EXHIBIT 10.35
AGREEMENT FOR FOOD SERVICES
This Agreement, made this 10th day of August, 2001, by and between HARBOR
PARK ASSOCIATES, 000 Xxxxxx Xxxxxx, Xxxxxxxx, XX 00000 (hereinafter
referred to as OWNER), and HOST AMERICA CORPORATION, located at Two
Xxxxxxxx, Xxxxxx, XX 00000 (hereinafter referred to as HOST) for the
provision of corporate food services.
Witnesseth
In consideration of the covenants herein and intending to be legally bound
hereby, the parties mutually agree as follows:
OWNER hereby grants to HOST, an independent contractor, the exclusive
rights and privileges to provide nutritious quality food service in the
cafeteria and non-exclusive rights to provide special catered events,
Vending Services and Office Coffee Service, according to OWNER's
requirements and needs. Services shall be provided Monday through Friday
between the hours of 7:00AM and 3:00PM, (hours may be adjusted by mutual
agreement) at special functions as requested by the tenants or OWNER, and
at such times as requested by HOST and agreed to by OWNER. The premises
shall not be used to support food service operations at other locations
without prior consent of the OWNER. On the following holidays the building
is closed and no cafeteria services shall be provided: New Years Day,
Memorial Day (observed), Independence Day (observed), Labor Day (observed),
Thanksgiving Day (observed). OWNER reserves the right to use the dining
room facilities after regular cafeteria business hours for special tenant
and OWNER events that may be unrelated to cafeteria operations.
LOCATION OF EQUIPMENT: The location of other equipment necessitated by
growth or building rearrangements by OWNER will be accomplished by HOST
under conditions to be mutually agreed upon as the occasion arises. HOST
shall make no alterations in the Premises unless authorized by OWNER in
writing.
OWNERSHIP OF EQUIPMENT: It is understood that any equipment supplemental to
the services that have been supplied by HOST and not paid for as an expense
of operation shall remain HOST's property at all times. Items included in
the equipment investment to be made by HOST as identified in Exhibit "A"
shall be depreciated over the term of the Agreement and include as an
operating expense. All such equipment shall become the property of the
OWNER at the end of the term or at anytime during the term, should the
Agreement be terminated. In the event that the Agreement is terminated
prior to the end of the term, the OWNER shall reimburse HOST for its
investment based on the value of the unauthorized portion of the
investment. The terms of the Equipment Investment Buy-Back Agreement are
presented in Exhibit "B". HOST shall prepare and maintain an inventory of
all equipment associated with the cafeteria. HOST will take reasonable
precautions to protect said machines and equipment from damage. OWNER 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 OWNER and to be used in connection with the
food service. OWNER will also furnish
to HOST a telephone xxxx within the premises, with appropriate connections
for a computer modem. Any additional telephone equipment required, the
maintenance of telephone equipment and all telephone company service
charges shall be the responsibility of HOST.
MAINTENANCE AND EQUIPMENT: The division of responsibility between OWNER and
HOST is hereafter provided.
OWNER 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, scheduled cleaning of waste piping
lines serving the premises, semiannual cleaning of hoods, ducts,
filters grease traps; and
d) furnishing maintenance services if and when equipped for the proper
maintenance and repairs of said 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. All
costs associated with such maintenance will be billed back, as part of
direct cost of operation, in the amounts set forth on schedule A
annexed to this Agreement and made a part hereof.
b) routine cleaning of the kitchen including cooking equipment, serving
equipment, display counter, and vending equipment, prep areas,
including windows and blinds, storage areas, cold storage areas and
counter areas, and miscellaneous cleaning services,
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 and busing
of tables during business hours..
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 OWNER (not more than 15 people) upon at least two (2)
hours advance notice. HOST will cater special function for OWNER (more
than fifteen (15) people) as requested, at prices mutually agreed upon and
upon at least 72 hours advance notice. All promotion, menu selections and
pricing shall be subject to the review and approval of the OWNER.
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LICENSES AND PERMITS: HOST shall obtain, as a cost of operation prior to
commencing operations at OWNER's premises, all necessary permits, licenses
and other approvals required by law for its operation hereunder. HOST
expects to begin operation on Tuesday, August 14, 2001. OWNER 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: OWNER shall, at its expense, provide HOST with necessary and
sufficient refrigeration, freezer space (but no greater quantity than
presently installed in the premises) heat, light, water, and electricity
for the operations of manual services.
RECORDS: HOST will at all times maintain an accurate record of financial
performance including a daily head count for lunch of all OWNER 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. Monthly reports shall be presented in the format contained
in Exhibit "C". HOST shall keep all such records on file for a period of
three years, and HOST shall give OWNER and its agents the right on demand,
of auditing it's records. All sales, for the purpose of this Agreement,
are defined as collections of any kind (cash, credit cards, corporate
charge, or other) resulting from any other kind attributable to the HOST
operations at Stamford Harbor Park including, subject to OWNER'S prior
approval, sales of product produced at the facility for sale at other
another location, 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 State of
Connecticut, 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. OWNER and
Xxxxxx X. Xxxxxxxx, Inc. (OPERATOR) will be a named insured under each such
policy and will receive not less than thirty (30) days notice of any
termination or modification of such policies directly from the provider.
HOST will provide OWNER with documentation evidencing its compliance (and
continued compliance with this Section) upon request by OWNER. HOST will
indemnify and hold OWNER and OPERATOR, their employees, guests, visitors
and tenants, their employees, guests, visitors, customers or clients
harmless from any and all loss, damage or liability arising directly or
indirectly out of HOST's operation under this Agreement, including
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 OWNER's
premises shall
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be in uniform at all times. All uniforms shall be subject to the approval
of the OWNER. HOST shall provide all employee training as required by
applicable laws and regulations and comply with all applicable OSHA
regulations. HOST employees shall comply with the rules and regulation at
any time promulgated by OWNER for the safe, orderly and efficient conduct
of all activities being carried out while on OWNER's premises. HOST shall
not retain at the premises any employee not acceptable to OWNER for any
reason. OWNER 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. Any statement
rendered is due and payable within 30 days after receipt. 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: HOST agrees to compensate OWNER in accordance with
Addendum A, Cafeteria Base Rent Calculation and Cafeteria Supplemental Rent
Calculation contained in Exhibit "D". Until such time that HOST and OWNER
complete modifications to the Serving Area and Dining Room, compensation to
the OWNER shall be based on HOST'S Temporary Dining Service Performance
Schedule (Phase I conditions only) contained in Exhibit "E". All payments
to the OWNER shall include a statement of gross sales applicable to the
prior fiscal period. Payments by HOST to the OWNER shall be due on the
15th day of the month following the close of each fiscal period (prior
month). 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. 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. HOST
shall hold OWNER harmless form any liability, cost or expense form any
dispute or failure to pay taxes owed.
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 OWNER shall be agreed upon and effected by appropriate
officials of the parties. 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.
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CONFIDENTIAL INFORMATION: Certain proprietary materials including recipes,
signage, surveys, management procedures, and similar information regularly
used in HOST's operations shall be confidential information. OWNER will
not disclose any confidential information, directly or indirectly, during
or after the term of Agreement. OWNER 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 August 10, 2001, and shall remain in force for five (5) years. It
shall thereafter renew itself automatically for one-year periods until
either party gives notice of termination in writing by registered mail, at
least sixty (60) days prior to the termination. OWNER 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. OWNERS'S termination rights may also be exercised in the event
that (1) operating loses passed on to the OWNER by HOST as a result of the
financial performance of the food service are deemed to be unacceptable to
the OWNER or (2) the building is sold.
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 OWNER be sent to, Xxxxxxx
Xxxxxx, Vice President, c/o Harbor Park Associates, 000 Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00000. Xxx notices shall be in writing and shall be hand
delivered or mailed as indicated, or reputable overnight courier service
that obtains a signature upon delivery or mailed as indicated above.
Assignment: This Agreement shall be binding upon, an shall inure to the
benefit of, the parties hereto and their respective successors and
permitted assigns. This Agreement may not be assigned by either party
without the consent of either party. All legal costs associated incurred
by the OWNER in connection with any assignment proposed by HOST shall be
paid for by HOST and not be considered a cost of operation.
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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: LANDLORD:
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Harbor Park Associates
By: Massachusetts Mutual Life Insurance
Company
By: Cornerstone Real Estate Advisors, Inc.
By: _______________________________
Name: _____________________________
Its: ______________________________
ATTEST: Host America Corporation
______________________ By _______________________________
Xxxxxxxx Xxxxxx
President
duly authorized,
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