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HomeMy WebLinkAboutContract 59145CSC No. 59145 LICENSE AGREEMENT This License Agreement, including any attached and referenced schedules, ("Agreement") is made by and between Swank Movie Licensing USA ("Company"), located at 10795 Watson Road, St. Louis, Missouri 63127 and the City of Fort Worth, 200 Texas St., Fort Worth, Texas 76102 ("Licensee") for the Fort Worth Public Library ("Library"). Company and Licensee hereby mutually agree as follows: 1. Definitions (a) "Effective Date" shall mean January 1, 2023. (b) "Events" shall mean any Library activity or function wholly or primarily sponsored, promoted or conducted by or under the auspices of Licensee. (c) "License Fee" shall be the total amount paid for all Licensed Premises, calculated on an annual basis pursuant to the Rate Schedule, "Exhibit A" as incorporated herein, due to Company by Licensee in exchange for the rights granted to Licensee herein. (d) "Licensed Premises" means any Library location owned or operated by Licensee. Licensed Premises is limited to public libraries operated, owned, or engaged for use by Licensee. (e) "Public Performance Licensing" shall mean the public showings of any movies from studios represented by Company in which Company controls the right to license (alone or in combination with third party(ies). (f) "Site License Order Form" shall be completed and incorporated herein as "Exhibit B." (g) "Term" shall mean the Initial Term (as defined below) in addition to any Renewal Periods (as defined below). 2. Rights Grant (a) Company grants, and Licensee accepts, the non-exclusive right to unlimited movie showings by anyone at the Licensed Premises during the Term. (b) Company shall have the right to withdraw from this license granted by this Agreement, at any time upon written notice, if (i) Company no longer controls the right to movie showings; or (ii) if a lawsuit has been brought or threatened regarding any such movie showings. 3. Term (a) This Agreement shall begin on January 1, 2023 ("Effective Date") and expire on December 31, 2023 ("Expiration Date"), unless terminated earlier in accordance with this Agreement. ("Initial Term"). This Agreement may be renewed annually under the same terms ("Renewal Period(s)"), unless terminated by either party. (b) Either party shall have the right to terminate this Agreement as of the last day of the Initial OFFICIAL RECORD Swank Movie Licensing w City of Fort Worth License Agreement CITY SECRETARY FT. WORTH, TX page 1 of 9 Term or as of the last day of any Renewal Period(s) upon giving written notice to the other party by certified mail at least thirty (30) days prior to the commencement of the immediately subsequent Renewal Period(s). (c) Notwithstanding anything to the contrary contained herein, Company shall have the right to terminate this Agreement: (i) at any time upon written notice to Licensee in the event that Licensee is adjudicated bankrupt, or a petition in bankruptcy is filed with respect to Licensee, or Licensee is declared or becomes insolvent; or (ii) upon thirty (30) days written notice to Licensee in the event that any law, rule, decree, or other enactment having the force of law, by any authority, whether federal, state, local, territorial or otherwise, shall result in substantial interference in Company's operation or any substantial increase in the cost of conducting its business. Company shall refund to Licensee any applicable License Fees paid in advance. 4. Limitations of Rights (a) This license granted by this Agreement does not convey the right to publicly show any movies from studios represented by Company by broadcast, telecast, cablecast, transmission by wire, or other electronic transmissions (including, but not limited to, by satellite, the Internet or on-line service) to persons or locations outside of the Licensed Premises. This limitation applies unless and to the extent otherwise expressly permitted by the Agreement. (b) Company shall have the right, at its election and without limitation, to assign any of Company's rights hereunder, in whole or in part, to any person, including, without limitation, to a parent company, affiliate or subsidiary. Company shall also have the right to assign or sublicense any of its rights hereunder to any of its licensees in order to effectuate the purposes hereof. Licensee may assign, without written consent of Company, its rights under this Agreement to any person or entity owning or acquiring a substantial portion of the stock or assets of Licensee. Licensee shall not have the right to transfer or assign this Agreement nor the rights granted herein without the written consent of Company except as set forth in the immediately preceding sentence. No permitted assignment by Licensee shall relieve Licensee of its respective obligations hereunder, provided, however, that assignee may accept the obligations of assignor upon written notice to Company. (c) This license granted by this Agreement is limited to the Licensed Premises. 5. License Fees (a) In consideration for the rights granted herein, Licensee shall pay to Company the applicable License Fee as calculated pursuant to the Rate Schedule, "Exhibit A," on an annual basis in accordance with the Prompt Payment Act (Chapter 2251 of the Texas Government Code). (b) Notwithstanding anything to the contrary contained in this Agreement, upon sending of prior written notice to Licensee by certified mail, Company shall have the right to adjust the rates set forth in the Rate Schedule; provided, however, that any such adjustment shall only be effective upon the commencement of the next Renewal Period. In the event that Licensee's License Fee increases as a result of such adjustment to the Rate Schedule, Licensee shall have the right to terminate the Agreement as of the date such increase is to take effect, provided that Licensee gives Company written notice of such termination by certified mail, not later than thirty (30) days after receipt of Company's notice of such increase to Licensee. (c) In the event that Company is determined by the taxing authority or courts of any state, territory or possession in which Licensee conducts its operation to be liable for the payment of sales, use, Swank Movie Licensing w City of Fort Worth License Agreement Page 2 of 9 business use, gross receipts or other tax that is based on the amount of Company's fees from Licensee, then Licensee shall reimburse Company, within thirty (30) days of notification therefor, for Licensee's pro rata share of any such tax derived from fees received from Licensee. (d) Licensee warrants and represents that Licensee has the right to enter into this Agreement and to satisfy its obligations hereunder to Company including pay the License Fees pursuant to the Rate Schedule. (e) Company warrants and represents to Licensee that it has the right to enter into this Agreement and to grant Licensee the right to publicly show movies in accordance with the terms of this Agreement. 6. Right to Audit (a) Pursuant to Fort Worth City Charter Chapter X, Section 11, Company agrees that Licensee shall, until the expiration of three (3) years after final payment under this Agreement, have the right to examine Company's list of current movies to confirm Licensee is receiving the benefit of the grant of rights set forth in this Agreement. Licensee shall accomplish such examination by visiting https://www.swank.comZpublic-libraries/movies-tv/. (b) Upon thirty (30) days prior written notice to Licensee, Company shall have the right to examine, by its duly authorized representatives, during customary business hours, the books and records of Licensee to such extent as may be necessary to verify any and all payments, statements, computations and reports rendered and accountings made or required hereunder. All data and information brought to Company's attention as a result of any examination shall be treated as confidential. (c) Should any such examination reveal that a Licensee has underpaid Company any License Fee obligation, the Licensee shall pay to Company (i) the amount of such underpayment; (ii) a finance charge on the balance shown due of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, from the date(s) the License Fees should have been paid pursuant to this Agreement; and (iii) in the event that such examination reveals that Licensee has underpaid Company any License Fee obligation by ten percent (10%) or more, any reasonable, third party costs incurred by Company to undertake such examination. The amounts payable pursuant to the preceding sentence shall be due within thirty (30) days' notice from Company of the additional fees due. 7. Breach or Default (a) Licensee shall not be entitled to recover damages or to terminate the Agreement by reason of any breach by Company of its material obligations, nor shall Company otherwise be deemed in default or breach of this Agreement by reason of any such breach, unless Company is given written notice thereof by Licensee and same is not cured within thirty (30) days after receipt of such notice. In the event Licensee terminates the Agreement pursuant to this paragraph, Licensee shall pay to Company any unpaid License Fees. (b) Company shall not be entitled to recover damages or to terminate the Agreement by reason of any breach by Licensee of its material obligations, nor shall Licensee otherwise be deemed in default or breach of this Agreement by reason of any such breach, unless Licensee is given written notice thereof by Company and same is not cured within thirty (30) days after receipt of such notice. This right to terminate shall be available in addition to any and all other remedies that Company may have, including but not limited to the right to institute legal action for copyright infringement as permitted by the Copyright Act under 17 U.S.C. § 501. Swank Movie Licensing w City of Fort Worth License Agreement Page 3 of 9 8. Notices All notices required or permitted under this Agreement shall be conclusively determined to have been delivered when (i) hand -delivered to the other Party, or its authorized agent, employee, servant, or representative, or (ii) received by the other Party or its authorized agent, employee, servant, or representative by reliable overnight courier or United States Mail, postage prepaid, return receipt requested, at the address stated below or to such other address as one Party may from time to time notify the other in writing. LICENSEE City of Fort Worth Library Director 500 W 3rd Street, Fort Worth, Texas 76102 With copy to: Assistant City Attorney 200 Texas Street Fort Worth, Texas 76102 COMPANY Swank Movie Licensing USA 10795 Watson Road St. Louis, Missouri 63127 Performer and City agree to notify the other Party of any change in addresses. 9. Confidentiality (a) Subject to and in accordance with applicable state law in all cases, both parties acknowledge that the terms set forth in this Agreement and the non-public information provided by the parties to one another in the negotiation and carrying out of this Agreement (collectively, the "Confidential Information") are strictly confidential and both parties agree to keep the Confidential Information strictly confidential and to not disclose the Confidential Information to any third party without the prior written consent of both parties unless in response to legal action, and then upon prior written notice of five (5) business days and opportunity to respond to such legal process and protect Confidential Information, if permitted by law. The parties acknowledge that the Confidential Information is of great value to each party and if disclosed to third parties without the express written consent of the parties would cause irreparable harm. Accordingly, the parties agree that any breach or threatened breach of this confidentiality provision by either of them shall entitle the breaching party, in addition to any legal remedies available to it, to apply to a court of competent jurisdiction to enjoin any breach or threatened breach of this Agreement. The parties' obligations under this paragraph shall survive the expiration or termination of this Agreement. Both parties agree that after the Term of this Agreement, each party will destroy the Confidential Information provided by the other party if the providing party provides written notice requesting the receiving party to do so. Nothing herein contained, however, shall prevent Company from using such information for the purpose of licensing or collecting fees from Licensee for performances of the Compositions at the Licensed Premises. (b) Notwithstanding anything to the contrary contained in the immediately preceding subparagraph of this section, Company acknowledges that Licensee is a government entity under the laws of the State of Texas and as such, all documents held or maintained by Licensee may be subject to disclosure under the Texas Public Information Act. In the event there is a request for information marked Confidential or Proprietary, Licensee shall promptly notify Company. It will be the responsibility of Company to submit Swank Movie Licensing w City of Fort Worth License Agreement Page 4 of 9 reasons objecting to disclosure. A determination on whether such reasons are sufficient will not be decided by Licensee, but by the Office of the Attorney General of the State of Texas or by a court of competent jurisdiction. 10. Miscellaneous (a) 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 on the basis of 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, Fort Worth Division. (b) It is understood and agreed that by execution of this Agreement, the City does not waive or surrender any of its governmental powers. (c) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and cancels any and all previous and contemporaneous discussions, negotiations, covenants, agreements, commitments, representations, warranties and writings of any kind with respect thereto, all of which have been and are merged and integrated into, and are superseded by, this agreement. No modification, amendment, waiver, termination or discharge of this Agreement shall be binding upon Company unless confirmed by a written instrument signed by an authorized officer of Company, or binding upon Licensee unless confirmed by a written instrument signed by Licensee or Licensee's representative. A waiver by either party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future or of any subsequent breach thereof. Except as otherwise specifically set forth in this Agreement, all rights, options and remedies in this agreement shall be cumulative and none of them shall be in limitation of any other remedy, option or right available to either party. The headings of the paragraphs hereof are for convenience only and shall not be deemed to in any way affect the scope or meaning of this Agreement or any portion thereof. (d) Each and every provision of this Agreement shall be considered severable, and if for any reason any provision or provisions herein are determined to be indefinite, invalid, contrary to any applicable existing or future laws or otherwise legally unenforceable, that shall not impair the operation or effect of any other portion of this Agreement, and any portion of this Agreement found to be unenforceable shall be severed, and the balance of the provisions of this Agreement shall remain in full force and effect. (e) This Agreement may be executed in one or more counterparts and each counterpart shall, for all purposes, be deemed an original, but all such counterparts shall together constitute one and the same instrument. An executed Agreement, modification, amendment, or separate signature page shall constitute a duplicate if it is transmitted through electronic means, such as fax or e-mail, and reflects the signing of the document by any party. Duplicates are valid and binding even if an original paper document bearing each party's original signature is not delivered. (signature page follows) Swank Movie Licensing w City of Fort Worth License Agreement Page 5 of 9 Executed in multiples this the � day of , 2023. ACCEPTED AND AGREED: LICENSEE: CITY OF FORT WORTH By: op�v Name: Jesica McEachern Title: Assistant City Manager Mar 29, 2023 Date: APPROVAL RECOMMENDED: I� By: Name: Manya Shoff Title: Library Director ATTEST: By: Name Title: Jannette Goodall City Secretary pO�uggn pORT��d 0 ono �=o o�p,�ooa Qoo*� c°an nezpaaad SWANK MOVIE LICENSING USA By: Name: Title: nQ Date: Swank Movie Licensing w City of Fort Worth License Agreement CONTRACT COMPLIANCE MANAGER: By signing I acknowledge that I am the person responsible for the monitoring and administration of this contract, including ensuring all performance and reporting requirements. '� So By: Name: Timothy Shidal Title: Administrative Services Manager APPROVED AS TO FORM AND LEGALITY: By: Name: Title: All#ea ThI 'ys Andrea Phillips (Mar 29, 20t 15:47 CDT) Andrea Phillips Assistant City Attorney CONTRACT AUTHORIZATION: M&C: N/A Form 1295 Certification No.: N/A OFFICIAL RECORD CITY SECRETARY FT. WORTH, TX Page 6 of 9 EXHIBIT A RATE SCHEDULE AND LICENSE FEES Company shall provide a license for each of the following Licensed Premises. The annual license fee is set at five hundred fifty-five dollars ($555.00) per Library location. The total license fees due to Company will be ten thousand five hundred forty-five dollars ($10,545.00) for the Initial Term of the Agreement. Licensee is responsible for providing Company with an accurate list of Library locations. Library Library Code Library Location Street City State Zip 1 CEN Central Library 500 W 3rd St Fort Worth Texas 76102 2 DHJ Diamond Hill / Jarvis Library 1300 NE 35th St Fort Worth Texas 76106 3 EBY East Berry Library 4300 East Berry St Fort Worth Texas 76105 4 EMS Ella Mae Shamblee 1062 Evans Ave Fort Worth Texas 76104 5 ESTR East Regional Library 6301 Bridge St Fort Worth Texas 76112 6 FWHC Fort Worth History Center 501 East Bolt St Fort Worth Texas 76110 7 GDT Golden Triangle Library 4264 Golden Triangle Blvd Fort Worth Texas 76244 8 LGB La Gran Biblioteca 4200 South Freeway, Suite #1338 Fort Worth Texas 76115 9 LIN Vivian J. Lincoln Library 8829 McCart Fort Worth Texas 76123 10 MBK Meadowbrook Library 2800 Stark St Fort Worth Texas 76112 11 NRS Northside Library 601 Park St Fort Worth Texas 76164 12 NRW Northwest Library 6228 Crystal Lake Dr Fort Worth Texas 76179 13 RCY Reby Cary Youth Library 3851 E Lancaster Ave Fort Worth Texas 76103 14 RDG Ridglea Library 3628 Bernie Anderson Dr Fort Worth Texas 76116 15 RISE Rise Library 8201 Calmont Ave Fort Worth Texas 76116 16 RVS Riverside Library 2913 Yucca Ave Fort Worth Texas 76111 17 SGN Summerglen Library 4205 Basswood Blvd Fort Worth Texas 76137 18 SWTR Southwest Regional Library 4001 Library Ln Fort Worth Texas 76109 19 WWD Wedgwood Library 3816 Kimberly Ln Fort Worth Texas 76133 This exhibit is incorporated and made part of the Agreement. Swank Movie Licensing w City of Fort Worth License Agreement Page 7 of 9 SYSTEM INFORMATION System Name: Fort Worth Public Library System Physical Address: 500 West 3rd street City: Fort Worth System Mailing Address: City: State: Texas State: System Phone Number: Fax Number: Notes LICENSE DETAILS Total # of Branches Participating: 19 License Start Date: January 1, 2023 Your license will renew on this date. PAYMENT OPTIONS Bill Us: © Main office: Fort Worth Public Library Attn to: Administrative Services Manager Address: 500 West 3rd Street City, State, Zip: Fort Worth, Texas 76102 Purchase Order #: State Tax Exempt Number: (Please include state issued exemption certificate) Zip:76102 Zip: Total Price (per quote): $ $10,545.00 Term of Agreement: 0 1 yr p 2 yr p 3 yr Payment Included: ❑ Check enclosed (postal mail only) ❑ Credit card Card Type: ❑ VISA ❑ MC ❑ AMEX ❑ DISCOVER Card Number: Expiration Date: Name on Card: Cardholder Signature: Billing Zip Code: For Office Use Only Credit Card Auth #: Order #: Plih1ir Pp-rte. INSTRUCTIONS AND GUIDELINES This form must be completed before the license coverage can be processed. The start date for the license is yours to select. The agreement will run consecutively from the chosen date for the time period selected. Swank Movie Licensing USA does not provide a copy of the physical movie content; however, you may buy, borrow or rent movies from any legal source. This license authorizes unlimited movie showings by anyone in the library buildings, regardless of whether or not they are affiliated with the library. The invoice and all licenses are sent directly to the billing/renewal contact listed on this agreement. LICENSE AND COPYRIGHT RESTRICTIONS This license is for public libraries only. Refunds are not granted after the license has been processed; however, you may request cancellation any time after the initial term of agreement. Movie showings must take place at the physical address of the library building. In addition, the movies may not be altered, duplicated, digitized or transmitted electronically in any form without specific permission from the copyright owner. Swank Movie Licensing USA has the right to add or delete any studio throughout the course of the license period. A current list of available studios can be found on our website. Violation of this agreement is subject to the penalties set forth in the Federal Copyright Act. ADVERTISING GUIDELINES We encourage you to print publicity materials from swank.com/public-libraries to advertise the movie in your facility or to pass out directly to patrons and staff. If you choose to advertise through media (such as radio, television or a website), you may do so, as long as the movie title and studio name are not used. For example, "Join us at ABC Library for a Family Movie Night at 7:00 p.m." is permitted. ADMISSION FEES, CONCESSIONS AND DONATIONS Admission may be charged to cover the cost of this license. However, the amount collected may not exceed the cost of the license. In lieu of, or in addition to charging an admission, you may suggest donations and/or provide concessions. RENEWAL OF YOUR LICENSE This Public Performance Site License is scheduled to renew at the end of your selected initial agreement. A You may, however, request cancellation any time after the initial term of the agreement. Approximately one A month prior to expiration, the renewal packet will be mailed. Any changes to the list of licensed libraries needA to be submitted prior to the current license expiration. As long as payment is made promptly, your libraries A will remain in compliance without interruption. Requests for cancellation may be made by calling toll -free A 1.888.267.2658 or emailing: libraries@swankmp.com. I have agreed to the Terms & Conditions as outlined above and authorize Swank Movie Licensing USA to process my request as completed. Signature: 00*� Today's Date: Mar 29, 2023 Print Name: Jesica McEachern Page 9 of 9