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HomeMy WebLinkAboutContract 46313 aTy sEcRETAV CONTRACT NO. LOCATION USE AGREEMENT This Location Use Agreement ("Agreement") is made and entered into this 3rd day of December, 2014 (the "Agreement"), by and between City of Fort Worth ("City"), a home-rule municipal corporation of the State of Texas, acting by and through its duly authorized Assistant City Manager, and Nowadays Orange Productions LLC ("Producer"), a Texas limited liability company, acting by and through its duly authorized Member. 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 the Botanic Garden,which is situated at 3220 Botanic Garden Boulevard,Fort Worth, Texas 76107 ("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 "Wounded Man (I Promise You Anarchy)" ("Production"). 2. TERM: Producer may use the Premises as reasonably necessary for the photography and recording of the Production commencing on December 4, 2014 at 6:30 AM, and continuing until December 4,2014 at 5:00 PM ("Term"). 3. CONSIDERATION: Producer agrees to pay the City the sum of One Thousand Two Hundred Fifty Dollars and No Cents ($11,250 00) upon execution of this Agreement,whether the Premises are actually used for the full time granted or not. Payment shall be made payable to the Fort Worth Botanic Garden. 4. DESCRIPTION: The use of the Premises granted to Producer by City includes the following portions of the Premises only: (1) the front parking lot, (2) the maintenance compound, (3) the area behind the headquarters building, and 4) the area adjoining the North Vista. 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 to-enter the Premises for such period as may be reasonably necessary to-photograph-retakes-or added-scenes,suhject_to-T oducer'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. 6. 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 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 vED 1A�0 P.N� CIAL ENG00 , RECEI A Locatioh Use Agreement FT.WORiTHo Ti ag 1 of 6 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. 7. 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 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, provided, however, that Producer represents and agrees that neither the Recordings not the Production will in any way disparage the products of the City of Fort Worth and the Fort Worth Botanic Garden or depict the City of Fort Worth or the Fort Worth Botanic Garden 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 discretion of the Fort Worth City Manager. 8. USAGE: Except as provided by Section 12 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,-C-ity-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. 9. THIRD-PARTY RELEASES: 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 Premises. At a minimum, Producer shall provide and post si gn age 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 Locatioh Use Agreement v Page 2of6 THIRD-PARTY CLAIM RELATING TO THE UNAUTHORIZED USE, FILMING, TAPING, RECORDING, OR PHOTOGRAPHING OF ANY INDIVIDUAL OR THIRD- PARTY PROPERTY. 10. INDEMNIFICATION: PRODUCER AGREES TO AND DOES HEREBY DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, 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, BUT NOT LIMITED TO, 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 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. 11. 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. 12. 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. 13. FORCE MAJEURE: a. 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. Locatioh Use Agreement CJ� Pale 3 of(i y 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 atrests and restraints; civil disturbances; or explosions; or some other reason beyond the party's reasonable control. 14. 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 Fort Worth Botanic Garden or authorize such use, including, but not limited to, on any internet website or on any other on-line site, except as specifically approved by the City of Fort Worth and Fort Worth Botanic Garden. 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. 15. 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-locaLJaws�-alLo-tdinanc_es,rules and regulations of City of Fort Worth; all rules and regulations established by the Director of the Parks and Community Services Department; 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. 16. SECURITY: 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 Fort Worth Botanic Garden being subject to the City's approval. Locatioh Use Agreement A Page 4 of 6 17. 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. 18. 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 IF TO PRODUCER ' Parks and Community Services Department Nowadays Orange Attn: Richard Zavala Productions LLC 4200 South Freeway, Suite 2200 Attn:Alex Garcia Topete Fort Worth,Texas 76115 17762 Preston Road, Ste. 202 Dallas,Texas 75252 With copy to: City of Fort Worth City Attorney's Office Attn. City Attorney 1000 Thtockmorton Street Fort Worth,Texas 76102 19. SOLE AGREEMENT: This written instrument and any attached exhibits constitutes the entire agreement by the parties hereto concerning the work and services to be performed and any prior or contemporaneous, oral or written agreement,which 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 NOWADAYS ORANGE PRODUCTI ,NS LLC Susan Alanis Name: L = -7TPETC7/ Assistant City Manager Title: Member APPROVED AS TO FORM AND LEGALITY Tyler Wawl ch Assistanr6ty Attorney -- OFFICIAL RECORD CITY SECRETARY �'�,T� Location Use Agreement Y'�nP Pa e 5 of G I ATTEST: °°°a°®4�� c�$ t® o� obi ary Iota s� ' gb City Secretary ��o° 00000 AS NO M&C REQUIRED i COR �� D ®�ptC9A � RY �tIV Sf Locatioh Use Agreement ��o"OIL Page 6 of 6