EXHIBIT 10.23
AGREEMENT FOR FOOD SERVICES
This Agreement, made this 30th day of September, 1999, by and between
TRUMPF, INC., 00 Xxxx Xxxx, Xxxxxxxxxx, XX 00000 (hereinafter referred to
as TRUMPF) and HOST AMERICA CORPORATION, located at Two Xxxxxxxx, Xxxxxx,
XX 00000-0000 (hereinafter referred to as HOST) for the provision of
cafeteria, catering, vending and office coffee refreshment food service.
WITNESSETH
In consideration of the covenants herein and intending to be legally bound
hereby, the parties mutually agree as follows:
TRUMPF hereby grants to HOST, the exclusive right to operate the cafeteria,
vending office coffee, and refreshment food services at or upon TRUMPF
premises and the non-exclusive right to provide catering services. HOST
will install vending machines as shall be mutually agreed upon, and will
keep such equipment and machines adequately serviced and supplied with
appropriate merchandise of good quality and in good working order.
LOCATION OF EQUIPMENT: The location of all manual and vending equipment
and other facilities to be supplied by HOST shall be mutually agreed upon.
Any moves of Host vending or other equipment necessitated by growth or
building rearrangements by TRUMPF will be performed by HOST under
conditions to be mutually agreed upon as the occasion arises. HOST shall
make no alterations in the Premises unless authorized by TRUMPF in writing.
OWNERSHIP OF EQUIPMENT: TRUMPF will furnish to HOST, without charge, food
preparation and cafeteria areas, and adequate sanitary toilet facilities,
including dining room furniture and food storage areas, owned by TRUMPF and
to be used in connection with the food service. Any property furnished by
TRUMPF shall remain the property of TRUMPF at all times. HOST will provide
all other equipment necessary for providing services hereunder. All such
and other equipment supplemental to the services that have
been supplied by HOST shall remain HOST property at all times. TRUMPF will
take reasonable precautions to protect said equipment from damage and will
permit HOST to remove said equipment upon termination of this Agreement or
upon termination of any renewal thereof.
MAINTENANCE AND EQUIPMENT: The division of responsibility between TRUMPF
and HOST is hereafter provided.
TRUMPF will be responsible for:
a) cleaning of the dining area floors, for the day-to-day cleaning of the
dining area, (other than tables and chairs) and for the cleanliness of
walls, ceilings, windows and light fistures;
b) furnishing trash dumpsters in locations designated by TRUMPF
c) furnishing exterminator services, semiannual cleaning of hoods, ducts
and filters; and
d) furnishing maintenance services if and when required for the proper
maintenance and repairs of said premises, fixtures, furniture and
TRUMPF owned equipment, and replacing said equipment when mutually
agreed upon, except in those cases where the necessity for replacement
is caused through the negligence of HOST employees.
e) furnishing the following equipment at the Technical Center:
1. 2-door reach-in freezer
2. 2-door reach-in refrigerator
3. Storage room with shelving (minimum requirement of 150 sq.ft.)
4. Office space for desk & chair, telephone and computer.
As a cost of operation, HOST will be responsible for:
a) keeping said premises, furniture, fixtures and manual food service
equipment and vending machines in a clean and sanitary condition in
accordance with recognized standards for such equipment and in accordance
with all laws, ordinances, regulations and rules of federal, state and
local authorities;
b) routine cleaning of the kitchen, cold storage areas and counter
areas, storing and preparing serving and disposing of all food and food
stuffs in a clean and sanitary
2
manner, in accordance with all recognized standards for such activities and
in accordance with all laws, ordinances, regulations and rules of federal,
state and local authorities.
c) laundry service for kitchen linens (uniforms, kitchen cleaning
cloths, etc.),
d) purchasing of all food and supplies at normal wholesale or trade prices;
e) routine daily cleaning of the dining room tables and chairs,
f) repairing of vending machines; replacing vending equipment as required;
g) delivering kitchen and dining center trash to designated dumpster sites.
MENUS: HOST will post menus, complete with prices, and all menus will be
nutritionally acceptable to TRUMPF.
HOURS OF OPERATION:
CATERING: HOST, on request, will cater functions for TRUMPF upon reasonable
advance notice at prices and terms as are mutually acceptable to the
parties. TRUMPF will be responsible for any charges made by third parties
at TRUMPF'S facility for catering functions performed, and HOST will
invoice TRUMPF for any such charges.
LICENSES AND PERMITS: HOST shall obtain, as a cost of operation prior to
commencing operations at TRUMPF premises and maintain throughout the term
of this Agreement and any renewal thereof, all necessary permits, licenses
and other approvals required by law for its operation hereunder. HOST
expects to begin operations on December 9, 1999. TRUMPF agrees to
cooperate with HOST and to execute such documents as shall be reasonably
necessary or appropriate for HOST, to obtain said permits, licenses and
approvals.
UTILITIES: TRUMPF shall, at its expense, provide HOST with necessary and
sufficient refrigeration, freezer space, heat, light, water, gas,
electricity, and an extension telephone. Also, TRUMPF shall furnish HOST
with the availability for a computer modem, for the operations of the
dining food service in the cafeteria and kitchen area.
3
RECORDS: HOST, will at all times maintain an accurate record of all
merchandise inventories, sales, revenues, taxes, and operational expenses,
in connection with the operation of the manual food service. HOST shall
keep all such records on file for a period of seven years, and HOST shall
give TRUMPF employees and its agents the privilege, at any reasonable time,
of auditing its records. All sales, for the purpose of this Agreement, are
defined as cash collections less applicable federal, state and local taxes,
which HOST has the sole responsibility to collect, report and pay to the
taxing authorities. If any such audit by TRUMPF reveals any deficiency
amount paid by TRUMPF pursuant to Contract Addendum A was in excess of the
amount actually due, then HOST shall promptly reimburse TRUMPF for the
overpayment.
INSURANCE: HOST shall procure and maintain, during the period of the
contract, the insurance described in the following sub-paragraphs.
Insurance shall be with companies qualified to do business in Connecticut
acceptable to TRUMPF, and written on the standard approved comprehensive
General Liability Policy form. HOST shall furnish TRUMPF with certificates
showing that such insurance is in effect. The policies will include a
clause stating that the insurance will not be cancelled or reduced until at
least thirty (30) days prior notice is sent to TRUMPF by the insurance
company or agent. Such notice is to be sent by registered mail. HOST will
also provide worker's compensation insurance for its employees and all
other insurance, if any, as may be required by law.
All liability insurance policies shall name TRUMPF and its subsidiaries,
affiliates, and their respective officers, agents and employees as
additional named insured, and shall include a severability of interest
clause with respect to claims, demands, suits, judgements, costs, charges
and expenses arising out of, or in connection with any loss, damage, or
injury resulting from the negligence or other fault of HOST, HOST'S agents,
representatives, and employees. HOST shall furnish certificates of
insurance to TRUMPF in the following minimum limits prior to execution of
this contract and prior to the expiration of any policy with a certificate
evidencing its renewal.
WORKER'S COMPENSATION INSURANCE as required by statute.
4
EMPLOYER'S LIABILITY INSURANCE with a limit of not less than $1,000,000.
UMBRELLA LIABILITY INSURANCE with a limit of not less than $5,000,000.
LIQUOR LIABILITY INSURANCE of $1,000,000.
COMPREHENSIVE COMMERCIAL GENERAL LIABILITY INSURANCE including broad
form vendors coverage with limits of $2,000,000 each person and $2,000,000
each occurrence as respects personal injury, including death, and
$1,000,000 as respects property damage for:
1. Premises, Equipment and Operations
2. Products and completed operations
3. Contractual liability for the liability assumed by TRUMPF
COMPREHENSIVE AUTOMOBILE LIABILITY INSURANCE with limits of $1,000,000 per
person and $1,000,000 per occurrence for personal injury, including death
and $1,000,000 per occurrence for property damage each occurrence as
respects property damage for all owned, non-owned and hired vehicles, used
by HOST while performing operations in connection with this contract.
INDEMNIFICATION: HOST agrees to defend, indemnify, and hold TRUMPF
harmless from and against any and all claims (including costs of litigation
and attorney's fees) for personal injury including death or damage to
property arising out of or in connection with the HOST'S performance under
this Agreement.
BINDING EFFECT: This Agreement will be binding upon will inure to the
benefit of the parties hereto and their respective successors, assigns and
representatives.
PERSONNEL POLICIES: All food and vending service employees will be HOST
employees and on HOST payroll. All persons employed by HOST at TRUMPF
premises shall be in uniform at all times, except vending subcontractors
who will service vending machines in behalf of HOST. Said vendors include
American Food and Vending, Pepsi Cola, and such other vendors as may be
required. HOST employees shall comply with all
5
applicable laws, rules and regulations at any time promulgated by TRUMPF
for the safe, orderly and efficient conduct of all activities being carried
out while on TRUMPF premises.
HOST shall not retain at the premises any employee not acceptable to TRUMPF
for any reason. If TRUMPF objects to the continued employment of any HOST
employee, it shall notify HOST in writing, stating the reason for its
objections.
TRUMPF will allow employees and agents of HOST access to service areas and
equipment at all reasonable times, but such employees shall not be entitled
to access any other TRUMPF premises. HOST, in performing work by this
Agreement, shall not discriminate against any employee or applicant for
employment because of race, color, creed, national origin, age, sex or
disability. HOST employment policies meet the requirements of the Fair
Labor Standards Act and all other regulations required by the United States
Department of Labor. HOST is and at all times will continue to be an equal
opportunity employer.
ACCOUNTING: HOST will keep records by accounting periods with each month
ending on the last Friday of the month. HOST will xxxx XXXXXX monthly for
sums due under contract Addendum A. Any statement rendered is due and
payable within 30 days after receipt. Accounts that are more than 30 days
in arrears, are subject to late charges. Interest will be added at the
rate of 1.5% per month on past due accounts.
FINANCIAL CONSIDERATION: TRUMPF agrees to reimburse HOST in accordance with
the Contract Addendum A (attached). HOST shall be responsible for all
costs of operation of the food services described herein, and wages,
salaries and benefits of its employees engaged to provide such services.
In addition, HOST shall charge any applicable sales tax to all that
purchase food from HOST, and shall be responsible for timely remittance of
such taxes to the proper authorities.
ADJUSTMENT OF FINANCIAL ARRANGEMENT: In the event of material cost changes
(whether taxes, labor, merchandise or equipment), it is understood that
6
commensurate adjustments in selling prices or other financial arrangements
between HOST and TRUMPF may be agreed upon in writing and effected by
appropriate officials of the parties. All obligations hereunder are
subject to federal, state and local regulations. In the event the building
or said premises, or any facility in which HOST equipment and machines are
located, are partially or completely damaged by fire, the elements, the
public enemy, or any other casualty, and if HOST is prevented from
operating hereunder because of such damage or because of riots, strikes,
lockouts, or labor difficulties at TRUMPF, the same shall not be considered
as a default under the provisions of this Agreement. In the event of any
such interruptions, there shall be an equitable adjustment of the amounts
payable by TRUMPF hereunder.
CONFIDENTIAL INFORMATION: Certain proprietary materials including recipes,
signage, surveys, management procedures, and similar information regularly
used in HOST'S operations shall be confidential information. TRUMPF will
not disclose any confidential information, directly or indirectly, during
or after the term of Agreement. TRUMPF will not photocopy or otherwise
duplicate any such materials without HOST'S written consent. All
confidential information will remain HOST'S exclusive property and will be
returned to HOST immediately upon termination of this Agreement.
COMMENCEMENT AND TERMINATION: This Agreement shall become effective on or
about Wednesday, November 3, 1999, and shall remain in force for one (1)
year unless terminated as herein provided. Thereafter, the Contract shall
automatically renew for one (2) year increment unless terminated by either
party as provided below. HOST may terminate the contract without cause,
first having given one hundred twenty (120) days written notice to TRUMPF,
of intention to do so. TRUMPF may terminate the contract without cause by
giving HOST thirty (30) days written notice of its intention to do so.
Upon any such termination, the occupancy of TRUMPF's premises shall end and
HOST agrees to waive any claim for damages, including loss of anticipated
income. In the event that either party defaults or fails to observe the
provisions of the contract and the agreement contained herein on its part
to be performed, the aggrieved party may give
7
notice, in writing, of intention to terminate the contract. The party at
fault will have ten (10) days to remedy the breach. If not remedied, the
contract may be terminated thirty (30) days from the date of the original
notification of default. Upon such termination, the occupancy of TRUMPF'S
Premises shall end and HOST agrees to waive any claim for damages,
including loss of anticipated income.
HOST shall restore the facilities, equipment, and other items furnished by
TRUMPF in the condition in which received, reasonable wear and tear
accepted. HOST shall be responsible for all losses and damages to TRUMPF
facilities resulting from HOST'S default, failure, or negligence during the
term of contract. Any notice to be given hereunder shall, if to HOST, be
sent to Xxxxxxxx Xxxxxx, President, Host America Corporation, Two Xxxxxxxx,
Xxxxxx, XX 00000-0000, by registered mail; and, if to TRUMPF be sent to,
Xxxx Xxxxxxxxxx, Purchasing Manager, Trumpf, Inc, 00 Xxxx Xxxx Xxxxxxxxxx,
XX 00000, by registered mail.
STATE LAW DEFINITION: The provisions of this Agreement shall be construed
under the laws of the State of Connecticut.
In witness whereof, the parties have executed this Agreement as of the date
first above written.
TRUMPF, INC.
By /s/ XXXX XXXXXXXXXX 11/12/99
---------------------
Xxxx Xxxxxxxxxx,
Purchasing Manager
duly authorized
HOST AMERICA CORPORATION
By /s/ XXXXXXXX XXXXXX 11/15/99
---------------------
Xxxxxxxx Xxxxxx
President
duly authorized
8
