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EXHIBIT 10.13
AGREEMENT TO SOLICIT PROPERTY
THIS AGREEMENT TO SOLICIT PROPERTY ("Agreement") is made and entered
into this 8th day of April, 1998 by and between HALLANDALE THRIFT
MANAGEMENT, INC., a Florida corporation ("Solicitor"), and XXXXXX X. AND XXXXXX
XXXXX JEWISH COMMUNITY CENTER, INC., a Florida not-for-profit corporation
("Charity").
WITNESSETH:
WHEREAS, Solicitor is qualified as a professional solicitor, as such
term is described in Section 496.410, Florida Statutes ("F.S."); and
WHEREAS, Solicitor is duty qualified to solicit items of salvageable
property and merchandise, including, but not limited to, clothing, household
goods and furnishings, appliances and various other bric-a-brac (hereinafter
referred to as "Property"); and
WHEREAS, the Charity is an organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), and
donations made to the Charity are qualified for the charitable income tax
deduction provided in Section 170 of the Code; and
WHEREAS, the Charity desires to retain the services of Solicitor to
solicit and gather Property on behalf of the Charity for the Charity's
scholarship programs; and
WHEREAS, Solicitor and the Charity mutually agree that it would be in
each of their best interests to enter into a formal agreement setting forth
their mutual obligations.
NOW, THEREFORE, in consideration of the agreement and the mutual
covenants set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Solicitor shall solicit the general public for contributions of
Property to the Charity in such manner as may be hereafter agreed from time to
time by Solicitor and Charity. Both parties acknowledge and agree that
Solicitor shall only serve in the capacity of an intermediary for the purpose
of soliciting the public for contributions to the Charity, and that in all
regards, Solicitor shall be acting pursuant to the terms of Chapter 496, F.S.,
and that all donations solicited shall be the property of the Charity.
2. The Charity shall in all regards comply with the relevant
requirements for not-for-profit organizations qualified under the provisions
of Section 501(c)(3) of the Code. Charity shall immediately advise Solicitor
if the Charity shall no longer comply with the requirements of Code Section
501(c)(3) or if Charity shall receive notification that contributions to the
Charity are not
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deductible under the provisions of Code Section 170. Nothing contained herein
shall prohibit or limit the right of Solicitor to solicit the general public
for contributions of Property on behalf of other charitable organizations in
addition to the Charity.
3. The term of this Agreement shall be for a period of five (5) years,
commencing on April 1, 1998, and terminating on March 31, 2003, with one (1)
five (5) year renewal option commencing April 1, 2003, unless sooner
terminated or extended pursuant to the terms and conditions of this Agreement.
4. (a) The Charity shall pay to the Solicitor on a monthly basis
a sum equal to One Thousand Dollars ($1,000) per month, plus reimbursement of
all expenses incurred by the Solicitor in fulfilling its obligations under
this Agreement ("Fee"). The Fee shall be paid monthly to the Solicitor within
twenty (20) days following the end of each calendar month.
(b) The compensation of the Solicitor is not contingent upon
the percentage of the gross revenues. In accordance with Section
496.410(7)(d), F.S., the parties have assumed the total value of goods
solicited from this solicitation are going to be approximately $200,000 of
which 10% thereof, plus $ 1,000 per month, or $32,000, shall be the amount
paid to the Charity, and the amount of compensation to the Solicitor
(exclusive of reimbursement of expenses) will be $12,000; accordingly, the net
amount to be realized by the Charity after the payment of the Fee to the
Solicitor shall be $20,000 (based on the foregoing assumptions). Accordingly,
the compensation to the Solicitor (exclusive of direct expense reimbursements)
as a percentage of gross revenues (the total value of goods solicited) will be
6%. The parties acknowledge and agree that the foregoing is included in this
Agreement pursuant to Section 496.410(7)(d), F.S., that the assumptions
required to be made by said Statute are not necessarily applicable to the
economic agreement between Charity and Solicitor, and accordingly the figures
and percentages contained in this Section, without reference to the entirety
of this Agreement and any Agreement with the "Sales Company" (as hereinafter
defined), may be misleading.
5. Simultaneous with the execution hereof, and in consideration of
Solicitor agreeing to provide its services hereunder, Charity shall transfer
to Solicitor all of Charity's right, title and interest in and to (i) the
telephone number 000-000-0000 ("Phone Line"); and (ii) that certain 1992
Chevrolet cutaway truck, bearing registration number 2GBHG31KON4100453.
Solicitor shall pay $6,000.00 to Charity for said truck. During the term of
this Agreement, Solicitor shall have the right to answer the Phone Line as the
"JCC Donation Center," and may use the name "JCC Donation Center," or working
similar thereof, in providing its services hereunder.
6. The Charity shall arrange for the sale of the Property through one
or more companies ("Sales Company") with experience in the sale of merchandise
such as the Property in order to maximize the gross sales price of the
Property. The Charity shall obtain and maintain a sales contract with the
Sales Company throughout the term of the Agreement. The Charity shall provide
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in its agreement with the Sales Company for the direct payment by the Sales
Company of the Fee to the Solicitor. The Charity agrees that the Solicitor
shall not be responsible for remitting the gross receipts to the Charity
from contributions made to the Charity. The Sales Company shall bear the
responsibility for remitting the gross receipts (net of payments made by the
Sales Company on behalf of the Charity), from the sale of the donated goods
to the Charity.
7. The Charity agrees that it will not retain any other professional
solicitor for purposes of soliciting Property.
8. Both parties agree that nothing contained herein shall constitute
or be deemed to have created a partnership, joint venture or other business
association between the parties, nor shall Solicitor be considered an agent
or an employee of the Charity or the Charity be considered an agent or
employee of the Solicitor, except to the extent that this Agreement provides
for the retention of Solicitor's services on behalf of the Charity.
9. Within five business days of submission by Solicitor, the Charity
shall approve all of the printed materials used by Solicitor and the
solicitation methods employed by Solicitor in acquiring donated
Property, and such other further methods of operation which may impact on
Charity's reputation, which consent shall not be unreasonably withheld. The
failure to respond within said period shall constitute approval of the items
submitted. Nevertheless, recognizing Solicitor's experience and relative
expertise in the area of soliciting Property, the Charity shall allow
reasonable deference to Solicitor's business judgment. The name of the
Charity may appear in literature, advertising and signage on trucks used by
Solicitor in conducting its solicitation activities pursuant hereto.
10. Solicitor shall include the following on all receipts given to
donors of property or merchandise: "THE DONOR BEARS ALL RESPONSIBILITY IN
ESTABLISHING THE VALUE OF THE ITEM(S) DONATED TO THE XXXXXX X. AND XXXXXX
XXXXX JEWISH COMMUNITY CENTER, INC. FOR TAX PURPOSES AND WILL ABIDE BY THE
IRS CODES REGARDING DONATIONS."
11. Solicitor agrees that it will carry a comprehensive public
liability and property damage insurance in the amount of at least One
Million Dollars ($1,000,000) public liability and at least One Million
Dollars (S 1,000,000) property damage, and will name the Charity as an
additional insured on said policies, insuring the Charity as well as the
Solicitor against any claim for public liability or property damage and in
connection with the operation of any motor vehicle used, and in connection
with any loss from fire, flood, theft or other natural or human perils. The
Solicitor hereby agrees to indemnify and hold the Charity harmless against
any liability, as occasioned by the acts of the Solicitor, its agents or
representatives, in connection with the performance of this Agreement,
whether or not covered by insurance. Said indemnification shall include
attorneys' fees and the costs of the defense of any action.
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12. If a claim or lawsuit is brought by a third party against the
Charity or Solicitor in connection with this Agreement, the party against whom
the claim is made shall immediately notify the other of the outstanding claim
and provide to the other the opportunity to assist in resolving the same,
whether by negotiation or litigation. Nothing herein shall preclude either
party from retaining its own attorney to defend any such action.
13. Notwithstanding any contradictory provisions in this Agreement or
in law, the risk of loss of any donated Property shall fall upon the Charity,
since title to each item of donated Property remains with the Charity; the
Solicitor is merely soliciting items for and on behalf of the Charity.
14. In the event that either party is reasonably prevented from
carrying on the transactions described herein by reason of the enforcement of
any ordinances, statutes, laws, rules or regulations of any public utility,
city, county, state or federal governmental authority, then the parties hereto
shall be excused from the obligations provided herein, but shall resume those
obligations when business is resumed; provided, however, that in the event of
such interruption in business activities as described above, Solicitor shall
have the right, in its sole discretion, to cancel this agreement upon thirty
(30) days prior written notice to the Charity. Both parties will at all times
use diligence to remove promptly any obstacle to their carrying on the
business described herein.
15. Solicitor is not authorized to solicit and receive any checks or
cash donations or cars and boats; this Agreement is only for the solicitation
of various items of Property exclusively. In the event any person, party,
organization, institution, charity, fund or unnamed donor issues a check or
cash donation or contributes anything other than Property, that donation must
be immediately turned over to the Charity separate from any other obligations.
16. The Solicitor shall maintain records of pick-ups by Solicitor,
and shall allow the Charity to inspect such records during normal business
hours.
17. In the event that either of the parties defaults or violates any
of the provisions of this Agreement, the complaining party shall deliver to
the other party written notice stating the breach, and the defaulting party
shall have thirty (30) days from the receipt of such written notice within
which to comply with the terms of this Agreement.
18. Notwithstanding any term or condition to the contrary contained
herein, Solicitor may, at its option, terminate this Agreement by giving the
Charity sixty (60) days prior written notice. Notwithstanding any term or
condition to the contrary contained herein, the Charity may terminate this
Agreement by giving the Solicitor not loss than one hundred eighty (180) days
prior written notice. Upon receipt of all payments, both parties shall be
discharged of their obligations under this Agreement.
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19. In the event of any dispute between the Charity and the Solicitor
arising out of this Agreement, each party shall pursue arbitration in
accordance with the Commercial Rules of the American Arbitration Association.
Each party shall select one arbitrator, which arbitrators shall select a third
arbitrator. A decision of two of the arbitrators shall be deemed to be
conclusive and binding upon each party. All costs associated with the
arbitration shall be paid as determined by the arbitrators; however, for the
purposes of initiating the arbitration proceedings, the party electing
arbitration shall advance the costs. The submission of any controversy arising
under this Agreement to arbitration shall be in such a manner as is provided
for in accordance with the Commercial Rules of the American Arbitration
Association and the laws of the State of Florida.
20. If any party hereto is required to engage in litigation against
any other party hereto, either as plaintiff or as defendant, in order to
enforce or defend any of its or his rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is
obtained shall reimburse the Prevailing Party for all direct, indirect or
incidental expenses incurred by the Prevailing Party in so enforcing or
defending its or his rights hereunder, including, but not limited to, all
attorneys' fees, paralegals' fees and all sales tax thereon, and all court
costs and other expenses incurred throughout all negotiations, trials or
appeals undertaken in order to enforce the Prevailing Party's rights
hereunder.
21. Each party hereto recognizes and agrees that the violation of any
term, provision or condition of this Agreement may cause irreparable damage to
the other parties which may be difficult to ascertain, and that the award of
any sum of damages may not be adequate relief to such parties. Each party,
therefore, agrees that, in addition to other remedies available in the event
of a breach of this Agreement, any other party shall have a right to equitable
relief, including, but not limited to, the remedy of specific performance.
22. Any notice, payment, or communication required or permitted to be
given by any provision of this Agreement shall be deemed delivered, whether
actually received or not, three (3) days after being deposited in a United
States Postal Service Depository, postage prepaid, registered or certified
return receipt requested, when sent by overnight courier, or by facsimile, if
such facsimile is followed by a hard copy of the facsimiled communication,
addressed to the parties as set forth below, or such other address as shall be
specified by written notice delivered to the parties hereto. Any such notice
shall be addressed as follows:
If to Solicitor: 0000 X. Xxxxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxxxxxx 00000
If to Charity: 0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
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23. This Agreement, including any exhibits attached hereto and any
documents delivered pursuant hereto, sets forth all the promises, covenants,
agreements, conditions and understandings between the parties hereto, and
supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions, expressed or implied, oral or written, except as
herein contained. No changes of or modifications or additions to this
Agreement shall be valid unless the same shall be in writing and signed by the
parties hereto.
24. This Agreement shall be binding upon the parties hereto, their
beneficiaries, heirs and administrators.
25. The parties hereby irrevocably agree that no attempted amendment,
modification, termination, discharge or change (collectively, "Amendment") of
this Agreement shall be valid and effective, unless the parties shall
unanimously agree in writing to such Amendment.
26. No waiver of any provision of this Agreement shall be effective,
unless it is in writing and signed by the party against whom it is asserted,
and any such written waiver shall only be applicable to the specific instance
to which it relates and shall not be deemed to be a continuing or future
waiver.
27. All pronouns shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identity of the party or parties or their
personal representatives, successors and assigns may require.
28. This Agreement and any amendments may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together will constitute one and the same instrument.
29. This Agreement shall be construed in accordance with the laws of
the State of Florida and any proceeding arising between the parties in any
manner pertaining or related to this Agreement shall, to the extent permitted
by law, be held in Broward County, Florida.
30. The parties hereto will execute and deliver such further
instruments and do such further acts and things as may be reasonably required
to carry out the intent and purposes of this Agreement.
31. Each of the parties represents that this Agreement is signed by
two authorized officials of such party, one of whom for the Charity is a
member of the Charity's governing body and one of whom for the Solicitor is
the authorized contracting officer for Solicitor.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
and also provided any appropriate corporate resolutions, by their respective
officers, on the day and date first above written.
Signed, sealed and delivered in the
presence of:
HALLANDALE THRIFT MANAGEMENT,
INC., a Florida corporation
By: /s/ Xxxx Xxxxxxx
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XXXXXX X. AND XXXXXX XXXXX JEWISH
COMMUNITY CENTER, INC., a Florida
Not-For-Profit corporation
By:
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By: /s/ Xxx Xxxxxxx
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