HomeMy WebLinkAboutContract 46881 CITY SECRETAW II
CONTRACT NO. f
d
LOCATION USE:AGREEMENT FOR THE WILL ROGERS MEMORIAL CENTER
BETWEEN THE CITY OF FORT WORTH AND VOLVO TRUCKS NORTH AMERICA
This Location Use Agreement (!Agreement") is made and entered into 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 Volvo Trucks North America, ("Producer') acting by and
through its duly authorized agent.City and Producer are collectively referred to herein as the"Parties."
WHEREAS,Producer is seeking permission from the City to enter upon the Will Rogers Memorial
Center for the purpose of taking still images to be used for the 2016 Volvo Trucks North America calendar
("Project");and
WHEREAS,the City has determined that the photography and production of the Project will bring
favorable publicity to:the,City and desires to make its facilities available to the Producer in accordance
with the terms of this.Agreement.
NOW, THEREFORE, City and Producer for and in consideration of the covenants and
agreements hereinafter set forth,the sufficiency of which is hereby acknowledged,agree as follows:
1.
Premises
1.01 For the Term specified in Section 2 below,and any extensions thereof;City hereby grants to
Producer, its affiliates, successors, assigns, licensees, employees, representatives, independent contractors,
and suppliers(all of whom shall be included in the term"Producer")the non-exclusive right to enter upon,
in, and around the Fort Worth Will Rogers Memorial Center, which is situated at 3401 W Lancaster Ave,
Fort Worth, Texas 76107("Premises"),and to bring equipment thereon to use the Premises for the purpose
of taking still photography ("Images") in connection with the project tentatively titled"2016 Volvo Trucks
North America calendar"("Project').
1.02 The use of the Premises granted to Producer by City includes both the exterior areas and
fixtures of the Premises. Access to the interior of the Premises shall only be allowed during the City's
normal operating hours and shall not include any areas deemed restricted by the City in its sole discretion.
,a Y... 2.
Term and Termination
2.01 Term.,::11&:Agr6eihent shall be effective beginning on July 27, 2015 and ending at 11:59
p.m.on July 28,2015("Term's,unless terminated earlier pursuant to the terms of this Agreement.
2.02 CWlioh.dAt anytime within 6 months from the date upon which the Term ended and with
the City's prior written consent,.Producer may re-enter the Premises for such period as may be reasonably
necessary to photograph!retakes or added scenes,subject to Producer's provision of additional consideratio1 2 34 S
as mutually agreed to by the Pasties. In addition,if Producer desires to make subsequent use of the 6
in connection with thePr
ojot;.�C ty�hereby Pwduces such use, subject to
Location Use Agreement with Volvo Truclm North Amtrica OFFICIAL RECORD 1 ofl����
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CITY SECRETARY
FT. WORTH,TX �� cOFFc
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written agreement,of t e•'.Parties concenfu%Vieldaws.6fiuse and-anry additional consideration to be provided
by Producer.
..
2.03 Termination,r- it is expressly provided that City and• Producer shall have the right to
terminate this Agreement with or without cause upon thirty (30) days' written notice. In the event that
Producer fails to Ycasq*'.-vittd.: ty of xhe:teams.axid:;¢o --ufj this ANgTeement, City shall have the right,
without notice,to-declare the'Agreement itnmediately'terFitinated.
3.
Consideration
3.01 The City finds that the Project will bring favorable attention and publicity to the City and
further finds that this advantage constitutes adequate consideration for use of the Premises.
Condition,Protection,and Restoration of Premises
4.01 Producer hereby ecknom4edgesAhid fiky it.accepts the Premises in its present condition, and
(b) City has mada..na;representations,:tfl.it-mprdtng:the-,safeness•.thereof or suitability for any particular
purposes. °.` :, • �.:
4.02 Producer,covenants and agrees that'it,shall talce the.Premises as it finds them and Producer
shall restore and yieiil sdid',,Pm. tses,.,equipment;;,4nd ak.:other:propertics belonging to the City back to the
City at the expkation•;:of this ftreement n.-the .same,condition as existed at the commencement of this
Agreement and irr-which Producer;found,ttlbm,,reasonablawear.and tear excepted. Producer will pay the
costs of repairing(to:'its..aondifloa•-immediately.preieding',the.occurrence of such damage, reasonable wear
and tear excepted).-.any damage,that may.tae.done'totthe Premises or the natural environment by any act of
Producer or anyxme 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 contractors. The City shall,
in its reasonableAiscretien,?determine whether any damage has been done,the amount of the damage,the
reasonable costs�,of,roaifi%,,the>damage,,and::whether under the terms of the Agreement, Producer is
responsible. City:i a-.xmmonably=judge.:the:,gmhty of-the•.maintenance and/or damage of the Premises,
fixtures, structuPms;,or.;the.natuibL an#isoy mW)'.bl,.'Oe:Fraducer.YaFroducer shall remove from the Premises
all equipment andiemporary.satslend�btber�;:p 'thdteon*%Producer. If there is a dispute as to
whether Produces idm>Wired'*W4amgevitdlbe�ftemises'aaused:by,,Producer, City must first deliver to
Producer a reasdriala -det iled)list:4f:thowl.kems.Gtd haieeAnot been repaired and provide Producer with a
reasonable oppactun ty to.innspect;the ftw isms but`tg;�o case:less•tl an:seven(n days after delivery of the
list,to determine:4m-meed for.further,aepdrs of any.
.. • :�SBigt►h�to:'I�s,�es'.and':�'toject .
5.01 Ptdd.acer shall'be.andrromain?thei°salevwmr.,o€aU,Images. Producer shall own all rights of
Location Use Agreemeit-mAdi-Votvo TrucksWadh Ammica s• sf.. Page 2 of tO
every kind in and to the.Ihnages on or about the Premises except as those right may be restricted by this
Agreement or by law, and.;may reproduce, exhibit, and otherwise exploit such images or other depictions
made on or about the Premises in connection with the Project in any manner or media whatsoever(whether
known or hereafter devised), in whole or in part,throughout the world in perpetuity except as those rights
may be restricted by this Agreement or by law;provided,however,that Producer represents and agrees that
neither the Images nor the Project will in any way disparage the products of the City of Fort Worth or depict
the City of Fort Worth or its facilities and Premises in any manner or use that is, or that may claim to be,
defamatory, untrue, or censorable in nature, or bring harm to the heritage and history of Fort Worth or be
used in any other manner deemed inappropriate as determined in the sole reasonable discretion of the Fort
Worth City Manager.
6.
RELEASE AND INDEMNIFICATION
6.01 Third-Party Release. Producer acknowledges that City lacks legal authority to grant
permission for the use of the names or likenesses of individuals who might appear in the Images or Project
Producer shall be solely and exclusively responsible and liable with respect to obtaining any filming and
photography releases required with respect to persons and third-party property located on the Premises. At a
minimum,Producer shall provide and post signage in the immediate vicinity of its filming locations at the
Premises notifying members of the public that photographing and/or videotaping is being conducted.
Producer agrees to RELEASE, INDEMNIFY, AND HOLD HARMLESS THE CITY FROM AND
AGAINST ANY THIRD-PARTY CLAIM RELATING TO THE UNAUTHORIZED USE,FILMING,
TAPING, RECORDING, OR PHOTOGRAPHING OF ANY INDIVIDUAL OR THIRD-PARTY
PROPERTY.
6.02 GENERAL 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 ,DAMAGE OR LOSS (INCLUDING, BUT NOT LIMITED TO,
ALLEGED DAMAGE OR'LOSS TO CITY'S BUSINESS AND ANY RESULTING LOST PROFITS)
AND/OR PERSONAL'i-.,,INJURY, INCLUDING, BUT NOT LIMITED TO, DEATH,
(COLLECTIVELY, THE -CLAIMS") THAT ARISE OUT OF OR ARE 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 SOFF-ICERS, AGENTS, ASSOCIATES, EMPLOYEES, CONTRACTORS
(OTHER THAN THE CITY), OR SUBCONTRACTORS, RELATED TO PRODUCTION,
RECORDINGS, OR-'THE. PERFORMANCE OF THIS AGREEMENT; EXCEPT THAT THE
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INDEMNITY PROVIDED•'FOR'IN,'THIS SE+CTION:,.SRALL-NOT APPLY TO ANY CLAIMS OR
LIABILITY RESULTING,,FROM 'TflE 'NEGLIGENCE..OR INTENTIONAL MISCONDUCT OF
THE CITY OR ITS tOFFICERS) AGENTS,.EMPLOYEES, OR SEPARATE CONTRACTORS. IN
THE EVENT OF' JOINT AND CONCURRENT NEGLIGENCE OF BOTH PRODUCER AND
CITY, RESPONSIPILITY, 'IF,?'ANY' :,:SHALL .BE ;APPORTIONED COMPARATIVELY IN
ACCORDANCE'WITKTHE LAWS OFTHE'STATE"OFTEXAS.NOTHING HEREIN SHALL BE
CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER
PROVIDED BY THE LAWS OF TEXAS.
7.
Insurance
7.01 Prior to the time °Producer is-:entitled to,any right of access to or use of the Premises,
Producer shall procure,Spay for and maintain the foliowiiig-iri
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Risk Management.
c) Company issuing the insurance policy shall have no recourse against the City of Fort
Worth for payment of any premiums or assessments for any deductibles which all are at the sole
risk of Producer;
5) The terms"Owner","City"or City of Fort Worth shall include all authorities,Boards,Bureaus,
Commissions,Divisions,Departments,and Offices of the City and the individual members,
employees and agents thereof in their official capacities and/or while acting on behalf of the
City of Fort Worth.;and
6) The policy clause"Other Insurance"shall not apply to any insurance coverage currently held by
City,to any future coverage,or to City's self-insured retention of whatever nature.
7) The City,its officials,employees,agents and officers shall be endorsed as an"Additional
Insured"to all policies except Employers Liability coverage.
8) Coverage shall be written on a per occurrence basis and the policy shall include Broad Form
Property Damage Coverage with an insurance company satisfactory to City. If insurance
policies are not written for specified coverage limits, an Umbrella or Excess Liability insurance
for any differences is required. When required, Excess Liability shall follow form of the
primary coverage.
9) Automobile Liability Insurance shall provide coverage on any automobile, including and
defined as automobiles owned, hired and non owned with a One Million Dollar ($1,000,000)
combined single limit per accident or$250,000 Property Damage and $500,000 Bodily Injury
per person,per occurrence.
10) All policies shall be written by an insurer with an A-:VIII or better rating by the most current
version of the A. M. Best Key Rating Guide or with such other financially sound insurance
carriers acceptable to the City.
11) Deductibles shall be listed on the Certificate of Insurance and shall be on a"per occurrence"
basis unless otherwise stipulated herein.
12) If coverage is underwritten on a claims-made basis,the retroactive date shall be coincident with
or prior to the date of the contractual agreement and the certificate of insurance shall state that
the coverage is claims-made and the retroactive date. The insurance coverage shall be
maintained for the duration of the contractual agreement and for five (5) years following
completion of the service provided under the contractual agreement or for the warranty period,
whichever is longer. An annual certificate of insurance submitted to the City shall evidence
such insurance coverage.
13) Certificates of Insurance shall be delivered to the Will Rogers Memorial Center,3401 W
Lancaster,Fort Worth,Texas 76107,evidencing all the required coverages,including
Location Use Agreement with Volvo Trucks North America Page 5 of 10
endorsemefft.
7.03 Producer heieby-..'mWv6s•'.eubrogstift...,-rights:!':for logs or damage against City, its officers,
agents and employees for personal injury(including death),pfoperty.damage or any other loss.
7.04 Producer shall not do or permit to be done anything in or upon any portion of the Premises,
or bring or keep wVffing way conflict with the conditions of any
insurance policy dpdn the7f6inises'di any part*th f,'df lih'ainy way increase the rate of fire insurance upon
the Premises or on property kept therein, or in any way obstruct or interfere with the right of the other
tenants of the Facilities,or injure or annoy them.
7.05 The City may terminate this Agreement immediately upon the failure of the Producer to
provide acceptable,:documentation.!of-'unuran.ccas'Ticiqnired:bv-this Agreement.
FiorceMajeare
8.01 Pr.oducei.'.,.If, .bemse.-.dfeZInesi�,of.,.a)etors, director, or other essential artists and crew;
weather conditions; defieditive'-fil
rh ' quriqpmeor.-any other occurrence beyond Producer's control,
Producer is unable teetwitworkonAhe.date:designatedabove and/or work-in-progress is interrupted during
the use of the Preniiam.l y.Prodtx-eriPtedwer.;.sWl:,have.the right,, at Producer's election, to (a) suspend
and/or extend the.-.T�www�that4NWwer-.may.use.'-lbePremises at a later date to be mutually agreed upon by
the Parties,or(b),Ierminate4he,Agreatnent' :�v;,
8,02 as hereinafter defined, the City shall be rendered
wholly or partially-tisikblecto,;aM:,out-itd,-oWigadbns1 under.this Agreement,then the City shall give written
notice of the parficalars ioRsuch-TocceMovure,to Producer within a reasonable time after the occurrence
thereof. The obligations of the City,to thae3dent-affected by such Force Majeure,shall be suspended during
the continuance of the inability claimed and for-no longer period,and the City shall in good faith exercise its
best efforts to remove.and overcome such inability. Producer hereby waives any claim against City for
damages by reasomof any...dielay-dlietoFo;rce.'MAjeumi
8.03 TIeAeriv:-,-F*rwA*eu;e-sas-.AdHized4herdin shall tnean and refer to acts of God; strikes,
lockouts, or other.AMtWkl:14 liacb-pf wars; blockades; insurrections; riots;
epidemics; publiv,*hW*4cdsts-.:eaft4iiWws;;.';firek•-lio.ods;'i-itsh,vdnts or prohibitions by any court, board,
department, declaration of a state of disaster or
emergency by the al !.stWeleaunt.''.y,,oe.City..Smrhitent'-in.accordance with applicable law; any arrests
and restraints;ciAl!distudmmesi:.ore*gsiots;-.orsomeodw reason beyond the party's reasonable control.
Intellec4daIT"Wrty,
9.01 Prvducer xay,.nptiiww am of the City of Fort Worth or the
Fort Worth Will Rogem-Memorial'.Cmder nr-.authorize.suc-Inus4eanany internet website or on any other on-
Lmation Use Agmement-with VolviciMucks-North Ammica PRge 6 of 10
line site,except as specifically approved by the City of Fort Worth or except as may be captured within the
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recordings. Producer, its designees,or assignees, shall not have the right or license to manufacture or cause
the production of merchandise items bearing the City's designated marks or copyright.
9.02 Producer agrees to assume full responsibility for complying with all State and Federal
Intellectual Property Laws and any other regulations, including, but not limited to, the assumption of any
and all responsibilities for paying royalties that are due for the use of other third-party intellectual property
works by Producer. City expressly assumes no obligations, implied or otherwise, regarding payment or
collection of any such fees or financial obligations. City specifically does not authorize,permit,or condone i
the reproduction or use of any intellectual property by Producer without the appropriate licenses or
permission being secured by Consultant in advance. IT IS FURTHER AGREED THAT PRODUCER
SHALL RELEASE, DEFEND, INDEMNIFY, AND HOLD HARMLESS CITY FROM AND
AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, ACTIONS, OR EXPENSES OF
EVERY TYPE AND DESCRIPTION, INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S
FEES, TO WHICH THE CITY MAY BE SUBJECTED ARISING OUT OF OR RELATED TO
PRODUCER'S USE OF ANY THIRD-PARTY INTELLECUTAL PROPERTY BY REASON OF AN
ALLEGED OR ACTUAL INTELLECTUAL PROPERTY VIOLATION, EXCEPT THAT THE
INDEMNITY PROVIDED FOR IN THIS PARAGRAPH SHALL NOT APPLY TO ANY LIABILITY
RESULTING FROM THE SOLE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE
CITY.City expressly assumes no obligation to review or obtain appropriate licensing and all such licensing
shall be the exclusive obligation of Consultant.
10.
Compliance with Laws,Ordinances,Rules,and Regulations
10.01 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 in such unlawful activities. Any
continued,uncured,unlawful use of the Premises by Producer,following written notice thereof to Producer,
shall constitute a breach of this Agreement. Producer agrees to comply with all federal, state, and local
laws;all ordinances,rules,and regulations of City of Fort Worth;all rules and regulations established by the
Public Events Department Director(as communicated to the Producer);and all rules and regulations adopted
by the Fort Worth City 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 any of its
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.
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11. �
Location Use Agreement with Volvo Trucks North America Page 7 of 10
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Security
11.01 Nothing herein shall make the City liable for, or a guarantor of, safety of persons or
property on the subject Premises herein. Producer acknowledges that Producer is not relying on the City to
2.provide security servic `
es and thatthe City has made no representations with respect thereto. The Producer
J i .a
shall be solely respomible...for ail costs and expenses associated with security systems and/or personnel
employed by Producer to protect the Producer's property, with any such security arrangements as might
affect the Premises being subject to the City's approval.
12.
Venue and Jurisdiction
12.01 If any' action, whether real or asserted, at law or in equity, arises on the basis of any
.a
provision of this Agreement,venue for such action shall lie in state courts located in Tarrant County,Texas
or the United States District Court for the Northern District of Texas — Fort Worth Division. This
Agreement shall be construed in accordance with the laws of the State of Texas.
13.
Notices
13.01 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 writing, by certified mail, postage
prepaid,or by hand delivery:
If to City of Fort Worth If to Producer
Public Events Department Volvo Trucks North America
Attn: Kirk Slaughter Attn:Brandon Borgua
1201 Houston Street 7900 National Service Rd
Fort Worth,Texas 76102 Greensboro,NC 27409
With copy to:
City Attorney
City of Fort Worth
1000 Throckmorton Street
Fort Worth,Texas;76102; j
t
14.
.�. Right of Entry
14.01 At alikimis.'dtriring the term of this Agreement, City shall have the right,through its agents
and representatives,Wentec into'and upon the Premises during reasonable business hours for the purpose of
examining and inspect%tig the same for the purpose of determining whether Producer shall have complied
with all of its obligations hereuAd4 in respect to the use of the Premises.
,y e
14.02 During any.'inspection,City may perform any obligations that City is authorized or required
to perform under the'`".4 this'"Agreement or pursuant to its governmental duties under federal state or
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local laws,rules,or regulations.
15.
Independent Contractor
15.01 Producer shall operate hereunder as an independent contractor as to all rights and privileges
herein contained and nothing herein shall be construed as creating a partnership or joint enterprise between
Producer and City.
16.
No Waiver and Headings
16.01 The failure to insist upon a strict performance of any of the covenants or agreements herein
set forth or to declare a forfeiture for any violation thereof shall not be considered or taken as a waiver or
relinquishment for the future of City's rights to insist upon a strict compliance by Producer with all the
covenants and conditions.
16.02 The headings in this Agreement are inserted for reference only,and shall not define or limit
the provisions hereof.
17.
Review of Counsel
17.01 Each party,and if it so chooses,its attorney has had the opportunity to review and comment
on this document, therefore any rule of contract construction or interpretation that would normally call for
the document to be interpreted as against the drafting party shall not apply in interpretation of this
Agreement,and each section,portion,and provision of this Agreement shall be construed solely on the basis
of the language contained therein,regardless of who authored such language.
18.
Counterparts,Severability,and Amendment
18.01 This Agreement may be executed by the Parties in several counterparts,each of which shall
be deemed to be an original copy.
18.02 In the event any one or more of the provisions contained in this Agreement should for any
reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not-affect any other provision hereof, and this Agreement shall be construed as if
such invalid,illegal,or unenforceable provision had never been contained herein.
18.03 No amendment, modification, or alteration of the terms hereof shall be binding unless the
same is in writing,dated subsequent to the date hereof,and duly executed by the Parties.
19.
Signature Authority
19.01 The person signing this Agreement hereby warrants that he/she has the legal authority to
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execute this agreement on b6half of the respective party, and that such binding authority has been granted
by proper order,resolution, ordinance or other authorization of the entity. The other party is fully entitled
to rely on this warranty and representation in entering into this Agreement.
20.
Governmental Powers
20.01 It is understood and agreed that by execution of this Agreement,the City does not waive or
surrender any of its governmental powers.
21.
Entire Agreement
This written instrument (together with any attachments, exhibits, and appendices) constitutes the
entire understanding between the parties concerning the use of the Premises hereunder, 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 in Fort Worth,Tarrant County,Texas on
Icy day of I Li 2015.
CITY OF FORT WORTH VOLVO TRUCKS NORTH
AMERICA
By. oqd4�
Susgn Alanis randon Borgne
Assistant City Manager Manager,Content and Online Marketing
APPR ED AS TO RM AND LEGALITY:
By:
Assistant City Atto e
ATTE T•
B 0 M&C required
Cit S to $ �
OFFICIAL RECORD
CITY SECRETARY
FT.WORTH,TX
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