Link to "Appendix A" Link to contents for "Appendix A"      Link to "Appendix B"

AGREEMENT BETWEEN
THE STATE OF “YOUR STATE NAME”
BUSINESS ENTERPRISE PROGRAM FOR THE BLIND AND
THE UNITED STATES POSTAL SERVICE

FOR THE ESTABLISHMENT OF VENDING SERVICES ON FEDERAL PROPERTY AS AUTHORIZED BY PUB. L. 74-732, AS AMENDED BY PUB. L. 83-565 AND TITLE II OF PUB. L. 93-516 (RANDOLPH-SHEPPARD ACT) AND UNDER THE MANAGEMENT OF THE UNITED STATES POSTAL SERVICE.

The “YOUR STATE NAME” (ABEP) (designated State Licensing Agency) of the State of “YOUR STATE NAME” enters into this agreement with the United States Postal Service (USPS) (Federal Property Agency) to provide vending services in accordance with 34 CFR Part 395 on all properties managed by USPS in the YOUR STATE NAME”. This agreement satisfies the conditions set forth in 34 CFR § 395.16.

RECITALS

Whereas, the ABEP has determined that certain property managed by USPS meets the criteria for satisfactory vending service as defined in 34 CFR 395.1(q); and

Whereas, the ABEP and the USPS wish to clarify and formalize their respective duties and responsibilities with respect to operation of vending services on said property; and

Whereas, the ABEP and the USPS agree to comply with all applicable laws and regulations in executing this agreement;

NOW THEREFORE, in consideration of the mutual promises set forth herein, the parties hereby agree as follows:

  1. GRANT OF SPACE: The USPS shall furnish the ABEP beginning on June 1st, 2010, or other date agreed to by the parties for a particular facility, space to operate vending machines without competition on certain USPS managed properties (“Vending Locations”) in the ”YOUR STATE” , as more fully described in Exhibit A, attached hereto and made a part of this Agreement.
  2. RIGHT TO OPERATIVE VENDING SERVICE: Subject to the conditions stated in this Agreement, ABEP shall have the exclusive right to operate the vending service for the convenience of employees and visitors of USPS in all property managed by USPS in the ”YOUR STATE”. ABEP may utilize blind vendors or subcontracted vending companies to provide vending service to the USPS. For purposes of this Agreement, however, the vending services provided by ABEP are limited to the Vending Locations (i.e., this Agreement does not cover cafeteria operations).
  3. PAYMENT: Each month, ABEP shall pay the USPS an “operating fee” of 1.50% of gross reported revenues generated from the vending facilities at the Vending Locations. In addition, ABEP shall pay USPS an additional fee of XXX% of gross reported revenues produced by each of the vending machines located at the USPS facilities for which there is a currently a Postal Service Social and Recreation Committee. The XXX% of gross revenues and 1.50% “operating fee” shall be paid from funds generated exclusively by ABEP through its commercial (non-blind) vendors, and no fees shall be paid from a Blind Vendor’s site.
  4. HOURS OF OPERATION: ABEP will provide vending services 24 hours a day, seven days a week.
  5. VENDING SERVICES AND PRICING: The ABEP shall provide all vending machine services that are determined achievable by the ABEP and desired by USPS. ABEP shall service all vending machines as often as necessary to ensure that fresh products are available for customer purchase. Vending machine pricing will be equal to or below the market average in the ”YOUR STATE NAME” with special consideration given to providing Postal Service employees products from vending machines which are comparable in quality, quantity and price to like products offered throughout the geographical area within which the federal property is located.

Note: The ABEP shall give USPS at least 30 days’ written notice before raising the price of any product.

  1. BLIND VENDOR’S OPERATIONAL RESPONSIBILITY: The blind vendors licensed by the ABEP shall operate on their own credit and shall furnish at their own expense all food and beverage items sold or served in the vending machines. The cost of all non-food supply items required for the food operation shall be borne by the licensed blind vendors. All incoming shipments of food and supplies shall be the responsibility of the licensed blind vendor’s account. Blind vendors shall be responsible for all proper maintenance and repairs of vending machines and related equipment.
  2. USPS OPERATIONAL RESPONSIBILITY: The USPS will furnish all necessary utility service, including connections and outlets required for the installation of the vending service, and where feasible janitorial and garbage disposal services, and other related assistance for operating the vending service. The blind vendor may only use such utilities for the exclusive purpose of operating the vending service. ABEP will not be responsible for repairs or replacement of equipment or fixtures, plumbing, electrical or other physical needs within the infrastructure of any building where vending service is provided. The USPS shall allow the ABEP to install new equipment they deem necessary for the operation of the vending service. In the event additional utility installations are required/requested by the ABEP in support of new or additional equipment after start up of services, ABEP shall obtain prior written approval from the USPS for the work to be done, and ABEP shall be responsible for the costs associated with the upgrade/change. Said equipment shall not be installed without written approval from the USPS.
  3. EXISTING AGREEMENTS: The agreement to pay the USPS X% of gross revenues and a 1.5% “operating fee” does not apply to any vending services provided by the ABEP to USPS under a permit issued prior to the effective date of this agreement.
  4. ACCESS TO FEDERAL PROPERTY MANAGED BY USPS: The USPS shall allow ABEP employees, licensed blind vendors, employees of licensed blind vendors, and subcontracted vending company employees, adequate access to the locations where vending service is provided. All individuals entering USPS facilities will comply with USPS operational security requirements and may be excluded for substantiated disregard of those requirements.
  5. MACHINE INCOME SHARING: There shall be no sharing of any revenue or other income produced by vending machines other than as identified in this agreement.
  6. GARBAGE AND CLEANING: The individuals servicing the vending machines will place trash and garbage at the locations designated by the USPS. All cleaning beyond the vending machines shall be the responsibility of the USPS.
  7. UTILITIES/MAINTENANCE: The USPS does not guarantee an uninterrupted supply of water, electricity, air conditioning or heating. The USPS shall exercise all reasonable due diligence to restore such services following any interruptions.
  8. PEST CONTROL: USPS shall be solely responsible for pest control services of the Vending Locations.
  9. FORCE MAJEURE/LIABILITY: USPS shall not be responsible for any damage, theft or disappearance of the ABEP property installed under this agreement from break-in or burglary, electrical storm, acts of God or any other acts beyond the control of either party. In addition, except as otherwise specifically provided in an exception referring to this Section, neither the ABEP nor the USPS shall be liable to the other for any delay in, or failure of performance of, a requirement contained in this agreement caused by force majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed, provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome. Each party must inform the other in writing with proof of receipt within three (3) business days of the existence of such force majeure or otherwise waive this right as a defense.
  10. NOTIFICATION OF MANAGERIAL MISCONDUCT; RIGHT OF TERMINATION: The USPS shall exercise reasonable efforts to notify the ABEP of any alleged misconduct or mismanagement by an individual servicing the vending machines, or any other dissatisfaction with the ABEP under this agreement. Either party may terminate this agreement upon 60 days’ written notice to the other party.
  11. EMPLOYEES: Licensed blind vendors, their employees, and employees of vending contractors shall not be considered as employees of the ABEP or USPS.
  12. LIABILITY: The USPS shall not be liable for any injuries, losses, claims or damages caused by or resulting from the negligence of the ABEP’s employees, licensed blind vendors, employees of the licensed blind vendors or the vending contractors, or the employees of vending subcontractors.
  13. REGULATORY COMPLIANCE: The ABEP shall ensure that the blind vendors licensed by ABEP and any vending subcontractors utilized by ABEP are aware of their obligations to comply with all laws, ordinances, regulations, orders and directives issued by any public health agencies or any other regulatory or enforcement agency affecting food service operation, including but not limited to liability insurance, Worker’s Compensation Act, Equal Employment Opportunity, and the Rehabilitation Act of 1973 (as amended).
  14. RIGHT OF RECOMMENDATION: The USPS shall have the right to recommend a change of personnel providing vending services. The USPS shall provide the ABEP written documentation containing the rationale for recommended changes. ABEP will consider USPS’s recommendation and inform USPS within fifteen (15) business days from the date ABEP receives the request what, if any, action ABEP has decided to take based on the recommendation.
  15. THIRD PARTY RIGHTS: This agreement is between the USPS and the ABEP and is not intended to and does not create any third party beneficiary rights, interest, property, privileges or any other interests in the licensed blind vendor, the licensed blind vendor’s employees, or any other persons or entities not signatories to this agreement. In the event of termination or amendment of this agreement for any reason, the USPS and the ABEP shall not be responsible for any damages, losses, claims or any other amounts to each other, to any third party or any other persons or entities as a result of such termination or amendment. Nothing in this agreement shall prevent ABEP from entering into subcontracts with any person to provide the vending services contemplated by this Agreement. Notwithstanding any such subcontract, ABEP shall at all times be primarily responsible for providing such vending services at the Vending Locations.
  16. AUTHORIZED AGENTS: ABEP shall direct all questions, requests and notices regarding this Agreement to the following:

    17. MANAGER NAME
    MANAGER, CORPORATE PERSONNEL MANAGEMENT
    U.S. POSTAL SERVICE
    475 L’ENFANT PLZ SW
    WASHINGTON DC 20280-4261

    Tel: 202-268-3646
    Fax: 202-268-3488

USPS shall direct all questions, requests and notices regarding this Agreement to the following:

    YOUR NAME
    Business Enterprises Program Coordinator
    Division of Vocational Rehabilitation
    ADDRESS
    CITY STATE ZIP CODE

    Telephone Number
    E-mail Address

  1. ENTIRETY: This agreement reflects the entire understanding between ABEP and the USPS regarding the vending services for federal property managed by USPS that is not under current permit with ABEP regarding such property.
  2. AUTHORITY: The undersigned individuals represent that they have express authority to enter into this agreement on behalf of their respective agencies.
  3. WAIVER: By entering into this agreement, the ABEP and the USPS do not waive any rights, privileges, remedies, defenses or immunities.
  4. GOVERNING LAW: This Agreement shall be governed by federal law, including 20 U.S.C. § 107 et seq. with implementing regulations at 34 CFR § 395.1 et seq. Any provision of this Agreement that is held by a court of competent jurisdiction to be in violation of such laws shall be void and the remainder of this Agreement shall be interpreted without such void provision.
  5. JURISDICTION: Any litigation arising out of this Agreement shall be conducted in the federal court system.

[SIGNATURE PAGE FOLLOWS]

The State of “YOUR STATE” Business Enterprise Program for the Blind

By __________________________________________________

Name: _______ _____________________________

Title: ________Director, Division of Vocational Rehabilitation_____

Date: ____________________

The United States Postal Service

By __________________________________________________

Name: ________________________________________________

Title: _________________________________________________

Date: _________________________________________

 




Link to "Appendix A" Link to contents for "Appendix A"      Link to "Appendix B"