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HomeMy WebLinkAboutContract 54375 3 CSC No.54375 MUSIC LICENSE AGREEMENT This MUSIC LICENSE AGREEMENT("Agreement") is made and entered into by and between (1) the City of Fort Worth, a Texas home rule municipality ("City"), acting by and through its duly authorized Assistant City Manager, Dana Burghdoff, on behalf of the Fort Worth Public Library, AND(2) the artist(s) or musical group identified below ("Licensor"). City and Licensor may be collectively referred to hereinafter as the "Parties," or individually as a "Party."The effective date of this Agreement will be the date on which all Parties have signed the Agreement ("Effective Date"). i I Licensor; Name of individual authorized to sign on the behalf of below-named artist(s) or musical group: /oseph Tarcke Artist(s) or musical group name: MYtan Motor Scooter i Mailing address:_Mlean Wtor Scooter 1220 W ARLINGTON Fort Worth, Texas 762 10 i Email address;Joseph.tacke@gmail.com_ Telephone number: 9728904078 1 RECITALS WHEREAS, Licensor is the sole and exclusive owner of certain musical compositions, files, recordings, or other creative works, images, videos, or textual content, or rights thereto, which are described more fully in the attached Exhibit "A" and incorporated herein by reference (hereinafter referred to as "Work(s)"); WHEREAS,the City operates a public library system (hereinafter"Library")and desires to make available the Works of Licensor to Library patrons (hereinafter"Patrons") through permanent { download and streaming via a web-based content sharing service (hereinafter the 1 "Service")accessible from the Library's website; t WHEREAS, Licensor represents and warrants to City that Licensor has the full right and permission to grant such licenses and permissions to the Works as described herein; WHEREAS, Licensor herein grants City a non-exclusive license to use and make available to Patrons the Work(s), subject to the terms and conditions set forth in this Agreement; NOW THEREFORE, in consideration of the promises, conditions, covenants, and warranties herein contained, the receipt and sufficiency of which are hereby acknowledged by the Parties, and for other good and valuable consideration, the Parties, each intending to be legally bound hereby, do promise and agree as follows: i 1. GRANT OF LICENSE. a. Licensor hereby grants to City a non-exclusive, royalty-free right and license to make the Work(s) available to City and its Patrons for permanent download and streaming via the Service following execution of this Agreement. I` OFFICIAL RECORD CITY SECRETARY FT.WORTH,TX ' 8 E{r E b. Once a Work is downloaded by any Patron, the license is perpetual to that Patron,The City will provide a written notice to Patrons in the "terms of service" at the time of download that Patrons are not to copy and provide the Work(s) to others. However, the Parties acknowledge and agree that the City cannot and will not be responsible for ensuring that such behavior does not occur and is hereby released from and will have no liability with regard to or arising from any such activity. c. The above license grants City the right to place, embed, integrate, include, synchronize, sample, reproduce, and integrate the Work(s) into the design or content of the Service in order to promote the services provided by the City, d. Licensor hereby grants City the right to use the name of Licensor and composers and artists involved in the Work(s) in connection with the Service, Licensor represents and warrants that it has the full right and permission to grant such license and permissions from all such individuals. e. Licensor further grants City the right to play and/or authorize play of the Work(s) at one or more IrI public functions during the term of the Agreement. I f. Licensor grants permission to City to create one copy of the Work(s) using a method and format of City's choosing for archival purposes. 2. COMPENSATION FOR LICENSE. i I a. In consideration of the license granted herein, City agrees to pay a one-time license fee to Licensor in the amount of three hundred dollars and zero cents ($300.00). b. Such license fee shall be due and payable within thirty (30) days following the receipt of the Work(s) in a digital or physical format acceptable to City, which Licensor shall provide to the City no later than thirty (30) days after the execution of this Agreement.The right to use the Work(s) shall commence immediately upon execution of this Agreement. c. City shall not owe or pay any royalties or any other payments (besides the license fee r mentioned above in paragraph 2(a)) to Licensor or any third parties as a result of the License granted herein. 3. TERM OF LICENSE. j i a. This license agreement shall be effective upon the Effective Date. b.The license granted hereunder to use the Work(s) within the scope and terms set forth herein shall be perpetual. !� c. Beginning three years following the Effective Date of this Agreement, Licensor may request in ? writing for City to remove one or more of the Works from the City's streaming and download Service. d. Prior to the expiration of three years from the Effective Date, Licensor may request in writing for City to remove any of Licensor's Mrk(s) from downloading and streaming, and City shall give E due consideration to the reasons for Licensor's request; however, the final decision to remove a Work prior to three years from the Effective Date shall be at the sole and absolute discretion of the j C ity. 4. REPRESENTATIONS AND WARRANTIES, I 2 / 8 Licensor makes the following representations and warranties to City, which representations and warranties shall apply during the term of this Agreement and shall continue to apply indefinitely following the expiration or termination of this Agreement. a. Licensor is the sole and exclusive owner of the Wbrk(s) and the copyrights and other related proprietary rights. Licensor represents and warrants that if Licensor is the songwriter or composer of any or all of the musical works embodied in the Whrk(s), whether in whole or in part(i.e. as a co- writer), Licensor has the full right, power, and authority to grant the rights set forth in this Agreement notwithstanding the provisions of any other agreement that Licensor may have entered into with any Performing Rights Organization (defined as an organization that provides intermediary functions, including as a primary function, royalty collection between copyright holders and parties who wish to use copyrighted works publicly, including but not limited to ASCAP, BMI, and SESAC) whether based in the United States or elsewhere, or any music publisher, or any other agreement to which Licensor is a party with respect to the Wbrk(s) and that Licensor is solely responsible for taking all steps necessary to inform such Performing Rights Organization or music publisher or other relevant party of Licensor's grant of a license to the City, and that no fees or payments of any kind whatsoever shall be due to any Performing Rights Organization or music publisher or other entity for City's use of the Work(s) under the License granted herein. f b.The Work(s) do not infringe upon or violate the copyrights, trademarks, patents, or other proprietary or ownership rights of any other party. Licensor represents and warrants that the use or other exploitation of the Wbrk(s), including but not limited to musical works embodied in the Wbrk(s), by City as contemplated by this Agreement will not infringe or violate the rights of any third party, including without limitation, any privacy rights, publicity rights, copyrights, contract rights or other intellectual property rights of a proprietary nature. c. Licensor has the unrestricted right and power to enter into this Agreement and to license the Wbrk(s) to City as provided herein. If Licensor is acting on behalf of an artist, band, group, limited liability company, corporation, or other entity, Licensor hereby represents and warrants to City that Licensor is fully authorized to enter into this Agreement on behalf of such artist, band, group, limited liability company, corporation, or other entity, and to grant all of the rights and assume and fulfill all of the obligations, covenants, representations, and warranties set forth in this Agreement. d. Licensor represents and warrants that Licensor has not assigned any rights in and to the Work(s) to any third party (e.g. a record company) that obtained exclusive rights in and to the Wbrk(s). Further, Licensor represents and warrants that there are no other agreements, court orders, or provisions of any law or administrative rule that interfere with Licensor's right to license the Mrk(s) hereunder. e. Licensor has obtained all necessary consents, permissions, licenses, and other documents from any artists, composers, musicians, recording companies, musician unions or other labor unions, copyright owners, or others with any interest in the Work(s) or who performed on the Wbrk(s), at Licensor's sole cost and expense and will indemnify and hold Indemnified Parties harmless from and against any and all claims,suits,threats, demands, actions, and causes of action brought directly or indirectly by any such party. Licensor further represents and warrants that Licensor has the permission to use the name and likeness of each identifiable person whose name or likeness is contained or used within the Wbrk(s). 5. INDEMNIFICATION AND LIIABUM Licensor covenants and agrees to indemnify, hold harmless, and defend City, its agents, servants, employees, representatives, and elected officials, past, present I 3 / 8 I I i and future (collectively the "Indemnified Parties"), from and against any and all claims or suits, of whatsoever kind or character, whether real or asserted, for any and all property loss, property damage, and/or personal injury, including but not limited to claims or suits for attorneys'flees or costs, arising out of or in connection with the license granted City by this Agreement or the representations and warranties of Licensor made herein;and Licensor hereby assumes all liability and responsibility for such claims or suits. Furthermore, Licensor specr kally agrees to defend, settle, or pay, at its own cost and expense, any claim or action against City for infringement of any patent, copyright, trademark, trade secret, or similar property right arising from City's use of the Work(s) in accordance with this Agreement. So long as Licensor bears the cost and expense of payment for claims or actions against City pursuant to this section, ` Licensor shall ha ve the right to conduct the defense of any such claim or action and f all negotiations for its settlement or compromise and to settle or compromise any such claim,however, City shall have the right to fully participate in any and all such settlements, negotiations, or lawsuits as necessary to protect the City's interest, and City agrees to cooperate with Licensor in doing so. In the event City, for whatever reason, assumes the responsibility for payment of costs and expenses for any claim or action brought against City for infringement arising under this Agreement, City shall have the sole right to conduct the defense of any such claim or action and all negotla tions for its settlement or compromise and to settle or compromise any such claim;however, Licensor shall fully participate and cooperate } with City In defense of such claim or action. City agrees to give Licensor timely written notice of any such claim or action, with copies of all papers City may receive relating thereto. Notwithstanding the foregoing, City's assumption of payment of j costs or expenses shall not eliminate Lkensor's duty to indemnify City under this Agreement, If the Work(s) or any part thereof is held to infringe and the use thereof is enjoined or restrained or, if as a result of settlement or compromise, the City's use is materially adversely restricted, Licensor shall, at its own expense and as City's sole remedy. (a)procure for City the right to continue to use the Work(s),or(b) modify the Work(s) to make it non-infringing,provided that such modiifcation does not materially adversely affect City's authorized use of the Work(s),or(c) replace the Work(s) with equally suitable, compatible, and functionally equivalent non- infringing Work(s)at no additional charge to City;or(d) if none of the foregoing alternatives is reasonably available to Licensor, terminate this Agreement and refund aUamounts paid to Licensor by City,subsequent to which termination City may seek any and aft remedies a vailable to City in law or equity. Section 3 of this Agreement shallsurvive the expiration or termination of the Agreement. S. COPYRIGHT NOTICES/RETAINED RIGHTS. a. City shall place on its Service a notice of copyright relative to the Work(s) and credits to the songwriters and artists performing in the Work(s) as provided by Licensor to City. b.The License granted City in this Agreement is a non-exclusive license. Licensor shall retain the copyright to the Mbrk(s) and all right, title, and interest in and to the Mrk(s), including the right to publish, distribute, publicly perform, modify, enhance, change and improve, and all other exclusive rights of the copyright owner, except only for the right of license granted to City hereunder. E 4 / 8 ' c. City hereby agrees to and acknowledges the rights retained by Licensor hereunder and acknowledges that the Licensor shall retain all exclusive rights of the Licensor and holder of a copyright or other proprietary rights. d. Licensor shall have the sole right to pursue any party that infringes upon the Licensor's copyright or other proprietary rights in and to the Vkrk(s) and shall bear responsibility for all expenses of prosecuting such infringement actions against third parties. In no way shall City be responsible for policing or prosecuting said rights. 7. REMOVAL OF WORKS) 13Y CITY. City reserves the right, in its sole and absolute discretion,to remove any of Licensor's Work(s) from the City's Service if: (1) Licensor cannot document Licensor's rights under this Agreement upon City's request and to City's satisfaction; (2) the City determines, in its sole and absolute judgment, that any of the Work(s) violate the intellectual property rights or other protected interests of any third party; (3) the Work(s) are the subject of a takedown notice by a party claiming to own the rights to the Wbrk(s); or(4)for any other reason which is necessary, in City's sole and absolute judgment, to protect the interests of the City. City shall have no liability whatsoever to Licensor for the removal of any Mrk(s) from City's Service. I 8. NO ASSIGNMENT. i Neither this Agreement nor any right, interest, duty, or obligation hereunder may be assigned by the Parties hereto, except that City may contract with third-party vendors, including but not limited to Rabble, LLC,for the operation of the City's Service, which will contain the Wbrk(s). 9. GOVERNING LAW. F c This Agreement shall be construed in accordance with the laws of the State of Texas. If any action, whether real or asserted, at law or in equity, is brought pursuant to this Agreement, venue for such action shall lie in state courts located in Tarrant County,Texas or the United States District Court for the Northern District of Texas, rort Worth Division. i 10. ENTIRE AGREEMENT. I i This Agreement contains the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior discussions, agreements, proposals, or understandings, whether oral or in writing, between the Parties related to the subject matter of this Agreement.This Agreement may be changed, modified, or amended only in a written agreement that is duly executed by authorized representatives of all of the Parties. If any II provision(s) hereof is deemed to be illegal or unenforceable by a court of competent jurisdiction, i the enforceability and effectiveness of the remainder of the Agreement shall not be affected and the remainder of this Agreement shall be enforceable without reference to the unenforceable provision(s). No Party's waiver of any breach or accommodation to the other Party shall be deemed to be a waiver of any subsequent breach.This Agreement may be executed in multiple counterparts, each of which shall be considered an original, and all of which shall constitute one single instrument.A signature received via facsimile or electronically shall be as legally binding for all purposes as an original signature. 11. REVIEW OF COUNSEL. I 518 i I The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 12. GOVERNMENTAL POWERS. It is understood and agreed that by execution of this Agreement, City does not waive or surrender any of its governmental powers or immunities. 13. RIGHT TO A UDIT. I Licensor agrees that City shall, until the expiration of three (3)years after payment under this Agreement, or the final conclusion of any audit commenced during the said three years, have access to and the right to examine at reasonable times any directly pertinent books, documents, papers and records, including, but not limited to, all electronic records, of Licensor involving transactions relating to this Agreement at no additional cost to City. Licensor agrees that City shall have access during normal working hours to all necessary Licensor facilities and shall be provided i adequate and appropriate work space in order to conduct audits in compliance with the provisions of this section. City shall give Licensor reasonable advance notice of intended audits. i 1 This section shall survive the expiration or term!nation of this Agreement. [SIGNATURES APPEAR ON FOLLOWING PAGE] i I I i i i t i i I i I i k 6 / 8 CITY OF FORT WORTH: Contract Compliance Manager: By signing I acknowledge that I am the By:Dana auryhdoff person responsible for the monitoring and Name:Dana Burghdoff administration of this contract, including Title:Assistant Cky Manager ensuring all performance and reporting Date: 08/31/2020 requirements. APPROVAL RECOMMENDED: By: Name:Timothy Shidal By: Title: Administrative Services Manager Name: Marilyn Marvin Title:Assistant Library Director A PPROV ED A S TO FORM A ND LEGA LITY: a4vvap a�� oRT ATTEST: By.. . p-s o.;� rn� Name:Jo Ann Pate p°oo00 By. ^ �/ Title:Assistant C Ity d�da�nEXA54gd Name: Mary Kayser AttorneyOrdinance No.24161-04-2020 Title: C Ity Secretary CONTRACT AUTHORIZATION: M&C:N/A f i LICENSOR: bold57.G� Narfffe:_losenh Tacke_ �.tk►cA,h.�aw � � For: Mean Motor Scooter Publishing- Date: 8f7/2020 If you don't have a Vendor ID with Fort 1Nbrth, you must get one here: i You must sign this contract digitally or on a printed copy and email that back to a countersigned copy will be emailed to you when executed. f City of Fort Worth Music License Agreement 1 718 EXHIBIT "A"-- "Work(s) Please describe the "Work(s)," including: Name of album(s): Mdr Sophistication Song titie(s):_ Z, Aristobrat 2.The Void 3. Portals 4. Zombie Cop 5. Put Me Down Like a Dog I Artist(s) name(s):_Mean Motor Scooter_ Songwriter(s): Sammy Wd,Joe Tacke,Jeffery Chase Friedman, Rebekah Elizabeth E Release date: 2020-05-01 i Copyright registration number(s) (if applicable): j [Attach additional pages as necessary] i i i I I 1 I 1 i i i i i I i ]i I i 818 i