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1 ORDINANCE NO. 18_p 317
2
3 AN ORDINANCE TO DISPENSE WITH COMPETITIVE
4 BIDDING AND TO AUTHORIZE THE CITY MANAGER TO
5 ENTER INTO AN AGREEMENT WITH THE LITTLE ROCK
6 CWffAN CLUB AND LLOYD CHOATE FOR THE OPERATION
7 OF THE ZOO TRAIN; TO DECLARE AN EMERGENCY; AND
8 FOR OTHER PURPOSES.
V
to WHEREAS, during the 1950's, the Little Rock Civitan Club ( "Civitan ") acquired and
11 arranged for the installation of a narrow gauge miniature train amusement ride, with tracks
12 and accompanying equipment, to be operated at the Little Rock Zoo to transport Zoo visitors
13 within the Little Rock Zoo ( "the Zoo Train "); and
14 WHEREAS, for over twenty years, Lloyd Choate has operated and maintained the
15 Zoo Train; and
16 WHEREAS, an informal agreement was reached between the City, Mr. Choate and
17 Civitan whereby Civitan received from Mr. Choate fifteen percent (15 1/6) of the gross
18 revenues derived from the Zoo Train ticket sales; and
19 WHEREAS, Civitan agreed to donate these funds for Little Rock Zoo projects
20 approved by the City's Board of Directors with Mr. Choate retaining, as compensation for
21 operating and maintaining the Zoo Train, eighty-five percent (85 %) of all gross revenues
22 derived from the operation of the Zoo Train; and
23 WHEREAS, Mr. Choate desires to continue to operate the Zoo Train within the
24 Little Rock Zoo; and
25 WHEREAS, Civitan has agreed that an amount equal to the funds it receives
26 under the Zoo Train Contract shall be used by the City for approved Little Rock Zoo
27 projects or Little Rock Zoo operations as specified by the City; and
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1 WHEREAS, the City of Little Rock may dispense with the requirement of
2 competitive bidding in exceptional situations where such procedure is not feasible and
3 impractical; and
4 WHEREAS, the unique and historic nature of this arrangement between
5 Civitan, Mr. Choate and the City for the operation of the Zoo Train makes it
6 impractical and unfeasible to competitively bid the contract for the operation of the Zoo
7 Train; and
8 NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF
9 DIRECTORS OF THE CITY OF LITTLE ROCK, ARKANSAS:
to SECTION 1. The City Manager is authorized to enter into an agreement with
11 the Little Rock Civitan Club and Lloyd Choate for the operation and maintenance of the
12 Zoo Train in substantially the same form as they set forth in Exhibit A to this
13 Ordinance.
14 SECTION 2. Due to the historic and unique nature of the arrangement
15 between Civitan, Mr. Choate and the City for the operation and maintenance of the
16 Zoo Train, including but not limited to the fact that Civitan donated the Zoo Train and
17 has agreed to donate fifteen percent (15%) of the gross revenues from its operation to
1$ projects or operations of the Zoo, as specified by the City, the Board of Directors finds
19 that it is impractical and unfeasible to submit this agreement to competitive bidding.
20 SECTION 3. Severabih y. In the event any section, subsection, subdivision,
21 paragraph, subparagraph, item, sentence, clause, phrase, or word of this ordinance is
22 declared or adjudged to be invalid or unconstitutional, such declaration or adjudication
23 shall not affect the remaining portions of this ordinance which shall remain in full force
24 and effect as if the portion so declared or adjudged invalid or unconstitutional was not
25 originally a part of this ordinance.
26 SECTION 4, Emergency. It is hereby found and determined by the Board of
27 Directors of the City of Little Rock that time is of the essence to enter into this
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I agreement and to assure the uninterrupted services required under this contract, and that
2 this contract is an essential part of the attraction of visitors to the Little Rock Zoo, so
3 the maintenance of this agreement is essential to preserve the public health, safety, and
4 welfare; an emergency is, therefore, declared to exist, and this ordinance shall be in full
s force and effect from and after the date of its passage.
6 PASSED: July 18, 2000 f
7 ATTEST: APPROVED-
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4
10 Nan4 W , City Clerk )i ailey, Mayor
11
12 APPROVER AS TO LEGAL. FORM:
13
16 AA •
is Thomas M. Carpenter, City Wttorney
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18 //
19 //
20 /!
21
22 #
23
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25 /!
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• CONTRACT ® p^ 9 j
The City of Little Rock, Arkansas (the "City "), a municipal corporation organized
pursuant to the laws of the state of Arkansas, the Little Rock Civitan Club ( "Civitan"), a not for
profit organization organized under the laws of the state of Arkansas, and Lloyd Choate
( "Choate ") enter into this Agreement this day of
WITNESSETH:
2000.
WHEREAS, during the 1950`s, Civitan acquired and arranged for the installation of a
narrow gauge miniature train amusement ride, with Tracks and accompanying equipment, (the
"Zoo Train') to be operated at the Little Rock Zoo to transport Zoo visitors within the Little Rock
Zoo; and
WHEREAS, an informal agreement was reached between the City, Choate and Civitan
whereby Civitan received fifteen percent (15 %) of the gross revenues derived from the Zoo Train
ticket sales; and
WHEREAS, Civitan agreed to hold these funds for Little Rock Zoo projects approved by
the City's Board of Directors; and
WHEREAS, on August 21, 1997, the City and Civitan entered into a pledge agreement
whereby Civitan provided $100,000.00 to be used for the construction of an amphitheater on the
grounds of the Little Rock Zoo derived from its share of ticket sales from Zoo Train revenues; and
WHEREAS, Choate desires to operate the Zoo Train within the Little Rock Zoo; and
WHEREAS, the City desires to enter into a Contract with Civitan and Choate for the
operation of the Zoo Train within the Little Rock Zoo.
NOW, THEREFORE, for and in consideration of the mutual covenants, obligations and
promises enumerated herein, the parties herebv agree as follows:
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Section 1.01. Term I Renewal Option.
(1) The term of this Contract shall commence on the date indicated on page one (1) of
the Contract and shall terminate two (2) years thereafter, with a two -year renewal option on the
same terms and conditions as stated in this Contract; provided, however, that the parties reserve
the right to renegotiate the consideration terms of the Contract stated in Section 1.02 of this Article
1. This renewal option shall be automatic unless the City, in writing, no later than ninety (90)
days in advance of the expiration of the primary Contract term, notifies the parties of its intention
not to renew the Contract.
(2) This Article 1 is subject to the breach and termination provisions stated in this
Contract. More specifically, failure by Choate or Civitan to falfrll their obligations under this
Contract is a breach and grounds for termination of the Contract as to all parties by the City.
Section 1.02. Consideration.
(1) For and in consideration of the covenants set forth below, Choate agrees to pay
to Civitan fifteen percent (15 %) of all gross revenues derived from the operation of the Zoo Train.
Choate shall remit to Civitan this fifteen percent (15 %) of all gross revenues collected during the
immediately preceding month by the fifteenth (15th) of every month. Choate may retain eighty -
five percent (85 %) of all gross revenues derived from the operation of the Zoo Train.
(2) As additional consideration, Civitan agrees that an amount equal to the funds it
receives under this Contract shall be donated to the City to be used for Zoo projects or Little Rock
Zoo operations as specified by the City.
(3) "Gross revenues" shall be defined as the amounts of money actually received by
Choate from ticket sales and any other source related to the operation of the Zoo Train, less and
except any City and State sales taxes payable on the said receipts. In the event that the operation of
the Zoo Train is determined to be free from an obligation to pay any City or State sales tax, then
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gross revenues shall be d> med as the amounts of money actuo received by Choate from ticket M
sales and any other source related to the operation of the Zoo Train. Gross revenues shall not include
monies received by Choate for reimbursement for any property damage caused to the Zoo Train,
the Tracks, or any related accessory equipment, whether said payments are made by an insurance
company or by any other source.
ARTICLE 2 SERVICES TO BE PROVIDED
Section 2.01. Services to be provided by Choate.
(1) Choate agrees to operate the Zoo Train to transport Little Rock Zoo visitors in and
around the Little Rock Zoo in a safe manner. Choate further agrees to operate the Zoo Train during
the hours the Little Rock Zoo is open to the public, or during such other hours agreeable to the
City and Choate. Choate shall not operate the Zoo Train in inclement weather that poses a danger
to persons riding the Zoo Train. While Choate has general discretion to determine if inclement
weather poses a danger to those riding the train, the City has the ultimate authority to demand that
Choate cease operations during what the City believes is inclement weather that poses a danger to
the Zoo Train riders.
(2) Choate agrees to maintain, at his sole cost and expense, all Zoo Train cars, engines,
and Tracks in good working order and condition. "Track" shall be defined as the metal rails, wooden
railroad ties, and any pins, nails, or bolts connecting the metal rails to the ground, whether or not in
existence or which may result from the extension, repair, improvement or reconstruction of such
Tracks, and any new Tracks, either in combination with the existing Tracks or at one or more
locations within or near the Little Rock Zoo.
(3) Choate shall be responsible, at his sole cost and expense, for laying any new Track
required for the relocation of the Zoo Train for any reason whatsoever. All Zoo Train relocation -
related work done by Choate shall be acceptable to the City. The City has the final determination as
to where the Track is located within the Zoo.
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(4) The parties recognize that there may be future donations made to the Zoo from
donors who desire to have their particular name or logo placed on the Zoo Train. Therefore, the
parties agree to work to accommodate those requests.
Section 2.02. Services to be provided by the City_ ~J
(1) The City shall provide, at its cost and expense, a shed/ticket station for Choate's
purpose of operating the Zoo Train and for the storage of the Zoo Train. This shed/ticket station
shall at all times remain the property of the City. In the event that this shed/ticket station is destroyed
or demolished by the City for the purpose of building a new shed/ticket station, Choate shall pay
one half (' /z) of the cost of building the new shed/ticket station.
(2) The City shall maintain all landscape and groundwork around the Zoo Train Track.
However, in the event of relocation of the Zoo Train for any reason whatsoever, the City shall
provide, at its cost and expense, all dirt work and gravel and Choate shall be responsible, at his sole
cost and expense, for properly setting the railroad ties and installing the Track. All Zoo Train
relocation - related work done by Choate shall be acceptable to the City.
(3) The City shall have the right to determine ticket sales and collection procedures and
to oversee such ticket sales and the collection of money regarding the Zoo Train.
Section 2.03. Services to be provided by Civitan.
(1) Civitan agrees to supply to the City's designated fiscal agent quarterly reports of
monies received from Choate under this Contract.
(2) Upon request of the City, Civitan shall immediately provide to the City an amount
equal to the amount Civitan has received from Choate for operation of the Zoo Train. Said
amount shall be used by the Little Rock Zoo as specified in this Contract.
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ARTICLE 3 REPORTING REOAMENTS
Section 3.01. Financial Rgportin2 Requirements.
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(1) Quarterly, Choate agrees to supply documentation for payment of monies to
Civitan as required under this Contract to the City's designated fiscal agent, the Zoo Department.
(2) In addition to any quarterly report required in subsection (1), Civitan shall
immediately provide to the City an accounting of the sums Civitan has received from Choate for
operation of the Zoo Train. This accounting shall include any existent documentation requested by
the City. Further, Civitan shall provide within a reasonable time, not to exceed ten (10) calendar
days, any other documentation the City deems necessary to support any information previously
provided by Civitan.
(3) Quarterly, Choate agrees to supply to the City's designated fiscal agent
documentation for the receipt of all monies for the operation of the Zoo Train under this Contract.
ARTICLE 4 TAXES INSURANCE AND PERMITS
Section 4.01. Resnonsibilily for Taxes. Choate is responsible for the payment of any
local, county, state, or federal taxes, of any nature whatsoever, including, but not limited to, payroll
taxes, excise taxes, gross receipts taxes, or privilege taxes, that are necessary to be paid in order to
fulfill the terms of this Contract.
Section 4.02. Insurance.
(1) Choate shall purchase and maintain, with a sound company or companies licensed
to do business in the State of Arkansas, a liability insurance policy in the amount of not less than
two million dollars ($2,000,000.00) to protect the parties to this Contract against all claims for the
injury or damage to persons or property arising out of operation of the Zoo Train. This policy shall
name the City and Civitan as additional insured parties regarding the Zoo Train, as their respective
interests may appear.
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(2) Choate shall purchase and maintain, with a company or companies licensed to do
business in the State of Arkansas, such other insurance as is appropriate for the services being
performed under this Contract, and that will provide protection from claims set forth below which %
may arise out of or result from Choate's performance of his obligations under this Contract,
whether it is to be performed or furnished by Choate, by any subcontractor, by anyone directly or
indirectly employed by any of them, or by anyone for whose acts any of them may be liable:
(a) If applicable, claims under the Arkansas Workers' Compensation Statute,
disability benefits, and other similar employee benefit acts;
(b) Claims for damages because of bodily injury, occupational sickness or
disease, or death of Choate's employees;
(3) Choate shall acquire and maintain, with a company or companies licensed to do
business in the State of Arkansas, Fire and Hazard Coverage insurance upon the Zoo Train and all
related equipment and Track to the full insurable value thereof. In case any class of employees
engaged in hazardous work under this Contract is not protected under the Arkansas Workers'
Compensation Statute, Choate shall provide, and shall cause each subcontractor to provide,
adequate and suitable insurance for the protection of the employees not otherwise protected.
(4) The insurance required by this Section 4.02 shall include the specific coverages and
be written for not less than the limits of liability and coverages required by law. All such insurance
shall remain in effect throughout the term of this Contract.
(5) Certificates of Insurance acceptable to the City and Civitan regarding the insurance
required under this Contract shall be filed with the City and Civitan prior to execution of this
Contract. These Certificates and the insurance policies required by this Section 4.02 shall contain
a provision that coverages afforded under the policies will not be canceled or allowed to expire until
at least thirty (30) days' prior written notice has been given to the City and Civitan and shall
otherwise be in such form and content as may be acceptable to the City in its sole discretion.
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Section 4.03. &. . Choate shall obtain and mainta &l permits, licenses, franchises
and other approvals necessary to operate the Zoo Train and fulfill Choate's obligations under this
Contract.
ARTICLE 5 NON - DISCRIMINATION.
Section 5.01. Non - Discrimination. Choate agrees to comply with all applicable federal,
state and local laws and ordinances regarding non - discrimination, including non - discrimination
in employment, and specifically agrees not to unlawfully discriminate against any participant
because of race, color, religion, disability, sex or national origin.
Choate recognizes the obligations that Choate has to comply with the requirements of the
Americans with Disabilities Act and the Equal Employment Opportunity Act, and Choate
recognizes the obligations of the City to comply with both of these Acts as they exist or may be
amended. Choate agrees to operate the Zoo Train, and to deal with Zoo employees, as directed by
the City, to assure fulfillment of Choate's and the City's obligations under these two Acts, and any
regulations promulgated thereunder, and Choate further agrees to require such compliance in any
contractual agreements between Choate and a subcontractor.
ARTICLE 6 INDEPENDENT CONTRACTOR.
Section 6.01. Independent Contractor. It is expressly agreed that Choate and Civitan
are acting as independent contractors in performing the services specified herein. The City shall
carry no workers' compensation insurance, health or accident insurance to cover Choate or Civitan
for any type of loss which might result to Choate or Civitan in connection with the performance of
the services set forth in this Contract. The City shall not pay any contribution to Social Security,
unemployment insurance, federal or state withholding taxes, nor provide any other contributions or
benefits which might otherwise be expected in an employer - employee relationship, it being
specifically agreed that Choate and Civitan are not employees of the City of Little Rock. It is
expressly understood that, while the City will make certain requests with respect to various types
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of activities performed pluant to the terms of this Contract, Cote shall have full and exclusive
control over the operation and maintenance of the Zoo Train.
ARTICLE 7 INDEMNITY
Section 7.01. Indemnity. To the extent not covered by insurance, Choate agrees that he
shall indemnify and save harmless the City, its officers, agents and employees from:
(1) any claims or losses for services rendered by any subcontractor, person or firm
performing or supplying services, materials or supplies in connection with the performance
of this Contract; and
(2) any claims or losses resulting to any person or firm injured or damaged by the
actions of Choate or his employees, including disregard of federal and state statutes or
regulations, in the performance of this Contract.
Choate further agrees to include in any contract with a subcontractor, person, or firm
performing or supplying services, materials or supplies in connection with the performance of this
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Contract a clause by which such subcontractor, person, or firm agrees to indemnify the City of
Little Rock, its officers, agents and employees from claims or losses resulting from the actions of
such subcontractor, person or firm.
ARTICLE 8 CONTACT PERSONS
Section 8.01. Contact Person for the City.
Mike Blakely, Director
Zoo Department
City of Little Rock
Al Jonesboro Drive
Little Rock, AR 72201
(501) 666 -2406
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Section 8.02. Mart Person for Choate.
Lloyd Choate
224 C.W. Road
Judsonia, Arkansas 72011
(501) 729 -5896
Section 8.03. Contact Person for Civitan.
Jeanne Hanson
320 Executive Court
Little Rock, AR 72205; or
2221 Wentwood Valley Drive
Little Rock, AR 72212
(501) 228 -9528
ARTICLE 9 MODIFICATION
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Section 9.01. Modification. Any modifications to this Contract Agreement must be in
writing, signed by all parties to the Contract.
ARTICLE 10 TERMINATION
Section 10.01. Termination.
(1) Failure by Choate or Civitan to fulfill their respective obligations under this
Contract is a breach and grounds for termination of the Contract by the City.
(2) This Contract may be terminated upon a breach by giving thirty (30) days' prior
written notice to the contact persons listed in Article 8.
Section 10.02. Damages. Upon termination or expiration of the Contract, Civitan shall
return to the City all monies held by it under this Contract but unexpended.
ARTICLE 11 ENVIRONMENTAL INDEMNITY AND COVENANT.
Section 11.01. Hold Harmless and Indemnity. Choate shall indemnify and hold
harmless City, its employees and agents from and against any and all loss, damage and expense,
including, but not limited to, reasonable investigation and legal fees and expenses, regarding, but
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not limited to, any clA action for injury, liability or damagIR persons or property, and any and 7 7 �
all claims or actions brought by any person, firm, government body or other entity, alleging or
resulting from or arising from or in connection with the contamination of, or adverse effects on,
the environment, or violation of any environmental or other statute, rule, regulation, judgment or
order of any government or judicial entity, and from and against any damages, liabilities, costs and
penalties assessed as a result of any matter or circumstance on the Little Rock Zoo property as a
result of the operation or maintenance of the Zoo Train.
Section 11.02. Environmental Disclosure. Choate or Civitan has no knowledge, as of the
date of this Contract, of any deposit, storage, removal, burial, discharge, spillage, uncontrolled
loss, seepage or filtration of any pollutant, oil, petroleum or chemical liquids or solids, liquid or
gaseous products, or any toxic waste, hazardous waste or hazardous substances, as those terms are
defined in any appropriate and applicable law, code or ordinance including, but not limited to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
at, upon, under or within the Little Rock Zoo property as a consequence of the operation or
maintenance of the Zoo Train.
ARTICLE 12 MISCELLANEOUS.
Section 12.01. This Contract is governed by the laws of the state of Arkansas.
Section 12.02. Choate agrees to comply with all applicable federal, state and local laws,
regulations, and ordinances, specifically the rules and regulations pertaining to the Little Rock
Zoo, and to require such compliance in contractual agreements with subcontractors.
Section 12.03. The officials who executed this Contract hereby represent and warrant that
they have full and complete authority to act on behalf of the City, Choate and Civitan, and that
by their signatures below, the terms and provisions hereof, constitute valid and enforceable
obligations of each.
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Section 12.04. TOContract shall be executed in the Aal, and any number of executed r1 Ll
copies. Any copy of this Contract so executed shall be deemed an original and shall be deemed
authentic for any other use.
Section 12.05. The terms of this Contract shall be binding upon the parties hereto, their
respective heirs, executors, administrators, successors and assignees.
Section 12.06. Failure of the City to enforce at any time any of the provisions of this
Contract, or to require at any time performance by Choate and Civitan of any of the provisions
hereof, shall in no way be construed to be a waiver of such provisions, nor in any way to affect the
validity of this Contract, or any part thereof, or the right of the City to thereafter enforce each and
every such provision.
Section 12.07. This Contract and the documents referenced or incorporated herein contain
the complete and entire agreement of the parties respecting the transactions contemplated herein,
and supersede all prior negotiations, agreements, representations, and understandings, if any,
among the parties regarding such matters.
Section 12.08. All continuing covenants or obligations herein shall survive the expiration
or earlier termination of this Contract.
Section 12.09. The parties acknowledge and agree that they have all had an opportunity
to participate fully and equally in the drafting and construction of this Contract. The parties further
agree that the rule that contracts are construed against the drafter does not apply in the
construction of this Contract.
WHEREFORE, the parties have hereunto affixed their bands and seals this day of
2000.
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CITY OF LITTLE ROO, ARKANSAS
Cy Carney
City Manager
ATTEST:
Nancy Wood
City Clerk
APPROVED AS TO LEGAL FORM:
Thomas M. Carpenter, City Attorney
Beth Blevins Carpenter
Deputy City Attorney
LLOYD RATE
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Lloyd Choate
LITTLE ROCK CIVITAN CLUB
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Laura Childress
President