HomeMy WebLinkAboutContract 42483 CITY SECRETARY
coNTRACT No.
USE AGREEMENT
This Location Use Agreement ("Agreement") is made and entered into
this day of
2011) by and between City of Fort Worth, a home-rule municipal corporation of the State of Texas
("City"), acting by and through its duly authorized Assistant City Manager, and Toucan Productions
Inc. ("Producer"), a for-profit corporation, acting by and through its duly authorized Location
Manager. City and Producer are collectively referred to herein as the "Parties."
1. GRANT: For the term specified in Section 2 below, and any extensions thereof, City hereby
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grants to Producer, its affiliates, successors, assigns, licensees, employees, representatives,
independent contractors, and suppliers (all of whom are included in the term "Producer") the right
to enter upon (i) those portions of the Botanic Garden (3220 Botanic Garden Boulevard, Fort
'North, Texas 76107) depicted in Exhibit "A" and (ii) those portions of Saunders Park 2401 Mule
Alley, Fort North, Texas 76106) depicted in Exhibit B (collectively the "Premises") and to bring
equipment thereon and erect thereon temporary motion picture structures and sets in order to use
the Premises for the purpose of making still and motion pictures, commercials, trailers and
soundtrack recordings (individually and collectively, "Recordings") in connection with the
production currently entitled. "Phobia" �'Production"}.
2. TERM: Producer may use (i) the Botanic Garden portion of the Premises as reasonably
necessary for the photography and recording of the Production commencin g :at 300 m and
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continuing until 10:00pm Friday, October 21, 2011 and (ii) the Saunders Park P ortion of the
Premises as reasonably necessary for the photography and recording of the Production commencing
at 10:00pm Friday, October 21, 2011, and continuing until 4:00am Saturday, October 22, 2011
("Term").
3. CONSIDERATION: Producer agrees to pay the City the sum of One Thousand Five
Hundred Dollars and No Cents ($1,500.00) for the rights granted under this Agreement, whether
the Premises are actually used for the full time granted or not.
DESCRIPTION: The use of the Premises granted to Producer by City includes exterior areas only
and only those portions of the Premises depicted in Exhibits "A" and "B," which are attached
hereto and incorporated herein for all purposes as though they were set forth at length. Use of the
Premises shall exclude depiction of any signage and exclude the interior of any building bildi at either
park and the contents, furniture, and fixtures of any such building.
4. OPTIONS: At any time within 6 months from the date upon which the Term ends and with
the City's prior written consent, Producer may re-enter the Premises for such be y
eriod as may P
reasonably necessary to photograph retakes or added scenes, subject to Producer's P a Y ment of
additional consideration as mutually agreed to by the Parties. In addition, if Producer desires to
make subsequent use of the Premises in connection with the Production, City hereby ants Producer
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an option for such use, subject to the mutual agreement of the Parties concernin g the dates of use
and additional consideration to be provided by Producer.
5. PROTECTION AND RESTORATION OF PREMISES: Producer shall restore and Y geld
said Premises, equipment, and all other properties belonging to the City back to thf.
expiration of this Agreement in the same condition as existed at the c me ,i kgreement and in which Producer found them, reasonable wear and tear ex F rc� u
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�T� WORTH, Tx
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Location Use Agreement Page I Of 5
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pay the costs of repairing (to its condition immediately preceding the occurrence of such damage,
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reasonable wear and tear excepted) any damage that may be done to the Premises or the natural
environment by any act of Producer or any of Producer's employees, agents, officers or an
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visiting the Premises upon the invitation of Producer, excluding any such damage arising out of the
negligence or misconduct of the City, its employees, agents, or separate contractors. The City shall,
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in its reasonable discretion, determine whether any damage has been done, the amount of the
damage, the reasonable costs of repairing the damage, and whether, under the terms of the
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Agreement, Producer is responsible. City shall reasonably judge the of the maintenance
and/or damage of the Premises, fixtures, structures, or the natural environment by the Producer.
Producer shall remove from the Premises all equipment and ora tem P rY sets and other materials
placed thereon by Producer. If there is a dispute as to whether Producer has repaired any damages
to the Premises caused by Producer, City must first deliver to Producer a reasonably detailed list of
those items that have not been repaired and provide Producer with a reasonable opportunity PP tY to
inspect the Premises, but in no case less than seven (7) days after delivery of the list, to determine
the need for further repairs,if any.
G. RIGHTS: Producer, its successors, assigns, and licensees shall be and remain the sole owner of
all Recordings. Producer shall own all rights of every kind in and to the Recordings and all motion
pictures, videotapes, photographs, and other recordings and depictions made by Producer on or
about the Premises, and may reproduce, exhibit, and otherwise exploit such recordings or other
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depictions made on or about the Premises in connection with the Production in any manner or
media whatsoever (whether known or hereafter devised), in whole or in g
P art, throughout the world
in perpetuity, provided. however that, in the Production or any other use of the Recordings,
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Producer shall not refer to the Premises by its actual name or a derivation thereof, but has the right
to refer to the Premises by a fictitious name, the right to attribute fictitious events as occurrin g on
the Premises, and the right to replicate the Premises and use such replication in Producer's sole
discretion.
7. USAGE: Except as provided by Section 11 and Section 15 of this Agreement, City fiY ma Y not
terminate or rescind the permission granted to Producer hereunder. In the event of an claim b
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City against Producer, whether or not material, City shall be limited to City's remedies at law for
damages, if any, and City shall not be entitled to enjoin, restrain, or interfere with the filmin
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broadcast, exhibition, distribution or other exploitation of an of Producer's audio--visual works
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including, but not limited to the Production, or any of Producer's rights hereunder. City
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acknowledges and agrees that the Premises is a primary location for use by Producer as part art of the
photography of the Production, and that any interference with use thereof by Producer shall cause
Producer substantial monetary and other damage which can not be Y compensated ade q uatel in an
action at law for damages. Accordingly,without limiting any other right or remedy of Producer, City
agrees that Producer shall be entitled to injunctive and other equitable relief to prevent any
interference with use of the Premises by Producer hereunder. Nothin contained herein shall be
Nothing
construed to obligate Producer to use the Recordings, including without limitation to exhibit the
Production or any other program containing the Recordings, or to use any name connected with the
Premises in connection with any program.
8. INDEMNIFICATION: PRODUCER AGREES TO DEFEND, INDEMNIFY AND HOLD
THE CITY, ITS OFFICERS, AGENTS SERVANTS AND EMPLOYEES HARMLESS FROM
AND AGAINST ANY AND ALL CLAIMS, LAWSUITS, ACTIONS, COSTS AND EXPENSES
OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THOSE FOR PROPERTY
D,ALN1AGE OR I,OSS (INCLLTDING ALLEGED DAI\1I�kGE OR LOSS 'fO CI71'Y'S BLTSINESS
Location Use Agreement Page 2 of 5
AND ANY RESULTING LOST PROFITS) AND/OR PERSONAL INJURY, INCLUDING
DEATH, THAT MAY RELATE TO, ARISE OUT OF, OR BE OCCASIONED BY
(i) PRODUCER'S BREACH OF ANY OF THE TERMS OR PROVISIONS OF THIS
AGREEMENT OR (ii) ANY NEGLIGENT ACT OR OMISSION OR INTENTIONAL
MISCONDUCT OF PRODUCER, ITS OFFICERS, AGENTS, ASSOCIATES, EMPLOYEES
CONTRACTORS (OTHER THAN THE CITY) OR SUBCONTRACTORS, RELATED TO
PRODUCTION OR THE PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE
INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY
LIABILITY RESULTING FROM THE SOLE NEGLIGENCE OF THE CITY OR ITS
OFFICERS, AGENTS, EMPLOYEES, OR SEPARATE CONTRACTORS. IN THE EVENT
OF JOINT AND CONCURRENT NEGLIGENCE OF BOTH PRODUCER AND CITY
RESPONSIBILITY, IF ANY, SHALL BE APPORTIONED COMPARATIVELY IN
ACCORDANCE WITH THE LAMS OF THE STATE OF TEXAS. NOTHING HEREIN
SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY
AS FURTHER PROVIDED BY THE LAMS OF TEXAS.
9. INSURANCE: At its own expense and at all times durin g the term hereof, Producer shall
procure and maintain insurance that fully covers the risks and indemnity obligations assumed b
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Producer,including general liability and Premises damage insurance.
10. 'WARRANTIES: City warrants, represents, and agrees that Ci i tY s fully authorized to enter into
this Agreement and has the right to grant to Producer the use of the Premises as described herein
and to grant each of the rights herein granted.
11. FORCE MA SURE:
a. PRODUCER: If because of illness of actors, director, or other essential artists and
cretin; weather conditions; defective film or equipment; or any other occurrence beyond Producer's
control, Producer is unable to start work on the date designated above and/or
work-in-progress is
interrupted during the use of the Premises by Producer, Producer shall have the right, at Producer's
election, to (a) suspend and/or extend the Term so that Producer may use the Premises at a later
date to be mutually agreed upon by the Parties, or (b) terminate the Agreement.
b. CITY: If, by reason of Force Majeure as hereinafter defined, the City shall be
rendered wholly or partially unable to carry out its obligations under this Agreement, then the City
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shall give written notice of the particulars of such Force Majeure to Producer within a reasonable
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time after the occurrence thereof. The obligations of the City, to the extent affected by such Force
Majeure, shall be suspended during the continuance of the inabili claimed and for no longer period,
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and the City shall in good faith exercise its best efforts to remove and overcome such inabili
ty.
Licensee hereby waives any claim against City for damages b reason of an delay due t
Force Majeure.
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The term "Force Majeure" as utilized herein shall mean and refer to acts of God; strikes lockouts
or other industrial disturbances; acts of public enemies; wars; blockades; riots;
ots,
epidemics; public health crises; earthquakes; fires; floods; restraints or rohibitions b y an
p � y court,
board, department, commission, or agency of the United States or of any state; declaration of a state
of disaster or emergency by the federal, state, county, or City government in accordance with
applicable law; any arrests and restraints; civil disturbances; or explosions; or some other reason
beyond the partv's reasonable control.
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12. COPYRIGHT AND IMAGE PROTECTION: Producer, its designees, assi ee
gn ees gn s, may not
use the City of Fort Worth name or any of the designated marks or copyrights of the City of Fort
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North or the Premises or authorize such use on any Internet website or on any other on-line site
except as specifically approved by the City of Fort Worth. Producer, its designees or assignees, shall
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not have the right or license to manufacture or cause the production of merchandise items bearing
the designated mark or copyright.
13. COMPLIANCE WITH LAWS ORDINANCES RULES AND REGULATIONS: Producer
covenants and agrees that it shall not engage in any unlawful use of the Premises. Producer further
agrees that it shall not permit its officers, agents, servants, employees, contractors, subcontractors
patrons, licensees, or invitees to engage in any unlawful use of the Premises, and Producer
immediately shall remove from the Premises any person engaging g in such unlawful activities. Any
continued uncured unlawful use of the Premises by Producer, followin g written notice thereof to
Producer, shall constitute a breach of this Agreement. Producer
agrees to comply with all federal
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state, and local laws; all ordinances, rules and regulations of City of Fort Worth; all rules and
regulations established by the PACSD Director; and all rules and regulations adopted b the City
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Council pertaining to the conduct required on the Premises, as such laws, ordinances rules and
regulations exist or may hereafter be amended or adopted. If City notifies Producer or an of i
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officers, agents, employees, contractors, subcontractors, licensees or invitees of any violation of such
laws, ordinances, rules, or regulations, Producer shall use best efforts to bring an end to and correct
the violation.
14. SECURITY: Nothing herein shall make the City liable for, or a arantor of safe f
� � safety o P ersons
or property on the subject Premises herein. Producer acknowledges that Producer is not relying Y g on
the City to provide security services and that the City has made no respect
representations with res
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thereto. The Producer shall employ, at Producer's sole cost, at least one off-du Texas-
licensed peace officer to regulate access to the Premises and to revent unauthorized access
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to the Premises during the Term by individuals not affiliated with the Producer or the
Production. The Producer shall be solely responsible for all costs and expenses associated with
security systems and/or personnel employed by Producer to protect the Producer's ro er with
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any such security arrangements as might affect the Premises bein g subject to the City's bj l tY' approval.
15. HOMELAND SECURITY: If the United States Department of Homeland Security issues a
Level Orange or Level Red Alert, City, in its sole discretion, may terminate the Agreement
immediately.
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16. VENUE AND -JURISDICTION: If any action, whether real or asserted at law or in q equity,
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arises on the basis of any provision of this Agreement, venue for such action shall he in state courts
located in Tarrant County, Texas or the United States District Court for the Northern District
of
Texas —Fort North Division. This Agreement shall be construed in accordance with the laws of
the
State of Texas.
17. NOTICES: All written notices called for or required by this Agreement shall be addressed to
the following, or such other party or address as either party designates in writin g, by certified mail,
postage prepaid, or by hand delivery:
Location Use Agreement Page 4 of 5
IF TO CITY OF FORT WORTH IF TO PRODUCER
Parks and Community Services Department Toucan Productions Inc.
Attn: Richard Zavala Attn: Mark Mahlo
4200 South Freeway, Suite 2200 25 Highland Park Village
Fort North,Texas 76115 Dallas, Texas 75228
With copy to:
Denis McElroy
Assistant City Attorney
1000 Throckmorton Street
Fort North,Texas 76102
18. AUTHORIZATION: By executing this Agreement, Producer's agent affirms that he or she
is authorized by Producer to execute this Agreement and that all representations made herein with
regard to Producer's identity, address, and legal status (corporation, partnership, ind ividual etc.) are
true and correct.
19. SOLE AGREEMENT: This written instrument (including an exhibits, schedules or other
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attachments) constitutes the entire understanding between the arties hereto concerning the use of
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the Premises and any prior or contemporaneous, oral or written agreement that purports to vary
from the terms hereof shall be void.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date set forth above.
CITY OF FORT WORTH TOUCAN PRODUCTIONS INC.
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By:
By:
Susan a iVlark ahlo Nk
Assistant City Manager � -�-o-!Z ocation Manager
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City Secretary ry � ]�v0 o0
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00000000 47,
APPROVED AS TO FORM AND LEGALITY
By:
Denis (1-: cElr , Assistant City Attorney
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NO M&C R UIRED
OFFICIAL RECORD
CITY SECRETARY
FT, WORTH, TX
Location Use Agreement Pale 5 of 5
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