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HomeMy WebLinkAboutContract 44680 (2)CITY SECRETARY y �C'. u CONTRACT NO. / LOCATION USE AGREEMENT FOR THE WILL ROGERS MEMORIAL CENTER BETWEEN THE CITY OF FORT WORTH AND SIXTY SIX MEDIA, INC. 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 Sixty Six Media, Inc. ("Producer") acting by and through its duly authorized Development Director. City and Producer are collectively referred to herein as the "Parties." WHEREAS, the Mustang Heritage Foundation operates the Mustang Million, a competitive equestrian event ("Event") to be held within the Will Rogers Memorial Center located at 3401 W Lancaster Avenue, Fort Worth, Texas; WHEREAS, Producer is seeking permission from the City to enter upon the Will Rogers Memorial Center for the purpose of making still and motion pictures, commercials, trailers, and soundtrack recordings in connection with the Event; and WHEREAS, the City has determined that the filming and production of the Event 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, successors, assigns, agents, representatives, officers, 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 making still and motion pictures, commercials, trailers, and soundtrack recordings (individually and collectively, "Recordings") in connection with the production tentatively titled "Mustang Million" ("Production"). 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 f OFFICIAL RECORD which the City has made the Producer aware in writing. CITY SECRETARY 2. FT. WORTIt T Term and Termination 2.01 Term. This Agreement shall be effective beginning on April 25, 2013 and ending at 11:59 Location Use Agreement with Sixty Six Media, Inc. 1 of 11 RECEIVED AUG - 2 2013 pan. on September 21, 2013 ("Term"), unless terminated earlier pursuant to the terms of this Agreement. 2.02 Option. 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 provision 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 written agreement of the Parties concerning the dates of use and any additional consideration to be provided by Producer, but otherwise on the same terms as herein contained. 2.03 Termination. 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 comply with any material term or condition of this Agreement while physically on the Premises, the City may (1) in the event of a breach that City reasonably believes may cause harm or damage to persons or property, terminate this Agreement immediately without notice to the Producer or (2) permit the Producer the opportunity to cure any such default by giving the Producer written notice describing the default in reasonable detail and the time period by which to cure, as reasonably determined by the City. Any other material breach of this Agreement by the Producer will be subject to a 30-day cure period, to the extent the breach is curable, after receipt by the Producer of written notice of such breach from the City. 3. Consideration 3.01 The City finds that the Production will bring favorable attention and publicity to the City and further finds that this advantage constitutes adequate consideration for use of the Premises. 4. Condition, Protection, and Restoration of Premises 4.01 Producer hereby acknowledges that (a) it accepts the Premises in its present condition, and (b) City has made no representations to it regarding the suitability for any particular purposes. 4.02 Producer covenants and agrees that it shall take the Premises as it finds them and 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 shall remove from the Premises all equipment and temporary sets and other materials placed thereon by Producer. 4.03 If the City determines that the Producer, or its invitees, has damaged the Premises, then the City shall inform the Producer, in writing in reasonable detail, of such damage and the cost of repair within fifteen (15) business days after termination or expiration of this Agreement. Producer shall have thirty (30) calendar days after receipt of the City's letter to issue payment to the City for any undisputed amounts. If a dispute arises concerning any amounts due to the City under this section, Producer shall notify the City, in Location Use Agreement with Sixty Six Media, Inc. 2 of 11 writing, of the nature of its dispute and the specific reasons for such dispute within thirty (30) days after receiving City's demand or invoice. Failure by the Producer to notify the City of such a dispute within the required time shall be deemed a waiver to dispute such losses and damages, and the Producer must pay any and all remaining amounts upon demand by the City. 4.04 If the Parties fail to resolve the dispute within sixty (60) calendar days of the date of receipt of the notice of the dispute, then the parties may submit the matter to non -binding mediation upon written consent of the authorized representatives of both parties in accordance with Chapter 154 of the Texas Civil Practice and Remedies Code and Chapter 2009 of the Texas Government Code, then in effect. Request for mediation shall be in writing, and shall request that the mediation commence not less than fifteen (15) or more than forty-five (45) calendar days following the date of request, except upon agreement of the Parties. The parties shall share the mediator's fee and any filing fees equally. Venue for any mediation or lawsuit arising under this Agreement shall be in Tarrant County, Texas. Any agreement reached in mediation shall be enforceable as a settlement agreement in any court having jurisdiction. No provision of this agreement shall waive any immunity or defense. No provision of this Agreement constitutes consent to sue. If the Parties cannot resolve the dispute through mediation, then either party shall have the right to exercise any and all remedies available under law regarding the dispute. 5. Rights to Recordings and Production 5.01 Producer shall be and remain the sole owner of all Recordings. Producer shall own all rights of every kind in and to the Recordings 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 recordings or other 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 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 Recordings nor the Production 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-Partv 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 Recordings or Production. 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 Location Use Agreement with Sixty Six Media, Inc. 3 of 11 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 RELATED TO THE USE OF THE PREMISES) AND/OR PERSONAL 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 RELATED TO PRODUCTION, RECORDINGS, OR THE PERFORMANCE BY THE PRODUCER OF THIS AGREEMENT; EXCEPT THAT THE INDEMNITY PROVIDED FOR IN THIS SECTION SHALL NOT APPLY TO ANY CLAIMS OR LIABILITY RESULTING FROM THE NEGLIGENCE OR INTENTIONAL MISCONDUCT 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 LAWS 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. 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, pay for and maintain the following insurance written by companies approved by the State of Texas and acceptable to City. The insurance shall be evidenced by delivery to City of executed certificates of insurance and/or certified copies of policies as determined by City as needed in the event of a claim by the City. 7.02 Producer covenants and agrees to obtain and keep in force during the term of this Agreement, Commercial General Liability Insurance, including Personal Injury Liability, Independent Location Use Agreement with Sixty Six Media, Inc. 4 of I 1 Contractors Liability and Contractual Liability covering, but not limited to, the liability assumed by Producer under the indemnification provisions of this Agreement, with limits of liability for bodily injury (including death) and property damage of not less than One Million Dollars ($1,000,000), with an aggregate of not less than Two Million Dollars ($2,000,000). All insurance policies shall include the following: 1) The term of insurance is for the duration of each Event, which includes the period from the right of access to set-up through the period allowed for removal of property; 2) The Producer is responsible for providing the City a thirty -day (30) notice of cancellation or non -renewal of any insurance policy and will endeavor not to change the terms and conditions of any policy that would limit the scope or coverage, or otherwise alter or disallow coverage as required herein; 3) All policies shall include a Waiver of Subrogation (Right of Recovery) in favor of the City of Fort Worth; 4) 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 included 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. 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 B+:VIII or better rating by the most current version of the A. M. Best Key Rating Guide. 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 Location Use Agreement with Sixty Six Media, Inc. 5 of 11 the coverage is claims -made and the retroactive date. The insurance coverage shall be maintained for the duration of the contractual agreement and for three (3) 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 endorsements. 7.03 Producer hereby waives subrogation rights for loss or damage against City, its officers, agents and employees for personal injury (including death), property damage or any other loss. 7.04 The City may terminate this Agreement immediately upon the failure of the Producer to provide acceptable documentation of insurance as required by this Agreement. 8. Force Majeure 8.01 Producer. If, because of 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. 8.02 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. The Parties hereby waive any claim against the other party for damages by reason of any delay due to Force Majeure. 8.03 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 parry's reasonable control. Location Use Agreement with Sixty Six Media, Inc. 6 of 11 9. Intellectual Property 9.01 Producer may not use any designated marks or copyrights of the City of Fort Worth or the Fort Worth Will Rogers Memorial Center 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 or except as may be captured within the 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 applicable to the Production, 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 the reproduction or use of any intellectual property by Producer without the appropriate licenses or permission being secured by Producer 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, REASONABLE 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 NEGLIGENCE OR INTENTIONAL MISCONDUCT OF THE CITY. City expressly assumes no obligation to review or obtain appropriate licensing relating to third party intellectual property located at the Premises and all such licensing shall be the exclusive obligation of Producer. 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 Location Use Agreement with Sixty Six Media, Inc. 7 of 11 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 (the "Laws"). If City notifies Producer of any violation of such Laws, Producer shall all commercially reasonable efforts to bring an end to and correct the violation. The City is responsible for ensuring that the Premises is operated in compliance with all Laws. 11. 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 provide security services and that the City has made no representations with respect thereto. 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 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 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 prepaid, or by hand delivery: If to City of Fort Worth Public Events Department Attn: Kirk Slaughter 1201 Houston Street Fort Worth, Texas 76102 With copy to: City Attorney City of Fort Worth 1000 Throckmorton Street Fort Worth, Texas 76102 either party designates in writing, by certified mail, postage 14. Right of Entry If to Producer Sixty Six Media, Inc. Attn: Sara Rodriguez 125 West End Avenue New York, NY 10023 14.01 At all times during the term of this Agreement, City shall have the right, through its agents Location Use Agreement with Sixty Six Media, Inc. 8 of 11 and representatives, to enter into and upon the Premises during reasonable business hours for the purpose of examining and inspecting the same for the purpose of determining whether Producer shall have complied with all of its obligations hereunder in respect to the use of the Premises but the City agrees to use all reasonably commercial efforts not to interfere with the Production. 14.02 During any inspection, City may perform any obligations that City is authorized or required to perform under the terms of this Agreement or pursuant to its governmental duties under federal state or 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 a Parry's rights to insist upon a strict compliance by the other party 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. Location Use Agreement with Sixty Six Media, Inc. 9 of 11 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 execute this Agreement on behalf 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. Press Releases 21.01 The City agrees not to issue any press releases about the Production without the Producer's or National Geographic's respective prior written permission. 22. Copyright and Image Protection 22.01 Producer may not use the designated marks or copyrights of the City of Fort Worth 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 or except as may be captured within the Production. Producer, its designees, or assignees, shall not have the right or license to manufacture or cause the production of merchandise items bearing such designated marks or copyrights. The City agrees not to use National Geographic's or Producer's name, logo, trademarks or other proprietary marks (or those of any of their affiliated entities) in any manner without National Geographic's or Producer's (as appropriate) prior written approval in each instance. 23. 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. [SIGNATURES APPEAR ON THE FOLLOWING PAGE] Location Use Agreement with Sixty Six Media, Inc. 10 of 11 IN WITNESS WHEREOF, the parties have signed this Ageement on day of ,2013, CITY OF FORT WORTH SIXTY SIX MEDIA, INC By: Susan Alanis Assistant City Manager APPROVED AS TO FORM AND LEGALITY: By: Assistant City Attorney ATTEST: By: City Secretary No M&C required By: O9gucc Him Development Director Location Use Agreement with Sixty Six Media, Inc. 11 of 11 IN WITNESS WHEREOF, the parties have signed this Agreement on 2- day of /1u5f ,2013. CITY OF FORT WORTH SIXTY SIX MEDIA, INC Byeiwwoh Susan Alanis Assistant City Manager APPROVED AS TO FORM AND LEGALITY: No M&C required Location Use Agreement with Sixty Six Media, Inc. By: Sara Rodriguez Development Director OFFICIAL RECORD CITY SECRETARY FT. 1A9 H,TX