Loading...
HomeMy WebLinkAbout10491M 1 2 3 4 b 6 7 s 9 RESOLUTION NO. 10, 491 A RESOLUTION OF INTENT TO APPROVE A TRANSITION AGREEMENT AND A MARKETING AGREEMENT BETWEEN THE CITY OF LITTLE ROCK, ARKANSAS, AND THE FRIENDS OF THE ZOO, INC.; AND FOR OTHER PURPOSES. WHEREAS, the Board of Directors of the City of Little Rock, Arkansas, has terminated 10 a previous agreement between the City and the Friends of the Zoo, Inc., and 11 WHEREAS, after negotiations between Friends of the Zoo, Inc., and the City Manager, 12 agreements in principle, attached as exhibits to this resolution, have been reached for a 13 Transition Agreement and for a Marketing Agreement, but certain aspects of these agreements 14 still need to be approved by the City Attorney and bond counsel, 16 NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF DIRECTORS OF 16 THE CITY OF LITTLE ROCK, ARKANSAS: 17 Section 1. The City Manager is authorized to enter into agreements between the City 18 and the Friends of the Zoo, Inc., in substantially the same form as the attached exhibits to this 19 Resolution, once the City Attorney and bond counsel for the City 1998 $16,405,000 Parks & 20 Recreation Revenue Board issue agree with Friends of the Zoo, Inc., upon terms and conditions 21 that are in the best interests of the City. 22 Section 2. If disagreement about any term or condition cannot be resolved through 23 negotiation, the City Attorney is directed to report this fact to the Board of Directors no later 24 than March 9, 1999; otherwise, these agreements are to be executed. 25 ADOPTED: March 2, 1999 26 ATTEST: APPROVE /D: A / 26 Robbie Hancock, City Clerk B.J. 31yrick, Vice -Mayor 29 Acting Mayor 30 APPROVED AS TO LEGAL FORM: 31 32 33 Thomas M. Carpenter, ity Attorney 34 36 36 37 71 TRANSITION AGREEMENT BETWEEN CITY OF LITTLE ROCK ( "CITY") AND FRIENDS OF THE ZOO ( "FOZ ") 72 1. City and FOZ will terminate the current Management Agreement between the City and FOZ by mutual agreement. The effective termination date will be 12:00 P.M., March 3, 1999. 2. City and FOZ will enter into a Transition Agreement to govern the transition of specific activities and functions at the Little Rock Zoo ( "Zoo ") from FOZ to City. The effective date of the Transition Agreement will be 12:01 A.M., March 3, 1999. 3. The Transition Agreement will provide that the following specific functions and activities conducted by FOZ under the Management Agreement will be transferred to City on the respective dates and subject to the specific terms and conditions indicated: A. The Zoo education program (including management and expenses of the Docent program): March 8, 1999. The FOZ Program Development Coordinator position will be terminated effective April 1, 1999. A corresponding position will be added by the City as a part of assuming the Zoo education program, effective April 1, 1999. B. Management and operation of the Zoo gift shop: April 1, 1999 C. The FOZ membership program: May 3, 1999. (1) The City will replace the FOZ membership program with a new Little Rock Zoo membership program effective May 3, 1999. . (2) The City will agree that current FOZ memberships in effect as of that date will continue to be honored for Zoo admission, discounts on Zoo educational programs and at the Zoo gift shop, and all other current FOZ membership privileges through their respective expiration dates. Lifetime FOZ memberships will be honored without expiration D. Special events such as "Boo at the Zoo," Zoo Lights, and Summer Safari: March 3, 1999 (the effective date of this Transition Agreement). (1) FOZ will make available to the City for copying all current FOZ files regarding such events on or before March 9, 1999. (2) Upon execution of this Transition Agreement, FOZ will inventory all FOZ assets used in the production of such events. FOZ will allow the City to use such FOZ assets in the production of such events on the Zoo'grounds, and the City agrees that it will be responsible for the maintenance, storage, upkeep and operation of such assets. 4. For the purposes of this Transition Agreement and the Fundraising and Marketing 73 Agreement described in Section 14 hereinafter, A. "Fundraisins" is defined as: (1) the solicitation of (a) financial and in -kind contributions to FOZ for the benefit of the Zoo from individuals, foundations, trusts, and business entities; and (b) grants or appropriations from government entities andilor private foundations; and (2) all activities with a limited attendance conducted for the primary purpose of soliciting contributions or recognizing contributors, such as an invitation only Zoo tour or reception at the Zoo for past or prospective individual contributors; and (3) all marketing activities reasonably required to carry out the solicitation of contributions, grants or government appropriations or provide appropriate recognition for contributors and other sources of such funding ( °Fundraisins Marketing "), including, but not limited to, publicity, promotions, public relations, and the preparation and publication of literature, brochures, or other advertising; and (4) to specifically exclude the following activities: (a) conducting or sponsoring special promotional events open to the general public, such as "Boo at the Zoo;" (b) operating or managing a retail sales facility at the Zoo, such as a gift shop or restaurant; and (c) conducting or sponsoring limited attendance events such as Zoo Snooze or birthday parties which are not for the primary purpose of soliciting contributions or grants. B. "Marketing" is defined as management, direction and administration of the Zoo's general publicity, promotions, public relations and advertising activities, to the extent reasonably required to appropriately market the Zoo to potential visitors, including, but not limited to, all publicity, promotions and advertising activities required by the membership program, the gift shop, special events, new exhibits, events and programs conducted on the Zoo grounds.by third parties through agreement with the City, and the Zoo education program, but not including Fundraising Marketing. 5. FOZ will retain responsibility for Fundraising for the Zoo (including, but not limited to, Fundraising Marketing) during the entire term of the Transition Agreement and as provided by the Fundraising and Marketing Agreement. FOZ will retain responsibility for Marketing for the Zoo as follows: V A. As quickly as possible following execution of the Transition Agreement, but in any event, no later than March 31, 1999, FOZ will publish a written plan for Marketing for u w w w w�•w w w �w w•w w w w the Zoo for the remainder of 1999 (the "1999 Marketing Plan"). The 1999 Marketing Plan shall be subject to the approval of the City Manager. 74 B. FOZ will conduct Marketing for the Zoo for the remainder of 1999 pursuant to the 1999 Marketing Plan. However, after his or her arrival at the Zoo as a City employee, the new Zoo Director shall have authority to modify or amend the 1999 Marketing Plan. Further, all press releases or statements to news media made for or on behalf of the Zoo shall be subject to the approval of the Zoo Director, or, until the new Zoo Director arrives, the interim Zoo Director. & During the term of the Transition Agreement, FOZ will not enter into any agreement which establishes terms or conditions that restrict or limit the use of any financial or in -kind contribution, grant or appropriation which has been or is to be received by FOZ or the City, unless such agreement is both (a) stated in writing; and (b) approved in advance by the Zoo Director or Zoo Board of Governors. The City agrees to be bound by any such written agreement that is approved in advance by the Zoo Director or Zoo Board of Governors. 7. Unless otherwise agreed in writing by the Zoo Board of Governors, all funds raised by FOZ during the term of the Transition Agreement shall be delivered by FOZ to the City. A. The City will maintain all funds raised by FOZ for the Zoo and all funds generated by the City through activities at the Zoo formerly conducted by FOZ in separate bank accounts (the "City Zoo Accounts ") from which funds will be disbursed solely for use at or on behalf of the Zoo. B. All interest earned on the City Zoo Accounts will be credited to those accounts and disbursed from those accounts solely for use at or on behalf of the Zoo. 8. The gross revenues generated by the FOZ membership program through membership sales and renewals after the date of the Transition Agreement will be deposited into a City Zoo Account on a regular basis, but not less than weekly. The gross revenues generated by the FOZ education program and any special events conducted by FOZ after the date of the Transition Agreement will also deposited to a City Zoo Account upon their receipt by FOZ. The City will provide FOZ with written instructions designating the bank(s) and account(s) to be used for such deposits. 9. The gross revenues generated by FOZ's operation of the Zoo gift shop will continue to be deposited into FOZ's bank account or accounts until the transfer of the gift shop to the City on April 1, 1999. During the period from the effective date of the Transition Agreement until April 1, 1999, FOZ may continue to order merchandise for resale in the gift shop in the ordinary course of business. FOZ will agree that the transfer of the gift shop to the City shall include FOZ's contribution of all inventory held by FOZ for sale in the gift shop, and all equipment and display furnishings used in the operation of the gift shop, as of the date of such transfer. The City will agree to pay all invoices unpaid by FOZ on gift shop inventory contributed to the City; however, the total of such invoices to be paid by the City shall not exceed the value of M the inventory received by the City, as measured by its invoice cost to FOZ. After the transfer of the gift shop to the City, the City will deposit the gross revenues of the gift shop into a City Zoo Account 7 5 10. A. FOZ will deliver to the City on or before the date of this Transition Agreement any and all written representations or agreements regarding any terms and conditions which govern the use of any contributions, grants or appropriations which have been pledged or funded to FOZ prior to the effective date of the Transition Agreement. The City (by vote of the Zoo Board of Governors) will either agree to be bound by all such terms and conditions regarding the use of each contribution, grant, or appropriation at the Zoo, or, if the City (by vote of the Zoo Board of Governors) is unwilling to be bound by the terms and conditions of any such contribution, grant or appropriation, direct FOZ to return those funds to their source. All contributions, grants or appropriations restricted by terns and conditions to which the City agrees to be bound shall be retained and managed by FOZ and used at the Zoo in cooperation with the City in accordance with such terms and conditions. B. FOZ will deliver to the City on or before the date of this Transition Agreement any and all written proposals for contributions, grants or appropriations which FOZ has delivered to third parties, and which remain outstanding and under consideration by the recipients as of that date (the "Outstanding Fundraising Proposals "). As to each Outstanding Fundraising Proposal, the City (by vote of the Zoo Board of Governors) will either agree to be bound by all terms and conditions set forth in the proposal regarding the use of the proposed contribution, grant, or appropriation at the Zoo in the event that the proposal is accepted thereafter by the recipient, or, if the City (by vote of the Zoo Board of Governors) is unwilling to be bound by such terms and conditions, FOZ shall either withdraw or modify the proposal In the event that the recipient of an Outstanding Fundraising Proposal responds with a counter -offer containing additional or different terms and conditions, the counter -offer shall be treated as a new proposal for a restricted contribution, grant or appropriation requiring approval of the Zoo Director or Zoo Board of Governors pursuant to Section 6 of this Transition Agreement 11. After transferring the membership program to the City on May 3, 1999, FOZ will relocate its offices off the Zoo grounds on or before May 15, 1999. The City will continue to provide all access to the Zoo reasonably required by FOZ to perform its activities, including, but not limited to, temporary use of meeting or conference room space in the Zoo Administration building and parking adjacent thereto upon reasonable advance notice. 12. FOZ will agree to allow any reasonable inspection of its financial records that the City may request upon reasonable notice at any time after the effective date of the Transition Agreement The City will agree to provide FOZ, upon reasonable notice, with an accounting of the City's expenditure of funds raised by FOZ. 13. The Transition Agreement will be terminated forty-five (45) days after the start date of the new Zoo Director. Upon termination, the Transition Agreement will be replaced by the Fundraising and Marketing Agreement described in section 14 below. M: M M M 14. On or before March 31, 1999, the City and FOZ will enter into a formal Fundraising and Marketing Agreement, which is intended to define the long -term relationship between the City and FOZ under the new Zoo Department governance structure. The Fundraising and Marketing Agreement will become effective upon termination of the Transition Agreement, and will include, but not be limited to, the elements set forth in the attached "Outline of Proposed Fundraising and Marketing Agreement Between City of Little Rock and Friends of the Zoo." 15. The City agrees to use its best efforts during the term of the Transition Agreement to reacquire or prepare to reacquire AZA accreditation. 16. In consideration for FOZ's transfer of certain assets and Fundraising and Marketing . activities during the term of the Transition Agreement, as well FOZ's efforts during the initial months of the Transition Agreement in continuing to conduct the various activities being transferred to the City, FOZ and the City will agree that FOZ will receive a monthly fee (the "Transition Services Fee "), payable on or before the first day of each month, including the month in which the Transition Agreement is executed. The amount of the Transition Services Fee shall be as follows: March, 1999: April, 1999: May, 1999, and each month thereafter, including the month in which the Transition Agreement is terminated: $26,300 $13,365, plus Marketing Services Fee set forth in 1999 Marketing Plan' $12,23Q, plus Marketing Services Fee set forth in 1999 Marketing Plan 76 .. OUTLINE OF FUNDRAISING AND MARKETING AGREEMENT BETWEEN CITY OF LITTLE ROCK ( "CITY") AND FRIENDS OF THE ZOO ( "FOZ") Ml M 77 A. The City and FOZ will enter into the Fundraising and Marketing Agreement to define the Ion,--term relationship between the City and FOZ following the termination of the proposed Transition Agreement. The Fundraising and Marketing Agreement will become effective upon termination of the Transition Agreement. B. The City and FOZ will agree that FOZ will serve as the principal director and provider of Fundraising and Marketing activity for the Zoo, as "Fundraising" and "Marketing" are defined in Section 4 of the attached "Outline of Proposed Transition Agreement." 1. The City agrees to use its best efforts to provide funding for the Zoo from current or future tax revenues, bonds or other municipal financing programs in amounts no less than (a) are reasonably required to carry out the Master Plan for the Zoo; (b) are reasonably required to reacquire AZA accreditation for the Zoo; and (c) marketing for the Zoo. The City agrees to use its best efforts to reacquire and maintain AZA accreditation, and shall maintain its USDA licensure. 2. The City, shall cooperate with FOZ's efforts to carry out its Fundraising and Marketing activities, and shall not unreasonably withhold approval of customary or reasonable requests from FOZ or third parties recommended by FOZ for naming rights to exhibits or areas of the Zoo in connection with donations or pledges solicited by or through FOZ. I FOZ will conduct Marketing for the Zoo pursuant to an annual Marketing Plan to be developed by FOZ prior to December 31 of each calendar year. Beginning with calendar year 2000, the annual Marketing Plan shall be approved in advance by the Zoo Director and Zoo Board of Governors. The Zoo Director shall have authority to modify or amend the annual Marketing Plan during the course of each year. 4. FOZ will conduct its Marketing activities during the remainder of 1999 pursuant to the 1999 Marketing Plan referred to in the Transition Agreement. After his or her arrival at the Zoo as a City employee, the new Zoo Director shall have authority to modify or amend the 1999 Marketing Plan. Further, all press releases or statements to news media made for or on behalf of the Zoo shall be subject to the approval of the Zoo Director. C. In consideration for FOZ's Fundraising activities, the City shall pay to FOZ an annual fee (the "Fundraising Services Fee "), payable on or before the first day of each month in equal monthly installments. 1. FOZ agrees that all expenses incurred by FOZ in the course of providing its 78 Fundraising services will be documented in a manner reasonably similar to that required by the City for its own expenses. 2. The amount of the Fundraising Services Fee would be subject to annual adjustment in light of the Fundraising performance of FOZ, the Fundraising objectives of the Zoo Director and Zoo Board of Governors, the staffing requirements of FOZ, and differences in the overall cost of FOZ operations due to factors outside of FOZ's control. Such annual adjustment would require the approval of the Zoo Board of Governors. 3. The amount of the Fundraising Services Fee for the initial twelve (12) calendar months of the term of the Fundraising and Marketing Agreement shall be 513,240 per month. 4. The amount of the Fundraisin.2 Services Fee to be paid by the City during the initial twelve (12) months of the term of the Fundraising and Marketing Agreement shall be reduced by that portion of the Fundraising Services Fee which FOZ shall contribute from the Net Unrestricted Cash of FOZ, as follows: (a) On the date on which the Transition Agreement is terminated by the City, FOZ shall place its Net unrestricted Cash in an escrow account (the "Fundraising Escrow Account'). (b) The "Net Unrestricted Cash" of FOZ shall be defined as FOZ's total cash (including Restricted Cash), less all Restricted Cash (defined as funds held by FOZ subject to agreements with third parties which limit or restrict their use to one or more certain projects at the Zoo), less unpaid monthly operating expenses of FOZ for the month in which the Transition Agreement is terminated, and less all funds required to pay any unpaid creditors of FOZ. (c) The Net Unrestricted Cash shall be divided into equal one - twelfth (1/12) shares, with one share being advanced to FOZ from the Fundraising Escrow Account thereafter on the first day of each month as partial payment of the monthly installment of the Fundraising Services Fee. (d) The City shall also make pa}.rnent to FOZ of the remainder of each monthly installment of the Fundraising Services Fee on the first day of each month. (e) In the event that the Net Unrestricted Cash of FOZ should exceed the total Fundraising Services Fee for the first twelve month period following the termination of the Transition Agreement, the remainder shall be applied in equal shares to each monthly installment of the Fundraising Services Fee during the second twelve -month period under this Fundraising and Marketing Agreement. D. In consideration for FOZ's Marketing activities, the City shall pay to FOZ an annual fee (the "Marketing Services Fee "), payable on or before the first day of each month in equal monthly installments. 1. The specific amount of the Marketing Services Fee is to be agreed upon annually by the City and FOZ, but it is intended by the City and FOZ that the Marketing Services Fee will be in an amount sufficient to fund all expenses of the Zoo's general publicity, promotions, public relations and advertising activities to the extent reasonably required to appropriately market the Zoo to potential visitors pursuant to its annual Marketing Plan, but not including °Fundraisin., Marketiniz," as "Fundraisinz h,larketing' is defined below: "Fundraising Nlarketine' is defined as all marketing activities reasonably required to carry out the solicitation of contributions, grants or government appropriations or provide appropriate recognition for contributors and other sources of such funding, including, but not limited to, publicity, promotions, public relations, and the preparation and publication of literature, brochures and other advertising. 2. FOZ agrees that all expenses incurred by FOZ in the course of providing its Marketing services will be documented in a manner reasonably similar to that required by the City for its own expenses. 3. The amount of the Marketing Services Fee would be subject to annual adjustment in light of the Marketing performance of FOZ, the Marketing objectives of the Zoo Director and Zoo Board of Governors, the staffing- requirements of FOZ, and differences in the overall cost of FOZ operations due to factors outside of FOZ's control. Such annual adjustment would require the approval of the Zoo Board of Governors and the City Board of Directors through the City's annual budget process. (a) The Marketing Services Fee would also be subject to adjustment on an interim basis between annual periods to account for material changes in the Marketing activities of FOZ resulting from the modification or amendment of the annual Marketing Plan by the Zoo Director. 79 4. Notwithstanding the foregoing, the amount of the Marketing Services Fee for the period from the effective date of this Agreement to the end of 1999 shall be the fee set forth in the 1999 Marketing Plan approved by the City Manager. E. FOZ will agree not to enter into any agreement which establishes terms or conditions that restrict or limit the use of any financial or in -kind contribution, grant or appropriation which has been or is to be received by FOZ or the City, unless such agreement is both (a) stated in writing; and (b) approved in advance by the Zoo Director or Zoo Board of Governors. Provided, however, that FOZ may accept in -kind contributions of publicity services from media and other donors without advance written approval, so long as such services are to be used exclusively for FOZ or Zoo purposes. The City agrees to be bound by any such written agreement that is approved in advance by the Zoo Director or Zoo Board of Governors. F. The Fundraising and Marketing Agreement would be subject to termination by either party on ninety (90) days written notice, or if FOZ ceases to exist. Either the Fundraising or Marketing activities conducted by FOZ under this Agreement may be terminated b either party on ninety (90) days written notice without terminating the entire Agreement. Any termination of either the Fundraising or Marketing activities alone would also terminate any further obligation to pay the related Services Fee. G. All assets held by FOZ as of the effective date of this Agreement (including proceeds from the subsequent sale of any such assets) shall remain the property of FOZ. All funds raised by FOZ during the term of the Fundraising and Marketing Agreement shall be delivered by FOZ to the City. Any exception which would require funds to be held by FOZ will require approval in advance by the Zoo Board of Governors. The City will maintain all funds raised by FOZ for the Zoo, and all funds generated by the City through activities at the Zoo formerly conducted by FOZ, in separate bank accounts (the "City Zoo Accounts ") from which funds will be disbursed solely for use at or on behalf of the Zoo. All interest earned on the City Zoo Accounts will be credited to those accounts and disbursed from those accounts solely for use at or on behalf of the Zoo. H. FOZ will agree to allow any reasonable inspection of its financial records that the City may request upon reasonable notice at any time after the effective date of the Fundraising and Marketing Agreement, including, but not limited to, documentation of its Fundraising and Marketing expenses. The City will agree to provide FOZ, upon reasonable advance notice, with an accounting of the City's expenditure of funds raised by FOZ. I. All contributions, grants, or appropriations held by or pledged to FOZ as of the date of the Transition Agreement which are restricted by terms and conditions to which the City agreed to be bound under the Transition Agreement shall continue to be retained and managed by FOZ and used at the Zoo in cooperation with the City in accordance with M M M such terms and conditions. This provision shall survive termination of the Fundraising and Marketing Agreement. J. FOZ would be given access to the Zoo at all reasonable times and places to conduct activities such as tours, inspections, receptions, video and photographic shooting sessions, press conferences, interviews, etc. which are reasonably necessary to its Fundraising and Marketing activities. In the event that FOZ wishes to hold an event at the Zoo as part of its Fundraising and Marketing activities (such as a private reception for major individual contributors or the news media), FOZ, at the discretion of the Zoo Director, shall reimburse the City for any City expenses directly related to such event (for example, security and staff assistance, but not utility service). K. All activities of FOZ at or on behalf of the Zoo will be conducted in cooperation with the management authority and direction of the Zoo Director. All activities of City employees in relation to any FOZ activities shall be subject solely to the management authority and direction of the Zoo Director. FOZ will not supervise or direct City employees in the conduct of any activity without the express consent of the Zoo Director. L. The Zoo Board of Governors may recommend candidates for the FOZ Board of Directors to the appropriate person or persons on the FOZ responsible for the nomination of new directors. However, the actual selection of FOZ directors shall remain solely within the authority of FOZ. M. The City shall give FOZ access to all member information (including, but not limited to, members' names, addresses and telephone numbers) created or maintained in connection with the Zoo membership program, and, upon reasonable request, technical information relating to the animal population housed at the Zoo. The Zoo Director shall make timely information available to FOZ regarding new animal acquisitions and the status of construction projects. N. The production goal for FOZ's Fundraising activities shall be to raise funds for the Zoo in a total amount equal to or greater than five (5) times the annual Fundraising Services Fee for the first twelve (12) months after the execution of the Agreement, and ten (10) times the annual Fundraising Services Fee for each successive twelve (12) month period thereafter. The City and. FOZ will agree that the calculation of funds raised toward FOZ's annual goal shall be made in accordance with the following guidelines: (1) all funds counted toward each 12 -month goal must be either (a) funds actually paid to FOZ or to the City for the use of the Zoo during that 12 -month period; or (b) pledges evidenced by a commitment in writing received during that 12 -month period; M .i (2) any such pledge commitment containing terms or conditions which restrict the use of the funds in any way must have been approved by the Zoo Director or Zoo Board of Governors; (3) recognition of (a) multi -year pledge commitments; or (b) contributions of property or services, shall for the purposes of this production goal be determined 82 in accordance with Generally Accepted Accounting Principles (GAAP)