BASIC COMPONENTS OF A

FUNDRAISING REPRESENTATION AGREEMENT

This “model contract” is provided by the Attorney General to help charities that
are considering the use of commercial fundraisers or fundraising counsel in the
organization’s development plans.
Provisions mandated by amendments to the law effective January 1, 2005
(identified in the text below in italics and by citation to statute) must be included in all
contracts with both commercial fundraisers [Govt. Code sec. 12599] and fundraising
counsel [Govt. Code sec. 12599.1]. The new provisions also require that a contract
must be signed by the authorized contracting officer for the fundraiser and by an official
of the charity authorized to sign by the organization’s governing body. In addition, the
contract must be available for inspection by the Attorney General.
The model contract also covers key issue areas which are not mandatory. Since
each organization is different, not all of these elective provisions may apply universally.
TERM OF THE AGREEMENT
This Agreement is made and entered into effective this ___day of __________,
200__(the “Effective Date”) [Govt. Code sections 12599(i)(6) and 12599.1(f)(5)], by and
between ABC, Inc., a California corporation (ABC), whose principal address is
______________________________and Nonprofit, Inc.(NP), a California nonprofit
public benefit corporation, whose principal address is [insert legal name and address as
registered with the California Attorney General unless exempt from registration], acting
by and through its duly authorized officers. [Govt. Code sections 12599(i)(1) and
12599.1(f)(1)]
IDENTIFICATION OF PARTIES TO AGREEMENT
1.
NP is a nonprofit public benefit corporation formed and operated for
charitable purposes, including but not limited to [describe program
service].
2.
ABC is a for-profit corporation engaged in the business of commercial
fundraising for charitable purposes.
3.
Subject to the terms of this Agreement, NP desires to engage the services
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of ABC and ABC desires to engage in fundraising activities on behalf of
NP.
DESCRIBING THE TERMS OF EMPLOYMENT
1.
Term of agreement. This Agreement shall commence on the Effective
Date hereof and shall continue until _____________unless terminated
prior thereto in accordance with the terms of this Agreement. [Govt. Code
sections 12599(i)(6) and 12599.1(f)(5)]
2.
Cancellation of Agreement
(a) NP shall have the right to cancel Agreement without cost, penalty
or liability for a period of ten days following the date of execution,
by serving a written notice of cancellation on ABC. If mailed,
service shall be by certified mail, return receipt requested, and
cancellation shall be deemed effective upon the expiration of five
calendar days from the date of mailing. The notice shall be
sufficient if it indicates that NP does not intend to be bound by
Agreement.
Any funds collected after effective notice that Agreement has been
canceled shall be deemed to be held in trust for the benefit of NP
without any deduction for costs or expenses. NP shall be entitled
to recover all funds collected after the effective date of cancellation.
[Govt. Code sections 12599(i)(10) and 12599.1(f)(8)]
(b) Following the initial ten (10) day cancellation period, NP reserves
the right to terminate this Agreement, upon thirty days written notice
to ABC; that, if mailed, service of the notice of termination shall be
by certified mail, return receipt requested, and shall be deemed
effective upon the expiration of five calendar days from the date of
mailing. In the event of termination under this subsection, NP shall
be liable for services provided by ABC up to 30 days after the
effective date of the notice. [Govt. Code sections 12599(i)(11) and
12599.1(f)(9)]
(c) Following the initial ten (10) day cancellation period, NP reserves
the right to terminate this Agreement, without payment or
compensation of any kind to ABC, at any time upon written notice
to ABC, if ABC or its agents, employees or representatives (i) make
any material misrepresentations in the course of solicitations or with
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respect to NP or other material matter subject to this Agreement; (ii)
are found by NP to have been convicted of a crime arising from the
conduct of a charitable solicitation punishable as a misdemeanor or
a felony;
(iii) otherwise conducts its fundraising activities in a manner that
causes or could cause public disparagement of NP’s good name or
goodwill; or (iv) discloses confidential information in violation of
Section 9 of this Agreement. [Govt. Code sec. 12599(i)(12)]
(d) Either party may terminate this Agreement in the event of a material
breach of this Agreement by the other party which continues
without cure for thirty (30) or more days following the giving of
notice of such breach to the breaching party.
3.
Description of respective obligations of fundraiser and charitable
organization [Govt. Code sections 12599(i)(3) and 12599.1(f)(3)]
In connection with ABC’s fundraising activities on behalf of NP, ABC shall
have the right to use NP’s good name and good will. NP shall cooperate
with ABC for the purpose of soliciting donations [include statement of
charitable purpose for which solicitation campaign, event or service is
being conducted [Govt. Code sec. 12599(i)(2) and 12599.1(f)(2)] and
method of solicitation, e.g. telemarketing, direct mail, events]. The first
solicitation campaign, fundraising event, or service under this contract
shall occur on __________.
[Set forth detailed schedule of fundraising activities, e.g. number of
mailings, telephone campaigns,events].
The schedule of fundraising activities may be changed by mutual
agreement.
4.
Regulatory requirements. This Agreement is subject to the issuance of all
necessary governmental permits, registrations and approvals with respect
to fundraising activities contemplated by this Agreement in a timely
manner by all governmental agencies having regulation over such
activities. ABC shall not commence fundraising activities until compliance
with all required permits, registrations and approvals.
[If entering into contract with commercial fundraiser for charitable
purposes (CFR), set forth name of surety issuing the bond, aggregate
amount of bond, bond number, and effective and termination dates.]
5.
Description of fundraising methods
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(a) ABC shall comply with all applicable laws and regulations of the
State of California in the conduct of its business and its fundraising
activities on behalf of NP.
(b)
In connection with all sales and solicitation activities, ABC, its
agents, servants, representatives and employees shall not
misrepresent NP’s name and activities in any way. NP will provide
ABC with a description of its organization and its activities which
may be used in connection with sales and solicitations.
For public safety membership organization contracts
substitute: In connection with all sales and solicitation
activities ABC, its agents, servants, representatives and
employees shall not represent directly or indirectly that they
are [firefighter, law enforcement, etc.] personnel, nor shall
NP’s name or activities be misrepresented in any way. NP will
provide ABC with a description of its organization and its
activities which may be used in connection with sales and
solicitations.
(c) ABC, its agents, servants, representatives and employees shall, in
connection with all sales and solicitations clearly state that they
represent NP in connection with fundraising activities on its behalf.
(d) All sales or solicitation activity undertaken by ABC pursuant to the
terms of this Agreement shall be performed by ABC, its agents,
servants, representatives and employees by [letter, personal
contact or telephone].
(e) ABC shall provide all proposed solicitation materials to NP for
review prior to use and shall not use said materials without the
express written consent of NP, through its president, which consent
may be withheld at NP’s sole discretion.
(f) NP shall exercise control and approval over the content and
frequency of any solicitation. [Govt. Code sec. 12599(i)(8) and
12599.1(f)(7)] NP shall monitor the solicitation efforts made by
ABC and reserves the right to direct, instruct and otherwise limit
ABC’s solicitation services for the purpose of preserving and
protecting NP’s good name.
(g) ABC shall record all solicitation calls made to California residents
and shall maintain these recordings for a period no less than one
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(1) year. NP shall have access to all such recordings as well as
access to monitoring or observing solicitation calling.
[PLEASE NOTE: It is unlawful in California to tape telephone
conversations without consent (Penal Code sec. 632), so if
recording, calls must begin with an announcement that the call
is being recorded, e.g. for quality control purposes.]
(h) ABC shall provide NP at least every three (3) months with a list of
all donors (or purchasers, if the solicitation is a sales solicitation),
including a contribution history for each donor (purchaser) in a
format to be reasonably designated from time to time by NP. Such
contributor, donor and customer list shall at all times remain the
property of NP and shall constitute confidential information which
will be preserved and protected by ABC in accordance with the
terms of this Agreement. At no time shall ABC have the right to sell
or otherwise negotiate the contents of the list.
(i)
[If the fundraiser proposes to make any payment in cash or in kind
to any person or legal entity to secure any person’s attendance at,
or sponsorship, approval, or endorsement of, a charity fundraising
event, the maximum dollar amount of those payments shall be set
forth in the contract. [Govt. Code sec. 12599(i)(9.]
6.
Control of funds.
Each contribution in the control or custody of ABC shall, in its entirety and
within five working days of its receipt:
(1)
be deposited in an account at a bank or other federally
insured financial institution that is solely in the name of NP and over which
NP has sole control over withdrawals; or
(2)
be delivered to NP in person, by U.S. express mail, or by
another method of overnight delivery.
[Govt. Code sec. 12599(i)(7)]
[For fundraising counsel substitute: a statement that fundraising
counsel will not at any time solicit funds, assets, or property for charitable
purposes, receive or control funds, assets, or property solicited for
charitable purposes, or employ, procure, or engage any compensated
person to solicit, receive or control funds, assets or property for charitable
purposes. [Govt. Code sec. 12599(f)(6)]
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7.
Compensation of fundraiser.
a.
ABC will prepare and submit a campaign operating budget for
approval by NP prior to beginning any solicitation campaign, event
or service under this contract.
b.
[If the fundraiser is to be paid a fixed fee, a statement of the fee to
be paid to the fundraiser and a good faith estimate of what
percentage the fee will constitute of the total contributions received.
The contract must clearly disclose the assumptions upon which the
estimate is based, and the stated assumptions based on all the
relevant facts known to the fundraiser regarding the solicitation to
be conducted by the fundraiser. [Govt. Code sec. 12599(i)(4)]
[For fundraising counsel, Govt. Code sec. 12599.1(f)(4)
requires: a clear statement of the fees and any other form of
compensation, including commissions and property that will be paid
to fundraising counsel.]
c.
If a percentage fee is to be paid to the fundraiser, a statement of
the percentage of the total contributions received that will be
remitted to or retained by the charitable organization, or, if the
solicitation involves the sale of goods or services or the sale of
admissions to a fundraising event, the percentage of the purchase
price that will be remitted to or retained by the charitable
organization. The stated percentage shall be calculated by
subtracting from contributions received and sales receipts not only
the fundraiser’s fee, but also any additional amounts that the
charitable organization is obligated to pay as fundraising costs.
[Govt. Code sec. 12599(i)(5)]
[Outline more detailed schedule of payments as needed to include
allowable expenses]
8.
Indemnification of NP. ABC shall indemnify, defend and hold NP
harmless from any and all claims, losses and/or damages, of whatever
kind and nature, arising from, out of or in connection with the performance
by ABC of its obligations under this Agreement, including but not limited to
reasonable attorneys’ fees incurred by NP in defending itself from any and
all such claims.
9.
Nondisclosure of confidential information. ABC agrees that it will not,
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without first receiving written authorization signed by an officer or director
of NP, during the term of this Agreement or at any time after the
termination of this Agreement, remove from NP’s premises or otherwise
divulge to any other person or entity the contents of any records or any
other information of any kind relating to the business of NP, including but
not limited to (i) donor and customer lists, telephone numbers and other
information pertaining to donors and customers; (ii) finances, plans, or
other information relating to the operation of NP generally; and (iii) other
private and confidential information which is a unique asset of NP or
information which, if known to competitors or others outside of NP, would
be harmful to NP.
ABC agrees to deliver to NP upon termination of this Agreement any and
all such information in any form then in its possession or under its control.
ABC acknowledges that such information is confidential and is the sole
property of NP. The foregoing restrictions on disclosure of confidential
information shall not apply to disclosures required to be made to any
public body or other regulatory agency governing the activities of NP or
ABC.
10. Breach of agreement. ABC acknowledges that a breach of Paragraph 9
may result in irreparable and continuing damage to NP and the business
of NP for which there will be no adequate remedy at law and agrees that,
in the event of any breach or threatened breach of said paragraph, NP
shall have the right to seek injunctive relief from a court of competent
jurisdiction to prevent a continuing or threatened breach of agreement and
such other and further relief as may be proper. In addition to other
damages awarded, NP shall be entitled to a judgment for court costs and
reasonable attorneys fees.
11. Notice to parties to agreement. Wherever under this agreement a
provision is made for notice of any kind, such notice shall be in writing and
signed by or on behalf of the party giving or making same and it shall be
deemed sufficient notice and service thereof when such notice is
personally delivered, or mailed as provided for service of cancellation of
agreement in paragraph 2(d) above, as follows:
To NP:
[mailing address]
and
To ABC:
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[mailing address]
Either party may designate a different address to which notice shall be
sent in writing in accordance with this section.
12.
Applicable law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of California. In the event that any
portion of this Agreement is held be unenforceable, such portions shall not
limit or otherwise modify or affect any other portion of this Agreement.
13.
Benefit. This Agreement shall be binding upon the parties hereto and their
respective successors and assigns.
14.
Assignment. This Agreement may not be assigned by either party without
the express written consent of the other.
15.
Amendment. This Agreement constitutes the entire agreement between
the parties hereto with respect to the subject matter hereof and may not
be modified, amended or otherwise altered, except by written consent
signed by both parties.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date above written.
NONPROFIT, INC.
By___________________
Its [President]______
By___________________
Its________________
Contract must be signed by an official of the charitable organization who is authorized to
sign by the organization’s governing body. [Govt. Code sec. 12599(i) and 12599.1(f)]
ABC, INC.
By__________________
Its [President______]
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By__________________
Its _______________
Contract must be signed by authorized contracting officer of fundraiser/fundraising
counsel. [Govt. Code sections 12599(i) and 12599.1(f)]
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