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HomeMy WebLinkAboutAGENDA REPORT 2016 0111 CCSA SPC ITEM 07A ITEM 7.A. CITY OF MOORPARK,CALIFORNIA City Council Meeting MOORPARK CITY COUNCIL of /'//-a6i 1 AGENDA REPORT ACTION: 17/ ; TO: Honorable City Council FROM: Jessica Sandifer, Program Mana• BY: DATE: January (Special CC Meetin i1of 5, 2017 1/11/17) SUBJECT: Consider Letter Agreement for Transfer of Production Props to the City for Use at the High Street Arts Center BACKGROUND & DISCUSSION The High Street Arts Center (HSAC), located at 45 High Street, is operated by the Moorpark Foundation for the Arts (MFA) pursuant to an Operating Agreement with the City. In addition to outlining the MFA's responsibilities with regard to operation of the HSAC, such as requiring main stage productions each season, the Operating Agreement allows the MFA to rent out the HSAC. The MFA has rented the HSAC for a large movie production, which is currently being filmed at the HSAC. As a part of the set decoration the production modified certain structural and ornamental features of the HSAC. The MFA is requesting permission to keep some of the changes to the HSAC. In order for these changes to remain at the HSAC, the production company, Ultimo Films, Inc., requires an agreement transferring the props and all associated liability for the props to the City, and indemnification of the production company. The list of the improvements that would remain at the HSAC is not available as yet, but would be attached to the letter Agreement once completed. Because the production will be completed prior to the next City Council meeting, staff is requesting authorization for the City Manager at his discretion to finalize what, if any, items will be accepted and to approve the letter Agreement, subject to final language approval of the City Manager and City Attorney. FISCAL IMPACT There is no cost to keep the modifications. STAFF RECOMMENDATION Authorize acceptance oftransfer of production props and ornamental features at the HSAC, subject to approval by. the City Manager, and authorize the City Manager to approve and execute all documents necessary to effectuate the transaction, subject to final language approval of.the City Manager and City Attorney. Attachment: Agreement, Release, and Indemnity 3 ATTACHMENT 1 Dated as of December 28,2016 MOORPARK FOUNDATION FOR THE ARTS d/b/a THE HIGH STREET ARTS CENTER 33 EAST HIGH STREET, SUITE 200 MOORPARK, CA 93021 Attn: Hugh Riley RE: "MAGIC CAMP"/AGREEMENT,RELEASE AND INDEMNITY Ladies and Gentlemen: This letter agreement("Agreement") sets forth the terms and conditions of the agreement between Ultimo Films,Inc. ("Producer")and City of Moorpark ("Transferee")concerning(a)the transfer of certain rights in certain structural and/or ornamental additions to the theater owned by Transferee and located at 45 East High Street,Moorpark, CA 93021 (the"Property")and used in the feature-length theatrical motion picture entitled"Magic Camp"(the "Picture"), and(b)Transferee's full release and indemnity of Producer and Releasees(as defined below)on the terms set forth herein. In consideration of the mutual covenants, conditions and promises contained herein, the parties'hereby agree as follows: 1. Upon Producer's receipt of an executed original of this Agreement(in form and substance acceptable to Producer), for good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,Producer shall transfer the Property to Transferee, and Transferee shall have the right to retain or dispose of the Property in any manner it so elects, subject to the terms and conditions of this Agreement. • • 2. In consideration for the transfer of the Property, Transferee hereby acknowledges and agrees as follows: (a)Transferee made an independent investigation of the Property; (b)Transferee is accepting ownership,possession and control of the Property in its present condition without any representation or warranty by Producer(or by any person or entity related to or affiliated with Producer or Walt Disney Pictures ["WDP"] or purporting to represent any of the foregoing entities or to speak on behalf of any of them), express or implied; (c)Producer makes no representation or warranty regarding the Property whatsoever, either with respect to the condition,use for any particular purpose, fitness, safety or any other characteristic of the Property, and all such warranties, express or implied, are hereby expressly disclaimed; (d)Transferee has been informed by Producer that the Property was used for filming and is for cosmetic purposes only and that the Property may not meet any or all governmental rules,regulations, statutes, ordinances and/or codes and may be unsafe without modification; (e)the Property transferred to Transferee will not be safe for any purpose and may require 1 /Users/margaret/Desktop/Moorpark Theater Release and Indemnity Ext 01.doc Est.12/28/16 4 substantial architectural, engineering, and/or construction services before it could be safely used for any purpose, if ever; and(f) Transferee irrevocably assumes any and all risks in connection with the Property. 3. Covenants. Transferee agrees that: (a)the purchase,use or custody of the Property by Transferee or by any agent, employee, assignee, licensee or representative of Transferee(collectively,the"Transferee Parties")shall in no way, directly or indirectly, indicate or promote that the Property was used as part of and/or in any way connected with the Picture; (b)the Transferee Parties shall have no rights to use the name of the Picture, Producer,WDP, Producer's parent or affiliated or subsidiary entities, or any person rendering services for the Picture in connection with Transferee's ownership,use, custody or control of the Property; (c)the Transferee Parties will not publicize the Picture in any way; (d)Transferee, at its sole cost and expense, shall remove any and all markings on the Property which may, directly or indirectly,identify its use in connection , with the Picture; (e)Transferee Parties shall not advertise that the Property was in the Picture in connection with any sale,transfer and/or lease of the Property; and(f) Transferee shall have the right to sell or otherwise transfer any ownership interest in and to the Property to any third party,provided such third party assumes.in writing all of Transferee's obligations under this Agreement as of the date of such assignment,transfer, conveyance license,delegation and/or grant(as applicable). If such third party does not assume in writing all of Transferee's obligations as of the date of such assignment, transfer, conveyance license, delegation and/or grant(as applicable),then Transferee shall remain liable for all such obligations. 4. Obligation to Make Safe/Compliance with Building and Safety Regulations. Transferee shall,at its sole cost and expense,promptly make any and all repairs, changes and modifications to the Property so that the Property is safe and in compliance with all applicable laws and regulations. 5. Release. In consideration of the transfer of the Property as described hereinabove, and as a material inducement to Producer to enter into this Agreement, Transferee agrees that: 5.1 Transferee,on behalf of itself and its predecessors,parent, subsidiaries,members, affiliated and related companies and each of their respective successors and assigns, and the agents, employees,directors, officers, licensees,representatives, insurers,affiliates, attorneys, executors and administrators of each(collectively,the"Releasors"), hereby irrevocably and unconditionally release, acquit and forever discharge Producer, and its parent(s), subsidiaries, subsidiaries of its parent, affiliates,members,related companies, associates, licensees, and their respective successors,assigns and the agents, employees, directors, officers, licensees,representatives, insurers, affiliates, attorneys, executors and administrators of each(the "Releasees"), from any and all duties and obligations and any and all manner of action and actions,proceedings, cause or causes of action, suits, debts, dues, sums of money, accounts, 2 /Users/margaret/Desktop/Moorpark Theater Release and Indemnity Ext 01.doc Est.12/28/16 5 covenants,contracts, controversies, agreements,promises,judgments, demands, liabilities, fines, orders,decrees, losses, damages,costs, expenses and claims of any nature whatsoever, at law or in equity,known or unknown, suspected or unsuspected, including without limitation any claims alleging defects and/or negligence in the design,construction, repair or maintenance of the Property and/or any claim arising out of or related to the demolition or removal or transportation of the Property and/or arising out of or related to the Property and/or any use of the Property by any person or entity(collectively,"Actions")which the Releasors had,now have or which.the Releasors at any time hereafter may have or claim to have against any of the Releasees. 5.2 Transferee and its successors,assignees and licensees(jointly and severally) shall indemnify, defend and hold Releasees harmless from and against any and all Actions (as defined in Paragraph 5.1 above) (and all costs and expenses related thereto, including but not limited to reasonable attorneys' fees and costs)brought by any person or entity,at law or in equity,including without limitation claims or actions arising out of injury to or death of persons and/or damage to or destruction of property, arising out of,related to or in connection with the Property and/or any use thereof by any person or entity, including without limitation, (i)Actions in connection with Transferee's (or Transferee's successors',agents', employees', assignees', licensees',lessees', invitees',guests',contractors' or representatives')possession,use, operation, occupancy, custody, control,modification,repair,removal, transportation or ownership of the Property, and/or(ii)Actions in connection with Transferee's lease or sale of the Property and any use,operation or occupancy by any licensee, invitee or purchaser of the Property and its/their respective agents, employees, assignees,licensees, lessees or sublessees,invitees, guests and/or representatives, and/or(iii)any Actions arising out of or related to the demolition or removal of the Property; and/or(iv)any breach of the representations,warranties and covenants of Transferee contained herein. In no event shall any action or inaction on the part of Producer or any of the Releasees constitute a defense to Transferee's and Transferee's successor's, assignees' and licensees' indemnification obligations hereunder or constitute grounds for exclusion of any Action whatsoever from the scope of this indemnity. 5.3 Without limiting the generality of the provisions set forth in Paragraph 5.1 above,neither Producer nor WDP nor any other Releasees shall beliable to Transferee or any of the Releasors, or their tenants, subtenants, licensees, contractors, invitees,or visitors, or to any party with whom Transferee contracts for the use of the land on which the Property is or shall be located and/or the Property,or to any other person whomever, for any loss, expense, damage to or loss of any property or death or injury to any person occasioned by or arising out of the Property, including, 3 /Users/margaret/Desktop/Moorpark Theater Release and Indemnity Ext 01.doc Est.12/28/16 6 without limitation,the condition or design of or any defects in or failure to repair the Property or any part or component thereof. 5.4 All rights under Section 1542 of the Civil Code of California and any similar law of any state or territory are hereby expressly waived by the Releasors in connection with the Property. Said Section reads as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH.IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." Transferee understands that the facts in respect of which the release is made in this Agreement may hereafter turn out to be other than or different from the facts known or believed by them to be true, and Transferee accepts and assumes the risks of the facts turning out to be different and agrees that this Agreement shall remain in all respects effective and not subject to termination or rescission by virtue of any such differences in fact. 6. Any notice pertaining hereto shall be in writing. Any suchnotice and any payment due hereunder shall be (i)delivered in person or by courier,or(ii)deposited, postage prepaid,return receipt requested in the US Mail,certified or registered,or(iii) via a nationally-recognized overnight delivery service, or(iv)with respect to notices only,by facsimile,in which case a copy of such notice shall be sent by overnight mail and shall be deemed to have been received one (1)hour after the commencement of normal business hours in the place of receipt on the next business day following the date of dispatch, and any notice or payment hereunder shall be addressed as follows(or as subsequently designated in writing by the applicable party): TRANSFEREE: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager PRODUCER: ULTIMO FILMS,INC. 500 South Buena Vista Street Burbank, CA 91521. Attention: Deputy Chief Counsel Motion Picture Production The date of personal delivery or mailing of such notice or payment shall be deemed the date of service of such notice or payment,unless otherwise specified herein;provided, 4 /Users/margaret/Desktop/Moorpark Theater Release and Indemnity Ext 01.doc Est.12/28/16 7 however,that any notice from either party which commences the running of any period of time for another party's exercise of any option or election or the performance of any other act must be served by hand or by overnight delivery and shall be deemed served only when actually received by the receiving party. If the last day on which the parties hereto are empowered to give notice pursuant to any provision of this Agreement or to perform any other act which the parties are required or may desire to perform under or in connection with this Agreement should fall on a Saturday,Sunday or holiday,then the parties hereto shall have until the end of the first full business day following said Saturday,Sunday or holiday within which to give notice or to perform such act. 7. The persons executing this Agreement have the power and authority to enter into this.Agreement on behalf of the respective party(ies)hereto. 8. This Agreement shall be governed by and construed in accordance with the laws of the State of California. 9. This Agreement contains the full and complete understanding between the parties with respect to the conveyance of the Property set forth herein, and supersedes all prior agreements and understandings pertaining thereto and cannot be modified except by a writing signed by each party. The signature of the parties where indicated below shall constitute the foregoing a valid and binding agreement between them. ULTIMO FILMS,INC. By: Its: AGREED TO AND ACCEPTED: CITY OF MOORPARK By: Its: CITY MANAGER 5 /Users/margaret/Desktop/Moorpark Theater Release and Indemnity Ext 01.doc Est.12/28/16 8