Exhibit 10.38
AGREEMENT FOR SERVICES
The Property Manager and the Contractor identified below hereby enter into
an agreement to provide the services identified below to the Property
identified below, during the contract Term identified below, all upon and
subject to the terms and conditions set forth below and/or attached hereto.
PROPERTY
MANAGER XXXXX MANAGEMENT COMPANY, LLC
000 XXXX XXXXX XXXXX, XXX XXXXX, XX 00000
PROPERTY
OWNER ARMSTRONG PARK ASSOCIATES
PROPERTY
ADDRESS 0 XXXXXXXXX XXXX, XXXXXXX, XX 00000
CONTRACTOR NAME Host America
DDRESS Two Broadway, Hamden, CT 06518-2697
CONTRACT
TERM DATE (FROM): 11/12/01 THROUGH (TO): 11/11/02
THE CONTRACT TERM IS SUBJECT TO EARLIER TERMINATION
BY THE PROPERTY MANAGER AS PROVIDED ON THE REVERSE SIDE.
CONTRACTOR REPRESENTATIVE: Xxxxxxxx X. Xxxxxxxxx
COMPLETE
DESCRIPTION
OF
SERVICES XXXXXXXXX XXXX - 0 XXXXXXXXX XXXX (Building I)
Cafeteria Food Services
See Rider A and Operating Expense Responsibility summary attached hereto
and Made a part hereof.
FOR THE SERVICES TO BE PROVIDEDBY CONTRACTOR UNDER THIS
AGREEMENT, CONTRACTOR SHALL BE PAID THE FOLLOWING:
COMPENSATION
AND
PAYMENT
SCHEDULE Owner agrees to pay Contractor a Management Fee
of $200 per week and Administrative Fee Of $270
per week. Owner agrees to pay cafeteria
operating loss (difference between net sales
(gross sales less sales tax) less operating
expenses). Owner will receive a proportionate
subsidy reduction based on sales increases.
Targeted subsidy $37,226.00. Contractor will
submit monthly sales figures and provide
Quarterly pro-forma budget to insure that
targeted subsidy is not exceeded.
Contractor will be paid Management Fee and
Administrative Fee on 1st of every month.
Subsidy Shortfall will be paid following
submission of monthly sales figures. (See Owner
Section 8)
THIS AGREEMENT SHALL NOT BE BIDNING UPON THE PEROPERTY MANAGER UNELSS AND
UNTIL EXECUTED BY A DULY AUTHORIZED OFFICER OF THE PROPERTY MANAGER.
CONTRACTOR ACKNOWLEDGES IT HAS READ AND AGREES TO ALL OF THE TERMS AND
PROVISIONS SET FORTH ON THE REVERSE SIDE HEREOF.
PROPERTY MANAGER: CONTRACTOR:
XXXXX MANAGEMENT COMPANY, LLC HOST AMERICA
BY: BY:
NAME: Xxxxx Xxxx NAME: Xxxxxxxx Xxxxxx
TITLE: Property Manger TITLE: President
DATE: 10/29/01 DATE: 10/29/01
1, ENGAGEMENT OF THE CONTRACTOR
101. The Property Manger hereby engages the Contractor to perform and
the Contractor hereby agrees to perform, during the Contract Term, the
services to be provided under this Agreement in accordance with the terms
and conditions and for the consideration set forth herein. The person in
charge of the services to be rendered on behalf of the Contactor under this
Agreement shall be as set forth above or such other qualified person as
designated by the contractor in writing to the Property Manager. The
Contractor shall not subcontract any of the services to be performed by it
under this Agreement without prior written approval of the Property
Manager. In performing the services under this Agreement, the Contractor
shall consult with the Property Manager and shall meet, as directed by the
Property Manager, with such other persons or entities as may be necessary.
2. SCOPE OF SERVICES
-----------------
201. The services to be provided by the Contractor shall be performed in
a satisfactory manner, as determined by the Property Manager in accordance
with the Property Owner's standards, this Agreement and all applicable
laws, rules and regulations.
202. The Contractor shall have in its employ at all times a sufficient
number of capable employees to enable it to properly, adequately and safely
perform the services hereunder. All matters pertaining to the employment,
supervision, compensation, promotion and discharge of such employees are
the responsibility of the contractor, which is in all respects the employer
of such employees.
203. Contractor shall fully comply with all applicable laws and
regulations with respect to worker's compensation, social security,
unemployment insurance, hours, labor, wages, working conditions and other
employer-employee related subjects. Contractor represents that it is and
will continue to be an equal opportunity employers. all employment
arrangements are therefore solely its concern and neither the Property
Manager nor the Property Owner shall have any liability with respect
thereto.
204. Contractor shall be responsible for full compliance with federal,
state and municipal laws, ordinances, regulations and orders relative to
the performance of its services hereunder. Contractor shall promptly
notify the Property Manager of any violation of any such law, ordinance,
rule, regulation or order which comes to the Contractor's attention.
205. The services shall include all labor, materials, equipment sand
services necessary to provide the specific services to be performed
hereunder. The Contractor shall be responsible for obtaining all licenses,
permits and approvals necessary to perform its services hereunder. The
Contractor represents and warrants that it currently is (and shall remain
during the entire Contract Term) authorized to do business in the State of
Connecticut and properly licensed by (and registered with) all necessary
governmental and public and quasi-public authorities having jurisdiction
over it and over said services.
206. In performing its services hereunder, the Contractor shall at all
times be an independent contractor and not an employee or agent of the
Property Manager or the Property Owner. Nothing contained herein or in the
relationship of the Property Manager and the Contractor shall be deemed to
constitute an employment agreement, partnership, joint venture or any other
relationship other than that of an independent contractor.
207. The Contractor further agrees that it is subject to and shall comply
with all applicable laws, ordinances and regulations of the Federal
government, the Sate of Connecticut and the city/town in which the Property
is located, regarding equal employment opportunity, as the same may be
amended from time to time.
3. TIME OF PERFORMANCE: PAYMENTS
------------------------------
301. The services to be provided under this Agreement shall commence as
of the commencement date of the Contract Term and shall continue thereafter
during the contract Term. The Contractor shall perform the services set
forth in this Agreement at such times and in such sequence as may be
directed by the Property Manager.
302. The sums to be paid to the contractor, as set forth above, represent
full and total compensation for all of the services to be provided by the
Contractor under this Agreement. In no event shall the Contractor be
entitled to the payment of additional sums, whether for "extras",
additional services or otherwise, unless the same shall have been
authorized in advance, in writing by the Property Manager, which written
authorization shall specifically identify the services so authorized as
entitling the Contractor to additional payment and specifying the amount
and terms thereof.
303. The Contractor shall be responsible for the payment of any and all
sales, use and other similar taxes imposed by law in connection with this
Agreement.
4. TERMINATION
-----------
401. The Property Manager may terminate this Agreement (i) for "cause" by
giving the Contractor not less than three (3) days prior written notice,
and (ii) for any other reason (without "cause") by giving the Contractor at
least thirty (30) days prior written notice. If this Agreement is
terminated by the Property Manager as provided herein, the Contractor will
only be entitled to receive payment for amounts payable through the date of
termination.
402. The termination of this Agreement by the Property Manager shall not
relieve the Contractor of any of its obligations accrued under this
Agreement prior to the effective date of such termination.
403. In addition to any other rights or remedies of the Property Manager,
in the event the contractor fails to perform any of its services or fails
to keep, carry out and perform any of the terms herein, the Property
Manager may perform same and charge the cost thereof to Contractor
and/or deduct same from any sums due Contractor hereunder.
404. The contractor does hereby covenant and agree that it will not, at
any time for any cause, file or permit to be filed by any of its
subcontractors or materialmen, any liens against the Property and the
Contractor releases the Property from any and every lien, charge, claim or
demand of any nature that it might otherwise have against same.
405. No waiver by the Property Manager of any breach by the contractor
shall be a waiver of any subsequent or different breach by the Contractor.
All of the Property Manger's rights and remedies set forth herein shall be
cumulative and in addition to any other remedies available at law or
equity.
5. INDEMNIFICATION AND INSURANCE
-----------------------------
501. The Contractor agrees to indemnify, defend and hold the Property
Manager and the Property Owner, and their respective officers, agents and
employees, harmless from and against all costs, liabilities, claims, suits,
expenses and damages, including reasonable attorneys' fees, arising out of,
or incurred in connection with, the Contractor's (and/or its employees'
intentional acts or omissions, negligence or default in the performance of,
or compliance with, any term or covenant of this Agreement.
502. Prior to the commencement of the term of this Agreement, the
contractor shall furnish to the Property Manager a certificate of insurance
evidencing all insurance the Contractor is obligated to carry under this
Agreement, which certificate shall contain an endorsement providing that
the Property Manager and the Property Owner will be give at least 30 days
prior written notice of cancellation of, or any material change in, the
insurance coverage.
503. During the entire Contract Term, the Contractor shall maintain the
following insurance coverage in the following minimum amounts: Worker's
Compensation - Statutory Amount; Employer's Liability - $1,000,000.00
minimum; Comprehensive General Liability - $1,000,000.00 Bodily Injury each
occurrence and aggregate and $100,000.00 Property Damage; Employee
Dishonesty - $20,000.00; and Business Auto Policy - Statutory Amount. The
Property Manager and the Property Owner shall be named as additional
insured on the contractor's insurance policies. Higher amounts may be
required by the Property Manager if the services to be performed are
sufficiently hazardous.
6. GENERAL TERMS AND CONDITIONS
----------------------------
601. This Agreement is subject to and incorporates the provisions of any
Riders and Schedules attached hereto. If there are any conflicts between
the printed provisions of this Agreement and the typed provisions of this
Agreement and/or said Riders and Schedules, then the typed provisions and
Riders/Schedules shall control. Paragraph headings are provided for
convenience only.
602. This Agreement, its terms and conditions, and any claims arising
therefrom shall be governed by Connecticut laws. The contractor shall
comply with all applicable federal, state and local laws, ordinances and
codes.
603. The Contractor and the Property Manager hereby waive trial by jury
as to any and all claims, disputes and causes of action arising out of or
in connection with this Agreement. Notwithstanding any such claim,
dispute or legal actions, the Contractor shall continue to perform services
under this Agreement in a timely manner, unless otherwise directed by the
Property Manager.
604. This Agreement is personal to the Contractor and the contractor
shall have no right to assign this Agreement or any portion hereof or any
monies due or to become due hereunder, either voluntarily, involuntarily or
by operation of law, without the prior written approval of the Property
Manager. Subject to the foregoing, this Agreement shall be binding upon
and inure to the benefit of the successors and assigns. Furthermore, this
Agreement is being entered into by the Property Manager for the benefit of,
and may be enforced by, the Property Owner.
605. This Agreement shall not be amended or modified in any way or
respect except by a written instrument executed by the Contractor and the
Property Manager. This Agreement constitutes the entire agreement of the
parties respecting the subject matter hereof. All prior understandings or
agreements between the parties, whether written or oral, are merged into
this Agreement and shall be of no force and effect.
606. If any provision of this Agreement is held invalid, the balance of
the provisions of this Agreement shall not be affected thereby if the
balance of the provisions of this Agreement would then continue to conform
to the requirements of this Agreement.
607. Any waiver of the terms of this Agreement by either of the parties
hereto shall not be construed to be a waiver of any other term or condition
of this Agreement.
608. All notices hereunder shall be in writing and shall be deemed given
if sent by recognized overnight courier service or certified mail, return
receipt requested, to the parties at their addresses set forth above and
shall be effective upon receipt or rejection by the person to whom
addressed.
609. In the event of any default by the Contractor under this Agreement,
the Contractor agrees to pay all costs incurred by the Property Manager in
the enforcement hereof, all whether or not suit shall have been commenced.
0 Xxxxxxxxx Xxxx
Cafeteria Food Services
Rider A
The Contractor agrees to perform and/or provide the following:
1. Training and supervision to all Contractor personnel that may be
required to appropriately staff the food service. Food service
personnel shall be employees of the Contractor for all purposes and at
all times during the term of this contract. The Contractor
acknowledged that it is an equal opportunity employer.
2. Contractor shall purchase the necessary food and non-food merchandise
and supplies at normal wholesale or trade prices from its designated
vendors. Title to such food, merchandise and supplies shall belong to
Contractor.
3. Owner or its designated agent reserves the right to approve all
vendors supplying services to Contractor on Owner's property for the
benefit of the Owner and may choose to utilize existing Owner's vendor
and pricing agreements to achieve a lower total cost.
4. Contractor will collect all revenue and pay all expenses in connection
with the food service. Contractor will submit monthly sales figures
to the Owner by the 10th of the following month. These figures will
include, but are not limited to, cafeteria sales, catering, co-op food
program, vending and off-hour sales.
5. Contractor will provide a full service cafeteria operation including
hot and cold meal entrees, grill entrees, soups, salads, sandwiches,
hot and cold beverages, snacks, pastries, specialties and desserts at
selling prices established by Contractor after consultation with
Owner. The initial price schedule will be provided and agreed to by
both parties upon execution of this Agreement, and may only be
adjusted with the prior written consent of the Owner.
6. Contractor will maintain in full force and effect during the term of
this contract the following insurance and will deliver to Owner a
certificate from its insurers evidencing such coverage:
* Commercial general liability insurance including products
liability with limits of two million dollars per occurrence
and five million dollars aggregate combined singled limit
for bodily injury and property damage.
* Worker's Compensation insurance providing statutory
coverage.
7. Contractor will provide a clean and sanitary work environment.
Contractor will clean the food service counters, the areas in the rear
of the service counters, the kitchen and kitchen areas including the
kitchen floors, fixtures, walls, fume hood, equipment and appliances
to ceiling height. The trash and refuse removal from the kitchen and
dishwashing areas is the responsibility of the Contractor.
8. Contractor will clean all food and drink spillage in the food service
and dining areas during the day.
9. Contractor will clean all tables, chairs and window ledges in the
dining areas as needed during the day.
10. Contractor will provide and pay for all necessary federal, state and
local licenses for the preparation of food and non-alcoholic beverages
at the Owner's premises.
11. Contractor will provide, clean and maintain suitable and appropriate
uniforms for all its employees as required to maintain a professional
appearances of the food services staff.
12. Contractor will conduct all activities for which it is responsible
hereunder in compliance with applicable federal, state and local laws,
rules and regulations including those governing the handling,
preparation and serving of food and beverages and the operation of a
food catering service.
13. All costs and expenses incurred in connection with the foregoing
activities, including but not limited to employee payroll, taxes and
assessments shall be considered as operating expenses for the purposes
of this contract.
14. Contractor agrees to indemnify Owner, its directors, associates,
tenants, employees, guests and agents and hold them harmless from all
loss, damage, liability and expense, including damages and injury to
persons and property arising out of the negligence or willful acts of
Contractor, its employees and agents.
15. Contractor will maintain minimum cafeteria hours for Owner, its guest
and tenants between the hours of 7:00 a.m. and 2:00 p.m. Monday
through Friday, excepting only major U.S. holidays celebrated by the
majority of the building population as specified by Owner.
16. Contractor will provide catering services as required during normal
business hours as well as evenings and weekends. Catering prices will
be provided on a per-function basis. Any additional labor costs
associated with catering shall be included in the per-function price.
Contractor does not have the exclusive right to catering, vending and
coffee services in Owner's building.
17. The installation of signs, graphics and advertisement by the
Contractor, will be made only with prior approval from the Owner. Any
distributions to the tenants must be made with prior approval from the
Owner.
Owner agrees to perform/provide the following:
1. Owner will provide hot and cold water, heat, air conditioning,
lighting fixtures, ventilation equipment for the discharge of fumes,
vapors and odors, electricity, gas and/or other utilities necessary
for the operation and maintenance of the fixtures, equipment and
appliances on the Owner's property.
2. Provide and maintain in good and safe condition and good working order
all furniture, fixtures, furnishings, china, glassware, silverware,
trays, kitchen utensils, refrigeration, kitchen equipment and other
equipment and accessories necessary for the operation of the food
service and replacements thereof required through breakage, loss, wear
and tear. Contractor shall give Owner notice of any required
maintenance.
3. Owner will provide trash receptacles outside the building and a
complete pest control maintenance contractor that will provide pest
control services as required.
4. Owner will provide completely furnished, maintained, equipped and
decorated kitchen, food serving and dining areas. This space will
include storage areas, necessary for the operation of the food
service.
5. Owner will furnish and maintain lavatory facilities located in the
common area for Contractor's employees.
6. Owner shall be responsible for shampooing/maintaining carpeted areas
and the cleaning of food and drink spillage in all areas outside the
cafeteria.
7. Owner agrees to indemnify Contractor, its directors, members, mangers,
employees and agents and hold them harmless from all loss, damage,
liability and expense including damages and injury to persons and
property, arising out of the negligence or willful acts of its
associates and agents.
8. Owner agrees to pay Contractor fixed Administrative Fee and Management
Fee by the 1st of every month. In addition, Owner agrees to pay
Contractor any subsidy shortfall following the submission of monthly
sales figures for that month based on the annual targeted subsidy of
$37,226.00. Interest at the rate of 1.5% per month may be added to
accounts more than 30 days in arrears.
