Propertyroom.com, Inc./CPD
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APPROVEO.~O
FORM BY: '
PROPERTY DISPOSITION SERVICES AGREEMENT
PropertyRoom.com, Inc" a Delaware corporation ("PropertyRoom"), enters into this agreement (the "Agreement"), with
the customer identified below (the "Owner") for the auction and disposition of personal property (the "Disposition
Services"), in accordance with the Terms and Conditions and Addenda, if any, attached hereto and listed below.
, (the "Start Date") Owner engages the Disposition Services of PropertyRoom. This
, (the "Termination Date"), or at such other time as provided
Beginning
Agreement will terminate on
herein.
OWNER INFORMATION: SCHEDULES, SUPPLEMENTS AND OTHER
City of Carmel Police Department ATTACHMENTS: (Mark only if included)
{Owner Name]
3 Civic Square Terms and Conditions ~
[Address] Yes
Addendum -
Carmel, IN 46032
317-571-2500
[Phone]
THIS AGREEMENT INCLUDING ALL OF THE TERMS AND CONDITIONS SET FORTH ON THE ATTACHED
TERMS AND CONDITIONS, AND ALL OTHER ATTACHMENTS INDICATED IN THE BOX ABOVE, IS THE
PARTIES' ENTIRE AGREEMENT AND CANNOT BE MODIFIED EXCEPT IN WRITING BY THE DULY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES.
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EXECUTED on the daters) indicated below:
prope~m, Inc.
By:~k;~'
C/'
Steven Lupinacci, CEO
Date: 09/06/2006
By:
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BY:~
Name and Title] .
By:
[Name aM IltIe]
By:
[Name and Tille]
PropertyRoom.com, Inc.
26421 Crown Valley Parkway, Suite 200
Mission Viejo, California 92691
Phone: 800-799-2440
Federal Tax 10 86-0962102
Rev 1/7/2006
Page 1 of4_
A~~y the Board of Public Works and Safety of the City of Carmel, Indiana, this ~
IV'!..Y> /Il , ,200l3-
day of
ATTEST:
q/~vlCh
iana L. Cordray, IAMC, CI
Date:
Sandra M. Johnson,
Deputy Clerk. for
.
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TERMS AND CONDITIONS
1. Property to be Sold. From time to time, Owner wiil designate items of personal property (the "Property") that it
desires to provide to PropertyRoom for Disposition Services. Property Room retains the right to accept or reject certain
items in its sole discretion.
2. Title. Owner shail retain iegal title to the Property until it is purchased by auction or otherwise disposed of in
accordance with this Agreement at which time Owner wiil be deemed to have transferred title to the purchaser or other
acquirer of the item of Property. Owner appoints PropertyRoom as its attorney-in-fact to sign any and ail documents
necessary to assign to purchasers of Property all of Owner's right, title and interest in and to Property sold or disposed.
Ail cash receipts, accounts receivable, contract rights, notes, generai intangibles, and other rights to payment of every
kind, arising out of the sales and dispositions of Property (coilectively the "Proceeds") belong to Owner, subject to
PropertyRoom's right to PropertyRoom's Net Proceeds and funds attributable to Credit Card Costs and other transaction
costs. Owner's Property shail, at ail times before sale or disposition, be subject to the direction and control of Owner.
3. Method of Selling Property. PropertyRoom wiil, on Owne~s behalf, list Property for sale by auction to the public on
the World Wide Web of the Internet on one or more domain names selected by PropertyRoom. To the extent that any
Property is not sold by auction, PropertyRoom may, in any commercially reasonable manner selected by PropertyRoom,
dispose of Property. PropertyRoom will determine all aspects, terms and conditions of auctions of . Property and
dispositions of Property not purchased at auction, subject to the ultimate control of Owner. PropertyRoom wiil be
responsible for ail phases of submitting the Property for auction, including, but not limited to, determining when Property
wiil be auctioned, setting the opening and reserve prices of Property, if any; determining the selling price, setting the
length of time a Product will be auctioned; creating text and graphics to describe and depict Property submitted for
auction; coilecting ail purchaser information (such as purchaser's name, billing address, shipping address, and credit
card information); approving purchasers' credit card purchase transactions; and coilecting auction proceedS for
completed sales from purchasers. PropertyRoom shail use its best efforts in auctioning and seiling the Property on the
intemet and disposing of Property that does not seil at auction. PropertyRoom shail sell and dispose of ail Property "as
is" without any liability to the Owner. PropertyRoom is solely responsible for identifying and resolving sales and use tax
coilection issues arising from'Property sales, including the necessity of charging and coilecting such taxes.
4. Ailocation of Sales Proceeds.
a. . The total amount paid by the purchaser shail be called the "Saies Price". The Sales Price shail include the
winning bid amount (the "Winning Bid") and ail costs, shipping and handling charges, taxes, and insurance costs
associated with the transaction and paid by the purchaser.
b. For each item of Property, Ownerwiil be credited with 50% of the first $1,000 of the Winning Bid and 75% of
the portion, if any, of the Winning Bid that exceeds $1,000. From this amount, the owner's pro rata
share of transaction fees, if any, assessed by the credit card processor ("Credit Card Costs") will be
deducted.
c. Credit Card Costs wiil be borne by Owner and PropertyRoom in proportion to the percentage of the revenue
credited to the parties for each underlying transaction.
d. Amounts received by the Owner wiil be cailed "Owner's Net Proceeds".
The foilowing example illustrates how proceeds of a sale are to be ailocated. Assume an item of Property seils at
auction for a Winning Bid of $100; the buyer pays shipping and handling of $10, insurance of $2, and sales tax of $6.
The buyer pays the Sales Price of $118.00 by credit card, and the Credit Card Costs are 2% of the Sales Price. The
Credit Card Cost is therefore $2.36 ($118 x .02). The Owner and PropertyRoom each share 50% of the underlying
Winning Bid, therefore Credit Card Costs are aiso shared equally ($1.18 each). The Owner's Net Proceeds are $48.82
($50.00 less $1.18).
5. Payment Terms. Not less than once every month, PropertyRoom will pay to Owner the amount of Owner's Net
Proceeds payable for completed sales during the preceding month. Sales are deemed completed when ail items
compriSing a line item on the original manifest or other list of Property are sold. With each payment of Owner's Net
Proceeds, PropertyRoom wiil make available to Owner a detailed report setting forth the foilowing information for the
immediateiy preceding' month: (i) the completed sales during the prior month, including the total amount of reiated
proceeds coilected, the Owne~s and PropertyRoom's share of Credit Card Costs, the Owner's Net Proceeds; (ii) other
dispositions of Property during the month; (iii) the Property, if any, inventoried by PropertyRoom at the end of the month.
6. ProperlyRoom's Obligations Concerning Property in Its Possession. With respect to Property in
PropertyRoom's possession: (I) PropertyRoom wiil exercise due care in the handling and storage of any Property; (ii)
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PropertyRoom 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; (iii) Property Room shall sign and deliver to Owner any UCC-1 financing
statements or other documents reasonably requested by Owner; (iv) PropertyRoom shall obtain and maintain insurance
in an amount (determined by PropertyRoom) not less 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.
PropertyRoom shall give Owner a certificate or a copy of each of the upon Owner's request.
7. Owner's Obligations. Owner will use its best efforts to provide to PropertyRoom such Property as becomes
available for sale to the public. Owner will complete paperwork reasonably necessary to convey custodial possession of
the item of property to PropertyRoom, 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-ofts"), poisons or pharmaceuticals.
B. Restrictions on Bidding. PropertyRoom and its employees and agents may not directly or indirectly bid for or
purchase auctioned Property on the Property Room web site.
g. Representations and Warranties of Owner. Owner hereby represents, warrants and covenants as follows; (i)
Property delivered to Property Room is available for sale to the general public without any restrictions or conditions
whatever; and (ii) Owner has taken all required actions under applicable law that are conditions precedent to Owner's
right to transfer title to the Property to purchasers (the "Conditions Precedent").
10. Books and Records. PropertyRoom will keep co;"plete and accurate books of account, records, and other
documents with respect to this Agreement (the "Books and Records") for at least three years following expiration or
termination of this Agreement. Upon reasonable notice, the Books and Records will be available for inspection by
Owner, at Owne~s expense, at the location where the Books and Records are regularly maintained, during normal
business hours.
11. Term and Termination. Unless terminated earlier, the term of this Agreement will begin on the Start Date and
terminate' on the Termination Date. 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 days prior written notice to the other party
unless the breach is cured within the thirty day period, provided, however, if the breach is not capable of being cured
within thirty days, the breaching party will have a reasonable amount of time to cure the breach If it begins to cure during
the thirty day period and proceeds diligently thereafter. The written notice will specify the precise nature of the breach.
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. Notwithstanding any termination by either party of this Agreement, Property Room 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 Property.
Room or retumed to Owner, at owne~s election and cost.
12. Indemnification. Subject to the limitations specified in this Section 12, each party will indemnify, hold harmless and
defend the other party and its agents and employees from and against any and all losses, claims, damages, .Iiabilities,
whether joint or several, expenses (including reasonable legal fees and expenses), judgments, fines and other amounts
paid in settlement, incurred or suffered by any such person or entity arising out of or in connection with (i) the inaccuracy
of any representation or warranty made by the party hereunder, (ii) any breach of this Agreement by the party, or (iii) any
negligent act or omission by the party or its employees or agents in connection with the performance by the party or its
employees or agents of obligations hereunder, provided the negligent act or omission was not done or omitted at the
direction of the other party. .
'13. 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), ARISING 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 LIABLE 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 CLAIMS 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 LIABLE 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
Rev 1/7/2006
Page 30f4
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LIMITED UNDER THIS AGREEMENT WITH RESPECT TO LIABILITY ARISING FROM OWNER'S FAILURE TO
SATISFY TIMELY ALL CONDITIONS PRECEDENT. .
14. Notices. Any notice under this Agreement must be in writing. Initially the addresses of the parties will be as
follows: (i) If to PropertyRoom: PropertyRoom.com, Inc, Attn: Steven Lupinacci, President, 26421 Crown Valley
Parkway, Suite 200, Mission Viejo, California 92691; and (ii) If to Owner: At the address stated below Owne(s Signature
block on the first page of this 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 days' written notice to
the other party.
15. Severability. Whenever possible, each provision of this Agreement 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.
16. Complete Agreement. This Agreement and any related documents delivered concu'rrently 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.
17. Attorneys' Fees and Legal Expenses. If any proceeding or action is brought to recover any amount under this
Agreement, or for or on account of any breach of, or to enforce or interpret any of the terms, covenants, or conditions of
this Agreement, the prevailing party will be entitled to recover from the other party, as part of the prevailing party's costs,
reasonable attomeys' fees, the amount of which will be fixed by the court, and will be made a part of any judgment
rendered.
18. Further Assurances. PropertyRoom 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
and to account for and document those activities.
19. Governing Law. The internal law, and not the law of conflicts, of the state in which the Owner is located will govern
all questions conceming the construction, validity and interpretation of this Agreement and the performance of the
obligations imposed by this Agreement. The proper venue for any proceeding at law or in equity will be the state and
county in which the Owner is located, and the parties waive any right to object to the venue.
20: Relationship of the Parties: The relationship created hereunder between Owner end PropertyRoom 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 expressiy provided in this
Agreement, neither party will have any 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 any person
or entity. Whenever PropertyRoom is given discretion in this Agreement, Property Room may exercise that discretion
solely In any manner Property Room deems appropriate. .
21. Force Majeure. Neither party will be liable for any failure of or delay in the performance of this Agreement for the
periOd that such faiiure or delay is due to acts of God, public enemy, war, strikes or lebor disputes, or any other cause
beyond the parties' reasonable control (each a "Force Majeure"), it being understood that lack of financial 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 and 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.
22. Counterparts. This Agreement may be signed in any number of counterparts.
Rev 1171200S
Page 40f 4
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Addendum to Property Disposition Services Agreement
This addendum is attached to and made part of the City of Cannel Police Department
Property Disposition Services Agreement dated 09/06/2006 (the "Agreement").
The Agreement is modified as follows:
Section 17. Attorneys' Fees and Legal expenses.
This section is deleted in its entirety.
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