Smoothie Contract Format.docx

SMOOTHIE BAR CONCESSIONAIRE CONTRACT FORMAT

Contract No. FA4417-10-S-0003

ARTICLE I:

That:

1. This Concessionaire contract by and between the 1 SOFSS hereinafter referred to as the NAFI, and __________________________, hereinafter referred to as the Concessionaire, is for the Concessionaire to provide Smoothie Bar services to authorized patrons at assigned space at the Hurlburt Aderholt Fitness Center.

for a period of (___) days (___) months, beginning __________ and ending _____________. The hours of operations of this concession will be the same as those of the NAFI where the Concessionaire has been assigned space or as specified in writing by the Contracting Officer. The NAFI will furnish for use of the Concessionaire the following described items: ________________________________________________________________________________________________________________________________________.

2. Concessionaire will pay the NAFI either a sum equal to twenty percent (20%) of gross sales. Payment of fees due the NAFI shall be made at the end of the month along with the submission of the Point of Sale (POS) audit report in addition to the Concessionaire Settlement Report.

ARTICLE II. The Concessionaire must:

1. Provide smoothie bar services to military and DoD personnel and their eligible family members at the Hurlburt Field, FL Commando Fitness and Wellness Center or another site as coordinated between the Fitness Center Director (FCD) and the contractor.

2. Before beginning performance under this agreement, the Concessionaire will submit a listing of items/services, with corresponding selling prices, to the Contracting Officer for approval or disapproval action. The final approved listing is considered part of this agreement. Place the price list in a conspicuous spot for patrons to see.

3. At Concessionaire's expense, obtain all permits, give all necessary notices; pay all license fees; and comply with all municipal, perfectural, and national laws, rules, ordinances, and regulations, and any publication published by the military relating to public health or applicable to the business carried on under this agreement and assume complete and sole liability for all national, state, and local taxes applicable to the property, income, and transactions of the concession.

4. Comply with all applicable laws pertaining to wages, worker's compensation, equal opportunity, Service Contract Act (SCA), and so forth, as implemented by Air Force directives and required by law.

5. Comply with all Air Force guidance and memoranda, bulletins, or letters of instruction issued by or in behalf of the NAFI manager or their duly authorized representative.

6. Keep the concession area clean, orderly, attractive, secure, and in a safe and sanitary condition to the satisfaction of the NAFI managers.

7. Employ only persons who meet the health standards prescribed by law or regulations, which pertain to the jobs for which they are hired.

8. Furnish a sufficient number of trained employees for the efficient performance of this Concessionaire contract. Concession personnel must meet the health and security standards prescribed by applicable regulations, and must obtain installation passes and permits and security clearances as applicable. Concession personnel must give prompt and courteous treatment to authorized customers. Concession personnel must be neatly dressed and meticulous in their personal grooming at all times. Concessionaire provides employees clean uniforms or, when uniforms are not required, ensures that all clothing worn by employees is clean and in good condition at all times. A nametag must be worn.

9. Remove from employment in the concession, on the request of the NAFI manager, any servant, agent, or employee of the Concessionaire if, in the opinion of the NAFI manager or their duly authorized representative, the conduct of such person, while in and about the premises covered by this contract interferes with proper services or discipline.

10. Obtain insurance for all nonGovernment property and merchandise used by the Concessionaire in the operation of the concession against theft, fire, storm, flood, and damage, or destruction through any other force of nature; or in lieu thereof, to relieve the NAFI from any liability arising from such theft, loss, damage, or destruction. The Concessionaire must have liability insurance commensurate with the risks involved, and furnish proof of such to the Contracting Officer.

11. Not leave cash on the premises during non-operational hours.

12. Be responsible for paying all operating expenses not expressly undertaken by the NAFI.

13. Maintain a Cash Collection Record, showing all income received, in accordance with instructions from the NAFI. Any failure by the Concessionaire, its servants, employees, or agents, to enter all monies received on control sheets will be cause for immediate cancellation of this contract.

ARTICLE III.

Concessionaire will not:

1. Represent or permit itself to be represented to the public as an agent or employee of the NAFI by the use of the name of the NAFI on letters, bills, signs, or by any other means. The Concessionaire, its servants, agents, and employees, are in no sense agents of the United States, the NAFI, the commander of the installation within which the concession exists, or of any other entity having to do with the operations of the NAFI.

2. Sell or remove any property that is owned by the NAFI or any other part of the Federal Government and is used in the operation of the concession.

3. Engage in or permit gambling or possession or use of any gambling device on the concession premises or elsewhere on the installation.

4. Sell, deal in, or otherwise possess or transfer, on the concession premises, any form of intoxicating liquors or narcotics.

5. Loan money to or borrow money from customers or others, which includes Federal Government (including NAFI) employees and military personnel.

6. Sell merchandise or services for anything other than US currency, unless authorized in writing by the Contracting Officer.

7. Sell merchandise or services on credit.

8. Give or offer to any officer or employee of the NAFI, or any other part of the Federal Government, any gift, privilege, special benefit, discount, or anything else of material or personal nature whereby the individual or employee would receive preferential treatment.

ARTICLE IV:

That:

1. Air Force Auditor General personnel, or any person designated by the installation commander, will have the right to inspect or audit the accounts and methods of internal control established by Concessionaire, and to make such inspection or audits as may be considered necessary to ensure strict compliance by Concessionaire with all provisions of this contract and with applicable Air Force regulations.

2. This contract, unless sooner terminated as herein provided, may be extended for additional periods, each of which may not exceed 60 months by mutual agreement of the parties in writing, subject to approval in the same manner as this instrument.

3. This contract is automatically terminated in the event the NAFI is dissolved.

4. Any monies due and payable to the NAFI from the Concessionaire on the date of this contract must be paid in full or will remain due and payable until final settlement.

CONTRACTUAL CONTENTS: This contract consists of the following documents:

a. Contract Terms and Conditions Pages 1-2

b. Appendix A, Statement of Work Pages 3-8

c. Special and General Provisions Pages 9-16

d. SCA Wage Determination 17-26

FOR THE NAFI: FOR THE CONCESSIONAIRE:

This Concessionaire contract has been reviewed and determined to be legally sufficient.

(Signed by Staff Judge Advocate or the representative) Date

STATEMENT OF WORK

FOR

Smoothie Bar Concessionaire

1. DESCRIPTION OF SERVICES. The contractor will provide juice/smoothie bar to military and Department of Defense personnel and their eligible family members at the Hurlburt Field, FL Aderholt Fitness Center or another site as coordinated between the Fitness Center Director (FCD) and the contractor. There will be a cost per smoothie. Additional ingredients or additives entail additional costs. Final cost shall be determined using approved price lists.

2. CONTRACTER RESPONSIBILITES.

2.1. Operation of Concessions:

2.1.1. The contractor shall be responsible for all equipment associated with opening and operating the nutrition center and juice/shake bar.

2.1.2. The contractor shall furnish all trade fixtures, labor, machines, equipment, tools of the trade and supplies necessary for the performance of this contract at the contractor’s own expense.

2.1.3. The contractor shall be responsible for all cleaning and maintenance of the contractor’s area to ensure compliance with all public health standards.

2.1.4. The contractor shall be responsible for keeping the Aderholt Fitness Center unit open a minimum of seventy (70) hours a week, a minimum of six (6) days a week. For both fitness centers, it is the contractor’s discretion to set the schedule to meet minimum operating requirements. The number hours worked may be changed upon mutual agreement of the Contracting Officer and Contractor. The Aderholt Fitness Center is open seven (7) days a week, 0500 to 2330, Monday through Friday, and approximately 0800-2000, Saturday, Sunday, and holidays. The hours are always subject to change due to base exercises and closures.

2.1.5. The contractor may open for service on federal holidays as long as the fitness center is open, but is not required to do so. The Aderholt Fitness Center is open limited hours every federal holiday with the exception of Christmas, when the center is closed.

New Year's Day, January 1 or the Friday preceding or Monday following

2.2. Contractor Concessions:

2.2.1. The contractor shall be responsible for providing concession items such as nutritional products to be added to shakes, individual vitamin servings, beverages, food, and snacks. The contractor will also provide nutritious shakes prepared to order. Shakes may contain fresh fruits, meal replacement powders, water, or other ingredients. There shall be no products sold that duplicate what is available at the Base Commissary, Base Exchange, or an AFFES (Army Air Force Exchange Service) location on base. The government reserves the right to approve or disapprove of any items to be sold.

2.2.2. The contractor shall be responsible for all equipment, parts, and materials. Services supplied by the Contractor shall conform to applicable safety and health standards as established in the Code of Federal Regulations, Title 29, Chapter XVII, Occupational Safety and Health Act of 1988. The government reserves the right to approve or disapprove any machine or appliance used by the contractor.

2.2.3. The contractor shall be responsible for providing a display listing of all items offered for sale with pricing which includes all applicable taxes in the price, and to display ingredient listing and total calorie and fat content information on edible items, which are prepared onsite. There shall be a professional display of products for customers, which will include a clearly visible price for each item.

2.2.4. The contractor shall sell products sufficient for the use intended, which are not “seconds” as the term is typically understood in the trade. Products will be, at a minimum, equal to products provided by first quality commercial establishments. All items will be subject to inspection by the Contracting Officer, or other authorized government personnel.

2.2.5. The contractor shall furnish at the contractor’s expense, suitable bags, “sold” labels, etc. as necessary to secure a customer’s purchase.

2.2.6. The contractor shall provide a receipt to every customer after every sale.

2.3. Standards and regulations:

2.3.1. The contractor shall obtain all permits, give all necessary notices, pay all license fees and comply with all municipal, state, and national laws, rules, ordinances and regulations

2.3.2. The contractor shall comply with any federal or military publication relating to public health or otherwise relevant to this contract. Publications include, but are not limited to:

2.3.2.1. Air Force Instruction (AFI) 48-116, which includes a requirement that food be purchased from approved sources; and

2.3.2.2. 2005 Federal Drug and Administration (FDA) Food Code including storage, preparation, service and safety procedure requirements.

2.3.3. The contractor shall allow authorized public health authorities, or other authorized personnel to inspect the contractor at any times or during any function to ensure compliance with health code regulations.

2.3.4. The contactor shall immediately correct any health hazard or discrepancies as identified by the regulatory authority, and cease operation of the unit until such health hazards or discrepancies are corrected. If correction cannot be accomplished immediately, the contractor shall notify the Quality Assurance Personnel (QAP) and the Contracting Officer of the situation, and the contractor shall follow any direction as specified by the Contracting Officer or public health official.

2.3.5. The contractor shall return to work site to safe, clean, and secure status upon completion of daily operations in compliance with safety standards and regulations.

2.3.6. The contractor shall dispose of all reuse and/or recyclable materials using proper receptacles located in or near the facility as identified by the QAP.

2.3.7. The contractor shall assume complete and sole liability for all national, state and local taxes applicable to the property, income and/or transactions of the concession.

2.4. Personnel:

2.4.1. The contractor shall request installation passes (including vehicle passes,) permits, and security clearances as applicable. The necessary applications for vehicle passes can be obtained though coordination with the QAP. Vehicle passes shall be obtained prior to opening of the unit.

2.4.2. The contractor shall ensure that personnel give prompt and courteous treatment to customers. Contractor personnel shall present a neat appearance, wear appropriate clothing, and be easily recognized as contractor employees. Clothing bearing the name and/or logo of the contractor is required. Each employee on duty must display a badge bearing the employee’s name and the company name. The government is not responsible to reimburse the contractor directly or indirectly for the cost of employee attire or identification.

2.4.3. The contractor shall provide to the Contracting Officer and QAP the name and telephone number(s) of the person who will be on call in emergency situations at least two weeks prior to opening the unit for business.

2.4.4. The contractor shall furnish, at a minimum, enough employees to provide the service during peak hours with a minimal wait time. The contractor is responsible for ensuring that all contractor employees follow utility conservation practices. The contractor is responsible for operating under conditions that prelude the waste of utilities. Note that the Aderholt sees 1000 customers on average every weekday.

2.4.5. The contractor shall maintain a professional and courteous behavior at all times. The contractor shall be removed from the concession, upon request of the Contracting Officer, and agent or employee of the contractor if the conduct of such person, while on duty, is contrary to proper performance of the contract.

2.5. Insurance Requirements:

2.5.1. The contractor shall obtain and maintain in force insurance for all non-government property and merchandise owned or used by the contractor in the operation of the concession against theft, fire, storm, flood, and damage or destruction through any force of nature or in lieu thereof. The contractor shall obtain liability insurance commensurate with the risk of the concession and shall furnish proof of such to the Contracting Officer at least two weeks prior to opening the unity and on an annual basis thereafter. The government is not liable for losses, damage or destruction to the contractor’s property as identified herein.

2.6. Revenue:

2.6.1. The contractor is responsible paying the NAFI representative promptly the amount specified in the contract schedule.

2.6.2. The contractor may accept national charge cards customarily recognized in their commercial trade for customers payment of purchases. The contractor is responsible for the payment of any fess, charge backs and other arranged costs levied by the charge card issuing companies.

3. CONTRACTOR RESTRICTIONS:

3.1. The contractor shall not leave cash on the premises during non-operational hours.

3.2. The contractor shall not represent or permit itself to be represented to the public as an agent or employee of NAFI, the U.S Air Force or the U.S Government on any letters, bills, signs and other means of correspondence or advertising.

3.3. The contractor shall not sell or remove any property that is owned by NAFI, or the U. S. Government and is used in the operation of the concession.

3.4. Any contractor-provided fixtures that are adjoined to real property, i.e. counter, cabinets, and affixed shelving, shall become government property and must have prior approval before installation be the Facilities Manager.

3.5. The contractor shall not engage in or permit gambling or possession or use of any gambling device (game vending machines) on the concession premises of Hurlburt Field, FL.

3.6. The contractor shall not sell, deal in, or otherwise possess or transfer, on the installation, and form of intoxicating liquors or narcotics.

3.7. The contractor shall not loan money to or borrow money from customers or others including all federal and military personnel and their families and guests.

3.8. The contractor shall not sell merchandise or services for anything other than US currency unless authorized in writing by the Contracting Officer.

3.9. The contractor shall not sell merchandise or services on an “I owe you’s” (IOU) basis.

3.10. The contractor shall not give or offer to give any officer or employee of NAFI, or any other part of the federal government, any gift, privilege, special benefit, discount, or anything of material or personal nature whereby the individual or employee would receive preferential treatment.

4. NAFI/GOVERNMENT RESPONSIBILITIES (Government Furnished Equipment, Property and Services):

4.1. The government will provide an area of the Aderholt Fitness Center for establishment of the nutrition center juice/shake bar. The area will include necessary drainage, water supply, and electricity for the operations of the concession. Additional space for use as a seating area may be made available at the Facility Manager’s or QAP’s discretion.

4.2. The government will furnish utilities to the contractor area for lighting, heating, drinking, sanitation and the operation of suitable support equipment.

4.3. The government will provide Security Forces and Fire response services at no cost to the contractor. The contractor shall call 911 to report emergency situations.

4.4 The government will provide the parts and labor as necessary to provide telephone service up to one telephone jack in the work area.

5. PERIOD OF PERFORMACE:

5.1. The period of performance includes startup time allowances. The base year of performance shall begin from the date of the contract award and end twelve (12) months from the date of award.

5.2. In accordance with (IAW) FAR Clause 52.217-8, the government may extend the term of this contract utilizing options years. The Contracting Officer may exercise the option by written notice to the contractor within thirty (30) days of the option period.

5.3. IAW FAR Clause 52.217-9, Option to Extend the Term of the Contract (MAR 2000), the government may extend the term of the contract by first providing written notice to the contractor within thirty (30) days, provided that the government gives the contractor a preliminary written notice of its intent to extend at least sixty (60) days before the contract expires. The preliminary notice does not commit the government to an extension.

6. CUSTOMER COMPLAINTS, CLAIMS AND REFUNDS:

6.1. The contractor shall adhere to NAFI policy of customer satisfaction guaranteed IAW AFI 34-208 and will be responsible for refunds to customer’s resultant from customer dissatisfaction with an item or overcharging.

6.2. All customer complaints, claims and refunds will be resolved at the contractor’s expense.

6.3. Disagreements that cannot be resolved between the contractor and the customer shall be first referred to the Facility Manager or QAP for resolution. If the matter is still not resolved, the situation is then to be referred to the Contracting Officer for resolution.

6.4. The Contracting Officer’s determination of resolution is final and the dispute is not subject to the FAR disputes clause or language therein.

6.5. The government reserves the right to settle customer complaints or claims which are not settled by the contractor in a timely manner and to demand reimbursement from the contractor for the costs.

6.6. Repeated bad faith on the part of the contractor in resolving customer complaints and claims may result in termination of contract for cause.

6.7. The contractor shall develop a “customer comments” forum whereby customers can compliment or complain about the contractor’s products or services in a written format. Results of this forum will be forwarded to the QAP for review NLT the 5th of each month.

7. CONTRACT TERMINATION/EXPIRATION:

7.1. This contract is automatically terminated in the event NAFI is dissolved, and the contractor shall be given a thirty (30) day notice of termination.

7.2. In the event that is contract is terminated:

7.2.1. The contractor shall promptly settle its account with NAFI, including payments in full of all amounts due.

7.2.2. The contractor shall promptly remove all of their furnished trade fixtures, tools of the trade and supplies, including corporate identification such as signage, menus, etc. Structures, fixtures, appliances, etc. affixed to Government property shall become Government property upon installation and are not subject to removal by the Contractor. This includes, but is not limited to, any structure built within the area provided by the Government; sinks, water heaters or other appliances attached to or integral to the structure. The discretionary authority is the Contracting Officer.

7.2.3. The contractor shall return the cleaned facilities and all NAFI furnished property in as good order and condition as when received subject to normal wear and tear.

7.2.4. The contractor shall turn over all base passes, vehicle decals, etc. to the Contracting Officer.

7.3. Termination of this contract does not release the contractor of its obligation to satisfactorily settle customer complaints and claims.

8. CLAIMS BY CONTRACTOR:

8.1. Claims by the contractor must be submitted in writing to the Contracting Officer no later than ninety (90) days after the effective date of termination or expiration of this contract.

9. PAYMENTS TO NAFI:

9.1. Payments to NAFI will be a predetermined monthly fee. Payment of fees due NAFI must be made monthly and must be received by NAFI no later than noon on the 28th of each month. If the 28th falls on a weekend or federal holiday where the facility is closed or the designated NAFI representative is not available, payment shall be made on the next business day following the 28th a five (5) percent interest penalty will be accessed if not made by the due date.

9.2. NAFI may charge the contractor for a dishonored check received from the contractor except when the bank acknowledges the return of the check to be resultant from bank or NAFI error. The amount charged by NAFI will not exceed the administrative amount normally charged NAFI customers for dishonored checks. The Contracting Officer may require payment in cash, certified check or cashier’s check at the contractor’s expense. NAFI reserves the right to only receive cash payments for monthly fee if contractor’s checks are not honored by their bank.

9.3. A daily receipt ledger along with copies of the end of day receipts must accompany the payment of fees every month.

10. GENERAL INFORMATION:

10.1. This agreement does not state or imply that the contractor will be given an exclusive right to vending or concessionaire operations in the fitness centers.

PERFORMANCE SPECIFICATIONS

Machines (coolers, blenders, etc.) for Fitness Center

1. The contractor shall service and maintain the machines as follows:

a. Clean exterior of equipment and glass surfaces. Replace glass surfaces promptly if cracked or broken.

b. Clean machines as needed a minimum of once a month. Replace machines when they become cracked, splintered, or badly worn.

c. Replace burned out light bulbs in machines.

2. The contractor shall service machines within twenty-four (24) hours of notification and replace machines within forty-eight (48) hours if machines become unserviceable or otherwise fail to comply with the equipment specifications.

3. The contractor submits the Contracting Officer for review and approval or disapproval a schedule of prices to be charged. On approval of such prices, provides the NAFI representative with a copy of same. The concessionaire shall adhere to such prices. Prices charged must be consistent.

4. The contractor shall keep the machines in proper mechanical working order at all times, makes all necessary repairs, replaces parts, and ensures the machines are properly identified.

The contractor conforms to the requirements of each applicable NAFI as a physical location of machines in use.

SPECIAL PROVISIONS

(MASSAGE THERAPY CONCESSIONAIRE CONTRACT)

1. Additional Definitions. The terms Concessionaire and Contractor are used synonymously and mean the individual, partnership, corporation, or other entity which is a party to this contract and who is responsible for all actions and applicable regulations and performance there under.

2. Termination: Notwithstanding the clause titled "Termination for Convenience" of the General Provisions relative to termination of this Concessionaire contract, it is mutually agreed that this Concessionaire contract may be terminated in whole or in part by either party:

a. Immediately on written notice to the other party in the event of breach of this Concessionaire contract by the other party.

b. On 1-day notice in writing to the other party. No liability ensues to either party for terminations rendered pursuant to this subparagraph b.

3. Actions To Be Taken Upon Termination (Including Expiration). Concessionaire will promptly settle its account with the NAFI, including payment in full of all amounts due, yield up the facilities and all NAFI furnished property, clean and leave premises in as good order and condition as when received (exceptions are damages due to acts of God or the US Government, and ordinary wear and tear); surrender all installation passes, decals, and so forth, and complete satisfactory settlement of all customer complaints and claims. Termination of the Concessionaire contract does not release the Concessionaire from the obligation to satisfactorily settle customer complaints and claims. The Concessionaire will promptly remove all Concessionaire owned fixtures and supplies. On failure to remove the Concessionaire’s property, the Contracting Officer may cause Concessionaire’s property to be removed and stored in a warehouse at the Concessionaire’s expense. If the Concessionaire is indebted to the NAFI, the Concessionaire authorizes and empowers the Contracting Officer to take possession of the Concessionaire’s property and dispose of same by public sale without notice, and out of the proceeds of sale, satisfy all costs and indebtedness to NAFI.

4. Indebtedness:

a. The Concessionaire will pay promptly and in accordance with the terms all indebtedness incurred in connection with the performance of this Concessionaire contract.

b. The NAFI may charge the Concessionaire for a dishonored check received from the Concessionaire, except when the bank acknowledges the return to be the result of bank error or the return is the result of a NAFI error. The amount charged by the NAFI will not exceed the administrative amount normally charged NAFI customers for dishonored checks.

5. Packaging/Price Marking. If required by the Contracting Officer, the Concessionaire will furnish, at its own expense, suitable bags, "sold" labels, and so forth, for securing a customer’s purchase. If required, the packaging will be approved by the Contracting Officer. All items will be marked to reflect the selling price.

6. Claims by Concessionaire. No claim by the Concessionaire relating to this Concessionaire contract may be considered by the Contracting Officer unless such claim is submitted in writing to the Contracting Officer not later than 90 days after the effective date of termination or expiration of this Concessionaire contract. This clause does not extend the period for filing claims where specifically limited by another clause.

7. Nonwaiver of Defaults. Any failure by the NAFI to enforce or require strict performance of any terms or conditions of this Concessionaire contract will not constitute a waiver, and will not affect or impair such terms and conditions in any way or effect the right of the NAFI at any time to avail itself of such remedies as it may have for breach or breaches of such terms and conditions.

8. Trade Fixtures and Supplies. The Concessionaire will furnish, at its expense, all trade fixtures and supplies required for performance of this Concessionaire contract.

9. Quality/Warranty. All products authorized for the Concessionaire to sell will be marketable and sufficient for use intended, and not be "seconds" as the term is usually understood in the trade. All items will be acceptable to the customer and the Contracting Officer and will be subject to inspection and test for workmanship and quality at all times by the Contracting Officer or designee. Any item found to have a latent defect(s) may be returned to the Concessionaire for replacement or refund as determined by the Contracting Officer.

10. Customer Complaints, Claims, and Refunds. The Concessionaire agrees to adhere to the NAFI policy of customer satisfaction guaranteed and will be responsible for refunds to customers due to customer dissatisfaction with an item or due to overcharges. All customer complaints, claims, and refunds will be resolved and made at Concessionaire’s expense. Any disagreement that cannot be resolved between Concessionaire and the customer will be referred to the Contracting Officer, whose decision will be final and not subject to the Disputes clause. If the Concessionaire fails to process complaints or claims and make refunds in a timely manner, the NAFI may settle customer complaints or claims and make such refunds, and charge the settlement cost to Concessionaire’s account.

11. Internal Controls of Charge-Card Sales:

a. Concessionaire will establish internal control procedures consistent with provisions of this Concessionaire contract and with NAFI directives for a complete and accurate accounting of all transactions.

b. Each sale will be recorded at the time sale is made. The form will be prepared in duplicate, reflecting the applicable sales data, and signed by the customer. The original of the completed form is attached to the Concessionaire Settlement Report and submitted to the supporting NAFI accounting office. The duplicate copy is retained by the Concessionaire.

c. Concessionaire may accept national charge cards customarily recognized in their commercial trade for customer payment of purchases. Concessionaire is responsible for the payment of any fees, charge backs, and other arranged costs levied by the charge-card-issuing companies.

d. The Contracting Officer, or designee, may conduct inspections considered necessary to ensure strict compliance by the Concessionaire with all provisions of this Concessionaire contract.

12. Concessionaire Settlement Report. At the conclusion of the sales period or as specified by the Contracting Officer, Concessionaire will prepare a Concessionaire Settlement Report signed by the Concessionaire showing the gross sales for the period and percent due the NAFI, and give the NAFI the fees due for that period. The original of the form reflecting sales data will be attached. AF Form 2555 is the preferred form to be used.

13. Utilities. The NAFI will furnish sufficient quantities of space, heat, water, and electricity to satisfy the normal needs of Concessionaire for lighting, heating, drinking, sanitation, and the operation of suitable support equipment.

NOTE: If the Concessionaire is required to reimburse the United States Government for utilities furnished, then the rates are set by the installation commander and agreed to by both parties.

14. Premises. The assignment of space is revocable and is not construed as the creation of tenancy. Concessionaire is liable for any damage to or loss of the premises and NAFI furnished property or injury to persons resulting from acts or omissions of Concessionaire, its employees, or agents, whether or not covered by insurance. Sublet of any of the premises assigned or assignment to another concession is not authorized. Use of the premises and NAFI furnished property for any purpose other than those specifically set forth herein is prohibited. Concessionaire will not make any alterations in the facilities provided without prior authorization from the NAFI manager. Concessionaire will comply with installation fire and safety regulations, and applicable health and sanitation regulations. Concessionaire will post or display on the premises any sign furnished by the NAFI.

15. Taxes:

a. Concessionaire assumes complete and sole liability for all Federal, State, host country, and local taxes applicable to the property, income, and transactions of the Concessionaire, and where required by applicable laws and regulations, will collect and remit to the State applicable sales taxes. Sales taxes, which have been collected, are excluded from the computation of gross receipts in the determination of the fee payable to NAFI. The amount of taxes excluded will not exceed the actual sum payable to the State. Where required by State law or regulation, the Concessionaire will obtain and conspicuously display the State sales tax permit.

b. The Concessionaire warrants that the amount payable to the NAFI has not been reduced by the amount of any tax or duty from which the Concessionaire is exempt. If any such tax or duty has been included the pricing or consideration through error or otherwise, the contract pricing or consideration will be correspondingly reduced or adjusted. If for any reason after the contract date, the Concessionaire is relieved in whole or in part from the payment or the burden of any tax or duty included in the contract pricing or other consideration, the contract pricing and other consideration will be correspondingly reduced or adjusted.

16. Concessionaire:

a. Shall use the approved Air Force Point of Sale (POS) system for all sales transactions (cash and credit);

b. Will have limited access to the POS Back-of -the-House (BOH) applications and will be limited to one BOH access identification card and will not access to item maintenance or price adjustment in Back Office Security Levels.

c. Employees must use the Employee Security Access Card (ESAC) to access the POS.

d. At the end of the month provide the club manager and the NAF Accounting Office a POS audit report that shows Reopened checks, No Sale Transactions, Refunds, Void and Clear Items.

GENERAL PROVISIONS

l. DEFINITIONS (JAN 2005) - As used throughout this contract, the following terms and abbreviations have the meanings set forth below:

a. The term "contract" means this agreement or order and any modifications hereto.

b. The abbreviation "NAFI" means Nonappropriated Fund Instrumentality of the United States Government.

c. The term "Contracting Officer" means the person executing or responsible for administering this contract on behalf of the NAFI, which is a party hereto, or their successor or successors.

d. The term "Contractor" means the party responsible for providing supplies and/or services at a certain price or rate to the NAFI under this contract.

e. The abbreviation “FAR” means Federal Acquisition Regulation.

2. DISPUTES (NOV 2005)

a. Except as otherwise provided in this contract, any dispute or claim concerning this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall state his decision in writing and mail or otherwise furnish a copy of it to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the Armed Services Board of Contract Appeals, and the decision of the Board shall be final and conclusive; provided that if no such appeal is filed, the decision of the Contracting Officer shall be final and conclusive. The Contractor shall be afforded an opportunity to be heard and to offer evidence in support of any appeal under this clause. Pending final decision on such a dispute, however, the Contractor shall proceed diligently with the performance of the contract and in accordance with the decision of the Contracting Officer unless directed to do otherwise by the Contracting Officer.

b. A claim by the Contractor shall be made in writing and submitted to the Contracting Officer for a written decision. Contractors shall provide the certification specified below when submitting any claim. Any person duly authorized to bind the Contractor with respect to the claim may execute the certification.

“I certify that the claim is made in good faith; that the supporting data is accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which the Contractor believes the Government is liable; and that I am duly authorized to certify on behalf of the Contractor.”

c. This "Disputes" clause does not preclude consideration of law questions in connection with decisions provided for in paragraph "a" above, provided, that nothing in this contract shall be construed as making final the decision of any administrative official, representative, or board on a question of law.

3. LAW GOVERNING CONTRACTS (JAN 2005) - In any dispute arising out of this contract, the decision of which requires consideration of law questions, the rights and obligations of the parties shall be interpreted and determined in accordance with the substantive laws of the United States of America.

4. LEGAL STATUS (JAN 2005) - The NAFI is an integral part of the Department of Defense and is an instrumentality of the United States Government. Therefore, NAFI contracts are United States Government contracts; however, they do not obligate appropriated funds of the United States.

5. EXAMINATION OF RECORDS (JAN 2005) - This clause is applicable under contracts that are entered into by means of negotiation and where price and costing data are required to support a determination of price reasonableness. This clause does not apply to commercial items or when the Contracting Officer determines that prices agreed upon are based on adequate price competition. The Contractor agrees that the Contracting Officer or his duly authorized representative shall have the right to examine and audit the books and records of the Contractor Modified as of 10 Sept 07 directly pertaining to the contract during the period of the contract and until the expiration of three years after the final payment.

6. ASSIGNMENT (JAN 2005) - The Contractor or its assignee’s rights to be paid amounts due as a result of performance of this contract, may be assigned. No assignment by the Contractor, assigning its rights or delegating its obligations under this contract will be effective and binding on the NAFI until the written terms of the assignment have been approved in writing by the Contracting Officer.

7. GRATUITIES (JAN 2005)

a. The NAFI may, by written notice to the Contractor, terminate the right of the Contractor to proceed under this contract if it is found, after notice and hearing, by the Secretary of the Air Force or their duly authorized representative, that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by the Contractor, or any agent, or representative of the Contractor, to any officer or employees of the Government or the NAFI with a view toward securing favorable treatment with respect to the awarding or amending, or the making of any determinations with respect to the performing of such contract.

b. In the event this contract is terminated as provided in paragraph "a" hereof, the NAFI shall be entitled (i) to pursue the same remedies against the Contractor as it could pursue in the event of a breach of contract by the Contractor, and (ii) as a penalty in addition to any other damages to which it may be entitled by law, to exemplary damages in an amount (as determined by the Secretary of the Air Force or their duly authorized representative) which shall be not less than three nor more than ten times the cost incurred by the Contractor in providing any such gratuities to any such officer or employee.

c. The rights and remedies of the NAFI provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.

8. TERMINATION FOR CONVENIENCE (JAN 2005) - The Contracting Officer, by written notice, may terminate this contract, in whole or in part, when it is in the best interest of the NAFI. If this contract is for supplies and is so terminated, the Contractor shall be compensated in accordance with FAR, Sub Parts 49.1 and 49.2 in effect on this contract's date. To the extent that this contract is for services and is so terminated, the NAFI shall be liable only for payment in accordance with the payment provisions of this contract for services rendered prior to the effective date of termination, providing there are no Contractor claims covering nonrecurring costs for capital investment. If there are any such Contractor claims, they shall be settled in accordance with FAR, Sub Parts 49.1 and 49.2.

9. CANCELLATION BY MUTUAL AGREEMENT (JAN 2005) - Should the situation warrant, the parties upon mutual agreement and no costs, may cancel this contract.

10. TERMINATION FOR CAUSE (JAN 2005)

a. (1) The NAFI may, subject to paragraphs (c) and (d) below, by written notice of cause to the Contractor, terminate this contract in whole or in part if the Contractor fails to-

(i) Deliver the supplies or perform the service within the time specified within this contract or any Extension;

(ii) Make progress, so as to endanger performance of this contract (but see subparagraph (a)(2) below);or

(iii) Perform any of the other provisions of this contract (but see subparagraph (a)(2) below).

(2) The NAFI's right to terminate this contract under subdivisions (1)(ii) and (1)(iii) above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of notice from the Contracting Officer specifying the failure. Modified as of 10 Sept 07

b. If the NAFI terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will remain liable to the NAFI for any excess costs for those supplies or services. However the Contractor must continue the work not terminated.

c. The Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include (1) acts of God or of the public enemy, (2) act of the NAFI in either its sovereign or contractual capacity, (3) fires, (4) floods, (5) epidemics, (6) quarantine restrictions, (7) strikes, (8) freight embargoes, and; (9) unusually severe weather. Defaults by subcontractors at any tier for any reason do not constitute causes beyond the control and without the fault or negligence of the Contractor.

d. If this contract is terminated for cause, the NAFI may require the Contractor to transfer title and deliver to the NAFI as directed by the Contracting Officer, any

(1) completed supplies, and

(2) partially completed supplies and materials, parts, tool dies, jigs, fixtures, plans, drawings, information, and contract rights (collectively referred to as manufacturing materials in the clause) that the Contractor has specifically produced or acquired for the terminated portion of this contract. Upon direction of the Contracting Officer, the Contractor shall also protect and preserve property in its possession in which the NAFI has an interest.

e. The NAFI shall pay the contract price for completed supplies delivered and accepted. The Contractor and Contracting Officer shall agree on the amount of payment for manufacturing materials delivered and accepted and for the protection and preservation of the property. Failure to agree will be a dispute under the Disputes Clause. The NAFI may withhold from these amounts any sum the Contracting Officer determines to be necessary to protect the NAFI against loss because of outstanding liens or claims of former lien holders.

f. If, after termination, it is determined that the cause by the Contractor was excusable, the rights and obligations of the parties shall be the same as if the termination had been issued for convenience of the NAFI.

g. The rights and remedies of the NAFI in this clause are in addition to any other rights and remedies provided by law or under this contract.

11. INSPECTION AND ACCEPTANCE (JAN 2005) - Inspection and acceptance will be at destination, unless otherwise provided in this contract. Not withstanding the requirements for any NAFI inspection and test contained in specifications applicable to this contract, except where specialized inspections or tests are specified for performance solely by the NAFI, the Contractor, shall perform or have performed the inspections and tests required to substantiate that the supplies provided under the contract conform to the drawings, specifications, and contract requirements listed herein, including if applicable the technical requirements for the manufacturers' part numbers specified herein. The Contractor shall only tender for acceptance those items that conform to the requirements of this contract. The Government reserves the right to inspect or test any supplies or services that have been tendered for acceptance. The Government may require repair or replacement of nonconforming supplies or reperformance of nonconforming services at no increase in contract price. Acceptance of the supplies or services or a written notice of rejections must be accomplished on or before the fifth working day following delivery of the supplies or services, unless otherwise specified in this contract.

12. VARIATION IN QUANTITY (JAN 2005) - No variation in quantity of any item called for by this contract will be accepted unless authorized by the Contracting Officer.

13. PARTIAL DELIVERIES (JAN 2005) - Partial deliveries are not permitted unless authorized by the terms of the contract or approved by the Contracting Officer.

14. PAYMENTS (JAN 2005) - Partial payments will be made when deliveries are authorized or as approved by the Contracting Officer. Payments and penalties for late payments are subject to the requirements established by the Prompt Payment Act, as amended, and as implemented for NAFI's. If the NAFI makes payment but such payment Modified as of 10 Sept 07 fails to include a prompt payment penalty due to the Contractor within 10 days from when the contract payment is made, penalty amounts will not be paid unless the Contractor makes a written request within forty days after the date of payment.

15. HOLD AND SAVE HARMLESS (JAN 2005) - The Contractor shall indemnify, hold and save harmless, and defend the NAFI, its outlets and customers from any liability, claimed or established for violation or infringement of any patent, copyright, or trademark right asserted by any third party with respect to goods hereby ordered or any part thereof. Contractor further agrees to hold the NAFI harmless from all claims or judgments for damages resulting from the use of products or services listed in this contract, except for such claims or damages caused by, or resulting from negligence of NAFI customers, employees, agents, or representatives. Also, Contractor shall at all times hold and save harmless the NAFI, its agents, representatives, and employees from any and all suits, claims, charges, and expenses which arise out of acts or omissions of Contractor, its agents, representatives, or employees.

16. MODIFICATIONS (JAN 2005) - No agreement or understanding to modify this contract will be binding upon the NAFI unless made in writing and signed by a Contracting Officer from the office that issued the contract or its successor.

17. TAXES (JAN 2005)

a.…