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HomeMy WebLinkAboutContract 40227LOCATION USE AGREEMENT cirr SECRETARY contrRncr NO, 4Q�� This Location Use Agreement ("Agreement") is made and entered into this Ji q 4o�k day of May, 2010 (the "Agreement"), 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 Searching For Sonny, L.P. ("Producer"), a Texas limited liability company, acting by and through its duly authorized representative. 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 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 Rockwood Golf Course, which is situated at 1851 Jacksboro Highway, Fort Worth, Texas 76114 ("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 "Searching for Sonny" ("Production"). 2. TERM: Producer may use the Premises as 'reasonably necessary for the photography and recording of the Production commencing at 7:30pm Monday, May 17, 2010, and continuing until 6:00am Tuesday, May 18, 2010 ("Term"). 3. CONSIDERATION: As full and complete consideration for the use of the Premises, Producer agrees to create (or cause to be created by Red Productions, LLC) for City, at Producer's sole cost, a professional promotional video presentation showcasing the Premises (including the practice facility) in a format suitable for placement on the City's golf internet site (the "Video Presentation"). Production of the Video Presentation shall include all costs of materials, labor, editing, voice-over narration, and formatting. The Video Presentation will be considered to be a work for hire and will be the sole and exclusive property of the City. In the event that the video presentation is not copyrightable subject matter or is for any reason not deemed to be a work for hire, Producer hereby assigns all right, title, and interest in the Video Presentation to the City and will execute any documents required to evidence such assignment. Without limiting the foregoing, Producer understands and agrees that Producer will not retain any ownership rights whatsoever in or to the Video Presentation. Producer hereby warrants and represents that the Video Presentation will be original work and will not infringe on or violate rights of any person or entity, including without limitation any copyrights, trademarks, or rights of privacy or publicity. This provision shall survive the termination or expiration of this Agreement. 4. DESCRIPTION: The use of the Premises granted to Producer by City includes only exterior areas and fixtures behind the Rockwood Golf Course clubhouse building, including but not limited to the golf course. Premises shall exclude the interior of the Rockwood Golf Course clubhouse and its contents, furniture, and fixtures. 5. OPTIONS: At any time 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 payment 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 grants Producer an option for such use, subject to the mutual agreement of the Parties concerning the dates of use and additional consideration to be provided by Producer. 5. PROTECTION AND RESTORATION OF PREMISES: Producer shall restore and yield said Premises, equipment, and all other properties belonging to the City back to the City at the expiration of this Agreement in the same condition as existed at the commencement of this Agreement and in which Producer found them, reasonable wear and tear excepted. Producer will pay the costs of repairing (to its condition immediately Location Use Agreement preceding the occurrence of such damage, 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 anyone 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 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 Agreement, Producer is responsible. City shall reasonably judge the quality 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 temporary 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 which have not been repaired and provide Producer with a reasonable opportunity 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. 6. RIGHTS: Producer, its successors, assigns and licensees shall be and remain the sole owner of all Recordings save and except the Video Presentation. Producer shall have all rights, without limitation, perpetually and irrevocably in all media and technology now known or hereafter devised, throughout the universe, to use and reuse said Recordings in connection with any productions as Producer shall elect. 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 occurring 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 may not terminate or rescind the permission granted to Producer hereunder. In the event of any claim by 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 filming, broadcast, exhibition, distribution or other exploitation of any of Producer's audio-visual works, including, but not limited to the Production, or any of Producer's rights hereunder. City acknowledges and agrees that the Premises is a primary location for use by Producer as part 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 adequately compensated 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. Nothing contained herein shall be 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 DAMAGE OR LOSS (INCLUDING ALLEGED DAMAGE OR LOSS TO CITY'S BUSINESS 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 PRODUCERAND CITY, RESPONSIBILITY, IF ANY, - - SHALL BE APPORTIONED COMPARATIVELY IN ACCORDANCE WITH THE LA OF THE STATE OF TEXAS. NOTHING HEREIN SHALL BE CONSTRUED AS A WAIVER OF THE CITY'S GOVERNMENTAL IMMUNITY AS FURTHER PROVIDED BY THE LAWS OF TEXAS. Fr. WOR1rH, TX Location Use Agreement Page 2 of 4 9. INSURANCE: At its own expense and at all times during the term hereof, Producer shall procure and maintain insurance that fully covers the risks and indemnity obligations assumed by Producer, including general liability and Premises damage insurance. 10. WARRANTIES: City warrants, represents, and agrees that City is 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 MAJEURE0 a. PRODUCER: If because %J illness of actors, director, or other essential artists and crew; 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 shall give written notice of the particulars of such Force Majeure to Producer within a reasonable 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 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 reason of any delay due to Force Majeure. 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; insurrections; riots; epidemics; public health crises, earthquakes; fires; floods; restraints or prohibitions by any 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 party's reasonable control. 12. COPYRIGHT AND IMAGE PROTECTION: Producer, its designees, and assignees, may not use the City of Fort Worth name or any of the designated marks or copyrights of the City of Fort Worth or Rockwood Golf Course 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 and Rockwood Golf Course. Producer, its designees or assignees, shall 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 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 PACSD Directors and all rules and regulations adopted by the 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. 14. SECURITY: Nothing herein shall make the City liable for, or a guarantor of, safety of persons or prope/ty on the subject Premises herein. Producer acknowledges that Producer is not relying on the Ciiy to provide security services and that the City has made no representations with respect thereto. The Producer shall Location Use Agreement Page 3 of 4 employ, at Producer's sole cost, at least one off -duty peace officer to regulate access to the Premises and to prevent unauthorized access 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 property, with any such security arrangements as might affect the Rockwood Golf Course being subject to the City's 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. 16. VENUE AND JURISDICTION: If any action, whether real or asserted, at law or in equity, arises on the basis of any 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. 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 writing, by certified mail, postage prepaid, or by hand delivery: If to City of Fort Worth Parks and Community Services Department Attn: Richard Zavala 4200 South Freeway, Suite 2200 Fort Worth, Texas 76115 With copy to: Denis McElroy Assistant City Attorney 1000 Throckmorton Street Fort Worth, Texas 76102 If to Producer Red Productions, LLC Attn: Justin L. Sanders 1075 Foch Street Fort Worth, Texas 76107 Pierce Law Group LLP Attn: Briana Hill 91)0 Wilshire Boulevard Suite 225 East Beverly Hills, California 90212 IN WITNESS WHEREOF, the parties have signed this Agreement as of the date set forth above. CITY OF FORT WORTH By: Charles W. Dame Assistant City Manager s ATTEST: � b City Secretary APPROVED AS TO FORM AND LEGALITY Assistant City Attorney SEARCH�NG�'OR SONNY, L.P. By: _ Justin Signatory OFFICIAL RECORD' CITY SECRETARY Location Use Agreement FT. WORTH, TX