EXHIBIT 10.46
FOOD PREPARATION AGREEMENT
BETWEEN
LIFESTREAM SERVICES, INC.
AND
XXXXXXX FOOD SERVICE CORPORATATION
(A wholly owned subsidiary of HOST AMERICA CORPORATION)
THIS AGREEMENT, made this 1st day of July, 2002, by and between
LifeStream Services, Inc. 0000 Xxxxxxx Xxxxxxxxx, X.X. Xxx 000, Xxxxxxxx,
Xxxxxxx 00000-0000 (hereinafter referred to as LIFESTREAM), and Xxxxxxx
Food Service Corporation, a wholly owned subsidiary of HOST AMERICA
CORPORATION, 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000
(hereinafter referred to as XXXXXXX) for the provision of food service to
individuals in Xxxxxxxxx, Delaware, Grant, Henry, Jay, Madison, and
Xxxxxxxx Counties in the State of Indiana. Food service shall include
the preparation and packaging for distribution of home delivered meals
and congregate meals as outlined in this Contract and as indicated in
Exhibit 1.
W I T N E S S E T H:
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In consideration of the covenants herein and intending to be legally
bound hereby, the parties mutually agree as follows:
1. TERM: This Agreement shall become effective on or about July
1, 2002 and shall continue until the 30th day of June, 2004.
Unless terminated in the manner hereinafter set forth, this
Agreement shall automatically renew for successive one (1) year
terms beginning July 1, 2004.
2. TERMINATION: Either party may give notice of termination,
without cause, by giving such notice in writing, by registered
mail, directed to the other party at least ninety (90) days
prior to the intended termination date. LIFESTREAM may
terminate this Agreement for any material breach by XXXXXXX of
its obligations hereunder by providing written notice of
termination to XXXXXXX. If XXXXXXX 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.
3. NOTICE: Any notice required or permitted to be given shall be
in writing and shall be mailed by registered mail or personal
delivery, with notice being deemed to be given three (3) days
after it is mailed or upon receipt if personally delivered.
Any notice to be given hereunder shall, if to XXXXXXX, be sent
to Xxx Xxxxxxxxxx, President, Xxxxxxx Food Service Corporation,
000 Xxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000. Any notice to be
given hereunder shall, if to LIFESTREAM, be sent to Xxxxxxx X.
Xxxxxx, President/CEO, LifeStream Services, Inc., X X Xxx 000,
0000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx, IN 47396-0308. If the name
of the person to be
notified shall change, the notice of change of person shall be
provided as set forth in this paragraph.
4. EXCLUSIVE RIGHTS: XXXXXXX shall have the exclusive rights and
privileges to operate as an independent contractor in the
provision of nutritious quality food services for the
Congregate and Home Delivered Nutrition Program according to
the requirements as described in the Bid Specifications (See
Exhibit 1).
5. INCORPORATION OF BID SPECIFICATIONS: Except as provided
specifically elsewhere in this Agreement, XXXXXXX agrees to
comply with the terms of the "BID SPECIFICATIONS", which BID
SPECIFICATIONS are attached hereto, made a part hereof, and
marked "Exhibit 1." If the terms of the BID SPECIFICATIONS and
of this Agreement shall conflict, then the terms of this
Agreement outside of the BID SPECIFICATIONS shall govern.
6. EQUIPMENT LOCATION: XXXXXXX'x food preparation as required by
the terms of this Agreement shall take place at the existing
central kitchen located at 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxx. LIFESTREAM has equipment located at the central
kitchen, which equipment shall be available for usage by
XXXXXXX at no charge. If other equipment is needed by XXXXXXX
to perform its responsibilities under the terms of this
Agreement, XXXXXXX shall provide the additional equipment at no
charge to LIFESTREAM.
7. EQUIPMENT OWNERSHIP: It is understood and agreed that any
equipment purchased by XXXXXXX in order to perform the services
required under the terms of this Agreement shall remain
XXXXXXX'x property at all times. LIFESTREAM will take
reasonable precautions to protect said machines and equipment
from damage and will permit XXXXXXX to remove them upon
termination of this Agreement. LIFESTREAM will furnish to
XXXXXXX, without charge, food preparation equipment, owned by
LIFESTREAM, and to be used in connection with the food service.
XXXXXXX will arrange for installation and ongoing payment for
all rent, utilities (including refrigeration, freezer space,
heat, light, water, and electricity), and phone costs
associated with operating the Central Kitchen.
8. MAINTENANCE, OPERATION, AND EQUIPMENT: XXXXXXX shall prepare
meals for LIFESTREAM to distribute to the following locations:
* Serving Sites
* Homebound clients and/or dispersion sites
The division of responsibility between LIFESTREAM and XXXXXXX
is hereafter provided:
LIFESTREAM will be responsible for:
a) Providing daily meal counts to XXXXXXX for both Congregate
and Homebound deliveries Monday through Friday, by 1:00
p.m. of the previous day.
b) Furnishing maintenance services on all LIFESTREAM owned
equipment. When maintenance is insufficient to have the
equipment in proper working condition, LIFESTREAM shall
replace the equipment with comparable equipment which will
be in working condition. If XXXXXXX employees cause
damage to LIFESTREAM owned equipment through their own
negligence, then XXXXXXX shall be responsible for
replacement of the damaged equipment.
c) Delivering all Congregate and Home Delivered meals to
their destination.
XXXXXXX will be responsible for:
a) Preparation of meals, including:
i) Performing all buying and record keeping functions.
ii) Employing and training food service employees
including the employing of a registered dietician.
iii) Furnishing sufficient supervisory personnel to
establish and maintain the operation at a high
standard.
iv) Instituting reliable food cost control methods.
b) Keeping the kitchen equipment, including all of the
LIFESTREAM owned equipment as listed in Exhibit 1, in
accordance with recognized standards for such equipment
and in accordance with all laws, ordinances, regulations,
and rules of Federal, State, and Local authorities.
c) Routine cleaning of the kitchen, storage areas, offices,
and the loading dock in accordance with HACCP standards to
assure sanitation conditions are met as stated in Exhibit
1.
d) Posting all Congregate and Home Delivered menus, for
distribution to LIFESTREAM and LIFESTREAM consumers, with
said menus being nutritionally acceptable according to the
standards set forth in Exhibit 1. Menus will be prepared
in a four (4) week cycle. Menus will be reviewed and
approved by LIFESTREAM's Nutrition Program staff. All
menus will be approved and signed by XXXXXXX'x dietician.
e) Having the meal products, either in individual format,
packed, and/or bulk prepared and ready for a Home Delivery
Driver upon their arrival at the central kitchen, to pick
up said products within a five (5) minute time frame.
f) Assisting Home Delivery Drivers with packing their
vehicles to expedite the time-in-process for the meal
products.
g) Assisting Home Delivery Drivers with closing out the day's
work with that assistance including unloading from the
Home Delivery vehicles all equipment and unused meal
product, and preparing the vehicle for next day's
delivery.
h) Assuring appropriate inventory controls for all products
that leave the kitchen.
9. LICENSES AND PERMITS: XXXXXXX shall obtain, as a cost of
operation prior to commencing operations at XXXXXXX'x premises
at the central kitchen as described above, all necessary
permits, licenses, and other approvals required by law, and as
outlined in Exhibit 1, for its operation as identified in this
Agreement.
10. RECORDS: XXXXXXX will at all times maintain an accurate record
including a daily lunch count of all LIFESTREAM participants
and include it in a monthly report to LIFESTREAM. XXXXXXX will
also keep inventories of all merchandise and sales in
connection with the operation of the food service. XXXXXXX
shall keep all such records on file for at least a period of
three (3) years, and XXXXXXX shall give LIFESTREAM and its
agents the privilege, at any time, of auditing its records.
All sales, for the purpose of this Agreement, are defined as
cash collections less applicable Federal, State, and Local
taxes for which XXXXXXX has the sole responsibility to collect,
report, and pay to the taxing authorities.
11. INSURANCE: During the term of this Agreement, XXXXXXX will
provide and maintain, with an insurance carrier licensed to do
business in the State of Indiana, not less than two million
dollars ($2,000,000.00) worth of general liability, automobile,
and excess liability insurance. XXXXXXX will also provide a
ten million dollar ($10,000,000.00) umbrella policy in excess
of the two million dollar ($2,000,000.00) policy.
Additionally, XXXXXXX will provide LIFESTREAM performance and
dishonesty insurance equal to one-quarter (1/4) of the value of
this Contract as stated in the BID SPECIFICATIONS at the
350,000 annually served meal amount. Said insurance will be in
lieu of a performance bond. LIFESTREAM will be a named insured
under each such policy as indicated in Exhibit 1. Further,
LIFESTREAM will receive not less than thirty- (30) days notice
of any termination or modification of such policies directly
from the provider.
XXXXXXX will provide LIFESTREAM with documentation evidencing
its compliance (and continued compliance with this Section)
upon request by LIFESTREAM. XXXXXXX will indemnify and hold
LIFESTREAM, its employees, guests, visitors, clients, and
tenants, their employees, guests, visitors, customers, and
clients harmless from any and all loss, damage, or liability
arising directly or indirectly out of XXXXXXX'x operation under
this Agreement. This includes the operation of the equipment,
and acts of omission or negligence of XXXXXXX'x employees,
contractors, or agents when engaged in operations under this
Agreement.
12. PERSONNEL POLICIES: All food service employees will be on
XXXXXXX'x payroll and shall be the employees of XXXXXXX. No
employee of XXXXXXX shall be deemed an employee of LIFESTREAM,
and no employee of LIFFESTREAM shall be deemed an employee of
XXXXXXX. All persons employed by XXXXXXX at the central
kitchen shall appear to be clean and shall, while on duty, be
clothed in presentable uniforms that are also clean and
sanitary. XXXXXXX employees shall comply with its rules and
regulations at any time promulgated by XXXXXXX for the safe,
orderly, and efficient conduct of all activities being carried
out while on its premises. XXXXXXX shall not retain at the
premises, any employee deemed not acceptable for any reason.
XXXXXXX, 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. XXXXXXX'x employment practices will meet the
requirements of the Fair Labor Standards Act, as well as all
other regulations required by the United States Department of
Labor. XXXXXXX will identify itself as an equal opportunity
employer and will be bound by all other business practices as
stated in Exhibit 1.
13. EMPLOYEE OPPORTUNITY/ACCOMODATION: It will be the practice of
XXXXXXX to give first-preference of employment to those
individuals (of the seven county service area of LIFESTREAM)
that were employed by the previous provider of the LIFESTREAM
Nutrition Program. Further, should LIFESTREAM choose to do so,
XXXXXXX agrees to permit LIFESTREAM to provide suitable office
space for a Home Delivery Manager, to be employed by
LIFESTREAM, out of the Central Kitchen at no cost to
LIFESTREAM.
14. BILLING: Billing by XXXXXXX will be made to LIFESTREAM on a
weekly cycle. Billing will include the number and type of meal
ordered, served, and billed per site, route, and total number
of meals ordered, served, and billed for that week. LIFESTREAM
will render payment to XXXXXXX within thirty (30) days after
receipt of billing, provided contract funds have been received
by LIFESTREAM from appropriate funding sources.
Decisions and adjustments concerning shortages and errors will
be addressed by LIFESTREAM. If all or part of a meal is
delivered substandard for any reason, LIFESTREAM will not be
invoiced for that meal. If an entre item is omitted, and not
replaced before serving time, the full cost of the meal will be
deducted from the billing. If the beverage, bread, butter, or
other condiments or items are omitted, the actual cost of the
item will be deducted. In the event XXXXXXX'x product, in the
opinion of LIFESTREAM, does not meet specifications as outlined
in Exhibit 1 up to and including delivery to the meal consumer,
XXXXXXX will be responsible for all costs associated with the
replacement meal or meal item. XXXXXXX will be notified of the
shortage or replacement, and the replacement will be deducted
from XXXXXXX'x invoice.
15. CHARGES AND COMMISSIONS: LIFESTREAM agrees to compensate
XXXXXXX in accordance with the Financial Addendum A attached
hereto, made a part hereof, and marked "Financial Addendum A."
Reimbursement to LIFESTREAM in the form of commission for meals
produced for customers other than those of LIFESTREAM, will be
in the amount of seventeen cents ($.17) per meal. Said meal
rates and commission rates are negotiable between LIFESTREAM
and XXXXXXX for the period of this Agreement through a mutual
agreement between LIFESTREAM and XXXXXXX of meal rates and
commission rates other than those stated above.
XXXXXXX 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, XXXXXXX shall charge any applicable sales tax to all
that purchase food from XXXXXXX, and XXXXXXX shall be
responsible for remittance of such taxes to the proper
authorities.
16. BILLING ADJUSTMENTS: XXXXXXX shall not be permitted to adjust
the per-meal cost or the commission amount for the first year
of this Agreement as an assurance of performance abilities, and
to assure that the LIFESTREAM nutrition program operates within
benchmarked revenue and expense. XXXXXXX may be permitted to
adjust the meal cost and commission rate after June 30, 2003 by
written request, and by mutual agreement of LIFESTREAM and
XXXXXXX. Effective July 1, 2003, adjustment of said rates
and/or amounts shall be made 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 LIFESTREAM and XXXXXXX
shall be agreed upon and effected by appropriate officials of
the parties. Accompanying any request for changes in selling
prices or financial arrangements, XXXXXXX shall provide
LIFESTREAM with written documentation of said material cost
changes necessitating the change. All obligations hereunder
are subject
to Federal, State, and Local regulations. In the event the
building in which XXXXXXX'x 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.
17. ALTERNATE VENDOR PROCEDURES: In the event of a meal shortage
where XXXXXXX prepared a meal that was unwholesome, fails to
meet specifications, or has been substituted without prior
approval from LIFESTREAM, LIFESTREAM shall note all
discrepancies on a mutually agreed upon form. When
discrepancies exist, and when the service still must be
delivered, LIFESTREAM shall procure the necessary items from an
alternate vendor. XXXXXXX will be responsible for establishing
appropriate alternate vendors in the LIFESTREAM seven-county
service area. All meals or portions of meals procured from
alternate vendors must meet the one-third (1/3) Recommended
Dietary Allowance necessary for all meals delivered under this
agreement, and as stated in Exhibit 1.
18. TAX EXEMPTION: It is mutually understood and agreed upon that
LIFESTREAM is a 501-C3, not-for-profit institution and shall
provide certification of such tax exemption to XXXXXXX. The
aforementioned exemption in no way absolves XXXXXXX from the
payment of Federal or State income taxes.
19. PROPRIETARY INFORMATION: During the term of this Agreement,
LIFESTREAM acknowledges that it may acquire or obtain access to
proprietary information or materials (the "Proprietary Items")
of XXXXXXX and HOST AMERICA CORPORATION. Proprietary Items are
defined as confidential information or materials related to the
business of XXXXXXX which include, but are not limited to,
trade secrets, signage, trademarks, logo, trade dress, 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, procedure and/or personnel manuals, and
any information which has been disclosed to XXXXXXX by a third
party which XXXXXXX is obligated to treat as confidential.
All Proprietary Items are confidential to and are and will
remain the sole and exclusive property of XXXXXXX. In the
event LIFESTREAM receives, obtains access, or otherwise is
exposed to any Proprietary Items, LIFESTREAM will 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 XXXXXXX under
this Agreement, and
c) Otherwise protect the Proprietary Items from disclosure.
LIFESTREAM will not photocopy or otherwise duplicate any such
materials without XXXXXXX'x written consent. All confidential
information will remain XXXXXXX'x exclusive property and will
be returned to XXXXXXX immediately upon termination of this
Agreement.
Likewise, XXXXXXX will protect, in the same fashion as covered
above, Proprietary information that belongs to LIFESTREAM, and
also ensure that all XXXXXXX'x employees treat LIFESTREAM's
service recipient's information as confidential.
20. ASSIGNMENT: This Agreement shall be binding upon, and shall
inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. In the event that
a third party acquires XXXXXXX or LIFESTREAM, this Agreement
may not be automatically assigned to the third party without
the prior written consent of either party.
21. MARKETING: XXXXXXX will assist LIFESTREAM in marketing the
Home Delivered and Congregate Meal products to the public as
indicated in the Bid Proposal. XXXXXXX will provide to
LIFESTREAM a check upon the signing of this contract for five
thousand dollars ($5,000.00) to assist in transition and
marketing of the XXXXXXX product to the LIFESTREAM service
area.
22. FURTHER OBLIGATIONS OF XXXXXXX: XXXXXXX will provide
box/picnic lunches, frozen meals, hot home delivered meals, hot
congregate meals, freshly prepared meals and/or shelf stable
meals as requested. XXXXXXX will assure that the food product
reaches the customer as follows:
a) Hot foods will be at or above 140 degrees F
b) Freshly prepared foods will be at or below 45 degrees F
c) Frozen foods will be at or below 10 degrees F
d) Neutral foods will be at room temperature
XXXXXXX will provide the following:
a) Food serving utensils and equipment
b) Alcohol swabs (2 per day per serving site)
c) Aluminum trays
d) Bleach
e) Xxxxx Bags
f) Coffee (ground)
g) Coffee cups
h) Coffee packets (Regular)
i) Comet
j) Xxxxxxx packets (box)
k) Dish soap
l) Ice tea mix
m) Napkins
n) Non-stick coating
o) Oven cleaner
p) Paper towels
q) Pepper (box)
r) Pine Cleaner
s) Placemats
t) Plastic utensils
u) Salt (box)
v) Sandwich bags
w) Scratcher
x) Serving gloves
y) Serving trays
z) Solo cups (P550)
aa) Solo cup lids (PL5)
bb) SOS pads
cc) Soup bowls
dd) Squat cups (SD5)
ee) Squat cup lids (662)
ff) Straws
gg) Sugar (5# bag)
hh) Sweet-n-low packets
ii) Tea bags (box)
jj) Tea cups (large)
kk) Thank you bags
ll) Toilet Cleanser
mm) Toilet tissue
nn) Trash bags
At each congregate site, XXXXXXX will serve a holiday/special
events menu on such days as determined by mutual agreement
between XXXXXXX and LIFESTREAM.
XXXXXXX will provide a birthday cake at least once a month for
each congregate site on the date designated by LIFESTREAM.
23. ACTIONS BETWEEN PARTIES:
a) Jurisdiction: Any and all actions brought by either party
in connection with or arising out of this Agreement shall
be brought only in a court of appropriate jurisdiction in
Delaware County, Indiana, or in the United States District
Court for the Southern District of Indiana. XXXXXXX
hereby submits itself to the jurisdiction of any and all
such courts for the purposes of any litigation between the
parties in connection with or arising out of this
Agreement.
b) Service of Process: Any and all service of process upon
XXXXXXX may be given by mailing the documents to be served
by certified or registered mail, return receipt requested,
with postage fully paid, to XXXXXXX at the following
address:
Xxx Xxxxxxxxxx, President, Xxxxxxx Food Service
Corporation, 000 Xxxxxxx Xxxxxx, Xxx Xxxxx, XX 00000.
Service shall then be deemed to occur on the date of
receipt of XXXXXXX of said mailing.
c) Litigation Expense: In the event legal action is
necessary to enforce the terms of this Agreement, the
party successful in that legal action shall be entitled to
the recovery of its attorneys' fees and court costs from
the party which is unsuccessful in that litigation.
24. GOVERNING LAW: This Agreement shall be governed by,
interpreted under, construed and enforced according to the laws
of the State of Indiana.
25. 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.
26. 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.
27. 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.
28. ENTIRE AGREEMENT; MODIFICATION: It is mutually agreed that
this Agreement sets forth the entire agreement of the parties
with respect to the subject matter hereof, and supersedes all
existing agreements between the parties concerning such subject
matter. It is further agreed that no alterations
or amendments shall be made to this Agreement unless they be in
writing and approved by both parties.
29. AUTHORITY: LIFESTREAM and XXXXXXX each represent that the
person executing this Agreement on their behalf has been duly
and validly authorized to execute this Agreement on their
behalf and that they have full power and authority under all
applicable laws and their respective articles of incorporation,
bylaws or governing instrument to enter into this Agreement and
to perform their obligations hereunder.
LIFESTREAM SERVICES, INC. XXXXXXX FOOD SERVICE
By: /s/ XXXXXXX X. XXXXXX By: /s/ XXX XXXXXXXXXX
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Xxxxxxx X. Xxxxxx, M P H Xxx Xxxxxxxxxx
Title: President/CEO Title: President
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Duly authorized Duly authorized
Date: Date:
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Attest: Attest:
By: By:
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