APPENDIX B
OPERATING AGREEMENT
THIS AGREEMENT entered into this _________ day of ______________, _____ by and between the NEW MEXICO COMMISSION FOR THE BLIND (State Licensing Agency), hereinafter referred to as the COMMISSION and ________________________________, licensed by the commission as a licensed manager under the Randolph-Sheppard Program, hereinafter referred to as MANAGER, WITNESSETH:
WHEREAS, the commission has been granted a permit by ____________________________________________ for the operation of a vending facility by a licensed blind manager under the Randolph-Sheppard Program hereinafter referred to as PERMIT on the property located at ___________________________________________________
____________________________________________________________________________________________________________________________________________________________________, a copy of which permit is attached hereto and made a part hereof; and
WHEREAS, the commission has offered the Manager the opportunity to operate the vending facility under the terms and conditions hereinafter set forth; and
WHEREAS, the Manager has agreed to undertake the operation of the vending facility under the terms and conditions hereinafter set forth; and
WHEREAS, the parties do not intend to derogate in any way from responsibilities and rights imposed and granted by applicable Federal, State, or local laws or regulations by this agreement;
NOW, THEREFORE, in consideration of the premises, it is mutually agreed as follows:
A. RESPONSIBILITIES OF THE COMMISSION:1. The commission will equip the vending facility for carrying out the business authorized by the permit.2. The commission will furnish initial stocks of merchandise and petty cash sufficient to enable the Manager to commence operating the business authorized by the permit. The commission will also furnish the Manager with a complete inventory of all equipment, initial stock, and petty cash provided.3. The commission will maintain the equipment at the vending facility in good repair, and will replace obsolete and worn out equipment as necessary.4. The commission will provide for substitute operation of the vending facility as may be necessitated by the Manager's absence because of an emergency. The salary of the person who substitutes for the Manager, or that of other emergency help, shall be charged to the vending facility where the service is performed.5. The commission will provide, or will provide for, supervisory and management services necessary for the efficient operation of the vending facility.B. RESPONSIBILITIES OF THE LICENSED MANAGER: 1. The Manager will be responsible for having the vending facility open for business on the days and during the hours specified in the permit.2. The Manager will operate the vending facility business on a cash basis except for such credit accounts as may be established or authorized by the commission.3. The Manager will be accountable to the commission for the proceeds of the business of the vending facility, and will handle the proceeds, including payments to suppliers and deposits of funds, in accordance with instructions from the commission.4. The Manager will carry on the business of the vending facility in compliance with applicable health laws and regulations.5. The Manager will take proper care of the equipment of the vending facility, and will make alterations or changes therein only with the written approval of the commission.6. The Manager will notify the commission a reasonable time in advance of taking any voluntary leave from the vending facility, and as soon as possible with respect to any involuntary leave.7. The Manager will keep such records and make such reports as the SLA shall require.8. Proper professional attire and hygiene will be evidenced at all times.9. Appropriate professional behavior towards Property Management, employees, customers and SLA will be expected at all times.C. GENERAL: 1. The business to be carried on at the vending facility will be limited to that specified and authorized in the permit.2. The right, title, and interest in and to the equipment of the vending facility, the stock in trade, and funds on hand are vested in the commission, and will be left at the vending facility or turned over to the commission on the termination of this agreement for any reason by either of the parties. In such an event the fair market value of the Manager's interest will be determined by the commission and paid to the Manager or to the Manager's heirs or assignees.3. The monthly income of the Manager shall be the net profits of the business of the vending facility for the period in question, less the funds which must be set aside, as established in writing by the commission pursuant to 34 CFR 395.9. The net profits will be augmented by an amount necessary to bring the monthly income up to the fair minimum return.4. Rebates, commissions, vending machine income disbursed by the SLA to the Manager, or bonuses received by the Manager from suppliers are, and must be accounted for as, income of the vending facility and subject to the set-aside fee. Under no circumstances are such funds to be treated as the separate, personal funds of the Manager.5. Merchandise taken from the stock in trade of the vending facility by the Manager for his own use shall be accounted for by the Manager and paid for at cost price.6. The business and premises of the vending facility shall be covered by general liability insurance, fire and theft insurance and any such other insurance as will protect the Manager, anyone employed by the Manager, and the commission, against losses and claims arising out of the conduct of the business of the vending facility. Should the commission be unable to provide liability insurance through the set-aside funds, reasonable notice will be provided to the licensed managers and they will be responsible for the insurance until further notification.7. The commission, through its personnel or agents, shall have the right to access the business records of the Manager upon reasonable notice to the Manager.8. The commission shall have the right to observe the operation of the Manager including participation in daily cash counts for the purpose of determining the Manager's compliance with SLA rules and regulations and the accuracy of the Manager's reporting as well as to evaluate the potential of the location for future Managers.9. This agreement may be terminated at any time by the Manager. It shall be terminated upon the revocation or termination of the permit or contract. In addition, it may be terminated by the commission if the business of the vending facility is not conducted in accordance with this agreement, the terms and conditions of the SLA Permit with the Property Managers, the BEP Rules and Regulations or with applicable Federal, State, or local laws and regulations.10. Upon execution and dating of this agreement by the commission and the Manager, it is understood that this agreement shall supersede and nullify any prior agreement between the commission and the Manager with respect to the operation of a vending facility.11. Other terms and conditions as listed on Attachment A.Date: _______________ by________________________________
Executive director
Date: _______________ by________________________________
BEP Staff
Date: _______________ by________________________________
Licensed Manager
Date: _______________ by________________________________
Witness
Appendix B, Page 4
Attachment A: Other Terms and Conditions
N.M. Admin. Code § 9.4.5.40
4/15/97; Recompiled 10/01/01