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HomeMy WebLinkAboutExhibit - AgreementACCESS AGREEMENT THIS ACCESS AGREEMENT (the "Agreement") confirms the arrangements made between Tejera TV, LLC, in conjunction with its collaborators (the "Company") and the City of Miami through the Miami Police Department (the "City") whereby the City has agreed to allow Company to film at their facilities situated at 400 N.W. 2nd Ave., Miami, FL 33128, and other premises within the jurisdiction of the City (collectively, the "Location"), for the purposes of filming interior and/or exterior scenes in connection with the production of television programs depicting law enforcement events and related activities, which are preliminarily referred to as 'Proyecto 23' ("the Programs"), which Company intends to put into production and produce, under the following terms and conditions: 1. TERM: Company shall be entitled to film at the Location commencing upon the execution of the agreement by both parties, and continuing up to and including September 30, 2018, ("Term") provided that filming at the Location does not violate or conflict with any other section(s) of this Agreement. Upon mutual agreement of the City and the Company, the Term of this agreement may be extended for four (4) additional one-year periods. 2. ACCESS: The City agrees that Company shall have the right to enter the Location for the purposes of filming and/or recording in connection with the Programs and to incorporate such recordings ("Footage"), in whole or in part or not at all, in the final version of the Programs. Further, Company acknowledges that the participation in the Programs of the City's officers, personnel, agents and employees is strictly voluntary, and Company confirms that Company shall be responsible for obtaining all necessary consents including the written consent of the City's officers, personnel, agents and employees featured or appearing in any Program. City agrees and consents to the filming and recording of City and City's officers, personnel, agents and employees and their voices at Company's discretion, and with the City employees written consent and the use of this Footage in whole or in part or not at all in the Programs. Such written consent grants the Company all rights and consent so as to permit the fullest use throughout the world of footage or any part(s) thereof in perpetuity by all means and in all media, City agrees, that the Footage, its likeness and photographs and biological material about the City may be used for promotional purposes relating to the Programs. Access to the Location is restricted to those times necessary and previously arranged with the City. City retains the right to suspend the grant of rights to enter Location ("Suspension") at any time, without notice, or where emergency, acts of God, natural disasters, terrorists alerts, civil disorders and/or other City operational requirements, in the discretion of the City personnel in charge of the Location at the time of use, cause such suspension. In case of such Suspension, Company and all of their personnel agree to follow the instructions and orders of the City's personnel in charge of the Location, including immediate departure from the Location without challenging the discretion or any of such instructions or orders. Alternative mutually convenient dates and times shall be rescheduled following such Suspension. CITY reserves all rights not expressly granted herein. 3. INSURANCE: A. The Company shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by the City as set forth in, and attached hereto as Schedule "A" which in incorporated herein by this reference. The Company shall add the City of Miami as an additional named insured to its commercial general liability policy and as a named certificate holder on such policy. The Company shall correct any insurance certificates as requested by the City's Risk Management Administrator. All insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage(s) and shall be furnished to the City Risk Management Administrator on Certificate of Insurance indicating such insurance to be in force and effect and providing that it will not be cancelled, modified, or changed during the performance of this agreement without thirty (30) calendar days prior written notice to the City Risk Management Administrator. Completed certificates of insurance shall, at any time upon request, file duplicate copies of the policies of such insurance with the City. B. Company understands and agrees that any and all liabilities from the use of the location by any of the Company's employees or any of the Company's subcontractors during the term of this Agreement shall be borne solely by the Company throughout the term of this Agreement and that this provision shall survive the termination of this Agreement. Company further understands and agrees that insurance for each employee of the Company and each subcontractor providing services at the Location related to this Agreement shall be maintained in good standing and approved by the City Risk Management Administrator throughout the duration of this Agreement. The City Risk Management Administrator hereby approves the sufficiency of, and Company's compliance with the insurance requirements set forth in this paragraph C. C. Company shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, Company shall be responsible for submitting new or renewed certificates to the City's Risk Management Administrator at a minimum of ten (10) calendar days in advance of such expiration. In the event that the expired certificates are not replaced, with new or renewed certificated which cover the term of this Agreement and any extension thereof: a. the City shall have the right to suspend the Agreement until such time as the new or renewed certificate(s) are received in acceptable form by the City's Risk Management Administrator; or b. the City, at its sole discretion, terminates the Agreement for cause and seek re - procurement damages from Company in conjunction with the violations of the terms and conditions of this Agreement. D. Compliance with the foregoing requirement shall not relieve the Company of its liabilities and obligations under this Agreement. 4. RIGHTS: A. City agrees that, as between City and Company, Company shall own all right, title and interest in the Programs and all elements thereof and relating thereto (collectively the "Materials") and the Materials shall be considered works -made -for -hire for use as part of an audio/visual work within the meaning of U.S. Copyright Law, with Company, its successors and or assigns being deemed the sole author, and, the sole and exclusive owner of the Material for all copyright terms renewal terms and revivals thereof throughout the world for all uses and purposes whatsoever. In the event that the Materials are found not to be works -made -for -hire then the City may assign to the Company all of the City's interest in the Materials including without limitation, the copyrights therein. B. Company and its licensees and assigns shall be entitled to use within the Programs any materials and images containing the City's name, trademarks and logos (whether recorded incidentally or otherwise) and to use the same for any publicity and promotional purposes for the exploitation of the Programs in all media throughout the world in perpetuity provided that the materials and images containing the City's name, trademarks, or logos for publicity and promotional purposes are not used exclusively as the Programs' brand and/or identity. C. The Company may be entitled to assign and/or License its rights in and to the Programs and its right to have access to and film within the location, in whole or in part, to any third party provided 2 that the Company obtains prior written consent of the City, which may be withheld or conditioned, in the City's sole discretion. 5. CITY REVIEW: A. City shall have the right to review, approve, and reject the Footage of the Programs to ensure the use of the Footage is in accordance with the terms of this Agreement. Company shall provide the City with at least one (1) digital video disk copy of the final edited version of the Programs. However, City will have no edit rights in and to the footage of the Program and/or the Program itself. B. Company shall arrange the review of the Footage with the City prior to the final edit of each episode and before the Licensed Materials are distributed, displayed, or placed in the stream of commerce in any manner. Footage duly and expressly approved by City in writing shall be deemed "Approved Footage." Any Footage rejected by City shall not be distributed, displayed, or placed in the stream of commerce in any manner. In the event that Company distributes, displays, or places in the stream of commerce any Footage rejected by City, City shall have the right to immediately terminate Company's access, terminate this Agreement, require Company to cease and desist from using any Footage in its possession, and seek any monetary damages, equitable and injunctive relief. C. Company shall provide the City's Chief of Police or his/her designee (the "Police Representative") with one (1) copy of each fully completed or 'locked' version (final edited version) of all episodes of the Program in a media form acceptable by the parties. In addition to the City's thirty (30) day review period, the Company shall allow the Police Representative an additional ten (10) days, consecutively, to review each fully completed or `locked' version (final edited version) of the Programs' episode for the purpose of approving or rejecting the Footage therein. D. The Company shall not knowingly use, publish, or broadcast any materials or images. that are of confidential nature, as defined herein, pursuant to applicable laws and statues. Company hereby acknowledges that the Programs shall not contain any confidential investigatory, procedural and/or operations information concerning the City or the City's Police Department which would not be available to the general public ("Confidential Information"). The Programs shall not dramatize, demean, disparage, disgrace, or cast any unfavorable light upon the City including any of its employees, agents, or departments. Furthermore, the Programs shall not include any script, storylines, or depictions of City's police officers committing a violation of any City Police Department policies and/or procedures and/or any unlawful, immoral, racist, or reckless act performed by the City or any of its employees, agents, or departments, including but not limited to any unlawful acts of battery, assault, beating, shooting, planting of evidence, racist comments, hate crimes, reckless driving, or any other criminal act. The foregoing is not intended to impinge upon any historical rendition of facts or events. 6. COMPANY'S OBLIGATIONS: Company acknowledges and agrees that in order to protect the integrity of the City's responsibilities, maintain the safety of officers, the public, and the Company's personnel, and to minimize liability to the City, Company shall comply with all instructions, commands, and restrictions as directed by the City, in the City's sole discretion, at any and all times. Any filming by Company and/or work conducted by Company's personnel shall not interfere with the City's performance of its duties in any manner whatsoever. Without in any way limiting the foregoing, Company also acknowledges and agrees that: 3 (a) Any compensation to Police employees or department must comply with City APM 1-90 and/or any ordinance contained in the Code of the City of Miami; (b) No filming at Police employee homes or of their private lives, including family life, shall be permitted; (c) No access onto crime scenes shall be permitted for any purposes; and (d) No film crew member may enter upon private property unless they have obtained prior consent from the property owner. (e) Any and all concerns or questions not covered by the Agreement will be submitted, in writing, to the Chief of Police of the City of Miami Police Department or his/her designee for approval, denial, or appropriate action. 7. CONTRIBUTIONS: Company and City agree that, for any and all episodes of the Programs that are completed and submitted to City for City's Review, City shall be compensated. Compensation to the City shall be contributions made to Miami Police Athletic League, Inc. (PAL), and/or as may be otherwise directed by the Chief of Police or his designee to a benevolent City of Miami law enforcement program. Company shall make the contributions to same causes in the amounts of not less than one - thousand dollars ($1,000.00 USD) per each episode submitted to City for City's Review regardless of whether the Programs airs domestically in the United States or its territories or internationally. Payment of the contributions set forth herein will only be made by Company upon the completion of each entire season of the Program, to wit: when production of each episode of the full season is finalized and ready for broadcast or cablecast. 8. LOCAL HIRING AND ENGAGEMENTS: Company agrees that, to the extent reasonably possible, subject to artistic considerations and the contract requirements and preferences of aligned networks and distributors, Company shall use best efforts to hire and/or engage local personnel, crews, vendors and contractors with the requisite capacities and experience, for the purpose of advancing additional employment and job creation. 9. COMPLIANCE WITH APPLICABLE LAWS AND RULES AND REGULATIONS: Company agrees and understands that it is solely responsible for obtaining all required licenses and permits necessary in the course of conducting its production. Additionally, Company understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and Company agree to comply with and observe all applicable federal, state and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. 10. INDEMNIFICATION: Company shall indemnify, defend and hold harmless the City, including City's volunteers, agents, officers, and employees, from and against all loss, costs, penalties, fines, damages, claims, expenses (including reasonable attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person, including claims for damages to one's reputation or privacy interests, claims for invasion of privacy including (1) appropriation: unauthorized use of a person's name or likeness to obtain some benefit; (2) intrusion: physically or electronically intruding into one's private quarters or person, (3) public disclosure of private facts: disclosure of private facts that are offensive to the reasonable person and of no legitimate pubic concern, and (4) false Light: publication of facts that place a -person in false light even though the facts themselves may not be defamatory, and claims for defamation, libel, and slander; or (5) damage to or destruction or loss of any property arising out of, resulting from, or in connection with the use of Location whether cause directly or in whole or in part, by any act, omission, default or negligence of the Company or any of its guests, invitees, employees, agents or subcontractors, or by failure of the Company to comply with any of the provisions hereof, specifically the Company's obligation to comply with all applicable statutes, ordinances or other regulations or requirements on connection with the use if the Location. rd Company shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in connection with (i,) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Company or its employees, agents or subcontractors (collectively referred to as "Company"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnitees, or any of them or (ii.) claims for damages to one's reputation or privacy interests, claims for invasion of privacy including (a) appropriation: unauthorized use of a person's name or likeness to obtain some benefit; (b) intrusion: physically or electronically intruding into one's private quarters or person, (c) public disclosure of private facts: disclosure of private facts that are offensive to the reasonable person and of no legitimate pubic concern, and (d) false light: publication of facts that place a person in false light even though the facts themselves may not be defamatory, and claims for defamation, libel, and slander; or (e) damage to or destruction or loss of any property arising out of, resulting from, or in connection with the use of Location whether cause directly or in whole or in part, by any act, omission, default or negligence of the Company or any of its guests, invitees, employees, agents or subcontractors, or (iii.) the failure of the Company to comply with any of the paragraphs herein or the failure of the Company to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement and in connection with the use if the Location. Company expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Company, or any of its subcontractors, as provided above, for which the Company's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 11. RISK OF LOSS: Company understands and agrees that the City shall not be liable for any loss, injury or damages to any personal property or equipment brought into the Location by Company or by anyone whatsoever, during the time that the Location is under the control of, or occupied by the Company. All personal property placed or moved in the Location shall be at the risk of the Company or the owner thereof. Company further agrees that it shall be responsible to provide security whenever personal property either owned or used by the Company, its employees, agents or subcontractors is placed in the Location, including any property or equipment necessary for set-up and dismantle, whether or not the Locations is open to the general public. 12. DEFAULT: If Company fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Company shall be in default. Upon the occurrence of a default hereunder the City, in addition to all remedies available to it by law, may immediately, upon written notice to Company, terminate this Agreement whereupon all permits and licenses granted by the City, if any, to Company vv, hiie Company was .n default shall be immediately returned to the City. Company understands and agrees that termination of this Agreement under this section shall not release Company from any obligation accruing prior to the effective date of termination. Should Company be unable or unwilling to commence to perform the Services within the time provided or contemplated herein, then, in addition to the foregoing, Company shall be liable to the City for all expenses incurred by the City in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by the City in the re -procurement of the Services, including consequential and incidental damages. k 13. TERMINATION RIGHTS: A. Company and City shall be entitled to terminate this Agreement upon ten (10) days written notice at any time. B. In the event of expiration or earlier termination of this Agreement by either party for any reason whatsoever, the conditions and provisions of this Agreement that are intended to continue and survive (including but not limited to, grant of rights, ownership, representations and warranties, indemnities, etc.) shall survive the expiration or earlier termination of this Agreement. 14. PUBLIC RECORDS: Company understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Company's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 15. NONDISCRIMINATION: Company represents and warrants to the City that Company does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Company's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Company further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 16. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. And TO COMPANY: Nelly Carolina Tejera, President Tejera TV, LLC 5900 Collins Ave, Unit 905 Miami Beach, FL 33140 305-542-9643 David Bercuson, P. f_%. Town Center One, Suite 1813 8950 Southwest 74 Court Miami, Florida 33156 305-670-0018 TO THE CITY: Rodolfo Llanes, Chief of Police City of Miami Police Department 400 N.W. 2nd Ave., Suite 419 Miami, FL 33128 305-603-6100 17. MISCELLANEOUS: This Agreement shall be construed and enforced according to the laws of the State of Florida. Should any provision, paragraph, sentence, word or phrase 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 or the City of Miami, such provision, paragraphs, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws or if not modifiable, then same shall be deemed severable, and in either event, the remaining 0 terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. 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. From time to time, additional terms or approvals may be reasonably requested based upon specific requirements of the City, the Company, its aligned networks and/or distributors, whereby such terms or approvals shall not be unreasonably withheld by the parties. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by properly authorized representatives of the parties hereto. 18. INDEPENDENT CONTRACTOR: Company has been allowed access to City buildings and its facilities as an independent contractor, and not as an agent or employee of the City. Accordingly, Company shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Company further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Company, and agrees to provide workers' compensation insurance for any employee or agent of Company rendering services for Company or City under this Agreement. 19. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. AGREED AND ACCEPTED: Tejera TV, LLC. The Company Date: 7 Nelly Carolina Tejera, President CITY OF MIAMI, a Florida municipal corporation DANIEL J. ALFONSO CITY MANAGER ATTEST: TODD HANNON CITY CLERK APPROVED AS TO FORM AND CORRECTNESS: VICTORIA MENDEZ CITY ATTORNEY APPROVED AS TO INSURANCE REQUIREMENTS: ANN M MARIE SHARPE RISK MANAGEMENT ADMINISTRATOR 9 IV. SCHEDULE "A" INSURANCE REQUIREMENTS FOR A CERTIFICATE OF INSURANCE Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury Endorsements Required City of Miami included as an Additional Insured Premises & Operations Liability Contingent and Contractual Liability Explosion, Collapse and Underground Hazard Primary Insurance Clauses Endorsement Coverage for Injury to Leased Workers Business Automobile Liability Limits of Liability $1,000,000 $2,000,000 $1,000,000 $1,000,000 Bodily Injury and Property Damage Liability Combined Single Limit Any Auto, Owned Autos, Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $1,000,000 Endorsements Required City of Miami Included as an Additional Insured Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation Employer's Liability A. Limits of Liability $1,000,000 for bodily injury caused by an accident, each accident $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit Umbrella Policy (Excess Follow Form) 0 A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $3,000,000 Aggregate $3,000,000 Excess over CGL, Auto and W/C B. Endorsement Required City of Miami included as additional insured V. Third Party Property Damage $1,000,000 Miscellaneous Equipment Props/Sets The above policies shall provide the City of Miami with written notice of cancellation or material changes in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, buy the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 10