Exhibit 10.39
AGREEMENT FOR FOOD SERVICES
This Agreement, made this 29th day of October, 2001, by and between Xxxx
Merchandise Corporation. 0000 Xxxx Xxxxxx, Xxxxx Xxxx, XX 00000
(hereinafter referred to as XXXX), and Host America Corporation, located at
Two Xxxxxxxx, Xxxxxx, XX 00000 (hereinafter referred to as HOST) for the
provision of cafeteria, catering, vending, and office coffee service at
0000 Xxxx Xxxxxx, Xxxxx Xxxx, XX.
WITNESSETH
In consideration of the covenants herein and intending to be legally bound
hereby, the parties mutually agree as follows:
XXXX hereby grants to HOST, an independent contractor, the exclusive rights
and privileges to provide nutritious quality food service in the cafeteria,
vending and office coffee service and the non-exclusive right to provide
special catered events according to XXXX'X requirements and needs.
LOCATION OF EQUIPMENT: The location of other equipment necessitated by
growth or building rearrangements by XXXX will be accomplished by HOST
under conditions to be mutually agreed upon as the occasion arises. HOST
shall make no alterations to the premise unless authorized by XXXX in
writing. Refer to Addendum B.
OWNERSHIP OF EQUIPMENT: It is understood that any equipment supplemental to
the services that have been supplied by HOST shall remain HOST'S property
at all times. XXXX will also take reasonable precautions to protect said
machines and equipment from damage and will permit HOST to remove them upon
termination of this Agreement. XXXX 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 XXXX and to be used in connection with the food service. XXXX will also
furnish to HOST an extension telephone, with appropriate connections for a
computer modem.
MAINTENANCE AND EQUIPMENT: The division of responsibility between XXXX and
HOST is hereafter provided.
XXXX will be responsible for:
a) cleaning of the dining area floors, for the day-to-day cleaning of the
dining area, and for the cleanliness of walls, ceilings, windows and
light fixtures;
b) removal of all trash and garbage;
c) furnishing exterminator services, semiannual cleaning of hoods, ducts,
filters and grease traps;
d) furnishing maintenance services if and when equipped for the proper
maintenance and repairs of said XXXX'X premises, fixtures, furniture
and equipment and replacing equipment as is mutually agreed to be
necessary, except in those cases
where the necessity for replacement is caused through the negligence
of HOST employees (in which case HOST shall be fully responsible for
such replacement.
As a cost of operation, HOST will be responsible for:
a) keeping the serving line, kitchen, fixtures and manual food service
equipment such as grills, stoves, fryer, ovens, refrigerators,
freezers and like equipment 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, prep areas, including windows and
blinds, cold storage areas and counter areas,
c) laundry service for kitchen linens (uniforms, kitchen cleaning cloths,
etc.),
d) purchasing of all food and supplies, and
e) routine daily cleaning of the dining room tables and chairs.
MENUS: HOST will post menus, complete with prices, and all menus will be
nutritionally acceptable with reasonable daily variety. HOST will cater
special functions for XXXX (not more than 15 people) upon at least two (2)
hours advance notice. HOST will cater special function for XXXX (more than
fifteen (15) people) as requested, at prices mutually agreed upon and upon
at least 72 hours advance notice.
LICENSES AND PERMITS: HOST shall obtain, as a cost of operation prior to
commencing operations at XXXX'X premises, all necessary permits, licenses
and other approvals required by law for its operation hereunder. HOST
expects to begin operation on Monday, December 3, 2001. XXXX agrees to
cooperate with HOST and to execute such documents as shall be reasonably
necessary or appropriate to obtain said permits, licenses and approvals.
UTILITIES: XXXX shall, at its expense, provide HOST with necessary and
sufficient refrigeration, freezer space, heat, light, water, and
electricity for the operations of manual services as mutually deemed
required by HOST and XXXX.
RECORDS: HOST will at all times maintain an accurate record including a
daily head count for lunch of all XXXX employees and include it in their
monthly reporting. HOST will also keep inventories of all merchandise and
sales in connection with the operation of the manual food service. HOST
shall keep all such records on file for a period of three years, and HOST
shall give XXXX 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
for which HOST has the sole responsibility to collect, report and pay to
the taxing authorities.
INSURANCE: During the term of this Agreement, HOST will provide and
maintain, with an insurance carrier licensed to do business in the States
of Connecticut and New Hampshire, not less than $2 Million worth of general
liability, automobile and excess liability insurance. HOST will also
provide a $10 Million umbrella policy in excess of the $2 Million policy.
XXXX will be a named insured under each such policy and will
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receive not less than thirty (30) days notice of any termination or
modification of such policies directly from the provider. HOST will
provide XXXX with documentation evidencing its compliance (and continued
compliance with this Section) upon request by XXXX. HOST will indemnify
and hold XXXX, its employees, guests, visitors and tenants, their
employees, guests, visitors, customers and clients harmless from any and
all loss, damage or liability arising directly or indirectly out of HOST'S
operation under this Agreement. This includes operation of the equipment
and acts of omission or negligence of HOST'S employees, contractors or
agents when engaged in operations under the Agreement.
BINDING EFFECT: This Agreement will be binding upon and will inure to the
benefit of the parties hereto and their respective successors, assigns ands
representatives.
PERSONNEL POLICIES: All food service employees will be on HOST'S payroll
and shall be the employees of HOST. All persons employed by HOST at XXXX'x
premises shall be in uniform at all times. HOST employees shall comply
with the rules and regulation at any time promulgated by XXXX for the safe,
orderly and efficient conduct of all activities being carried out while on
XXXX'x premises. HOST shall not retain at the premises any employee not
acceptable to XXXX for any reason. XXXX will allow employees and agents of
HOST access to service areas and equipment at reasonable times. 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's employment policies meet
the requirements of the Fair Labor Act and all other regulations required
by the United States Department of Labor. HOST is an equal opportunity
employer.
ACCOUNTING: HOST keeps records by accounting periods, based on a twelve
(12) period fiscal year, ending the last week of June. HOST will receive
payment by the 10th of the month proceeding each month of operation.
Payment will be as defined by the Financial Pro Forma. HOST will submit
financial statements reflecting the actual sales and fees within thirty
(30) days proceeding each month of operation. A "truing up" of actual vs.
pro forma, including reasonable supporting documentation, will be provided
by HOST at the end of each quarter. In the event the actual costs, for the
given period of review, are less than the pro forma, XXXX shall receive a
credit. Credit shall be applied towards the proceeding period. Accounts,
which 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: XXXX agrees to compensate HOST in accordance with
the Financial 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 remittance of such
taxes to the proper authorities.
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ADJUSTMENT OF FINANCIAL ARRANGEMENT: In the event of material cost changes
(whether taxes, labor, merchandise or equipment), it is understood that
commensurate adjustments in selling prices or other financial arrangements
between HOST and XXXX shall be agreed upon and effected by appropriate
officials of the parties. Accompanying any request for changes in selling
prices or financial arrangements, HOST shall provide XXXX with written
documentation of said material cost changes necessitating the change. All
obligations hereunder are subject to federal, state, and local regulations.
In the event the building in which HOST'S equipment and machines are
located, are partially or completely damaged by fire, the public enemy, or
any such riots, labor troubles or disturbances, the same shall not be
considered as a default under the provisions of the Agreement.
CONFIDENTIAL INFORMATION: Certain proprietary materials including recipes,
signage, surveys, management procedures, and similar information regularly
used in HOST'S operations shall be confidential information. XXXX will not
disclose any confidential information, directly or indirectly, during or
after the term of Agreement. XXXX 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 October, 29, 2001, and shall remain in force for one (1) year. It is
automatically renewable annually unless notice of termination is herein
provided in writing by registered mail, at least sixty (60) days prior to
the termination. XXXX may terminate this Agreement for any material breach
by HOST of its obligations hereunder by providing written notice of
termination to HOST. If HOST fails to cure the breach within thirty (30)
days from the date of such notification this Agreement shall terminate upon
the expiration of such thirty- (30) day period.
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 XXXX be sent to Xx. Xxx Xxxxxxx,
Xxxx Merchandise Corporation, 0000 Xxxx Xxxxxx, Xxxxx Xxxx, XX 00000.
ASSIGNMENT: This Agreement shall be binding upon, and shall inure to the
benefit of, the parties hereto and their respective successors and
permitted assigns. In the event that a third party acquires HOST or XXXX
this Agreement may not be automatically assigned to the third party without
the prior written consent of either party.
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STATE LAW DEFINITION: The provisions of this Agreement shall be construed
and enforced under the laws of the State of Connecticut.
In witness whereof, the parties have executed this Agreement as of the date
first above written.
ATTEST: Xxxx Merchandise Corporation
______________________ By ___________________________
Xxxx XxXxxxxx
Vice President
duly authorized
ATTEST: Host America Corporation
______________________ By ___________________________
Xxxxxxxx Xxxxxx
President
duly authorized
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