AGREEMENT
THIS AGREEMENT is made and entered into this 7th day of November, 2001 by
and between Clements Golden Phoenix Enterprises, Inc., 3135 S.W. Mapp Road, Palm
City, FL 34990 ("CGPE") and Paradise Water and Juice Co., Inc., 17770 S.W. 367A
Avenue, RD, Ocala, FL 34473 ("Paradise"),
W I T N E S S E T H
Whereas, Paradise, directly and through its distributors, dealers and
independent retail outlets, (including vendor supply contracts with the
governments of the United States and foreign countries) intends to provide
consumer goods and products to domestic and foreign markets; and
Whereas, CGPE is presently engaged in the business of providing fresh and
concentrate citrus juice as well as fresh citrus fruit products to foreign
markets; and
Whereas, Paradise intends to have CGPE be its sole and exclusive supplier
of certain consumer goods and products more specifically identified below,
subject to the terms and conditions of this Agreement; and
Whereas, CGPE is ready, willing and able to be the sole and exclusive
supplier to Paradise of the consumer goods and products needed or required by
Paradise, subject to the terms and conditions of this Agreement.
Now Therefore, in consideration of the sum of Ten Dollars ($10.00) and
other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and in further consideration of the mutual covenants contained
herein, the parties, intending to be legally bound, hereby as follows:
1. Recitals. The above recitals are true and correct.
2. Authority to Enter into Agreement. CGPE and Paradise each warrant and
represent to the other that each entity has the power and authority to enter
into this Agreement and to be bound by the terms and conditions thereof. The
respective boards of directors of CGPE and Paradise have or will have adopted
the appropriate resolutions with respect to this Agreement and the president of
each entity has or will have the authority to sign on behalf of each party.
3. Duration of Agreement/Renewal. This Agreement will have an initial term of
three (3) years commencing on the date that the Agreement is last signed by
either party. If the parties mutually agree, the Agreement may be extended for
an additional term of five (5) years commencing on the third anniversary date of
the Agreement. A decision by the parties to extend the Agreement beyond the
initial term must be in writing prior to the expiration of the initial term.
4. Specific Consumer Goods and Products to be Supplied by CGPE to Paradise. CGPE
agrees to provide Paradise, during the term of this Agreement and any extension
thereof, on a sole and exclusive supplier basis, the following items: (a)
purified bottled water; (b) flavored bottled water; (c) ready-to-drink orange
and other fruit juices; (d) dried fruits, including cranberries, blueberries,
apples, strawberries and cherries. The parties may, from time to time, add or
delete products depending upon costs of products, availability and circumstances
or conditions beyond the control of either party.
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5. Containers and Packaging/Labeling. The beverage containers and food packaging
will be in an end-user, consumer format standard to the industry for retail
water, juice and dried food products. Any variation or change in containers or
packaging must be by mutual agreement of the parties.
Labeling design and product name will be the responsibility of Paradise
subject to any and all applicable United States and foreign laws, regulations,
disclosures and requirements with respect to the beverages and food products
which are the subject of this Agreement. CGPE reserves the right to approve any
labeling which uses or refers to any proprietary, trademarked or registered name
or logo belonging to CGPE.
6. Initial Pricing/Shipping/Duties & Tariffs. The initial pricing of the
beverages and food products to be supplied by CGPE to Paradise and the initial
quantities of each are attached hereto and made a part hereof as Exhibit "A".
All prices are FOB the point of production and packaging of the respective
products. Shipping, at actual cost to CGPE, will added to the FOB price plus a
charge of $250.00 per container for freight forwarding services provided by CGPE
and/or its shipping agent. All prices are United States dollars.
Any and all duties and tariffs incurred by Paradise in any domestic or
foreign market in which Paradise transacts business will be the sole
responsibility of Paradise with respect to any and all beverages and products
supplied by CGPE.
It is expressly agreed and understood by Paradise and CGPE that the
beverages and food products as well as the prices and quantities set forth in
this Agreement (including any Exhibits) are solely applicable to the existing
contract and any renewal thereof that Paradise has or may have with the United
States government. These prices are the actual
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prices upon which Paradise will perform its obligations under the said contract.
In the event Paradise obtains other retail customers, the quantities and pricing
are subject to adjustment by CGPE.
7. Commission Due Paradise or its Designated Agent. Paradise shall be entitled
to receive a fee or commission equal to ten percent (10%) of the gross profit
realized from the sale of any and all beverages and food products based upon the
price structure set forth in this Agreement (including any Exhibits attached
hereto). This fee or commission is to be deducted by Paradise upon receipt of
any payment for the beverages and/or food products with the balance of the funds
received by Paradise to be remitted directly to CGPE. Paradise has elected to
designate Michael Spieles, 1150 S.E. Federal Hwy., Stuart, FL 34994 as its
authorized local agent or representative to receive any such fees or commissions
for or on behalf of Paradise.
8. Renewal by Paradise of existing United States Government Contract. Paradise
has represented to CGPE that it has an existing contract with the United States
government to supply beverages and food products to the armed forces personnel
stationed in Guam and other islands in the western Pacific ocean. Paradise has
renewed or is in the process of renewing this contract and therefore, this
Agreement being executed by CGPE in reliance upon the existence and renewal of
the contract that Paradise has with the United States government. In the event
the said contract is not renewed or is otherwise no longer in force and effect,
CGPE reserves the sole and absolute right to unilaterally cancel this Agreement.
Pending the renewal of this contract, Paradise shall not be permitted to
negotiate with any other supplier and CPGE shall not be permitted to contact any
United States government procurement office with respect to the beverages and
products described in this Agreement.
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9. Cancellation/Penalty Payment. Either party may cancel this Agreement upon one
hundred- twenty (120) days written notice to the other, with or without cause.
In the event this Agreement is profitable to both parties and Paradise elects to
cancel the Agreement, then Paradise will make a penalty payment to CGPE equal to
the gross profit realized by CGPE for the twelve (12) months preceding the date
of cancellation or the sum of two hundred-fifty thousand dollars ($250,000.00)
whichever amount is greater. If, at the time either party elects to cancel, the
Agreement is not profitable to either party, then no penalty payment shall be
due to or from either party.
10. Travel and Administrative Expenses. Paradise shall be entitled to
reimbursement from CGPE for reasonable travel and administrative expenses
associated with (a) the performance of the contract, and any renewal thereof,
that Paradise has with the United States Government; and (b) the development by
Paradise of new customers and/or contracts. CGPE reserves the right to loan or
advance funds to Paradise for these costs and expenses, subject to the
submission by Paradise to CGPE of all receipts for any and all such
expenditures.
11. Construction of Bulk Processing Facility. Paradise has disclosed to CGPE its
intention to develop and construct a bulk processing facility on Guam or other
location. In the event Paradise is able to construct any such facility, CGPE, by
this Agreement, shall have the right of first refusal to provide bulk beverage
and food products to this facility. If the terms, prices and conditions of any
such future supply agreement submitted by CGPE are not competitive with other
proposals received by Paradise at that time, then Paradise shall be able to
obtain any bulk supplies from an alternative source.
12. Notices. All notices, requests, consents and other communications required
or permitted to
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be given under this Agreement will be in writing (including facsimile and
telecopy) and shall be sent by certified mail, postage prepaid, return receipt
requested, or shall be hand delivered or delivered by a recognized national
overnight courier service, or shall be sent by electronic communication (whether
by facsimile or telecopy), addressed as follows:
If to Paradise:
Fred Harney, President
Paradise Water and Juice Co., Inc.
17770 S.W. 367A Avenue RD
Ocala, FL 34473
(352) 245-6683
If to CGPE:
Joseph R.Rizzuti, Chairman & COO
Clements Golden Phoenix Enterprises, Inc.
3135 S.W. Mapp Road.
Palm City, FL 34990
(561) 219-0132
(561) 219-3712 facsimile
or to any other address or addresses as any party may designate from time to
time by notice given in accordance with this paragraph.
Any such notice will be deemed delivered: (a) on the date upon which the
return receipt is signed or delivery is refused or the notice is designated by
the U.S. Postal Service as not deliverable, as the case may be if mailed; (b) on
the date delivered by personal delivery; (c) on the date of delivery by a
recognized national overnight courier service, or (d) on the date of
transmission if sent by electronic communication.
The delivery to or receipt by parties, other than and in addition to
Paradise or CGPE, of copies of any notice, request, demand or other
communication hereunder is merely an accommodation and is not necessary or
required to make effective the actual giving or receipt by either party of any
notice, request, demand or other communication.
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13. Waivers. The failure or delay of any party at any time to require
performance by another party of any provision of this Agreement shall not affect
the right of such party thereafter to require performance of the subject
provision or to exercise any right, power or remedy hereunder. The waiver by any
party of any breach of any provisions of this Agreement shall not be construed
as a waiver of any continuing or succeeding breach of said provision, a waiver
of said provision, or a waiver of any right, power or remedy under this
Agreement.
14. Time of the Essence. Time is of the essence with respect to each provision
of this Agreement that requires action to be taken by either party within a
stated time period or upon a specified date.
15. Attorneys' fee and costs. In connection with any litigation arising out of
or in connection with this Agreement, the prevailing party shall be entitled to
recover as costs all its expenses incurred in connection therewith, including,
without limitation, reasonable attorneys' fees at the trial and appellate levels
and arising as a result of declaratory action.
16. Assignment. This Agreement may not be assigned by either party without the
express written consent of the other, which consent shall not unreasonably be
withheld.
17. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective legal representatives, successors
and permitted assigns.
18. Entire Agreement. This Agreement incorporates and merges all agreements,
understandings, promises, covenants, conditions, representations and warranties,
whether oral or written, between the parties with respect to the subject matter
hereof. No claimed modification of this Agreement shall be effective and binding
unless such modification is in writing and duly executed by the party sought to
be charged therewith.
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19. Governing Law. All aspects of this Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida,
without regard to principles of conflict of laws.
20. Counterparts. This Agreement may be executed in several counterparts, each
of which shall be deemed an original, and all such counterparts together shall
constitute one and the same instrument.
21. Jurisdiction and Venue. The parties acknowledge that a substantial portion
of negotiations and anticipated performance of this Agreement occurred or shall
occur in Martin County, Florida and that, therefore, without limiting the
jurisdiction or venue of any other federal or state courts, each of the parties
irrevocably and unconditionally (a) agrees that any suit, action or other legal
proceeding arising out of or relating to this Agreement shall be brought in the
courts of record of the State of Florida in Martin County; (b) consents to the
jurisdiction of each such court in any such suit, action or proceeding; and (c)
waives any objection which it may have to the laying of venue of any such suit,
action or proceeding in such court. This provision shall survive the termination
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day and year first set forth above.
Paradise Water and Juice Co., Inc.
By:/s/ Fred Harney, Pres.
-------------------------------------
Its: President
Clements Golden Phoenix Enterprises, Inc.
By: /s/ Joseph R. Rizzuti
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Its: Chairman & Chief Operating Officer
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