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HomeMy WebLinkAbout25D - AGMT - FOSAZ SUPPORT AT ZOOl 1 0 . 'm 0 A WANWAIMANNOMONCO CITY COUNCIL MEETING DATE: MARCH 1, 2016 TITLE: AGREEMENT WITH FRIENDS OF SANTA ANA ZOO FOR THE BENEFIT AND SUPPORT OF THE SANTA ANA ZOO AT PRENTICE PARK (STRATEGIC PLAN NO. 2,2E) k CITY MANAGER CLERK OF COUNCIL USE ONLY :--I;• 1p ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2n' Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute an agreement with Friends of Santa Ana Zoo for an amount of $60,000 plus 10% of net revenues, estimated at $40,000, for the benefit and support of the Santa Ana Zoo at Prentice Park, for a term from March 1, 2016 through February 28, 2019, with a one, two -year renewal period, subject to non - substantive changes approved by the City Manager and City Attorney. DISCUSSION The Friends of Santa Ana Zoo ( FOSAZ) is a nonprofit 501(c)3 organization. Their purpose is to market and solicit charitable donations to support the operations, maintenance and expansion of the Santa Ana Zoo at Prentice Park (SAZAPP). FOSAZ recently raised funds for the Zoo's newest exhibit, the Brazilian Ocelot Habitat, and is currently raising funds for the upcoming Giant River Otter Habitat. FOSAZ and the City of Santa Ana collaborate on programs to further the mission of the Santa Ana Zoo at Prentice Park. FOSAZ oversees many planning and fundraising efforts, including the annual "Boo at the Zoo" event, "Sunsets at the Zoo" summer concert series, and " Zoofari" black -tie gala. They also provide staffing and maintenance for the zoo membership program, special events, zoo rentals, Zoofari Express Train and Endangered Species Carrousel rides, and the Treetop Toys Gift Shop. The original agreement between FOSAZ and the City of Santa Ana was approved in December 2001 and amended in December 2006, August 2010, and December 2010. This updated agreement incorporates all of the previous amendments into one document. Additionally, this agreement adds two new revenue sources and clarifies the revenue from FOSAZ's zoo membership sales. Currently, FOSAZ contributes $20,000 annually to help offset the costs of SAZAPP veterinary services. Last year, FOSAZ added an annual $40,000 contribution to the City to help offset the cost of a full -time education staff position. FOSAZ remits 10% net of Gift Shop and Rental revenues to the City's General Fund to reduce the zoo's subsidy. Ride concession revenues from the train and carousel are not currently included in this remittance. In 25D -1 Agreement with Friends of Santa Ana Zoo at Prentice Park for Benefit and Support of the Zoo March 1, 2016 Page 2 this agreement FOSAZ will remit to the City 10% net of all FOSAZ's ride concession revenues. In the current agreement, FOSAZ is required to remit 10% gross of membership sales revenue. To be consistent with other contributions, membership sales revenue will be changed from 10% gross to 10% net, with an approximate annual amount of $40,000. STRATEGIC PLAN ALIGNMENT Approval of this item allows the City to meet Goal #2 - Youth, Education, Recreation, Objective #2 (Expand youth programming), Strategy E (Partner with outside agencies and secure funding to rehabilitate zoo exhibits and expand the Santa Ana Zoo at Prentice Park). FISCAL IMPACT Revenues in the amount of $20,000, $40,000 and $40,000 will be budgeted in FY 2016 -2017 Friend of Zoo Vet Contribution (no. 01113002- 57380), Friend of Zoo Contribution (no. 01113002 57383) and Friend of Zoo Education Contribution (no. 01113002 - 57385) revenue accounts, respectively. Future years beyond FY 2016 -2017 will be adjusted, if needed, and budgeted accordingly. Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency EXHIBIT: 1. Agreement APPROVED AS TO FUNDS AND ACCOUNT: Francisco Gutierrez, Executive Director Finance and Management Services Agency 25D -2 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE FRIENDS OF SANTA ANA ZOO FOR THE BENEFIT AND SUPPORT OF THE SANTA ANA ZOO AT PRENTICE PARK THIS AGREEMENT is made and entered into on this I" day of March, 2016, by and between the City of Santa Ana, a charter city and municipal corporation drily organized and existing under the constitution and laws of the state of California ( "City "), and Friends of Santa Ana Zoo, a California non -profit public benefit corporation, organized for the purpose of supporting the operation, maintenance and expansion of the Santa Ana Zoo at Prentice Park through charitable fmld- raising ( "FOSAZ "). RECITALS A. City owns and operates for the public benefit the Santa Ana Zoo at Prentice Park ( "Zoo "), which is under management and control of the Parks, Recreation and Community Services Agency ( "Agency"). B. FOSAZ was first incorporated in 1982 as Friends of the Children's Zoo for the purpose of supporting and funding a children's petting zoo at the Zoo, and entered into its first agreement with the City for installation of animal food dispensers at the children's zoo. In 1987, the name was changed to Friends of Santa Ana Zoo. C. For over thirty years, the City and FOSAZ (collectively, the "Parties "), have cooperated to develop the Zoo, including the development of new animal habitats, coordination of volunteer services, concession management, and fundraising. D. Cooperation and support by FOSAZ remain ongoing and the Parties now desire to enter into an updated agreement that builds upon the Parties' historical relationship and reflects the present collaborative arrangements between them in support of the Zoo. THEREFORE, the Parties agree as follows; 1. DUTIES AND RESPONSIBILITIES OF CITY A. Ownership and Operation of the Zoo City owns the Zoo property and all exhibits, support facilities, infrastructure, and animals contained within Prentice Park, including exhibits, support facilities, infrastructure, and animals previously purchased by or funded at FOSAZ expense. FOSAZ retains ownership of FOSAZ office building, property and equipment contained within the office, the "Zoofari" train ride, carousel ride, and other subsequently acquired assets as may be agreed by the Parties. In the event of the dissolution of FOSAZ, any and all assets of FOSAZ shall be used to discharge any liabilities and debts of FOSAZ. The balance of such assets, if any, becomes the property of City to be used exclusively for the benefit of the Zoo. In the event that the Page 1 of 11 25D -3 Zoo ceases to exist, the balance of FOSAZ assets shall be distributed by a committee made Lip of the FOSAZ executive committee and an equal number of individuals from the City. B. Administration of the Zoo The Zoo Manager shall be exclusively responsible for the administration and management of the Zoo and direction of Zoo staff, within the policy guidelines set forth by the City Council, City Manager, and Executive Director of the Agency. This includes without limitation all matters related to animal care, maintenance, visitor services, and education, including outreach programs except as otherwise specified in this Agreement. Zoo shall provide that a representative of FOSAZ be permitted to attend regular Zoo management staff meetings. C. Projoct Management City shall have the responsibility for managing all capital and deferred maintenance projects at Zoo. Zoo staff shall oversee all capital and deferred maintenance projects at the Zoo and serve as the primary contact liaison between the City and consultants, architects, engineers, and contractors, Zoo staff shall be the primary contact and liaison between the Parties regarding all capital and deferred maintenance projects at the Zoo. 2. DUTIES AND RESPONSIBILITIES OF FOSAZ A. Oreanizational Structure FOSAZ shall maintain a board of directors as may be provided by its articles of incorporation and by -laws, Unless otherwise provided by FOSAZ, the board of directors shall have the power to bind FOSAZ under this Agreement, FOSAZ shall provide that the Zoo Manager or his or her designee shall be a non - voting advisor to the FOSAZ board, and shall receive notice of meetings in the same manner as a member of the board and shall be entitled to attend and frilly participate in all meetings of the Board with the exception of voting. FOSAZ may appoint an Executive Director who shall act as the primary liaison between the Parties, and shall maintain frequent communication with the City so that the Parties can coordinate FOSAZ fiend- raising activities and Zoo activities. FOSAZ shall provide annually a calendar of special events for approval by the City along with specific staffing requirements. B. Canital Fundraisine The primary mission of FOSAZ under this Agreement shall be to seek and provide financial support for Zoo capital improvements. The Parties (through a joint strategic planning committee) shall mutually develop annual FOSAZ fundraising goals and prioritize exhibits and /or projects to be funded with FOSAZ proceeds. City authorizes FOSAZ to solicit individual, corporate, and foundation finds and contributions for the benefit of the Zoo. Page 2 of i l 25D -4 Sources for fa ndraising shall include, but not be limited to, solicitations, gifts, bequests, charitable events, grants, and special programs. FOSAZ shall coordinate the tinning and format of find raising activities with the Zoo Manager, as set forth in more detail in Section 3 below. C, Membershin FOSAZ is hereby recognized as the official support group for the zoo, and is authorized to solicit membership in its organization based on such status. FOSAZ is authorized to include special privileges at the Zoo, including, but not limited to, free admission, as maybe approved from time to time by the Zoo Manager. FOSAZ may organize and sponsor special events for its members, including afterhours access of Zoo grounds, for the purpose of fundraising for capital improvements, marketing and promotion, educational purposes, and benefit of membership, as approved by the Zoo Manager. D. Volunteer Recruitment and Coordination FOSAZ shall cooperate with the City for volunteer recruitment and shall serve as a contact with the public inquiring about volunteer opportunities at the Zoo. Zoo shall train, or provide orientation, and supervise all volunteers used for education programs, Zoo monitors, animal services, student research, and maintenance. FOSAZ shall train, provide orientation, and supervise volunteers used for FOSAZ special events, community outreach programs, Zoofari train ride operations, or other concessions approved by the City. E. Community Outreach FOSAZ may conduct community outreach programs with the approval of the Zoo Manager that serve to promote the Zoo and promulgate goodwill for the Zoo. The Zoo Manager must approve educational activities and materials. F. Marketing and Promotion FOSAZ may engage in public relations activities, including issuing press releases related to membership acquisition, fund- raising activities, and special events, as approved by the Zoo Manager. Such activities shall include, but not be limited to: marketing, advertisement and promotional materials; Public Service Announcement materials, including videos; social media; and production and management of the Zoo's web page. G. Use and Distribution of Fundraising Proceeds and Membership Fees Funds received by FOSAZ, including the net proceeds of all FOSAZ fundraising activities, shall be used exclusively for and expended for the benefit of the Zoo in accordance with plans approved by the Parties. Any fluids not remitted to the City for the benefit of Zoo shall Page 3 of 11 25D -5 be used for FOSAZ administration and operations. FOSAZ shall disclose in all solicitations and membership requests that it is raising funds for the Zoo, and that a portion of the fluids shall be used for FOSAZ administrative costs. 3. FOSAZ CONCESSIONS As part of its fundraising activities, FOSAZ shall have the non - exclusive right to operate the concessions at the Zoo listed below and other concessions that may be approved by City from time to time. All net operating proceeds From the concessions shall be used for Zoo purposes as approved, by the Zoo Manager, or as specified herein. FOSAZ shall provide City with an annual accounting of all concessions proceeds, including operating costs. A. Gift Shop FOSAZ may operate a gift shop at the Zoo to sell appropriately related gift, souvenir, and novelty items. FOSAZ shall be responsible for all expenses related to purchase and sale of items in the gift shop. City shall provide space in the concessions building for the gift shop and be responsible for maintenance and repair of the building structure and utilities. FOSAZ shall be responsible for store furnishings and interior improvements and renovations. B. Ride Concessions At its own expense, FOSAZ may operate the existing Zoofari train ride, the carousel ride, and any other ride concessions that may be approved by the City ( "Ride Concessions "). C. Animal Food FOSAZ shall have the right to sell animal food approved by the Zoo Veterinarian and Zoo Curator in locations approved by the Zoo Manager. City shall provide approved animal food. FOSAZ shall pay for and maintain approved animal food dispensers, D. Other Concessions City may from time to time approve other FOSAZ concessions, Nothing herein shall prohibit City from granting concessions to persons or entities other than FOSAZ. E. Donation Receptacles City agrees to permit FOSAZ to maintain upon the Zoo premises one or more secure locking receptacles for the purpose of receiving donations. Such receptacles shall display a statement of the nature and purpose of FOSAZ as a non -profit organization independent from the City. Funds shall be accounted for separately and be used for Zoo improvements as mutually agreed upon by the Parties. Page 4 of 11 25D -6 F. Subcontracting The Zoo concessions currently operated by FOSAZ maybe subcontracted by FOSAZ pursuant to a Request for Proposals meeting all City requirements. City retains right to approve subcontractor. Any agreements between FOSAZ and subcontractors for Zoo concessions shall be expressly subject to termination in the event of termination of this Agreement. G. Financial Contribution & Concession Revenue Sharine i. On or before December 31 of each year, FOSAZ shall remit the sum of twenty thousand dollars ($20,000) to the City to be used for veterinary expenses, These funds shall be deposited into a City revenue account with the City General Fund. ii. On or before December 31 of each year, FOSAZ shall remit the sum of forty thousand dollars ($40,000) to the City to be used towards the salary of a full -time educational position. These funds shall be deposited into a City revenue account with the City General Fund. iii. In addition to the funds provided in (i) and (ii) above (which shall not be deducted from gross revenues when calculating net revenue), on the 15`x' day of each quarter of the calendar year beginning on April 15, FOSAZ shall remit to the City ten percent (t0 %) of all net concession revenues from the Gift Shop, Ride Concessions, Facility Rental Areas (discussed in section 3.H, below), and any other approved FOSAZ concessions received, (discussed in 3.13, above) in the preceding quarter. iv. City shall deposit concession revenue into a City revenue account with the City General Fund to be used by the City for Zoo capital and operating expenses including, but not limited to, improvement projects, educational opportunities, staff development, and /or purchase of animals, as determined by the Zoo Manager. V. Quarterly, FOSAZ shall remit ten percent (10 %) of the net proceeds of all membership sales to City. These funds shall be deposited by City into a revenue account with the City General Fund to be used by the City exclusively for Zoo capital and operating expenses including, but not limited to, improvement projects, educational opportunities, staff development, and /or purchase of animals, as reasonably determined by the Zoo Manager. H. Facility Rental Areas Subject to paragraphs (ii) through (vi) below, FOSAZ shall have the non - exclusive right to restrict access and charge rent to any or all portions of the Zoo for private events, which may include, but are not limited to, birthday parties, receptions, or corporate events. Page 5 of 11 25D -7 ii. FOSAZ shall obtain approval from the Zoo Manager prior to renting out any area of the Zoo. The Zoo Manager shall be permitted to deny any facility rental or to limit the scope of the rental at his sole and absolute discretion, iii. FOSAZ shall oversee the rental of equipment and facilities and shall be responsible for primary maintenance of such rentals. iv. FOSAZ shall have a designated staff member present during the entirety of the private event. FOSAZ shall be responsible for ensuring the designated staff member follows the closing and lock -up procedures established by the Zoo Manager and then in effect, as provided to FOSAZ by Zoo, and as may be amended from time to time. V. FOSAZ shall be responsible for cleaning up the rental location upon the conclusion of the private event. vi. City shall have the right to restrict access and rent any rentable areas without paying a rental fee to FOSAZ. 4. JOINT ACTIVITIES A. Establishment of Fund - Raising Goals and Timetables Annually, as soon as practicable before adoption of the City's annual budget, the Zoo Manager shall provide FOSAZ with a plan of new exhibits, ancillary facilities, and other capital projects that the Zoo may wish to implement in the succeeding fiscal year. Within sixty (60) days of receipt of City's plan, FOSAZ shall propose to the City a plan and timetable for fund- raising plans and activities to complement the City's plan to construct capital improvements. Thereafter, the Zoo Manager and FOSAZ Execrative Director shall establish fund- raising goals and related timetables for the upcoming fiscal year. B, Agreements for Construction Projects City and FOSAZ may enter into separate agreements approved by the City Council and FOSAZ Board of Directors for capital improvements (including deferred maintenance projects) that shall be funded in whole or in part by FOSAZ. Such projects shall be carried out in accordance with all applicable City ordinances and procedures covering such matters as bid process, project administration requirements, and other legal requirements. 5. REPORTS A. City Reports to FOSAZ Annually, and within sixty (60) days of approval of the Zoo's fiscal operating budget by the City Council, Zoo Director shall present to FOSAZ a copy of the Zoo's operating budget. Upon request by FOSAZ, City shall provide FOSAZ with an annual income and expenditure statement. Page 6 of 11 25D -8 B. FOSAZ Reports to City Annually, and within sixty (60) days of approval by the FOSAZ Board of Directors, the FOSAZ Executive Director shall present a copy of the FOSAZ annual operating budget to the City. Upon request by the City, FOSAZ shall provide City with an annual income and expenditure statement. C. Accounting Systems, Funds and Accounts i, The Parties shall work together to establish a system of funds and accounts so that the financial conditions and status of each is clearly comprehensible to both organizations. ii. The Parties shall establish process, procedures, and time lines whereby FOSAZ shall transfer money from FOSAZ accounts to the City on a periodic basis in accordance with membership and concession revenue sharing. The Parties shall establish process and procedures whereby FOSAZ deposit funds into escrow accounts for funding of capital improvements as provided by separate agreements, iii. The Parties shall establish process and procedures for transferring obligated City expenses to FOSAZ. 6. AUDIT OF BOOKS AND RECORDS A. FOSAZ shall have its books and records audited or reviewed annually by an independent accounting firm at FOSAZ expense, City shall receive annually from FOSAZ an audited or reviewed financial report, which shall include, but not be limited to, its statements of financial position and activities, This reviewed financial report shall be prepared by FOSAZ and accompanied by an independent auditor's report. B. City, using its own staff or all independent accounting firm and generally accepted accounting principles, shall have the right, at its expense, to audit all FOSAZ books and records annually. likewise, FOSAZ, using an independent accounting firm and generally accepted accounting principles, shall have the right, at its expense, to audit annually the City's books and records related to funds transmitted to the City by FOSAZ, City retains the right to audit FOSAZ administrative costs and other costs used to maintain the FOSAZ organization. 7. SPACE AND UTILITIES City shall provide space within Prentice Park for FOSAZ to establish an office at no charge to FOSAZ. Additionally, City shall provide utilities to FOSAZ at no charge. City shall provide telephone and computer online connections, but FOSAZ shall be responsible for monthly telecommunication charges, Page 7 of 11 25D -9 8. INSURANCE FOSAZ shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: i. Commercial General Liability Insurance. FOSAZ shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers, and representatives as additional insured(s) and shall include, but not be limited to, protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of FOSAZ's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the aggregate. Such insurance shall (a) name the City, its officers, employees, agents, voluunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self- insurance programs maintained by the City; and (c) contain standard separation of insured's provisions. ii. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired, and non -owned automobiles. iii. Worker's Compensation Insurance. In accordance with the provisions of California State Law, FOSAZ, if FOSAZ has any employees, is required to be insured against liability for worker's compensation or to -undertake self-insurance. FOSAZ shall obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. iv. The following requirements apply to the insurance to be provided by FOSAZ pursuant to this section: a. FOSAZ shall maintain all insurance required above in full force and effect for the entire period covered, by this Agreement. Page 8 of 11 25D -10 b. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved by the City. C. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. 9. INDEMNIFICATION A. FOSAZ shall protect, indemnify, hold harmless, and defend City, its officials, officers, employees, representatives , and agents, from and against any and all claims, losses, liability, demands, damages, costs, expenses, or attorneys' fees, caused by or arising out of FOSAZ's negligent acts or omissions, or willful misconduct, in the performance or nonperformance of their obligations under the covenants, terms, conditions, and provisions of this Agreement. B. City shall protect, indemnify, hold harmless, and defend FOSAZ, its directors, officers, employees, and agents, against any and all claims, losses, liability, demands, damages, costs, expenses, or attorneys' fees, arising out of City's negligent performance or nonperformance of its obligations under the covenants, terms, conditions, and provisions of this Agreement. 10, GENERAL LICENSE City hereby grants FOSAZ, its directors, officers, employees, contractors, subcontractors, and consultants a nonexclusive license to enter upon and use the Zoo facilities in connection with FOSAZ's execution of its responsibilities established by this Agreement, includ ng, but not limited to, organizing small group meetings and large /group community meetings and events at the Zoo, such as fundraising events, programs, and torus of Zoo facilities in connection with this Agreement. Any use of the Zoo facilities by FOSAZ must be approved by the Zoo Director, 11. INDEPENDENT CONTRACTOR In the exercise of its obligations under this Agreement, FOSAZ shall act at all times as an independent contractor and not as an employee of the City. Nothing in this Agreement shall be construed to establish a partnership, joint venture, group, pool, syndicate, or agency be ween'the Parties. No provision contained herein shall be construed as authorizing or empowering either party to asstane or create any obligation or responsibility, whatsoever, express or implied, on behalf, or in the name of, the other party in any manner, or to make any representation, warranty, or commitment on behalf of the other party. In no event shall Page 9 of 11 25D -11 either party be liable for a) any loss incurred by the other party in the course of its performance hereunder, orb) any debts, obligations, or Iiabilities of the other party, whether due or to become due. This Agreement shall continence on the date first written above and terminate on February 28, 2019, unless tenninated earlier in accordance with Section 15, below. The term of this Agreement may be extended for one (2) two -year period, upon a writing executed by the City Manager and the City Attorney. 13. ASSIGNMENT The Parties shall not assign, transfer, or convey this Agreement or any interest that it may have in this Agreement without the other party's express consent or approval. Any attempted assignment without the required consent or approval shall be void and shall confer no right, title, or interest in or to this Agreement, or part thereof In the event of an unauthorized assignment, at the option of the party not making the assignment, this Agreement may be terminated upon reasonable notice to the party making the assignment. 14. ENTIRE AGREEMENT This Agreement represents the entire agreement between the Parties regarding the subject matter herein, and supersedes all prior negotiations, representations, and contracts, written or oral. This Agreement may only be amended by an instrument, in writing, signed by the Parties. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. 15. WAIVER The waiver of either party of any breach or violation of any covenant, tenn, condition, or provision of this Agreement shall not be deemed to be a waiver of any such covenant, term, condition, or provision, 16. TERMINATION This Agreement may be terminated by either party upon ninety (90) days written notice. In such event, the Parties shall satisfy all their respective obligations under this Agreement that may be due and owing through the effective date of termination. 17. SEVERABILITY In the event that one or more of the phrases, sentences, clauses, paragraphs or sections contained in this Agreement shall be declared invalid or unenforceable by valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect Page 10 of 11 25D -12 any of the remaining phrases, sentences, clauses, paragraphs or sections of this Agreement, which shall be interpreted to carry out the intent of the parties hereunder. 18. GOVERNING LAW AND VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: Maria D. Huizar Clerk of Council APPROVED AS TO FORM: CITY OF SANTA ANA David Cavazos City Manager SONIA R. CARVALHO FRIENDS OF THE SANTA ANA ZOO City Attorney By. John .Funk Assistant City Attorney RECOMMENDED FOR APPROVAL: Gerardo Monet Executive Director Parks, Recreation, and Community Services Agency Page I1 of I I 25D -13 25D -14