EXHIBIT 10.47
EMERGENCY FOOD PREPARATION AGREEMENT
BETWEEN
HOST AMERICA CORPORATION / XXXXXXX FOOD SERVICE CORPORATION
AND
SUBURBAN BOSTON CONSORTIUM OF ELDER NUTRITION PROGRAMS
THIS AGREEMENT is made and entered into this day by and between SUBURBAN
BOSTON CONSORTIUM of ELDER NUTRITION PROGRAMS (the "Consortium"), whose
Members are (1) Mystic Valley Elder Services, Inc., 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, XX 00000 (2) Somerville-Cambridge Elder Services, Inc.,
00 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 and (3) Springwell, Inc., 000
Xxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, hereinafter called the "Client", and
HOST AMERICA CORPORATION / XXXXXXX FOOD SERVICE CORPORATION, a
corporation with its office and place of business at Two Xxxxxxxx,
Xxxxxx, XX 00000-0000, hereinafter called "Host".
W I T N E S S E T H;
--------------------
The parties agree and obligate themselves and successors and assigns as
follows:
1. TERM: The term of this Agreement shall commence on the 17th day of
March 2003, and shall continue until the 13th day of March 2004. This
Agreement may be extended up to September 30, 2004, upon mutual agreement
between Host and the Client.
2. TERMINATION: The Client may terminate this Agreement with or without
cause by giving ninety (90) days written notice to Host of its intention
to terminate this Agreement at the end of such ninety (90) days. Host
may terminate this Agreement with or without cause by giving ninety (90)
days written notice to the Client of its intention to terminate this
Agreement at the end of such ninety (90) days.
If the Client, in exercising its reasonable business judgment, determines
that any non-compliance by Host with terms of this Agreement endangers
the life, health, and safety of any recipients of services provided under
this Agreement, then Client may terminate this Agreement immediately by
notifying Host as follows:
Step #1: Oral notice to the President of Host indicating that Host has
not complied with the terms of the Agreement and such non-compliance has
endangered the life, health or safety of the recipients of services under
the Agreement along with a similar written notice sent by facsimile to
the President of Host and;
1
Step #2: Within three (3) business days of the notice in step #1, Client
shall send written notice to Host's President detailing the exact nature
of the non-compliance, and how it has endangered the life, health or
safety of the recipients.
3. NOTICE: Any notice required or permitted to be given shall be in
writing and shall be mailed by certified mail or personally delivered. A
notice shall be deemed to be given three (3) days after it is mailed or
upon receipt if personally delivered. Any notice to Host shall be
addressed to: Attn: President, Host America Corporation, Two Xxxxxxxx,
Xxxxxx, XX 00000-0000; and in the case of the Client to: Suburban Boston
Consortium c/o Executive Director, Mystic Valley Elder Services, 000
Xxxxxxxxxx Xxxxxx #00, Xxxxxx, XX 00000. Either party may change its
address by giving ten (10) days written notice to the other party.
4. EXCLUSIVE RIGHT: Host shall have the exclusive right to provide the
services called for by this Agreement during the term of this Agreement.
5. OBLIGATIONS OF HOST: Host shall be responsible for the preparation of
meals including: (a.) providing and maintaining a production kitchen and
equipment for the preparation of meals (the "Food Preparation
Facilities"); (b.) maintaining the Food Preparation Facilities in a
sanitary condition; (c.) performing all buying and record keeping
functions; (d.) employing and training food service employees; (e.)
furnishing supervisory personnel to establish and maintain the operation
at a high standard; (f.) instituting reliable food cost control methods;
(g.) providing for any and all real or personal property tax or similar
tax related to the Food Preparation Facilities; (h.) maintaining adequate
fire and hazard insurance on the Food Preparation Facilities; and (i)
compliance with the terms and specifications of that certain Request for
Proposal entitled "Bid Specifications Suburban Boston Consortium of Elder
Nutrition Programs Fiscal Years 2002-2005" (the "RFP") to the extent
those terms are not inconsistent with the terms of this Agreement.
6. OBLIGATIONS OF THE CLIENT: The Client shall be responsible for: (a.)
providing and maintaining sites and personnel for the serving of meals
(the "Serving Sites"); (b.) maintaining the Serving Sites in a sanitary
condition; (c.) maintaining the Serving Sites in accordance with all
laws, regulations, orders, directives, statutes, and other rules of any
federal, state, or local government bureau or department applicable to
the Serving Sites; (d.) maintaining Host's equipment located at the
Serving Sites, if any; (e.) serving the meals at the Serving Sites; (f.)
maintaining adequate fire and hazard insurance on the Serving Sites; and
(g.) administering the nutrition services in compliance with all rules
and regulations of the U.S. Department of Health and Human Services
(HHS).
6a. TAX EXEMPT STATUS: The Client will submit to Host proof of its
tax-exempt status prior to (or simultaneous with) the execution of this
Agreement.
7. CLIENT'S RIGHT TO INSPECT: Host shall operate the Food Preparation
Facilities in a manner compliant with the terms and conditions of the
RFP. The Client shall have the right to inspect the Food Preparation
Facilities from time to time.
2
8. COMPLIANCE WITH REGULATIONS: Each party shall comply with all laws,
ordinances, regulations, orders, directives, statutes, and other rules of
any federal, state, or local government bureau or department applicable
to their activities hereunder.
Host's employees and agents shall also comply with applicable rules and
regulations concerning conduct on the Client's premises which the Client
imposes upon its employees and agents provided such rules and/or
regulations are not in violation of any federal, state, and/or local
laws.
9. OWNERSHIP OF INVENTORY: Host shall maintain title to all inventories
purchased by Host.
10. PROPRIETARY INFORMATION: During the term of this Agreement, the
Client acknowledges that it may acquire or obtain access to proprietary
information or materials (the "Proprietary Items") of Host. Proprietary
Items are defined as confidential information or materials related to the
business of Host which include, but are not limited to, trade secrets,
signage, trademarks, logo, trade dress (including product package
design), symbols, slogan emblem, computer software, recipes, diet
manuals, videotapes, technical and non-technical data related to the
operations, methods, techniques, processes, finances, existing and future
products, actual or potential customers and suppliers, procedure and/or
personnel manuals, and any information which has been disclosed to Host
by a third party which Host is obligated to treat as confidential.
All Proprietary Items are confidential to and are and will remain the
sole and exclusive property of Host. In the event the Client receives,
obtains access, or otherwise is exposed to any Proprietary Items, the
Client will and shall cause its officers, employees, and agents to, (a.)
hold the Proprietary Items in trust and in strictest confidence, (b.) not
produce, use, distribute or otherwise disseminate the Proprietary Items
except to the extent necessary to aid the performance of the services
provided by Host, and (c.) otherwise protect the Proprietary Items from
disclosure.
Upon request by Host and/or termination of this Agreement, the Client
shall return all property belonging to Host, including without
limitation, all tangible materials (originals or copies) containing or
embodying Proprietary Items then in its custody, control, or possession.
11. INSURANCE: Host shall maintain Workers' Compensation Insurance and
Employers Liability covering Host's employees with limits of $100,000 per
accident, $100,000 per disease, and disease aggregate of $500,000.
Host shall maintain Comprehensive General Liability with limits of
$1,000,000 General Aggregate, $1,000,000 Products and Completed
Operations, $1,000,000 Personal Injury, and $1,000,000 each occurrence.
Host shall maintain Comprehensive Automobile Insurance covering Host's
vehicles with limits of $1,000,000 Combined Single Limit. Host will
procure six (6) 12 foot box trucks and one (1) back up van for the
program.
Host shall cause certificates of insurance to remain current and
delivered to the Client.
3
12. INDEMNITY: The Client hereby releases, indemnifies and agrees to hold
harmless Host from and against any loss, liability, claims, damages,
costs, and expenses, including without limitation attorneys' fees,
asserted by any third-party for claims or actions solely arising out of
or as a result of the Client's negligence.
Host shall likewise release, indemnify and agree to hold harmless the
Client from and against any loss, liability, claims, damages, costs, and
expenses, including without limitation attorneys' fees, asserted by any
third-party for claims or actions arising out of or as a result of Host's
negligence.
13. RELATIONSHIP OF THE PARTIES: Host shall at all times act as an
independent contractor. No employee of Host shall be deemed an employee
of the Client, and no employee of the Client shall be deemed an employee
of Host. Host and the Client shall have full responsibility for payment
of wages and compensation to their respective employees and for
compliance with all applicable federal and state payroll tax requirements
with respect to their respective employees. Host shall be solely
responsible for the supervision of its employees in accordance with Equal
Opportunity Laws, Executive Orders, and Host and/or Client policies and
procedures. Host shall have sole control of the manner and means of
performing its obligations hereunder.
14. EQUAL OPPORTUNITY EMPLOYMENT: In the performance of this Agreement,
neither party shall discriminate against any employee or applicant for
employment because of race, color, religion, sex, national origin, or
age, nor shall either party discriminate against the handicapped,
disabled, or veterans, including those of the Vietnam era. Host shall
take affirmative action to insure that, to the extent possible, eligible
persons are employed, and that employees are treated, during employment,
without discrimination because of their race, color, religion, sex,
national origin, age, handicap, disability, or veteran status, including
veterans of the Vietnam era.
15. NON-SOLICITATION OF EMPLOYEES BY CLIENT: It is understood that the
employees of Host who will supervise the operation of the Food
Preparation Facilities have been recruited and trained by Host at
substantial expense. The Client shall not hire directly or indirectly,
or offer employment to, or allow any other entity or concern over which
it has any control to hire or offer employment to any such employee of
Host in the operation of any Food Preparation Facilities during the term
of this Agreement or for one (1) year thereafter, unless such employees
were former employees of the Client. Host may proceed to enjoin such
unauthorized employment. If legal action is necessary to enforce this
provision or to collect damages, Host shall be entitled to recover all
legal expenses, including reasonable attorney's fee.
16. NON-SOLICITATION OF EMPLOYEES BY HOST: It is understood that the
employees of the Client have been recruited and trained by Client at
substantial expense. Host shall not hire directly or indirectly, or
offer employment to, or allow any other entity or concern over which it
has any control to hire or offer employment to any such employee of the
Client during the term of this Agreement or for one (1) year thereafter,
unless such employees were former employees of the Host. Client may
proceed to enjoin such unauthorized employment. If legal action is
necessary to enforce this provision or to collect damages, Client shall
be entitled to recover all legal expenses, including reasonable
attorney's fee.
4
17. FORCE MAJEURE: In the event of a business interruption other than
that caused by Host, the Client shall be entitled to extend to Host the
term of this Agreement by as many days as are involved in the business
interruption. Should there be such business interruption, this Agreement
shall be renegotiated immediately and such renegotiated Agreement shall
last the duration of the business interruption. The definition of
business interruption will include, but is not limited to, war, public
disorders, acts of enemies, sabotage, strikes, lockouts, picketing, labor
difficulties, fires, uncompleted construction or acts of God only if not
preventable, or any similar or dissimilar cause beyond the control of
either party.
18. EVENT OF DEFAULT AND REMEDIES: In the event either party defaults in
the performance of its obligations under this Agreement and such default
is not cured within ten (10) business days of the receipt of written
notice thereof, the non-defaulting party shall have the right, in
addition to any other rights it may have, to terminate this Agreement
without further notice. If the nature of the default is such that it may
not be reasonably cured within ten (10) business days, the defaulting
party shall not be in default if appropriate cure is commenced within ten
business (10) days and thereafter a cure is reasonably prosecuted to
completion.
19. ASSIGNMENT: Neither Host nor the Client may assign or transfer this
Agreement in whole or in part without the written consent of the other
party. Such consent shall not be unreasonably withheld.
20. METHOD OF OPERATION: Host shall prepare and deliver meals (including
therapeutic and weekend meals) for the Client's distribution to the
following locations:
- Serving Sites
- Designated points of delivery for the home-delivered meals
(the "Delivery Points").
The respective three (3) Client members will furnish Host with final meal
counts for regular meals including congregate, home delivered, home
delivered and congregate cold suppers, home delivered breakfast, frozen,
holiday, and weekend meals by 2:00 p.m. of the day prior to meal service.
Ordinarily, the members will furnish these counts no earlier than 12:45
of the day prior to regular meal service.
Upon delivery of meals to each Serving Site or Delivery Point, an
authorized on-site representative (if present) of the Client shall sign a
meal delivery ticket in duplicate certifying the number, types, and
quantity of meals and supplies, if applicable, delivered. One copy shall
be returned to Host's employee delivering the meals, and a copy shall be
retained by the Client's representative. Such meal delivery ticket shall
be the controlling document in the event of disputes over the number of
meals delivered.
In the event that an authorized on-site representative of the Client is
not present upon the delivery of the meals to the Serving Site or
Delivery Point, then upon arrival the on-site representative will sign
the meal delivery ticket in duplicate certifying the number, types, and
quantity of meals and supplies, if applicable, delivered. The on-site
representative will then leave one copy for Host's employee to pick up
the next time he or she delivers meals to such Serving Site or Delivery
Point, and a copy shall be retained by the Client's representative.
5
21. DAYS OF OPERATION: Meals shall be prepared five (5) days a week for
the term of this Agreement, except designated holidays.
22. OBLIGATIONS OF HOST: Host will deliver all congregate meals to the
Serving Sites in bulk.
Host will provide box/picnic lunches, and/or shelf-stable meals as
requested provided Host is given two (2) weeks' advance notice of the
requirement for such meals.
Host will provide special events meals as requested provided Host is
given one (1) week's advance notice of the requirement for such meals.
Host will deliver and maintain while in Host's possession food according
to the following specifications:
- Hot foods will be at or above 140 degrees Fahrenheit.
- Cold foods will be at or below 40 degrees Fahrenheit.
- Frozen foods will be at or below 0 degrees Fahrenheit.
- Neutral foods will be at room temperature.
Host will prepare a monthly holiday/special events menu for each Serving
Site on such days as are determined by mutual agreement between Host and
the Client.
23. MENUS: All meals shall meet or exceed the one-third daily
Recommended Dietary Allowance for persons age fifty-one (51) and over as
established by the Food and Nutrition Board of the National Academy of
Science National Research Council. Meals will also meet the nutrition
standards set forth by the Massachusetts Executive Office of Elder
Affairs. Menus will be planned by both parties and for 2-month periods
of time.
24. CHARGES: In consideration for meals and services provided to the
Client, Host will charge the Client the Contract Rate as follows
regardless of volume:
Meal Type Contract Rate Base Emergency
Bid Rate Operating Surcharge
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Regular hot congregate meals $2.83 per meal $2.27 $.56
----------------------------------------------------------------------------------------------
Regular hot home delivered meals $3.07 per meal $2.71 $.36
----------------------------------------------------------------------------------------------
Cold breakfast home delivered meals $2.42 per meal $1.86 $.56
----------------------------------------------------------------------------------------------
Cold supper home delivered meals $2.85 per meal $2.50 $.35
----------------------------------------------------------------------------------------------
Therapeutic hot home delivered meals $3.40 per meal $2.86 $.54
----------------------------------------------------------------------------------------------
Frozen Kosher Meals w/ cold pack $6.79 per meal $5.95 $.84
----------------------------------------------------------------------------------------------
Cold pack only HDM $.95 / cold pack $ .89 $.06
----------------------------------------------------------------------------------------------
Frozen Regular meals Cost plus$.17 per meal 13% $.00
----------------------------------------------------------------------------------------------
6
*(Handling fee per each chef pantry frozen meal at actual cost through
state purchasing program)
The food cost shall average at least $1.23 per meal.
The Client is responsible for payment of paper and disposables at Host's
cost for all meals produced, for the life of the contract. Host will
purchase these disposables through the Massachusetts Paper Consortium
vendor (currently Mansfield Paper, Inc), for which the Client is a
member. Disposable / paper usage and cost will be broken down and listed
directly onto each individual agency weekly invoice. Host will be
responsible for receiving and disbursing paper products ordered for
congregate meal sites by SCES and Springwell. If Host has access to
paper products at a lesser cost than the specified products that the
Client uses through the Massachusetts Paper Consortium Vendor, Host must
obtain prior approval by the Client to use these products.
25. MEAL SHORTAGES: In the event Host fails to deliver meals or portions
of meals, or Host delivers food that is unwholesome, fails to meet
specifications, or has been substituted without prior approval, the
Client's representative shall note all discrepancies on the meal delivery
ticket and the following procedures shall apply:
1. ALTERNATE VENDOR PROCEDURES: The Client's representative shall procure
the necessary items from an alternate vendor. Host will be responsible
for establishing appropriate alternate vendors in the local area. All
meals or portions of meals procured from alternate vendors must meet the
one-third (1/3) Recommended Dietary Allowance.
Host will be responsible for alternate vendor bills. Supporting
documentation must be submitted to Host for all such payments. The
Client will submit to Host all requests for alternate vendor payments
within thirty (30) days of occurrence.
2. MEAL CREDITS: When meals or portions of meals cannot be replaced using
an alternate vendor, Host will issue a credit to the Client based on the
following allocation:
Percentage of
Food Grouping Meal Cost
------------- -------------
Meat or Meat Alternative 41%
Fruit/Salad 15%
Milk 15%
Vegetable or Soup 10%
Dessert (other than fruit) 10%
Bread or Bread Alternative 5%
Margarine 2%
Condiments 2%
Credits will be deducted from the Client's invoice.
The Client will submit to Host all requests for credits within thirty
(30) days of occurrence.
7
26. CLOSINGS: In the event the Client and/or the State or local
government permanently closes a Serving Site/Delivery Point, the Client
shall notify Host of the closing five (5) working days in advance. If
five (5) working days notice is not provided, the Client shall pay for
the normal number of meals served at such closed Serving Site/Delivery
Point, or accept menu substitutions which will allow Host to utilize food
products which were purchased for the closed day.
In the event the Client and/or the State or local government temporarily
closes a Serving Site/Delivery Point, the Client shall notify Host of the
closing two (2) working days in advance. If two (2) working days notice
is not provided, the Client shall pay for the normal number of meals
ordered for such closed Serving Site/Delivery Point, or accept menu
substitutions which will allow Host to utilize food products which were
purchased for the closed day.
In the event a Serving Site/Delivery Point is closed due to inclement
weather, acts of God, and/or other unforeseen emergencies, the Client
shall not be responsible for payment for food to be delivered on said day
if notice has been given to Host by 7:00 a.m. of the serving day. If
necessary under these circumstances, Host may make menu substitutions on
the following serving day, which shall be reported to the Client as soon
as possible.
In the event inclement weather or any other act of God is predicted, Host
may consult with the Client to determine if shelf-stable meals should be
sent the day or days before such event is predicted to occur.
27. BILLING AND PAYMENT: On or before the fifth (5th) day of each week,
Host will xxxx the three (3) Consortium member agencies for the preceding
week's charges. Additionally, Host will submit a monthly account
receivable (A/R) statement to each member, pertaining to each members A/R
aging.
Payments made by the Client to Host are due within thirty (30) days from
invoice date. If payment is not made forty-five (45) days from invoice
date, the price of all meals on such overdue invoice will be increased by
three ($.03) cents. A quick pay discount of 1.25% will be offered on all
invoices paid fourteen (14) days of invoice date. The following chart
illustrates the prices for each meal, provided the quick payment discount
is received by Host America's office within fourteen (14) days of invoice
date.
Meal Type Contract Rate Discount Discount Meal
Rate Price
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
Regular hot congregate meals $2.83 per meal 1.25% $2.79
----------------------------------------------------------------------------------------------
Regular hot home delivered meals $3.07 per meal 1.25% $3.03
----------------------------------------------------------------------------------------------
Cold breakfast home delivered meals $2.42 per meal 1.25% $2.39
----------------------------------------------------------------------------------------------
Cold supper home delivered meals $2.85 per meal 1.25% $2.81
----------------------------------------------------------------------------------------------
Therapeutic hot home delivered meals $3.40 per meal 1.25% $3.36
----------------------------------------------------------------------------------------------
Frozen Kosher Meals w/ cold pack $6.79 per meal 1.25% $6.71
----------------------------------------------------------------------------------------------
Cold pack only HDM $.95 / cold pack 1.25% $0.94
----------------------------------------------------------------------------------------------
Frozen Regular meals Cost plus$.17 per meal 0% $.17
----------------------------------------------------------------------------------------------
8
28. MAINTENANCE OF RECORDS: Host shall maintain records for a minimum of
six (6) years after the end of the federal year to which they pertain
unless litigation, claim, or audit is started before the end of the six
(6) year period, in which case the records shall be retained until all
litigation, claim, or audit finding involving the records has been
resolved.
29. CLIENT'S RIGHT TO AUDIT: The Client reserves the right to audit
records pertaining to Host's operation of the Food Preparation Operation
of the Client. The cost of such audit will be at the sole expense of the
Client and shall be conducted at Host's location where said records are
normally maintained upon reasonable notice.
30. ARBITRATION: GOVERNING LAW, VENUE: Any controversy or claim greater
than $10,000 arising out of or relating to this Agreement or the breach
thereof shall be resolved by arbitration administered by the American
Arbitration Association under its Commercial Arbitration Rules, and shall
be binding on all parties. Any controversy or claim less than $10,000
may be heard either in a court of law or, as with claims in excess of
$10,000, resolved by arbitration.
The parties mutually agree that the proper locale for any such
arbitration proceeding shall be Boston, MA. Any judicial proceeding
filed by either party to enforce the terms of this Agreement shall be
held in either Federal District Court for Massachusetts or the
Massachusetts Superior Court or District Court located in Middlesex
County, MA. Any claim or controversy arising out of this Agreement,
regardless of whether heard by a judge or by an arbitrator, shall be
governed by the laws of the Commonwealth of Massachusetts without regard
to any principles of conflicts of laws.
31. HEADINGS AND CAPTIONS: All headings and captions appearing in this
Agreement are inserted for purposes of convenience and reference only,
and shall not be used to construe or interpret any provision hereof.
32. SEVERABILITY: If any term, covenant, or condition of this Agreement
or the application thereof to any person or circumstance shall be invalid
or unenforceable, the remainder of this Agreement and the application of
any term or provision to persons or circumstances other than those as to
which it is held invalid or unenforceable shall not be affected thereby,
and all other terms shall be valid and enforceable to the fullest extent
permitted by the law.
33. WAIVER OF CONTRACTUAL RIGHT: The failure of either party to enforce
any provision of this Agreement shall not be construed as a waiver or
limitation of that party's right to subsequently enforce and compel
strict compliance with every provision of this Agreement.
34. EQUIPMENT: The Client will maintain ownership of all delivery
equipment transferred to the Host facility on or before March 14th, and
any equipment purchased by the Client for the duration of the contract.
Delivery Equipment includes but is not limited to the following:
Cambro-Camcarriers, Cambro-Soup Containers, Coolers, Nutra-Systems,
Insulated Soft Bags, Hotel Pans and Covers, Warming Ovens, Cambro
Dollies.
9
35. ENTIRE AGREEMENT; MODIFICATION: This Agreement and the Consortium RFP
(attached hereto as Exhibit "A") set forth the entire agreement of the
parties with respect to the subject matter hereof, and supercede all
existing written or oral agreements between these parties concerning such
subject matters. In the event of any conflict between this Agreement and
the Consortium RFP, the provisions of this Agreement shall control.
36. AUTHORITY: Host and the Client each represent that the person
executing this Agreement on its behalf, in duplicate, has been duly and
validly authorized to execute this Agreement on its behalf and that such
person has full power and authority under all applicable laws and their
respective articles of incorporation, bylaws or other governing
instrument to enter into this Agreement.
(THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
00
XXXX XXXXXXX XXXXXXXXXXX XXXXXXXX XXXXXX CONSORTIUM
By: Mystic Valley Elder Services, Inc.
-------------------------
Title: President & CEO By:
---------------------- ------------------------------
Date: Title:
---------------------- ---------------------------
Attest: Date:
------------------------------
Attest:
By: By:
------------------------- ------------------------------
Somerville-Cambridge Elder
Services, Inc.
By:
------------------------------
Title:
---------------------------
Date:
----------------------------
Attest:
By:
------------------------------
Springwell, Inc.
By:
------------------------------
Title:
---------------------------
Date:
----------------------------
Attest:
By:
------------------------------
11
