:
-; ity C erk
§ 56351. Necessity of certificate by public officer as to damage,etc.;
substitute
A claim may not be made against the seller of any farm product by a
licensee pursuant to this chapter, and no credit may be allowed to such
licensee against another licensee or a producer of any farm product by
reason of damage to or loss, dumping, or disposal of any farm product
which is sold to such licensee, in any payment, accounting, or settlement
which is made by the licensee to the producer or other licensee, unless
the licensee has secured and is in possession of a certificate issued by a
county agricultural commissioner, a county health officer, the director, a
duly authorized officer of the State Board of Health, or by some other
official now or hereafter authorized by law. The certificate shall state
that the farm product which is involved has been damaged, dumped,
destroyed, or otherwise disposed of as unfit for human consumption or
as in violation of the fruit and vegetable standards which are contained
in Division 17 (commencing with Section 42501) of this code.
A private third-party inspection based on the standards prescribed in
the United States Agricultural Marketing Act of 19461 may be substitut-
ed for Such certificate if the director determines that an inspection
certificate cannot be reasonably obtained. Where the director deter-
mines that neither an inspection certificate nor a private third-party
inspection can be reasonably obtained, the signed statement of two or
more disinterested or otherwise independent parties who have sufficient
knowledge acquired through education or experience to evaluate the
farm product involved may be used to describe the type and extent of the
quality and condition factors present upon inspection.
(Stats.1967,c- 15. Amended by Stats.1971,c" 1593,p. 3215,§ 22, operative July
1, 1973; Ststs.1971, c. 915, p. 1797, 1 24; Stats.1978, c. 588, p. 2016, § 5;
Stats.1979, c- 871, p. 3030, 180.)
17 USX-& 1 1621 et seq.
f�S6Z8�crDL�+ltlIswai�t5�`,atadmfia��:wai*er-:�a _�.-:r�'i �baar«.;�ru _,.
ole Zoo&i6Cbw,=lw
. •."to s eommudm aadmA.an or part 04 mw v;conopor
s mho s tuaUKffIE-e— di6�tbat thdm 3d .jnattSrstioa of the coaft.nentar
�b III d ninbag Whether there b insuffidentJostifiagam f(M?A!•!atsJ=bnmtlwtbe df vdw shall
&st =!f or have bem eatrtw,,,atct 161 11,1,to= .r. -s
vmivw or to -ar
don s
tVe tm=dm&AonduWns
.is Z10 Waiva..or N"t:±51 st 3P:.t�i ATttlxr^3 t; ii9 a: S'r
�ralvw or or if the Waim or xiolatea th#s ! as
deteming.'lZmw,dir�t�,in Consider,sYaaag, r.
u;s e,,.. iesaed plususat to Section asm or firm'dales lxr clr of oor►
cta a: ithtegs E! .i .,.,
� }.Rhe the farm prodoet hrvolved andthe,tlmejy isof the 1 ta.
Sadion 6Gmm'•6636?n
_ - or Oh 'ma im,t'CXilelc,e
does !!t►t 'sa,�Ort'�•?�iinaw8Ml"�ixioe •t.in.
i '�eC$Otl Emu "j t •�r,arru !ot stl3�,u c r
i(Amended hY�tats.1990
C 1081'-{8 1689 :ftt t! e`Yt rear _ r
. r
y - -. -.. - �-rig G�;rt._:-•-- •:•
_ taclu i ' lull t t�t t,
ch is realized from the fir.' and
fie. co and other = .... ,....
a , .of as
M-mvided in Section NMI,AW-beaunitted,to the • •tfl,"4�,y14:+1
5 �:i73'3.t N. mill.+f� • .yt.-U a t ;.4. //'�.''pp{,}��th�py�} t ^. ... ...
- �"+� �yyyy�� t(y�if}y{�+4.1i70.T�} ' , . .:I 1'Y 41t,vt23 3Y?:1' ..J:3v.} 'SYi
tt �vrjoiv
. t�� .�_ avitli•'�Phont��te��`; _'' `= a:9t+ o ...,
product., Er
, fthW 'to.-the shipphtg�__.
..... a furl"' `' : r;'. '" ai'a-
, ,. .. .: a- =o(,
her, int fik or her.5'1ea,H iniiiw- tee.
! -� ... ,� �lCt.of {7=U$C,2 Catet iestmd
the 1 iri then#coin' tees cad fieskmt of
account. 17tePP _B.#tie`.,
a mttess the lot involved is of H ,.. , aee aoE"
° `8ection'66281, this-eection'doenot-preclude
t�egoel or a 'ia the quantity of fam H v ., !to a
was made prim'0 timof ftft,
be rob -im*aid-
. . . _
onby
Fr3bed under the UniSWft
tie director dot
ted
M or hertateinapection 2 .
" �tetxor dna,to his or her,satia awe ooa�net
t can be eftrthataaiiija'a
of tmro-or:mat+e or purlieu,wtw have
.acquired thrat4h education or to aveh iiil S falai':.
subditaft iiac t v!� s them involuted, law be tined as
to Hie qudW--sz!A a�itioa at�the
tot of farm � 'inspeadte3an.to atm ttr'ma�s a �
04,
_� �ad`u�d�.ast-}tl�te�:t�%=Cf iatlmu�o:sgi�s#i .:fl.a: e
}+' a! i Y"':eabstaxtdat+it Y`t`fes.`. '��1n.. .a5
�e
+t AN. Q�tICY tNn7G Z f
- y. - ,�� __'_,� -` i.. '', .x- att.:'.JS'i+sl�' d'n• i�f* ••Ri'H:-fn!.'+4:+'ti
ir
,-e,.. �'_�""y{�a�.T�,Y¢ {,}a .'xi t^+rt +.i'sXL•.» ,is'!:mall:-}y`rt,-..:�E�}Y.k**fi:x..�
11 SUM AftswWnu diA.
transadione, notice to consignor, contents; S h€ }5'.�:.-
A merchant When notify each
with whom he or she does of the
�and which we t
The notice ahail be give .itt # :
ahatl e a farm'w Woft_ at the {
Y .Partiby.,the por4mbei 4 tree
conaigmar The form shall also include a
�.z 'tha :10t-n�beca be a on each ixatividnal faxen p
vdttd container as Provk1ed
necessary to Prove that the=UmEaci► commission • s s Shalt the records
sir es g ta:eachr - or in ae for i this ,
pxmr.tp,or at
any-s co n shalt notify-the t dnrmSt ixlg HBeenrea
provide �a s s « .tmeut,witbni .,.r . .•.._-W On a transaction.and{
If the
merchant is wnbk to theshe He ilio`diH.'
- spp be Y((ix/Il�bitely ed by((m,aii.A ' `f�� dam:-tbW i
i i :iia!�'12} da717}a»ix70� tGMjja SSM,}.mai.,
§�5 ►`L11. Records
Ev'ery commission merchant, that receives any farm product for sale
as a commission merchant, shall promptly make and.keep a correct
recordw ifi shows in detail all of the following with reference to the
handling, sale, or storage of such farm product
(a) The name and address of the consignor.
(b) The date it was received.
(c) The condition and quantity upon amvaL
(d) Date of such sale for the account of the consignor:
(e) The price for which it was sold.
(f) An itemized statement of the charges to be paid by the consignor ini
connection with the sale. Any services rendered for which charges are,
made, if not fled with the director, shall be charged at cwt if not.-
coveredby a written contract. Cost-supporting data shall be available
for verification.
(g) The names and addresses of all purchasers if the commission
merchant has any financial interest in the business of the purchasers, or
if the purchasers have any financial interest in the .business of the
commission merchant, directly or indirectly, as holder of the bthees
corporate stock,as copartner,as lender or borrower of money to or from -
the other, or otherwise. Such interest shall be noted in such records
following the name of any such purchaser.
(h) A lot number or other identifying mark for each consignment,
which number or mark shall appear on every sales tag and every other'
essential record which is needed to identify each consignment from
receipt through final sale. When requested by the consignor, as provid-
ed by Section 56281, a lot number shall appear on each individual farm j
product container. When containers are on pallets, then only the
I posed containers shall be marked. When stamping or otherwise identify-
ing each container is impractical due to the type of packaging, the
:container need not be marked.
C}-Any claim which has been or may, be filed by the commission
merchant against any person for overcharges or for damages which
result from the injury or deterioration of such farm product by the act„
.neglect, or failure of such person. Such records shall be open to thel
inspection of the director and the consigner of the farm product for;
whom such claim is made.
(Stats.1967, c. 15. Amended by Stats.1976, c. 632, p. 1495, § 21; Stats.1977, c.
1170, p. 3$27, § 1; Stats.1978, c. 588, p. 2013, § 1.)
i
EXHIBIT A
No. of Acres Crons/Variety
Location
13 Valencias
Judson (Grove 303)
Valencias
Texas {Grove 305)
20 Valencias
Best/Nevada (Grove 306)
68 Valencias
AiraortlWabash (Groves 302 & 307)