LICENSE AGREEMENT
This AGREEMENT made and entered into as of the ____?? day of June 2013, by and between THE TRUSTEES OF RESERVATIONS, a Massachusetts not-for-profit corporation (“TTOR”), having a mailing address of 572 Essex Street, Beverly, Massachusetts and COLUMBIA PICTURES INDUSTRIES, INC., a California Delaware corporation, with a mailing address of .38 Wareham Street, 3rd Floor, Boston MA 02118, courtesy copy to 10202 W. Washington Blvd. Culver City, CA 90232 Attn: EVP Legal AffairsLos Angeles, California 90069 (the “Licensee”).
WITNESSETH:
Reference is made to the following facts which constitute the background to this Agreement:
A. TTOR is the owner of certain properties located in Ipswich, Massachusetts known as Castle Hill and Crane Beach (the “Premises”).
B. The Premises are used by TTOR and the general public as recreational and historical properties.
C. The Licensee has requested that it be granted permission by TTOR to use a portion of the Premises (the “Licensed Areas”) in order to shoot film, video and/or photography in connection with the production of “The Equalizer” movie. The Licensed Areas are described more fully in Exhibit A to this Agreement.
D. TTOR has agreed to grant to the Licensee a license to use the Licensed Areas on the terms and conditions set forth herein.
NOW, THEREFORE, for the good and valuable consideration described herein, the receipt and sufficiency of which are hereby acknowledged, TTOR and the Licensee hereby agree as follows:
1. TTOR hereby grants to the Licensee, and the Licensee hereby accepts, a non-exclusive license (the “License”) to use the Licensed Areas in common with others having rights therein. Licensee may use the Licensed Areas for the purpose of shooting film, video and/or photography solely in connection with the production of “The Equalizer” movie (the “Movie”) and for no other purpose. The Licensee is aware of the current condition of the Licensed Areas and acknowledges that TTOR need perform no further work in order to prepare the Licensed Areas for use under this License. This Agreement and the License granted hereunder shall be for the period described in Section 2(h) herein, unless earlier terminated or revoked as provided herein.
2. Licensee agrees to the following terms and conditions:
(a) No use of the Premises or the Licensed Areas shall be made that is legally offensive or excessively noisy.
(b) No use of the Premises or the Licensed Areas shall be made that is contrary to any law, regulation, policies established by TTOR governing the usage of the Premises or the Licensed Areas, or standards established by any fire rating association.
(c) Licensee agrees that it will not permit anyone (including but not limited to its employees, agents, contractors, vendors, invitees and/or guests) to bring or use alcoholic beverages on the Premises or the Licensed Areas.
(d) Licensee agrees that it will not permit anyone under its control (including but not limited to its employees, agents, contractors, vendors, invitees and/or guests) to smoke inside of buildings on the Premises or the Licensed Areas. TTOR agrees that an outdoor smoking area will be provided.
(e) No use of the Premises or the Licensed Areas shall be made for nude filming or filming of sexually explicit nature without prior written approval of TTOR.
(f) Licensee shall make no use of the Premises or the Licensed Areas that is defamatory or may otherwise bring TTOR into disrepute. TTOR has reviewed the applicable script pages of scene(s) to be filmed at the Premises and acknowledges that such scene(s) do not violate the foregoing.
(g) All vehicles, heavy equipment, vans, tents, portable restrooms and other portable equipment must be parked or set in locations determined by the TTOR Site Monitor(s), in consultation with the Licensee, in his/her sole discretion.
(h) The Licensee shall use the Licensed Areas solely for the periods of time specified in this Section 2(h) (the “Use Time”). The Use Time may be extended by agreement of both parties and upon payment of further consideration and execution of a separate agreement. The Use Time shall be from August 12 – August 15, 2013 (inclusive) and shall be for the following hours and purposes: (1) August 12 and 13, 2013 for set-up and/or set construction; (2) August 14, 2013 for filming; (3) August 15, 2013 for breakdown and removal of equipment; The Licensee shall use the Licensed Areas solely for the purposes described in Exhibit A hereto.
(i) The Licensee must provide to TTOR proof of having obtained all state and local permits required by their intended use of the Licensed Areas prior to its use of the Premises.
(j) The Licensee agrees to pay the cost of any reasonable precautions required to protect public safety and guard against the risk of fire in connection with its use of the Premises (including the Licensed Areas).
(k) The Licensee shall endeavor to mitigate all disturbances to the local community caused by use of the Premises and/or the Licensed Areas.
(l) TTOR reserves the right to conduct meetings with wedding and other clients under contract during the use time, provided that such meetings do not unreasonably interfere with Licensee’s activities permitted hereunder. No meetings or house showings will be conducted on film days.
(m) TTOR has limited ability to provide adequate power for the licensee’s activities. The licensee shall provide electric power for lighting, camera, and other equipment on film days and as directed on set up/set construction days at the discretion of the site monitor.
3. Licensee shall pay to TTOR the following payments in connection with this Agreement:
(a) License Fee. Licensee shall pay a license fee (the “License Fee”) based upon the fee schedule in Exhibit B to this agreement. Licensee shall pay 50% of the estimated License Fee of $33,200 upon the execution of this Agreement (the “Deposit”) and the remaining portion of the actual License Fee by Friday, August 912, 2013 (the “Balance”). The Deposit shall be non-refundable. [MARK – WAS THIS AGREED TO?] Failure of the Licensee to pay the Balance of the License Fee by Friday August 129, 2013 shall entitle TTOR to terminate the License and this Agreement, provided that TTOR will give Licensee notice and a 24-hour cure period prior to any termination.
(b) Security Deposit. Licensee shall pay TTOR a security deposit (the “Security Deposit”) of $25,000 to be held by TTOR as security for the performance of all of the conditions of this Agreement by Licensee. Licensee shall pay the Security Deposit in full by Friday, August 9, 2013. Failure of the Licensee to pay the Security Deposit by Friday, August 9, 2013 shall entitle TTOR to terminate this Agreement provided that TTOR will give Licensee notice and a 24-hour cure period prior to any termination. The Security Deposit, less any amount due to TTOR as a result of damages caused to the Premises (including the Licensed Areas) by the Licensee, shall be refunded within 30 15 days after the termination of this Agreement.
(c) Site Monitoring Fee. The Licensee understands and agrees that TTOR shall have a Site Monitor(s) present at the Licensed Areas whenever the Licensee or any of the Licensee’s agents, contractors, vendors, invitees or guests (or employees or contractors of any of the foregoing) are at the Licensed Areas. The Licensee understands and agrees that TTOR shall be entitled to have at least one Site Monitor on the grounds at Castle Hill and up to two Site Monitors in the Great House or other areas as designated by TTOR. The Site Monitors shall monitor the Premises and the Licensed Areas to ensure adherence to the terms and conditions of this Agreement and the regulations and policies governing the usage of the Premises. The Site Monitor Fee is included in the License fee detailed in Exhibit B to this agreement.
(d) Direct Costs. The Licensee shall reimburse TTOR for all costs incurred by TTOR directly associated with the activities of the Licensee, including, but not limited to, any clean up of the Premises (including the Licensed Areas). Reimbursement for direct costs is due within 7 days of receipt of an invoice detailing any such costs.
4. Except as otherwise expressly set forth on Exhibit A, attached hereto, the Licensee shall have no right to make any alterations, additions, improvements, installations, or perform any construction within the Licensed Areas. The Licensee shall exercise its rights under this License in a manner so as to minimize interference with the use of the Premises (including the Licensed Areas) for their primary use as recreational and historical properties. The Licensee shall maintain the Premises (including the Licensed Areas) in the same condition that they are in at the beginning of the Use Time (excepting normal wear and tear not arising in connection with the Licensee’s use of the Licensed Areas), and specifically agrees to maintain the Licensed Areas as set forth on Exhibit A, attached hereto. Any repairs necessitated by damages caused by the Licensee or any user of Licensee may be undertaken by TTOR but shall be at the expense of the Licensee. If the Licensee fails to keep the Licensed Areas adequately maintained, TTOR reserves the right to bill the Licensee on an hourly basis for any necessary cleaning. The Licensee further covenants and agrees to indemnify and save harmless TTOR, its affiliates, agents, servants, employees, guests and invitees, from and against all loss, damage, cost, or claim, including reasonable outside legal expenses, of whatever nature arising from any act, omission, misconduct or negligence of the Licensee or of Licensee’s contractors, licensees, agents, servants, employees or invitees in connection with this License. The provisions of this Section4 shall survive the expiration or termination hereof. The Licensee shall be solely responsible for any damage caused to the Premises (including the Licensed Areas) caused by the Licensee (and its agents, invitees, guests, employees, contractors or vendors).
(a) It is understood that any use of the Licensed Areas by the Licensee or any user is solely at the Licensee’s and/or such user’s own risk, and that the Trustees are not under any obligation to maintain the Licensed Area for the Licensee’s or any user’s use or anticipated use. The Licensee agrees that any and all property of the Licensee or any user of any kind that may be on or in the Licensed Areas shall be at the sole risk of the Licensee, and that in no case whatsoever shall the Trustees be liable to the Licensee, or any other person, for any injury, death, loss or damage to any person or property, unless such injury, death, loss or damage is caused by the gross negligence or willful misconduct of TTOR or its agents or employees.
(b) Notwithstanding any provision herein, unless otherwise agreed upon in writing, any alterations, additions or improvements made by the Licensee during the term of the License shall be removed upon the expiration of the License Agreement by the Licensee or, at TTOR’s election, shall become the property of TTOR. The Licensee understands and agrees that TTOR will not be liable for any portion of the cost of any permitted alterations, additions or improvements (or removal thereof) and that, upon expiration of the License Agreement; the Licensee will have no further rights in any such alterations, additions or improvements. TTOR is not responsible for supervision or storage of any items brought onto the Licensed Areas by Licensee or its participants, staff, employees or agents. Notwithstanding anything to the contrary contained in Exhibit A or elsewhere in this License Agreement, Licensee shall not be permitted to permanently alter any portion of the Licensed Areas in connection with its use of such areas, including any expressly permitted alterations or improvements. Prior to the expiration of this License Agreement, Licensee agrees to clean, restore, and repair, at its sole cost and expense, any and all disturbed portions of the Licensed Areas to their original condition (excepting normal wear and tear not arising in connection with the Licensee’s use of the Licensed Areas).
5. Among the other reasons described herein, this License may be revoked by TTOR at any time if the Licensee materially breaches any of the material terms of this Agreement or for the Licensee’s violation of decisions made by TTOR Site Monitors, provided that TTOR will give Licensee notice of the cause thereof and, if such breach or violation is capable of being cured, a 24-hour cure period prior to such termination, in which event TTOR shall be entitled to retain all monies paid to TTOR to date (including any deposits) and the Licensee shall forthwith remit to TTOR all License Fees and other fees or reimbursements as are payable to TTOR up to the date of termination. TTOR reserves the right to instruct the Licensee to suspend work if a material term of this Agreement has been or will imminently be violated, or if there is an imminent risk of serious injury to the general public. In the event that, following a cause of termination and TTOR’s request that Licensee vacate the Premises, Licensee refuses and/or fails to do so, Licensee shall thereafter be considered to be trespassing upon the Premises. In such event, TTOR shall be entitled to seek an action of trespass against Licensee to have Licensee removed from the Premises. Notwithstanding TTOR's foregoing rights of termination and trespass, TTOR hereby irrevocably waives the right to restrain, enjoin, or otherwise interfere with the production, exploitation, distribution,advertising or promotion of the Movie and agrees that TTOR's sole remedy for any claim arising through the Agreement shall be an action at law for monetary damages.
6. The rights of use and access to the Premises granted hereby are non-exclusive and shall be exercisable in common with others entitled thereto from time to time; and TTOR expressly reserves and retains the right to use, or to grant to others the right to use the Licensed Areas and the surface and subsurface of, and the air space above the Licensed Areas. Without limiting the generality of the foregoing, it is specifically understood and agreed that the Premises are open to the general public and may be used by the general public even during the term of the License. TTOR agrees to use reasonable efforts to exclude the general public from the Licensed Areas during the Use Time.