App D to RFP - Sample Food Truck Concession Agmt .pdf

Smithsonian Contract No. _______

CONCESSIONAIRE AGREEMENT

This Concessionaire Agreement (“Agreement”), made this ____ day of, 2025, by and between the SMITHSONIAN INSTITUTION (“Smithsonian”), a trust instrumentality established by Congress of the United States in 1846 (20 U.S.C. 41 et. seq.) and whose principal offices are located at 1000 Jefferson Drive, SW, Washington, DC 20560, acting by and through its National Zoological Park (the “Zoo”), with its principal place of business at 3001 Connecticut Ave NW, Washington, DC 20008, and ___________. with an office located at ____________ ("Vendor").

I. Right/Term. Vendor is hereby granted the right and privilege during the term of this Agreement to provide food truck concessions at agreed upon locations at 3001 Connecticut Avenue NW, Washington DC 20008 (“Premises”). The term of this Agreement shall commence on ___________, 202_ (“Effective Date”) and shall continue in force and effect for a total of three (3) years, until _______. The parties may mutually agree to extend the term for up to two two-year periods.

II. Duties of Vendor:

i. Compliance with Laws and Obtaining Licenses. Vendor shall comply with all applicable ordinances, laws and regulations, including the sanitary handling of the goods covered by this Agreement and the maintenance of its equipment on the Premises and shall obtain all health department and other licenses and certificates that may be required and pay the fees therefor. Vendor shall maintain the cleanliness of its area and the area within a twenty- five (25) foot radius. One or more of Vendor’s personnel at the location must be certified under the ServSafe® program (or equivalent) the National Restaurant Association Educational Foundation. Vendor must ensure the maintenance of acceptable levels of "passing" scores from the local health department.

ii. Insurance. Vendor shall obtain and maintain in force at all times during the term hereof insurance coverages as set forth below and general provisions as set forth in EXHIBIT A. Vendor shall provide Smithsonian with a certificate of insurance as evidence of such coverage within five (5) days after the Effective Date. This provision of such insurance and the performance by Vendor of the obligations under this Subsection B shall not relieve Vendor of liability under the applicable indemnity provision set forth in this Agreement.

COVERAGE TYPE COVERAGE AMOUNT

Commercial General Liability (including contractual coverage)

$2M per occurrence

Property Damage and Business Interruption Insurance

Property damage: in an amount of not less than one hundred percent (100%) of the actual cash value of Contractor’s food truck or to the facility area to cover damage to concession premises caused by Contractor and all stock, furniture, fixtures and equipment.

Business interruption coverage shall provide protection to Vendor for loss of income in case of closure due to a covered cause of loss

Workers Comp (if employees come on client's premises)

Meets or is greater than the statutory requirements as required by the District of Columbia

Criminal Liability $1M per occurrence

Auto (if vehicles deliver to the Premises) $1M per occurrence

iii. Indemnification.

i. Vendor shall defend, indemnify and hold harmless the Smithsonian

Institution, its museums, Regents, officers, agents, employees and the U.S.

Government (the “Indemnitees”) from and against any and all claims, liability (including judgments and settlements), losses, costs, damages and expenses, including attorneys’ fees, which may arise out of or in connection with the operations, activities, misconduct, acts or omissions of Vendor, its employees and agents, in the performance of its obligations under this Agreement, including injury to, or death of, any Patron, or of Vendor’s or Smithsonian’s representatives, agents, employees or subcontractors. To the extent that, under applicable law, any of Vendor’s agreements to indemnify, defend and save harmless are interpreted to require Vendor to indemnify, defend and save harmless (as specified in this Agreement) are not enforceable in cases of Smithsonian’s sole negligence (including matters of strict liability), willful misconduct or otherwise, it is nevertheless the intent of the parties that Vendor’s agreements to indemnify, defend and save harmless be interpreted to require Vendor to indemnify, defend and save harmless the Indemnitees to the fullest extent that agreements to indemnify, defend and hold harmless are allowed to be enforced under applicable law, including without limitation Vendor's concurrent or contributory negligence, and specifically including indemnity for any injury to Vendor’s employees. This indemnification is intended to also include all expenses from claims that occur as a result of legal action taken by Vendor’s employees and agents against Smithsonian relating to injuries sustained in the performance of obligations under this Agreement.

ii. FTCA. Vendor acknowledges i) that the Smithsonian Institution falls within the purview of the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), and 2671-80);

ii) that the General Counsel of the Smithsonian Institution is authorized to settle all claims against the United States for damages to property or for the personal injuries or for death caused by the negligent act or failure to act of a Smithsonian Institution employee in the course of his employment cognizable under the Federal Tort Claims Act, as amended; and iii) that in some instances, this may be an exclusive remedy.

iii. This Section II.c shall survive the expiration or earlier termination of this

Agreement.

iv. Alcohol and Narcotics. Vendor shall, at no time keep, sell or dispense any intoxicating or narcotic food products or substances whatsoever in or about the Smithsonian’s premises. Vendor may sell beer and wine if approved in advance in writing by Smithsonian. If Vendor will be selling beer and wine at any time in the future, Vendor must provide evidence of Liquor Liability insurance coverage as a separate policy or by separate endorsement to the Commercial General Liability policy. Consumption of alcohol or drugs by the Vendor or their employees is strictly prohibited while working on Zoo property.

v. Confidentiality. In the performance of this Agreement, Vendor may be exposed to the Confidential Information of Smithsonian. The Smithsonian Institution is a trust instrumentality of the United States and has adopted a written policy for responding to requests for Smithsonian Institution records, including paper documents, electronic data, email, contracts, and other information stored or maintained by the Smithsonian, consistent with the principles of disclosure under the Freedom of Information Act, 5 United States Code (U.S.C.), § 552 and available at http://www.si.edu/OGC/Records-Requests.

i. Confidential Information. Confidential Information consists of trade secrets and commercial or financial information that is customarily treated as private and provided under an assurance of privacy, as well as information the release of which would violate the privacy rights of the disclosing party or a third party with no overriding public interest. Confidential Information shall be designated in writing by the disclosing party as confidential. To have information disclosed other than in writing treated as Confidential Information, the disclosing party must confirm the status of that information as Confidential Information within thirty (30) calendar days of the original disclosure.

ii. Exceptions to Confidential Information. Confidential Information shall not include any information, whether or not designated in writing as Confidential Information, which:

(a) was publicly available at the time of disclosure to the receiving party;

(b) was known by the receiving party prior to such disclosure;

(c) becomes publicly available after disclosure to the receiving party through no fault of the receiving party;

(d) is obtained by the receiving party from a third party who acquired the information without committing a wrongful or tortious act; or

(e) is developed independently by the receiving party without reference to or use of Confidential Information.

The receiving party shall notify the disclosing party promptly in writing of any misappropriation, unauthorized disclosure, or use by any person of the Confidential Information disclosed to the receiving party which may come to the receiving party’s attention. The receiving party will take all steps reasonably requested by the disclosing party to stop, limit, or otherwise remedy such misappropriation, unauthorized disclosure, or use.

iii. Limited Disclosure. In maintaining Confidential Information, each party shall use at least the same degree of care that each party uses to protect its own Confidential Information of similar importance, but no less than a reasonable degree of care. Each party agrees that it will not disclose Confidential Information provided to it by the other party to others except to the extent that it is necessary to disclose such Confidential Information to its Regents, directors, officers, representatives, legal and financial consultants, and http://www.si.edu/OGC/Records-Requests employees having a need to know such Confidential Information (“authorized parties”) for the purpose of pursuing a relationship between the parties.

Further, the parties may disclose Confidential Information if required by law, subpoena, order or request of a federal governmental authority or court of competent jurisdiction, and provided that the party obligated to disclose such Confidential Information shall (i) assert the confidential nature of the Confidential Information to be disclosed, (ii) use reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed, and (iii) immediately notify the other party of the requirement, order, or request to disclose in advance of such disclosure in order to afford the other party the opportunity to contest disclosure. In the event disclosure of Confidential Information is requested in accordance with Smithsonian’s records disclosure policy, Smithsonian will provide the disclosing party the opportunity to identify Confidential Information prior to release, but final decisions regarding release shall be made by Smithsonian in accordance with its policy. No other use or disclosure of Confidential Information may be made by any party without the prior written consent of the disclosing party.

iv. Return of Confidential Information. The receiving party will either return or destroy all tangible materials embodying Confidential Information within ten

(10) business days of receipt of the disclosing party’s written request to do so and, if further requested by the disclosing party, the receiving party will provide written certification of such destruction.

vi. Representations and Warranties. Vendor represents and warrants that it:

i. Is the owner of ________ and is in good standing;

ii. Possesses the full legal power, right and authority to enter into this

Agreement and to perform fully the activities contemplated by this Agreement;

iii. Has properly trained employees at the location and all employees have attended required Smithsonian training;

iv. All equipment and other products provided or made available by Vendor hereunder are free from defects in material, workmanship and design, and safe for their intended use;

v. All items including, but not limited to, food and beverages that are dispensed hereunder shall, in all respects be suitable for human consumption, and in particular Vendor shall conform to federal, state, and local laws, rules and regulations applicable to Vendor;

vi. Acknowledges that its failure to provide the notice and documentation required under this Agreement shall be deemed a breach of this Agreement;

and

vii. Shall defend, indemnify and hold Smithsonian harmless with respect to third- party claims, suits, or demands arising out of the alleged infringement and/or Vendor/Franchisee’s (as applicable) use of any Franchisor’s trademarks, systems, service marks, operations manuals, intellectual property or other proprietary information.

vii. Quality Assurance and Food Safety. Vendor agrees to the following:

i. Vendor shall not use any products which are included (or their ingredients are included) on Smithsonian’s Banned Product List, which is attached as Exhibit B.

ii. Vendor immediately shall notify Smithsonian of any and all products that are subject to formal recall and/or withdrawal from the marketplace.

iii. Vendor represents and warrants that the Vendor requires its product suppliers, including Vendor, producers, manufacturers and distributors, have a proactive food safety and food security program in place that addresses each of the following technical topics: (i) regulatory compliance; (ii) food safety programs (Hazard Analysis Critical Control Point) (HACCP), Good Manufacturing Practices (GMP), Good Agricultural Practices (GAP), and training; (iii) Sanitation Standard Operating Procedures Programs (SSOP’s);

(iv) building and facilities (maintenance, repair, and sanitation); (v) pest and rodent control; (vi) plant and personnel practices; (vii) receiving, storage and distribution; (viii) processing standards; (ix) packaging and labeling; (x) food security/defense; and, (xi) recall, withdrawal and stock recovery. In addition, Vendor has informed its Franchisor (as applicable) of this provision.

iv. As applicable, Vendor hereby guarantees that no products comprising any delivery made by Vendor (or its employees, representatives, agents, contractors or others handling any products) to or on the order of Smithsonian, as of the date of such purchase or delivery, in any way contravenes any of the provisions of or is adulterated, misbranded or injurious to health within the meaning of the Federal Food, Drug, and Cosmetic Act of 1938, the Food Quality Protection Act of 1996, the Bioterrorism and Preparedness Act 2001, the Consumer Protection and Allergen Labeling Act of 2004, the Food Safety Modernization Act 2011, all revisions and amendments pertaining thereto or within the meaning of any substantially similar federal, state or municipal law or ordinance, or is an article which may not under any federal, state, or municipal law or ordinance be introduced into interstate or intrastate commerce.

viii. Food Handling Safety Requirements. In the performance of Vendor's obligations under this Agreement, Vendor shall (or shall cause its employees, representatives, agents, and/or contractors to) do the following:

ix. Vendor shall comply with the most current FDA Food Code requirements

ii. Vendor shall ensure that all management staff are certified food managers

iii. Vendor shall secure and maintain in force all required licenses, permits and certificates relating to the operation of the foodservice establishment. Vendor shall notify Smithsonian, within three (3) days of receipt, of any notice of violation of any law, ordinance or regulation relating to food safety, including any failed or unacceptable department of health inspection results. Vendor shall also obtain a temporary operating permit for the onsite Smithsonian location through the local regulatory authority, if applicable.

iv. Vendor shall establish, prior to providing the services anticipated under this Agreement, and consistently maintain during the performance of its obligations under this Agreement, documentation for all food safety controls pursuant to industry standards.

v. Vendor shall institute and administer corrective action procedures for all food safety controls pursuant to industry standards.

i. Credit Card Payments. Vendor must accept credit cards and must have the capability to accept multiple payment types and provide discounts. At no time will Vendor’s network interface or connect with Smithsonian’s network, internet access or systems. Vendor shall be responsible for its Merchant ID and connectivity to process credit card payments. In addition, Vendor is solely responsible for the security of the transactions Vendor processes and is responsible for ensuring that

Vendor is operating in accordance with current PCI Data Security Standards and shall provide proof of PCI-DSS compliance upon request.

j. Privacy and Data Security. Vendor shall adhere to the Smithsonian’s privacy and data security requirements attached hereto in Exhibit E, Smithsonian Institution Privacy and Security Clause. “COTR”, as used in Exhibit E, refers to the COR identified in this Agreement. “Contractor”, as used in Exhibit E, refers to Vendor and its subcontractors. At no time will Vendor’s network interface or connect with Smithsonian’s network, internet access or systems. The Smithsonian Technical Review Board (“TRB”) must approve Vendor and its systems for security, privacy, and accessibility. (Approval requires adherence to standard industry best practices and applicable Federal guidelines.) Any significant changes to Vendor’s systems, even if approved in writing by Smithsonian, must also be approved by the TRB.

k. Vendor agrees to comply with the Zoo Requirements attached hereto as Exhibit C and Exhibit D and made a part hereof. The policies set forth in Exhibit C may be altered by NZP with written notice to vendor (email is acceptable).

l. Background checks. Vendor shall adhere to the Smithsonian’s background investigations and credential process, as set forth in the document attached hereto in Exhibit F.

m. Use of SI Names. The names “Smithsonian”, “Smithsonian Institution”, “National Zoo and Conservation Biology Institute” and the sunburst logo (the “Names”) are registered trademarks/service marks. Vendor shall not refer to the Smithsonian Institution or to any of its museums, organizations, or facilities in any manner or through any medium, whether written, oral, or visual, for any purpose, including, but not limited to, advertising, marketing, promotion, publicity, solicitation, or fund-raising..

Vendor is specifically barred from claiming any endorsement from Smithsonian or from claiming that Vendor is a preferred provider or otherwise special among other, similar companies. Vendor may make use of the Smithsonian Names in a client “resume” format, as long as Vendor lists the Smithsonian Names among all or a significant portion of client names and without placing the Smithsonian Names in a prominent position that draws special attention to the Smithsonian Names among other names on the list.

III. Compensation to Smithsonian. For the privileges granted herein, Vendor shall pay Smithsonian as follows:

a. Thirty percent (30%) of Vendor product Net Sales.

b. “Net Sales” shall mean total receipts excluding sales tax and Discounted Sales, as defined in

XXI.a below.

c. Vendor shall be responsible for any sales tax.

d. Amounts payable to Smithsonian shall be paid weekly and shall be accompanied by a complete statement of sales made during the preceding period. Payment shall be made by EFT or wire transfer to the Smithsonian in accordance with payment instructions to be provided by the Zoo.

e. Smithsonian shall have the right to audit the Vendor’s records if there is suspicion of fraudulent reporting and/or Vendor is delinquent in reporting more than two (2) months in a row.

IV. Records. Vendor shall keep an accurate and true record of all merchandise, collections and sales and will permit Smithsonian to examine such records for the purpose of verifying the correctness of any reports or payments made to Smithsonian hereto.

V. License Fees. License fees now or hereafter imposed, levied upon or computed upon Vendor's activities shall be paid by Vendor.

VI. Vandalism, Break-In, Theft. Smithsonian shall not be liable for loss resulting from damage to Vendor's equipment and/or theft of Vendor's equipment, merchandise or money.

VII. Access to Premises. Vendor, its officers, employees, agents and representatives shall have access to the Premises and Vendor’s premises for the performance of its services hereunder and for inspection purposes at all reasonable times.

VIII. Termination.

a. The Smithsonian may terminate this Agreement, in whole or in party, upon the occurrence of any one or more of the following:

i. For Default. Any default by Vendor of any term or condition of the Agreement, and the continuance without cure of any such default for the cure period identified below, after written notice by the Smithsonian specifying the date for such termination and opportunity to cure. A default hereunder shall include but is not limited to:

aa. Failure of Vendor to make any payment to the Smithsonian as required herein, for a period of thirty (30) calendar days after such payment is due; or

bb. Voluntary abandonment of the food truck by Vendor and the continuance without cure for a period of thirty (30) calendar days; or

cc. Failure of Vendor to secure all necessary decrees, acts, orders, consents, licenses, certificates, and/or permits and insurance necessary to manage and operate the Facility and the continuance without cure for a period of thirty (30) calendar days, except to the extent such failure is caused by the actions or inaction of Smithsonian, its employees, or agents, or failure of local government to timely respond; or

dd. Failure of Vendor to meet the Quality Assurance Criteria further described and set forth in Section II.g above and the continuance without cure for a period of sixty

(60) calendar days.

ii. For Convenience. Notwithstanding the foregoing, Smithsonian may terminate this

Agreement (I) at any time upon fourteen (14) days’ prior written notice and notwithstanding the remedy period for Cause above, immediately if reasonably determined by Smithsonian that continuation of this Agreement is not in the best interest of Smithsonian.

iii. Danger to Health or Safety. In the event that the operation or conditions of a location operated by Vendor creates a material threat or danger to public health or safety, Smithsonian may terminate this Agreement immediately upon written notice.

iv. Understating Reporting. In the event that Vendor submits to Smithsonian three

(3) or more reports or financial statements that understate Net Sales by more than five percent (5%), Smithsonian shall have the right to immediately terminate this Agreement upon prior written notice.

v. Unauthorized Products or Services. Smithsonian may terminate this Agreement immediately upon written notice in the event that Vendor offers for sale products or services that have not been approved for sale by Smithsonian.

vi. Fraud or Criminal Conduct. Smithsonian may immediately terminate this Agreement in the event that Vendor participates in fraud or criminal conduct relating to operation of the location, or Vendor or any of its principal officers is convicted of or pleads guilty or nolo contendere to any criminal charge that, in Smithsonian’s reasonable judgment, will materially and adversely affect the location or the reputation of Smithsonian. For purposes of this Section, Smithsonian shall not be obligated to provide advance notice or to provide Vendor an opportunity to cure.

vii. Cross Default. Any default by Vendor under this Agreement, shall be cause for termination by Smithsonian under any other agreement to which Smithsonian and Vendor may be a party.

b. Contractor recognizes that Smithsonian possesses a special, unique and extraordinary character, and that Contractor operates the Facility to further the excellence and the experience for Patrons at the Smithsonian. If at any time Smithsonian deems that continued operations pursuant to this Agreement will harm, bring into disrepute, affect the integrity of Smithsonian, or are not in keeping with the dignity, history and traditions of Smithsonian, or if at any time for any reason Smithsonian deems that it would be in its best interest not to continue operations pursuant to this Agreement, Smithsonian may terminate this Agreement for convenience, in whole or in part, by giving Vendor fourteen (14) days’ advance written notice specifying the date for such termination.

c. The Vendor terminate this Agreement and terminate its relationship with Smithsonian at any point. Vendor will submit written termination to Smithsonian and may exit the premises fourteen (14) days after termination is submitted.

IX. Default Expenses. If in the event of default in payment by Vendor, Smithsonian retains legal counsel for the purpose of attempting to collect any sums in default or otherwise to enforce its rights, whether or not suit is instituted, Vendor shall pay to Smithsonian the reasonable cost of said legal services, plus actual costs and disbursements.

X. Removal of Property. Vendor, upon termination of this Agreement, whether by expiration of the original or any extended term or terms hereof, or for any other reason, shall immediately after such termination remove from the Premises any and all of its equipment and other property.

XI. Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto.

XII. Disputes. Any dispute arising under this Agreement that the parties are unable to resolve shall be decided by the Contracting Officer. All disputes must be submitted to the Contracting Officer in the form of a written claim supported by evidence within twelve (12) months following accrual of the claim. The Contracting Officer will provide a written decision to the Vendor, and that decision is the final and conclusive decision of the Smithsonian Institution, which is effective on the date the Vendor receives the decision. The Vendor retains all rights to subsequent judicial review to which it is entitled under federal law. The Vendor shall comply with any decision of the Contracting Officer and otherwise proceed diligently with performance of this Agreement pending final resolution of any request for relief, claim, or action arising under this Agreement.

XIII. Civility. The Smithsonian is committed to maintaining a work environment where people feel welcome respected, safe, and valued. Harassment, threats of violence, incidents of intimidation, retaliation, or other concerning behaviors that negatively affect the work environment will not be tolerated. Vendor shall ensure that its employees, representatives, agents, and subcontractors performing under this contract are informed of and adhere to this requirement. Vendor is encouraged to have all of its employees, representatives, agents, or subcontractors under this contract who interact with the Smithsonian or with the general public on the Smithsonian’s behalf take Smithsonian’s free online training course: Fostering a Culture of Respect at the Smithsonian: SI Civil Training for Employees and Affiliated Staff. This course is available on Smithsonian’s internal and external e-learning system https://moodlex.si.edu.

XIV. Countries of Concern. Vendor represents and warrants that it is not, and for the duration of this contract shall not be, owned, controlled, funded by, or subject to, the jurisdiction or direction of a U.S. Government https://moodlex.si.edu/login/index.php

Country of Concern (“CoC”) or an entity located within a CoC. Covered countries are identified based on U.S. Government lists (the Department of State’s State Sponsors of Terrorism and the National Science Foundation’s Implementation Guidance for NSPM-33), which are dynamic and as of October 2024 include China, Cuba, Iran, North Korea, Russia, and Syria. Vendor further represents that it is not, and for the duration of this contract shall not be owned, controlled, funded by, or subject to, the direction of any entity or individual subject to U.S. or international sanctions or embargo lists, including but not limited to the Department of Defense Countering Unwanted Foreign Influence in Department-Funded Research at Institutions of Higher Education (defense.gov) list. Vendor shall ensure that all subcontractors providing goods or services under this contract adhere to these requirements. The Smithsonian shall have the right to terminate this Agreement immediately upon written notice in event of any breach of this representation and warranty by Vendor or any subcontractor.

XV. Authorized Representatives; Notice.

a. Contract Matters. For the purposes of liaison and direction in contractual interpretation matters, dispute resolution, or for modification of the Agreement, the Smithsonian shall be represented by its Contracting Officer, Office of Contracting & Personal Property Management, Smithsonian Institution.

b. Operational Matters: For purposes of liaison, providing guidance and direction in daily operational matters, granting approvals or withholding same, and for general contract coordination as detailed herein, the Contracting Officer’s Representative (“COR”) is ____________, NZP, who is not empowered to change the terms or scope of the Agreement.

c. Substitution of Representative: Smithsonian shall advise Vendor in writing of any substitution for said representatives.

d. Notices. Any notice or communication required or permitted to be given hereunder shall be in writing and served (i) personally; (ii) via USPS/FedEx/UPS; or, (iii) sent via email with confirmation of receipt.

To: Vendor:

To Smithsonian:

For Contract Matters: For Operational Matters:

Contracting Officer ____________ Office of Contracting Operations Chief Smithsonian Institution National Zoological Park P.O. Box 37012, MRC 1200 Smithsonian Institution Washington, DC 20013-7012 3001 Connecticut Avenue NW

(regular mail only) Washington, DC 20008

XVI. Modification: Entire Agreement. This Agreement may not be modified orally, but only in writing signed by an officer of each of the parties thereunto duly authorized. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof. Email correspondence shall not qualify as a written document signed by an authorized signatory, except alterations to Exhibit C as specified in Section II.K of this Agreement.

https://www.state.gov/state-sponsors-of-terrorism/ https://www.nsf.gov/bfa/dias/policy/researchprotection/nspm33definitions.pdf https://www.nsf.gov/bfa/dias/policy/researchprotection/nspm33definitions.pdf https://media.defense.gov/2023/Jun/29/2003251160/-1/-1/1/COUNTERING-UNWANTED-INFLUENCE-IN-DEPARTMENT-FUNDED-RESEARCH-AT-INSTITUTIONS-OF-HIGHER-EDUCATION.PDF https://media.defense.gov/2023/Jun/29/2003251160/-1/-1/1/COUNTERING-UNWANTED-INFLUENCE-IN-DEPARTMENT-FUNDED-RESEARCH-AT-INSTITUTIONS-OF-HIGHER-EDUCATION.PDF

XVII. Ethical Conduct. Vendor acknowledges that Smithsonian requires its vendors to comply with certain minimum ethical, social and environmental practices. Smithsonian promotes a working environment that values respect, fairness, and integrity. We act in accordance with these values by treating our colleagues, the public, and others with whom we interact with dignity, civility, and respect. Members of the Smithsonian community exercise responsibility appropriate to their position and delegated authorities. We strive for excellence in all of our activities and acknowledge that we are responsible to each other and to Smithsonian’s stakeholders for our actions. We are each responsible for being aware of and complying with applicable professional standards that govern our conduct, including those that relate to our particular discipline.

XVIII. Applicable Law. This Agreement shall be construed in accordance with and governed by applicable federal laws and the laws of District of Columbia.

XIX. Independent Contractor. In all matters pertaining to this Agreement, each party is and shall be an independent contractor as to the other. No party’s officers or employees shall be deemed to be an employee of the other parties. Nothing contained in this Agreement shall be construed to create a partnership, joint venture or agency, and neither party to this Agreement shall be liable for the debts or obligations of the other. Except as otherwise herein expressly provided, no party shall have the power to hire or fire another party’s employees, may not control or have access to another party’s funds or the expenditures of these funds, or any other way exercise control over another party’s business.

XX. Electronic Signatures. The parties agree that this Agreement and subsequent amendments (if any) may be executed using electronic contracting technology using symbols or other data in digital form and agree that such electronic signature is the legal equivalent of a manual signature binding the parties to the terms and conditions stated herein.

XXI. Menus and Prices.

a. Vendor shall provide discounts for Zoo members (currently 15%) for all persons showing proof of a qualifying level of membership and for current credentialed employees (currently

30%), for all persons possessing an official Smithsonian identification badge and signing a record showing name, ID number, dollar amount of the sale and cashier’s initials on the purchase price of all food and nonalcoholic beverages sold by the Vendor(“Discounted

Sales”). . All credentials must have an employee valid thru date. All Discounted Sales shall be part of commissionable sales. This amount must be documented in the Vendor’s point-of-sale system and can be deducted from Contractor’s Net Sales.

b. On an annual basis during the Agreement term (if the term is extended), no later than January 15, Vendor shall submit for Smithsonian’s review and written approval a proposed list of all menu items to be sold in the following contract year. In the first year of the Agreement, Vendor shall submit such list 20 (twenty) days prior to the start of operation, or by a mutually agreed upon date. The list shall include the name of the item, portion size, included condiments and the proposed price for the item.

XXII. Location. Smithsonian determines the location of vendors, including but not limited to Vendor, within the park. Location will mostly be regulated by electrical requirements but menu, prior sales and product mix will also be taken into consideration. Smithsonian may request Vendors to move locations with two business days’ notice.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date and year indicated in the first paragraph of this Agreement.

SMITHSONIAN INSTITUTION [VENDOR]

By:____________________ By:____________ Name: _________________ Name: __________ Contracting Officer Title: ____________

Date: ______________ Date: ______________

Attachments:

Exhibit A, Insurance Guidelines Exhibit B, Banned Product List for the Zoo Exhibit C, Additional Zoo Policies Exhibit D, Weather Policy Exhibit E, Smithsonian Institution Privacy and Security Clause Exhibit F, Background Investigations and Credentials for Vendors’ Personnel

EXHIBIT A

INSURANCE GUIDELINES

I. General Provisions.

a. The Smithsonian Institution must be listed as an additional insured on the above listed commercial general liability policy, auto liability policy and criminal liability policy.

b. The Smithsonian Institution must be listed as loss payee “as their interest may appear” for property damage and business interruption policies.

c. Limits are expressed as minimum allowable limits. Actual limits maintained shall be assessed by each vendor and shall be adequate to cover all potential risk exposures inherent in the services provided by Vendor.

d. Smithsonian must be provided with not less than thirty (30) days prior written notice of cancellation or material change of any insurance coverage prior to the expiration date of the policy.

e. All certificate(s) of insurance must:

i. Show Vendor as the Named Insured

ii. Provide information using the most current standard ACORD 25 Certificate of Liability Insurance form.

iii. Include in the “Description of Operations/Locations/Additional Remarks” section:

1. Smithsonian as Additional Insured using the statement

“Smithsonian Institution is an additional insured.”

iv. Show the following as “Certificate Holder”:

Smithsonian Institution 3001 Connecticut Ave NW Washington DC, 20008 Attn: ___________

f. Submit certificate(s) of insurance via email to ____________ mailto:FuchsE2@si.edu

Exhibit B

Smithsonian’s BANNED PRODUCT LIST for the Zoo

Purpose:

The following “Banned Product List” has been developed to clearly identify products that may present a food safety risk if used in Zoo foodservice locations. The products on this list should not be used in Zoo food service operations at this time. The Smithsonian will review this information periodically with the Contractor and update the list, as needed.

● Raw sprouts (ALL varieties, i.e., alfalfa sprouts, mung bean sprouts, radish sprouts, etc.).

Due to foodborne illness outbreaks linked to contaminated seed sprouts (i.e., Salmonella, E. coli 0157:H7).

Reference: HACCP Manual, 1.2.5.10 – Raw Sprouts Policy

● Raw / unprocessed Yuca (Cassava) Root

Due to the potential for this product in a raw state to contain harmful toxins it cannot be served raw or unprocessed.

● Un-pasteurized milk and milk products

Reference: U.S. FDA Food Code, 3-201.13 and U.S. FDA “Grade A” Pasteurized Milk Ordinance

● Ground beef from un-approved suppliers

Reference: HACCP Manual, 1.2.5.11 – Ground Beef Policy. Exceptions procedure is outlined in this policy

● Non-USDA shielded shell eggs (U.S.) or Non-Grade A eggs (Canada)

Pasteurized shell eggs do not have the USDA shield; they are regulated by

FDA. Reference: HACCP Manual, 1.2.6.12 – Egg Safety Guidelines

● Un-pasteurized liquid and frozen eggs / egg products

Reference: HACCP Manual, 1.2.6.12 – Egg Safety Guidelines

● Un-pasteurized apple juice or juice blends that include apple juice

Reference: HACCP Manual, 1.2.5.12 – Unpasteurized Apple Juice Policy

● Un-pasteurized juices for use in facilities serving a highly susceptible population

Reference: U.S. FDA Food Code, 3-801.11

Highly susceptible population means persons more likely than other people in the general population to experience foodborne disease because they are:

(1) immune-compromised, pre-school aged children, or older adults, and

(2) obtaining food in a facility that provides services such as custodial care, health care or assisted living, such as a child or adult day care center, kidney dialysis cent, hospital or nursing home, or nutritional or socialization services such as a senior center.

● MSG (mono sodium glutamate)

Discouraged. At the same time, we acknowledge the Food and Drug

Administration (FDA) ruling that MSG is a safe product and continues to be a safe product when used according to manufacturing guidelines.

Reference: HACCP Manual, 1.2.6.1 – What You Should Know About MSG

Reference: U.S. FDA Food Code, 3-302.14

● Lemon juice or lime juice with sulfites

Not to be used for the purpose of preserving fresh cut fruits and vegetables.

Reference: U.S. FDA Food Code, 3-302.14

● Non-commercially caught fish and shell fish

Reference: U.S. FDA

Food Code, 3-201.14

● Vacuum packed fresh raw fish (except as noted below)

Reference: U.S. FDA Fish and Fishery Products Hazards and Controls

Guidance, Chapter 13.

Fresh raw fish that is vacuum packed carries a risk of developing Clostridium botulinum toxin and should not be purchased or used.

Exception: Vacuum packed fresh fish that is clearly identified on the packaging

“10K OTR” (representing a 10,000 cc / m2 / 24 hours Oxygen Transfer Rate) and not packed in oil can be used. The product must be kept at 40°F or less. If the packaging is not clearly marked “10K OTR” it should not be purchased or used.

● Escolar and Oilfish

FDA advisory – The consumption of this fish species can cause a lower intestinal illness called Gempylid Fish Poisoning due to the strong purgative oil found in the fish.

● Fresh gulf oysters

Due to the high bacteria levels in the warm Gulf waters, purified or pasteurized oysters are recommended.

● Raw tuna scrape (ground tuna)

Due to the potential for high histamine levels and bacteria contamination.

Whole muscle sushi grade tuna should be used in place of scrape (ground tuna) for raw consumption.

● Non-commercially raised game animals

Reference: U.S. FDA

Food Code, 3-201.17

● Non-inspected wild mushrooms

Reference: U.S. FDA

Food Code, 3-201.16

● Home-canned foods

Reference: U.S. FDA Food Code, 3-201.12. Food in a hermetically sealed container shall be obtained from a food processing plant that is regulated by the food regulatory agency that has jurisdiction over the plant.

● Latex food handling gloves

Reference: HACCP Manual, 1.1.4 – Food Safety Standards and

Requirements, point A.4

I.

II.

III.

IV.

V.

Exhibit C

ADDITIONAL ZOO POLICIES

Conservation – The Smithsonian has banned the sale of beverages in single use plastic bottles. Non-compostable plastic straws are not permitted for use and approved paper or compostable straws should only be available upon request. Non-compostable plastic lids are not permitted for use and approved compostable lids should only be available for hot beverages. If the restaurants/cafes are not serviced by a dishwasher, or if the dishwasher is not operational, or for mobile carts, the selected offeror must provide compostable service ware (forks, knives, spoons, plates, etc.) and such compostable service ware must meet

Smithsonian-established standards – currently ASTM standards.

Pepsi Products - are the only approved brand, no plastic bottles permitted. Sponsorship items may be required if the Smithsonian marketing department has a marketing deal requirement.

Hours of Operation

The Zoo is open to the public every day except Christmas Day, December 25. Operating hours at the Zoo vary during off-peak and peak season. While there will be standard hours of the operation for the restaurants, small cafés and mobile carts, the Contractor is on notice that peak business opportunities, special events, group sales, breakfast and dinner sales, etc., will require flexibility. Restaurants 1 and 2 are expected to open all Zoo operating days.

a. Peak Season (March 15 – September 14, 8:00 a.m. – 6:00 p.m.) All restaurants, small cafés, and mobile carts are to operate daily from at least 10:30 a.m. until

Zoo closing.

b. Off–Peak Season (September 15 – March 14, 8:00 a.m. – 4:00 p.m.)

. Restaurants 1 and 2 are to operate daily, but the Zoo may allow reduced hours.

ii. Restaurant 3, small cafés, and mobile carts are to operate all days above 45 degrees.

c. Any modifications to operating schedules must be approved in advance by the

Smithsonian. Offerors must maintain an open line of communication with the

Zoo regarding their operating schedule for days they do not operate. Reasons for not operating during Off-Peak season include deep-cleaning, inclement weather, staffing issues, low visitation etc.

d. Events. Contractor is required to open during special events (e.g. Boo at the Zoo, NOLZ, ZooLights etc.). The Zoo will notify the Contractor in advance of required participation.

Donation. With a minimum notice of thirty (30) days (notice may be sent via email), the

Contractor shall provide support to the Zoo for up to three (3) events per year, not to exceed

$1,000 in cost per event.

Contractor may participate in Zoo fundraising events, if approved by Smithsonian.

a. If applicable, Contractor must pay the separate event site fee, per event they participate in.

b. Contractors participating in Zoo fundraising events are subject to the standard commission split unless otherwise agreed upon.

Contractors shall report Zoo Events revenue separate from regular Smithsonian operational revenue (commissions)

c. Smithsonian Events will determine the location of the Contractor during the event.

VI. Discounts need to be available for Zoo members (currently 15%) for all persons showing proof of a qualifying level of membership and for current credentialed employees

(currently 30%), for all persons possessing an official Smithsonian identification badge and signing a record showing name, ID number, dollar amount of the sale and cashier’s initials on the purchase price of all food and nonalcoholic beverages sold by the

Contractor. All credentials must have an employee valid thru date. All discounted sales shall be part of commissionable sales. This amount must be documented in the POS and can be deducted from Contractor’s Adjusted Gross Receipts.

VII. Deliveries

a. All vehicles must be off pedestrian areas by 8am

b. Speed limit on Olmstead Walk is no more than 5 miles per hour

c. All deliveries made outside of the defined delivery windows must be made via hand truck

d. Vehicles driving on Olmstead Walk must drive with hazards on

e. POV or private vehicles/carts used to transport goods on the Zoo’s internal walkways must be properly insured by the Contractor

f. Summer Hours

i. Vehicle deliveries are allowed on Olmstead Walk 5a-8a, after 7p daily

g. Winter Hours

i. Vehicle deliveries are allowed on Olmstead Walk 5a-8a, after 5p daily

h. ZooLights

i. Vehicle deliveries are allowed on Olmstead Walk 5a-8a, 4p-5p, after

10p daily

VIII. Parking

a. One parking spot per Contractor will be provided

b. Contractors must park in Parking Lot C. All other lots are strictly prohibited and violation may lead to termination.

c. The Smithsonian will have record of the vehicle and employee who the spot has been granted to

d. Absolutely at no point will the Contractor share or provide their parking access with anyone else

i. Should Smithsonian discover any shared parking access, Smithsonian has the right to terminate this Agreement immediately without recourse

e. Street parking, public transportation and paid Zoo lots should be used for all other employees and vehicles

f. POV or private vehicles/carts used to transport goods on the Zoo’s internal walkways must be properly insured by the Offeror(s)

g. Contractor may surrender their one spot at any point and may re-request it at any point after.

h. Parking privileges may be changed and/or revoked at the discretion of the Zoo at any point. Onsite available parking cannot be guaranteed, and spots cannot be designated.

IX. Employee training and background checks are required for all onsite staff at the National Zoo. Must have this completed prior to operation inside the National Zoo. If background is not cleared, employee must vacate the park until documentation is provided and background is confirmed by Smithsonian that it is cleared.

X. Meals or meal allowance will need to be serviced by the Contractor, each individual

Contractor will need to discuss with their staff on break times and locations for breaks and meals. Inside and outside seating in the Mane restaurant is reserved for guests.

XI. Smithsonian may call Food Service meetings for Zoo updates, changes in policies, and other important notifications. Contractor or a representative from their team should attend all meetings and notify Smithsonian COR if someone from their team cannot attend. Meetings will be called with at least five business days’ notice unless an emergency situation warrants otherwise.

XII. Smithsonian will conduct cleanliness inspections which will be monthly.

Walkthroughs will be conducted weekly and all findings will be documented.

Smithsonian has the right to provide no advance notification of walkthroughs or inspections.

XIII. Any and all Zoo signage must be approved by NZP Exhibits team. At the start of each season NZP Exhibits will give updates and guidance on changes. Smithsonian has the right to remove any and all signage displayed that does not meet design standards.

XIV. No trash can be left outside the location, all trash must be moved to a dumpster.

XV. Electronic payments are required with the first month of operations. Remittance is due prior to close of business Monday for the prior week. An excel file will need to be sent at the same time to Smithsonian Finance; Sales by item per day, then consolidated by week, then Month for a summary annual report. Remittance information totals sales less taxes, membership and employee discounts, by day, week and summarized by month to be added to an annual operations report.

XVI. Bird Friendly coffee must be used at the Zoo

XVII. All trucks need to be run on electric, extension cords must be black, and use needs to be approved by SI electricians. All trucks need to be certified in DC, VA or MD

XVIII. Dress Code

a. Contractors and their employees must wear branded shirts when working on Zoo property

b. Pants and shorts of any color, plain not patterned, are permitted

c. No other brand, team, logo should be displayed on clothing

d. Name tags provided by the Contractor must be displayed at all times

e. Employees must present a clean, professional appearance wearing clean clothing, free of holes, tears or other signs of wear

f. Clothing should not be revealing

g. Smithsonian has the right to require that Contractor dismiss any employees from the park who do not properly follow dress code, with notification to the Contractor

XIX. Confidentiality

a. Financial reporting provided to Smithsonian is Confidential Information

b. Smithsonian may use sales metrics among contractors as a whole to present to all contractors as year-year or month- month comparisons but all names and identifying characters will be redacted.

I.

II.

Exhibit D

WEATHER POLICY

Inclement Weather Contractors not required for daily operations has the right to close their operation with advance NZP approval in the event of inclement weather. Inclement weather may be defined as:

a. If excessive rain, snow or ice over the course of operating hours Contractors may close for the day

b. If location is without air conditioning and heat is in excess of 95 degrees, Contractors may close at 3pm

c. If location is without heat and cold temperatures are forecasted at/or below 32 degrees, Contractors may close for the day

Notification Smithsonian will notify Contractor via email if an inclement weather day is forecasted either the evening before or by 8am the day of. If Contractor choses to close on day due to inclement weather Smithsonian must be notified of the plan of operation.

Smithsonian Institution

Privacy and Security Clause

SI 147B – Privacy and Security Clause Page 1 of 4

September, 2024 (Rev.)

1. Smithsonian Data:…