AGREEMENT FOR THE MUSICAL COMPOSITION AND THE MASTER RECORDING CONSIST OF THE SONG CLEARWATERTHIS AGREEMENT (the "Agreement "), made and entered into on
( "Effective Date "), is by and between Luke Daniel Preston, 811 Gale Lane - APT 303,
Nashville, TN 37204 (hereinafter referred to as "Preston "), and the City of Clearwater,
112 S. Osceola Ave., Clearwater, FL 33756 (hereinafter referred to as "Licensee ").
WHEREAS Preston is the composer of and has rights to the song "Clearwater," to
which he may grant licenses to both master recordings and the underlying musical
compositions, and
WHEREAS Licensee desires to obtain a license to use said recordings and underlying
musical compositions for promotional and advertising purposes related to the City of
Clearwater centennial celebration, including but not limited to such possible usages as
inclusion in Licensee's films, videos, television programs, audio programs, commercial
ads, website and other audio and /or audio visual uses, subject to the terms, conditions,
and restrictions of this Agreement, as set forth below.
In consideration of the mutual covenants and conditions contained herein, the parties
hereby agree as follows:
1. Licensed Work. The musical composition (the "Composition ") and the master
recording ( "Master ") covered by this Agreement consist of the song "Clearwater"
( "Licensed Work ").
2. Terms. The rights granted by Preston to Licensee hereunder shall be for the period
commencing with the effective date of this agreement and ending on December 31,
2015. Licensee will pay Preston a flat fee of Four Hundred Dollars ($400.00) in
exchange for the use of the Licensed Work as more particularly provided for herein.
3. Territory. The territory covered by this license shall be the world (the "Territory").
4. Purpose.
(a) Preston hereby grants a license to the Licensee to use the musical composition
and master recording of the song "Clearwater" for the following purposes: (i) record,
dub, synchronize and fix in synchronization or timed relation with visual images,
including but not limited to motion pictures, television, video; (ii) remix, edit, and alter
same; (iii) duplicate and make copies; (iv) couple with other audio recordings; (v)
"sample" same, and combine with other recordings: (vi) use as background music,
incidental music in television, radio, slide shows, power point displays, and other
productions; and (vii) use on websites, and as streaming audio files on the internet.
(b) Notwithstanding the foregoing, Licensee shall use the Licensed Work for any
and all of the purposes set forth in Paragraph 4(a) above, subject to the terms and
conditions hereunder. Notwithstanding the foregoing, Licensee shall have no right to
resell, transfer or hypothecate the unaltered version of the Licensed Work.
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(c) Preston shall maintain and control the copyright to the song. The song is
protected by copyright as an original work under copyright law and shall not be copied
or duplicated without the express written consent of Preston.
6. Grant of Rights. Preston grants to Licensee a non- exclusive, worldwide license to
use the Licensed Works in synchronization or timed relation with other audio and /or
audio /visual productions (Projects) for broadcast and /or non - broadcast purposes
during the License Term for the permitted purposes set forth above, subject to the
terms, conditions and restrictions contained herein.
(a) Any public performance by Licensee of the Licensed Works is subject to the
clearance of the applicable public performance rights in force from time to time applied
by the performing rights society in each part of the Territory in accordance with their
respective prevailing terms and conditions. Preston hereby grants to Licensee a waiver
regarding any obligation to pay fees to applicable performance rights societies
throughout the Territory (including but not limited to ASCAP, BMI, SESAC, PRS, GEMA,
SACEM), and internet performances (Sound Exchange, etc.). This waiver will only be
valid if either (a) the use of the Composition is entirely constrained to the United States
of America or (b) the Composition is indicated by Preston as being registered either with
ASCAP, BMI or no collecting society.
(b) Licensee shall attribute and credit the Licensed Works in all exhibition and
exploitation of the Project.
(c) Licensee shall be permitted to edit and /or remix the Licensed Works, or any part
thereof, as required for its intended usage, subject to the terms and conditions
hereunder. Any alteration or modification by Licensee of the Licensed Work, including
but not limited to Licensee's remix, addition or change of any lyrics, shall be at
Licensee's sole risk, and Preston shall have no responsibility regarding any such
alteration or modification.
(d) Licensee shall have the right throughout the Territory to fix and record the
Licensed Work in synchronization or timed relation with the Project and to make copies
thereof, in respect of the exhibition and exploitation in all media now known or hereafter
devised, including, without limitation, theatrical and non- theatrical exhibition and
broadcast on all forms of television, including network, non - network, local or syndicated
broadcasts, "pay television ", "cable television ", "subscription television ", "CATV ", closed
circuit television and to import and export film copies of the Project embodying the
Licensed Works.
(e) Licensee acknowledges and agrees that all rights in and to the Licensed Works,
whether now known or hereafter in existence, that are not granted to Licensee
hereunder are specifically reserved by Preston.
7. Warranties and Representations.
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(a) Licensee warrants and represents that: (i) it has the right to enter into this
Agreement and has not entered into any other agreement that would interfere with your
grant of rights hereunder; (ii) not under any disability, restriction or prohibition, whether
contractual or otherwise, with respect to its right to execute this Agreement; (iii) all
information provided by Licensee herein and during the Term hereof shall be accurate,
complete and not misleading in any material respect; (iv) it shall only use the Masters
and Compositions for the purposes set forth in Paragraph 5 above, as determined by
Licensee, in accordance with the terms of this Agreement; (v) it shall abide by all
copyright notices, information, or restrictions applicable to any Preston's materials; (vi)
Licensee will comply with all requirements of the applicable performing rights societies
as set forth hereunder; and (vii) no usage by Licensee shall encourage or be associated
with illegal or illicit activities allowed.
(b) Preston warrants and represents that: (i) he has the right to enter into this
Agreement and has not entered into any other agreement that would interfere with your
grant of rights hereunder; (ii) he is under no disability, restriction or prohibition, whether
contractual or otherwise, with respect to its right to execute this Agreement and to grant
the rights granted hereunder; (iii) he is the owner and publisher of the original
Compositions (and has rights to arrangements of public domain compositions),
sufficient to grant the rights to Licensee hereunder; and (iv) no Composition or Master
nor any other selections, materials, ideas or other properties contained in the Licensed
Works shall violate or infringe upon any common law or statutory right of any person,
firm or corporation, including, without limitation, contractual rights, copyrights,
trademarks and rights of privacy.
8. Indemnity.
(a) Preston shall indemnify, save and hold Licensee harmless from any and all
damages, liabilities, costs, losses and expenses (including reasonable attorneys fees)
directly related to any claim, demand or action which is inconsistent with the warranties,
representations or covenants made by Preston hereunder, which such claim results in a
final, non - appealable judgment in a court of competent jurisdiction or which is settled
with Preston's consent. Notwithstanding the foregoing, Licensee shall notify Preston
within five (5) days of any such claim, demand, or action against Licensee. Licensee
shall have the right, at its sole expense, to participate in the defense thereof with
counsel of its choice, provided, however, Preston shall have the right at all times, in his
sole discretion, to retain and resume control of such action and proceedings.
(b) Licensee's liability arising hereunder shall be controlled and limited by
Section 768.28, Florida Statutes.
9. Limitation on Liability. Notwithstanding the foregoing, Preston shall not be liable for
any indirect, special or consequential damages including but not limited to loss of
anticipated profits, in connection with or arising from this Agreement and shall not be
liable for any Toss, damage, claim or liability arising from or related to any software
[GM 13-9100-034/164014/1]
program, data errors, digital transmission errors, failures, interruptions or delays,
regardless of cause.
10. Notices. Any and all notices that the parties are required or desire to be sent
hereunder shall be in writing and sent to the addresses first indicated above or at such
other addresses as the parties may indicate by depositing same, registered or certified
mail, return receipt requested, postage prepaid, in an official depository under the
exclusive care and control of the United States Postal Service. Notices shall be deemed
given when sent except for notice of change of address, which shall only be effective
from the date of receipt thereof.
11. Miscellaneous. The parties intend that this be the final expression of their
agreement and a complete and exclusive statement of its terms, and that no extrinsic
evidence whatsoever may be introduced in any judicial, administrative, or other legal
proceeding involving this Agreement. This license is binding upon and shall inure to the
benefit of the respective successors or assigns of the parties hereto. This Agreement
may not be modified, amended, or terminated except by an instrument in writing, signed
by the parties. If any provision of this Agreement, or the application thereof to any
person, place, or circumstance, shall be held by a court of competent jurisdiction to be
invalid, unenforceable, or void, the remainder of this agreement and such provisions as
applied to other persons, places, and circumstances shall remain in full force and effect.
The valid interpretation, enforceability, and performance of this Agreement shall be
gov; rn- • • and construed in accordance with the law of the State of Florida.
iel Preston
CITY OF CLEARWATER, FLORIDA
By: W dt444,L
William B. Horne, II
City Manager
Approvgd as to form: Attest:
"La,- W
Laura Mahony
Assistant City Attorney
[GM 13- 9100- 034/164014/1 ]
Rosemarie Call
City Clerk