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HomeMy WebLinkAboutCRA-R-13-0003 Backup-1-28-2013AGREEMENT This AGREEMENT (the "Agreement") is made as of this day of , 2012 by and between the SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "SEOPW CRA"), the OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, a public agency and body corporate created pursuant to Section 163.356, Florida Statutes (the "OMNI CRA"), (collectively referred to as the "CRAs") and TOWNSEND ENTERTAINMENT CORPORATION (the "Townsend"). RECITALS A. The CRAs are responsible for carrying out community redevelopment activities and projects within their respective Redevelopment Areas in accordance with their approved Redevelopment Plans. B. The creation and promotion of employment opportunities within the community are a stated redevelopment goals and objectives of the 2009 Southeast Overtown/Park West Redevelopment Plan and the Omni Redevelopment Plan. C. The Board of Commissioners of the SEOPW CRA, by Resolution No. CRA-R-12-0068, passed and adopted on September 24, 2012, authorized a grant, in an amount not to exceed $200,000 to the University of Miami to conduct film -related job training in furtherance of the SEOPW CRA's stated redevelopment goal. D. The Board of Commissioners of the Omni CRA, by Resolution No. CRA-R-I2-0070, passed and adopted on October 25, 2012, authorized a grant, in an amount not to exceed $200,000, to the University of Miami to conduct film -related job training. E. The CRAs and the University of Miami entered into an agreement providing for the use of the grant. F. Townsend is a private third party film production company working with the University of Miami to assist in facilitating the film -related job training, as well as overseeing a local movie production, with the working title "Playin' for Love" ("Film"), wherein said job training is occurring. G. The parties acknowledge that the Film may potentially yield proceeds/profits from showings, presentations, and/or distribution of the movie, as reflected in Exhibit "A," attached hereto and incorporated herein. H. The parties acknowledge that funding for the production of the Film has come from private and public sources, including the CRAs. I. Townsend has also expressed an interest in contributing towards the CRAs' redevelopment efforts. J. Townsend, and the CRAs wish to enter into this Agreement to set forth the terms and conditions relating to any potential proceeds/profits resulting from the showing, and distribution of the Film, and Townsend's contribution to the CRAs' redevelopment efforts. NOW, THEREFORE, in consideration of the mutual promises of the parties contained herein and other good and valuable consideration, receipt of which is hereby acknowledged, the SEOPW CRA, the OMNI CRA, and Townsend agree as follows: 1. The Recitals to this Agreement are true and correct, and are incorporated herein by reference and made a part hereof. 2. In consideration for the funding contributed by the CRAs to the film -related job training, Townsend agrees that all gross profits generated by the distribution of the Film shall be equally remitted to the CRAs, with each CRA receiving One Hundred and Ninety Thousand Dollars ($190,000.00), for a total remittance of Three Hundred and Eighty Thousand Dollars ($380,000.00). Townsend acknowledges that said remittance is considered a community benefit in furtherance of the CRAs' redevelopment efforts. Each CRA may elect to receive this community benefit in the form of a monetary remittance, in - kind services, or a combination thereof. In -kind services shall consist of the following: a. The provision of training and master class workshops in connection to the SEOPW's CRA Film Life Institute. b. Strategic brand marketing of the CRAs' redevelopment areas. c. The provision of technical assistance and consultation to the CRAs in connection with film -related programs, activities, or projects. 3. Townsend agrees to, at its own expense, apply and enter the Film in the 2013 American Black Film Festival as a local film entry. In the event Townsend is unable to apply and enter the Film in the 2013 American Black Film Festival or the Film is not featured at said Festival, Townsend shall notify the CRAs within five (5) days of learning that application is not possible, or that the Filrn will not be featured, and shall arrange and facilitate an advance screening of the Film within the City of Miami no later than August 2013. Additionally, Townsend agrees to credit Jeff Friday of Film Life, Inc. as an Executive Producer of the Film. 4. TERM. The term of this Agreement shall commence on the date first written above and shall be in effect until December 31, 2029. 5. RECORDS AND REPORTS/AUDITS AND EVALUATION. (a) RECORDS MAINTENANCE. Townsend understands and acknowledges that the CRA must meet certain record keeping and reporting requirements with regard to the CRAs. In order to enable the CRAs to comply with its record keeping and reporting requirements, Townsend agrees to provide the CRAs with a complete copy of Townsend's records pertaining to the use of the CRAs' funding. (b) PRODUCTION COSTS. Upon completion of the Film, Townsend agrees to provide CRAs final production costs for the Film. The parties acknowledge that said costs shall be used to determine gross profits to be remitted to the CRAs in accordance with Section 2 above. The parties agree that the final production costs provided by Townsend shall be reviewed by the CRAs, and if approved, shall become, by addendum, an exhibit to this Agreement. (c) AUDIT RIGHTS. The CRAs shall have the right to conduct audits of Townsend's records pertaining to the use of the CRAs' funds and to visit the Project, in order to conduct its monitoring and evaluation activities. Townsend agrees to cooperate with the CRA in the performance 2 of these activities. Such audits shall take place at a mutually agreeable date and time. Townsend also agrees to maintain all financial records related to proceeds/profits generated by the Film, and allow the CRAs to access same for purposes of ensuring that the CRAs are receiving proper remittance in accordance with Section 2 above. 6. AUTHORITY. Townsend affirms that this Agreement has been duly authorized by all necessary actions on the part of, and has been, or will be, duly executed and delivered by the Townsend, and neither the execution and delivery hereof, nor compliance with the terms and provisions hereof: (i) requires the approval and consent of any other party, except such as have been duly obtained or as are specifically noted herein; (ii) contravenes any existing law, judgment, governmental rule, regulation or order applicable to or binding on any indenture, mortgage, deed of trust, bank loan or credit agreement, applicable ordinances, resolutions, or on the date of this Agreement, any other agreement or instrument to which the Townsend is a party; or (iii) contravenes or results in any breach of, or default under any other agreement to which the Townsend is a party, or results in the creation of any lien or encumbrances upon any property of the Townsend. 7. NON-DISCRIMINATION. Townsend, for itself and on behalf of its contractors and sub- contractors agrees that it shall not discriminate on the basis of race, sex, color, religion, national origin, age, disability, or any other protected class prescribed by law in connection with its performance under this Agreement. Furthermore, Townsend represents that no otherwise qualified individual shall, solely, by reason of his/her race, sex, color, religion, national origin, age, disability or any other member of a protected class be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving financial assistance pursuant to this Agreement. 8. MARKETING. (a) PUBLICATION. Townsend shall produce, publish, advertise, disclose, or exhibit the CRAs' name and/or logo, in acknowledgment of the CRAs' contribution to the Project, in all forms of media and communications created by Townsend for the purpose of publication, promotion, illustration, advertising, trade or any other lawful purpose, including but not limited to stationary, newspapers, periodicals, billboards, posters, email, direct mail, flyers, telephone, public events, and television, radio, or internet advertisements, interviews. All forms of media and communication related to the Film shall include the following acknowledgment: "This film was funded in part by grants from the Southeast Overtown/Park West and Omni Redevelopment District Community Redevelopment Agencies, and through the generous support of the City of Miami." Additionally, Townsend agrees to provide production credit to the CRAs by designation of same within the Film. (b) APPROVAL. The CRAs shall have the right to approve the form and placement of all acknowledgements described in Section 8(a) above, which approval shall not be unreasonably withheld. (c) LIMITED USE. Townsend further agrees that the CRAs' name and logo may not be otherwise used, copied, reproduced, altered in any manner, or sold to others for purposes other than those specified in this Agreement. Nothing in this Agreement, or in Townsend's use of the CRAs' name and logo, confers or may be construed as conferring upon Townsend any right, title, or interest whatsoever in the CRAs' name and logo beyond the right granted in this Agreement. 10. LIABILITY OF THE CRAs. No officer, employee, agent, or principal, whether disclosed or undisclosed, of the CRAs shall have any personal Liability with respect to any of the provisions of this Agreement. Any liability of the CRAs under this Agreement shall be subject to the limitations imposed by Section 768.28, Florida Statutes. 3 11. INDEMNIFICATION OF THE CRA. Townsend agrees to protect, defend, indemnify and hold harmless the CRAs and its agents from and against any and all claims, actions, damages, liability and expenses (including, but not limited to fees for attorneys, investigators and experts) in connection with any obligations Townsend has, had or may have to third parties related to said parties' funding of the Film. 12. INTERPRETATION. (a) CAPTIONS. The captions in this Agreement are for convenience only and are not a part of this Agreement and do not in any way define, limit, describe or amplify the terms and provisions of this Agreement or the scope or intent thereof. (b) ENTIRE AGREEMENT. This instrument constitutes the sole and only agreement of the parties hereto relating to the CRAs' funding, and correctly sets forth the rights, duties, and obligations of the parties. There are no collateral or oral agreements or understandings between the CRAs and Townsend relating to the Agreement. Any promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. This Agreement shall not be modified in any manner except by an instrument in writing executed by the parties. The masculine (or neuter) pronoun and the singular number shall include the masculine, feminine and neuter genders and the singular and plural number. The word "including" followed by any specific item(s) is deemed to refer to examples rather than to be words of limitation. (c) CONSTRUCTION. Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. (d) COVENANTS. Each covenant, agreement, obligation, term, condition or other provision herein contained shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making the same, not dependent on any other provision of this Agreement unless otherwise expressly provided. All of the terms and conditions set forth in this Agreement shall apply throughout the term of this Agreement unless otherwise expressly set forth herein. (e) CONFLICTING TERMS. In the event of conflict between the terms of this Agreement and any terms or conditions contained in any attached documents, the terms of this Agreement shall govern. (f) WAIVER. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. (g) SEVERABILITY. Should any provision contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, then such provision shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable to conform with such laws, that same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect. 4 (h) THIRD -PARTY BENEFICIARIES. No provision of this Agreement shall, in any way, inure to the benefit of any third party so as to make such third party a beneficiary of this Agreement, or of any one or more of the terms hereof or otherwise give rise to any cause of action in any party not a party hereto. 13. AMENDMENTS. No amendment to this Agreement shall be binding on either party, unless in writing and signed by both parties. 14. NON-DELEGABILITY. Townsend's obligations under this Agreement shall not be delegated or assigned to any other party without the CRA's prior written consent which may be withheld by the CRAs, in their sole discretion. 15. CONSTRUCTION. This Agreement shall be construed and enforced in accordance with Florida law. 16. NOTICE. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, or by registered mail, addressed to the party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given on the day on which personally served, or, if by mail, on the fifth day after being posted, or the date of actual receipt or refusal of delivery, whichever is earlier. To SEOPW CRA: Southeast Overtown/Park West Community Redevelopment Agency 1490 N.W. P Avenue, Suite 105 Miami, FL 33136 Telephone: (305) 679-6800 Facsimile: (305) 679-6835 Attn: Clarence E. Woods, III, Executive Director To OMNI CRA: Omni Redevelopment District Community Redevelopment Agency 1401 North Miami Avenue Miami, Florida 33136 Telephone: (305) 679-6868 Attn: Pieter A. Bockweg, Executive Director To Townsend: Townsend Entertainment Corporation 433 N. Camden Drive, #600 Beverly Hills, CA 90201 Telephone: (818) 752-9494 Attn: Robert Townsend, President 17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties hereto, and their respective heirs, executors, legal representatives, successors, and assigns. 18. MISCELLANEOUS. (a) In the event of any litigation between the parties under this Agreement, the parties shall bear their own attorneys' fees and costs at trial and appellate Levels. (b) Time shall be of the essence for each and every provision of this Agreement. 5 IN WITNESS WHEREOF, in consideration of the mutual entry into this Agreement, for other good and valuable consideration, and intending to be legally bound, the SEOPW CRA, OMNI CRA and Townsend have executed this Agreement. ATTEST: By: Todd Hannon City Clerk APPROVED AS TO FORM AND CORRECTNESS: By: Jessica N. Pacheco, Esq. SEOPW CRA Counsel ATTEST: SOUTHEAST OVERTOWN/PARK WEST COMMUNITY REDEVELOPMENT AGENCY, of the City of Miami, a public agency and body corporate created pursuance to Section 163.356, Florida Statutes ("SEOPW CRA") By: Clarence E. Woods, III Executive Director OMNI REDEVELOPMENT DISTRICT COMMUNITY REDEVELOPMENT AGENCY, of the City of Miami, a public agency and body corporate created pursuance to Section 163.356, Florida Statutes ("OMNI CRA") By: By: Todd Hannon Pieter A. Bockweg City Clerk Executive Director APPROVED AS TO FORM AND CORRECTNESS: By: Julie O. Bru, Esq. Omni CRA Counsel WITNESSES: TOWNSEND ENTERTAINMENT CORP. ("TOWNSEND") 6 By: Print: By: Print: By: Robert Townsend President 7