Loading...
HomeMy WebLinkAbout12131RESOLUTION NO. 12131 A RESOLUTION APPROVING A LOCATION AGREEMENT AND AN ADDENDUM TO THE SAME, TO PERMIT FILMING WITHIN THE PUEBLO FIREFIGHTERS' MUSEUM BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Location Agreement and Addendum between the City and Feeding Time Productions Inc. for filming within the Pueblo Firefighters' Museum, true copies of which are attached hereto, having been approved as to form by the City Attorney, are hereby approved. SECTION 2. The President of City Council is directed to execute the same on behalf of the City and the Clerk shall attest the same. INTRODUCED: April 25, 2011 BY: Judy Weaver COUNCILPERSON Background Paper for Proposed RESOLUTION DATE: AGENDA ITEM # M-8 April 25, 2011 DEPARTMENT: Law Department Thomas J. Florczak, City Attorney TITLE A RESOLUTION APPROVING A LOCATION AGREEMENT AND AN ADDENDUM TO THE SAME, TO PERMIT FILMING WITHIN THE PUEBLO FIREFIGHTERS' MUSEUM ISSUE Should the City Council approve the proposed Agreement and Addendum? RECOMMENDATION Approve the Resolution. BACKGROUND Feeding Time Productions, Inc. has requested permission to conduct certain filming within the Pueblo Firefighters' Museum. The proposed Agreement and Addendum permits Feeding Time Productions to conduct the requested filming. FINANCIAL IMPACT Unknown. PRODUCTION TITLE "HAUNTED COLLECTOR" Dated as of April 25th , 2011 LOCATION AGREEMENT 1 USE OF PROPERTY City of Pueblo, Colorado ( "Grantor ") hereby grants to Feeding Time Productions, Inc. (hereinafter called "Company ") and its representatives employees contractors, agents, independent producers and suppliers, permission to enter upon and use the exterior(s), interior(s) and contents (including signs, names, displays identifying features, furniture fixtures, etc.) of the property located at: 116 Broadway Ave. Pueblo, CO 81003 ( "Property ") for the purposes of recording certain scenes for the above - referenced program ( "Program ") including without limitation, photographing the Property and reproducing the Property elsewhere for the purpose of photographing the same accurately or otherwise by means of film tape videotape, digital formats or other medium 2. TERM The permission herein granted shall be for the 'Term" set forth in Schedule "A" attached hereto and incorporated herein by this reference which Term shall commence on or about April 30 — May 2 2011 (subject to change on account of weather conditions, changes in the production schedule of the Program or as set forth in Paragraph 7 below) (the "Commencement Date ") and shall continue until the completion of all scenes and work required on the Property in connection with the Program Grantor also grants permission for Company to reenter the Property for the purpose of making added scenes and retakes ( "Additional Use ") and Company and Grantor shall coordinate any such required Additional Use in good faith taking into account Company's required schedule Grantor agrees that for the three (3) month period immediately following the Term Grantor shall not allow the Property to be used in the filming or recording of or in any other manner in connection with any other unscripted /reality television production whether a series or single episode provided that the foregoing shall not preclude the use of the Property in a non - entertainment news story 3 CONDITION OF PROPERTY Company may place any and all necessary facilities materials and equipment, including temporary sets furniture and props, on the Property and agrees to remove same after the completion of Company's work and leave the Property in as good condition as when received reasonable wear and tear from uses permitted herein excepted Signs on the Property may but need not, be removed or changed by Company provided however that if such signs are moved or changed they shall be returned to their original position 4 INDEMNITY Company agrees to use reasonable care to prevent damage to the Property and Company agrees to indemnify and hold Grantor harmless from any third party claims arising out of a breach by Company of any undertaking or representation under this Agreement or any negligent or willfully wrongful acts by Company in connection with Company's activities on the Property Grantor hereby agrees to indemnify and hold Company harmless from any and all third party claims arising out of a breach by Grantor of any undertaking or representation under this Agreement or any negligent or willfully wrongful acts by Grantor (or its employees or agents) in connection with discharging its obligations hereunder 5 GRANT OF RIGHTS Company shall be the exclusive author owner and copyright proprietor of all of the results and proceeds relating to Company's use of the Property under this Agreement. Without limiting the generality of the foregoing Company shall own all rights of every kind in and to the photographs scenes and matter photographed or recorded at, in around and of the Property including the right to utilize the same in and in connection with the Program and /or any other productions as Company shall elect, and in connection with the production exhibition, promotion advertising and other exploitation thereof, in any and all manner and media whatsoever whether now known or hereafter known or recognized, in perpetuity and throughout the universe Company shall have no obligation to use, photograph, or depict the Property in the Program or any other production or to exercise any of the rights granted in this Agreement. Grantor hereby acknowledges that Grantor shall have no interest of any kind or nature whatsoever in the Program the motion pictures, still photographs and /or sound recordings and /or the other results and proceeds of Company's use of the Property hereunder and Grantor agrees that Company shall have all rights therein Grantor on its own HauntedC of lector- LocationAg mt 1 behalf and on behalf of any tenant having any interest in the Property or any materials contained in or about the Property hereby waives any claims they may have in connection with the use of the materials by Company, including without limitation claims for rights of privacy publicity defamation infringement of copyright and trademark infringement. 6 CONSIDERATION In full consideration of Grantor entering into this Agreement and granting to Company all rights granted hereunder Company shall pay Grantor the amount(s) set forth in Schedule "A" 7 POSTPONEMENT The Commencement Date and any and all obligations of the parties hereto shall be postponed for a period equal to the period of any Act of God fire, strike or other labor controversy law or other governmental regulation which hinders or prevents Company's normal business operations or production of the Program or other event of force majeure (as such term is customarily defined by Company) plus such additional period of time as Company may reasonably require to recommence production of the Program 8 ELECTION NOT TO PROCEED Company shall have no obligation to use the Property or include the Property in the Program Should Company elect at any time not to use said Property for filming or any other purposes (which Company shall have the right to do) written notice thereof will be given by Company to Grantor If such written notice is given prior to Company using the Property Grantor shall not be entitled to any compensation hereunder and thereafter the parties hereto shall be released from any and all of their respective obligations hereunder If such written notice is given after Company uses the Property Company shall remain obligated to restore the Property as provided above and Grantor shall only be entitled to receive, as full compensation for Company's use of the Property either the negotiated daily rate for each day of preparation and /or photography that Company actually used the Property or a pro -rated amount of the negotiated fee for each day during which Company used the Property, whichever is applicable 9 RELEASE OF CLAIMS After Company has completed its work at the Property including all necessary restoration if any Company shall be deemed to have fully and properly vacated the Property and shall be relieved of any and all obligations in connection with the Property unless Grantor within five (5) business days after Company leaving the Property, informs Company in writing of any damage to the Property and /or restoration not completed to Grantor's satisfaction and Grantor shall permit Company and /or its representatives to inspect the Property so damaged Unless the foregoing timely notice is given to Company Grantor hereby agrees upon Company's request to promptly sign and deliver to Company a release in form and substance approved by Company 10 GRANTOR REMEDIES The rights and remedies of Grantor in connection with this Agreement, including, without limitation in the event of any breach by Company of this Agreement, shall be limited to Grantor's right to recover damages, if any in an action at law and Grantor waives any right or remedy in equity including without limitation any right to terminate or rescind this agreement, or any right granted to Company hereunder, or to enjoin or restrain or otherwise impair in any manner the production distribution exhibition or other exploitation of the Program or any parts or elements thereof or the use publication or dissemination of any advertising in connection therewith 11 GRANTOR WARRANTIES Grantor represents and warrants that Grantor has the full right and complete authority to enter into this Agreement, that the consent of no other party is necessary to effectuate the full and complete permission granted herein to Company to use the Property as described above or to grant the rights conveyed to Company hereunder and that the use of the Property as provided herein shall not violate any applicable ordinance, zoning restriction or local laws 12. NOTICES All notices required under this Agreement shall be in writing and shall be given either by personal delivery, telecopier (with a copy sent by regular or overnight mail [postage prepaid]) or by regular or overnight mail (postage prepaid) and shall be deemed given hereunder on the date personally delivered or telecopied on the date one (1) business day after the date delivered to an overnight mail carrier the date two (2) business days after the date mailed if mailed by regular mail in the United States to a destination in the United States or the date seven (7) business days after the date mailed if mailed by regular mail outside of or to a destination outside of the United States. Until further notice the addresses of the parties shall be as follows For Grantor City Manager H aunted C of lector -Locat ionAgmt 2 City of Pueblo Colorado 200 South Main St Pueblo, CO 81003 For Company Feeding Time Productions Inc. 8929 S Sepulveda Blvd 5 Floor Los Angeles, CA 90045 13 CONFIDENTIALITY Grantor agrees to keep in strictest confidence and not to disclose to any third party at any time (i e., prior to, during or after the use of the Property hereunder) any information or materials of any kind, including without limitation any information or materials concerning or relating to Company or the Syfy cable programming service or any other television networks or cable platforms of NBC Universal, Inc. (' Network "), the business of Company or Network, any program produced by Company or exhibited by Network, including, without limitation any information concerning or relating to the Program the Program participants, the location(s) of the Program the events contained in the Program or the outcome of any event in the Program that Grantor read hears or otherwise acquires or learns in connection with or as a result of this Agreement (collectively the 'Confidential Information ") Grantor acknowledges and agrees that all Confidential Information is confidential and the exclusive property of Company or Network. At no time will Grantor, directly or indirectly, divulge in any manner, or use or permit others to use any of the Confidential Information Grantor's obligations with respect to confidentiality as set forth in this Paragraph shall continue in perpetuity or until terminated by Network in writing In no event shall Grantor have the right to terminate these confidentiality obligations. Without limiting the foregoing, Grantor shall not consent to and /or authorize any promotion or publicity in connection with this Agreement, the Program or the use of the Property hereunder hereunder without the express prior written approval of Company For the avoidance of doubt, Grantor acknowledges and agrees that the confidentiality obligations and publicity restrictions hereunder shall apply to any and all media whatsoever, including without limitation any social networking site, micro - blogging service user - generated or user - uploaded content website online forum, discussion thread or comment section personal website or blog, user modified website ( "wiki "), or any other website, service, platform program application or other form or method of communication whether now known or hereinafter devised. For example and for the sake of clarity Grantor may not make disclosures prohibited hereunder via Facebook, Twitter YouTube or any other similar website or service whether existing now or in the future Grantor acknowledges that any breach by Grantor of any of the confidentiality provisions of this Agreement would cause Company and Network irreparable injury and damage that cannot be reasonably or adequately compensated by damages in an action at law, and, therefore Grantor hereby expressly agrees that Company and Network shall be entitled to injunctive and other equitable relief (without posting any bond) to prevent or cure any breach or threatened breach of the confidentiality provisions of this Agreement by Grantor Grantor also recognizes that proof of damages suffered by Company and Network in the event that Grantor breaches any of these confidentiality provisions will be costly difficult, and inconvenient to ascertain. Accordingly Grantor agrees to pay Company and Network the sum of One Hundred Thousand Dollars ($100,000) per breach plus disgorgement of any income that Grantor may receive in connection with each such breach as liquidated damages which such amount Grantor agrees is a reasonable estimate of the amount of damages that Company and Network are each likely to suffer in the event of Grantor's breach of these confidentiality provisions, considering all of the circumstances existing as of the date of this Agreement. Furthermore, Grantor will defend indemnify and hold harmless Company Network, their parent, subsidiary and affiliated companies and each of their respective officers directors agents representatives and employees from and against any and all claims, actions, damages, liabilities, losses, costs and expenses (including without limitation attorneys fees) that in any way arise out of or result from Grantor's breach of any of the confidentiality provisions of this Agreement. NOTE TO PRODUCTION. CONSIDER OMITTING THIS PARAGRAPH WHERE THE PROPERTY OWNER IS NOT FEATURED IN THE SHOW OR DOES NOT OTHERWISE HAVE ACCESS TO ANY CONFIDENTIAL OR SENSITIVE INFO ABOUT THE SERIES _ MEDIATION, ARBITRATION If any controversy or claim arising out of or relating to this contract, or the breach of any term hereof, cannot be settled through direct discussions the parties agree to endeavor to first settle the controversy or claim by mediation conducted in the County of Los Angeles and administered by JAMS under its applicable rules, before commencing any proceedings permitted under this Paragraph If a dispute is not otherwise resolved through direct discussions or mediation, the controversy or claim, including the scope or applicability of this agreement to arbitrate shall be resolved by binding confidential arbitration HauntedCol lector -Locat ionA 3 the scope or applicability of this agreement to arbitrate shall be resolved by binding confidential arbitration conducted in the County of Los Angeles and administered by JAMS in accordance with the Streamlined Arbitration Rules and Procedures of JAMS or subsequent versions thereof including the optional appeal procedure (the JAMS Rules" available at www.jamsadr.com, including without limitation the rule providing that each party shall pay pro rata its share of JAMS fees and expenses and the rules providing for limited discovery and other exchange of information) The JAMS Rules for selection of an arbitrator shall be followed except that the arbitrator shall be an arbitrator experienced in the entertainment industry and licensed to practice law in California or a retired judge Notwithstanding the above requirements, if a party files suit in court or files an arbitration before first seeking to mediate, in direct violation of this Paragraph the other party does not have to request mediation to enforce the right to compel arbitration as required under this Paragraph _ MISCELLANOUS Company may assign transfer, license, delegate and /or grant all or any part of its rights privileges and property hereunder to any person or entity This Agreement shall be enforced and construed pursuant to the laws of the State of California applicable to agreements wholly executed and performed therein This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs executors, administrators successors and assigns This Agreement and Grantor's rights and obligations hereunder may not be assigned by Grantor This Agreement may only be altered by both parties signing an additional agreement amending its terms Any additional terms and conditions relevant to this Agreement are included in Schedule A This is the entire contract. No other authorization is necessary to enable Company to use the Property for the purpose contemplated Nothing in this contract shall limit or restrict any rights otherwise enjoyed by Company under law or contract IN WITNESS WHEREOF the parties have executed this Agreement as of the date set forth above FEEDING TIME PRODUCTIONS INC CITY OF PUEBLO COLORADO By / 1 \ Title • : Ray Aguiler — Cit Council President Execution Date i l City of Pueblo Colorado Fed Id it g� ego ©(ol, - Execution Date APRIL 25 2011 ATTEST CI CLERK Hau ntedCol lector- LocationAg mt 4 SCHEDULE "A" 1 Term Company shall have the right to use the Property for all uses in connection with the Program (e.g. for preparation photography and striking /clean up) for a period of time currently scheduled to commence on April 30 2011 and end on May 2 2011 2. Consideration (a) N/A ($ 0 ) for each day of preparation and striking /clean up (if included in price of photography write N /A) (b) N/A ($ 0 ) for each day of photography Payment will be made on Company's regular payday in the week following the week in which payment accrues. Should Company require Additional Use of the Property as set forth in the Agreement, the foregoing consideration shall be payable for such Additional Use INSERT WHERE APPLICABLE In addition Company shall give Grantor a security deposit of $ N/A prior to Company's use of the Property Grantor shall return the deposit in full within five (5) days of the later of Company vacating the Property or Company completing repairs if any to the Property 3 Additional Terms. SEE ATTACHED ADDENDUM HauntedCol lector- LocationAgmt 1 ADDENDUM TO A LOCATION AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION, AND FEEDING TIME PRODUCTIONS, INC This Addendum is between Pueblo, a Municipal Corporation ( "City," referred to as "Grantor" in the Location Agreement) and Feeding Time Productions, Inc ( "FTP," referred to as "Company" in the Location Agreement) WHEREAS, City and FTP wish to enter into the Location Agreement attached as Exhibit A simultaneously with this Addendum, and WHEREAS the parties wish to amend and add to the provisions of the Location Agreement. NOW, THEREFORE, m consideration of the mutual terms and conditions set forth in the Location Agreement and this Addendum, the parties agree as follows 1 Section 3 of the Location Agreement, entitled "Condition of Property," is hereby amended by the addition of the following sentence FTP accepts the Property "AS IS" in its present condition WITH ALL OF ITS FAULTS FTP understands that the electrical system in the Property is antiquated and cannot withstand the power demands of modern equipment without substantial risk of fire and power failures Accordingly, FTP shall not utilize electrical power from the Property, but shall instead use electrical power from its own batteries, generators, or other sources external to the Property 2 Section 4 of the Location Agreement, entitled "Indemnity," is stricken in its entirety and the following language is substituted therefor FTP shall use reasonable care to prevent any damage to City Property or injury to any person. FTP shall indemnify City for any damage to any City property or injury to any City employee caused by any act or omission by FTP or its employees, subcontractors, agents, guests, or independent contractors on or near the Property, whether resulting from negligence or otherwise, except for damage caused by a defect in the Property or the negligence or willful misconduct of any City employee FTP shall indemnify, defend, and hold the City harmless against any claims made by any third person against the City based on any negligent act or omission by FTP or its employees, 1 subcontractors, agents, guests, or independent contractors on or near the Property during the production of the Program. City shall indemnify, defend, and hold FTP harmless against any claims made by any third person against FTP based on any negligent act or omission by any City employee on or near the Property during production of the Program. The City's obligation to indemnify FTP under this Location Agreement exists only to the extent that such indemnification is legally permissible under the Colorado Constitution. 3 Section 10 of the Location Agreement, entitled "Grantor's Remedies," is stricken in its entirety, and the following language is substituted. In no event shall Grantor have the right to enjoin or restrain or otherwise impair in any manner the production, distribution, exhibition, or other exploitation of the Program or any parts or elements thereof or the use, publication or dissemination of any advertising in connection therewith, except that the City shall have the right to halt, enjoin, restrain and impair the production of the Program where (1) FTP's conduct or omissions on or near any City property has damaged City property or injured any person, or (2) FTP's conduct or omissions on or near any City property poses an imminent threat to City property or the safety of any person. Notwithstanding the foregoing, before Grantor seeks to enjoin, restrain or impair the production of the Program, Grantor shall give FTP notice of the conduct that it finds objectionable and an opportunity to take corrective action. 4 Section 12 of the Location Agreement, entitled "Notices," is amended by the addition of the City's address to read as follows City Manager City of Pueblo 200 S Main Street Pueblo, CO 81003 With an additional copy to City Attorney City of Pueblo 503 N Main St. Suite 203 Pueblo, CO 81003 2 5 Section 13 of the Location Agreement, entitled "Confidentiality " is amended by (1) striking the entirety of the second, third, and fourth sentences of the second paragraph thereof; (2) by deleting the highlighted "Note to Production" which appears at the end of Section 13, and (3) by the addition of the following sentences at the end of Section 13 to read as follows Notwithstanding any other provision of this Location Agreement the City may disclose any information obtained from FTP or from any other source to the extent that the City is legally obligated to do so under the Colorado Open Records Act, C.R.S § §24 -72 -201 el seq The City shall give FTP written notice of any such disclosure and the opportunity to seek a protective order before any such disclosure occurs. FTP understands and agrees that information concerning the Program will necessarily be disclosed when the Location Agreement and Addendum are discussed in open session by City Council and videotaped for re- broadcast on public access television. Such disclosures shall not be treated as a breach of the Location Agreement. However, notwithstanding the foregoing, following the open session by the City Council and the videotaping of the same for re- broadcast on public access television, during which the approval of the Location Agreement and this Addendum are discussed, in no event will the City reveal any facts, mfolination or events regarding the Program itself without the prior approval of FTP and Syfy 6 Section 14 of the Location Agreement, entitled "Mediation, Arbitration," is amended as follows Every use of the words "County of Los Angeles" is stricken and replaced with the words "County of Pueblo, State of Colorado" and every use of the word "Cahforma" is stricken and replaced with the word "Colorado " 3 e e 7 In the event of any conflict between the Location Agreement and this Addendum, this Addendum shall control ATTES T PUEBLO, a Municipal Corporation ■ Q,-,--Ca.12..,. B lam', City leek President of th City Council 1 APPROVED AS TO FORM FEEDING TIME PRODUCTIONS, INC talfrAk\ City Attorney' Name Kurt G. Stiegelme Title 10 "<"------ Assistant City AAtto FT 4