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HomeMy WebLinkAbout09759 ORDINANCE NO. 9759 AN EMERGENCY ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE BIG FISH ENTERTAINMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Letter of Agreement between the City of Pueblo and Big Fish Entertainment, LLC (the “Agreement”), a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver said Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 2. The officers and staff of the City are authorized and directed to perform any and all acts consistent with this Ordinance and the attached Agreement which are necessary or desirable to implement the transactions described therein. SECTION 3. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on July 27, 2020 . Final adoption of Ordinance by City Council on July 27, 2020 . President of City Council Action by the Mayor: ☒ Approved on July 30, 2020 . □ Disapproved on based on the following objections: _ Mayor Action by City Council After Disapproval by the Mayor: □ Council did not act to override the Mayor's veto. □ Ordinance re-adopted on a vote of , on □ Council action on _______ failed to override the Mayor’s veto. President of City Council ATTEST City Clerk City Clerk’s Office Item # S-1_ Background Paper for Proposed Ordinance COUNCIL MEETING DATE: July 27, 2020 TO: President Dennis E. Flores and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Brenda Armijo, City Clerk FROM: Barb Huber, Fire Chief SUBJECT: AN EMERGENCY ORDINANCE APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO AND THE BIG FISH ENTERTAINMENT AND AUTHORIZING THE MAYOR TO EXECUTE THE SAME SUMMARY: The attached Ordinance and agreement authorize Big Fish Entertainment, LLC to accompany the Pueblo Fire Department on calls and allows them to record such events for purposes of their television series. PREVIOUS COUNCIL ACTION: None. BACKGROUND: This agreement allows the recording of rescue and fire calls responded to by the Pueblo Fire Department to be recorded and used for entertainment purposes by Big Fish Entertainment, LLC. All parameters are included within the attached agreement with regard to privacy and protection of Pueblo Fire Department employees. FINANCIAL IMPLICATIONS: None. BOARD/COMMISSION RECOMMENDATION: Not applicable. STAKEHOLDER PROCESS: Not applicable. ALTERNATIVES: None. RECOMMENDATION: Approval of the Ordinance. Attachments: Agreement j i; IN I I . LETTER OF AGREEMENT BETWEEN BIG FISH ENTERTAINMENT AND CITY OF PUEBLO This letter of Agreement("Agreement"), is entered into and effective on 701 2 Z°s flhe "Effective Date"), by and between the City of Pueblo on behalfofthe Pueblo Fire Department("Pueblo")and Big Fish t?ntertainment LLC("Producer") with respect to Producer's television series currently entitled"Live Rescue"(the"Series"): I. Term.The initial term of this Agreement("Term") is the period commencing on the Effective Date and continuing tar a period of one (I) year (the "Initial 'term"). The Agreement may be extended by written agreement of the Parties for successive terms if additional series episodes are ordered far production by a television network(the"Network").(Such successive terms will collectively he referred to as the "Extended 'Term"). Absent a written agreement to extend the 'term for a successive term,the Agreement shall terminate at I I:59 p.m.on the last day of the then current term. 2. Access. During the'Term,and any Extended Term, Pueblo grants to Producer and its production personnel(which such personnel shall be included in the defined"Producer" herein)permission to enter upon and record(audio and/or visual, subject to the terms herein) the Pueblo Fire Department's ("PFD") offices, facilities and vehicles (collectively" "PFD Premises"); provided however that Producer shall at all times he accompanied by an authorized PFD representative(s) designated by the Pueblo Fire Chief or his Designee. Pueblo further grants Producer permission to accompany PFD fire fighters, EMTs, paramedics, rescue personnel and/or other PFD personnel (collectively "PFD Personnel") on tire, medical and/or rescue calls and to film, record and/or photograph PFD Personnel during the course of performing their duties. An PFD representative will he present on all such calls to act at the liaison between the scene and the control room and narrate what is occurring on-scene. Pueblo also grants permission to Producer to record" film or photograph PFD's names, signs, and identifying insignia in connection with the production of the Series and the marketing, promotion,and publicity thereof. Except as set forth in paragraph 4 herein,all permissions in this paragraph shall at all times be subject to restrictions imposed by Pueblo for the safety and security of PFD Personnel and PFD Premises and/or the individuals and entities fi)r whom Pueblo provides services. Pueblo further reserves the right to revoke the access set forth in this paragraph. in whole or in part, at any time, in its sole discretion, for the safety and security of PFD Personnel, PFD Premises,and/or the individuals and entities lar whom Pueblo provides service. Producer shall have the right to make such use of PFD Premises as may reasonably he required for production of the Series, including subject to any PFD restrictions,the right to place all necessary personnel, facilities,vehicles and equipment on PFD Premises,and Producer agrees to remove same after completion of work and leave PFD Premises in substantially the same condition as when Producer entered upon PFD Premises, reasonable wear and tear excepted. Pueblo further agrees to allow Producer to return to PFI)Premises after completion of the work at a mutually acceptable date and time,if and as required for still photography or other activity required in connection with the production,promotion or other exploitation of the Series. Producer agrees than an PFD representative or PI'D Personnel will he present on all calls/scenes. 3. Privacy and I IIPAA. Producer acknowledges and agrees that Producer shall be solely responsible far obtaining I IIPAA waivers as necessary in the course of filming for the Series. In the event Producer is unable to obtain the legally necessary waivers,Producer shall blur such individuals to the extent necessary or shall not feature such individuals in a recognizable manner. Producer shall also he responsible lar complying with all rights of privacy under any federal"state or local law or common law in the course of filming for the Series. The obligations of Producer as set forth in this Paragraph 3 shall at all times be subject to Producer's indemnity obligations to Pueblo as set forth in this Agreement. 4. Rights.Pueblo hereby licenses to Producer and its successors,subsidiaries,licensees and assigns.the right to photograph, record, reproduce and otherwise use PPD Personnel and PFD Premises and all PFD Personnel and PIVD Premises names, voice, likeness, images, tademarks, service marks, tradenames, logos" copyrighted material and/or other materials to which Producer is of orded access hereunder(collectively. "PFD Marks")solely in and in connection with 815114_1 the development, production,exhibition, exploitation, and promotion of the Series, and the marketing, promotion, and publicity thereof and/or otherwise. in all forms of media, now known or hereinafter invented, throughout the world an unlimited number of times in perpetuity. 5. Exclusivity. Until the expiration of the Term or Extended'term:(a)the rights of access and license granted by PFD and Pueblo pursuant to paragraphs 2 and 4 above, respectively. shall be exclusive to Producer with respect to "Live" or "Almost Live" long-form programming produced for exhibition by means of television. the Internet and/or any other audio-visual media (whether now known or hereafter invented), excluding news programming and programming covering the activities of PFD produced for exhibition on PFD's website(collectively,"Permitted Programming"): and (h)Pueblo shall not authorize anyone(other than Producer)to develop and/or produce programming ola similar format or concept that depicts the activities of PH)in any audio-visual media_except for Permitted Programming. 6. Review. Producer will provide PFD with twenty-four(24)hours to review and comment on any pre-recorded segments of the Series featuring PFD Property or PH) Personnel fur the purpose of identifying legal concerns (including any potential I IIPAA concerns),disclosure of confidential information and/or safety or security risks to PFD. If no comments are received by Producer following such twenty-four(24)hour period.the segments will he deemed reviewed by PFD. In addition, Producer shall provide a PFD representative(the"Representative")with the right to he in the local control room for the Series or on the ground with Producer's crew during Producer's filming with the PFD to review material being captured and distributed in connection with the Series. In both instances, PH) shall have the right to review the content lbr legal concerns(including any potential I IIPAA concerns),disclosure of confidential inIbrmation and/or safety or security concerns. It is understood and agreed that as between PH)and Producer, Producer shall at all times have the final responsibility to ensure that all footage. filen.or content used in the Series complies with all I IIPAA rights and all other privacy rights under any federal, state or local law or common law in Producer's sole and absolute discretion. Notwithstanding the 16regoing, it is understood that Producer and Network shall make the final decision regarding all editorial matters and the creative content of the Series and each episode thereof(including without limitation themes, featured events,story line,timeline,sequence of events.etc.). 7. Ownership.All film.videotape.still photographs and other visual and/or audio recordings or representations(e.g.,studios sets or designs) of PFD Premises or PFD Personnel created by or with the authorization of Producer are collectively referred to herein as the"Material". Producer shall he the sole and exclusive owner of the Material with the right fiw the full period of copyright, including all extensions and renewals thereof, and thereafter in perpetuity, throughout the universe,to use and re-use,an unlimited number of times,all or any part of the Material for the purpose of making and producing the Series and any related derivate production. and advertising, publicizing and exploiting the same. by all means and in all media,whether now known or hereafter devised,and to authorize others so to do. Pueblo,shall have no right of action against Producer or the Network arising out of any use of said Material in connection with the Series. Neither the expiration of this Agreement in its normal course nor its sooner termination for any reason shall affect the ownership rights set forth herein. 8. Credit. Pueblo/PFD acknowledges that any credits or other identification of Pueblo/PFI) that Producer may furnish in connection with the Series or otherwise shall he at Producer's sole discretion.Notwithstanding the f regoing, Producer agrees to accord Pueblo/PFD an on-screen credit in substantially the form"Special"thanks to the Pueblo Fire and Medical Department" in accordance with the Network's then-current credit policies, Iur all Series episodes in which PFD is depicted. Producer shall determine the size, position. manner of presentation and all other matters with respect to such credit in its sole discretion. No casual or inadvertent failure by Producer, nor any failure by any third party, to accord such credit shall be deemed a breach of this Agreement by Producer. 9. No Obligation to Proceed. Pueblo acknowledges and agrees that Producer is not obligated to actually use PFD Premises or produce the Series or include the Material in the episode of the Series Ibr which it was prepared or otherwise exercise any or all of Producer's rights hereunder. 2 10. No partnership. It is expressly understood and agreed that the parties do not by this Agreement intend to form an employment relationship or a partnership or joint venture between them and in no event shall this Agreement he construed to constitute such an employment relationship, partnership or joint venture. PFD and PPD Personnel shall at all times continue to independently conduct their operations and activities as they customarily operate.without regard to any other creative or logistical demands placed upon them by.or as a result of.the filming and production(tithe Series. II. 'Termination. Pueblo reserves the right to terminate this Agreement in whole or in part at any time, for any or no reason. without penalty or recourse, by giving Producer thirty (30) calendar days' written notice. Such termination shall be effective on the last day of the month following the notice of termination. (For example. if notice given July 25, termination would be effective August 31.) l'poll the effective date of termination, Producer shall vacate PFD Premises and shall no longer he granted the permissions.access. and rights granted under paragraphs 2 and 4 of this Agreement. Notwithstanding such termination, however, Producer shall retain the right to use content or footage taken, created. developed or filmed Ibr the Series(including without limitation the Material) in and in connection with the Series in a manner consistent with the permissions, access and rights granted under this Agreement before the effective date of termination. 12. Insurance. Producer must obtain and maintain at its expense throughout the Term of the Agreement.at a minimum,the types and amounts of insurance set forth in the attached Exhibit A from insurance companies authorized to do business in the State of Colorado; the insurance must cover all Producer operations. For all insurance required under the Agreement, Producer will name the City of Pueblo. its agents, representatives, officials, volunteers, officers, elected officials, and employees as additional insured, as evidenced by providing either an additional insured endorsement or proper insurance policy excerpts. a. Nothing in this Section 12 limits Producer's responsibility to the Pueblo. The insurance requirements herein are minimum requirements for the Agreement and in no‘vay limit the indemnity promise(s)contained in the Agreement. b. Pueblo does not warrant the minimum lim its contained herein are sufficient to protect Producer from liabilities that might arise out of performance under the Agreement by Producer, its agents,representatives, employees,or subcontractor(s). Producer is encouraged to purchase additional insurance as Producer determines niay he necessary. c. Each insurance policy required under the Agreement must be in effect at or prior to the execution of the Agreement and remain in effect for the"Term of the Agreement and any Extended Terms. d. Prior to the execution of the Agreement, Producer will provide Pueblo with a Certificate of Insurance(using an appropriate"ACORD"or equivalent certificate)signed by the issuer with applicable endorsements. Pueblo reserves the right to request additional copies of any or all of the policies,endorsements,or notices relating thereto required under the Agreement. e. When Pueblo requires a Certificate of Insurance to he furnished. Producer's insurance is primary of all other sources available. When Pueblo is a certificate holder or an additional insured, Producer agrees no policy will expire,he canceled,or he materially changed to affect the coverage available without advance written notice to Pueblo f. The policies required by this Agreement must contain a waiver of transfer rights of recovery (waiver of subrogation)against Pueblo.its agents.representatives.officials.volunteers,officers,elected officials,and employees for any claims arising out of the work of Producer. g. All insurance certificates and applicable endorsements arc subject to review and approval by Pueblo's Risk Management Division. 13. Indemnification. Producer agrees to fully indemnify. defend and hold harmless Pueblo its officers, agents,employees, elected and appointed officials, representatives and volunteers from and against any and all third-party liabilities, 3 demands, claims, suits, losses, damages, causes of action, lines or judgments of any kind (including costs, reasonable outside attorneys', witnesses', and expert witnesses' Ices. and expenses incident thereto) relating to. arising out of, or resulting from, in whole or in part: (i) the creation, production, development, distribution, exhibition, exploitation, marketing and/or promotion of the Series;(ii)Producer's access to or use of PFD Premises and/or Pueblo/PFD Personnel for the purpose of or related to the creation, production. development, distribution, exhibition, exploitation, marketing and/or promotion of the Series;(iii)the exercise of any licenses or rights granted to Producer under this Agreement;and (iv)any violations or alleged violations of I IIPAA or other privacy or confidentiality rights, except to the extent any of (i)-(iv)are caused by Pueblo's or PFD's gross negligence or willful misconduct. Pueblo agrees that Producer shall have the sole right to control the legal defense against any claims,demands or litigation. including the right to select counsel of its choice and to compromise or settle any such claims,demands or litigation.Notwithstanding the foregoing,no such compromise,settlement or other agreement shall he linalized,entered into or effective without the prior written consent of PER if such compromise.settlement or other agreement includes an admission of liability on behalf of or by the PFD. 14. Governing Law and Venue. This Agreement and any claim or dispute relating in any way to the activities under this Agreement,shall he governed by and construed in accordance with the substantive laws of the State of Colorado,without regard to the conflict of law provisions thereof. Venue for any action or suit arising under or relative to this Agreement or brought to interpret or enforce this Agreement shall lie exclusively in the appropriate state or federal court situated in Pueblo County, Colorado and the parties submit to the in personam jurisdiction thereof and waive any objections they may have as to jurisdiction or venue in any such courts. 15. Notice. Any notices or communications required or permitted to he given pursuant to this Agreement shall he in writing and shall be deemed delivered by one party to another party when personally delivered to them or placed in a depository under the control of the United States Postal Service and mailed by certified or registered mail, return receipt requested, postage prepaid,addressed to: I f to Pueblo: City of Pueblo on behalf of the Pueblo Fire Department 1551 13onforte Blvd Pueblo,CO 81001 Attn: Fire Chief Barbara I luber With a courtesy copy to: City of Pueblo Law Department 1 City I lall Place.Third Floor Pueblo,Co 81003 Attention:City Attorney If to Producer: Big Fish Entertainment, I,I,C 5'Times Square Floors 9& 10 New York,NY 10036 Attention: Daniel Cesare() With a courtesy copy to: Del Shaw Moonves Tanaka Finkelstein&I.ercano 2029 Century Park Last, Suite 1750 Los Angeles,CA 90067 Attn: Ethan J.Cohan, Esq.and"Todd.1. Weinstein. Esq. 16. Assignments. Producer may assign its rights under this Agreement in whole or in part to any person. firm,or corporation solely as related to the production, distribution or exploitation of the Series (with the understanding that the physical 4 production of the Series shall at all times he rendered by Producer, its parent, affiliates or contracting entity unless otherwise approved in writing by PFD). Pueblo shall not be permitted to assign or delegate any of.rights or obligations under this Agreement. 17. Authority; Execution in Counterparts. Each of the individuals signing this Agreement below represents that such individual is empowered to execute this Agreement on behalf of the Party for which such individual is acting. This Agreement may he executed in counterparts,each of which shall he deemed an original,and all such counterparts together shall constitute one and the same instrument.Any executed counterpart sent by facsimile or transmitted electronically in Portable Document Format("PDF")shall he treated as originals, fully binding and with full legal force and effect, and the Parties waive any rights they may have to object to such treatment. 18. Severability. In the event that any provision hereof shall be deemed invalid or unenforceable due to any law, said provision shall be modified to the minimum extent necessary to effect compliance with such law,and in any event such invalidity or unenforceability shall have no effect upon the remaining terms and condition hereof. 19. Entire Agreement. This Agreement contains the entire understanding of the parties hereto relating to the subject matter herein,supersedes and replaces all prior understandings and agreements concerning such subject matter,whether written or oral,and cannot be modified except in writing signed by the parties. 20. Surviving Provisions. Notwithstanding any completion.termination,or other expiration of this Agreement.all provisions which,by the terms of reasonable interpretation thereof, set f rth rights and obligations that extend beyond completion, termination,or other expiration of this Agreement.will survive and remain in full force and effect. Except as specifically provided in this Agreement. completion, termination, or other expiration of this Agreement will not release any party from any liability or obligation arising prior to the date of termination. 21. Integration Clause. this Agreement, including any attachments and exhibits hereto, supersede all prior oral or written agreements, if any, between the Parties and constitutes the entire agreement between the Parties with respect to the subject matter herein. IN WITNESS WI IERI?OF. the Parties have executed this Agreement on the dates set forth below. CITY OF PUEBLO,a municipal corporation , Signature:7(f ���VF J040 Printed Name:_ft,s, , Date: /7- d_ BIG FISH ENTERTAINMENT,LLC 410 Signature: . Printed Name: Set A O m Date: I-17.1 I_1 o 5 EXHIBIT A Minimum Insurance Requirements Producer must obtain and retain throughout the Term of the Agreement, at a minimum, the following insurance (see Insurance Section of the Agreement for more information): a. Worker's Compensation Insurance complying with statutory requirements in Colorado. b. Commercial General Liability in amounts not less than $3 million per occurrence/$5 million aggregate for bodily injury, personal injury, advertising injury, and products and completed operations with broad form contractual and property damage coverage. c. Automobile Liability, bodily injury and property damage with a limit of$l million per occurrence, including owned, hired and non-owned autos. d. Professional Liability (Errors and Omissions Liability) in amounts of not less than $1 million per occurrence/$2 million aggregate for errors and omissions, professional misconduct, or lack of ordinary skills. A-I