Ordinance No. 13,949ORDINANCE NO. 13,949
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS,
AUTHORIZING AN AGREEMENT FOR DOCUMENTARY SERVICES WITH
KENNETH BENITEZ, LLC, FOR THE CREATION OF A HISTORICAL
DOCUMENTARY CONCERNING THE BRUNSON THEATER; AUTHORIZING
PAYMENT BY THE CITY OF BAYTOWN IN THE AMOUNT OF SIXTY-EIGHT
THOUSAND EIGHT HUNDRED FIFTY AND N01100 DOLLARS ($68,850.00);
MAKING OTHER PROVISIONS RELATED THERETO; AND PROVIDING FOR
THE EFFECTIVE DATE THEREOF.
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BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager to execute and the City Clerk attest to an Agreement for Documentary Services
with Kenneth Benitez, LLC, for the creation of a historical documentary concerning the Brunson Theater.
A copy of said agreement is attached hereto as Exhibit "A" and incorporated herein for all intents and
purposes.
Section 2: That the City Council of the City of Baytown authorizes payment to Kenneth
Benitez, LLC, in an amount not to exceed SIXTY-EIGHT THOUSAND EIGHT HUNDRED FIFTY
AND N01100 DOLLARS ($68,850.00) in accordance with the agreement authorized in Section 1
hereinabove.
Section 3: That the City Manager is hereby granted general authority to approve a decrease
or an increase in costs by FIFTY THOUSAND AND N01100 DOLLARS ($50,000.00) or less, provided
that the amount authorized in Section 2 hereof may not be increased by more than twenty-five percent
(25%).
Section 4: This ordinance shall take effect immediately
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote
Baytown this the 190'da r ovember, 2018. /
LETICIA BR
APPROVED AS TO FORM:
after its passage by the
the City Council of the City of
Mayor
' %cobfs0l\legal\Karen\FileslCity Council`.Ordinances\2018Wovember 19VWgreement4DocumentaryServices4BnmsonTheater.doc
Exhibit "A"
Agreement for Documentary Services
STATE OF TEXAS §
COUNTY OF HARRIS §
THIS AGREEMENT is made between the City of Baytown, Texas, a municipal corporation (the
"City"), and Kenneth Benitez LLC, a Texas limited liability company (the "Producer"), for the Producer on
behalf of the city to perform services necessary to create a historical documentary concerning the Brunson
Theater (the "Project").
City's Obligations.
1.01 The City shall pay the producer to perform the services specified herein the amount of
SIXTY-EIGHT THOUSAND EIGHT HUNDRED FIFTY AND N0/100 DOLLARS
($68,850.00). Payment shall be due as follows:
1 - 3 First day of Video Production (Film Shooting)
Amomit Due
$34,425.00
4 Producer's completion and the City's acceptance of the
deliverables
$34,425.00
Total
$68,850.00
1.02 The City shall assist the Producer in order to showcase the Project.
1.03 The City grants to the Producer the right to use the names, designs, illustrations, logos
and trademarks of the City in connection with the services to be performed herein;
provided, however, that the Producer shall be bound by any restriction to which the City
is bound or to which the City may hereinafter impose.
2. Producer's Obligations.
2.01 Subject to Section 2.03, the Producer shall utilize film iconography to create the Project
and to give the audience a sense of classic Hollywood by mixing live action shots of film
elements and animation. The Project will be completed fifty-one calendar days from the
execution of this Agreement by the City Manager.
a. Phase 1: Initiation Phase (2-5 calendar days).
The Producer shall:
1. meet with the City to brainstorm and receive input regarding its
requirements for the Project; and
2. deliver, if appropriate, a revised scope of work and video budget based
upon such meeting for the City's approval.
b. Phase 2: Preproduction Phase (14-16 calendar days).
The Producer shall:
1. schedule, source, and conduct approximately 8-12 interviews on green screen
or captivating location set for City review and approval;
2. create interview questions and announce voice-over script for City review
and approval;
3. determine and secure location once approved by the City; and
4. source props for B -roll iconography filming (vintage theater icons).
C. Phase 3: Production Phase (4-5 calendar days).
The Producer shall:
1. perform production services, which shall include, but not be limited to:
(a) dedicating one film day with a full crew for interviews;
(b) dedicating additional film days with minimum crew (B -roll shots)
2. to the extent applicable, provide the following services in furtherance of the
project:
(a) sync audio,
(b) producing,
(c) directing,
(d) art direction,
(e) creative direction,
(f) editing,
(g) stock music,
(h) sound design,
(i) camera package, and
0) data recording.
d. Phase 4: Post -Production Phase (22-25 calendar days).
The Producer shall:
1. upload footage, edit offline (rough cut);
2. obtain approval from the City of offline edit (rough cut);
3. perform editing and visual effects to online edit;
4. obtain approval from the City of online edit;
5. perform final edits and credits;
6. Provide the following deliverables to the City:
(a) a 20 -minute documentary film to the City;
(b) 4 x :60 second social media clips;
(c) 4 x :15 second social media clips; and
(d) Baytown footage assets.
2.02 The services specified in Section 2.01 shall include, to the extent applicable, the
following:
a. stylist, i. sound design,
b. sync audio, j. camera package,
c. producing, k. data recording,
d. directing, 1. edits requested by the City,
e. art direction, and
f. creative direction, in. final high resolution video
g. editing, file delivery for the
h. stock music, television production.
2.03 In performing services under this agreement, the Producer shall utilize the following in
preparation of the production:
a. high resolution theater iconography (live action shots of cinema icons such as
cameras, film reels, theater seats);
b. vintage photography of Brunson History and Baytown;
c. stock footage or vintage footage of historic film clips/trailers;
d. 3-D modeling of Brunson exterior;
e. visual effects/supers of shots, quotes, credits, background plates, etc.;
Documentary Services Agreement, Page 2
f. miscellaneous B -roll shots of Baytown and relevant topics; and
g. social media interview clips or B -roll.
2.04 The Producer will obtain the City of Baytown's written approval of the content of all
Project deliverables, before broadcasting or other dissemination.
2.05 The City owns all rights, title and interest in and to the products which are the subject of
this Agreement, including all copyrights therein as well as in and to all the exposed
negatives, positives, out -takes and clips. City grants to Producer a royalty -free,
nonexclusive, assignable, and irrevocable license to reproduce, publish or otherwise use,
and to authorize others to use the final product produced, or any portions thereof as a
result of this Agreement. The Producer agrees to provide City with copies of all licenses
and rights to use any copyrighted material included in the final product of this agreement.
Producer will make sure that all such copyrighted material used in the final product will
be useable by City for all purposes as a part of the final product and that such use will be
royalty -free.
3. Term.
The term of this Agreement shall begin on the date signed by the City Manager and shall continue
in full force and effect until the services are completed by the Producer and accepted by the City.
4. General Conditions.
4.01 Termination.
a. The City, besides all other rights or remedies it may have, shall have the right to
terminate this Agreement with or without cause upon ten (10) days' written
notice from the City Manager to the Producer of the City's election to do so.
Should the City terminate this Agreement prior to the services being performed,
the City shall be entitled to a refund for those services yet to be performed.
b. The Producer shall have the right to terminate this Agreement for cause if the
City breaches any term of this agreement and fails to cure or remedy that failure
within fifteen (15) days after a written notice of the failure is received by the
City. Upon termination, the City shall be entitled to a refund for those services
yet to be performed
4.02 Any notice required to be given under this Agreement or any statute, ordinance, or
regulation, shall be effective when given in writing and deposited in the United States
mail, certified mail, return receipt requested, or by hand -delivery, addressed to the
respective parties as follows:
cfty
City of Baytown
Attn: City Manager
P.O. Box 424
Baytown, TX 77522
Producer
Kenneth Benitez LLC
Attn: Manager
2603 Fenwood Rd
Houston, TX 77005
4.03 Neither the City nor the Producer shall sell, assign, or transfer any of its rights or
obligations under this Agreement in whole or in part during the term hereof.
4.04 Failure of either party hereto to insist on the strict performance of any of the agreements
herein or to exercise any rights or remedies accruing thereunder upon default or failure of
Documentary Services Agreement, Page 3
performance shall not be considered a waiver of the right to insist on and to enforce by an
appropriate remedy, strict compliance with any other obligation hereunder to exercise any
right or remedy occurring as a result of any future default or failure of performance.
4.05 Throughout the term of this Agreement, Producer shall maintain the following insurance
coverage for work performed or services rendered under this Agreement. Said insurance
shall cover all persons involved in the production whether such persons are paid
employees or volunteers. Producer's insurance coverage shall be primary insurance with
respect to City, its officials, employees and agents, who shall be named as additional
insureds. Any insurance or self-insurance maintained by City, its officials, employees or
agents shall be considered in excess of producer's insurance and shall not contribute to it.
The following is a list of standard insurance policies along with their respective minimum
coverage amounts required in this Agreement to be maintained by Producer and any of its
subcontractors during the term hereof:
1. Commercial General Liability
➢ General Aggregate: $2,000,000
➢ Per Occurrence: $1,000,000
➢ Products & Completed Operations Aggregate: $1,000,000
➢ Personal & Advertising Injury: $1,000,000
➢ Coverage shall be broad form CGL
➢ No coverage shall be deleted from standard policy without notification of
individual exclusions being attached for review and acceptance.
➢ Waiver of Subrogation required.
2. Business Automobile Policy (BAP)
➢ Combined Single Limits: $2,000,000
➢ Coverage for "Any Auto."
➢ Waiver of Subrogation required
3. Workers' Compensation: Statutory Limits
➢ Employer's Liability: $1,000,000
➢ Waiver of Subrogation required
Upon execution of this Agreement, Producer shall file with City valid Certificates of
Insurance and endorsements acceptable to City meeting all of the requirements herein.
Additionally, the following shall be applicable to the insurance provided by Producer.
➢ Insurance carrier must have an A.M. Best Rating of A: VII or better.
➢ Only insurance carriers licensed and admitted to do business in the State of Texas
will be accepted.
➢ Liability policies must be on occurrence form.
➢ Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled or reduced in coverage or in limits except after
thirty (30) days' prior written notice by certified mail, return receipt requested,
has been given to City.
City and its officers and employees are to be added as Additional Insured to
liability policies.
Documentary Services Agreement, Page 4
➢ Upon request, and without cost to City, certified copies of all insurance policies
and/or certificates of insurance shall be furnished to City.
➢ All insurance required under this section shall be secured and maintained in a
company or companies satisfactory to City.
4.06 By this Agreement, the City does not consent to litigation or suit, and the City hereby
expressly revokes any consent to litigation that it may have granted by the terms of this
Contract or any other contract or agreement, any charter, or applicable state law. Nothing
contained herein shall be construed in any way so as to waive in whole or part the City's
sovereign immunity. The Producer assumes full responsibility for its services performed
hereunder and hereby releases, relinquishes and discharges the City, its officers, agents,
and employees from all claims, demands, and causes of action of every kind and
character, including the cost of defense thereof, for any injury to or death of any person
(whether they be either of the parties hereto, their employees, or other third parties) and
any loss of or damage to property (whether the property be that of either of the parties
hereto, their employees, or other third parties) that is caused by or alleged to be caused
by, arising out of, or in connection with the Producer's services to be performed
hereunder. This release shall apply with respect to the Producer's services regardless of
whether said claims, demands, and causes of action are covered in whole or in part by
insurance. This release shall have no application to claims, demands and causes of
actions resulting from the sole, direct negligence of the City.
4.07 Notwithstanding anything to the contrary contained in this Agreement, the City and the
Producer hereby agree that no claim or dispute between the City and the Producer arising
out of or relating to this Agreement shall be decided by any arbitration proceeding
including, without limitation, any proceeding under the Federal Arbitration Act (9 U.S.C.
Sections 1-14), or any applicable State arbitration statute, including, but not limited to,
the Texas General Arbitration Act, provided that in the event that the City is subjected to
an arbitration proceeding notwithstanding this provision, the Producer consents to be
joined in the arbitration proceeding if the Producer's presence is required or requested by
the City of complete relief to be recorded in the arbitration proceeding.
4.08 This Agreement shall in all respects be interpreted and construed in accordance with and
governed by the laws of the State of Texas, regardless of the place of its execution or
performance. The place of making and the place of performance for all purposes shall be
Baytown, Harris County, Texas.
4.09 All parties agree that should any provision of this Agreement be determined to be invalid
or unenforceable, such determination shall not affect any other term of this Agreement,
which shall continue in full force and effect.
4.10 In the event of any ambiguity in any of the terms of this Agreement, it shall not be
construed for or against any party hereto on the basis that such party did or did not author
the same.
4.11 This Agreement contains all the agreements of the parties relating to the subject matter
hereof and is the full and final expression of the agreement between the parties. This
Agreement shall not be amended or modified without the express written consent of both
parties hereto.
Documentary Services Agreement, Page 5
4.12 The Producer in performing the services hereunder shall comply with all applicable
federal, state, and local laws, rules and regulations.
4.13 This Agreement may be executed in one or more counterparts and by facsimile signature,
each of which shall be deemed original, and all of which together will constitute one and
the same instrument.
4.14 The officers executing this Agreement on behalf of each party hereby confirm that such
officers have full authority to execute this Agreement and to bind the party he/she
represents.
[Remainder of page intentionally left blank].
Documentary Services Agreement, Page 6
EXECCTTED ON this the _ day of , 2018.
CITY OF BAYTOWN
By:
RICHARD L. DAVIS, City Manager
ATTEST:
LETICIA BRYSCH, City Clerk
APPROVED AS TO FORM:
IGNACIO RAMIREZ, SR., City Attorney
EXECUTED ON this the _ day of 2017.
KENNETH BENITEZ LLC
0
(Printed Name)
(Title)
ATTEST:
(Signature)
(Printed Name)
(Title)
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