HomeMy WebLinkAboutProperty Dispostion ServicesSouthold Town Board - Letter
Board Meeting of Aprit 21, 2009
RESOLUTION 2009-317
ADOPTED
Item # 5.12
DOC ID: 4928
THIS IS TO CERTIFY THAT THE FOLLOWING RESOLUTION NO. 2009-317 WAS
ADOPTED AT THE REGULAR MEETING OF THE SOUTHOLD TOWN BOARD ON
APRIL 21, 2009:
RESOLVED that the Town Board of the Town of Southold hereby authorizes and directs
Supervisor Scott A. Russell to execute the Property Disposition Services Agreement
between the Town of Southold and PropertyRoom.com~ Inc. regarding online auctioning
services for a period of two years commencing on April 1, 2009, subject to the approval of the
Town Attorney.
Elizabeth A. Neville
Southold Town Clerk
RESULT: ADOPTED [UNANIMOUS]
MOVER: Louisa P. Evans, Justice
SECONDER-' Thomas H. Wickham, Councilman
AYES: Ruland, Orlando, Krupski Jr., Wickham, Evans, Russel
Generated April 22, 2009
Page 21
PATRICIA A. FINNEGAN
TOWN ATTORNEY
patricia.finnegan @town.southold.ny.us
JENNIFER ANDALORO
ASSISTANT TOWN ATTORNEY
j ennifer.andaloro@t own.southold.ny.us
LORI M. HULSE
ASSISTANT TOWN ATTORNEY
lori.hulse @town.sout hold.ny.us
SCOTT A. RUSSELL
Supervisor
Town H~lAnnex, 54375Route 25
P.O. Box 1179
Southold, New York 11971-0959
Telephone (631) 765-1939
Facsimile (631) 765-6639
OFFICE OF THE TOWN ATTORNEY
TOWN OF SOUTHOLD
MEMORANDUM
To: Ms. Patricia Garsik, Administrative Assistant
From: Lynne Krauza, Secretary to Town Attorney
APR 2 9 2009
Date: April 28, 2009
Subject: Agreement w/PropertyRoom, com, Inc.
On-line Auction Services
As we discussed, I am enclosing the original Agreement between the
Town of Southold and PmpertyRoom.com, Inc., which has been approved by
Lori and which has been signed by Supervisor Russell, in connection with the
referenced matter. I am also enclosing a copy of the resolution authorizing Scott
to sign this Agreement.
Please note that Lori has crossed out paragraphs 12 and 18.
Kindly send us a copy of the fully executed Agreement as soon as it is
available for our records.
If you have any questions, please do not hesitate to call me.
/Ik
Enclosures ~
cc: Ms. Elizabeth A. Neville, Town Clerk (w/encls.)
PROPERTY DISPOSITION SERVICES AGREEMENT
ORIGINAL
PropertyRoom.com, Inc., a Delaware corporation ("PropertyRoom" or "PRC"), enters into this agreement (the
"Agreement"), with the client identified below (the "Owner") for the auction and disposition of personal property
(the "Disposition Services"), in/aco~rdance with the Terms and Conditions and Addenda, if any, attached hereto and
listed below. Beginning t25///~") ~' (the "Start Date"), Owner engages the Services of PRC.
Owner Information
Address
City, State Zip ~2ode /
Schedules, Supplements & Other Attachments
Mark included attachments:
Terms and Conditions
/~ ( ~t' fl t/'2~Addendums:
Yes
Phone
Email
This Agreement, including all of the terms and conditions set forth in the attached Terms and Conditions as well as
all other attachments indicated in the box above, comprises the entire Agreement between the Parties. This
Agreement cannot be modified except in writing by the duly authorized representatives of both parties.
Signor Name
Signature / re._
Signature Date
Signor Title ~
Signature
Signature Date
PropertyRoom.com, Inc.
26421 Crown Valley Parkway, Ste 200
Mission Viejo, California 92691
+l (949) 282-0121
Federal Tax ID 86-0962102
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· · PROPERTY DISPOSITION SERVICES AGREEMENT
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TERMS AND CONDITIONS
Property to be Sold. From time to time, Owner will designate items of personal property (the "Property") that
it desires to provide to PRC for Disposition Services. PRC retains the right to accept or reject certain items in its
sole discretion.
Title. Owner shall retain legal title to the Property until it is purchased by auction or otherwise disposed of in
accordance with this Agreement at which time Owner will be deemed to have transferred title to the purchaser
or other acquirer of the item of Property (the "Buyer"). Owner appoints PRC as its attorney-in-fact to sign any
and all documents necessary to assign to Buyers all of Owners right, title and interest in and to Property sold or
disposed. Cash receipts, accounts receivable, contract rights, notes, general intangibles, and other rights to
payment of every kind, arising out of the sales and dispositions of Property (collectively the "Proceeds") belong
to Owner, subject to PRC's right to PRC's Net Proceeds and funds at~'ibutable to credit card processing costs
and other transaction costs. Owner's Property shall, at all times before sale or disposition, be subject to the
direction and control of Owner.
Method of Selling Property.
a. Portable Property Items. PRC will, on Owners behalf, pick-up, store and list Property for sale by auction
to thc public on the internet on one or more domain names selected by PRC. To the extent that any Property
is not sold by auction, PRC may, in any commercially reasonable manner selected by PRC, dispose of
Property. PRC will determine all aspects, terms and conditions of auctions of Proper~ and dispositions of
Property not purchased at auction, subject to the ultimate control of Owner. PRC will be responsible for all
phases of submitting the Property for auction, including, but not limited to, determining when Property will
be auctioned, setting the opening and reserve prices of Property, if any; determining the selling price,
setting the length of time Property will be auctioned; creating text and graphics to describe and depict
Property submitted for auction; collecting Buyer information (such as name, billing address, shipping
address, and credit card information); approving Buyer credit card purchase transactions; and collecting
auction proceeds for completed sales from Buyers. PRC shall use reasonable commercial efforts in
auctioning and selling the Property on the Internet and disposing of ProperW that does not sell at auction.
PRC shall sell and dispose of all Property "as is" without any liability to the Owner. PRC is solely
responsible for identifying and resolving sales and use tax collection issues arising from Property sales,
including the necessity of charging and collecting such taxes.
b. Large Property Items. PRC will, at Owner's request and on Owner's behalf, list physically large Property
("Large-Items") for sale by auction, including but not limited to cars, trucks, boats, planes and bulk lots of
bicycles. For Large-Itams, PRC offers Owner different selling options ("Silver," "Gold," "Gold-Plus" and
"Platinum"), each with different service components and associated pricing.
(1) In-Place Options. For Silver, and Gold, PRC will auction Large-Items in-place, and in this context,
"in-place" means that PRC will not pick-up and store these specific Items but rather Owner will
maintain physical control until transfer of Items to Buyers.
(2) Haul-away Option. For Platinum, PRC will, in conjunction with a partner and to the extent practical,
pick-up and haul-away Large-items, selling via online auction and transferring title and physical
possession to Buyers as described in Portable Property Items.
(3) Large-Item Service Summary. The Large-Item Auction Services Option Table below depicts service
components associated with each option.
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PROPERTY DISPOSITION SERVICES AGREEMENT
Method of Selling Property: Large-Item Auction Services Option Table
Responsible Party (if applicable)
Service Component Silver Gold Platinum
1. List Large-Item for In-Place online auction PRC PRC
2. Checklist review and coordination PRC PRC PRC
3. Listin~ write-up and marketin~ PRC PRC PFC
4. Auction and auction technology management PRC PRC PRC
5. Customer Support to Bidders Owner PRC PRC
6. Coordinate Buyer payment and Large-Item pick-up Owner PRC PRC
7. Transaction (payment) processin~ Owner PRC PRC
8. Photu~raphin~, vehicle review, equipment description Owner Owner PRC
9. Provide or procure asset title, as applicable Owner Owner Owner*
10. Pick-up and haul-away for off-premises online auction PRC
* At Owner request, PRC will acquire title through its partner and pass-through title acquisition cost.
4o
Term and Termination.
a. This Agreement will become effective as &the Start Date and will continue for an initial term of one (1)
year (the "Initial Term") following the "Launch Date" (as defined herein) and thereafter will automatically
renew for consecutive one (1) year terms unless written notice of non-renewal is provided by either party to
the other at least sixty (60) days prior to the expiration of the then current term.
b. As used herein, "Launch Date" shall mean the date on which PRC completes the fa'st auction of Owner
Property.
c. This Agreement may be terminated if there is a breach by either party of any obligation, representation or
warranty contained in this Agreement, upon thirty (30) days prior written notice to the other party unless
the breach is cured within the thirty (30) day period, provided, however, if the breach is not capable of
being cured within thirty (30) days, the breaching party will have a reasonable amount of time to cure the
breach if it begins to cure during the thirty (30) day period and proceeds diligently thereafter. The written
notice will specify the precise nature of the breach.
d. The rights of the parties to terminate this Agreement are not exclusive of any other rights and remedies
available at law or in equity, and such rights will be cumulative. The exercise of any such right or remedy
will not preclude the exercise of any other rights and remedies.
e. Notwithstanding any termination by either party of this Agreement, PRC will continue to remit amounts
due to Owner under this Agreement in connection with any sales made before the effective date of the
termination. At the time of termination, any unsold inventory shall continue to be auctioned by PRC or
returned to Owner, at Owner's election and cost.
Allocation of Sales Proceeds.
a. Portable Property Items
(1) Sales Price. The total amount paid by Buyer shall be called the "Sales Price." The Sales Price shall
include the winning bid amount (the "Winning Bid") and all costs, shipping and handling charges,
taxes, and insurance costs associated with the transaction and paid by Buyer.
(2) The Split. For each item of Property, Owner will be credited with 50% of the first $1,000 &the
Winning Bid and 75% of the Winning Bid portion, if any, that exceeds $1,000. From this amount, the
Owner's pro rata share of transaction fees (the "Processing Costs"), if any, will be deducted.
(3) Processing Costs. Credit card processing costs ("Credit Card Cost") and affiliate processing fees (the
"Affiliate Fees," which include commissions and processing costs paid to third parties IF they sent the
winning bidder to the website), will be borne by Owner and PRC in proportion to the percentage of the
revenue credited to the parties for each underlying transaction.
(4) Net Proceeds. Amounts received by the Owner will be called "Owner's Net Proceeds".
Portable Item Example. The following example illustrates allocation of proceeds from a Portable Properly
Item sale. Assume an item of Property sells at auction for a $100 Winning Bid; the Buyer pays shipping
and handling of $10, insurance of $2, and sales tax of $6. The Buyer pays the Soles Price of $118.00 ($100
+ $10 + $2 + $6) by credit card, and the Credit Card Cost is 3% &the Sales Price or $3.54 (0.03 x $118)
and the Affiliate Fee is 4.8% or $4.80 (0.048 x $100). The Owner and PRC each share 50% of the
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PROPERTY DISPOSITION SERVICES AGREEMENT
underlying Winning Bid, therefore Credit Card Costs and Affiliate Fees are also shared equally, $1.77 each
($3.54 + 2) for Credit Cost and $2.40 each ($4.80 + 2) for Affiliate Fees. The Owner's Net Proceeds are
$45.83 ($50.00 less $4.17). Note: less than 1 out of 10 transactions include Affiliate Fees.
(5)
Fuel Surcharge. The Company does NOT charge pick-up fees. Instead, a fuel surcharge applies per
Portable Item manifest when diesel prices rise above a specific level as shown in the Fuel Surcharge
Schedule below. The Company benchmarks average diesel retail prices as published online by the
Energy Information Administration of the US Department of Energy and resets its fuel surcharge
quarterly based on pricing from the prior quarter. Fuel sumharges, if any, deduct from monthly
Owner's Net Proceeds.
Fuel Surcharge Schedule
Retail Diesel (per gal) Fuel Surcharge*
Less than $2.50 $ 0.00
$ 2.50 to $ 2.99 $ 12.40
$ 3.00 to $ 3.49 $ 24.80
$ 3.50 to $ 3.99 $ 37.20
$ 4.00 to $ 4.49 $ 49.60
$ 4.50 to $ 4.99 $ 62.00
$ 5.00 to $ 5.49** $ 74.40
* Divides across locations and/or sub-accounts picked-up same day
** Table continues upward at same rate
(6) To the extent that Property is not sold by Auction and PRC disposes of Property in a commercially
reasonable manner (see "Method of Selling Property" section), including, but not limited to, sending to
a charity, recycling center, landfill, or scrap metal processor, Owner understands and agrees to the
following.
(a) When Property is not sold by Auction, PRC disposition activities create additional PRC
processing costs (the "Disposal Costs") and potentially a disposition Sales Price (the "Disposition
Proceeds").
(b) Disposal Costs include, but are not limited to, labor cost of reloading Property onto a truck, labor
and vehicle costs associated with transporting Property for disposition, and third-party fees, such
as landfill, recycling, and hazardous material disposal fees.
(c) Disposition Proceeds include, but are not limited to, a Sales Price obtained for scrap metal.
(d) PRC will bear the burden of Disposal Costs.
(e) PRC will retain Disposition Proceeds, if any, as an offset to Disposal Costs, except if Disposition
Proceeds for an item of Owner Property exceed $250, in which case PRC will credit Owner a
portion of Disposition Proceeds per "The Split" and "Example" above.
Large- Items.
(1) Sales Price, Processing Costs and Net Proceeds. Calculated in a manner directly analogous to
Portable Items.
(2) The Split. For each Large-Item of Property, Owner will be credited with a percent of the Winning Bid
which varies according to the Large-Item service option employed.
(a) Silver. Owner will be credited with 100% of the Winning Bid and PRC will charge Buyer a 15%
Buyer's Premium.
(b) Gold. Owner will be credited with 95% of the Winning Bid and from this amount, the Owner's
pro rata share of the Processing Costs, if any, will be deducted. PRC will charge Buyer a 15%
Buyer's Premium.
(c) Platinum. Owner will be credited with 70% of the Winning Bid less any title pass-through fees
from PRC partner.
Large-Item Example. Assume a Large-Item sells at auction for a Winning Bid of $1,000.00, and with no
shipping or handling charges yields a $1,000.00 Sales Price. For the Silver, and Gold options, PRC collects
and retains a 15% Buyer's Premium, $150.00 (0.15 x $1,000), from Buyer. With regard to collecting the
Sales Price and sharing proceeds, the approach differs by option:
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PROPERTY DISPOSITION SERVICES AGREEMENT
11.
Silver. Owner completes the sale by collecting the $1,000.00 Sales Price from Buyer, retaining
100% as Owner's Net Proceeds.
Gold. PRC completes the sale by collecting the $1,000.00 Sales Price from Buyer. The
underlying Winning Bid is shared 95% by Owner, $950 (0.95 x $1,000) and 5% by PRC, therefore
a 3% ($30.00) Credit Card Cost is split 95% by Owner, $28.50 (0.95 x $30) and 5% by PRC,
$1.50 (0.05 x $30). The Owner's Net Proceeds are $921.50 ($950.00 less $28.50).
Platinum. PRC complete the sale as described in Gold, but with a 70-30 Split and with a
deduction of any title acquisition pass-through fees.
Payment Terms. Once every month, PRC will pay to Owner the amount of Owner's Net Proceeds payable for
completed sales during the preceding month. Sales are deemed completed when all items comprising a line item
on the original manifest or other list &Property are sold. With each payment of Owner's Net Proceeds, PRC
will make available to Owner a detailed report setting forth the following information for the immediately
preceding month:
a. The completed sales during the prior month, including the total amount of related proceeds collected,
Owner and PRC share of Processing Costs, and the Owners Net Proceeds;
b. Other dispositions of Property during the month; and
c. The Property, if any, inventoried by PRC at the end of the month.
PropertyRoom's Obligations Concerning Property in Its Possession. With respect to Property in PRC's
possession:
a. PRC will exercise due care in the handling and storage of any Property;
b. PRC shall keep the Property free of liens, security interests, and encumbrances, and shall pay when due all
fees and charges with respect to the Property;
c. PRC shall sign and deliver to Owner any UCC-1 fmancing statements or other documents reasonably
requested by Owner; and
d. PRC shall obtain and maintain insurance in an amount (determined by PRC) not tess than the replacement
value of Property in its possession. The insurance will cover the Property against fire, theft, and extended
coverage risks ordinarily included in similar policies. PRC shall give Owner a certificate or a copy of each
of the above upon Owner's request:
Owner Obligations; Owner will use its best efforts to provide to PRC such Property as becomes available for
sale to the public. Owner will complete paperwork reasonably necessary to convey custodial possession &the
item of Property to PRC, including a written manifest or list that describes the item of Property in sufficient
detail for identification. Owner agrees that it will not provide Property that is illegal or hazardous, including but
not limited to explosives, firearms, counterfeit or unauthorized copyrighted material ("knock-offs"), poisons or
pharmaceuticals. In addition, to help comply with public notification statutes as well as to support interact
traffic flow to the PRC auction website, Owner agrees to place a permanent clickable link (the "Link") to
www. PropertgRoom.com on one or more Owner websites. PRC will supply Link technical requirements, text
and images to Owner.
Restrictions on Bidding. PRC and its employees and agents may not directly or indirectly bid for or purchase
auctioned Properly on the PRC web site.
Representations and Warranties of Owner. Owner hereby represents, warrants and covenants as follows:
a. Property delivered to PRC is available for sale to the general public without any restrictions or conditions
whatever; and
b. Owner has taken all required actions under applicable law that are conditions precedent to Owner's right to
transfer title to the Property to Buyers (the "Conditions Precedent").
Books and Records. PRC will keep complete and accurate books of account, records, and other documents
with respect to this Agreement (the "Books and Records") for at least three (3) years following expiration or
termination of this Agreement. Upon reasonable notice, the Books and Records will be available for inspection
by Owner, at Owner's expense, at the location where the Books and Records am regularly maintained, during
normal business hours.
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·. ' ' PROPERTY DISPOSITION SERVICES AGREEMENT
12.
13.
14.
15.
16.
17.
claim ification. Subject to the limitations specified in this Indemnification section of this Agreement~.~ch
ify, hold harmless and defend the other party and its agents and employed against
s, damages, liabilities, whether joint or several, expensing reasonable legal
fees and exp~nses)., .~nt_s, fines and other amotmts paid i~, ncurred or suffered by any such
~~.~ connection with~....~-~
~ty made bythe party hereander,
b~h of this Agree~ the"l~rl~, or _
~ction with the performance
b~igent act or omission was
not .
Limitations on Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY
DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES), ARISFNG FROM BREACH OF THE AGREEMENT, THE SALE OF PROPERTY, OR
ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY,
"DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LlABLE TO THE
OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD
PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 12. LIABILITY
ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE
DAMAGES. THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLA1MS
ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE
AMOUNT OF PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY HEREUNDER IN THE YEAR
IN WHICH LIABILITY ACCRUES; PROVIDED THAT EACH PARTY WILL REMAIN L1ABLE FOR THE
AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY
PURSUANT TO THE AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY,
OWNER'S LIABILITY IS NOT LIMITED UNDER THIS AGREEMENT WITH RESPECT TO LIABILITY
ARISING FROM OWNERS FAILURE TO SATISFY TIMELY ALL CONDITIONS PRECEDENT.
Assignment. This Agreement may not be assigned, in whole or in part, by either of 0ae parties without the prior
written consent of the other party (which consent may not be unreasonably withheld or delayed).
Notwithstanding the foregoing, an assignment of this Agreement by either party to any subsidiary or affiliate or
a third party acquisition of all or substantially all of the assets of such party will not require the consent of the
other party, so long as such subsidiary, affiliate or acquiring entity assumes all of such party's obligations under
this Agreement. No delegation by PRC of any of its duties hereunder will be deemed an assignment of this
Agreement, nor will any change in control nor any assignment by operation of law by either party. Subject to
the restrictions contained in this section, the terms and conditions of this Agreement will bind and inure to the
benefit of each of the respective successors and assigns of the parties hereto.
Notices. Any notice or other communication given under this A. greement will be in writing and delivered by
hand, sent by facsimile (,provided acknowledgment of receipt thereof is delivered to the sender), sent by
certified, registered mail or sent by any nationally recognized overnight courier service to the addresses
provided on the signature page of the Agreement. The parties may, from time to time and at any time, change
their respective addresses and each will have the right to specify as its address any other address by at least ten
(10) days written notice to the other party.
Severability. Whenever possible, each provision of this Agreemem will be interpreted in such a manner as to
be effective and valid under applicable law, but if any provision of this Agreement is held to be' prohibited by or
invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Complete Agreement. This Agreement and any related documents delivered concurrently herewith, contain the
complete agreement between the parties relating to the subject of this Agreement and supersede any prior
understandings, agreements or representations by or between the parties, written or oral, which may be related
to the subject matter hereof in any way.
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PROPERTY DISPOSITION SERVICES AGREEMENT
18."~t,~neys' Fees and Legal Expenses. If uny proceeding or action is brought to r~is
Agree~ffreaX, o~or or on account of any breach of, or to ~~~enunts, or m .
conditions of th~s~ent, the pr~~th.~ as p.a~..o.f, the
~ed by the court, and will be
made .
19. Further Assurances. PRC and Owner will each sign such other documents and take such actions as the other
may reasonably request in order to effect the relationships, services and activities contemplated by this
Agreement und to account for and document those activities.
20.
Governing Law. The internal law, und not the law of conflicts, of the state in which the Owner is located will
govern all questions concerning the construction, validity und interpretation of this Agreement und the
performunce of the obligations imposed by this Agreement. The proper venue for uny proceeding at law or in
equity will be the state and county in which the Owner is located, und the parties waive any right to object to the
venue.
21.
Relationship of the Parties. The relationship created hereunder between Owner and PRC will be solely that of
independent contractors entering into an agreement. No representations or assertions will be made or actions
taken by either party that could imply or establish any agency, joint venture, partnership, employment or trust
relationship between the parties with respect to the subject matter of this Agreement. Except as expressly
provided in this Agreement, neither par~ wilt have uny authority or power whatsoever to enter into any
agreement, contract or commitment on behalf of the other, or to create any liability or obligation whatsoever on
behalf of the other, to uny person or entity. Whenever PRC is given discretion in this Agreement, PRC may
exercise that discretion solely in any manner PRC deems appropriate.
22.
Force Majeure. Neither party will be liable for uny failure of or delay in the performunce of this Agreement for
the period that such failure or delay is due to acts of God, public enemy, war, strikes or labor disputes, or any
other cause beyond the parties' reasonable control (each a "Force Majeure"), it being understood that lack of
finuncial resources will not to be deemed a cause beyond a party's control. Each party will notify the other party
promptly of the occurrence of any Force Majeure und carry out this Agreement as promptly as practicable after
such Force Majeure is terminated. The existence of any Force Majeure will not extend the term of this
Agreement.
23. Counterparts. This Agreement may be signed in any number of counterparts.
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