EXHIBIT 10.16
FOOD SERVICES AGREEMENT
This FOOD SERVICES AGREEMENT is made as of the 20th day of August,
1999, by and between THE XXXXXXX WORKS, a Connecticut corporation having
its principal place of business at 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxxx (hereinafter referred to as "Xxxxxxx") and HOST AMERICA
CORPORATION, a Delaware corporation having its principal place of business
at Two Broadway, Hamden, Connecticut (hereinafter referred to as "Host").
W I T N E S S E T H:
WHEREAS, on or about April 14, 1999, Xxxxxxx issued a Request for
Proposal (the "RFP") seeking competitive proposals for the management and
provision of certain food service and food vending operations at certain of
Xxxxxxx'x office and manufacturing facilities located in New Britain and
Farmington, Connecticut and in East Greenwich, Rhode Island;
WHEREAS, Host is engaged in the food services management and provision
business and, on May 14, 1999, responded to the RFP (the "Host Proposal");
and
WHEREAS, in reliance upon the representations made in the Host
Proposal, Xxxxxxx desires to engage Host to manage and provide various food
services and food vending operations at certain of Xxxxxxx'x facilities in
accordance with the terms and provisions hereof.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto hereby agree as follows:
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SECTION 1. CAFETERIA SERVICES.
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1.1 GENERAL.
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During the term hereof and for the purposes provided herein, Host
shall manage and operate (at its sole cost and expense) each of Xxxxxxx'x
full-service employee cafeterias designated as "Cafeteria Services
Locations" in EXHIBIT A attached hereto and made a part hereof. In
connection therewith, Host shall provide all food (to be prepared fresh
daily), beverages, personnel, and supplies necessary to prepare and serve
a variety of hot and cold food and beverages for retail sale to Xxxxxxx
employees, and Host shall maintain the cleanliness of each such Cafeteria
Services Location (including washing on a regular basis all silverware,
dishes, and food handling and cooking equipment), as more specifically set
forth in this Section 1, and Section 8, 9 and 10 of this Agreement (the
"Cafeteria Services"). All locations identified in EXHIBIT A including,
without limitation, the Cafeteria Services Locations, are subject to change
or termination, in Xxxxxxx'x sole discretion. Xxxxxxx shall endeavor to
give Host prompt notice of any such change or termination, but any such
change or termination shall not affect the payment terms hereof.
1.2 HOURS OF OPERATION.
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Host shall operate each Cafeteria Services Location in a professional
and first-class manner so as to provide food and beverages for retail sale,
on a cash or authorized charge basis, to Xxxxxxx employees, guests, and
invitees for the meals and during the hours and on the days set forth in
EXHIBIT B attached hereto and made a part hereof. With respect to
authorized charges, Xxxxxxx shall provide Host with a list containing the
names of those individuals who are authorized, with respect to each
Cafeteria Services Location, to purchase items by means of a charge.
Xxxxxxx shall thereafter reimburse Host, on a monthly basis, for all such
charges by authorized persons. In no event
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however, shall Xxxxxxx be required to reimburse Host for any charges made
by any person not so authorized. Host shall take any and all steps
necessary to ensure that there is a sufficient quantity and variety of food
and beverages, which shall be freshly prepared by Host on a daily basis at
the Cafeteria Services Locations, available to adequately service the needs
of the population designated for each Cafeteria Services Location described
in EXHIBIT B.
1.3 MENUS.
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Host shall be responsible for continuously developing menus for the
Cafeteria Services Locations that provide a variety of high quality and
nutritious hot and cold foods and beverages that are acceptable to Xxxxxxx.
Such menus should, at a minimum, (i) be innovative, emphasizing variety,
nutrition, and quality; (ii) meet the needs of a broad cross-section of
Xxxxxxx employees; (iii) be responsive to changing meal trends and portion
preferences; and (iv) be developed bearing anticipated staffing levels and
existing food preparation equipment in mind, unless Host plans to supply
such additional equipment as may be necessary. Host shall initially
establish a two week menu cycle and shall thereafter change that cycle on
a regular basis with such frequency as Xxxxxxx shall request. Prior to
implementing any new menu, Host shall submit such menu to Xxxxxxx for
Xxxxxxx'x approval. Host shall provide daily as standard menu items in the
Cafeteria Services Locations the following standard food choices: deli
sandwiches, soups, fresh fruit, a variety of salads, and grill items such
as hamburgers, hot dogs, and grilled cheese. Host shall post all menus in
a conspicuous location at each Cafeteria Services Location and at any and
all other locations as Xxxxxxx may designate from time to time at least one
(1) week prior to the effective date of any menu.
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Subject to Xxxxxxx'x prior written approval, Host shall be responsible
for establishing, reviewing, and controlling the pricing and portion sizes
of all food, beverage, and snack items available at the Cafeteria Services
Locations. Such pricing and portions shall be designated to provide
maximum value to the customers of the Cafeteria Services Locations. All
such prices shall be exclusive of any and all sales, use, value-added or
similar taxes. Any and all such taxes, however, shall be collected by Host
at the time of sale. During the first year of this Agreement, the prices
and portion sizes of food, beverages, and snack items shall be those set
forth in EXHIBIT C attached hereto and made a part hereof. Host must
submit any request for a price increase, along with written documentation
containing a market-driven justification for such request, to Xxxxxxx for
Xxxxxxx'x written approval at least two (2) months prior to implementing
any such price increase. Xxxxxxx agrees that such approval shall not be
unreasonably withheld. In no event, however, shall Host be entitled to any
price increase during the first year of this Agreement. If, at any time,
a menu shall contain an item not currently shown in EXHIBIT C, Host shall
provide Xxxxxxx with a pricing and portion guide in connection with such
item, and Xxxxxxx shall give its prior written approval of such item, along
with its pricing and portion, before such item is included in a menu.
1.4 INVENTORIES AND SUPPLIES.
------------------------
Host shall purchase for its own account all food, beverages, cooking
supplies, condiments, cleaning supplies, paper supplies, disposable xxxx,
and all other materials necessary to provide the Cafeteria Services in the
Cafeteria Services Locations. In no event shall Xxxxxxx be responsible for
the procurement or for the cost of any such items. For all such purchases,
in order to provide Cafeteria Services at the lowest possible costs, Host
shall engage in competitive specification purchasing. However, Host may
procure food or supplies from a facility operated by Host or an
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affiliate of Host, provided that such food or supplies are acceptable to
Xxxxxxx with respect to competitive price and quality specifications. All
inventories of food and supplies purchased by Host shall remain the sole
and exclusive property of Host.
Host shall comply in all respects with those minimum specifications
concerning food quality as are set forth in EXHIBIT D attached hereto and
made a part hereof.
1.5 STAFFING AND ON-SITE MANAGEMENT.
-------------------------------
Host shall, at all times, provide adequate levels of qualified
personnel necessary to manage and operate each Cafeteria Services Location
so as to provide in a clean, desirable, efficient, prompt and courteous
manner the Cafeteria Services on such days at such times and to such
population as are set forth on EXHIBIT B for each Cafeteria Services
Location. Staffing levels shall, at all times, be maintained at a level
satisfactory to Xxxxxxx. At a minimum, such staffing levels shall be
maintained in conformity with those set forth in EXHIBIT E attached hereto
and made a part hereof unless Xxxxxxx shall have given its prior written
approval to deviate from any such level. Host shall employ at least one
full time on-site unit manager for each Cafeteria Services Location, who
shall have a minimum of two (2) years of consecutive employment in
operations with Host and one (1) year of comparable supervisory or
management responsibility. Each such manager shall have sufficient
education and/or experience in food service, with emphasis on food
production and merchandising techniques to enable Host to provide the
Cafeteria Services in a manner acceptable to Xxxxxxx. Xxxxxxx shall have
the right (but not the obligation) to interview and approve any and all
such management personnel whom Host intends to employ at Cafeteria Services
Locations prior to their assignment to such Cafeteria Services Locations.
(Host acknowledges and agrees, however, that any such Xxxxxxx approval
shall not constitute an endorsement of such personnel as to suitability for
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employment, competence, qualifications, etc. all of which shall be the sole
obligation of Host to determine.) Host shall communicate to Xxxxxxx all
changes of management employees before such changes are made.
1.6 MYRTLE STREET.
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In connection with the design, development and construction of a
cafeteria for Xxxxxxx'x facility at 000 Xxxxxx Xxxxxx, Host shall provide
the following assistance and services, at no additional cost to Xxxxxxx:
* prepare and present to Xxxxxxx a conceptual drawing of the food
servery, including counter layout, equipment layout and equipment
identification list;
* provide value engineering assistance to the architect and food
service engineer;
* recommend equipment suppliers and assist in evaluating equipment
bids, cut sheets and specification;
* work with the architect and food service engineer to reduce the
construction and fit-up budget for the cafeteria.
Xxxxxxx shall have no obligation to follow any advice or recommendations of
Host made pursuant to any of the above.
SECTION 2. CATERING SERVICES.
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2.1 GENERAL.
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During the term hereof, Host shall provide (at its sole cost and
expense) all food, beverages, dishes, glasses, tableware, personnel and
supplies necessary to provide, from time to time, at the request of
Xxxxxxx, Catering Services (as hereinafter defined). "Catering Services"
shall include, at each of the Xxxxxxx facilities designated as "Catering
Services Locations" in EXHIBIT A, the full-
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service on-site preparation, delivery, presentation, serving and clean-up
on freshly prepared hot and cold food and beverages and maintenance of the
cleanliness of the facility, as more specifically set forth in this Section
2 and Sections 8, 9 and 10 of this Agreement. Catering Services shall also
include the delivery and serving of food and beverages prepared at the
Catering Services Locations to such other of Xxxxxxx'x facilities as
Xxxxxxx shall request from time to time.
2.2 MENUS.
------
Host shall be responsible for designing and regularly updating menus
for Catering Services that provide a variety of high quality and nutritious
hot and cold foods and beverages ranging from coffee breaks to formal
receptions and that shall be at all times acceptable to Xxxxxxx. At a
minimum, Host shall design a range of menus that (i) are innovative,
emphasizing variety, nutrition and quality; (ii) are responsive to changing
meal trends and portion preferences; and (iii) are developed bearing the
anticipated staffing levels and existing equipment in mind, unless Host
plans to supply such additional equipment as may be necessary.
2.3 CATERING ORDERS.
---------------
Host shall prepare and serve such catering orders from time to time as
Xxxxxxx shall place through authorized personnel. Xxxxxxx shall provide
Host from time to time with the names of all persons who are authorized to
place such catering orders. Xxxxxxx shall endeavor to place catering
orders at least forty-eight (48) hours prior to the time such orders are to
be ready to serve, but in no event shall Xxxxxxx be required to give such
notice.
2.4 INVENTORIES AND SUPPLIES.
------------------------
Host shall purchase for its own account all food, beverages, cooking
supplies, condiments, cleaning supplies, paper supplies, disposable xxxx,
and all other materials necessary to provide the
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Catering Services in the Catering Services Locations. In no event shall
Xxxxxxx be responsible for the procurement or for the cost of any such
items. For all such purchases, in order to provide Catering Services at
the lowest possible costs, Host shall engage in competitive specification
purchasing. However, Host may procure food or supplies from a facility
operated by Host or an affiliate of Host, provided that such food or
supplies are acceptable to Xxxxxxx with respect to competitive price and
quality specifications. All inventories of food and supplies purchased by
Host shall remain the sole and exclusive property of Host.
Host shall comply in all respects with those minimum specifications
concerning food quality as are set forth in EXHIBIT D.
2.5 STAFFING AND ON-SITE MANAGEMENT.
-------------------------------
Host shall, at all times, provide adequate levels of qualified
personnel necessary to manage and operate each Catering Services Location
so as to provide in a clean, desirable, efficient, prompt and courteous
manner the Catering Services. Host shall employ at lease one full time
on-site chef/unit manager and one assistant for each Catering Services
Location, which chef/manager shall have a minimum of two (2) years of
consecutive employment in operations with Host and one (1) year of
comparable supervisory or management responsibility. Each such
chef/manager shall have sufficient education and/or experience in food
service, with emphasis on food production, merchandising techniques, and
catering to enable Host to provide the Catering Services in a manner
acceptable to Xxxxxxx. Xxxxxxx shall have the right (but not the
obligation) to interview and approve any and all such management personnel
whom Host intends to employ at Catering Services Locations prior to their
assignment to such Catering Services Locations. (Host acknowledges and
agrees, however, that any such Xxxxxxx approval shall not constitute an
endorsement of such
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personnel as to suitability for employment, competence, qualifications,
etc. all of which shall be the sole obligation of Host to determine.) Host
shall communicate to Xxxxxxx all changes of management employees before
such changes are made.
2.6 NON-EXCLUSIVE RIGHT.
--------------------
Host acknowledges that, although Xxxxxxx will provide Host with the
opportunity to submit a proposal to provide Catering Services for all
Xxxxxxx special functions, Xxxxxxx reserves the right to request
competitive proposals from and, in the sole and absolute discretion of
Xxxxxxx, to utilize the services of third parties for special functions.
SECTION 3. COFFEE SNACK CART SERVICES.
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3.1 GENERAL.
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With respect to the Xxxxxxx facility designated as the "Coffee Snack
Cart Services Location" in EXHIBIT A, and to such other locations as
Xxxxxxx and Host shall mutually agree, Host shall during the term hereof
provide those products and services as are more specifically set forth
below (the "Coffee Snack Cart Services"). (Cafeteria Services, Catering
Services, and Coffee Snack Cart Services are hereinafter collectively
referred to as "Dining Services.")
3.2 Host agrees to provide a fully equipped and stocked coffee and
snack cart to the Coffee Snack Cart Services Location two times a day for
the retail sale of beverages and food items to Xxxxxxx employees, guests,
and invitees. The beverages and food items shall be selected by Host,
subject to Xxxxxxx'x approval, from those set forth in EXHIBIT C. The
prices and portions of such items shall, during the first year of this
Agreement, be consistent with those set forth on EXHIBIT C. Host shall
submit any request for a price increase, along with written documentation
containing a market-driven justification for such request, to Xxxxxxx for
Xxxxxxx'x written approval at least two
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(2) months prior to implementing any such price increase. Xxxxxxx agrees
that such approval shall not be unreasonably withheld. In no event,
however, shall Host be entitled to any price increase during the first year
of this Agreement.
Host shall deliver the stocked cart to such location(s) at the Coffee
Snack Cart Services Location and at such times and on such days as Xxxxxxx,
in its sole discretion, shall designate from time to time.
SECTION 4. OFFICE COFFEE SERVICES.
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4.1 GENERAL.
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With respect to each of Xxxxxxx'x facilities designated as "Office
Coffee Services Locations" in EXHIBIT A, Host shall, during the term
hereof, install, service, and maintain equipment to prepare coffee, tea,
and cocoa and shall provide, on a continuous basis upon the written request
of Xxxxxxx, those supplies incident to the preparation and consumption of
such beverages that are set forth in EXHIBIT F attached hereto and made a
part hereof (the "Office Coffee Services"). For each Office Coffee Services
Location, such equipment, which will be owned by Host, will be installed at
and supplies shall be provided to and maintained in appropriate quantities
at all times at each and every station identified in EXHIBIT A, Section X.
Xxxxxxx reserves the right to increase or decrease the number of stations
or to change the locations of such stations during the term of this Agreement.
4.2 PLACEMENT OF ORDERS; PAYMENT.
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Xxxxxxx shall, from time to time, place written orders with Host for
the purchase of all the supplies incident to the Office Coffee Services.
Xxxxxxx shall supply Host from time to time with a list of all persons who
shall be authorized to place such orders. Host shall, on the business day
following the receipt of any such order, deliver such order to the station
at the Office Coffee
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Services Location designated on such order. Host shall invoice Xxxxxxx on
a monthly basis at the prices shown on EXHIBIT F for all supplies
delivered. Xxxxxxx shall pay invoiced amounts within 45 days of receipt of
invoice. If Xxxxxxx pays within 20 days of receipt of invoice, Xxxxxxx
shall be entitled to deduct 2% from the amount of the payment. There shall
be no penalty for late payments.
Host may increase prices on any Office Coffee Services item only with
Xxxxxxx'x prior written approval. Any request for a price increase must be
accompanied by written documentation containing a market-driven
justification for such a request. Xxxxxxx agrees that approval of such a
request shall not be unreasonably withheld. In no event, however, shall
Host be entitled to any price increase during the first year of this
Agreement.
SECTION 5. COMPENSATION FOR DINING SERVICES.
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5.1 CALCULATION OF FEE.
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As compensation for its provision of Dining Services hereunder, Host
shall be entitled to retain all receipts from sales associated with its
provision of Dining Services hereunder. (In connection therewith, Host
shall remit to the applicable taxing authority all sales, use, value-added,
and similar taxes due with respect to such sales.) In addition, under
certain circumstances as described below, Xxxxxxx shall compensate Host for
the provision of Dining Services on a fee basis. Xxxxxxx shall pay Host a
fee each month equal to three and one half percent (3.5%) of Net Sales
(which term shall be defined as the gross sales associated with Dining
Services less the associated sales, use, or similar tax) (the "Management
Fee"). In addition, in the event that monthly Authorized Operating
Expenses (as such term is detailed in EXHIBIT G attached hereto and made a
part hereof, which term shall include the Management Fee, and shall also
include General and Administrative Expenses which shall be fixed at 2.5% of
Net Sales) exceed Net Sales, Xxxxxxx shall
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pay to Host an amount equal to the negative difference between Authorized
Operating Expenses and Net Sales (the "Shortfall Payment").
Notwithstanding the foregoing, however, in no event shall the General and
Administrative Expenses plus the Management Fee exceed $62,007.00 for the
first year of this Agreement (the "Fee Cap"). Host and Xxxxxxx shall in
good faith enter into discussions each year during the term of this
Agreement in an effort to determine a mutually satisfactory Fee Cap that
shall be applicable to the following year. If the parties cannot agree in
good faith, the Fee Cap from the previous year shall apply. Xxxxxxx shall
pay appropriately documented invoiced amounts within 45 days of receipt of
invoice. There shall be no penalty for late payments. Xxxxxxx shall have
the right, at its sole option, to deduct the amount of the Xxxxxxx Vending
Payments (as defined in Section 6.7 below) from the Shortfall Payment and
to make a single, net payment to a Host. Furthermore, in the event that
the amount of the Shortfall Payment exceeds the Xxxxxxx Vending Payments in
any month, the Shortfall Payment shall be reduced by one-half of such
excess, provided, however, that such reductions shall not exceed $24,842.70
in the aggregate in the first year of the term hereof. Such amounts shall
be reconciled and the reductions applied on a quarterly basis.
Host agrees that if, in any year of operation during the term of this
Agreement, Host generates an Operating Profit (which term shall be defined
as the positive difference between Net Sales for Dining Services and
Authorized Operating Expenses) on Dining Services, Host shall remit to
Xxxxxxx a sum equal to one half (1/2) of such Operating Profit. Host shall
remit such payment within twenty (20) calendar days following the twelfth
(12th) month of such period or fifteen (15) business days following the
twelfth (12th) month of such period, whichever is earlier.
In addition to the foregoing, Xxxxxxx agrees to reimburse Host for
pre-opening expenses incurred by Host in connection with the preparation by
Host for the provision of food services
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hereunder, as identified in EXHIBIT K attached hereto and made a part
hereof, from the date of this Agreement until Host commences providing
services hereunder. Host shall submit invoices for such pre-opening
expenses to Xxxxxxx, as well as such other supporting documentation as
Xxxxxxx shall request. Notwithstanding the foregoing, however, Xxxxxxx
shall not be required to reimburse Host for pre-opening expenses in an
aggregate amount in excess of $10,000.00.
Prior to the commencement of each operating year, Host shall prepare
and submit to Xxxxxxx a pro forma for each location at which services are
being rendered hereunder, together with a "combined operating pro forma" in
substantially the same format as those prepared in connection with the Host
Proposal (the "Pro Formas"). Upon Xxxxxxx'x review and approval of such
Pro Formas, such Pro Formas shall constitute the approved operating budget
for the applicable year, subject to the terms and conditions hereof. The
parties acknowledge and agree that the Pro Formas attached hereto as
EXHIBIT L shall constitute the approved operating budget for the operating
year commencing as of the date hereof. Immediately following the close of
each operating quarter, Host shall prepare and submit to Xxxxxxx a
statement of actual operating expenses, profit and losses, together with an
updated forecast for the remainder of the operating year. In the event
that any such forecast shows operating expenses exceeding those shown in
the applicable Pro Forma by $50,000.00 or more, such increase must be
authorized by Xxxxxxx in advance of such expenses being incurred or Xxxxxxx
shall not be responsible to pay for such additional operating expenses.
SECTION 6. VENDING SERVICES.
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6.1 GENERAL.
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With respect to each of Xxxxxxx'x facilities designated as "Vending
Services Locations" in EXHIBIT A attached hereto and made a part hereof,
and such other locations in Xxxxxxx'x facilities as
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Xxxxxxx and Host may mutually agree, Host shall provide (at its sole cost
and expense) during the term hereof Vending Services, which shall include
the installation, stocking and restocking, servicing, and maintenance of
cash vending machines dispensing certain cold food and hot and cold
beverages, and the installation, servicing and maintenance of microwave
ovens. The number and type of vending machines and the number of microwave
ovens that Host shall install and maintain at each Vending Services
Location is set forth in EXHIBIT H attached hereto and made a part hereof.
Host acknowledges and agrees that it will be necessary, at the times and to
the extent designated by Xxxxxxx in its sole discretion, to reduce the
number of vending machines at the Xxxxxxx Hardware Vending Services
Location (as described in EXHIBIT A) as a consequence of the planned
reduction in the number of employees at that site.
6.2 EQUIPMENT.
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All vending machines, except for those supplied by the distributors of
certain beverages, the number and locations of which machines shall be
provided to Host by Xxxxxxx, and all microwave ovens shall be owned and
supplied by Host, and shall be installed in the specific locations at each
Vending Services Location as Xxxxxxx shall designate in its sole
discretion. All vending machines installed by Host at the Vending Services
Locations shall be new or newly refurbished, of the latest production model
and design, and contain solid state controls. Host shall ensure that non-
resettable meters and dollar xxxx changers shall be installed on all
vending machines. Mars changers will be the coin mechanism on all vending
machines. All vending machines shall be seventy-two (72) inches in height.
All vending machines in a bank of machines (a bank of machines shall mean
two or more machines in one location) shall have similar fronts and shall
be securely bolted to adjacent
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vending machine(s). Microwave ovens shall be of a make and model
satisfactory to Xxxxxxx in its sole discretion.
6.3 VENDING PRODUCTS.
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Host shall install the vending machines described in EXHIBIT H fully
stocked with the applicable food and beverage products. Host further
agrees that the food and beverages to be dispensed in all vending machines
it installs at the Vending Services Locations shall consist exclusively of
"name brand" merchandise, including such local brands as Xxxxxxx shall
specify from time to time. Beverages shall include, but not be limited to,
Pepsi Cola, Seven Up, and Snapple, of both regular and diet varieties, and
such other recognized nationally-distributed brands as Xxxxxxx should
specify from time to time. Coffee shall be of premium quality and
satisfactory to Xxxxxxx. Crackers shall be Nabisco or Keebler brands, or
such other national brands as shall be acceptable to Xxxxxxx.
Vending machines dispensing cold food and beverages shall contain
freshly prepared sandwiches, salads, desserts, fruits and juices. Host
shall clearly identify the source of all such freshly prepared food. All
such freshly prepared cold food and beverages shall be clearly and
conspicuously labeled with the pull or expiration date. All vending
machines dispensing such products shall have affixed to them a sign
informing the purchaser that (i) food should not be purchased if the date
of purchase is past the pull date; and (ii) refunds are available for food
purchased where the date of purchase is past the pull date. The prices of
such food and beverages shall be consistent with EXHIBIT H and the
applicable portion of EXHIBIT F. Host may increase prices for any food or
beverage item only with Xxxxxxx'x prior written approval. Any request for
a price increase must be accompanied by written documentation containing a
market-driven justification
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for such request. Xxxxxxx agrees that such approval shall not be
unreasonably withheld. In no event, however, shall Host be entitled to any
price increase during the first year of this Agreement.
6.4 RESTOCKING OF VENDING MACHINES.
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Host shall inspect and monitor the vending machines at the Vending
Services Locations and restock them with food and beverages, and coin for
change (as appropriate) with the frequency necessary to ensure that there
is a sufficient quantity of fresh products to adequately service the
population of Xxxxxxx employees located at each Vending Services Location
as set forth in EXHIBIT H. The frequency of inspection and monitoring of
such machines shall, at all times, be satisfactory to Xxxxxxx.
6.5 MAINTENANCE AND CLEANING OF VENDING MACHINES.
---------------------------------------------
Host shall maintain each vending machine (including routinely
calibrating all machines requiring such service) and all microwave ovens so
as to ensure that all vending machines and microwave ovens remain clean,
sanitary and fully operational at all times. Host shall respond (by
providing qualified service personnel to the applicable Vending Services
Location) to all maintenance service calls initiated by Xxxxxxx within two
(2) hours. Host shall clean and sanitize all vending machines in such
manner and with such frequency so as to ensure compliance with all
applicable federal, state, and local laws. In addition, Host shall provide
cleaning and sanitizing services for the vending machines in accordance
with the provision set forth in EXHIBIT I attached hereto and made a part
hereof. Host acknowledges and agrees that the vending machines are
subject, from time to time, to inspections of government health department
officials, and other governmental agencies. Host shall provide copies to
Xxxxxxx of any and all inspection reports immediately upon receipt thereof
by Host. Host shall promptly cure to the satisfaction of Xxxxxxx any and all
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deficiencies note during any such inspection or in any such report. Host
shall also submit to Xxxxxxx, upon Xxxxxxx'x request, any and all records
and reports concerning the maintenance, cleaning and calibration of the
vending machines.
6.6 REFUNDS.
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Host shall refund to any purchaser of a vending machine food or
beverage all monies spent by such purchaser in circumstances where the
purchaser either received no product or received a product that the
purchaser determined in good faith to be unsuitable due to inferior
quality, spoiling or because the date of the product had extended past the
product's pull date. The procedure to be followed by a purchaser to
request a refund shall be developed by Host, subject to Xxxxxxx'x prior
written approval, shall at all times be acceptable to Xxxxxxx, and shall be
conspicuously posted on or near all vending machines at each Vending
Services Location.
7.6 CASH AND CURRENCY COLLECTIONS.
------------------------------
Host shall be responsible for removing and safeguarding all cash and
currency from the vending machines on a regular basis. Host shall keep all
cash and currency retrieved from the vending machines at the Vending
Services Locations segregated from all other cash and currency, set up a
separate deposit account for such cash and currency collected and deposit
all such cash and currency collected into such account, and provide a
monthly accounting to Xxxxxxx (in form satisfactory to Xxxxxxx) of all such
cash and currency retrieved from such vending machines, and with the sales
tax and bottle deposit amounts associated with the products sold in such
vending machines, in each case separately listing such receipts for each
machine in each location. Such accounting shall be certified as complete
and accurate by Host's Chief Financial Officer. Host shall also provide
Xxxxxxx each month with a copy of the monthly bank statements. Host shall
hold all
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such funds in trust for the benefit of Host and Xxxxxxx until such funds
are distributed to Host and Xxxxxxx as described below.
Host shall be entitled to retain seventy-five percent (75%) of all
cash and currency reflected in its accountings minus sales tax and bottle
deposits as shown on such accountings, and shall remit to Xxxxxxx on a
monthly basis the remaining twenty-five percent (25%) of such amount (the
"Xxxxxxx Vending Payment"). In no event shall Xxxxxxx be responsible for
any costs or expenses in connection with the provision of vending services
under this Agreement. In no event, however, shall Xxxxxxx be entitled to
any proceeds from vending sales of freshly prepared cold foods (e.g.,
sandwiches), of milk, or of ice cream products.
SECTION 7. PROVISION OF FINANCIAL STATEMENTS, RECORDS AND REPORTS;
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AUDITS.
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7.1 In connection with computing the Management Fee and other
payments associated with Dining Services as set forth in Section 5 of this
Agreement as well as the payments to Xxxxxxx required under Section 6
above, Host shall provide Xxxxxxx with the following records and reports on
a monthly basis: for each Cafeteria Services Location, Catering Services
Location, and Vending Services Location, a report showing sales and costs
for the preceding month in sufficient detail to separately identify all
elements of costs. Such reports shall also show such information on a
year-to-date cumulative basis (based on Xxxxxxx'x fiscal year end). Host
shall submit such monthly reports no later than the twentieth (20th)
calendar day or the fifteenth (15th) business day following the last day of
the preceding month, whichever is earlier. Such records and reports shall
be in form acceptable to Xxxxxxx and shall be certified as correct by
Host's Chief Financial Officer. Host shall maintain such records, reports,
and documentation for a period of at least six (6) years and shall
18
allow Xxxxxxx, upon ten (10) day's notice, to inspect, examine, and/or
audit the records of all receipts, expenses, and disbursements of Host's
food service operations, and all books, accounts, memoranda, and any other
documents of Host or any of its affiliates that would detail or
substantiate the cost of any and all food services expenditures and/or
receipts. At a minimum, any such records pertaining to the immediately
preceding twelve (12) months shall be maintained on Xxxxxxx'x premises at
a location to be designated by Xxxxxxx.
In addition, Host shall, at Xxxxxxx'x request, provide to Xxxxxxx the
following: independently reviewed or audited quarterly and annual financial
statements of Host, including, without limitation, statements of financial
conditions, income and cash flows, a reconciliation of net worth, a listing
of all contingent liabilities, notes to financial statements and other
financial information requested by Xxxxxxx, all prepared in accordance with
generally accepted accounting principles by a certified public accountant.
Quarterly reports shall be provided as soon as available, but no later than
45 days following the close of the quarter in question; annual reports
shall be provided as soon as available, but no later than 90 days following
the close of the fiscal year.
Xxxxxxx and/or its agents or representatives shall have the right at
all reasonable times after ten (10) days' prior notice to audit Host's
books, records, and books of account relating to and detailing the
transactions which are the subject of this Agreement. Host agrees to
maintain and make available to Xxxxxxx and its agents or representatives
all such Host books, records, and books of account. In the event that any
such audit reveals a discrepancy of 3% or more between amounts billed to
Xxxxxxx and amounts actually owed by Xxxxxxx hereunder for the period or
service in question. Host shall be responsible for all costs incurred by
Xxxxxxx in connection with such audit.
19
SECTION 8. OWNERSHIP OF FACILITIES; MAINTENANCE AND USE OF FACILITIES.
--------- -----------------------------------------------------------
The Cafeteria Services Locations and the Catering Services Location at
Xxxxxxx Conference Center as described in EXHIBIT A (the "Conference
Center") shall remain the sole and exclusive property of Xxxxxxx. Host
shall not make any alteration to any Cafeteria Services Location or the
Conference Center without the prior written consent of Xxxxxxx. Host
acknowledges that Xxxxxxx maintains a "No Smoking" policy at each Cafeteria
Services Location and the Conference Center and that all Host personnel
shall strictly adhere to Xxxxxxx'x "No Smoking" policy.
Xxxxxxx presently maintains and shall provide the following equipment
for use by Host at each Cafeteria Services Location and the Conference
Center: food preparation and storage equipment; servery and service
equipment; refrigeration equipment; ovens and grills; dishwashing
equipment; and dining room furniture consisting of tables and chairs; (the
"Xxxxxxx Equipment"). Subject to Host's right to use the Xxxxxxx Equipment
as provided herein (and in Section 9 below), the Xxxxxxx Equipment shall
remain the sole and exclusive property of Xxxxxxx. Host acknowledges and
agrees that it has had an opportunity to inspect the Xxxxxxx Equipment and
that the Xxxxxxx Equipment is sufficient and adequate in all respects.
Host understands and acknowledges that certain additional food service
equipment will be necessary to enable Host to fully provide the Cafeteria
Services, Catering Services, and Coffee Snack Cart Services and,
accordingly, Host shall provide any and all other cafeteria or food
handling or preparation equipment it deems necessary or appropriate for the
provision of the Cafeteria Services, Catering Services, and Coffee Snack
Cart Services (the "Host Equipment"). It is presently anticipated that
Host will invest a total of $54,000 for the procurement of the Host
Equipment, a description of which is attached hereto as EXHIBIT J.
20
Any and all such Host Equipment shall become the sole and exclusive
property of Xxxxxxx as and when any such equipment is fully depreciated by
Host or, at the option of Xxxxxxx, if and when Xxxxxxx pays Host the then-
depreciated book value of the Equipment.
Xxxxxxx shall supply as of the date hereof for use by Host at each
Cafeteria Services Location and the Conference Center a stock of the
following items: china, glassware, tableware, trays, and kitchen utensils
(the "Xxxxxxx Smallwares"). An inventory of the Xxxxxxx Smallwares at each
Cafeteria Services Location and the Conference Center shall be taken
jointly by Xxxxxxx and Host as soon as practicable after the execution of
this Agreement (the "Initial Smallwares Inventory"). Thereafter, Host
shall maintain at all times an accurate inventory of the Xxxxxxx Smallwares
(in form satisfactory to Xxxxxxx) located at each Cafeteria Services
Location and the Conference Center and provide a copy of such inventory to
Xxxxxxx on a quarterly basis. Host shall be required, at its sole cost and
expense, to purchase such items as are needed to maintain the Initial
Smallwares Inventory levels at each Cafeteria Services Location and the
Conference Center.
Xxxxxxx shall provide for the use of Host at each Cafeteria Services
Location and the Conference Center office space, sanitary facilities, and
lockers. Host acknowledges and agrees that it has inspected such office
space, sanitary facilities and lockers and that such office space, sanitary
facilities and lockers are fully acceptable to Host in their present, "As-Is"
condition.
Host shall be responsible for maintaining the dining ares(s) of each
Cafeteria Services Location and the Conference Center in a clean and
orderly condition at all times. Specifically, Host shall monitor each such
dining area before and during service to ensure that any and all spills of
food or beverages are cleaned up immediately, that tables and chairs are
neatly placed, and that salt and pepper shakers and sugar dispensers are
aligned.
21
Host may not prepare food or beverages in any Cafeteria Services
Location or the Conference Center for sale or use for any purposes other
than those specified by this Agreement without the prior written consent of
Xxxxxxx.
Xxxxxxx and/or its agents or representatives shall have the right to
have access at all times to the food preparation and dining facilities at
the Cafeteria Services Locations and the Conference Center. Xxxxxxx agrees
to provide Host, when reasonably possible, with advance notice of its
intention to avail itself of access to any Cafeteria Services Location or
the Conference Center and of the time and nature of such access.
Host shall be responsible for turning off all lights, non-essential
equipment, and securing each Cafeteria Services Location and the Conference
Center at the end of each work day.
In no event shall Host photograph or invite guests into any Cafeteria
Services Location or the Conference Center without the prior written
consent of Xxxxxxx. In addition, Host shall not post any signs or other
displays at any Cafeteria Services Location or the Conference Center
without the prior written consent of Xxxxxxx.
SECTION 9. XXXXXXX EQUIPMENT AND FACILITIES.
---------- ---------------------------------
9.1 The Xxxxxxx Equipment will be owned by Xxxxxxx, and any
replacements of the Xxxxxxx Equipment will be at Xxxxxxx'x sole discretion.
Xxxxxxx agrees to permit Host to use the Xxxxxxx Equipment solely to
provide the Cafeteria Services and Catering Services as provided herein and
in Section 1, Section 2, and Section 8 above. Host shall exercise
reasonable care at all times in connection with its use of the Xxxxxxx
Equipment. In no event may Host remove any Xxxxxxx Equipment from any
Cafeteria Services Location or the Conference Center, or in any way alter
such equipment without the prior written approval of Xxxxxxx. Xxxxxxx shall
be responsible for and shall
22
have the sole right to repair and maintain the Xxxxxxx Equipment. Host may
initiate requests for repairs of the Xxxxxxx Equipment. Host shall notify
Xxxxxxx in writing of any conditions with respect to the Xxxxxxx Equipment
that Host knows require repair or correction in order to comply with any
health or safety codes.
Xxxxxxx shall, at its sole cost and expense, provide utilities (heat,
water, gas, electricity, and air-conditioning) at each Cafeteria Services
Location and the Conference Center. At the request of Xxxxxxx, Host shall
use its best efforts to provide Dining Services during any interruption of
utility services.
SECTION 10. SANITATION STANDARDS.
----------- ---------------------
Host shall be responsible for ensuring that the food preparation and
dining areas at the Cafeteria Services Locations and the Conference Center
are at all times maintained in a clean and sanitary condition in compliance
with the provisions of all applicable federal, state and local law and with
Xxxxxxx'x internal policies. At a minimum, Host shall: (i) clean all
kitchen surfaces and equipment on a continuous basis and following each
meal period; (ii) keep public areas free of hazardous conditions; (iii)
adhere to sanitation regulations for warewashing including recommended
water temperatures or the use of chemical sanitizers; and (iv) clean
kitchen and servery floors, walls and vents to a height of eight (8) feet
daily. In connection therewith, Host shall provide regular (i) cleaning of
all Xxxxxxx Equipment, Host Equipment, Xxxxxxx Smallwares, kitchen, food
handling, preparation and storage areas, cold storage areas, grease traps,
and counter areas; (ii) laundry service for kitchen linens (uniforms,
cleaning cloths, aprons, etc.); (iii) cleaning of the dining room tables
and chairs; and (iv) maintenance and repair of the Host Equipment. Host
shall dispose of the contents of grease traps in such receptacles and in
such manner as to comply with the provisions of
23
all applicable federal, state, and local law. Host shall keep each
Cafeteria Services Location and the Conference Center free from garbage,
trash, and other debris (in connection therewith, Host shall recycle as
much of such garbage, trash, and debris as is practicable). In addition,
Host shall provide on a regular basis dishwashing services in a sanitary
manner for all non-disposable dishes, tablewares, trays, glasswares,
cooking and serving equipment, and utensils used at each Cafeteria Services
Location and the Conference Center.
Notwithstanding the foregoing, however, Xxxxxxx shall, at its sole
cost and expense, be responsible for (i) daily cleaning of all dining area
floors (exclusive of food preparation or service areas) and for the
cleaning of all dining area walls, ceilings, windows and light fixtures;
(ii) furnishing dumpsters for use by Host in locations designated by
Xxxxxxx; (iii) furnishing extermination services as required; (iv)
semiannual cleaning of hoods, ducts, and filters; and (v) maintaining and
repairing (as needed) the Xxxxxxx Equipment (unless such repairs are
necessitated through the negligent acts or omissions of Host in which case
Host shall, at its sole cost and expense, provide such repairs).
Host acknowledges and agrees that the Cafeteria Services Locations and
the Conference Center are subject, from time to time, to inspections of
government health department officials, fire department officials, and
other governmental agencies. Host shall provide copies to Xxxxxxx of any
and all inspection reports immediately upon receipt thereof by Host. Host
shall promptly cure to the satisfaction of Xxxxxxx any and all deficiencies
noted during any such inspection or in any such report.
24
SECTION 11. ACCESS TO FACILITIES.
----------- --------------------
11.1 Xxxxxxx agrees to provide Host and its vending subcontractors
with reasonable means of ingress and egress to and from the facilities in
which Dining Services, Vending Services, and Office Coffee Services will be
provided, including the reasonable use of Xxxxxxx-designated corridors,
passageways, and loading platforms at such facilities. In no event shall
Host or anyone acting by, through, or under authority of Host be entitled
to use or occupy in any way any other facilities or portions thereof in
which Xxxxxxx operates, or occupy any of the facilities where Dining
Services, Vending Services or Office Coffee Services are provided except at
such times and to provide such services as are specified under this
Agreement, unless Xxxxxxx has provided its prior written consent. Host and
its vending subcontractors shall comply in all respects with all Xxxxxxx
policies regarding access, personnel, security, safety and confidentiality.
Host covenants and agrees with Xxxxxxx that the provision of Dining
Services, Office Coffee Services, and Vending Services hereunder shall not
interfere with the ordinary operation of Xxxxxxx'x business or with
Xxxxxxx'x ordinary use of its facilities.
SECTION 12. REIMBURSEMENT FOR SERVICES NOT SPECIFIED.
----------- ----------------------------------------
12.1 In no event shall Xxxxxxx be required to compensate Host for any
services provided by Host that are not expressly contemplated by this
Agreement unless Xxxxxxx has given its prior written consent thereto.
SECTION 13. PERSONNEL; CONTINUITY OF SERVICE.
----------- --------------------------------
13.1 Host shall be solely responsible for recruiting, hiring,
training, supervising, directing, disciplining, discharging, and
compensating all personnel employed by Host at the Cafeteria Services
Locations, Office Coffee Services Locations, Coffee Snack Cart Locations,
Catering
25
Services Locations, and Vending Services Locations (collectively, the
"Xxxxxxx Premises"). In no event shall Xxxxxxx be responsible for
supervising, directing, or compensating in any way any Host employee.
Xxxxxxx shall have the continuing right to require the removal of any Host
employee whom Xxxxxxx determines, in its sole and absolute discretion, to
be unsatisfactory.
13.2 All Host personnel shall wear uniforms (to be provided by Host,
at its sole cost and expense, which uniforms shall be satisfactory to
Xxxxxxx) at all times such personnel are at the Xxxxxxx Premises. Such
uniforms shall include viable name tags, hats, hair nets, clean shirts,
trousers, and aprons where appropriate.
13.3 Notwithstanding any work stoppages or slowdowns directed at
either Xxxxxxx or Host, Host shall continue to provide Dining Services,
Office Coffee Services, and Vending Services as required hereunder.
Notwithstanding the foregoing, however, Xxxxxxx shall have the right (but
not the obligation) to provide any Dining Services, Office Coffee Services,
or Vending Services at the sole cost and expense of Host in the event that
Host fails or is otherwise unable to do so. Host shall notify Xxxxxxx of
any anticipated failure to provide services as required hereunder as soon
as Host becomes aware of any such situation.
13.4 No Host personnel or subcontractor shall be considered to be, nor
in any way hold themselves out as, employees, agents, or representatives of
Xxxxxxx.
13.5 With respect to all services to be provided pursuant to this
Agreement, Host shall designate an account manager responsible for
Xxxxxxx'x account reasonably satisfactory to Xxxxxxx. Host shall make
reasonable efforts to minimize changes in account manager. Such account
manager shall have overall responsibility for Host's administration of this
Agreement and for the services to be provided hereunder. Such account
manager shall be available to meet on a regular basis with
26
Xxxxxxx'x designated contact person and shall respond to Xxxxxxx questions
and concerns regarding the Agreement and the services hereunder and shall,
if so requested by Xxxxxxx, attend meetings regarding this Agreement and
the services provided hereunder, all at no additional cost hereunder.
SECTION 14. LIENS
----------- -----
14.1 Host shall (i) indemnify and hold harmless Xxxxxxx, its divisions
and subsidiaries, from and against all laborer's, materialmen's and
mechanics' liens upon Xxxxxxx'x property in which Host provides food
services arising out of the services or labor furnished by Host or any of
its subcontractors under this Agreement and (ii) keep said property free
and clear of all liens, claims and encumbrances arising from the
performance of this Agreement by Host or its subcontractors.
Host, for itself, its subcontractors, materialmen, laborers, and for
all other persons performing any labor or furnishing any services or labor
for the provision of food or vending services hereunder hereby waives, to
the fullest extent permitted by law, all right to have filed or maintained
any mechanics' or other liens or any other claims for or on account of the
services or labor to be furnished hereunder.
Host shall (i) indemnify and hold harmless Xxxxxxx from and against
any security interests or liens or encumbrances that attach to or become a
cloud on title to Xxxxxxx'x materials and (ii) keep such material free and
clear of all liens, claims and encumbrances.
Host shall include a provision satisfying the requirements of this
Section 14 as part of any and all subcontracts issued hereunder.
27
SECTION 15. INSURANCE.
----------- ---------
Host shall, at its sole cost and expense, obtain and carry throughout
the term of this Agreement as a minimum the following insurance in such
form and with such carriers as are satisfactory to Xxxxxxx covering the
performance of this Agreement:
* Workers' Compensation as required by statute, and Employers
Liability Insurance in an amount equal to $1,000,000.
* General Liability Insurance, including Products Liability, in
which the limit of liability for injuries, including accidental
death, shall be $2,000,000 for any one occurrence and $2,000,000
per person.
* General Liability Insurance in which the limit of liability for
property damage shall be $1,000,000 for any one occurrence.
* Automobile Liability Insurance in which the limit of liability
for injuries, including accidental death and property damage,
shall be $1,000,000 for any one occurrence and $1,000,000 per
person.
* Umbrella Liability Insurance in which the limit of liability per
occurrence shall be $5,000,000.
* Liquor Liability Insurance in which the limit of liability per
occurrence shall be $1,000,000.
All insurance policies shall be issued by companies authorized to do
business under the laws of the State of Connecticut and the State of Rhode
Island (as applicable), shall be in form satisfactory to Xxxxxxx, and shall
contain a provision prohibiting cancellation or reduction in coverage
except upon at least thirty (30) days prior written notice sent by
registered mail to Xxxxxxx and shall contain
28
a complete waiver by the insurer of subrogation against Xxxxxxx. All such
insurance policies will be primary in the event of a loss arising out of
Host's performance hereunder and shall provide that where there is more
than one insured, the policy will operate, except for the limits of
liability, as if there was a separate policy covering each insured.
Certified copies of said policies or certificates evidencing such insurance
and naming Xxxxxxx and its subsidiaries, affiliates, and their respective
officers, agents and employees as additional insureds shall be filed with
Xxxxxxx before the execution of this Agreement.
Host shall insert in all subcontracts issued hereunder provisions
which shall conform substantially to the requirements set forth in this
Section 15.
SECTION 16. INDEMNIFICATION.
---------- ---------------
16.1 Host shall be solely responsible for any and all loss, damage,
expense or injury (including death) to persons (including employees of Host
and any subcontractor) or property arising out of the performance of this
Agreement, it being the intent of this Agreement to protect and indemnify
Xxxxxxx from any and all loss arising out of or in connection with the
services performed under this Agreement. In furtherance of the foregoing
(but not by way of limitation), Host shall indemnify, defend and hold
harmless Xxxxxxx and Xxxxxxx'x directors, officers and employees from and
against any and all liability, claim of liability, cause of action, loss,
expense or damage whatsoever arising from any loss, damage, expense or
injury (including death) to any person (including employees of Host and any
subcontractor) or property of every type or nature relating to the
performance of this Agreement or the actions of any Host employee or
subcontractor.
Host shall insert in all subcontracts issued hereunder provisions
which shall conform substantially to the requirements of this Section 16.
29
SECTION 17. COMPLIANCE WITH LAW.
----------- -------------------
17.1 Host shall fully comply with any federal, state, local or other
applicable laws, rules, regulations, ordinances and other governmental
pronouncements, including, but not limited to, all such laws, rules,
regulations, ordinances and governmental pronouncements relating to the
provision of food services as required hereunder, including, but not
limited to, the posting of requisite notices and signs.
Host shall comply with and give all stipulations and representations
required by applicable state and federal laws. Host represents and warrants
that all services provided under this Agreement shall fully comply with the
provisions of the Occupational Safety and Health Act, as it may be amended
from time to time, and with all regulations promulgated thereunder. Host
further represents that it will comply with all provisions of federal law
in connection with all employees providing services under this Agreement
who are not citizens of the United States.
Host shall insert in all subcontracts issued hereunder provisions
which shall conform substantially to the requirements of this Section 17.
SECTION 18. ASSIGNMENT.
----------- ----------
18.1 Host shall not assign this Agreement or any of its rights
hereunder without the prior written consent of Xxxxxxx. In no event,
however, shall Host be relieved of any liability for any acts or omission
committed by any party to whom Host has assigned any of its rights or
obligations hereunder.
Xxxxxxx acknowledged that Host may subcontract the Vending Services to
a third party. However, any and all such subcontracts issued hereunder by
Host shall be approved in writing in advance by Xxxxxxx.
30
Xxxxxxx may, at its option, assign any or all of its rights hereunder
without the consent of Host and without recourse to Xxxxxxx.
SECTION 19. TERM AND TERMINATION.
----------- --------------------
19.1 The term of this Agreement shall be from the date hereof until
August 31, 2004. Unless sooner terminated as provided by Section 19.2
below, this Agreement may be renewed, upon agreement by the parties hereto,
on or before the date which is one hundred and eighty (180) days prior to
the expiration hereof for two additional one (1) year period(s).
19.2 This Agreement may be terminated by Xxxxxxx at any time, with or
without cause, upon the provision of thirty (30) days written notice to
Host. This Agreement may be terminated by Host at any time with or without
cause upon the provision of one hundred twenty (120) days written notice to
Xxxxxxx.
19.3 This Agreement may be terminated by Xxxxxxx if Host fails to cure
to the satisfaction of Xxxxxxx any default hereunder after ten (10) days
written notice of such default from Xxxxxxx to Host.
19.4 Upon the expiration or termination of this Agreement, Host shall
immediately (i) vacate the Xxxxxxx Premises; (ii) leave the Xxxxxxx
Premises in a clean and orderly condition to the satisfaction of Xxxxxxx;
(iii) leave all Xxxxxxx Equipment, Xxxxxxx Smallwares, and any Host
Equipment that has become the property of Xxxxxxx in accordance with the
provisions of this Agreement in a clean, orderly, and operating condition;
(iv) remove all food and beverages from the Xxxxxxx Premises; (v) and
provide Xxxxxxx with closing reports of all services rendered under this
Agreement from the beginning of the month in which the Agreement expired or
was terminated up to and including the last day any services were provided
hereunder.
31
19.5 TERMINATION ASSISTANCE: The foregoing paragraph notwithstanding,
in anticipation of and, if so requested by Xxxxxxx, for a reasonable period
of time following any expiration or earlier termination hereof, Host shall
cooperate with and render assistance to Xxxxxxx and such third parties as
Xxxxxxx may identify, to enable the orderly transfer and conversion of
processes, records, procedures and the like in connection with the
provision of the services to be provided hereunder or their equivalent by
such third party or parties as Xxxxxxx may designate or by Xxxxxxx itself
following such expiration or termination. Such assistance shall be
rendered to Xxxxxxx with no price increase and no decrease in the level of
service unless otherwise agreed by the parties.
SECTION 20. WARRANTIES.
---------- ----------
20.1 Host represents and warrants to Xxxxxxx that Host is experienced
and well-skilled in the services it is required to provide hereunder and
acknowledges that Xxxxxxx is relying upon Host to impart that experience in
the performance of its duties hereunder.
20.2 Host represents and warrants to Xxxxxxx that Host is a
corporation duly organized and validly existing under the laws of the State
of Delaware and has full power to conduct its business as currently
conducted and contemplated hereunder and to execute, deliver, and perform
its obligations under this Agreement. All necessary action has been taken
to enable Host to execute and deliver this Agreement and perform its
obligations hereunder.
SECTION 21. PERMITS AND LICENSES.
----------- --------------------
Host shall, at its sole cost and expense, obtain, maintain, and
display in prominent locations designated by Xxxxxxx any and all necessary
permits and licenses required by federal, state, or local authorities for
the provision of the food services required by this Agreement.
32
SECTION 22. STATUS OF PARTIES; CONFIDENTIALITY.
----------- ----------------------------------
22.1 The relationship between Xxxxxxx and Host shall be solely that of
independent contractors, and nothing herein contained shall be construed as
creating any other relationship. Neither Host or any of Host's employees
or agents shall have any authority, power or right to bind or obligate
Xxxxxxx in any way, manner or thing whatsoever.
22.2 All confidential information disclosed in writing by one party to
the other and labeled as confidential will remain the exclusive property of
the disclosing party, and will be used by the receiving party only in
furtherance of the purposes of this Agreement. Each party will maintain
procedures to maintain the integrity of such confidential information of
the other at least equal to those that the receiving party would use to
protect its own confidential information. This Section 22 does not cover
information that is or becomes public knowledge, that is already known to
the receiving party, or that is lawfully made available to the receiving
party by a third party. At the termination or expiration of this
Agreement, all confidential information shall be returned to the disclosing
party except for one archival copy. The obligations of this Section 22
shall survive the expiration or termination of this Agreement.
SECTION 23. TAXES.
----------- -----
23.1 Host shall be solely responsible for the collection and payment
to all applicable federal, state, or local governmental authorities, of all
sales, transfer, value-added and use taxes, fees, and charges associated
with the provision and sale of the food services as contemplated hereunder.
SECTION 24. NON-WAIVER OF DEFAULTS.
----------- ----------------------
Any failure by Xxxxxxx at any time, or from time to time, to enforce
as required the strict keeping and performance of any of the terms or
conditions of this Agreement shall not constitute a
33
waiver of such terms or conditions in any way, or the right of Xxxxxxx at
any time to avail itself of such remedies as it may have for any breach or
breaches of such terms or conditions.
SECTION 25. MERGER OF NEGOTIATIONS.
----------- ----------------------
25.1 The terms and provisions herein contained together with the
exhibits attached hereto constitute the entire agreement between the
parties and shall supersede all previous communications, representations or
agreements, either oral or written, between the parties hereto with respect
to the subject matter hereof, including without limitation, any discussion
outlines, letters of intent or the Host Proposal.
25.2 In the event of any conflict between the terms and provisions of
this Agreement and those of the RFP, the terms and provisions of this
Agreement shall control as to the respective rights, duties, obligations,
and liabilities of Host and Xxxxxxx.
SECTION 26. MISCELLANEOUS.
----------- -------------
26.1 If any dispute occurs between the parties, arising out of or
relating to this Agreement or the respective rights and responsibilities
hereunder, the matter shall be settled and determined by arbitration under
the then current rules of the America Arbitration Association. The
decision and award of the arbitrator shall be final and binding and any
award so rendered may be entered in any court having jurisdiction thereof.
The arbitration shall be held and the award shall be deemed to be made in
the city of Hartford, Connecticut.
26.2 This Agreement shall be binding upon, inure to the benefit of,
and be enforceable by the respective beneficiaries, representatives,
successors and assigns of the parties hereto.
26.3 The Services supplied hereunder (including without limitation any
equipment used in connection with such Services and the process which
insures that the overall Service can be
34
performed to applicable standards) are and will continue to be "Year 2000
Compliant." For the purposes of this Agreement. "Year 2000 Compliant"
means that neither performance nor functionality of the services hereunder
is or will be affected by processing of dates prior to, during, and after
January 1, 2000. Specifically, no value for dates will cause any
interruption in operations; date-based functionally will behave
consistently for dates prior to, curing and after January 1, 2000; in all
interfaces and data storage, the century in any date must be specified
either explicitly or by unambiguous algorithms or inferencing rules; and
the year 2000 must be recognized as a leap year.
26.4 Neither party shall issue any press release or make any public
statement or make any official announcement to the press or the public
regarding this Agreement or its subject matter without the prior written
consent of the other party, which consent may be withheld in such party's
sole discretion..
26.5 Notices under this Agreement shall be sent by U.S. mail, first
class postage prepaid, or by hand delivery, properly addressed to:
If to Xxxxxxx:
The Xxxxxxx Works
0000 Xxxxxxx Xxxxx,
Xxx Xxxxxxx, Xxxxxxxxxxx
Attn: Vice President of Human Resources
With a copy to:
The Xxxxxxx Xxxxx
0000 Xxxxxxx Xxxxx,
Xxx Xxxxxxx, Connecticut
Attn: Manager, Employee Services
With a copy to:
The Xxxxxxx Xxxxx
0000 Xxxxxxx Xxxxx,
Xxx Xxxxxxx, Connecticut
35
Attn: General Counsel
If to Host:
Host America Corporation
Two Broadway
Hamden, Connecticut 06518-2697
Attn: Xxxxxxxx Xxxxxx, President
26.6 Wherever used, the singular shall include the plural, the plural
the singular, and the use of any gender shall be applicable to all genders.
26.7 This Agreement may be amended only by a writing signed by all of
the parties. The terms of this Agreement shall govern over terms of any
Buyer's Order or Seller's quotation pertaining to the subject matter hereof.
26.8 The captions and headings used in this Agreement are for
convenience of reference only and shall not be construed as limitations or
expansions upon the text to which they refer.
26.9 This Agreement may be executed in one or more counterparts, each
of which shall be an original instrument and all of which together shall
constitute one and the same instrument.
26.10 In the event that any provision hereof shall be deemed to be
invalid and unenforceable in any context, such invalidity r
unenforceability shall affect only the particular provision in the
particular context and shall not have an effect upon the remaining
provisions hereof, or the application of the challenged provision in any
other context.
26.11 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of Connecticut without regard to application of
its conflicts of laws principles.
36
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the day and year first above written.
WITNESS:
/s/ THE XXXXXXX WORKS
-------------------------------
Mgr. Employee Services By /s/
------------------------------- -------------------------------
Its VP HR
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/s/ HOST AMERICA CORPORATION
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By /s/ XXXXXXXX XXXXXX
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Director of Marketing
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Its President & CEO
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