Fill and Sign the Agreement Cooperative Contract Form

Marketing Agreement Between Cooperative Association and Fruit Packer Marketing Agreement made on the _____________________ (date) , between ________________________ (Name of Packer) , a corporation organized and existing under the laws of the state of _________________, with its principal office located at ______________________________________________________________________ (street address, city, state, zip code) , referred to herein as Packer , and _____________________ (Name of Cooperative Association) , a corporation organized and existing under the laws of the state of ______________, with its principal office located at _________________________________________________________ ________________ (street address, city, state, zip code) , referred to herein as Association . Whereas, Association has secured crop Agreements for numerous growers in _________________ (name of state) ; and Whereas, as a result of the mentioned Agreements, Association will market a large proportion of the crop of (type of fruit) _________________________________ produced in _____________________ ( name of state) ; and Packer is in the business of handling, processing, and packaging ____________ ____________________________ (type of fruit) and desires to secure an adequate and certain supply of _______________________________ (type of fruit) for handling, processing, and packaging and to save the labor and expense of soliciting orders or Agreements from individual producers of _____________________________________ (type of fruit) ; and Whereas, Association is empowered to buy and sell the ____________________ ____________________________ (type of fruit) of its members. Now, therefore, for and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Sale of Fruit During the term of this Agreement, Association shall sell to Packer for handling, processing and packaging, in its plants and Packer shall purchase and accept from Association for handling, processing and packaging in its plants ___________________ __________________________ (type of fruit) grown by members of the Association as follows: A. All __________________________________ (type of fruit) grown by members of the Association during th_______________ (name of year) season as set forth and identified in Exhibit A attached and made a part of this Agreement. B. All __________________________________________ (type of fruit) grown during the ______________ (name of year) season by members of the Association identified on Exhibit B attached and made a part of this Agreement, except to the extent that such Exhibit B may be amended by mutual agreement of Association and Packer. 2. Term of Agreement This Agreement shall cover the crops of ________________________________ (type of fruit) grown during the ____________ (name of year) -- _____________ (name of year) season and the ____________ (name of year) -- _____________ (name of year) . Season , as used in this Agreement, means that period commencing with ____________________ (month and day) of one calendar year and ending with ____________________ (month and day) of the following calendar year. 3. Separate Listing of Each Grower The ability of Association to deliver the (type of fruit) _____________________ ______________________ sold to Packer is based and dependent on Association's crop Agreement with its grower-members. If Association is unable to perform this Agreement because of any failure in performance of any of the provisions of the grower- members' Agreements to Association or by causes beyond Association's direct control, the mutual obligations and terms of this Agreement shall not be affected, changed, or released as to any (type of fruit) ______________________________________ from any other grower which is listed for the current crop year to Packer. For the purposes of this Section, each grower here listed to Packer shall be deemed listed to Packer under the terms of this Agreement separately from every other grower-member listed to Packer under the terms of this Agreement, as though each grower-member were covered by a separate agreement with Packer. 4. Inability of Packer to Perform In case of fire, boiler explosion, interruption of power, strikes or other labor disturbances, lack of transportation facilities, shortage of labor supplies, perils to the city, floods, earthquakes, action of the elements, invasion, war, riot, insurrection, rebellion, interference of civil or military authorities, enactment of legislation or any unavoidable casualty or cause beyond the control of Packer, affecting the conduct of Packer's business to the extent of preventing or unreasonably restricting, receiving, handling, processing or packaging operations, including any obligation on Packer's part to transfer the fruit covered by this Agreement, or to furnish bins for the same, Packer will be excused for performance during the period that Packer's business or packaging operations are so affected. Packer, during such period, may accept such portion of such fruit as Packer has informed Association in its judgment it can economically handle. Packer shall give written notice immediately to Association of Packer's inability to perform and the specific cause or causes. In any event, Packer shall pay, according to Agreement, for all fruit received by Packer. 5. Diversion to other Packers With respect to the (type of fruit) ________________________________ which Packer has advised Association of its inability to handle pursuant to Section 4 , Association retains the right, without liability of any kind or character to Packer, to divert the (type of fruit) __________________________________________ to a Packer who is able to accept it in order to prevent economic waste to the growers and consumers. 6. Failure of Association to Deliver If, for the same causes enumerated in Section 4 , the farming operations of any grower-member whose fruit is covered by this Agreement are so affected that the member, or members, are unable to make complete delivery of such fruit, Association shall make every reasonable effort to complete deliveries, but Association shall be excused from performance of that part of the Agreement which it is unable to perform because of these causes during the period the member's operations are so affected. Association shall not be liable for the failure to deliver fruit destroyed by rain, frost, flood, or other similar casualties. 7. Individual Agreements with Packer Members of Association may enter into individual Agreements with Packer with respect to delivery of (type of fruit) _____________________________________ and advances for growing, harvesting, and other costs as indicated in this Agreement. The form of Agreements between individual grower members of Association and Packer shall be in the form outlined in Exhibit C attached and made a part of this Agreement. Packer shall furnish to each such grower-member a copy of the Agreement at the time of its execution. 8. Payment of Expenses Packer shall pay expenses of delivering, weighing, inspecting, and receiving all (type of fruit) _____________________________________ subject to this Agreement in accordance with its present customs and practices in the industry. 9. Inspection by Association Association shall have the right at any time, by its authorized agents, to examine and inspect any (type of fruit) _________________________________________ held by Packer on account of Association under memorandum receipt or other similar arrangement. 10. Settlement Statement Packer shall furnish to each grower member of Association covered by this Agreement and to Association itself at the time of final settlement for (type of fruit) ____________________________________________ delivered for each crop year, a copy of the settlement statement together with financial calculations indicating grower's returns. 11. Furnishing of Bins Packer shall use its best efforts to furnish to grower members of Association bins in clean and good repair for the purpose of delivering (type of fruit) _______________ ________________________________ in accordance with present customs and practices in the industry. 12. Failure to Supply Bins If Packer shall neglect or fail to meet the reasonable bin requirements of grower- members of Association covered by this Agreement, Packer shall pay Association damages sustained by grower-members and Association on account of such neglect or failure. Packer shall not be liable for damages when Packer cannot supply bins because of strikes, fire, acts of God, or other causes beyond control of Packer, and of which notice has been given to Association under Section 4 . Packer shall not be liable for damages when Packer has allocated bins on a reasonable basis among grower members of Association and other growers from which Packer purchases (type of fruit) ______________________________________________. 13. Quality and Grade of Fruit All (type of fruit) __________________________________ delivered under this Agreement shall be of the quality and grades in effect for (type of fruit) ____________ ________________________________ as may be developed and established by Packer or Association with approval of the other. If Packer establishes various grades by which different prices per grade may be paid grower-members, Association may establish prices for its grower-members on the basis of grade in accordance with the provisions of Sections 18 through 23 . 14. Adulteration and Misbranding Association guarantees that no articles of food delivered by it to Packer during the period in which this Agreement is effective will be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act of June 25, 1938, as amended, or within the meaning of any state food and drug law, the adulteration and misbranding provisions of which are identical with or substantially the same as those found in the Federal Act, and goods will not be produced or shipped in violation of § 404 or 301(d) (21 U.S.C.A. §§ 331(d), 344) of the Federal Act. Association, however, does not guarantee against goods becoming adulterated or misbranded within the meaning of the act or acts after shipment by reason of causes beyond control of Association. 15. Compliance with Fair Labor Standards Act Association guarantees that all of the (type of fruit) _______________________ ____________________________ subject to this Agreement was or will be produced and delivered in compliance with all applicable standards of the Fair Labor Standards Act, as amended. 16. Use of Economic Poisons Association agrees that it has not used and will not use any economic poison as defined in the Federal Insecticide, Fungicide, and Rodenticide Act other than those shown in the attached schedule, mailed to and received by Association or now annexed to this Agreement, in accordance with the use that is shown on the schedule, or as amended to comply with governmental regulations, or as otherwise agreed in writing with Packer. 17. Breach of Guaranties Should Association breach any of the guarantees in Sections 13 - 16 , Packer, at its option, may refuse to accept delivery; Packer shall have no obligation to pay for the crop, and Association may dispose of the crop free of the Agreement. 18. Tonnage to be Sold Association shall sell to Packer and Packer shall purchase and accept from Association the following tonnage of (type of fruit) ____________________________ ________________________: (tonnage of fruit) ___________________ grown by members of Association covered by this Agreement at the price or prices indicated in this Agreement. 19. Failure to Agree on Price If the parties fail to agree on a price or prices under Sections 20 and 21 , Packer shall pay and Association shall accept for all (type of fruit) ______________________ _____________________________ delivered to Packer by Association or the growers it represents a reasonable price as that term is used in __________________________ (citation to relevant statute) . 20. Ascertainment of Reasonable Price The reasonable price referred to in Section 19 shall be ascertained in the following manner: A. Association shall announce an opening price or prices which Association believes to be a reasonable price for each variety and grade or grades for any crop year on or before ____________________ (month and day) of such year. Such announcement shall be made on the basis of consultations with individual Packers and an examination by Association of all available economic and supply data which influence the sale and purchase price of (type of fruit) ___________ _______________________________________. B. Packer shall advise Association within _______ (number) days after receipt of the announced opening price or prices for the (type of fruit) ________ __________________________________ season of its acceptance or rejection of the price or prices. On the acceptance of the announced price or prices by _______% in number of Packers who purchase (type of fruit) ______________ _________________________________ from Association, and those aggregate purchases represent _______% of the estimated total tonnage of (type of fruit) ________________________________________ offered for sale by Association under Agreements of sale similar to this Agreement, such opening price or prices shall be the reasonable price; provided, however, that among the requisite ______% of Packers who accept the announced price or prices there shall be included one Packer whose estimated purchase of (type of fruit) ____________ _____________________________________ tonnage under Agreement with the Association for the season shall be one of the three largest estimated tonnages under Agreement between Association and any purchaser for the season. C. For purposes of the foregoing calculation, Association for the __________ (number of year) - ____________ (number of year) season shall refer to the estimated tonnage set forth in the attached Exhibit D and similar exhibits to similar Agreements with other Packers of (type of fruit) ___________________ _____________________. For the __________ (number of year) - __________ (number of year) season, Association shall refer to the list and estimates furnished to Packer and other Packers for the season in accordance with Sections 1 and 2 of this Agreement and similar Agreements. 21. Non-acceptance of Opening Price If the requisite Packers do not signify their acceptance of the announced opening price or prices within _____ (number) days after the announcement, Association shall hold further consultations with the individual Packers and reconsider the data above referred to and shall, on or before __________________ (month and day) , make a second announcement of price or prices which Association believes to be a reasonable price , which price or prices may be the same as or different from that previously announced. Such price or prices set forth in the second announcement shall be the reasonable price, if the same shall be accepted, within _______ (number) days after such second announcement by the requisite Packers. 22. Arbitration to Establishment Price If the requisite Packers do not signify their acceptance of the price or prices announced by Association under Sections 20 and 21 , those Sections shall be null and void and of no further effect, and the price to be paid under this Agreement shall be determined by Arbitration in accordance with Section 36 . 23. Damages for Failure to Receive Fruit If Packer, for any reason other than a price dispute, fails, neglects, or refuses, without just or legal cause, and without discrimination between member and nonmember of Association, to receive prior to ________________ (month and day) of any crop season covered by this Agreement any (type of fruit) ___________________ ____________________________ sold under this Agreement and which Packer is obligated by this Agreement to receive, Packer shall pay all reasonable damages caused by the failure, unless the receiving date is extended by mutual agreement of grower-member, Packer, and Association. 24. Payment for Fruit A. Unless otherwise agreed on by grower and Packer, payments to grower- members of Association who deliver (type of fruit) _______________________ ___________________________ under this Agreement shall be made by Packer within ______ (number) days after full delivery and establishment of price, and on demand for payment by grower-member. B. The division of payments for (type of fruit) ________________________ ___________________ shall be as follows: ________% of the payments due on delivered (type of fruit) _______________________________________ shall be paid directly from Packer to grower-member, and _______% of the payments due on delivered (type of fruit) ___________________________________ and the entire service charge, as referred to in Section 27 , shall be paid to Association in accordance with the terms of that Section. C. If Packer, for any reason, fails to pay for the (type of fruit) ____________ _______________________________________ or any other charges which Packer is obligated by this Agreement to pay, either to grower-member directly or to Association, on the date or dates agreed on, interest at ______% per month or any part of a month on the unpaid balance shall commence to run immediately on default. 25. Default by Packer If Packer shall default or fail in the performance of any of its obligations, Association may stop any further deliveries to Packer and may deliver the balance of all fruit elsewhere. This right may be exercised at any time although Association has permitted deliveries to Packer to continue after such default or failure. Continuance of delivery after Packer's default or failure in the performance of any of its obligations shall not be construed as a waiver of Association's right to stop deliveries. Such delivery of fruit elsewhere shall not be a waiver or release of any liability of Packer for default or failure in performance. Packer may be held liable to Association or its grower-members for damages suffered as a result of such default. 26. Default by Association If Association shall default or fail in the performance of any of its obligations, Packer may stop any further acceptance of (type of fruit) _______________________ ______________________ . This right may be exercised at any time although Packer has accepted deliverance from Association members after such default or failure in the performance of any of its obligations. Continuance of delivery after Association's default or failure shall not be construed as a waiver of Packer's right to stop receiving. Termination of receiving shall not be a waiver or release of any liability of Association for default or failure in performance. Association may also be held liable to Packer for damages suffered as a result of default. 27. Service Charge Packer recognizes that the organization and continued existence of Association relieves Packer of the trouble, labor, and uncertainty of soliciting and obtaining separate Agreements with individual growers for the purchase and sale of (type of fruit) ______ _________________________________________. In consideration of the same, Packer shall pay to Association, over and above the market price designated, a service charge of $___________ per ton for all (type of fruit) ___________________________ delivered to Packer and for all (type of fruit) __________________________________ delivered by agency growers who are members of Association. The service charge shall not be construed to be a part of the purchase price. 28. Sale to other Packer If, during the term of this Agreement, Association sells to any Packer (type of fruit) __________________________________ of its grower-members at a price less than the price specified in Sections 18 through 23 , Association shall pay to Packer, on all (type of fruit) ___________________________________ purchased, the difference between the price established in this Agreement and the lowest price at which Association shall make sales to other Packers. 29. Purchase at Different Price A. If Packer, during or for any season, has purchased or has agreed to purchase or shall have purchased or agreed to purchase any (type of fruit) _________________________________________ from a grower-member of Association or from anyone other than Association or from anyone other than a member of Association at a higher price or prices than established in accordance with Sections 18 through 23 , either on the basis of grade or without grades, Packer shall pay to Association for (type of fruit) _________________________ ____________________ purchased under this Agreement the highest price which Packer has paid or has agreed to pay or shall have paid or shall have agreed to pay for (type of fruit) _______________________________________ so purchased from anyone. B. In computing the higher purchase price so paid or agreed to be paid, there shall be included any bonuses, premiums, hauling or loading allowances, expenses of special services of any character which may be rendered by Packer or at its expense, and any sums paid or agreed to be paid by Packer for any other designated purpose than payment of purchase price. Nothing contained in this section shall apply to sales of (type of fruit) _________________________ _____________________ between Packers. 30. Supremacy of Law This Agreement shall be deemed modified to the extent necessary to comply with state and federal laws and any order, regulation or license pursuant to such laws, and marketing Agreement or order under the authority of law. 31. Severability The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision. 32. No Waiver The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred. 33. Governing Law This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of ______________. 34. Notices Any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement. 35 . Mandatory Arbitration Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect. 36. Entire Agreement This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. 37. Modification of Agreement Any modification of this Agreement or additional obligation assumed by either party in connection with this Agreement shall be binding only if placed in writing and signed by each party or an authorized representative of each party. 38. Assignment of Rights The rights of each party under this Agreement are personal to that party and may not be assigned or transferred to any other person, firm, corporation, or other entity without the prior, express, and written consent of the other party. 39. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument. 40. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine. WITNESS our signatures as of the day and date first above stated. __________________________ _________________________ (Name of Packer) (Name of Association) By:____________________________ By:_______________________________ __________________________ __________________________ (P rinted name & Office in Corporation) (P rinted name & Office in Corporation __________________________ __________________________ (Signature of Officer) (Signature of Officer) (Acknowledgments) (Attach exhibits)