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HomeMy WebLinkAboutAUDIO TREK INTERNATIONAL 1 " 'i, ....' 'I"'t', .' ....... . _. I... 'I, ~.. '.. ,,, ,- r C IfJJuutluBlO iREK ". \;::............. IN:tERNZ4TIONAL LIMITED I" "'U,llt . : ~,. '" . ~ pY' 97 (j<>>'J l~/v' ~(') 1/1/1 ' (}J. ZOOKEY SYSTEM DONA TION AGREEMENT AUDIO TREK INTERNATIONAL LIMITED AUDIO SYSTEM INSTALLATION AGREEMENT TABLE OF CONTENTS h SCOPE OF AGREEMENT. ~ DONOR'S RESPONSIBILITIES. 2.1 SUPPLY OF THE SYSTEM. ~ ZOO'S RESPONSIBILITIES. 3.1 INSTALLATION AND MAINTENANCE OF THE UNITS. h ZooKEYS 4.1 USE OF ZOOKEYS BY VISITORS 4.2 MARKETING OF ZOOKEYS IN THE ZOO. 4.3 OBTAINING ZOOKEYS AND THEIR ACCESSORIES BY ZOO (a) METHOD #1: PURCHASE OF ZOOKEYS FROM DONOR BY ZOO IN US DOLLARS: (b) METHOD #2: GIFT OF ITEMS BY DONOR TO ZOO FOR PROMOTIONAL USE, NOT FOR SALE. 4.4 PRODUCTION OF ZOOKEYS BY DONOR FOR ZOO ~ MAINTENANCE AND SERVICING OF SYSTEM AND EQUIPMENT 5.1 REPAIR BY DONOR: 5.2 TIME FOR REPAIRS BY DONOR. 5.3 MAINTENANCE BY ZOO: 5.4 REPLACEMENT OF AUDIPAKS. ~ ADDING ADDITIONAL UNITS TO THE SYSTEM L.. STORAGE OF COMPONENTS WHEN ZOO CLOSED. ~ TERM QF 'l'HIS AGREEMENT. ~ ASSIGNMENT OF THIS AGREEMENT. 10. 'rERMINATION OF AGREEMENT BY ZOO: REMEDIES 10.1 DONOR'S Breach. 11. 'l'ERMINA'l'ION OF AGREEMENT BY DONOR: REMEDJES-,- 11.1 ZOO'S BREACH. 11.2 DONOR'S REMEDIES. ~ MISCELLANEOUS 12.1 INTEGRATION. 12.2 AMENDMENT AND WAIVER. ~ SEVERABILITY OF PROVISIONS. 12.4 SURVIVAL OF PROVISIONS. 12.5 NOTICES. 12.6 FEES. 12.7 COUNTERPARTS. 12.8 GOVERNING LAW. 12.9 GUARANTEE = INSURANCE 13. SPECIFICS OF SYSTEM PROPOSED FOR DONATION 'lU ZOO AUDIO SYSTEM INSTALLA'l'ION AGREEMENT This AUDIO SYS'l'EM INSTALLATION AGREEMENT (the" Agreement ") , dated 2/20/97 , is between AUDIO TREK IN'l'ERNA'l'IONAL LIMITED, with business address at 77 container Port Road, Suite #306, Kwai Chung, Hong Kong and with North America agent in the united States at 846 Mahler Rd., Burlingame, CA, 94010 (the "DONOR"), and: Santa Ana Zoo with address of: (the "ZOO"). 1801 E. Chestnut Ave. Santa Ana. CA 92701 DONOR and ZOO, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agree as follows: 1. SCOPE OF AGREEMENT. The DONOR agrees to furnish to the ZOO an audio interpretive system (the "system") as hereinafter defined, without cost to the ZOO, provided that ZOO agrees that, for the duration of this Agreement, it will obtain only from DONOR all magnetically coded plastic keys (hereinafter called "ZOOKEYS"'" ) that the ZOO re- quires for operation of the system. 2. DONOR'S RESPONSIBILITIES. 2.1 SUPPLY OF THE SYSTEM. (a) DONOR agrees to provide to the ZOO, a system which shall have the capability of describing selected ZOO exhib- its to visitors by means of pre-recorded audio narratives heard from multiple locations. The electronic audio playback device (hereinafter called the "AUDIPAK") is contained in a weather- resistant lockable metal housing with: speaker; ZOOKEY code reader; plus either a rechargeable battery (with external solar panel for recharging the battery) or an external electric power supply instead of the battery and solar panel. The above compo- nents, configured as required, are hereinafter referred to col- lectively as "UNITS" and individually as a "UNI'l'''. 'l'he total number of UNITS and initially supplied spare components consti- tute the system. (b) Each UN!'!' shall include a steel base plate or metal housing capable of being mounted on rails, walls or free- standing posts. (c) either by a Push a Code Reader in Use of a ZOOKEY The AUDIPAK in each UNIT shall be actuated Button or by a ZOOKEY which can be inserted into the housing of the UNIT to actuate the AUDIPAK. will enab,le the user to hear one or .mo,r:...p.::=- (d) DONOR will provide to zoo and grants to zoo all right, title and interest in and to the following components of each UNIT (the "ZOO components"): (i) the base plate or metal housing, (ii) the cover; (iii) the key lock and keys to secure the cover or housing, (i v) the speaker, (v) the battery, (vi) all internal wiring in a UNIT, (vii) the Push Button (if any), (viii) any graphic or sign attached to a UNIT, (ix) and either a solar panel to recharge the battery in a UNIT or an AC/DC adaptor to power the AUDIPAK from an external AC electrical power source. (e) DONOR shall retain all rights and title to ownership of all ZOOKEY code Readers and AUDIPAKS (the "DONOR components") either in UNITS or as spares. However ZOO is grant- ed by DONOR unrestricted use of all DONOR components without charge as long as this Agreement has not been terminated accord- ing to section 10 or section 11 herein. (f) DONOR agrees to provide to ZOO at no charge all spare parts and accessories reasonably necessary to the proper maintenance and functioning of the system with the excep- tion of additional replacement batteries over those initially supplied as spare parts. ZOO may purchase replacement batteries from local suppliers or from DONOR. (g) DONOR agrees to provide its services includ- ing initial limited on-site supervision during installation, as reasonably required to assure the proper start-up functioning of the system. (h) sixteen (16) UNITS UNITS and fourteen DONOR agrees to provide to ZOO free including two (2 ) Push Button (14) ZOOKEY activated UNITS. of charge activated (i) All components necessary for the later mount- ing of UNIT housings plus solar panels and electric power sup- plies will be delivered to ZOO prepaid by DONOR no later than April 30. 1997 for initial installation. The balance of the components for completion of the installation including UNIT housings containing AUDIPAKS and their custom recordings, speakers, Code Readers, cam locks, batteries, spare parts for UNITS, and the initial order of ZOOKEYS will be delivered to ZOO prepaid by DONOR no later than April 30, 1997 assuming that ZOO has provided DONOR with required art work for ZOOKEY labels (2), UNIT housing sign graphic (1), and approved scripts or master recordings in time to allow for production of same by DONOR and delivery to ZOO by above date. 19(j) ZOO plans to open the system to the public by May31.. ')7 ~ ZOO'S RESPONSIBILITIES. supplied by DONOR for each respective UN 1'1' either on rails, fences, walls or free-standing posts or pylons and mounting of solar panels for battery operated UNITS or connection of electric power supplies for units not using batteries including any re- quired enclosures or outlets for the power supplies. DONOR will supply detailed installation instructions. (b) Zoo agrees to be responsible for the costs reasonably necessary to obtain, design and manufacture free- standing posts or pylons for UNITS and solar panels that require them. (c) ZOO agrees to be responsible for the maintenance of the system provided that DONOR supplies to ZOO all necessary components and spare parts and accessories as described in Sec- tions 2.1 (d), (e) and (f) of this Agreement. 1...- ZOOKEYS 4.1 USE OF ZOOKEYS BY VISITORS (a) visitors who have obtained valid ZOOKEyS shall be able to use them in all installed key-operated UNITS in the ZOO until ZOO elects to change the Code Reader assembly in those UNITS at the expiration of the validity of that ZOOKEY. Then a new and differently coded code Reader supplied free of charge by DONOR will be installed by ZOO in all key-operated UNI'l'S and the removed code Readers returned to DONOR freight prepaid. Prior to this exchange date, a new coded ZOOKEY with new validity date will have been offered for sale to visitors which is coded for both the old and new Code Readers, and so will continue to operate the newly installed Readers until they are changed again at the new expiration date. 4.2 MARKETING OF ZOOKEYS IN THE ZOO. The ZOO shall make the ZOOKEYS available for sale from all souvenir shops and stands, and also from food service loca- tions if possible. other sales outlets such as entry gates and special kiosks should be considered including the use of strolling vendors on busy days. ZOO will design, prepare and display point of Purchase signs, and prominently display the ZOOKEYS so visitors will find them easily. 'rhe Zoo acknowledges that unless the ZOOKEYS are available to visitors at multiple locations throughout the ZOO throughout the entire period the ZOO is open to the public, their sale will be markedly reduced to the detriment of the visitors, the zoo, the system and the DONOR. ZOO will keep sufficient inventory of ZOOKEYS for its ex- pected requirements at all times. ZOO acknowledges its responsi- bili ty to order far enough in advance to allow for manufacture and shipping as required by DONOR in order to keep inventory at ~n ~~~Antable level. 4.3 OBTAINING ZOOKEYS AND THEIR ACCESSORIES BY ZOO ZOO shall obtain from DONOR by a mutually agreed method all required ZOOKEYS (the "items"). There are two methods to obtain the items: Method #1 - PURCHASE. Method #2 - GIFT BY DONOR. (a) METHOD #1: PURCHASE OF ZOOKEYS FROM DONOR BY ZOO IN US DOLLARS: i) Cost to ZOO is based on the selling price of the item. selling price being defined as the gross price sold less any included taxes ("net selling price"). Cost of each item to the ZOO is equal to fifty percent (50%) of the net selling price. Minimum net selling price of a coded ZOOKEY for a system with a single customized message in each key-operated UNIT is 1~0 Dol- lars seventy-five Cents each ($2.75). Minimum net selling price of a coded ZOOKEY for a system with two (2) customized messages in each UNIT is Three Dollars each ($3.00). Minimum net selling price of a coded ZOOKEY for a system with three (3) customized messages in each UNIT is Three Dollars and TWenty-Five cents each ($3.25). Zoo may charge more than the above minimums for the items but must advise DONOR of the actual net selling price and any subsequent increases or decreases in said price. ii) Any ZOOKEY accessories such as chains, clips, tags, boxes, serialized numbers, bar code adhesive labels, neck or wrist bands etc., may be purchased by ZOO either locally or from DONOR for assembly by ZOO. If DONOR is to assemble accessories to ZOOKEYS the ZOO will be charged additionally for this service as deter- mined by DONOR. DONOR will provide ZOOKEYS complete with elastic neck band in which case the above net selling prices are increased TWenty-Five Cents each ($ .25). iii) DONOR will provide ~old colored items to zoo for resale to visitors at a minimum pr1ce of 1~0 Dollars ($2.00) over the net selling price of the standard color item without elastic neckband and TWO Dollars TWenty-five cents ($2.25) with neckband. Minimum order of Gold Keys for resale: Five hundred (500). iv) payment by ZOO for initial order of items for sale by ZOO shall be twenty-five percent (25%) of the established net selling price of the item upon execution of this Agreement, and twenty- five percent (25%) upon delivery of said order to ZOO by surface transportation prepaid by DONOR. For subsequent orders, twenty- five percent (25%) shall be payable with ZOO's purchase order, and twenty-five percent (25%) shall be paid C.O.D. ZOO shall pay any difference between air and surface charges for shipment by express, courier or air if requested by ZOO. Quantity of items ordered must be in even thousands. v) If ZOO and DONOR agree to an open account method of payment for the twenty-five percent (25%) balance of any delivered order ~",..h ,.,,,,,m'>nf': mll"t: hA received bv DONOR wi thin ten (10) calendar DONOR 30 days from delivery the open account status will be terminated at the option of the DONOR and all future shipments will be payable C.O.D. vi) If ZOO raises the price of the items and such an increase would have raised the cost of said items to ZOO, an additional amount will be payable to DONOR by ZOO for all items sold at the higher price. Such payment to be additional to and paid with the next twenty-five percent (25%) down payment on the next purchase order for items to DONOR from ZOO. vii) If ZOO lowers the price of ZOOKEYS at any time and such a decrease would have lowered the cost of said items by ZOO, a credit may be requested by ZOO from DONOR for the difference in the price paid for the items and what had been paid. Credit to apply against the next purchase order of items from DONOR by ZOO. viii) DONOR warrants to ZOO that the cost of said items to the ZOO will not be increased during the first three (3) years of this Agreement. For the subsequent two (2) years the cost of items purchased may at the option of the DONOR increase by twen- ty-five cents ($.25) each resulting in a net selling price mini- mum increase of Fifty cents each ($.50). subsequent year price increases, if any, will be negotiated between the parties. ix) Items purchased by ZOO and subsequently given free or at discounted price for promotional or other uses by ZOO are not eligible to be included in any count of items for which credit is requested from DONOR. (b) METHOD #2: GIFT OF ITEMS BY DONOR TO ZOO FOR PROMOTIONAL USE, NOT FOR SALE. i) DONOR will consider providing initially a fixed number of items free of charge for specific promotion by ZOO if requested in writing by ZOO and the purpose of the promotion and number of items requested is specified. This would be done one time only. The number of items provided is relative to the number of in- stalled ZOOKEY operated UNITS: Up to 15 UNITS: 300 16 to 20 UNITS: 500 21 to 25 UNITS: 700 26 to 30 UNITS: 900 31 UNITS and over: 1000 ii) DONOR will provide free of charge to ZOO one ZOOKEY for all full-time employees with or without neckband as initial order is configured. Said ZOOKEYS will be included in the shipment to the zoo for the first order of items. The number of full-time em- ployees at the zoo is: 15 iii) DONOR will provide free of charge to ZOO "Loaner Keys" for use by Teachers and Chaperones with School Groups. ZOO is to inform the groups that such Loaner Keys are available and where the can be picked up and returned at the conclusion of the group's visit. The number of Loaner Keys to be provided with the initial order of items is: 60 iv) DONOR agrees to replenish said Loaner Keys as needed by the ZOO to maintain the above amount of keys on hand, when requested in writing by ZOO. 4.4 PRODUCTION QE ZOOKEYS BY DONOR ~ ZOO (a) ZOOKEYS will be produced by DONOR in minimum lots of 1000 pieces within a period of eight (8) to twelve (12) weeks after receipt of Twenty-five percent (25%) payment with purchase order for items. ZOO must allow sufficient time for production and shipment of orders. (b) The plastic colors of the items can be changed periodically to increase their marketability. Unless a specific color is requested by ZOO the choice of colors will be made by DONOR. Colors will normally not be mixed within one shipment unless one color is for a different language key. specific selection of colors other than stock: Green, Red, Yellow, and Blue can be made by ZOO if the order is a minimum of ten thousand (10,000) pieces. subsequent year keys will be a different color than previous keys. (c) Donor will prepay surface delivery of above items from california to a ZOO, however, any difference in cost be- tween surface transportation and: air; express; or courier deliv- ery will be prepaid by DONOR but charged to ZOO if ZOO requests such service. 2...- MAIN'rENANCE AND SERVICING QE SYSTEM AID! EOUIPMENT ~ REPAIR BY DONOR: Equipment supplied by DONOR to ZOO, with the exception of ZOOKEYS will be serviced by DONOR free of charge upon delivery by ZOO of such equipment to DONOR'S United States Agent office prepaid provided that ZOO first obtain from DONOR a "Return Equipment Authorization Number". Free service and/or repairs shall cover AUDIPAKS, ZOOKEY Code Reader assemblies and speakers ("Covered Equipment"), plus Solar panels and power supplies. Free repair does not extend to metal housings, mounting posts or steel backing plates for UNITS or batteries. It does not in- clude service and/or repairs to correct malfunctions or improper operation of equipment on site or due to acts of God, vandalism, malicious mischief, and/or abusive use. Except as set forth herein, maintenance of the system shall be the sole responsibili- ty of ZOO, however DONOR will provide additional repair services other than those included above for a fee if requested. A quota- tion will be issued by DONOR to ZOO ,for any charged services for approval by ZOO before work is performed. Items repaired by DONOR will be returned surface freight prepaid. If air shipping is requested by ZOO charges representing the difference between surface and air shipping will be invoiced to ZOO by DONOR. 5.2 TIME FOR REPAIRS ~ DONOR. six (6) weeks from the time any covered Equipment is received by DONOR. In the event that the repair of any covered Equipment is delayed beyond six (6) weeks for whatever reason, DONOR shall be required to immediately deliver to ZOO any replacement equipment necessary to assure the proper functioning of the system. 5.3 MAINTENANCE ~ ZOO: Maintenance by ZOO includes checking the UNITS periodically (twice a week minimum is suggested) for satisfactory sound, correct volume, proper operation of the ZOOKEY code Reader assem- bly, battery condition, cleaning the cover of the UNIT, seeing that the housing key lock is functional, checking the proper angle for the Solar Panel and changing it if necessary and clean- ing the face of the solar panel. (If the panel becomes dirty or obstructed by snow or foliage it will not function properly and the batteries will not rece1ve proper charging). The inside of the UNIT should also be inspected periodically and insects and debris removed. Insect repellant can be sprayed inside the UNITS. The UNITS and solar panels should be checked to see they are solidly mounted and not loose or tilted. Care should be taken. not to spray water directly on the UNITS or place them wi thin the spray pattern of automatic sprinklers. As foliage grows it can obstruct light reaching the solar panels. It is the duty of the ZOO to trim back foliage so the solar panels obtain as much light as possible. ~ REPLACEMENT OF AUDIPAKS. plug-in AUDIPAKS with new messages or replacements for AUDIPAKS that may become faulty, will be shipped by DONOR to ZOO on a Memo Billing for the current established cost of that type of AUDIPAK. The Memo Billing will be reversed by DONOR upon receipt from ZOO of a returned AUDIPAK. Each AUDIPAK has a serial number for identification purposes. AUDIPAKS retained by ZOO in excess of the number supplied with the system must be returned, shipping charges prepaid, within thirty (30) days of receipt by ZOO of replacement AUDIPAKS, or if ZOO wishes to keep them they may do so for a payment to DONOR of the amount of the Memo Billing. ~ ADDING ADDITIONAL UNITS TQ THE SYSTEM ZOO may purchase additional standard design UNITS, which would not include taking title to the ownership of the AUDIPAK, or ZOOKEY Code Reader assembly installed in the UNIT, at a cost of one thousand dollars five hundred ($1,500) each with any type of AUDIPAK installed. Price includes mounting plate, key-locked cover, speaker, internal wiring, battery and either one solar panel or one AD/DC power supply. New UNITS of custom design will be quoted by DONOR at time of order and a minimum number may be required for production. h S'l'ORAGE OF COMPONENTS WHEN ZOO CLOSED. . public for any period of time. zoo agrees to remove and store all batteries used to operate UNITS during such periods and to replace them fully charged when the UNITS are made ready for a new season. A device to charge the batteries will be supplied free of charge by DONOR to ZOOS. AUDIPAKS also can be removed and stored. If removing the UNITS is not feasible ZOO will cover them with plastic bags during the closed months for some protec- tion from the elements. h ~ Qf. THIS AGREEMENT. The term of this Agreement shall be five (5) years from the date hereof. 'rhis Agreement shall continue from year to year thereafter unless written notification is given ninety (90) days prior to an anniversary date by one party to the other of an intent to terminate this Agreement. ~ ASSIGNMENT OF THIS AGREEMENT. This Agreement may be assigned by either party provided that the assignee assumes all rights under the Agreement and assumes all the obligations of the assignor. This Agreement shall bind and inure to the benefit of the heirs, representatives, adminis- trators, executors, successors and assigns of the respective par- ties. 10. TERMINATION OF AGREEMENT BY ZOO: REMEDIES lQ....l. DONOR's Breach. DONOR will be in breach ("DONOR's Breach") of this Agreement and ZOO may terminate this Agreement upon occurrence of any of the following: (a) If DONOR fails to perform or observe any term, covenant, agreement or condition in this Agreement, and has not fully cured such non-performance, violation or non-compliance within thirty (30) days after ZOO has given written notice there- of to DONOR. (b) If DONOR fails to provide to ZOO any necessary spare parts or accessories as required by Section 2.1 of this Agreement and has not cured such failure within thirty (30) days after ZOO has given written notice thereof to DONOR. (c) If DONOR fails to provide quired by section 2.1 of this Agreement and failure wi thin thirty (30) days after ZOO notice thereof to DONOR. any has has assistance re- not cured such gi ven written (d) If DONOR fails to perform any repairs required ~__.~__ c ~~ ~h~~ A~_~~mon~ nr T~il~ Tn npr- (e) If DONOR fails to ship ZOOKEYS to Zoo as required by section 4.4 of this Agreement and has not cured such failure within thirty (30) days after ZOO has given written notice there- of to DONOR. ~ REMEDIES upon the occurrence of any DONOR's Breach, ZOO may, in its sole discretion, do any of the following: (a) Terminate this Agreement and return to DONOR by freight collect all DONOR components for which DONOR has retained ti tle as set forth in section 2.1 (f) of this Agreement. and receive full reimbursement from DONOR for any remaining unsold current year ZOOKEYS also returned by ZOO to DONOR. (b) continue to operate the system until the ZOO stock of ZOOKEYS is depleted and maintain the system to the conclusion of this Agreement, after which return to DONOR by freight collect all DONOR components as set forth in section 2.1 (f) of this Agreement. U.. TERMINATION Q!:: AGREEMENT I!X. DONOR: REMEDIES. ~ ZOO'S BREACH. ZOO will be in breach ("ZOO's Breach") of this Agreement and DONOR may terminate this Agreement upon occurrence of any of the following: (a) If ZOO refuses to accept any shipment of ZOOKEYS sent by DONOR, balance of order C.O.D., after receipt by DONOR of a valid purchase order and initial payment from ZOO to produce such items, provided such shipment is not overdue at the time of delivery by more than thirty (30) days and meets the specifica- tions of the item. (b) If ZOO fails to maintain the system in workable condition for a period of thirty (30) days after DONOR has given written notice to ZOO of such failure. Workable condition re- quires that at least 80 percent of the installed UNITS are in working order at all times the ZOO is open to the public. (c) If ZOO fails to order from DONOR a number of ZOo- KEYS for each twelve (12) month period commencing from the date of this Agreement equal to at least two and a half percent (2.5%) of the actual counted attendance of ZOO for the preceding twelve month period and has not cured such failure wi thin thirty (30) days after DONOR has given written notice thereof to ZOO. (d) Failure of ZOO to inform DONOR of the current selling price(s) of the ZOOKEYS and any change of such price(s). ~ DONOR'S REMEDIES. Upon the occurrence of any ZOO's Breach, DONOR may, in its sole discretion terminate this Agreement and remove all DONOR owned equipment from ZOO's premises without any credit to ZOO for unsold ZOOKEYS on hand. ZOO shall allow DONOR . . - -... ..L..L _ .......,.-rn.... __..:I .......... 4-h""" '7nn C!t-nrA(1p 12. MISCET.T.l\NEOUS li..J.. INTEGRATION. This Agreement constitutes the sole agreement of the parties with respect to the subject matter hereof and supersedes all oral negotiations and prior writings with respect to the subject matter hereof. This Agreement may be amended by written agreement of both parties. ~ AMENDMENT fJill WAIVER. No amendment of this Agree- ment, and no waiver of anyone or more of the provisions hereof shall be effective unless set forth in writing and signed by the parties hereto. ~ SEVERABILITY OF PROVISIONS. Any provision in this Agreement that is held to be inoperative, unenforceable, voidable or invalid in any jurisdiction, shall as to that jurisdiction, be inoperative, unenforceable, voidable or invalid without affecting the remaining provisions in any other jurisdiction, and to this end, the provisions of this Agreement are held to be severable. 12.4 SURVIVAL OF PROVISIONS. The provisions of this Agreement with respect to the remedies of the DONOR and ZOO shall survive the termination of this Agreement. ~ NOTICES. Any notice permitted or required to be given by one party to the other hereunder may be delivered per- sonally or by mail and a copy sent by facimile. If delivery is made by mail, it shall be deemed to be completed five (5) days after a true coPY thereof is deposited certified mail, postage prepaid in the Un1ted States mail addressed to the party intend- ed at the party's address set forth herein above. 12.6 FEES. Should either party hereto commence action at law or in equity against the other to enforce any obligation hereunder, the prevailing party shall be entitled to recover from the other party reasonable attorney's fees and all costs associ- ated with such action. ll...l. COUNTERPARTS. This Agreement may be executed in any number of counterparts and by different parties on separate counterparts. Each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. 12.8 GOVERNING ~ This Agreement shall be construed in accordance with and governed by the internal laws of the State in which the ZOO is located. 12.9 GUARANTEE = INSURANCE DONOR warrants against defects in material and workmanship. DONOR will not guarantee against defects due to improper installation, the failure of ZOO to perform the level of service it agrees to provide or uses for which the products were not intended. DONOR has no liability for consequential or indirect damages an~ its. only liabilitx is 1;:0 _ __-'- __ ___..~...:J__...;a ....... sentatives unless DONOR has given prior written approval to incur the costs on its behalf. There shall exist no other warranties and/or guarantees express or implied. comprehensive General Liability insurance with products liability endorsement in a sum not less than $1,000,000 per 1nci- dent with respect to the Covered Equipment shall be obtained at the expense of ZOO; DONOR shall be named as co-insured on such insurance. ~ SPECIFICS OF SYSTEM PROPOSED FOR DONATION TO ZOO DONOR will provide: L UNITS: fourteen (14 ) operated by ZOOKEYS TYPE: MODEL 400~, OTHER CUSTOMIZED MESSAGES PER UNIT: 1 2 3 .A.- 2. PUSH BUTTON operated UNITS: two ( 2) (SINGLE MESSAGE) 3. ONE POWER SUPPLY FOR EACH ABOVE UNITS EITHER BY RECHARGEABLE BATTERY AND SOLAR PANEL OR ELECTRICAL AC/DC POWER SUPPLY. 4. SPARE BATTERIES: one 5. SPARE SOLAR PANELS: nno 6. SPARE POWER SUPPLIES: one 7. MISC SPARE PARTS FOR UNITS INCLUDING AT LEAST ONE CODE READER, ONE SPEAKER, ONE COMPLETE HOUSING, ONE BACKPLATE, ONE CAM LOCK AND KEYS. 8. ONE BATTERY CHARGER. 9. ALL MESSAGE PREPARATION AND MASTER RECORDING SERVICES FROM SCRIPTS APPROVED BY ZOO, COPIED TO AUDIPAKS, ONE EACH PER UNIT AND ONE "GENERAL INTEREST" SPARE. NOT INCLUDING f'EES FOR FOREIGN LANGUAGE TRANSLATIONS OR NARRATIONS. 10. CUSTOMIZATION OF ARTWORK FOR ZOOKEYS AS REQUIRED. 11. DONOR AGREES TO FURNISH # 300 ZOOKEYS FOR INITIAL PROMOTIONAL PURPOSES AGREED BETWEEN THE PARTIES PER 4.2 b). IN WITNESS WHEREOF, the undersigned have caused this Agree- ment to be executed by their duly authorized officers on the date first written above. DONOR: Attest: AUDIO TREK INTERNATIONAL LTD. By: 'ri tie: ZOO: SANTA ANA ZOO (Zoo or society Name) By: Ronald J. Glazier Title: Zoo Manager APPROVED AS TO FOR(~ ,-;--;IT1..A...') (~~~LnUl"l:~ DORIS . FE" AN Deputy City Attorney CITY OF SANTA "CITY" // I / ANA, CALIFORNIA CE C. GUY the Council //'). ) . /," /) / I .. / / /. / ../J Ii t '," .If'. REA~ Manager ATTEST: DAVI City APPROVED ~ /lJJj~ CLEVELAND WILLIAMS Executive Director ADDENDUM 11. TQ CONTRACT EFFECTIVE BETWEEN AUDIO TREK INTERNATIONAL LTD.. . ("ZOO"). 1996 (the "CONTRACT") ("ATI"). AND WHEREAS: ZOO has elected to use the "Refundable Deposit Method" ("DEPOSIT") of offering ZOOKEYS to their visitors for free use during their visit for a deposit paid by the visitor of at least two dollars ($2.00), rather than the outright sale of the ZOOKEYS as described in sections 4.2 and 4.3 of CONTRACT, and WHEREAS: ATI will provide ZOO with ZOOKEYS with elastic neckband for the DEPOSIT program for fifty percent (50%) of the deposit requested from visitors for the duration of the initial DEPOSIT program and any subsequent similar DEPOSIT programs instituted by ZOO in the future dur1ng the term of the CONTRACT and any exten- tions of same, so the ZOO will receive net revenue of fifty percent (50%) of the deposit received from visitors for every ZOOKEY a visitor elects to keep and forfeit his deposit when he leaves the zoo. TIlE PARTIES AGREE THAT: 1. ZOO may purchase ZOOKEYS from ATI for a minimum of one dollar ($1. 00) each and offer them to their visitors for a refundable deposit of two dollars ($2.00) each, for as long as the ZOO wishes to continue the said DEPOSIT program. If ZOO wishes to charge a higher deposit than two dollars ($2.00) it may do so in which case the cost of the key becomes fifty percent (50%) of that higher deposit. 2. ZOO will place purchase orders for ZOOKEYS from ATI and will accompany each order with a deposit payment of twenty-five per- cent (25%) of the deposit to be requested from visitors for each key. Upon delivery of the ZOOKEY order to the ZOO the balance of payment of twenty-five percent (25%) of the deposit amount per ZOOKEY will be due to ATI by ZOO under the same payment terms specified in section 4.3 (a) of CONTRACT. 3. Section 4.3 (a) of CONTRACT is modified by the addition of the following clause x). x) Zoo may elect to offer FREE USE of ZOOKEYS to visitors for a Refundable Deposit either as an initial promotion, a special .event, or a continuing method of distribution. For this use, ZOO may purchase ZOOKEYS from ATI for fifty percent (50%) of the amount of the deposit requested from visitors, with a minimum said deposit of two dollars ($2.00). If ZOO elects to increase the deposit for the ZOOKEYS over two dollars ($2.00) I ZOO will notify ATI the date the in- crease will take effect and ATI may invoice ZOO an addition- al amount over the previous ZOOKEY cost paid or due to be paid by ZOO to equal fifty percent (50%) of the increased deposit amount. For example: Zoo elects to increase the deposit to three dollars ($3.00) and has paid ATI one dollar ($1.00) for ZOOKEYS that are in their current stock to be offered to visitors for the new deposit amount. ATI may invoice zoo for an additional fifty cents ($.50) for all ZOOKEYS in the zoo inventory that are to be used in the continuing DEPOSIT program. Inventory includes un-issued new ZOOKEYS remaining in stock plus ZOOKEYS that have been issued and returned by visitors and are again in ZOO stock or are being returned to ZOO stock for subsequent re-issue to other visitors. If such invento- ry included three thousand (3,000) new ZOOKEYS and one thousand (1,000) previously issued ZOOKEYS, ZOO would inform ATI the total of the two types and ATI may invoice ZOO for four thousand (4,000) ZOOKEYS at fifty cents ($.50) each. In this manner both the ZOO and ATI share equally in the revenue generated by visitors who elect to forfeit their deposit and keep the ZOOKEY. 4. ZOO will notify ATI in writing of its intention to: increase the deposit; the date the increase is to take effect; and the total number of previously issued and unissued ZOOKEYS in their inventory as of the date the new deposit increase is to become effective. 5. ATI may invoice ZOO for the additional amount due and ZOO will 'pay said invoice either on receipt of invoice or on other payment terms agreed between the parties as per section 4.3 (a) of the CONTRACT. 6. Any production of ZOOKEYS by ATI for ZOO that is in process that is to be utilized in the increased deposit program for which the ZOO has previously paid an initial down payment based on the previous lower DEPOSIT rate will be invoiced to ZOO by ATI for the additional amount due for the down payment and the increased final payment when the complete order has been shipped. ZOO will issue ATI a revised Purchase Order to reflect the additional cost of the ZOOKEYS. 7. If zoo operates the DEPOSIT program with a deposit require- ment higher than the minimum two dollars ($2.00) and later de- cides to reduce the deposit, it must advise ATI the number of remaining ZOOKEYS on hand for use in the reduced DEPOSIT program and ATI will issue a credit to ZOO for fifty percent (50%) of the reduction of previously paid for ZOOKEYS to apply against future orders for ZOOKEYS by ZOO. 8. ZOO will, at their expense, recycle ZOOKEYS, that have been returned by visitors who have received their deposit back, that the ZOO considers acceptable for re-issuance to other visitors. Recycling may include inspection, cleaning, replacing printed labels, rewinding attached elastic neckbands or removing and re- attaching a new neckband, counting and repackaging the ZOOKEYS to m~kA t-hAm J::llit-RhlA for TP.!-issuance. Replacement elastic neckbands can be obtained by ZOO from ATI for twelve dollars ($12.00) a spool which will make about 450 neckbands. Printed labels for ZOOKEYS for replacement of damaged labels will be provided to ZOO by ATI for four cents ($.04) each. 9. Those ZOOKEYS that ZOO does not consider sui table for re- issue can either be reworked by ZOO and placed back in its inven- tory for eventual re-issue to visitors, or they may be sent back at zoo expense to ATI in lots of even hundreds to obtain credit from ATI of fifteen cents ($ .15) per key to apply on the next ZOOKEY order from ZOO. only damaged, previously used ZOOKEYS for which ZOO has returned a visitor's deposit may be returned to ATI to obtain credit against subsequent ZOOKEY orders. 10. During the period of time that ZOO uses the DEPOSIT program ZOOKEYS will not be offered for direct sale at any price by the ZOO on ZOO grounds. An exception would be a promotion with a sponsor in which ZOOKEYS are offered in conjunction with the sponsor's product outside the ZOO grounds either free with the purchase of the sponsor's product or service or as a self-liqui- dating premium by the sponsor. 11. If the zoo elects to terminate the DEPOSIT program and returns to direct sale of ZOOKEYS, the terms of the CONTRACT will once again be utilized. Then any existing zoo inventory of ZOOKEYS that were paid for by the zoo on the DEPOSIT program price will be counted by zoo and ATI advised the number on hand. ATI may invoice zoo an additional amount for these ZOOKEYS so the total amount ATI receives from ZOO for these items equals fifty percent (50%) of the ZOO's net selling price. 12. To convert DEPOSIT ZOOKEYS to direct sale ZOOKEYS may re- quire applying an additional new label to each one or removing and replacing labels. zoo will perform this work on all ZOOKEYS in its inventory at their expense but the new printed labels will be provided to zoo at no cost by AT!. ZOO will use its best efforts to see that no ZOOKEY orders are in process by ATI for the DEPOSIT program when the change is made back to direct sales. If this can not be avoided, ATI may charge a handling charge to rework the ZOOKEYS that are in production for the direct sale labeling and COding. This fee to be negotiated between the par- ties. 13. During the period that the DEPOSIT program is being utilized by the ZOO, section 11.1 (c) of the CONTRACT is null and void. However if the zoo terminates the DEPOSIT program and returns to the direct sale method, said Section is made valid for each subsequent twelve (12) month period starting from the date the direct sale method is instituted by the ZOO. -:2 14. If ATI and ZOO agree on other means to obtain mutual revenue from the ZOOKEY System than direct sale as per the CONTRACT or the DEPOSIT program in this Addendum # I, such as increasing attendance fees and giving a ZOOKEY with each purchased ticket (adult or child) or other method, another Addendum will be draft- ed to cover the method selected and will also become part of the original CONTRACT. 15. If the ZOO wishes to offer a discount on other retail items it sells to visitors as an inducement to keep the visitor's deposit, and the visitor returns the ZOOKEY to the ZOO and is not given a refund, ATI will not share in the sale of other retail items by the ZOO. 16. As the terms of this Addendum #1 modifies or deletes terms of the CONTRACT the terms of this Addendum shall supercede those of the CONTRACT. Any terms of the CONTRACT not modified or deleted by this Addendum #1 shall remain in full force for the duration of the CONTRACT and any extensions. Agreed between the parties this 14 day of March 1997 which is the effective date of this Addendum #1 to the CONTRACT. For the ZOO: Title: &.... wJJ CLEVELAND WILLIAMS ... RXP(,,!lltivp nirp~tnr, R&CSA witness: For ATI: Title: witness: ATTEST: / APPROVED AS T FORM. I . '( "11 ,&( DORIS M. FELMAN Deputy City Attorney ,- E C ~Uy , }.' le k l't the !counciJ/ CITY CF ,SANT,>ANJ( ^. , _~ (',t:r' ..-' I ,f (, ' .) DAVID- N. R AM City Manager