HomeMy WebLinkAboutContracts & Agreements_58-2018Production Agreement
This Production Agreement ("Agreement") is made and entered this 17th day of April, 2018
("Effective Date"), by and between the City of Redlands, a municipal corporation ("City") and
Garner Holt Productions, Inc., a California corporation ("GHP"). City and GHP are sometimes
individually referred to herein as a Party and, together, as the Parties.
Recitals
A. City is desirous of preserving the memory and legacy of President Abraham
Lincoln. As part of its activities, under the administration of the A. K. Smiley Public Library,
City operates the Lincoln Memorial Shrine in Redlands, California (the "Shrine").
B. GHP is world's larger producer of animatronics, and has developed an animatronic
Abraham Lincoln head and bust which is one of or the most advanced animatronic human heads
ever constructed (the "Lincoln Head").
C. City desires to contract for the development of a customized display and show of
the Lincoln Head, and GHP wishes to contract for the design, development and presentation of
such show pursuant to the terms of this Agreement.
Operative Provisions
Now, therefore, in consideration of the foregoing Recitals and of the mutual undertakings
of the Parties set forth herein, City and GHP agree as follows.
1. Design of Show.
1_1 With content input for City, GHP will write a script for a display and talking
performance of the Lincoln Head of not less than five (S) minutes duration (the "Show"). City
shall have final approval over the script for such Show.
1_2 GHP will design, manufacture and produce all elements, including the
Lincoln Head, related equipment, clothing, stage, scenery, props, and show control and related
software as is reasonably necessary for the presentation of the Show at the Shrine. City will
provide to GHP the dimensions, and necessary information (such as availability and location of
power) as is necessary to design the Show for presentation at the Shrine at the location in the Shrine
as is reasonably selected by City with the input of GHP. City will provide all power and utilities
necessary for the operation of the Show.
1.33 Notwithstanding the participation and input of City in the design and
content of the script for the Show and the Show, City specifically acknowledges that GHP will
be, and remain, the author of all aspects of the Show and will retain full, unencumbered and
unrestricted copyright, patent and all other intellectual property rights with respect to the Show
and all elements thereof. City specifically acknowledges that any and all contributions of City
1
C:IUsers\MOcegueda\AppData\Local\Microsoft%Windows\Tempornry Internet Files\Content.OutlooklTJE4XVG11GHP_2018 0103 Lincoln
Shrine Agreement (002).docx
thereto shall constitute, for all purposes, works made for hire under all U.S and international
copyright and other intellectual property laws. City will, when and if reasonably requested by
GHP, execute such assignments of copyright, patent and intellectual property rights with respect
to the Show as GHP may reasonably request. Without limiting the generality of the foregoing,
City specifically acknowledges that GHP may repeat the Show at locations other than the Shrine,
and that City shall have no rights of any type with respect to presentations of the Show at locations
other than the Shrine.
2. Production of Show; Maintenance and Marketing.
2.11 The Show shall be produced and presented at the Shrine on such dates and
times as GHP and City shall reasonably agree. The duration of the run of the Show may be of
indefinite duration, provided, however, that in such event it shall be subject to termination by either
Party on not less than thirty (30) days advance notice. Notwithstanding the foregoing, unless
mutually agreed to by City and GHP, the performance run of the Show shall not be less than five
months, beginning July 2, 2018, and ending December 29, 2018, with an option to extend given
the agreement of the Parties. GHP will be responsible for set up of the Show prior to its run and
for striking the Show at the completion of its run.
2.2 The Show at the Shrine shall be operated by one or more
employees/volunteers of the Shrine who have been trained in operation of the Show by GHP. City
shall not allow any personnel not trained by GHP to operate the Show. City will, using both
physical barriers and on-site enforcement by staff and volunteers, prohibit and prevent visitors to
the Shrine from making any physical contact with the Lincoln Head or any other portion of the
Show.
2.3 GHP shall be responsible for maintenance and repair of all elements used
in the Show. GHP shall use it best efforts to respond to all requests for maintenance or repair
within twenty four (24) hours of notice from the Shrine. GHP shall have no liability for any down
time of the Show occasioned by any need for maintenance and repair. City shall not allow any
person other than technicians employed by GHP to provide and maintenance or repairs to the
Lincoln Head, or any mechanical or electronic elements thereof or connected thereto.
2.4 City shall use its reasonable efforts to market the Show in order to maximize
attendance. GHP shall provide such artwork, text, and other materials as City may reasonably
request to market the Show. In such marketing, City shall be entitled to use the names "Garner
Holt Productions, Inc." and "Garner Holt Productions" to identify the manufacturer of the Lincoln
Head and co-producer of the Show, as well as still photography of the Lincoln Head and videos of
the operation of the Lincoln Head and/or the Show. GHP shall also be entitled, but not obligated,
to market the Show at the Shrine. GHP shall be entitled to use the phrases "Lincoln Shrine"
"Lincoln Memorial Shrine," the "Lincoln Shrine in Redlands" and the name of City (collectively,
the "Names") in any of it marketing materials for the Show as well as its general marketing
2
C:\Users\MOccgueda\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.Out1ook1TJE4XVGFIGHP_2018 0103 Linculn
Shrine Agreement (002).doex
materials, as well as still and video images of the Show at the Shrine and still images of the outside
of the Shrine.
2.5 GHP will produce, or have produced, merchandise to be sold in conjunction
with the Show. City will purchase such merchandise, in such amounts as City shall reasonably
determine from GHP and at wholesale, for sale at the Shrine's gift store and in conjunction with
the Show. Some of such merchandise will contain the Shrine logo and Names, and City hereby
grants to GHP a non-exclusive license to the Shrine Logo and Names for use with respect to such
merchandise. Except with regard to Lincoln themed items already for sale at the Shrine at the
Effective Date hereof, City shall not, so long as the Show remains at the Shrine, sell any products
or merchandise with respect to the Show except that purchased from GHP pursuant to this section
2.5.
3. Financial and Related Obligations
3_1 In consideration of the undertakings of GHP set forth herein, City covenants
and agrees as follows:
3. 1.1 City will pay to GHP, within ten (10) days of the Effective Date of
this Agreement, the sum of Fifty Thousand Dollars ($50,000);
3.1.2 City will pay to GHP a sum equal to sixty percent (60%) of the gross
receipt for tickets sales to the Show, in the manner set forth in section 3.1.3 below; and
3.1.3 With respect to the surds to be paid to GHP pursuant to section 3.1.2
above, City covenants that it will sell individually numbered tickets for the Show; and that it will
not include admission to the production with any other admission or charge, and that it will not,
without the advance consent Of GHP, donate tickets for the Show or allow admission without
charge, except as provided for herein. GHP shall not unreasonably withhold consent to free
admission to the Show so long as such donations are to not-for-profit organizations for their
members, or public or private school groups, and so long as the number of such donated admissions
does not exceed twenty percent (20%) of the paid admissions to the Show. Separate, numbered
and distinguishable, courtesy tickets shall be used for all unpaid admissions to the Show. Amounts
due to GHP pursuant to section 3.1.2 shall be paid monthly, not later than the 15th day of the month,
for all paid admissions during the immediately preceding calendar month. GHP shall, from time
to time and at any time, be entitled to review and/or audit the calculation and payment of such
sums including having access to the relevant records of City, and to all sold, admitted tickets,
unsold tickets, and related stubs and records.
3^2 So long as the Lincoln Head remain on the premises of the Shrine, City
shall maintain property and casualty insurance, covering the Lincoln Head and in amounts
determined by City but not less than $2,000,000 per incident, and $5,000,000 aggregate coverage.
GHP shall be named as an additional co-insured on such policies.
3
C:\Users\MOcegueda\AppData\Local\Microsoft\Windows\Temporary Internet Files\Content.outiook\T]E4XVGF\GHP_2018 03 03 Lincoln
Shrine Agreement (002).doex
3.3 GHP shall indemnify, defend, and hold harmless City, and its elected and
appointed officials, officers, employees and agents, from and against any and all liability, debts,
claims, assertions, suits, actions, and costs associated with or arising from (i) any breach of the
obligations of GHP arising from this Agreement; and (iii) any property damage or personal injury,
including death, caused by the Show, which result from the sole negligent acts or omissions of
GHP.
334 Except for those items for which indemnity is owed from GHP pursuant to
section 3.3 above, City shall indemnify, defend, and hold harmless GHP from any and all liability,
debts, claims, assertions, suits, actions, and costs associated with or arising from (i) any breach of
the obligations of City arising from this Agreement; and (ii) the Show, which result from the sole
negligent acts or omissions of City.
4. General Provisions
4_1 This Agreement may not be transferred or assigned by either Party, in whole
or in part, in any manner without the express prior written consent of the other Party, which consent
may be withheld for any reason or for no reason. Any attempted assignment of this Agreement,
in whole or in part, in contravention of this section 4.1 shall be ineffective and shall be deemed a
breach hereof.
4_2 This Agreement is entered into in the county of San Bernardino, State of
California and the laws of the State of California shall govern this Agreement, the construction of
its terms and the interpretation of the rights and duties of the Parties. Any controversies arising
out of the interpretation or enforcement of the terms of this Agreement shall be settled by binding
arbitration to be conducted in San Bernardino, California in accordance with the California
Arbitration Act, California Code of Civil Procedure section 1280 et. seq., and the decision of the
arbitrators may be entered in any court having jurisdiction thereof. The Parties shall share equally
the cost of any such arbitration.
443 Article and sectional headings of this Agreement are inserted as a matter of
convenience only and shall not be deemed to affect or alter the interpretation of any provision of
this Agreement.
4.4 Waiver by one Party of any breach or enforcement of any provision of this
Agreement shall not operate or be construed as a continuing waiver nor a waiver of any other
provision hereof. Any waiver of any provision hereof must be written and signed by the Party
making the waiver to be effective.
4_5 Any and all notices, demands, or other communications required or desired
to be given hereunder by any Party shall be in writing and shall be deemed validly given at the
time of actual delivery to the Party to whom the notice is addressed.
4
C:\Users\MOcegueda\AppDatalLocal\Microsoft\Windows\Temporary Internet Files\Content.OutlooklTJE4XVGRGHP_2018 0103 Lincoln
Shrine Agreement (002)Aocx
4.6 No amendment, change or modification of this Agreement shall be valid
unless in writing signed by the Parties.
4_7 If any provision of this Agreement, or any portion hereof, is held to be
invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full
force and effect unless, thereby, either Party is denied the substantial benefit of this Agreement, in
which case this Agreement shall terminate and be of no further force nor effect.
IN WITNESS WHEREOF the undersigned have executed this Agreement to be
effective as of April 17, 2018.
"GHP"
GARNER HOLT PRODUCTIONS, INC.,
a California corporation
By Vt& -
Cni [r.� r� ?
Attest:
e�Ane Donaldson, City Clerk
"City"
CITY OF REDLANDS
BLU
l.
Paul W. Foster, Mayor
5
C:lUserslMOceguedalAppData\Local\Microsoft\Windows\Temporary Internet Files\Content.OudooklTJE4XVGFIGHP_2018 0103 Lincoln
Shrine Agreement (002).doex