DIVISION OF FINANCE T93wa To: Honorable Mayor A Wharton, Jr. From: Eric S. Mayse, Purchasing Agent WV Date: December 3, 2014 Subject: Contract N10713 MEMPHIS ZOOLOGICAL SOCIETY Please ?nd attached the above referenced contract for the Mayor's signature. This document does not require City Council approval. Purpose: Amendment to provide that all revenues received with respect to Zoo are to be retained by MZS. Financial Commitment: This is a negotiated agreement. There is no ?nancial obligation . Contracting Authority: By Home Rule Amendment 1852, Section 14, BE IT FURTHER ORDAINED, That the power to contract (other than by franchise agreements) shall remain with the Mayor. After approval, please return all documents to the Purchasing Department for further processing. Should you have any questions, please advise. Attachment DEE 13.35161 PH 131%} City of TENN ESSE December 10, 2014 City Contract N10713 Memphis Zoological Society 2000 Galloway Memphis, TN 38112 Gentlemen: A WHARTON, IR. - Mayor GEORGE M. LITTLE Chief Administrative Of?cer DIVISION OF FINANCE BRIAN F. COLLINS - Director Purchasing Agent Eric S. Mayse We are enclosing, herewith, an executed copy of a Contract Award Amendment to provide that all revenues received with respect to 200 are retained by MZS for the Division of Parks Neighborhoods with the City of Memphis. This copy is for your files. Sincerely, Q- Eric S. Mayse Purchasing Agent cc: City Comptroller Room 354 - 125 North Main Street - Memphis, Tennessee 38103-2083 - (901) 576-6683 AMENDMENT TO ZOO MANAGEMENT AGREEMENT BETWEEN THE CITY OF MEMPHIS AND MEMPHIS ZOOLOGICAL SOCIETY 26 THIS AMENDMENT is made and entered into this ?ith day of Riga" 2014, by and between the City of Memphis, a Tennessee municipal corporation (hereinafter referred to as ?City?), and Memphis Zoological Society (hereinafter referred to as RECITALS: 1. Whereas, City and M28 entered into a Zoo Management Agreement, dated December 30, 1994, as amended (the "Agreement"), for the management of the Memphis Zoo and Aquarium (the and 2. Whereas, the parties desireto amend the Agreement to provide that all revenues received with respect to Zoo are to be retained by and 3. Whereas, the parties desire to amend the Agreement to provide for the treatment of capital improvements to 200 financed by MZS upon Termination of the Agreement; and 4. Whereas, the parties hereby acknowledge that this document constitutes an Amendment to the Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Section 4.2 of the Agreement is hereby amended to include a paragraph at the end of such Section that reads as follows: Any amount paid in respect of the Zoo, whether in the form of an admission charge or fee, a concession receipt, parking fees, rentals, donations or otherwise, will be the sole prOperty of M28 for so long as the Agreement continues to be in force and shall not be payable to, or subject to set-off by, the City in whole or in part. In the alternative, the City will enter into an agreement for the management of Zoo which is qualified for applicable Federal income tax purposes. 2. Article 6 of the Agreement is hereby amended by adding Section 6.5 that reads as follows: Upon termination of the Agreement, the City will seek advice of its bond counsel whether any capital improvements or additions to the 200 paid for by MZS that have not been fully depreciated over their expected economic lives as of the termination date constitute private payments with respect to the Zoo for Federal income tax purposes. 2. The parties agree and affirm that all terms of the Agreement, not in con?ict with this Amendment, remain in full force and effect, and that nothing in this Amendment relieves either party of their respective obligations under the Agreement. 3. This Amendment, together with the Agreement, constitutes the entire agreement between the parties, and supersedes all other prior or contemporaneous communication between the parties (Whether written or oral) relating to the subject matter of this Amendment. Each party to this Amendment hereby agrees to execute any documents or instruments reasonably required by the other party to evidence the foregoing. IN WITNESS WHEREOF, the parties, by and through their duly authorized representatives, have executed this AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF MEMPHIS AND MEMPHIS ZOOLOGICAL SOCIETY as of the date above written. MEMPHIS ZOOLOGICAL SOCIETY BY: BY: <3 :75TITLE DATE: R?v?r 2% 3 20M CITY OF MEMPHIS PURCHASING 'oomcrcuecK-orrsuen . Hosza?aohedtoeam?la) I . If. A '1 NC) Eva/nib fat/JG? 7 ?rent year of Contract:' . Old Estimated Yearly Contract Amount: Ni) [84/ Encumbrance to Date: - i Creation Date 114mm? 1 44:49 - Finaliy 03339 Actions 6L Data g1 {131133 Dacumem Data to Reason 3N0 insurance presented City of ?ivisi0n of Parks and Heighborhoods Planning and ?Routsz #28 Work: Fax: 901?576-4245 From the, of IsaTonia Valzntinz (co/WM REGEIVED JUN 7 3 Division of Parks Neighborhoods; 23m 3. ?wm-Me? RECEIVED 9120Dlws'on 0f Parks 3? Neighborhoods BID CONTRACT AGENDA SHEET AMA-?wwajm PURCHASE ORDER BID AWARD RECOMMENDATION FORM DIVISION SERVICE CENTER DATE PARKS AND NEIGHBORHOODS ADMINISTRATION 06/20/2014 161 1. BID REJECTION For purchase/construction of I I Explanation of rejection Request to Readvertise Rebid 2. CONTRACT AWARD RECOMMENDATION Low Best* On Contractor Ad ress For *Justification for rejection of low attached Number of bids received (attach two copies of bid tabulation) 3. CHANGE PAYMENT (Contracts Only) Contract Contractor MEMPHIS ZOOLOGICAL SOCIETY Address 2000 MEMPHIS, TENNESSEE 38112 For 200 MANAGEMENT AGREEMENT Extension Original Contract Amount I Final Payment Due Change Order Previous C.O. Total I Retainage Cancel Contract Previous Amend./Encum. Total Transfer to I Attached Amendment Amend.# Attached Encumbrance Encumbrance Amount Capital Acquisition 3 Adjusted Contract Amount 4. COST AND SOURCE OF FUNDS FY Mis Fund bill Service Center (60am Account (992,512? I 0000000 000000 000000 I Grant/CIP I Project Task I Award Exp Type Exp. Org Fund Service Center Account I 0000000 000000 000000 I Grant/CIP Project Task Award Exp Type EXD- Org Contract Amount Special Instructions 5. CHECKED AND APPROVED BY AM. ff/ Service Center AppWZ??j (5 1y) I Date Division Director Date 6/1374? I City Engineer Date Chief Administrative Officer Date weFunds are available Ad? Date ?7 Funds to be appropriated/transferred Date I Purchasing Agent I Date I a . ate PO ?ve (5) days 3E6 191% 1' 333 DR. w. w. HERENTON . Mayor DAVID F. HANSEN - Chief Administrative Of?cer DIVISION OF FINANCE 8: ADMINISTRATION RICK MASSON - Director Purchasing Agent TENNESSEE Friday, December 30. 1994 City Contract Memphis Zoological Society 2000 Galloway Memphis. TN 38112 Gentlemen: We are enclosing, herewith, an executed copy of a Negotiated_Contract for Management Agreement for Memphis Zoo Aquarium for the division of Parks] Administration. This copy is for your files. Sincerely, Mr. Linrie Thomas, C.P.M. Purchasing Agent cc: City Comptroller City Contract Room 354 - 125 North Main Street - Memphis, Tennessee 38103-2083 - (901)575?6683 ZOO MANAGEMENT AGREEMENT This Zoo Management Agreement.made and entered into as of this 30th day of W, 1994, by and between MEMPHIS ZOOLOGICAL SOCIETY, a corporation and the CITY OF MEMPHIS, TENNESSEE a municipal corporation under the laws of the State of Tennessee, acting by and through the Memphis Park Commission In consideration of the mutual promises stated below, the parties hereby agree as follows: 1. Definitions. As used in this Agreement, certain capitalized terms shall have the meanings indicated on Exhibit hereto, which are in addition to other terms defined in this Agreement. 2. Term, Termination. 2.1. 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 MES 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 MPC, or a majority of the then serving members of the Executive Committee of M23, 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 parties will attempt in good faith 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 MZS, the party seeking the termination may withdraw such notice, in which case this Agreement shall remain in full force and effect. 2.4. This Agreement shall automaticalry 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. Management and Governance. 3.1. The City hereby appoints MZS as the manager of the Zoo, including all operations, maintenance, and programs at the Zoo. Except as specifically otherwise provided in this Agreement, MZS 1130mm 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 be the Chief Executive Officer of the Zoo and the Zoo Director will be the Chief Operating Officer. . 3.3. M25 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 MZS will not change the per person prices for admission to the Zoo, the free period, or the parking fees without the prior approval of MPC. 3.4. MPC shall designate one of the appointed commissioners of MPG to be the primary representative of MPG to M28 and the Zoo (the "Designated Representative"). The parties acknowledge that Peggy Seessel is presently the Designated Representative. The Designated Representative shall be an ex officio voting member of the Board of Directors and Executive Committee of MZS during the term of this Agreement, and shall have authority to represent MPC. Each of the Executive Director of MPC, the President of M23 (chief executive officer), and the Zoo Director (chief operating officer) shall be an ex officio voting member of the Board of Directors and Executive Committee of MZS during the term of this Agreement. 3.5. Whenever the consent or approval of a party is required under this Agreement, such consent or approval shall not be unreasonably withheld or delayed, unless otherwise specifically designated in this Agreement as being in such party's sole and absolute discretion. No additional approval shall be required from MPG, the City, and/or M28 as to any item already approved by such party as part of a budget, plan, or report. 3.6. All concessions at the Zoo shall be under the control of MZS, and all rents or other proceeds from such concessions shall be paid to MZS. MZS shall be entitled to operate any such concessions itself or by contract with independent concessionaires, as it deems advisable. Without limiting the foregoing, M25 is hereby authorized to represent the City and.MPC regarding their agreements with Midland Food Services, Inc. for food service at the Zoo, and with J.C. Levy as to the rides at the Zoo. 3.7. No contract made by MZS with a third party shall be binding on MPC unless either such contract provides that MPC may terminate such contract on sixty (60) days notice to such third party, at 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. 1130941: Page 2 of 14 Pages 4? Funding and Einances. 4.1. The City will pay to MZS, throughout the term of this Agreement and any'renewal or extension thereof, almanagement fee of One Hundred Thousand Dollars per month, beginning January 1, 1995. Said fee will be paid in the accounting and payment process under Section 9.3 below. 4.2. program.at the Zo All revenues generated by the Zoo, or by any event or c, or otherwise raised by or donated to MZS or the Zoo, shall be paid to MZS for use in the management, operation, and improvement of the Zoo and management and operation of MZS, including admissions, parking fees, concessions, rentals, special events, sales of goods, and. other such reVenues. Provided, however, that any donation made to the Zoo or MZS subject to a restriction imposed by the donor shall be used only in compliance with such restriction. 4.3. Attached hereto as Exhibit is the budget for the operation of the Zoo, approved by MPG and the City for the fiscal year ending June 30, 1995 (the "Zoo Budget"). Any item which is contained in the Zoo Budget, without regard to the amount of money for such item contained in the Zoo Budget or needed in the future, will be paid for or reimbursed by MES out of the revenues described in Sections 4.1 and 4.2 above and other revenues raised by MZS, to the extent such item is actually need by M28 in the operation of the Zoo. Such items paid for by the City shall be reimbursed by MZS within five (5) business days following MZS's receipt of a sufficiently detailed statement therefor. Provided, however, that 4.3.1. real and personal property ins operation of the Zoo and protection of all real and personal property owned by the Zoo, the City, MPG, and (to the extent property owned by M28 is used for the benefit of the City, MPC or the Zoo) MZS, including (but not limited to) the Real Property, the Equipment, animals, buildings, contents, furniture, fixtures and equipment. MZS will reimburse the City for the first Twelve Thousand Dollars in annual premiums for said insurance and the City will pay the balance of said premiums. The City will administer all such property insurance; any deductible will be paid pro rate by the City and MZS (based on relative value of insured property owned by each). Said property insurance will name the The City will provide M28 and the Zoo with all urance needed for the proper City, MPC, and M23 as the named insureds, as their respective interests may appear and shall cover standard and extended coverage hazards. properly rent 4.3.2. MZS shall pay all. sewer fees attributable to actual sewer usage at the Zoo for the cur period, up to a maximum of $75,000.00 per year; and 1130mm 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 provides to or for the Zoo, on a regular basis or from time to time, which are not included in the Zoo Budget. The City and/or MPC will continue to provide Non? Budget Items to the Zoo, as and when needed, at the sole cost and expense of the City and at no cost to MZS or the Zoo. Non?Budget Items include: 4.4.1. All premiums for property insurance in excess of the $12,000 premiums to be paid by MZS under Section 4.3.1 above; 4.4.2. Maintenance, repair, and replacement of the Real Property through the City's General Services; b?q? . . {we the City's General SerVices; 4.4.3. maintenance, repair, and replacement (If the vehicles and other Equipment, including gasoline and oil, through./ 4.4.4. Major maintenance of the Real Property, including all replacements and major repairs to the walls, floors, ceilings, roofs, infrastructure, paving, and structural parts of the Real Property, (ii) all replacements or major repairs to mechanical, plumbing, and electrical systems, 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 a,st budget attached hereto as Exhibit for fiscal years 1995 and Ear?? 1996 and in comparable amounts for future fiscal years if ?yw/ applicable; and {?%290 7 4.4.6. Tree maintenance as shown on the budget attached a hereto as Exhibit. for fiscal years 1995 and 1996 and. comparable amounts for future fiscal years if applicable. 4.5. MZS 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 Accountants then serving MZS, plus MZS'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 MZS for the use designated by the grantordesignated, then for such use in the Page 4 of 14 Pages operation and maintenance of the Zoo as MZS shall determine. This includes the $3,000,000 unpaid balance of the $5,000,000 grant 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 MES under this Agreement. 4.7. If MZS elects, from ?time 'to 'time, the City' will administer the casualty/liability insurance program for the benefit of the City, MPO, the Zoo and MZS, which insurance shall be for such adequate limits as the City may deem appropriate (and M25 shall have approved in advance) and shall protect, indemnify and defend the City, MPC, and M25, as their respective interests may appears MES will reimburse the City for the entire actual premiums and administrative costs for such insurance progrann in the amounts which the City shall notify M28 and which are approved in advance by MZS. In lieu of such liability insurance provided by the City, MZS may elect from time to time to obtain, at its sole cost and expense, a policy of public liability insurance for the Zoo, in such amounts as are normal and adequate for zoo operations of the size and scope of the Zoo (but not less than One Million Dollars ($1,000,000) per occurrence, combined single alimit). said liability policy, and all other policies of insurance provided for or contemplated by this Agreement, shall name the City, MPG, and M28 as the insureds or additional insureds, 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. 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. M28 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 wholry by M23, 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. 1130941: Page 5 of 14 Pages 5.4? The City does hereby grant to MZS, for the term of this Agreement and all extensions and renewal thereof, an exclusive and irrevocable license in and to the Intangible Property. MPC (or such other official of the City as is appropriate) is hereby authorized and directed to execute and deliVer to MZS such assignments, licenses, and other instruments and documents as needed to effectively grant said license in and to all of the Intangible Property to MZS. Subject to the restrictions in Section 3.7 above, M23 is authorized to grant such sub?1iCenses 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-term of this Agreement. 6. Capital Additions. 6.1. The City and M23 hereby agree and acknowledge that they have both approved the funding and construction of those additions to the Zoo described in Phases I through IIC, inclusive, of the approved Easter Plan (the "Approved Capital Additions"). Each of the Approved Capital Additions in accordance the ?capital improvement budget for the city of Memphis, approved by the Memphis City Council in June, 1993, for the fiscal years 1995 and 1996 (attached hereto as Exhibit 6.2. Not intending to bind either the City or MZS to pay for any part of future capital additions, both the City and M23 recognize and acknowledge the Zoo's need for additional capital additions and improvements, from and after the completion of the Approved Capital Additions,_to be funded in part by M25 and in part by the City. Such additional capital additions and improvements shall be subject to the approval of both the City and MZS, 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 MPG and MES. Such approval and construction for all such capital addition projects 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. M23 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 MPC, and so long as such work is done at the sole expense of M28 without any reimbursement by the name Page 6 of 14 Pages City. MZS may, but shall not be required to, have the work described in this Section 6.4 performed in accordance with normal City procedures and facilities for bidding, supervision, contract administration and the like. In any event, MZS will abide by the present policies and procedures of the city of_Memphis regarding the employment of minority contractors and suppliers. All capital additions, construction, fixtures, equipment arni other capital items, for or at the Zoo, heretofore or hereafter paid for in part or in whole by MZS, are the property of the City, which accepts ownership of and title to all such items. 7. Animal Collection and Animal Funds. 7.1. M23 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 with proper zoo management standards, including all requirements of the AZA, the United States Department of Agriculture, the United States Department of Interior, and other appropriate federal, state and international laws and regulations. 7.2. MES shall not take any material action with regard to the Animal Collection 'without the approval of the Designated Representative and the Executive Committee of M28. 7.3. MES will maintain the Animal Collection to at least the standards now maintained at the Zoo. The parties all acknowledge, 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 MZS 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 gross or willful negligence of M25. 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 Animal 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 Animal Funds by the donors thereof, as those restrictions may be 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 1130mm Page 7 of 14 Pages with complete financial reports on the status of the Animal Funds, including a statement ofa?j.payments to and from the.Animal Funds. 8. Parking and Access. 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 for cleaning, striping, light bulb changing, and other such 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 MZS to MPG at any time, and from time to time, subject to the approval of MPC, MPC will permit MZS to restrict the use of such access roads to visitors to the Zoo or to restrict any access road(s) to the Zoo to one way traffic. The City will not restore access from Overton Park Road to the Zoo?s access road without the prior permission of M25 . 8.4. M28 and the City agree to cooperate in the use and construction of roadways through, and into and out of, Overton Park, so as to maintain safe and efficient traffic patterns for the Zoo, other facilities in Overton Park, and the neighboring properties. 9. Employees. 9.1. The Zoo Budget presently includes the City's employee positions listed in Exhibit to this Agreement (the "Budgeted Employee Positions"). 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 MZS. There will be no employees of the City or MPC working at the Zoo on Zoo business except either the Budgeted Employee Positions or other positions with the prior approval of MZS. 9.2. All individuals employed at the Zoo in one of the Budgeted Employee Positions at December 31, 1994 (the "Existing Employees") will continue to be employed at the Zoo and will continue to be City employees, subject 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, 1995, without the prior consent of M25. The City will not increase the compensation or name 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. On the tenth (10th) day of each calendar month (or next business day, if a weekend or holiday), the City will furnish M23 with a detailed statement of its actual costs of compensation and benefits paid to or for each Budgeted Employee Position actually paid by the City during the prior month; said statement shall be furnished for each month during the term of this Agreement (and extensions and renewals thereof). Such statement shall not include any?administrative or overhead.charge for the City's administration of such payroll and shall otherwise be calculated in the same manner as in the Zoo Budget. The City shall furnish MZS with a detailed roster and accounting for each such statement. MZS may contest the accuracy of any such statement within fifteen (15) days following its receipt of such statement. 9.4. On or before the tenth (10th) day following receipt of all three statements under Section 9.3 above for a calendar quarter, MZS shall pay to the City an amount equal to the compensation and.benefits shown on statements, for the three months in such quarter, less (In) Three Hundred Thousand Dollars three months' management fee under Section 4.1 above. The time for obligation to pay any such amount shall be extended correspondingly if any statement under Section 9.3 above is received late. If such subtraction results in a negative number, then the City shall pay the amount of such negative number to MZS 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 position 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 Date. M28 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. name Page 9 of 14 Pages 10. Licenses, Laws. 10.1. MZS will manage the Zoo in compliance with all applicable laws and regulations regarding the loan, sale, movement, purchase, and exchange of animals and the operation of zoos. 10.2. MZS will maintain or renew all permits and licenses required for the operation of the Zoo throughout the term of this Agreement, which may be maintained in the name of the City and/or MZS, as appropriate under the circumstances. 10.3. MZS will use its best efforts to continue to operate the Zoo in a manner which will qualify for professionally accredited membership status in AZA. MZS will not discontinue the Zoo's membership in AZA without giving advance notice to MPG, stating in such notice the reasons for such discontinuance. ll. MZS Charitable Status. All funds raised by, or donated to, MZS, through special events or exhibits, sales of goods or services, memberships, advertising, sponsorships, private donations, or otherwise, shall be the sole and exclusive property of MZS, subject to any restrictions imposed on the use of such funds by the Charter and Bylaws of MZS and/or the terms of the donation. No such funds will be used in a manner which will cause MZS to lose its status as a charitable organization under Section 501(c)(3) of the Internal Revenue Code. MZS will engage in no activities which would cause MZS to lose its status as a charitable organization under Section 501(c)(3) of the Internal Revenue Code. 12. Miscellaneous. 12.1. No Waiver. No waiver of any term, condition, default, or breach of 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 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 this Agreement or in any document executed pursuant hereto shall operate as a waiver of such provision 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. Use of Certain Words. All words used herein shall be construed according to their proper gender and number, as the context shall require. Unless specifically designated otherwise, 113094A Page 10 of 14 Pages a reference to "including" shall mean "including, but not limited to." 12.3. 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 to be bound thereby. - 12.4. Parties Bound. All of the terms and.provisions of this Agreement shall be binding upon, shall inure to the benefit of, and be enforceable by? and against, the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns. 12.5. Assignment Limited. 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. Severability. If any provision of this Agreement is held to be unlawful, invalid, or unenforceable under any present or future laws, such provision shall be fully severable; and this Agreement shall then be construed and enforced as if such.unlawful, invalid, or unenforceable provision had not been a part hereof. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by such unlawful, invalid, or unenforceable provision or by its severance herefrom. Furthermore, in lieu of such 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. Notices. Any and all notices, requests, communications, or demands required or permitted to be given pursuant hereto shall be in writing, shall be delivered either in. person by electronic facsimile, (ii) by' an established overnight delivery service, such as Federal Express, 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: Monica Hagler, Esquire City Attorney name Page 11 of 14 Pages Memphis Park Commission: Memphis Park Commission 2599 Avery Avenue Memphis, Tennessee 38111 Attn: Bob Brame, Exec. Dir. Copy to: John Melmo, Chairman Copy to: Peggy Seessel Copy To: John Maxwell, Esquire Memphis Park.Commission Attorney Memphis Zoological Society: Memphis Zoological Society 2000 Galloway Memphis, Tennessee 38112 Attn: Roger T. Knox, President Copy to: James H. Prentiss, Chairman Copy To: James B. Jalenak, Esquire Memphis Zoological Society Atty or to such other address or addresses as any party may-designate to the others, by notice in 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 the business day following the date of deposit with such overnight delivery service; and notices given by mail shall be deemed to have been given three (3) days after the date of mailing. 12.8. Headings Not Part of Contract. The headings preceding each paragraph, and the Table of Contents (if any) are inserted merely as a matter of convenience and shall not be deemed to be a part of the contract terms. 12.9. Governing lawn This Agreement 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. 12.10. Exhibits. All of the Exhibits attached to this Agreement. are a jpart 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. Further Assurances. Each of the parties, at all times and fronl time to time hereafter, and upon reasonable 'written new? Page 12 of 14 Pages request to do so, shall make, do, execute, deliVer, or cause to be made, done, executed and delivered, all such further acts, deeds, instruments, assurances, and things as may be required for more effectually implementing and carrying out the true intent and meaning of this Agreement. IN WITNESS WHEREOF, the parties hereto_ have erecuted and delivered this Agreement, by their duly authorized officers, as of the day and year first above written. ATTEST: Law James B. Jalenak Secretary, Counsel APPROVED: Bob Brame Executive Director MEMPHIS APPROVED: 15/ {Mum John Maxwell, A torney MEMPHIS PARK ISSION 11309411 MEMPHIS ZQOLOGICAL SOCIETY . By Kiw?f Ro er T. Knox, esident By games H. Prentiss, Chairman ATTEST: MEMP PARK COMMISSION CIJY OE.MEMPHIS: Page 13 of 14 Pages Mayor ?ijxr 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 funds now held by the City for the purchase or other acquisition of animals, including the Zoo Animal Fund and the fund established by the Plough Foundation and known as the "Aquarium Fund.? 3. means the American Zoo and Aquarium Association and any successor organization replacing it and performing the same functions. 4. "City"-means the city of Memphis, Tennessee, a municipal corporation, 5. "Equipment" means all items of furniture, furnishings, equipment, vehicles, machinery, tools, fixtures (whether or not attached to the .Real Property), supplies, and. other' tangible personal property, now or hereafter owned or leased by the City and used in the operation and maintenance of the Zoo, 6. "Force theure" means one or more of: weather or other acts of God; fire or other casualty; war; civil commotion or riots; strikes, labor disturbances, picketing, 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 imposition of an economically prohibitive tax, duty, fee, or 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 Inn: to compete, goodwill, and other intangible property owned by the City in connection with the Zoo and all of the City'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. means Memphis Zoo, Inc., a Tennessee not-for-profit corporation, d/b/a Memphis Zoological Society. nghibit Page 1 of 2 Pages try-ea . 1., .. I 10. "Person" means any individual, firm, corporation, association, trust, partnership, jelnt venture, governmental agency, or other entity. 11. "Real Property" means the land described in the Master Plan for the Zoo and all buildings, exhibits, structures, walks, drives, parking? areas, pavingy meats, 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 properties which are used as a part of the Zoo, but which may be held in the name of MPG or any other division of the City, are deemed to be owned by the City and a part of the Zoo. Exhibit Page 2 of 2 Pages '5 Parks Zoo FY 1994 FY 1993 Revised FY 1995 Description Actual Budget Proposed Full Time Salaries 1.508.782 1.733.976 1.612.889 Holiday 29.767 69.356 100.1 15 Overtime 49.738 26.780 27.500 Out 01 Rank 710 1.468 1.375 Hazardous Duty 83 685 642 Shift Differential 628 562 527 Retirement 14.129 I 0 0 Pension 178.262 197.130 184.628 Social Security 27.500 38.058 35.417 Blue 78.201 105.562 114.451 Group Life 5.873 5.263 4.931 Unemployment L?Ampensation 3.465 3.600 3.600 Prucare 3.769 5.245 0 Long Term Disability 6.975 9.017 8.387 Salary increase 0 0 29.645 Payroll Reserve 5.525 6.730 5.928 Pan-?mefremporary 84.411 73.046 - 75.760 Totai Personnel 1.997.618 2.276.480 2.205.795 City Hall Printing 3.214 5.000 5.200 City Hall Postage 0 433 433 Document Reproduction 2.086 2.305 2.305 City Stateroom Supplies 13.260 13.000 13.520 IS ComputerIOl?ce Machine Charges 3.531 6.156 8.000 Centre: 17.213 26.988 27.600 City Shop - Fuels 0 1.500 1.600 Outside Printing 5.391 6.000 5.300 Outside Supplies 3.290 5.000 5.500 Food Expense 185.467 234.000 243.000 Hand Tools 60 0 0 Clothing 8.692 10.175 10.105 Household Supplies 789 4.000 4.000 Safety Supplies 0 500 550 Drafting a. Photo Supplies 139 300 100 Medical Supplies 23.944 23.000 23.000 Athletic/Recreation Supplies 81 0 0 Outside Postage 1.911 ED 1.000 Lime. Cement. a. Gravel 8.760 10.600 10.965 Chemicals 9.647 10.500 30.870 Misc Operating Supplies 65.652 60.000 62.500 Outside Equipment Repair 1.018 1.188 3.600 MedlDentaWei Services 6.439 7.600 8.000 Tphonefl?grapn/Cornrn 11 .787 0 0 Security Services 130.329 130.000 132.950 Misc Professional Services 144.088 163.000 15.100 Travel 0 2.100 2.100 I I 2 FY 1994 FY 1993 Revised FY 1995 Deseription Actual Budget Proposed Auto Allowance 664 900 920 Other Transportation 6.924 14.000 12.300 Utilities not incl water) 213.981 230.000 234.000 Sewer Fees 0 226.000 312.000 Insurance 0 12.000 12.000 Dues/MembershipsiPeriodicals 9.660 9.100 9.150 Misc Services Charges 2.442 0.000 6.204 Claims 0 0 5.000 0.11 27.837 10.000 25.000 Total Supplies/Sewices 91 5 .496 1.233.795 1 .236.372 Equipment 0 16.000 16.570 Totai Capital 0 16.000 16.570 Gross Expenditures 2.913.314 3.526.275 3.458.737 Expense Recovery - Pars 0 900 900 Expense Recovery - M53 11.906 12.000 12.515 Total Expense Recovery 11.906 12.900 13.415 Total Expenditures 2.901 .406 3.513.375 3.445.322 Admission Fee 1.662.765 1.990.169 1.926.354 Commissioned Hides 34.490 43.400 76.085 Parking 20.746 17.000 13.000 Concessions 311.403 194.500 242.574 Total Revenue 2.049.436 2.245.069 2.260.013 Net City Expenditures 851.970 1.268.306 1.165.309 XHIBIT 2/ 2 Ju1y1. 1954 - June 30. ions 6:0? PARKS PROJECT NUMEER 157511 335:7 TETLE :00 MAJOR MAINTENANCE NUMBER 13 535 ONE. NEW PROJECT ans-me. FUNDS TO DATE EXISTING PROJECT 6.0. BONDS 0 OTHER 0 ulVE STATUS. SESCRIFTECN AND JUSTIFECATION OF THIS REQUEST. tiara tn the 200. In order as In camutianca with bu?ding and_haam'. cane: and arorac: mane: mam: rancvauona to various axmmg pudding: and facali Cage. ma Bear Moat. the aim Hausa. ma ?eputa Hausa. me new page am: the 1A renutremams. mczuuaa In mm ranOvancn DB repairs to ma Hippo anum. 5-: THIS ON OPERATING BUDGET. 1.1a] LOCAL .D. STATE LOCAL OTHER BONDS GRANTS GRANTS SHARED OTHER TOTAL 5 327.134 0 127327.184 0 a 0 327.134 LAND LAND 0TH ER ARCHITECT URE ACQUISITION DEVELOPMENT COST COST TOTAL 5 29.744 0 0 297.440 0 327.134 329.7? a a 297-40 2 3:7 23:. EXH I I I. v: i. - . 31:21.9. PROJECT NUMBER 157510 - . JECT TITLE aw? PRIORITY NUMBER 2 45.324 sna- New PROJECT IF EXISTING. FUNDS APPROP. TO DATE EXISTING PROJECT (3.0. BONDS OTHER GIVE STATUS. ?mala World and Restaurant unasr 3 1 3.4 AND .USTIFICATION OF THIS 'u ?3 ?We? m? cm? 0* "19 Childw?'l Village whim 3 Datum; zoo. a tram. am: an Inlatnretall?? center Also masses: are a tram an: aractwa 3557 OF THIS REQUEST SN OPERATING BUDGET. REVENUE 1300 GD. FEDERAL STATE LOCAL SSAL YEAR BONDS GRANTS GRANTS SHARED OTHER WITH. 95 a LUOUCOU Lcca.: 96 168.730 1,000,000 0 1 163 733 ENGINEEINGI LAND LAND sawsmucrzon OTHER ECALYEAH Ancanzzrune DEVELOPMENT :3 c: 1 TOTAL ;5 a a 1.c=c can 96 0 153.730 155.730 :'53 ?55'23 EXHIBIT C-2 YEAR 1995 80880151 PARK 0088135108 200: 1552 couanasnr DETAIL (18801112801 aunazn SOCIAL RAD JCC POSITIOH AUTHVACAH SALARIES ansxuu szcunxr BLUE 8 PRUCAREGROUP LEBDICAR - - - - - - 105,069 0 1,931 13,291 800522 DIRECTOR-200 155211 807288 8088818-81888 810122 808-2002182886 890 861302 CASHIER-888088 812082 SUPER-805188851200 812200 01888-088/8 819280 CLERK-100828018 819280 CLERK-100828018 821288 88088218228 800592 982-200 155221 826398 982 HBDICAL 2808 803222 0081208-80001200 15 803022 0088208-200 155211 803312 0081208*1821200 861128 200 888088 2 803022 0081208-200 155251 1 67,959 9,039 803382 0088208-858/200 25,118 3,311 0 12,600 5,666 0 62.358 8,291 0 32,931 1,380 0 20,039 2,665 0 28,027 3,728 0 23,169 3,121 0 19,260 2,628 0 16,852 6,231 1 17,811 6,363 0 30,572 1,066 0 39,103 5,201 0 28,109 3,728 1 198,387 66,285 0 35,150 1,715 25,930 3,119 195,025 25,938 39,103 5.201 26,967 3,587 130,018 17,292 31,611 1,608 22,787 3,031 21,539 3,261 21,669 1,658 20,786 1,590 21,669 1,658 81.111 6.228 11,572 A 3,180 20,315 1,556 39,807 3,015 21,228 1,621 861128 200'888888 803022 0088208-200 155261 803382 0082208-8532200 861118 200 888888 807122 8088888-200 08805 8088888 80822008308 8552. 0088208 861100 088008188 861380 18008 081988 861188 0888-8800 861108 0888088808 861320 28008 081988 861108 0888888508 861500 005200188 0088-800198882 851388 5888088 08881208 1 76 5 AHHUAL 101,279,273 196,830 22,900 105,069 0 1,931 13,291 EXHIBIT REHAINING ITEMS FROM FISCAL YEAR 1995 CAPITAL OUTLAY BUDGET DIVISION ITEM USEFUL UNIT TOTAL PRIORITY CLASS ITEM LIFE QUAN. COST COST REPLACE 200 Pediatric Scale 7 1 1.500 1,500 155211 Electronic Scale 5 1 2.000 2.000 1/2 Ton Pickup '7 1 12.000 12,000 Egg Incubaors 8 3 2,500 7.500 Egg Incqu 8 1 4.000 4.000 Auger for Bob Cat 8 1 1,570 1.570 U2 Ton Pickup ?7 1 13.000 13,000 szamscope 5 1 8.000 44.570 49.570 EXHIBIT E?l FY 1996 CAPITAL DETAIL LIST CAPITAL OUTLAY BUDGET DIVISION ITEM USEFUL UNIT TOTAL PRIORITY CLASS ITEM LIFE QUAN. COST COST ZOO Cash Register: 3 4 2,000 8,000 155211 Blood Pressure Monitor 5 1 3,200 3,200 Surgical Cabinet Unit 10 1 5,000 5,000 1/2 Ton Pick?up truck 7 2 17,000 34,000 Carpet/bird house 10 1 4,000 4,000 Air purifiers 5 4 1,300 5,200 Slide doors eleph.house 15 2 6,000 12,000 Sea lion pump/filter 10 1 6,500 6,500 Bush hog 7 1 3,500 .3,500 Passenger van 7 1 21,000 21,000 Stake-bed truck 7 1 20,000 20,000 Fork-lift 10 1 27,500 27,500 Cat crate 10 2 4,000 8,000 Dump-bed trailer 10 1 5,000 5,000 Pre-fab building 15 1 20,000 20,000 Trailer w/loading ramp 7 1 1,300 1,300 Total 147,300 184,200 EXHIBIT