LAW OFFICES ALLAN J. WADE, PLLC One Commerce Square, Suite 2275 Memphis, Tennessee 38103 Telephone (901) 322-8005 Facsimile (901) 322-8007 Allan J. Wade Brandy S. Parrish December 31, 2015 Mayor AC Wharton, Jr. City Hall Memphis, Tennessee 38103 Councilman Reid Hedgepeth City Hall Memphis, Tennessee 38103 Re: Analysis and Interpretation of Agreements between City and Memphis Zoological Society and (ii) City and Overton Park Conservancy Gentlemen: At your request I have reviewed the above referenced agreements and such other pertinent documents that I have deemed necessary to render an opinion as to the relative rights, duties and obligations of the City, the Memphis Zoological Society and the Overton Park Conservancy especially as they relate to the Overton Park Greensward. Apparently, a disagreement between MZS and the OPC has arisen and continues over MZS's use of a portion of the Greensward for parking. Overton Park The real property now comprising Overton Park was acquired by the City by purchase 1901 and officially established as Overton Park in 1906. As such, we do not believe there are any agreements or covenants running with the land that restricts the plenary control of the City over the park. The park presently houses the Brooks Museum of Art, the Levitt Shell, the Memphis College of Art, the Memphis Zoo, all of which amenities and properties are subject to management agreements between the City and private non-profit entities. The park is also home to certain properties and municipal activities under the exclusive control of the City, such as a nine hole golf course, a City fire station and maintenance facility. The park also contains other natural amenities, including forest land, lakes and open spaces such as the Greensward. December 31,2015 The Zoo The Memphis Zoo was established in 1906 under the control of the Memphis Park Commission. In 1989 the City entered into an agreement with Memphis Zoo, Inc. a nonprofit support organization, to formalize a public private partnership between the City and MZS for the expansion, improvement, maintenance and operation of the Zoo pursuant to a Master Plan. In 1994 the City entered into a management agreement with the MZS appointing MZS as sole manager of the Zoo. The 1994 management agreement replaced and superseded the 1989 joint arrangement between the City and MZI (parent of MZS). Notably, the 1994 Agreement defined the Real Property comprising the ?Zoo? under the control and management of MZS by reference to the ?Master Plan.? The only Master Plan then in effect was that plan identified in the 1989 Agreement. It is apparent that the 1994 Agreement was intended to permit MZS to continue alone the pursuit of the goals and objectives mutually developed by the City and MZS in the 1989 Agreement, which included implementation of the Master Plan. As discussed more specifically herein, the Real Property identified in the Master Plan that was assigned by reference in the 1994 Agreement to be managed by MZS, included a portion of the Greensward. MEMPHIS ZOOLOGICAL SOCIETY MANAGEMENT AGREEMENT As reflected in the City's Annual Financial Statements, MZS was created in 1951 to manage and support the Memphis Zoo and Aquarium. In 1989 the City and Memphis Zoo, Inc. [parent to entered into an agreement to formalize a long standing public private partnership Ibetween the City' and. MZI for the expansion, improvement, maintenance and operation of the Zoo pursuant to a Master Plan. This agreement adopted, ratified and confirmed a n?ssion statement developed jointly by the Memphis Park Commission and MZI, which provided in pertinent part: The primary missions of Memphis Z00, Inc. are: To act as an advocate for Memphis Zoological Gardens and Aquarium (the "Memphis Zoo"). To work toward making the Memphis Zoo the major metropolitan zoo that the City of memphis needs and deserves. To engage in fund raising campaigns and programs to provide capital funds from the private sector for the enlargement and improvement of the Namphis Zoo. To be primarily responsible (in cooperatidn with the Memphis Park Commissidn) for nerketing and pmbmoting the Memphis Zoo ?3 December 31,2015 and for raising funds from the private sector for use in activities and the operation of the Memphis Zoo. To act as steward for the funds raised in the private sector by Memphis Zoo, Inc., and to assure the proper and efficient application of such funds for the improvement of the Memphis Zoo. Through its auxiliary, Memphis Zoological Society, to support the educational, recreational, research and conservation programs and objectives of the Memphis Zoo. In partnership with the City of Memphis and Memphis Park Commission, and in cooperation with Memphis Zoological Society, to engage in long range planning for the mephis Zoo, especially' towards adoption, implementation, and completidn of such Ekater Plan or Plans as City of and MEmphis Park Commission, and MEmphis Zoo, Inc., may mutually approve. To continuously promote community guide in the Memphis Zoo, while striving for improvement of the facility. (Emphasis ours). The 1989 Agreement adopted, ratified and confirmed a Master Plan, as required In] the Mission Statement, for the improvement and enlargement of the Zoo prepared by Design Consortium, Ltd. Dated February, 1986, as updated as to Phase I by revisions dated June, 1989. Notably, this Master Plan covered the Zoo proper, adjacent paved parking areas and a portion of the Greensward south of and adjacent to the paved parking area. This Master Plan could only be changed by mutual consent of the City and MZI. In 1994, the City and the Memphis Zoological Society entered into a Zoo Management Agreement that granted MZS sole and complete authority for management of all operations, maintenance and programs at the Zoo. The 1994 Agreement replaced the 1989 Agreement between. MZI and the City and ;placed the authority formerly shared between MZI and the City solely in MZS. The 1994 Agreement defines the Real Property comprising the ?Zoo? under the control of MZS by way of reference to the Master Plan for the Zoo that was an essential part of the 1989 Agreement. We have confirmed that the only master plan for the Zoo in existence when the 1994 MZS agreement *was executed. was iMaster' Plan. for? the improvement and enlargement of the Zoo prepared by Design Consortium, Ltd. Dated February, 1986, as updated as to Phase I by revisions dated June, 1989. As previously mentioned this Master Plan clearly covers a portion of the Greensward, which by reference was placed under the management and control of MZS. December31,2015 Specifically, the 1994 Zoo Management Agreement between the City and MZS provided: 5. Property. 5.1. Ownership of the Real Property' and Equipment shall be and remain in the City. The City does hereby grant and convey to MZS license to use the Real PrOperty and Equipment during the term of this Agreement for Zoo purposes only. 5.2. The City will provide, at no cost to MZS, such additional land for parking or additions to the Zoo, as may from time to time be requested by MZS and approved by MPC. 5.3. MZS shall have the right to make such changes in the appearance of the Real Property, routine non?structural changes, or additions or improvements paid for wholLy by MZS, as it deems appropriate for the proper operation of the Zoo. MZS shall ?make no material changes to existing buildings and improvements on the Real Property without the prior approval of MPC in each instance. Capital additions are subject to Section 6 below. The terms Real Property and Zoo were defined in Exhibit to the Agreement as follows: 11. "Real Property" means the land described in the Master Plan _for the Zoo and all buildings, exhibits, structures, walks, drives, parking areas, paving, moats, large trees, and other improvements and vegetation which are built on or affixed to the land, together with all future additions, replacements, and/or improvements, owned by the City. 12. "Zoo" means the Memphis Zoo and Aquarium and all of the assets and properties which constitute the Memphis Zoo and Aquarium, including the Real Property, the Equipment, the Animal Collection and the Intangible Property. All assets and preperties which are used as a part of the Zoo, but which may be held in the name of MPC or any other division of the City, are deemed to be owned by the City and a part of the Zoo. The Overton Park Conservancy In 2012, the City entered into a management agreement with the Overton Park Conservancy; in Section II of the OPC Agreement, the City purported to give OPC the full and exclusive authority and responsibility to manage, operate lease, maintain, rent, December 31,2015 preserve, protect enhance and develop the ?Management Area,? which was defined on an Exhibit to the Agreement identified as Exhibit Although the OPC Agreement indicates that ,the Management Area was described by metes and bounds on Exhibit the land under the management and control of the OPC was not described by metes and bounds, rather Exhibit defines the OPC Management Area by means of an aerial photograph of the entire park with the OPC Management Areas being marked in red. Notably, the entire Greensward-area is marked in red on the exhibit and thereby made a part of the Management Area of OPC under the agreement. Article II of the OPC ,Agreement expressly' excludes from Management Area, ?the Memphis Zoo, the Brooks Museum of Art, the Memphis College of Art, the Levitt Shell, the Overton Park Golf Course, the [City?s] General Services Area, and the Memphis Fire Department station on East Parkway, each of which is controlled by its own management agreement or City management.? These areas were collectively defined and referred to in the agreement as the ?Managed. Area.? The agreement expresses, therefore, a clear intent to exclude from the management authority granted to OPC those parts of the Managed Area that were controlled by separate management agreements or controlled by ?City management.? As with the Management Area, the -Managed Area was not defined by metes and bounds, but was identified on Exhibit in one of two ways. First, certain portions of the Managed Area located within Management Area were identified by dashed yellow lines; these include the Brooks Museum of Art, the Memphis College of Art, the Levitt Shell and the Overton Park Golf Course. The Memphis Zoo, the [City's] General Services Area, and the Memphis Fire Department station on East Parkway were not specifically identified as excluded, but they were excluded as being outside the OPC Management Area outlined in red on Exhibit 0 Even though Exhibit contains specific areas of the park excluded from management and control, we cannot discern how the author of Exhibit determined the exact boundaries for each of these properties in the Managed Area. Nevertheless, it is clear that under the OPC Agreement that any conflict between the descriptions of the Managed Area in the separate management agreements pertaining to the Memphis Zoo, the Brooks Museum of Art, the Memphis College of Art and. the Levitt Shell would control over the delineation of the Managed Area on Exhibit As of the writing of this opinion, we have not been able to determine the source and accuracy' of the delineation. of the Managed Area on Exhibit except with respect to the Dccember31,2015 delineation of the Memphis Zoo' as discussed in detail subsequently. Ignoring for the moment the accuracy of the Management Area delineated in the OPC Agreement as being under exclusive control, Article VI of the OPC Agreement grants OPC the sole authority to control activities in the Managed Area that were already controlled by ?the Memphis Zoo, the Brooks Museum of Art, the Memphis College of Art, the Levitt Shell, and City management [as to the Overton Park Golf Course, the '[City's] General Services Area, and the Memphis Fire Department station on East Parkway]. Astonishingly, Article VI of the OPC Agreement provides in pertinent part that ?the (MK: will have the sole authority to determine what activities, events, program and concessions,(sic) shall take place and which shall be discontinued in the Managed Area during the term of [the OPC Agreement] and to establish rules and regulations governing same.? Under Article VI, the OPC has the sole authority to determine what activities, events, program and concessions shall take place and which shall be discontinued at the Zoo, at the College of Art, at the Brooks Museum, at the Overton Park Golf Course, at the City?s maintenance facility and at the Fire Station on East Parkway, even though these areas were expressly excluded from management authority in Article II of the OPC Agreement. Article VI grants OPC the authority to override management decisions of the Boards of the IMemphis Zoological Society, the Levitt Shell, the Brooks Museum of Art and the Memphis College day operation of their respective facilities. Article VI is c?early inconsistent with the scope of the agreement as defined in Article II. Moreover, Article VI violates and is conflict with prior existing agreements between the City and the Memphis Zoological Society, the Brooks MUseum of Art, the Levitt Shell and the Memphis College day operation of their respective facilities. It literally allows the OPC to override management decisions of the Mayor and to determine which activities are conducted at the fire station and maintenance facility on East Parkway and at the Overton Park golf course. This provision of the agreement is obviously a mistake and if not, it is unenforceable as against public policy, as the Mayor?s control over public safety is not delegable. Absent termination of the 1994 Zoo Management Agreement the City could not interfere with efforts to manage the day to day operations, concessions and properties of the Zoo, or (ii) determine what activities, events, program and concessions shall December31,2015 take place and which shall be discontinued at the Zoo. Since the management agreement with the Memphis Zoological Society [and perhaps others] specifically prohibits the City from assigning or delegating its rights and duties under that agreement without consent, the City could not assign its right to terminate the Zoo management agreement to OPC or anyone else. Thus, to the extent that Article VI of the OPC Agreement grants the OPC the right to manage assets and operations that are being managed by other entities under prior contracts, Article VI grants OPC rights that the City had no authority to grant. This was clearly an unintended mistake. To the extent Article VI is not completely invalid, it is nonetheless subordinate tx) the management rights, licenses and powers granted to the MZS, the Brooks Museum, the College of Art and the levitt Shell; as such the OPC Agreement, particularly Article VI, is not enforceable against those entities during the terms of their respective managementv contracts, which were entered into well before the OPC Agreement. THE GREENSWARD As previously discussed an ambiguity exists in the OPC Agreement between the clear intent expressed in Article II and the delineation of the OPC Management Area in Exhibit of the OPC Agreement. On the one hand, Article II excludes any areas under contract to another entity. In. our opinion, this fact cannot be reasonably disputed. Indeed, Exhibit attempts to exclude all such areas, which supports our view that the OPC Agreement was never intended to give OPC rights to manage park areas subject to the contractual management rights of other entities or subject to City management. Our discussions with counsel for OPC confirms that OPC is only attempting to fulfill the duties granted it by the City to manage, preserve and maintain those areas of the park assigned to it under the OPC Agreement. Understandably, the OPC management believes, in reliance on Exhibit to the OPC Agreement that duties extend to managing, preserving and maintaining the entire Greensward. However, our discussions with City officials who negotiated and approved the OPC Agreement confirm that it was never their intent to grant OPC Management rights in areas under management control by contract with other entities and the City. Moreover, we have found no evidence that inclusion of management authority in OPC for the entire Greensward was ever specifically requested or an essential consideration for OPC to enter the agreement. Rather, we find it hard to believe and unreasonable for OPC to insist that the City intended to grant OPC rights that arguably would violate the terms of the City?s management ?8 December 31,2015 agreements with MZS, the Brooks Museum, the College of Art and the Levitt Shell. CONCLUSION AND RECOMMENDATION It is oUr opinion that the 1994 Zoo Management Agreement, which is still in full force and effect, granted MZS management and control over the portion of the Greensward delineated in the Master Plan for the Zoo. It is further our opinion that the City could not alter, amend, change the management and control over the portion of the Greensward granted to MZS without the consent of MZS, absent termination of the Zoo Management Agreement . Some citizens have been critical of insistence on exercising the rights granted it by the City to use a portion of the Greensward for Zoo purposes. However, in our humble opinion this criticism is misplaced. The City induced MZS and its predecessor to expand the Zoo into a major metropolitan zoo pursuant to a Master Plan with funds raised from private donors. MZS and its donors fulfilled these aspirations beyond what anyone expected in 1994 and continues to do so. It was reasonably foreseeable that the natural result of an expansion of the Zoo would be increased attendance and an increased need for parking, which was contemplated. 1 After all there are very few entertainment venues in the country that do not create a need for vehicular traffic and parking. Unlike Yankee Stadium for example, Memphis does not have three subway trains that provide access for thousands daily to the gates of the Zoo. Even OPC advocates will admit that additional parking is absolutely essential for zoo operations . Having done what the City and the Community requested them to do, it is understandable that MZS representatives and donors would be concerned when a new organization attempts to prevent MZS from doing what it had done for decades on the Greensward in order to support its needs resulting from its unprecedented growth. It is hardly reasonable for anyone to believe that the City would have intentionally interfered with one of the most successful public private partnerships in its history. In the context of this background, it is fairly evident, at least to us, that the City did not ever intend to grant OPC any right, power or authority over that portion of the Greensward that had been previously assigned to and under the control of MZS for decades before the DPS Agreement was executed. ]"We also note that the recent efforts of the Ievitt Shell board to improve their programs have created more interest in its activities, which have generated increased. vehicular parking for the park and surrounding neighborhoods. 9? December 31, 2015 Regrettably, the confusion was created by a map of the Park attached to the OPC Management Agreement, which reflects that it was prepared by City of Memphis Division of Park Services, successor to the Memphis Park Commission, which prepared the Master Plan for the Zoo referenced in the 1994 Zoo Management Agreement. Nonetheless, it should be sufficient for the City to advise OPC of the mistake and then for the parties to agree to reform the OPC Agreement to clearly and accurately define the areas excluded from OPC control, which are under contract with other entities. We assume that all parties concerned are reasonable and will acknowledge that the OPC Agreement needs to be modified to eliminate the apparent conflict over whom is in charge of the Greensward. If intent is to only perform what it believes the City wishes it to do, then it should readily agree to sit down with City leadership and modify its management agreement to be consistent with what we believe was intended in Article II of the OPC Agreement. If the OPC disagrees, then we recommend that the most expeditious path is for the City to terminate the OPC Agreement and then, if anyone is interested, negotiate and execute a new agreement for management of those portions of Overton Park not already under contract to others. I trust we have adequately addressed your inquiry. I have attached copies of the pertinent agreements and documents. Very truly yours, Allan J. Wade MEMPHIS ZOOLOGICAL SOCIETY AGREEMENT as? DR. W. W. Mayor F. HANSEN - Chief Administrative-Officer FINANCE, a: ADMISTRATXON RICK MASSQN - Director Punch-suing Agent TEQSESSEE- 2? Friday, Dacember 30. 1994 City Contract Memphis Zoological Society 2000 Galloway Hamphis, TN 38112 Gentlemen: We are enclosing. harawith. an axQCU?ed copy of a.Negotiated Contract for Managament Agreement for Memphis Zoo Aquarium for the division Of Parka] Administratian. This copy is far your fixes. Sincerely. Hr. Linrie Thomas, C.P.M. Purchasing Agent cc: City Comptroller PARKSIZOQ City Contract Room 354 - 125 North Main Street - Memphis. Tennessee 38103?2083 (901) 576-6593 200 Women M-Z-REEMENT this Zooinanagementengreement.made and entered into as of this soth day of 1994, by and betWeen MEMPHIS ZOOLOGICAL SOCIETY, a Tennessee not-for-pro?fit corporation and the CITY TENNESSEE a municipal corporation under the laws of the state of Tennessee, acting by and through the Hemphis Park Commission 'In seasideration of the mutual promises stated below, the parties hereby'agree as follows: 1. .Qe?initign_. As-used in this_ngreement, certain capitalized terms Shall have the meanings indicated on Exhibit hereto, which are in addition to other terms defined in this Agreement. 26L. The initial term of this Agreement will be commence January 1, 1995 (the ?Commencement Date") and end June 30, 1996. 2.2. Either the_city or MZS'can terminate this.Agreement at any time, on sixty (60) days prior written notice, whether or not good cause exists for any such termination. Provided, however, that no such termination notice shall be effectiVe unless approved in advance by a majority of the then serving appointed members of MP6, or a majority of the then serving members of the ExecutiVe committee of MES, as the case may be. 2.3. The notice described in Section 2.2 above shall describe the situation and reasons, if any, resulting in the termination; and ?the jparties will attempt in good ?aith. to correct such situation within the sixty (.60) day notice period. If the situation is corrected to the reasonable satisfaction of both the City and M28, the party_seeking the termination may withdraw such nggice, in Which case this Agreement shall remain in full force and sot. 2.4. _This Agreement shall automatically be extended for additional terms of one (1) year each unless, not_less than sixty (60) days prior to the expiration of any term, either party shall give written notice to the other party, electing to terminate this Agreement at the expiration of the then term. 3.1. The City hereby appoints MES as the manager of the Zoo, including all operations, maintenance, and programs at the Zoo. Except as specifically otherwise provided in this Agreement, MZS 113cm Page 1 of 14 Pages will have full authority and responsibility for all aspects of the day to day operation of the Zoo . 3.2. The.President of M28 will be the Chief Executive Officer og?t?he Zoo and the Zoo Director will be the Chief Operating -cer. 3 .3 . use will have sole authority to determine the charges for admission to special. events at the Zoo and the charges for uses- of Zoo facilities (including parking areas) except that: MES. will not change the per person prices for admission to the zoo. the free. period, or the parking fees Without the prior approval of MPG. 3 .4 . MPG shall designate one of the appointed camissioners of MPG to be the primary representative of MPG to MES and the 200 (the "Designated Representative") . The parties acknowledge Peggy Seessel is presently the Designated Representative. The Designated Regresentative shall be an ex officio voting of the Board of Directors and. Executive.- cemittee of MES during the term of this Agreement, and shall have authority- to represent each Of the Executive Director of MPG, the President of M23 (chief eatecu'tive off-ieer) and the Zoo Dir-ester chief operating officer) shall be an ex officio voting member of the Board of Directors and Executive Committee of during the term of this Agreement. 3.5 .- Whenever the consent or approval of a party is required under this Agreement s-ueh consent or- app-rovail shall not be unreasonably withheld or delayed, unless otherwise specifically designated in Agreement as being in such party-"s- sole and absolute discretion. he additional approval shall be required from the Gity, and/hr M28 as to any item already approved by such party part of. a budget, plan, or report. 3.6. All concessions at the Zoo shall be under the control of MES, and all rents or other proceeds from such concessions shall be paid to M23. M33 shall be entitled to operate any such concessions- itsel-for "by contract with independent concessionaires, as it deems advisable. Without limiting the foregoing. MES is. hereby authorized to. represent the City and MPG regarding their agreements "with Midland Food Services?, Inc. for food service at the. Zoo, and with J.C. Levy as to the ride at the Zoo. Ho contract made by MZS with a third party shall be binding on MPG unless either such contract provides that MPG may terminate sueh contract on sixty (.69) days notice to such third party.- a?t any time following the termination of this Zoo Management Agreement, or MPC shall have approved such contract in writing at the time it was made. 113094.; Page 2 of 14 Pages pus. 4.. . The city will pay to use, throughout the term. of this Agreement and any renewal or extension. thereor, a management fee of One Hundred Thousand Dollars per month, beginning- Je?nuary 1, 1995. Said fee will be paid in the accounting and payment process under Section 9' . 3 below. 4.2 . All revenues generated by the Zoo, or any event or program at the zoo or otherwise raised by or donated to was or the. Zoo, shall be paid to KZS. for use in the management, operation, and improvement of the zoo and management and operation of M25 including. admissions parking fees, concessions, rental-s, special events, sales of goods, and other such revenues . Provided, however, that any donation made to the Zoo or was subj act to a restriction imposed by the donor shall be. used only in compliance with such restriction. 4 .3 . Attach-ed hereto as "Ebfhibit is the budget in: the operation of the: too approved by MPG. and. the City for the fiscal year ending June 30-, 199.5 (the "Zoo .Budget"j)' . item which is contained in the Zoo Budget, without regard to the amount or money for such item contained in the Zoo Budget or needed in the. future, will be paid for or reimbursed by M218 out of the revenues described in Bastions 4.1 and 4.2 above and other revenues raised by M28, to the extent such. item. is actually used by M25 in the operation of the zoo . such items paid for by the city shall. be reimbursed by has within five (5-) business days following 's receipt Of a sufficiently detailed statement there-for . Provided, however that 4.3.1. The city will provide M23 and the Zoo with all real and personal property insurance needed for the preps: operation of the Zoo and protection of; all real- and personal- property the zoo," City, MPG, and (to the extent- property owned by 1423 is used for the benefit of the City, MPC or" the Zoo) MZ-S including (but. not limited to) the. Real Property, the Equipment. animal-s buildings contents furniture, futures and equipment .- M25 will reimburse City for the first Twelve Thousand Dollars in annual premiums for said insurance and the City will pay the bala?nde' of said proudumS. Thecity will administer all such property insurance; any deductible will be paid pro rate by the City and M25 (based on relatiVe value. of insured property owned by each). Said property insurance will name. the City: MPG, and MZS as the named insureds, as their._ respective interests may appear and "shall cove-r standard and extended coverage hazards. 4.3.2. shall pay all sewer fees properly attributable to actual sewer usage at the Zoo for the current period, up to a maximum of $75,000.00 per year; and 113094;. Page 3 of 14 Pages -. #4.3.3. city payroll items .on the Zoo Budget will be reimbursed and managed as provided in Section 9 below. 4.4. "Non-Budget Items" means all goods, services, and other items which the City or MPC presides to or for the zoo, on regular basis or from time to time, which are not included in the Zoo Budget . The City and/or will continue to provide Non- Budget Items to the too. as and when need-ed, at the sole cost and expense- of the City and" at no cos-t to 1425 or the Zoo. Non?Budget Items include: 4 .4 . 1 . n11 premiums for property insurance in erases: or the $12 ,000 premiums to be paid by MES under. section 4.3.1 above; 4.4.2. Maintenance, repair, and replacement of the Real Property through the City? 3 General Services; 4 .4. 3 . Maintenance, repair,- and. .replacement .9: the. vehicles and other Equipment, ineluding gasoline and oil through the city' General Services; 4.4.4. Major maintenance of the Real Property, including all. replacements and major repairs to the Walls 1' 3190333 :2 ceilings, reefs inf-r?astr-Ucture, paving}. and structural parts of the. Real _Property,- (ii) all ?replacements or. major repairs to mechanical plumbing, and electrical system's all repairs or replacements necessitated by extraordinary causes such as weather or casualty, and. (iv) all work required for compliance- with applicable building and fire codes and? laws and regulations relating to safety, the. environment, or the disabled; 4.4.5. Replacement and acquisition.of new (additional) capital equipment, vehicles and rolling stock as- shown on the budget attached hereto as Exhibit for fiscal years 19-95 and 1929.6 and in comparable amounts for future fiscal yea-rs if applicable; and 7 4.4.6. Tree maintenance as shown on the budget attached hereto as Exhibit for fiscal years 19-9-5 and 1996 and in comparable amounts for future fiscal years if applicable. 4.5. 1428- will provide MPC annually with a financial report on the operation of the Zoo, which is audited and certified by the firm of Certified Public Account-ants then serving M-ZS. plus MZ's's normal interim, unaudited, reports. 4.6. All funds "now or hereafter granted to the Zoo from other governmental entities (including the state of Tennessee or county of Shelby) shall be. paid to for the use designated by the grantordesignated, then for such use in the 1130M Page 4 of 14 Pages .4 5 ?399 .J .1 14?" operation and maintenance of the Zoo as 12125 shall determine. This includes the $3,000,000 unpaid balance of the $5,000,000 heretofore made by the state of Tennessee. Funds received from any such other governmental agencies shall not replace any funds to be furnished for the Zoo by the City or MZ-S under this Agreement . 4.7. If MES elects, from time to time, the city will administer the casualty/liability insurance program. for the benefit of the City, mt, the Zoo and M25, Which insurance shall be for adequate limits- as the City may deem appropriate (and. ms shall have approved in advance) and she-1.1. Protest indemnify and defend the MPG, and 112-8, as their respective. interests may appear . M25 will reimburse the city for the entire actual premiums and administrative costs for such insurance program, in; the amounts which the city shall notify and which are approved in advance MZS. .In lieu of such liability insurance proVided by the City, may elect. from time to to. obtain at its sole cost and expense, a policy of public liability insurance for the Zoo, in 81:16:11 amounts as are name]; and adequate fer zoo operations of the Size and. scope of the. Zoo .(b'ut not less than one Million Dollars 000-, 000) per occurrence, combined fsingle. J-- said liability policy, and all other policies of insurance provided. for or contemplated" by this Agreement, shall name the City", MP6, and 1123- as the insureds or additional insured-s and protect said parties, as their respective interests may appear. 4 . 8 . All agreements made by the City or MPG to provide funding are subject to normal City Council appropriations procedures. 5. 1 . Ownership of the Real Property and Equipment. shall be and remain in the City. The City does hereby grant and convey to license to use the Real Property and Equipment during the. term of this: "Agreement for Zoo purposes only. 53-2. The City will provide, at no cost to MZS, such additional land for parking or additions to the Zoo, as may from time to time be requested by M25 and approved by MPC. 5.3. M28 shall have the right to make such changes in the appearance of the Reel routine changes or additions or improvements paid for wholly by M25, as it deems appropriate for the proper operation ?of "the 2.00. .1425 shall make no material changes to existing "buildings. and improvements on the Real Property without the prior. approval of me in each instance. capital additions are subject to Section 6 below. 113094? Page 5 of 14 Pages w. .. 5.4. The City does hereby grant to M25, for the termtof this Agreement and all extensions-and renewal thereof, an exclusive and. irrevocable license in and to the Intangible Property. MPG. (01' such- other official of the City as is appropriate) is 113338111! authorized and directed to oneout'o and deliver 130 M35 such assignments licenses, and other and. documents as needed to effectiVely grant said license in and to all of the Intangible Property to Subject to the restrictions in Section 3 7 abate; are is authorized to grant such sub?licenses in any item of the Intangible Property as it deems in the best. interest of the Zoo, including those for a term which is longer than the 1391?!? Of this Agreement . 6. .1 .. The City and MS hereby agree and acknowledge that they have both approved the funding and constructidn of those additions to the zoo described in Phases .1 through IE, inelusive; of the approved. Master Plan. (the capital additions") . Each of the city and M28 hereby agrees that it will promde the funds for the Approved Capital Additions in accordance with the Capital improvement budget for the city of Memphis, approved by the Memphis City council in June.,.- 1-993, for the fiscal years and 19-96 (attached hereto as Exhibit .- 6.2. Not int-ending to bind either the City or MES to pay" for any part of future capital additions, both the city and has recognize and acknowledge the MW 3 need for additional capital additions and improvements from and aft-er the completion of the Approved capital Additions, to be fund-ed in part by 13425 and in part by the C-iity--.- Such additional capital additions and improvements shall be subject to the approval of both the City and M25, in accordance with the standard procedures for such. approvals . 6.3. All capital additions funded in whole or in part by City funds shall be built in accordance with Such plans and specifications, and by such contractors, as shall be approved by both MPC and MES. Such approval and construction for all such capital addition projeqts shall be subject to the normal City procedures and facilities for bidding, bonding, supervision, contract administration and the like, to the extent required by applicable laws, POlicies or procedures. It is-the intent of the parties that any additional major improvements to the-zoo include funding and/or planning for'maintenance of such improvements. 6.4. MS may make capital additions (as well as structural changes) to the Real Property, without funding provided by the City, so long as such capital additions are made pursuant to plans and Specifications approved by MPG, and so long as such work is done at the sole expense of M23 without any reimbursement by the 11309? Page ?6 of 14 Pages City-g MZS may, but shall not be required to, have the work described in this Section 6.4 performed in accordance with normal City protedures and facilities for bidding, superrision, contract administration and the like. In any crest, MZS Will abide-by the present policies and procedures of the City.of hamphis regarding the employment of minority contractors and suppliers. All capital additions, construction fixtures equipment and other capital itBMs, for or at the Zoo, heretofore or hereafter paid_;or in part or in whole by MES, are the property of the City, which accepts ownership of and title to all such items. 7. 7.1. M28 will have full authority and discretion to display, not display, treat, buy, sell, loan, trade, breed, or otherwise manage or deal in the Animal Collection. All such actions regarding the .Animal Collection must 'comply?lwith. proper zoo management standards, including all requirements of the REA, the United states .Departmant of Agriculture, the United states Department of Interior, and other appropriate federal, state and international laws and regulations? 7.2. shall not_take any material action with regard to the Animal Collection without the approval of the Designated Representative and the Executive Committee of MES. 7.3. M25 will maintain the Animal Collection to at least the standards now maintained at the Zap. The parties all_acknowledga, however, that each animal which dies or-is sold or traded may not necessarily be replaced in kind, but that the composition of the Animal Collection.may vary over time. The parties also acknowledge that the present policy of the City not to insure the Animal Collection against loss by fire, theft, weather, vandalism, and other such risks will be continued by_the City and and that has has no obligation to replace animals which are lost by reason of any such haZards, except if such loss is caused by the gross of willful misconduct or green or willful negligence of M23. 7.4. Ownership and possession of the Animal Funds shall be and remain in the city, but the city agrees it will_only use and pay the_hnimal Funds as approved by the M23 ExecutiVe Committee during the term of this Agreement, for the acquisition of animals for the Zoo and otherwise in accordance with the restrictions now or hereafter imposed on such.hnimal Funds by theldonors thereof, as those restrictions may he changed from time to time. The net proceeds from the sale of animals will be added_to the Animal Funds. Interest earned on the Animal Funds will be added to principal. The restrictions described in this paragraph do not apply to other funds raised by MZS for the acquisition of animals or other purposes. At least quarterly, the City will furnish MZS memo Page?? of 14 Pages pith complete financial reports on the status of the animal Funds, ineludin'g a statement of all payments to and from the Animal Funds. 8.1. M25 shall have the right to make such reasonable restriCtions on the use of the parking areas now or hereafter included in the Real Property as may be necessary for the proper operation and management of the Zoo. 8.2-. The City will be responsible for such asphalt and concrete work as is needed to keep the parking areas for the Zoo in good repair. MZS will be responsible far cleaning, striping, light bulb changing and other sash maintenance of the parking areas . 8.3. The City will maintain the present access roads to the Zoo and any additional access roads to the Zoo hereafter built, in a good state of repair and cleanliness. Upon request by M28. to at any time. and from time to time,- subject to the approval of MPG will permit ms to restrict the use of such access roads visitors to the Zoo or to restrict any access roadts) to the Zoo to one way traffic . The City will not restore assess from Over-ton Park Road to the Zoo's access road without the prior permission of . 8.4. mas and the City agree to cooperate in the use and construction of roadway-s through, and into and out. of Overton Perk, so as to maintain safe and efficient traffic patterns for the Zoo, other facilities in overton Park, and the neighboring properties. 9. 9.1. The Zoo Budget presently includes the City's employee positions listed in Enhibit to this Agreement (the "Budgeted The City agrees that the number and/or type of Budgeted Employee-Positions will not be changed in the current or any future year, without the approval of MPG and has. There will be no employees of the City or MPC working at the Zoo on Zoo business except either the Budgeted Employee Positions 0r other positions with the prior approval of M25. 9.2. All individuals employed at the Zoo in one of the Endgeted Employee Positions at December 31, 1994 (the "Existing Employees") will Continue to be employed at the Zoo and will continue to be city employees, subj eat to City personnel requirements and policies and City payroll and benefits. The City will not fill any vacant Budgeted Employee Positions. between the date of this Agreement and January _1,r 1995, without the prior consent of MES. The City will not? increase the compensation or 1130943 Page 8 of 14. Pages benefits" of any Budgeted Employee Position at a rate which is materially larger than the rate of increase generally given to other city employees, without.the prior consent of M28. 9~3- 0n the tenth (10th) day of each calendar month (or neg: lb?Sine$S daYr if a weekend or city will furnish M23 With a detailed statement.of its actual costs of-compensation and benefits paid to or for sash Budgeted Employee Position actually Paid b? the City during the prior month; said statement shall be furnished for_each month duriag the term of this Agreement (and extensions and.renewals thereof). such statement.sha11jaot include administrative or Overhead charge for the City's administration 0f Such Payroll and shall otherwise be calculated in the same manner as in the Zoo Budget. the City shall furnish with_a detailed roster and.accounting for each statement. M23 ?11139313 the accuracy or: any such- statement within fifteen (15) days following its receipt of such statement. 9.4. On at before.thc tenth (10th) day.fallcwing receipt of tall three statements under Section 9.3 above for a calendar quarter 1. 1435 Shall to the city an. amount Eq?al- to the compensation and benefits Shown on such for the WEE maths in: $111311 quarter. less (13) Three Hundred Thousand being three months' management foe-under Section 4.1 above. The time for stis obligation to pay any such am?unt shall be extended correspondingly if any statement under Section 9.3.aboVe is received late. If such Subtraction results in a negative number, than the City shall pay the amount of such negative number to use on or before said.tenth (10th) day. 9.5. If any Budgeted Employee Position should be vacant, because- the individual in such position should voluntarily terminate his/her employment.or haVe his/her employment terminated by the city for cause,'or because-the-positiOh was not filled on December 31, 1994, or for any other reason, that Budgeted Employee Position shall not_be filled by_the City unless MZS shall approve both the filling of such Budgeted Employee Position and, if so approved, the individual chosen for the position. This includes individuals selected by the City through new'hires or transfers from_other City employment. 9.6. Except as specifically provided in Sections 9.1 through 9.5 above, MZS will have sole authority to employ or terminate any employee at the Zoo and determine the terms and conditions of such employment, from-and.after the Commencement Data. 9.7. M25 shall be an equal opportunity employer and shall not discriminate in its employment practices on the basis of race, sex, age, color, religion, national origin, or disabilities. 1oama Page 9 of 14 Pages 10.1. M29 _will manage the Zoo in compliance with all applicable laws and.oegu1ations regarding the loan, sale, movement, Purchase, and exchange of animals and the Operation of zoos. 10.2. M25 will maintain or renew all permits and licenses 'required for the operation of the Zoo throughout the term_of this Agreement, which may he maintained in the name of the City and/or MES, as apprentiate under the circumstances. 19.3. MES will use its best efforts #0 C?ntinue to Operate the? Zoo in a manner Which will qualify for -Qrofessionally accredited.membership status in Ath use will not discontinue the 200' a membership in without giving advance notice to MPG, stating in such notice the reasons for such discontinuance. 11. I C-yrit- . . . All funds raised by, or donated to. M25, 'through_ _pecial events or exhibits, -sales of goods or services, .memberehips, adhertising, snensorehips, priests donations, or otherwise, shall he'the sole and exclusive-property of M23, subject to any restrictions imposed on the use of_euch funds by the Charter-and Bylaws of M25 and/or the terms of the donation. 'No such sands-will be used in a manner Which will cause M25 to lose its status as a charitable_organization under Section 501(c)(3) of the Internal.Revenue code. nss_w111 engage-in no activities which.would cause MZS to lose its-status as a charitable organization under of-the Internal Revenue Code. 12- 12.1. No waiver of any term, condition, default, or breach at this Agreement, or of any document executed pursuant .hereto, shall be effective unless in Writing and executed by the party making such Waiver; and no such waiter shall operate as a waiver of either such term. condition, default, or breach on any other occasion or any other term, condition, defaultz or breach of this Agreement or of such document. No delay or failure to enforce any provision in this. agreement or in: any document executed pursuant- hereto shall_ operate as a ?waiver of such 3provision or any other provision herein or in any document related hereto. The enforcement by-any party of any right or-remedy it may have under this Agreement or applicable law shall not be deemed an election of remedies or- otherwise- prevent such party- from enforcement of one or more other remedies at any time. 12.2. gee g; Certaig ?agds. All words used herein shall be construed according to their proper gender and number, as the context shall require. Unless.specifically designated otherwise) 1eoma Page 10 of 14 Pages 2 reference to "including" shall mean "including, but not limited - 12.3. .. is. This Agreement sets forth the entire understanding of the parties replacing any and all prior agreements relating to the subject matter hereof including the agreement dated September 20 1989 . This Agreement "may be changed amended, or terminated only by similar written instrument executed by all parties be bound thereby. 12.4. All of the terms and provisions of this Agreement shall binding upon, shall inure to the benefit Of 1 and be enforceable by and against, the parties hereto and their respective heirs, executors administrators successors and permitted assigns . A s" . . No party may assign or delegate its rights or duties under this Agreement without the. PriOr Written. consent of the other parties in each instance. 12.6 .- s: - - If any provision of this Agreement. is held to be. unlawful, invalid, or unenforceable under any present or future laws, such provision shall be full. sew-erable; and this Agreement shall be construed and enforced as if such unlawful invalid, or unenforceable. provision, had. not been a Part here-?fe The remaining proVisions of Agreement shall full force and. effect shall not be affected by such unlawful, invalid, or unenforceable provision or by its severance hererron. Furthermore, in lieu ofsuch unlawful, invalid, or unenforceable provision-.., there shall be added automatically as a part of this Agreement a provision as similar in terms to such. unlawful: invalid, or unenforceable provision as may be possible, and be legal, valid, and enforceable. 12.7. Any and all notices, rogues'ts, comanioations, or demands required or permitted to be given. pursuant hereto shall be in writing, shall be d_eliVe.red' either in person or by electronic facsimile, (ii) by an established overnight delivery service, such. as Federal Emess, or mailed by registered or certified mail, return receipt requested, and. shall be addressed as follows: City Of Memphis: City of Memphis, Tennessee 125 north Main Street Memphis, Tennessee 38103 Attn: Copy To: Monies Hagle-r, Esquire City Attorney 1130M Page 11 of 14 Pages Memphis Park Commission. 2599 Mary Avenue Memphis, Tennessee 381.11 Hemphis Park Comis?sian: Attn: Bob Brame, Exec. Dir. Copy to: John Halmo, Chairman COPY ?50: Peggy Seessel Copy To John Well Esquire. Park Grannies-ion Attorney nemphis Zoological Seeiety 2-000 Gal l-owa'y' Memphis, wellness-ea 38112 Attn: Roger T. Knox, President Memphis Zoological Society: Copy to: James . Prentiss chairman Copy To: Gaines B. Jalenak, Esquire Hemphis Zoological Society Atty or to such other address or addresses as any party may-designate tn the others by not-ice in writing, given, as above provided. Not-ices delivered in person or by electronic facsimile shall be deemed to have been given on the date of delivery; notic'es deliyered by overnight delivery service shall be deemed to. news been given on the business day following the date of deposit with such overnight delivery service; and notices givsn? by mil shall be deemd. to have been given three (3) days after the date of mailing. 12.8. .. . . The headings preceding each paragraph, and the Table? of Con ants (if any) are inserted Merely as a matter of co-nVenience and shall net be deemed to be a part of the contract terms. . 1.2.9. it. This Agreement has been accepted, executed and del'Ver'd, and is intended to be performed, in the state of Tennessee. The rights and duties of the parties, and the validity, construction, en'fercement, and interpretation of this Agr?'em?ng, shall be governed and construed according to the laws of sue a e. 12.1.0. mibits. All of the Exhibits attached to this Agreement are a part of this Agreement when so attached and initialed by a representative of each party, and are incorporated herein by reference as fully as if copied herein verbatim. 12.11. A ggu; agces. Each of the parties, at all times and from time to time hereafter, and upon reasonable written 113,091.? Page 12 of 14 Pages if. I request to do so shall make, do, execute, deliver, or cause to be made, done, executed and delivered, all such further act-s, deeds, instrumants, assurances, and things as may be required tor more effectually implementing and carrying out the true intent and meaning of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement, by their duly authorized officers, as of the day and year first above written -. MEMPHIS z?coLocIc?AL summer "er I Knox; Zesident . Prentiss Chairman Secretary, counsel APPROVED Eat ?rame Executive Director MEMPHIS COMMISSION APVED: '1 . . .16 INT: Seer. ,ry I WEIR. A. tor-nay HEMP ARK COMMISSION MEMPHIS. PARK. APPROVED or (211317. E. MEMPHIS: .. WJW: Herein; in, Mayor Mm. - is - . bias/Edger"; it'y Attorrfey 1130M Page 13 of 14 Pages LIST OF EXHIBITS Definitions of Terms Zoo Budget I CIR Budgie-ts for FY 1995 8: 19-96 the. Budgeted Employee Positions capital Equipment; Vehicles _and Rolling Stock, and Tree Maintenance for FY 1-995 S: 1996 1130945 Page 14 of 14 Pages EXHIBIT DEFINITIONS 1. ?Animal Collection? means all of the animals now or hereafter owned by the city or otherwise kept or displayed at the Zoo, including those animals on loan to other zoos. '2 . "Animal Funds" means all fund-e now held by the. city for the purchase. or, other acquisition of animals; including the Zoo Animal Fund.ahd the fund established by the Plough Foundation and know as the "Aquarium Fund.? 3 . means the American Zoo and aquarium Association- and gay sit-accessor organization replacing it and performing the same that zone . 4.. means the city of Memphis, Tennessee, a municipal corporation. 5.. "equipment" means all items of furniture, furnishings, equipment, Vehicles, machinery, 130015: Wham? 01" ?Lat attached to the Real. Property) supplies, and other tangible personal property, how or hereafter owned or leased by the City and used in the operation and maintenance of the Zoo. 6 . "Force Maj eure'? means one or more of: weather or other acts of God; fire or other casualty; war; civil commotion- or riots; strik68. labor disturbances, picks-ting, or other labor production. difficulties; embargo; shortage, curtailment, or unavailability Of products materials transportation utility services and/or labor; the orders of any court. or regulatory agency; the impOsiti-On Of an economioally prdhibitive tax, duty, fee, in: penalty by any governmental agency; or. any other cause or causes beyond the reasonable control of the applicable party-- 7. "Intangible Property" means all trade names, trade marks, service marks patents copyrights, covenants not to compete, goodwill and other intangible property owned by the City in connection with the Zoo and all of the Eity's rights in and to the foregoing. 8.. means Memphis Park Commission, a division of the City. and any successor division or organization replacing it and performing substantially the same functions-.- 9. "MEN-means Memphis Zoo, Inc. a Tennessee notufor?profit corporation,- d/b/a Memphis Zoological Society. Exhibit Page 1 of 2 Pages 10. ?Person?- means -any individual, firm, cerporetion, .assoeiatien, 'trust, partnership, jeint venture, governmental agency,.0r other'entity. 11. ?Real Property" means the land described in.the Hester Plan to: the Zen and all buildings, exhibits, structures, walks, drives parking areas, paving, meats large trees, and other improvements-and vegetation which.are.built on or affixed to the land, together with all futnne additions, replacements, improvements, owned'by the City. 12 . "-200" means the Zoo and Aquarium and all of the assets and -preperties which censtitute thek'Memphis Zoo and Aquarium, including the Real Breperty, the Equipment, the.Anima1 collection and the Intangible Property. All assets and properties which are used as a part of the Zoe, but which may be held in the name of MPG or any ether divisien of the city, are deemed to be owned by the city and a part of the Zoo. Exhibit Page 2 of 2 Pages Par-ks Zoo FY 1994 FY1993 FieVised FY1995 Desmiplion Actual Budget Proposed Fan-111119511131? 1.508.782 1.512.359 Holiday 100.115 "01101111119 49.738 21151111 Out Rank 710 1.468 1.315 Shin Differei?ial' 623 562 new 14.129 . Pension 178.232 197.130 27.500 36.1155 Sine 11: 78.201 105.562. 114.451 Group .Liie 5.8111 5.283 4.931 unmplewnem Compensation 3.000 3.765 a Long Term Disability 91?17 8.1337 11- 0: 84.411 73104.8 75.760 Total.Personnel '1 391.313? 2.205.793 city Han mm 3.214- 5.11911 5.2110 a 4311 2.08.5. 2.1305 0.311130129101111: Supplies 13.260 13.000 111.520 is ComputeriOmce Mai-11111111 Charms 3.531 6.158 0.000. 12.21-3- 25.9118 27.6110 .- Feels a 1.500 1.6110 Out?i?e Printing 5.1191 6.000 5.300. We sup-plies 3.2911 5.0110 105.407 234.000. 243.000 Hand .0 a Glmnin? 3.692 10.175 111.1115 Hammad Suppfies was 4.000? 1.000 Supplies 0 500 550 Drafting E-Phnte Supplies 139 000 100' Medical Supplies 23.944 23,000 Athleticmecmauun Supplies 31 0 W3 P10513113 1.911 250' 1.0011 Lime. 8111118111. Saran! 8.700 150.?: 10.9% Meals 9.647 10.500 30.870 Miaiolaeratinq Supplies 65.652 00.000 62.500 Outside Equipment Repair 1.018 1.183 3.600 MedlbentaWei Services 6.4.39 7.800 8.000 TphoneiTgrapnIComm 11.78? 0 0 Security Services 130.329 130.000 132.950 Misc P'ruiessional Services 144.088 163.000 15.100 Travei 2.100 2.100 EXH I 33 IT 5 2 Parks Zoo 1-994 FY 1993 Havisa'd FY 1905 Description Actual Budget Proposed Auto Allowance 064 000 920 Other Transportation 0.924 14.000 12,309 Utilities (not incl wa' ter) 21. 0.90.1 2.30.000 234.000 Fees 0 225.000 312.000 insurance 0 12.000 12.000 9.680 0.100 9.150 services Charges 2.442 5.294 Claims 0.11 27.007 10.000 25.000 Total Supplies?arvioas 915.496 1.233395 1.230.372 Equipment 0 16.000 10.570 Total 0 10.000 18.570 Gross Expandit'urss 2.910.314 3.458.737 Expense Recovery - Pets 0. 90.0 900 Expense - Mass 1 1.908. 12.000 12.515 Total Expense 1-1 .900 12.900 10.1115 Tow Exponditums 2.901 0.513.375 3.445.322 Admission Foo 1.990.109 1.928.354 Commissions! 31st 34.400 43.400 70.005 Parking 17.000 13.000 Concessions. 311.603 104.500 242.57! Total Romano 2.049.436 2.245.059 2.200.013 Nat City monoituras 851.970 1.260.300 1.105.309 EXHIBIT 2/2 I-aauv-Ignlg?" . . July 1. 1994 June an. 21:05 PARKS NUMBER 157611 353-.- TITLE :00 MAJ on MAINTENANCE PRIORITY NUMBER 13 53:4. NEW PROJECT 2: . IF mm. FUNDS APPROP. TO DATE EXISTING PROJECT 6.0. Bonus 0 OTHER mince. awe sans, 5 MID OF THIS menisci-min Imam Human: tn mm cunning: and {median nu ma ion. In order to n; emu-m mm hurldino 31163181113: can?. and; resume-mama mama: m-wl Il??'t'lltlo? wul at mama to mun-ham Gaga. ma ant Mm. my Hausa. Int-?nial mun. the lame Cage mu mum. 3-3? 3 THIS 32-22155? 3N 31.113531 2:51.77 LGGAL 6.0. STATE 3&1. acre-us GRANTS 5mm spun 011-95.: 5 327.134 0 a 3372321-.? a 0 321.134 521' . enemas?mw LAND um: -cnusmucmu OTHER Amman-as c937. 5557 mm! F5 a ?lm a 327,184 :1'97 a: duo-I'- July 1. 1994 - ?1113:3335 PROJECT NUMBER 157310 . JEGT TITLE PRIORITY 2 155?. CHE: IF manna. Pumas APPROP. TO DATE EXISTING PROJECT 6.0. BONDS (rm-IE? 331571146. GIVE. sums. quail wan: um Ramona: mum cum. an: II mama wlli cm: canmucuan o! (no mum's ?Hugh mama: a. calling" :95. a mm an [m'gfptetul?n cum Alta mama: are a tram mu aracuva "mum. mac:- os-ms: GP mac: REVENUE new. 3.0. FEEJEHAL LOCAL OTHER ZSALXEAH BONES <33st anmrs 5mm mamm c7353 95 a moo-con a Lean-ace eta 133.13133.730 0 I wanna: ,1 was 11:: LAND LANE: cans-mums" c?eaa ESAL Eta-a AHGHITECTURE newsman c: . ram. :5 a 1.600.600 Lean-can a a a 163.730 155.733 ca: '23 153 '33 EXHIBIT {3?2 FISCAL YEAR 1995 0003005? Phil 1-551. (5000001130! . .. .. I 151551 511111 100 JCG POSITION 15151101! 50000105 PIISIOI 530003! 0000 PRRGAIRGIOHP 03301001 4. .. .. II 71153155 1 1.151 11.111 11.151 1.119 15.111 5.111 11.511 5.161 65,155' 11251 12,511 1.511 21,155 1,515 211111 11121 25,111 31121 11.111 1.151 11.152 1.211 11.111 1,513 5115:; 5,066 19,111 5.211 11.115 1.115 151,511 11.155 515552 155511 15,155 1,115 511115 5515511-11155 1 5111151 11515511111111.5515 511.5 1 35155: c155151-155555 5 -512155 1 517551 11555+15511 1 515211 55555-151155515 1 119216 51515-15c151511 1 521251 55c55115111 1 500555 1555501 155521 1 526511 115 5511111 5515 2 50555151151511955151101 15 1 515125 cunxron-ioo 155211 1 155315 1 561115 511 555555 25 ro1ozz=1111rnn~1oo 155251 1 1 '251511 9 1551125 15.511 1 35.115 5,211 1 251911 5,511 1 151.111 11.152 1 11.111 1.111 1 22,117 5,151 1 211539 3,211 51553112 camel-151151111 55115: :19 155555 515555 5511111~111-155251 50531;,551115141511115 5551:: 55555155111 55155 -5055515 10551551555 11515'1111501 001100 00000010! 21,069 1,630 003300 00000 00100! 20.706 1.590 0?0?*5?00 I??lP??lf 21.609 1.650 ?61060 81,011 6,220 061110 00003 01.512 3.100 0001000500 20.155 0.550 361500 BHSIODJAE 39.00? 3.005 1111.501155511 51.221 11121 0533?! SVEEPIB 15551105 1 30.059 2,361 76 5 AHIUAL 001,779,273 196.030 22.900 105,060 0- 0.931 13.291 EXHIBIT REMAINING ITEMS FROM FISCAL YEAR 1995 CAPITAL OUTLAY BUDGET DIVISION USEFUL UNIT TOTAL NEW: PRIORITY CLASS UFE QUAN. cosr COST REPLACE 200 Pediatric Scale. 7 1 1.500 1.509 u?zu Ehwm?s?hh 5 i 200: AGE 112 TonBicblp 7 1 12.000 122.000 53; 3 2.500 7.500 ,5 Eat. Incubators 8 1 4.000 4.00.0 a. 1 1,570 1.570 112- Tea fickup '7 l. 13.000 13.000 18mm 5 .1 4:992 EXHIBIT E?l 4450140?m FY 1996 ChlehL LIST CAPITAL OUTLAY BUDGET ITEM USEFUL UNIT TBTAL PRIORITY 03355 1133 BURN. COST COST 209 a: cut: Registrars a 4' 2,099 8,000 155211 I Bland 2rasnura Benito: 5 1 3,200 3,300 0 surgical cghinnt Uhit 10 1 5,000 5,000 1/2 man-Picking truck 7 2 17,000 35,000 0? .carpat/bizd hauls 10 1 4,000 4,000 2 purifiers 4 1,390 5,200 3 slide doara-eleph.heuse 15 2 6,000 12,000 8 .Saa_lian pumplfiltar 10 1 6,500 5,500 3 Bush hog 7 1 3,500 3,500 Paasangnr van 7 1 21,000 21,000 S?akgwha? truck 7 1 20,000 20,000 '2 Park-11:1: 1.9 1 2.1.50.0 27,500 2 Cat: can 10 2 4,900 5,090 I: Dump-bed_ nails: 10' 1 5 .000 5,000 3 building 15 1 20,000 20,000 Trailer wllaading ramp 7 1 1,300 1,300 147,300 184,200 Tana; EXHIBIT sz MASTER PLAN FOR ZOO ?55315 NOD >zu bop?>332 OVERTON PARK MANAGEMENT AGREEMENT OVERTON PARK MANAGEMENT This Ovm'ton Management ATM (?Agremnent? made and entered into this 3% day of jaguar"?! 20 by and hm Overton Park Commancy, a Tm nonpro?t corporation and City of Memphis, Tamera The effective date of this Ageementahallhe I I 670/ 201-! (the ?Effective Date?). In consideration of their mutual and for other good and valuable consideration, the receipt and suf?cimcy of which is hereby acknowledged, the parties hereby agree as follows: ARTICLE I DESCRIPTION AND USE OF THE PARK For purposes of this ageernmt, Ova-ton Park C?Park?) shall mean those areas which are depicted in the map shown in Exhibit A, which is attached hereto and incorporated by refamce. ?I'hePatk of Memphis, Tennessee. Fordretmore, OPC in coordination and in went with the Division of Park Services will develop and implemmt capital projects and improvements according to a Masta-PlanC?Plan?) forthePerk, asshowninExhibitB, incorporated hereinasifstated verbatim. OPC will carryout its managment in accordance with the Plan. However, nothing cont?nedinthis ageernertorthe MasterPlanshall responsibilities of the City Administration to submit a budget annually that takw into consideration all proposed capital improvement projects, and recommend the some to respective projects fall within the judgment and discretion of the adn?nistration. Moreover, nothing herein shall be construed to require the City Council to approvo any such capital improvement project or give prefermce or priority same except upon its deliberation and consideration by the Capital Improvement Budge Committee and the Memphis City Council duringandas apartofthebudgetapproval processtequiredofall CityofMemphiscapital projects- ARTICLE II MANAGEMENT The City hereby appoints OPC as MW of that portion of the Park described by mates and bounds in Exhibit but speci?cally excluding the Memphis Zoo, the Brooks Art Museum, the Memphis College of Art, the Levitt Shell, the Over-ton Park Golf Come, the General Services Area, and the Manphis Fire station on East Parkway, each of which is controlled by its own managernmt agreement or City management (?Managed Area?). OPC shall have the ?ll! and exclusive authority and responsibility to manage, operate, lease. maintain, rent, preserve, protect, enhmce, and develop the Management Area, to promote the Park, and to carry out all of its other duties as set forth in more detail herein. This Agreement acknowledges and is in anticipation of the City?s intent to enter a Managemmt Agreement/Mm Plan for the State Natural Area (the Management Amend-Master Plan?) which shall be entered into by and between the Tennessee Department of Environment and Consn'vation (TDEC) and the City, to be executed within approximately SNA. TheOPCwill taketheleadin negotiating this SNA Management Annealed/Master Plan with TDEC, and the SNA Agreement/Master Plan shall be submitted to the City for the City?s approval, which shall not be Imreasonably withheld. The City aid OPC agree that OPC shall be the designated Manager of theOldForestStateNatmal Area in the SNA Management Agreanmt/Master Plan, pursuant to Tennessee Rule Additionally, during the term of this agreement, OPC shall any amnidmentand/or changesbeing made to the SNA Managmmt/Master Plan. Ifthe SNA Management Amt/Master Plan or any ?xture amendment thereto is not to the OPC, OPC shall have the right to withdraw as Manager of the SNA and OPC shall havethe right to withdraw from any or obligation to raise and provide funds for the managment of the SNA, and shall have no obligation to raise or provide any such funds not already theretofore ARTICLE TERM The initial term of this Agreanent shall. be ten (10) years and will commence upon the hall execution and aid on A3 202]. Either party may terminate this Amara on ninety (90) days prior notice to the other pmty. This Agreement can be renewed upon mutual, written consent of both parties for one (1) additional tern often (10) years. Hereina?er, all refermces to the of this Agreement shall mean the initial term and any extensions or renewals thereof. ARTICLE IV CITY FUNDS AND SUPPORT It is the intention and agreement of the partim that the City will provide to OPC Operating funds of $150,600 annually. Additionally, subject to the availability and the appropriation of funds by the Capital Improvement Budget and the Memphis City Council, the City willprovidecapital ?mds to OPC in theamounts listed inExhibitD forthe?rst fouryears ofthe initial term of this Agreement. Payment of operating funds shall be paid annually within ninety (90)daysof?ienew ?scal year each yearofthis Agreement and any mews] or extension thereof. Upon the Execution or shortly thm'ea?er, the City will pay the ?rst pro-rate installment to OPC as adjusted herein. The City will provide the following goods, Wow, and other items over which the City has had responsibility or the Division of Park Services has provided to or for the Managed Area: 1. City will be responsible for the maintenance of trees, including the removal of dead or fallen trees and large limbs, except as subject to the SNA Management Amara/Master Plan. Notwithstanding the foregoing, OPC shall be responsible for the nemoval of small limbs and tree debris. 2. City will continue to provide maintmance of all plumbing and electrical systems and of die Rainbow Lake pump systan machinmy. 3. City of Memphis will continue to provide electricity and maintenance at no cost to OPC for all existing streetlights within Overton Park. 4. City of Mmphis will continue to install and remove annual ?owers in the beds and areas in which they have been traditionally planted within the Managed Area. OPC shall be responsible for all preshitnns for ml and personal propm'ty insurance needed for proper operation of the Managed Area. City, as owne- of the Park, the Managed Area, shall remin responsibility to parking areas to be in compliance with all applicable laws, including but not limited to all federal and statelaws eoncerningpersonswith disabilities. City, as owner of the Paris including the Managed Area, shall retain responsibility for any enviromnental conditions on orunder the Managed Arm, it being Imam-stood and agreed that the CFO shall have no responsibility or authority to investigate, remediate or otherwise deal with Date of this Agreement. Unless OPC by their own actions caused and/or created an mvironmental issue, the City shall main responsibility to maintain compliance with all federal and state mvironrnental laws and regulations. Additionally, responsibility shi?s to OPC for any new enyiromnental issues arising from any new construction or any other changes, speci?cally those actions contemplated by OPC found in Article II, that occurred after the execution date of this agreement. ARTICLE OPC FUNDS OPC shall submit its budget to the City Council annually for approval and shall allow the City access to its books as provided in Article XVII. All revenues gens-ated by or in the Managed Area of the Park, and any activities, facilities, events, or programs in the Managed Area of the Park, by rental, lease, or otherwise, or raisedbyordonatedto orforthe OPCfortheManagedAreaofthePark, shallbepaidtoandbe the property of OPC for use in carrying out its duties set forth herein. Notwithstanding the forgoing, no fees may be assessed upon families and individuals for use of the park during normal park hours, for the use of the playground areas and the use of the Greensward, provided that ifa special event is takingplace at anytimeintheManaged Area, at feernaybe charged for whence to the event. At no time shall a majority of the Managed Area be closed off for a special evt. OPCwillraiseandcollect, all additionalfunds (ova- and above the amounts provided by the City to OPC as provided in Article IV, above, and necessary, in discretion, to carry out its responsibilities set forth basis, including without limitation the management, opmation, protection, mhancernmt, mid development of the Managed Area and the promotion of the Park, the develome of the Masts Plan for the Park, and the implementation of that Plan subject to the provisions found in Article I. All ?mdsraisedby, ordonatedtOOPC, Park, through special events, exhibits, sales of goods or services, memberships, advertising, naming rights, sponsorships, private donations, or otherwise, shall be the sole and exclusive property and shall only he spent in with the management and beauti?cation ovaertonPark. anyresnictionsimposedon the use of such funds by the Charte- and Bylaws of OPC and/or the terns of the donation OPC shall reimburse the City the City?s cost for all utilities (water, sanitary sewer, electricity, and natural gas) in excess of $15,000 each year of this Agreement arising from the operation of the Managed Area. ARTICLE VI AUTHORITY OPC intends to operate the Park in a manner that will encourage broad public use of the Park, in accordance with the terms of this Agreement. OPC will have the sole authority to determine what activities, events, pregame, shall take place and which shall he Agreernmt, andto establiahru-lesand regulations governing some. OPC will with the current established hours of amendment to the ordinates, provided however, OPC shall have the authority to host and manage events as it sees both during normal park hours or alter and after normal park hours. All facility and/or building improvements, construction, landscaping projects, and/or any other permanent changes shall be subject to approval by the City of Memphis on belmlf of Park Savicw except those listed in Exhibit which shall be considered approved upon execution of this Agreement. ARTICLE VII FEES No fee shall be charged for enhance to the Park. OPC will have the sole authority to determine the arnormts to charge for use of or admission to any facility, event, or activity located within the Managed Area and shall have control of all concessions in the Managed Area, with the right to opaate any such concessions itself or to contract with independent concessionaires to do so. Notwithstanding the forgoing statement, OPC acknowledges and agrees that no permanent concession facilities will be constructed or relocated into the park and/or managed area Without prior City WWI, such approval not to be su an r: ly withheld. However, consideration all proposed capital improvement projects, prioritize and recommend the same to respective projects fall the judgment and discretion of the Moreover, improyement project or give preference or priority same except upon its deliberation and consideration by the Capital Improvement Budget and the Mmphis City Council dmingandasapartof'the budgetapproval processrequimdofallCityomephis capital Projects- tutti! June 30, 2012 or until notice based on contractual agreement may be given to end the service, whichever is soonest. ARTICLE LICENSE TO USE MAINTENANCE connection with the managannrt, operation, and maintenance of Overton Park. The City hereby grants and conveys to OPC licenses touse said Personal Propertyand Equipmentduring?reterm of this Agreem?lt, but ownership of such Personal Propmty and Equipment shall main with the City. The City warrants that all Personal Property and Equipment listed in Exhibit is operable and in working condition. At the end of the use?ll life of each piece of equipment, said eqniprnent shall beretumed to City for disposal. The City shall, during the term of this Agreemmit, continue to provide maintmance and repair of said Personal Property and Equipment, and shall replace said Personal Property and Equipment, upon the expiration of the useful life of the equipment and/or when repair of the item is not sn?icient to return the equipment into an operable condition. OPC shall reimburse the City for any maintenance in accordance with published rates charged to City agencies and departments within thirty (30) days of invoice. ARTICLE IX CAPITAL IMPROVEMENTS MAINTENANCE OF EXISTING AND NEW SIGNAGE The Managed Area is and shall remain the property of the City. OPC shall have the right, at its sole expense, to maintain any existing and new announce and to make such changes in and additions and the realpropertyin the Managed Arenasitmaydeem necessary in ordertocarryoutits shallbe consistent with the Exhibit B, which shall be consistent with City, Stale, and Federal Laws. All proposed thosepr?ovidedinExhibitB Agreement, shall be submitted to the City Engineer, die Director ofPar-ks Services, and Risk Managerient for review to ensure compliance with applicable state and local regulations relative republic and compatibility within the Ova-ton Park area, however; that approval thmeof shall not be unreasonably wi?iheld, delayed or conditioned. If the City Engineer, the Director of Park Services, and/orRiskManagafnent anyproposed additional buildings are contrary to the forgoing, OPC will halt any actions towards the completion of such preposal until all issues with?teproposal with the foregoingh'avebeen resolved. All capital shall be the property of the City, which accepts ownership of and title to such property. However, nothing contained in this camera or the Master Plan shall be construed to abrogate or delegate the mponsibilities ofthe City to a budget annually that takes into consideration all proposed capital improvement projects, prioritize and recommend the same to theCapital ibr?mdingasthe respective projects fall within the judgment and discretion of the Moreover, project or give prefumee or same except upon its deliberation and consideration by the Capital Improvement Budget Committee and the Memphis City Council duringandas ofallCityofMernphis capital wim- The Cityagrees-to OPCregardingthedesignand construction of any capital improvements, within the Managed Area, other than those initiated by OPC, and no such improman shall be made without the consent of UPC. OPC agrees to the following: topickup andremove all litterand debris in grass areaspriortomowing - paved areas as well as around all trees, shrubs, sign posts, walkways and other obstacles in landscaped areas on an established and regular schedule. I to provide additional lawn care as it sees including but not restricted to fertilizing or any other action OPC deems necessary to ken) grass areas in proper condition 0 tomow includingedging andweed eatingarormdallobstacles in landscaped areas to clear roadways of debris during each trash collection to repair potholes as needed to sweep all roadways and lots and for special events to clear walkways of debris during each trash collection I tokeepvegetation cutbackaminimmnofsix feet from edgeoftrail orto previously established mowing bonndary tomaintaingrave] smfaccoftrail to asa?levelwith approved gravel product 0 tomow andrnulch leaves inlandscaped areastwo timesperyearbetweenDec.l and Feb 28. - tokeep landscapedareas whichhavebeenmulchedpreviously are to be mulehed annually - aneat, clean appearance. 0 tokeepplaygrotmd clean and freeoftrash and debris - to perfonn routine repairs replacing swings, swing chains, etc. toinspectPicnictabla, benches, trashcontainers, necessary torernovegraf?ti whenitbecernespresenton all surfaces inpark to maintain the following Flower BedaEandscaped onnal Gardens a) 13 ?owe- beds, crepe and landscaping, b) Poplar-Main Entrance - Flower beds (2), shrubbery, c)0verton Park Sign/Moments Landscaped with shrubbery, and d) Veterans Pleas/Dougbboy Statue Plantas with shrubbery and ?owers At a minimum of two times per week, OPC agrea to pick up and remove trash, paper, and other debris from the parking lots and to place such trash, papa, and debris into an appropriatenashcontainn. Upon the ADA compliant renovation of the Rainbow Lake restroom facilities and completion of the ADA compliant Picnic Area restroom facilities, OPC specs to provide permanent restroom facilities at the playground locations in accordance with the Plan within the Managed Area, and to ensure that the team facilities are cleaned and stocked with toilet supplies daily. Restroom facilities shall only be accessible during established hours of permitted use. erected or displayed, any signs witth the Managed Area it may deem appropriate in accordance with the Master Plan, any fumre State Natural Area Master Plan, and all applicable state and local laws and regulations speci?cally including the City?s sign policy. ARTICLE INTANGIBLE PROPERTY AND ADVERTISING The City hereby grants to OPC, for the term of this Agreement, an exclusive, worldwide, fully paid up and irrevocable license in and to any and all Intangible Property related to Overton Park and owned by the City, including any and all names, trade names, marks, trademarks, and other intellectual property; provided, however, that any use of the name ?City of Memphis" or use of the o?icial seal of Tennessee, requires prior approval of the City. The City agrees to execute and deliver to OPC such assignments, licenses and other instruments and documents as needed to e?'ectively grant said license in and to all such Intangible Property hereina?er refuted to as Exhibit G. OPC is authorized to grant such sub-licenses in any item of ExhibitG asitdemns inthebestinterestofthel?ark. Subject to the City?s approval, which will not be unreasonably withheld, OPC shall have therightto sellnaming rights, portion thereof, or facility, activity, or eth provided, however, that all naming rights, sponsorships or advertising relating to alcohol, tobacco or sexually oriented businmses shall be prohibited. tar-mam] anymewals ofthisAgremaent. Additionally, theproceedsofall salesshall gotothe management, capital hnprovanmts and maintenance ofthc park. ARTICLE XI PERSONNEL - For a period eluding no later than February 29, 2012 (the "Transition Period?), the Division of Park Services will maintain the can-am level of employee assignments to Over-ton Park. Upon execa?on of the lament, the Division of Park Services will not hire any additional temporary mployees. During the Transition Period, the City shall be responsible for all eompensaticn, bene?ts and workers? eornpensation insurance for such employees, as in the approved 2012 City of Memphis Budget. After the Transition Period, OPC shall have the sole authority, in its sole to select the persons it chooses to employ and to detennine the turns and conditions of their employment, provided, however, that OPC shall be an equal opportunity employer and shall not discriminate in its noployment practices on the basis of race. sex, age. color, religion, national origin, genetic information, or disabilities. A?er the Transition Period, OPC shall be solely responsible for all compensation, employee bene?ts and expenses of its ernployees. OPC shall take af?rmative aotion to ensure that small, sanctity-owned businesses, women-owned businesses, and locally owned businesses, which have hem certi?ed by the City, are utilized when possible as sources of supplies, equipment. construction, and services, which are consistent with the City?s current, targeted goals. ARTICLE XII COMPLIANCE WITH LAWS OPC shall manage the Managed Area in compliance with all applicable laws and regulations, except as otherwise provided in Article IV. ARTICLE SUBJECT TO FUNDING Memphis City Council. In the event su?cimt funds for this Agreemmt are not available or appropriated by the Memphis City Comcil for any of its ?scal period during the term hereof, the City, notwithstanding the 90 day tmnination provision found in Article 111, shall have the right to OPC . Intheevmtofsuch termination, OPC shall be entitled to any monies due it up to the ministration date. Such tennination by the City shall not be deemed a breach of contract by the City, and OPC shall have no rigit to any actual, general, speci?c,I incide], consequential, or any other damages whatsoever of any description or amount not due at ofthe date of temination. Additionally, in the even suf?cient ihnda for this Agreement are not availahle or mewe Manphis CityCouncil ?iranyofits?scal peiiod dmingthetermhereof, OPC shall have the right to hninediately terminate this leg-earnest, notwithstanding the 90 day tmnination provision found in Article upon notice of the City?s failure to appropriate such funds. Intheeventofsuchtennination, OPC shallhecn?tledto anymoniesdueituptothe tennination date. Such termination by OPC shall not he donned a breach of contract by OPC, and the City shall have no right to any actual, general, speci?c, incidnital, consequential, or any other damages whatsoever of any description or amount not due at of the date of tennination. ARTICLE XIV CONTRACT AUTHORITY Upon full execution of the Agreenmt, OPC shall have full authority to negotiate and execute all contracts, agenneits, permits, leases, and liceises as may be necessary for the management and ope-anon of the Managed Area and to carry out its duties as Manager under this Agreement. Such agreenents shall include, but not be limited to, the SNA Management Agreement/Master Plan, contracts, agreements, leasw, and licence, with vendors, suppliers, interns, exln?hittns, concessionaires, joint vennuers, promoters, advertises, television and radio media, other media, and other parties. ARTICLE XV RELATIONSHIP OF PARTIES Theparties agree that the only relationship created by this Agreement is and shall be that between the City and OPC mid that OPC is an independent contractor, providing management, opm'ation, and other services to the City, not an mat, agency, enployce, joint partner, division or department of the City. ARTICLE XVI INSURANCE City will continue to carry propaty insurance for all facilities and/or provide self- instn'ance empropm'tyinstnanceon ?rttn'ebuildings resulting from the of the Master Plan; however, OPC will reimburse the City for the cost ofthepmperty insurance premiums. Upon the Execution Date, OPC shall purchase and maintain, in a company or companies licmsedtodobuainess claims which may arise out of 'or restdt from opaations under. this Agreement, whether such opmlions areperformed orbyanyonedirectly orindirectly employed by OPC, or by anyone for whose acts OPC or subcontractor may be liable. OPC shall also require insurance coverage as outlined herein of any entity or individual that leases or uses the Managed Area for any event(s). Theinsurancercquired by law, whichever is m. The City of Memphis, its e?ieials, agents, employees, and represmtatives shall be named as an Additional Insured on all liability policies. The additional endorsement shall be attached. OPC will. throughout the life of this agreement inmncas, through insurers rated A- or better by AM. Best, in the following acquirenrents: -, . cova'age with minimum limits of $1,000,000.00 per $1,000,000.00 annual agar-ewe coverage, $1,000,000.00 annual aggregate products/completed coverage, including coverage for sole proprietors, patties, and of?ces, regardless of requirement by Tennessee State Statute should include the limits of $100,000 Each Accident, $100,000 Disease-each employee, and $500,000 Disease-policy limit . a to bi'li with limit of $1,000,000 for all owned, hired and non-owned autos. acceptable evidence of immense as of the Effective Date and shall maintain said insurance during the entire agreement as well as provide renewal copies on each annivmsary date of the Effective Date. OPC shall be required to provide the Workers? Compmsation coverage for its employees upon eXecution of the Agreement. OPC shall provide notice to City within three (3) business days following receipt of any notice of cancellation or material change in insurance policy from insurer. Such notice shall be provided to City by registered mail, return receipt requwted, to the following address: 10 City of anphis City of Memphis Risk Management Department Purchasing Department 2714 Union Extended, Suite 200 125 N. Main, Room 354 Memphis, TN 38112 Memphis, TN 38103 ARTICLE XVII RECORDSIINSPECTION OPC will establish and maintain accurate records and accounts whim suf?ciently and and expendihmm?ieperformanceofthis Agreemmt. principles. Upon reasonable advance request by the City, OPC will make available for inspection and audit, during regular business hours at OPC's place of business, OPC's books and records relatingtothe performance of this Agrement. Within one-hundred and twenty (120) days of the end of each ?scal year (Decmnber UPC shall submit to the City audited ?nancial statements regarding management and operation of the Managed Area, including, without limitation, a statanent of income, expenses and surplus (or de?cit) and the results of operation during such year, such ?nancial statement to be certi?ed by an of?cer of OPC as true, accurate, and complete and fairly re?ecting the results of operations of the Managed Area. ARTICLE DEFAULT Anything in this Agreement to the contrary notwithstanding, it is understood and agreed that in the event of a default, the non-defaulting party shall give written notice of default and the party in default shall have 30 days aha receipt ofme notice to cure any monetary default and 60 days alter receipt ofthe notice to cure any non-monetary default, provided that as to a non- monetary default, if such default cannot reasonably be aired within said 60 days, the partyin default shall have such time as is reasonably necessary to cure the default, provided that the party in default begins curing the default within said 60 days and diligently prosecutes to completion the curing of the default. A party shall not exercise any right or remedy for default unless and until such notice has bent given and the opportunity to owe default has expired. ARTICLE XIX WAIVER No waiver of any terrn, condition, default, or breach of this Agreanent, or of any document executed pursuant hereto, shall be effective unless in writing and executed by the party making such waiver; and no such waiver shall operate as a waiver of either such term, condition, default, or breach on any other occasion or any other term, condition, default, or breach of this Agreement or of such document. No delay or failure to enforce any provision in 11 this Agreemmt or in any executed pursuant hereto shall operate as a waiver of such provision or any othn' provision herein or in any docmnent related hereto. The mforeemt by any party of any right or remedy it may have under this Agreement or applicable law shall not be deemed an election ofrernedies or othawise prevmt such party ?'orn enforcmrent of one or more other remedies at any time. ARTICLE XX CONSTRUCTION All words used haein shall be consumed according to their proper gender and number, as the context shall require. Unless speci?cally designated otherwise, a reference to ?including? shall mean ?ineluding, but not limited to.? ARTICLE XXI This Agreemmt sets forth the mtire understanding of the parties, replacing any and all prior agreements relating to the subject matter hereof. This Agreement may be changed, amended, or terminated only by similar written instrument executed by the parties. ARTICLE successons All of the terns and provisions of this Ageernmt shall be binding upon, shall inure to the bene?t of; and be mforceable by and against, the parties haste and their motive successors and permitted assigns. ARTICLE ASSIGNMENT No party may assign or delegate its rights or duties under this Agreemmt without the prior written consent of the other party in each instance. ARTICLE XXIV SEVERABILITY If any provision of this Agreement is held by a court of competmt jurisdiction to be mlawful, invalid, or unenforceable under any presmt or famine laws, such provision shall be fully severabl'e; and this Agrennent shall then be construed and enforced as if such mrlawful, invalid, or unenforceable provision had not been a part hereof. The remaining provisions of this 12 invalid, or provision or by its severance her-chem. ARTICLE XXV NOTICES Anyandallnotices,reqnests, givenpmsoanthereto eitha'?Jinpersonorby electronic facsimile, (ii) by an established overnight delivery service, such as Federal Express, or mailed by registered or certi?ed mail, return receipt requested, and shall be addressed as follows: City City of Memphis Division of Park Services Ann: Buchanan, Director 2599 Avery Avenue Memphis, Tnmessee 381 12 Copy to: City ofMemphis City Attorney 125 N. Main. Rm. 336 Memphis, Tennessee 38103 Overton Park Conservancy: Ovation Park Conservancy 130 North Court Avenue Memphis, Tennessee 381 03 Copy to: Burch, Porter Johnson, PLLC 130 North Coon Avenue Memphis, Tennessee 38103 Attention: Charies F. Newman, Esq. bynoticein writing given as above provided. Notices delivered in person or by electronic facsimile shall be deemed to have been given on the date of delivery; notices delivered by overnight delivery service shall be deemed to have been given on receipt; and notices given by mail shall be deemed to have been giver on receipt. ARTICLE APPLICABLE LAW This Ageement has been accepted, executed and delivered, and is intended to be performed, in the State of Tennessee. The rights and duties of the parties, and the validity, construction, enforcement, and interpretation of this Agreement, shall be governed and construed according to the laws of such state. 13 ARTICLE EXHIBITS All of the Exhibits attached to this Agreement are a part of this Agreanent when so attached, TheCity represents and mom that all such Exhibits are complete and accurate descriptions of the matters referred to ?terein. ARTICLE XXVIH FURTHER ASSURANCES Each ofthe parties, at all times and from time to time hereafter, and upon reasonable do, execute, deliver,orcausetobernade, done, executed reasonably required for more effectually itnplernenting and carrying out the true intent and meaning of this Agrement. ARTICLE XXIX INDEMNITY OPC shall indernniiy, defend, save and hold harmless the CITY and in o?icas, agents and employees ?ora and agaimt any and all claims, demands, suits, actions, penalties, damages, settlements, costs, expenses, or other liabilities of any kind and character, including without limitation attorney fees and litigation expenses, arising out of or in connection with the perfonnance of this Agreement by OPC, its eniployees, subcontractors, or agents or the brush of this Walt by OPC, its enployees, subcontractors or agents. This obligtion shall survive the expiration or termination of this Agreement. The OPC expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the OPC shall in no way limit the OPC responsibility to indemnify, defmd, save and hold harmless the City or its elected or appointed of?cials, of?cers, employees, agents, assigns, and inst-mentali?es as herein required. The City reserves the right to appoint its own counsel regarding any matter defended hereunder. The OPC acknowledges that the City has no obligation to provide legal counsel or defense to the OPC, its employees or subcontractors in the event that a suit, claim or action of any character is brought by any person not a party to this easement aginst the OPC as a result ofor relating to obligations wider this agreement. The City shall have no obligation for the payment of any judgments or the of any claims assatcd against the OPC or its subcontractors or employw as a result of or relating to OPC obligations hereunder. OPC shall immediately notify the City 010 City Attorney; 125 North Main, Suite 336; Manphis, TN 38103, of any claim or suit made or ?led against the OPC or its subcontractors regarding any matter resulting ?orn or relating to the OPC's obligations under this Agreement and agrees to cooperate, assist and consult with the City in the defense or investigation. 14 ARTICLE LIVING WAGE In accordance with the City ofMemphis Ordinance No. 5185, commonly referred to as the Wage Ordinance, as ammded, certain businesses holding a savice or service?related contract withtheCityofMemphis shallpayits employeesperfonning workon said contracts minimum hourly wage in the amount of $10.27 pm hour with health bene?ts for employem and their depmdents or $12.32 pm- honr without health bene?ts. Unless otherwise exempted, the OPC and/or its subcormnaors agree to follow and comply with the of said ordinanceasammded. certi?ed payrolls, or af?davits in accordance with Ordinance No. 5293, associated with this ageernent to the City of Memphis c/o Manager, Prevailing Wage Of?ce; 125 N. Main St, Room 13-18; Memphis, TN 38103. The Living Wage Ordinance and any amendments thereto, can be accessed on the City's website Once on the City?s homepage, click on the "Business" link, and the: click on the "Doing Business with the City" link. A link to the Oniina?nce will be accessible on the top right side under the section ?Links? Annual adjustrnents, ifany,tot11erates February. 15 IN WITNESS WHEREOF, the parties hereto have set their signatmes for the purposes contained herein, onthis 13 day of 1 301-153 APPROVED AS TO FORM CITY OF MEMPHIS: AND LEGALITY: ON I BY. 1 TITLE: 16 1. a a nu.- O?aoz HE v. .- Shh? . .. aci??ILI-il it 52.32% nxninr'r Oveifton Park Conservancy 'v Master Plan Dog park - New signage program, comprehensive Playground upgrade - Lake Upgrade Old Fol-est pathways, signage Playground upgrade - Picnic Area Resco'om rehab: Rainbow Lake Donor recognition ?ags, pol-es. New restroom: Picnic Area Old Forest entry shelters Whlking trail mound Greenswanl Irrigation system Upgrades to me CFO and the City of Memphis will continue to work together and agee upon timber capital projects in the Managed Area. Additionally, the proposed Capital Improvement Projects shall go through the usual and reviewpmcess speci?cally with the City Engineer, Risk Management, and the Director of Park Service's to come compliance with applicable regulations. - .. :15? - 'Li . 1 .u {8.x or}: Manager! ?ner}? . I i "r-n t! -1- EXHIBIT Overton Park Conservancy Management Area Red lines indicate areas to be ma naged by CDC except for those areas shown as dashed yellow lines ITD 2012 2013 2014 1015 Capital Funds to Be $179,000 ;$129,000 $79,000 $29,000 Provided by the City EXHIBIT SERVICE CONTRACTS AND REVENUE AGREEMENTS - Park Rentals Program?this is not an of?cial contract but it does provide revenue. chooses to take over this program, it should do so January 1, 2012. Park 1. EXHIBIT PERSONAL PROPERTY AND EQUIPMENT NONE EXHIBIT INTANGIBLE PROPERTY RIGHTSISPONSORSHIP AND ADVERTISING Currently there is a music contract that alleys all city entities to use music without paying royalties. We will work on completing this list with more speci?es. l?l EXHIBIT T0 OPC AGREEMENT OVERTON PARK I Divideno?'hlk semen 1" FE .?-?T?ermg-Ed A rm - - .I Ovefton Park - .. - Conservancy Management Area Red lines indicate areas to be managed by OPC except for those areas shown as dashed yellow lines