ELECTRONICALLY FILED 2016 Jan 29 PM 2:51 CLERK OF COURT - CHANCERY I N THE CHANCERY COURT OF TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS, SHELBY COUNTY MEMPHIS ZOOLOGICAL SOCIETY a/k/a MEMPHIS ZOO, INC., Plaintiff, Case No.: CH-16-0096 Part Ill v. OVERTON PARK CONSERVANCY, the CITY OF MEMPHIS, and the MEMPHIS CITY COUNCIL; Defendants. AMENDED COMPLAINT FOR DECLARATORY JUDGMENT To the Chancellors of the Chancery Court of the Thirtieth Judicial District: COMES NOW, Plaintiff Memphis Zoological Society a/k/a Memphis Zoo, Inc. (hereinafter referred to as the "Plaintiff" or "MZS"), by and through undersigned counsel of record, and files this Amended Complaint for Declaratory Judgment pursuant to T.C.A. § 29-14-101, et seq., against Overton Park Conservancy (hereinafter referred to as the "OPC"), the City of Memphis, and the Memphis City Council (hereinafter collectively referred to as the "Defendants"), and for cause of action against the Defendants states as follows: I. INTRODUCTION This lawsuit is being filed to seek a judicial declaration as to MZS's contractual rights under the Zoo Management Agreement to operate and manage that portion of the Master Plan of the Memphis Zoo known as the Greensward immediately south of its paved parking lots. In the absence of the requested judicial relief, MZS's right to the peaceful enjoyment of its management contract with the City of Memphis is in jeopardy. For over two (2) decades, MZS has had the exclusive right to operate and manage the portion of the Greensward at issue. MZS has enjoyed this exclusive right for many years including in 1994 when the City of Memphis and MZS executed the Zoo Management Agreement, which defines the area managed by MZS by reference to the area contained in the Master Plan of the Memphis Zoo. The Master Plan clearly encompassed the portion of the Greensward at issue in this litigation. In 2012, the City entered into a management agreement with Overton Park Conservancy (OPC) in which it conveyed to OPC the right to manage and operate a portion of Overton Park that was described in an exhibit attached to the agreement, but which specifically excludes the Memphis Zoo and other buildings and areas, which were controlled by other management agreements or City management. Now, OPC asserts that its 2012 agreement with the City of Memphis somehow provided it with the right to control that portion of the real property encompassed in the Master Plan of the Memphis Zoo. This assertion by OPC has resulted in several conflicts and infringement on MZS's right to the peaceful enjoyment of its contract with the City of Memphis. For example, OPC admits in its January 13, 2016 electronically published statement that it planted dozens of trees on the portion of the Greensward operated and managed by MZS. The trees planted by OPC interfered with MZS's management and operational duties contractually provided to it under the Zoo Management Agreement and, as a result, had to be removed by MZS. Also, persons supporting OPC have 2 physically interfered with MZS's management and operational duties on the portion of the Greensward at issue. In addition, upon information and belief, persons supporting OPC defaced a large area of grass on the Greensward in full view of the families visiting the Memphis Zoo so that it read "F*ck the Zoo." MZS requests that this Court vindicate its right to the peaceful enjoyment of its contract with the City of Memphis by declaring the rights and obligations of the parties. IL 1. PARTIES Plaintiff Memphis Zoological Society is a non-profit corporation formed in Tennessee with its principal place of business located at 2000 Prentiss Place, Memphis, Tennessee 38112-5033. At all times relevant hereto, Memphis Zoological Society is also known as Memphis Zoo, Inc. 2. At all times relevant hereto, MZS operates and manages the Memphis Zoo, which includes the buildings, structures, walks, drives, paving, moats, large trees, and other improvements, adjacent paved parking areas, and a portion of the Greensward, all of which is encompassed by the Master Plan of the Memphis Zoo. 3. Defendant Overton Park Conservancy is a non-profit corporation formed in Tennessee with its principal place of business located at 1914 Poplar Avenue, Apt 202, Memphis, Tennessee 38104-7626. Overton Park Conservancy's registered agent for service of process is Tina Sullivan located at located at 1914 Poplar Avenue, Apt 202, Memphis, Tennessee 38104-7626. 3 4. At all times relevant hereto, Overton Park Conservancy is a party to a contract with the City of Memphis that permits it to manage and operate certain portions of the Overton Park. 5. Defendant City of Memphis is a Tennessee municipality and may be served with process by serving City Attorney Bruce McMullen at 125 North Main Strcot, Room 336, Memphis, Tennessee 38103. 6. Defendant Memphis City Council is the legislative body of the City of Memphis and is comprised of councilmen and councilwomen duly elected by the citizens of the City of Memphis. Defendant Memphis City Council may be served with process by serving City Attorney Bruce McMullen at 125 North Main Street, Room 336, Memphis, Tennessee 38103. III. 7. JURISDICTION AND VENUE The jurisdiction of this Court is invoked pursuant to T.C.A. § 29-14-102 and T.C.A. § 16-11-101 et seq. in the exercise of its inherent general jurisdiction. 8. Venue in this Court is appropriate because the claims described herein concern a contract entered into within Shelby County, Tennessee, and the events described herein occurred within Shelby County, Tennessee. IV. FACTS GERMANE TO THE RELIEF SOUGHT Overton Park and the Greensward 9. Overton Park is a 342-acre public park located in Memphis, Tennessee. 10. The City of Memphis is the owner of the real property known as Overton Park. 4 11. Overton Park presently contains a nine-hole golf course, the Memphis Brooks Museum of Art, the Memphis Zoo, the Memphis College of Art, the Levitt Shell, Rainbow Lake, Veterans Plaza, the Greensward, two playgrounds, Overton Bark Dog Park and the 126-acre Old Forest State Natural Area. 12. The Greensward is an open grassy area located in Overton Park. 13. The Greensward is located adjacent to the paved parking lots of the Memphis Zoo. The Memphis Zoo 14. The Memphis Zoo is a zoo located in Memphis, Tennessee, and one of Memphis's highest attended attractions with over one (1) million visitors each year. 15. In 1906, the Memphis Zoo was established under the control of the Memphis Park Commission. 16. In February 1986, a Master Plan of the Memphis Zoo and Aquarium was created by Design Consortium, Ltd. for the City of Memphis, and updated as to Phase I by revisions dated June 1989 (hereinafter referred to as the "Master Plan"). 17. The Master Plan included the buildings, structures, walks, drives, paving, moats, large trees, and other improvements of the Memphis Zoo, as well as adjacent paved parking areas, and a portion of the Greensward south of and adjacent to the paved parking area. 18. A true and correct copy of the Master Plan is attached hereto as Exhibit A. 19. The portion of the Greensward encompassed in the Master Plan is referred to herein as the "Zoo Greensward." 20. The Master Plan was adopted by the City of Memphis and the Memphis City Council, 21. On September 20, 1989, the City of Memphis entered into an agreement with Memphis Zoo, Inc. for the expansion, improvement, maintenance and operation of the Memphis Zoo pursuant to the Master Plan. 22. Pursuant to the Master Plan, the Memphis Zoo solicited and received major financial donations from philanthropic citizens and organizations resulting in substantial capital improvements to the Memphis Zoo. 23. On November 30, 1994, the City of Memphis entered into a management agreement titled "Zoo Management Agreement" with MZS (hereinafter referred to as the "Zoo Management Agreement"). 24. A true and correct copy of the Zoo Management Agreement is attached hereto as Exhibit B. 25. In the Zoo Management Agreement, the City of Memphis appointed MZS as sole manager of the Memphis Zoo, including all operations, maintenance, and programs at the Memphis Zoo. 26. The Zoo Management Agreement explicitly replaced the agreement between the City of Memphis and Memphis Zoo, Inc. dated September 20, 1989. 27. Pursuant to the Zoo Management Agreement, the City of Memphis granted and conveyed to MZS license to use the land described in the Master Plan d uring the term of the Zoo Management Agreement for Zoo purposes only. 6 28, The Zoo Management Agreement provides, in part, that [n]o party may assign or delegate its right or duties under this Agreement without the prior written consent of the other parties in each instance." 29. The Zoo Management Agreement has been in full force and effect from November 30, 1994 to the date of the filing of this Complaint. Overton Park Conservancy 30. On January 13, 2012, the City of Memphis entered into an agreement with Overton Park Conservancy for the management, operation, maintenance, preservation, protection and development of a portion of Overton Park (hereinafter referred to as the "Overton Park Management Agreement"). 31. A true and correct copy of the Overton Park Management Agreement is attached hereto as Exhibit C. 32. As set forth in the Overton Park Management Agreement, the City of Memphis appointed OPC as the manager of the portion of Overton Park purportedly described by metes and bounds in Exhibit C of the Overton Park Management Agreement, but specifically excluded from OPC's operation and management the Memphis Zoo, the Brooks Art Museum, the Memphis College of Art, the Levitt Shell, the Overton Park Golf Course, the 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. 7 33. The portion of Overton Park to be managed by OPC, which specifically excludes the Memphis Zoo and other specified areas, is referred to as the "Managed Area" in the Overton Park Management Agreement. 34. Exhibit C of the Overton Park Management Agreement does not describe the area to be managed by OPC by metes and bounds. 35. Exhibit C of the Overton Park Management Agreement describes the area to be managed by OPC by outlining the area with a red line, and excluding from the area to be managed by OPC any areas outlined with dashed yellow lines. 36. The Overton Park Management Agreement provides, in part, that "[t]he OPC will have the sole authority to determine what activities, events, program and concessions, 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." 37. The Overton Park Management Agreement was approved by the City of Memphis. 38. The Resolution of the Memphis City Council approving the Overton Park Management Agreement specifically excluded from OPC's management "all areas of the park not contracted to others...." 39. A true and correct copy of the Resolution referenced in the preceding paragraph is attached hereto as Exhibit D. 8 OPC's Management Agreement with the City Does Not Convey to It Any Right to Operate and Manage Any Area under Management and Control of MZS 40. The Zoo Management Agreement was in full force and effect on January 13, 2012. 41. Pursuant to the Overton Park Management Agreement, the Zoo Greensward was specifically excluded from the area to be operated and managed by OPC. 42. Since the Zoo Management Agreement encompassed the Zoo Greensward, the Overton Park Management Agreement excluded the Zoo Greensward when it excluded the Memphis Zoo from OPC operation and management. 43. Even if Exhibit C of the Overton Park Management Agreement is interpreted to encompass the Zoo Greensward, Exhibit C is internally inconsistent with the definition of "Managed Area" as that term is defined in the Overton Park Management Agreement where the Memphis Zoo is excluded from OPC operation and management. 44. Since the Zoo Management Agreement places the area in the Master Plan under the operation and management of MZS, the City of Memphis could not lawfully assign the operation and management of the Zoo Greensward to OPC in the Overton Park Management Agreement. Parking on the Zoo Greensward 45. On occasion, the parking lots of the Memphis Zoo are inadequate to accommodate the parking needs of the patrons of the Memphis Zoo. 9 46. When parking lots at the Memphis Zoo are inadequate to accommodate the parking needs of the patrons of the Memphis Zoo, MZS permits its patrons to park within established boundaries on the Zoo Greensward. 47. MZS's access to the Zoo Greensward for overflow parking is necessary to its effective and efficient operation and management of the Memphis Zoo. 48. OPC asserts that the use of the Zoo Greensward for parking by patrons of the Memphis Zoo is an unlawful infringement on the management authority granted to it pursuant to the Overton Park Management Agreement. Placement of Trees on Greensward 49. OPC impermissibly planted over one hundred (100) trees on the Zoo Greensward. 50. The trees planted by OPC interfered with MZS's peaceful enjoyment of its management contract with the City of Memphis. 51. In January 2016, MZS removed twenty seven (27) of the trees unlawfully planted on the Zoo Greensward by OPC. Defacement of Greensward 52. In 2015, unknown individuals defaced a large area of grass on the Zoo Greensward so that it read "F*ck the Zoo." This message was visible to the families visiting the Memphis Zoo. 53. A true and correct photograph depicting the defacement of the Zoo Greensward is attached hereto as Exhibit E. 10 V. 54. REQUEST FOR DECLARATORY JUDGMENT MZS repeats, re-alleges, and incorporates herein each of the preceding paragraphs as if fully set forth herein. 55. MZS has a legal and contractual interest in the Zoo Greensward. 56. MZS's legal and contractual interest in the Zoo Greensward is being impaired by OPC's claim that it has a right to operate and manage the Zoo Greensward. 57. Pursuant to T.C.A. § 29-14-101, et seq., MZS seeks a judgment declaring that the portion of the Greensward encompassed in the Master Plan is under the exclusive operation and management of MZS pursuant to the Zoo Management Agreement. WHEREFORE, PREMISES CONSIDERED, Plaintiff Memphis Zoological Society a/k/a Memphis Zoo, Inc. hereby respectfully requests the following: A. That an Order be entered declaring and decreeing that the portion of the Greensward encompassed in the Master Plan is under the exclusive operation and management of MZS pursuant to the Zoo Management Agreement. B. Grant such other relief, general or specific, that this Court deems equitable and just. 11 Respectfully submitted, THE SPENCE LAW FIRM By: rt L. J. Spence, Jr BPR #12256) . MeredithX R #26876) One Cornmeroe-Square, Suite 2200 Memphis, TN 38103 (901) 312-9160 (901) 521-9550 Facsimile rspence@spence-lawfirm.com b meredith@spence-lavvfirm.corn CERTIFICATE OF SERVICE I hereby certify that I have this 29th day of January, 2016, caused to be placed in the United States Mail, postage prepaid, or via hand delivery, a true and correct copy of the foregoing to: Bruce McMullen 125 North Main Street Room 336 Memphis, Tennessee 38103 Charles F. Newman 1 30 North Court Avenue Memphis, Tennessee 38103 Allan J. Wade One Commerce Square Suite 2275 Memphis, Tennessee 38103 -77 12