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HomeMy WebLinkAboutContract 29977 CITY SECRETARY 05-17-04PU4 :40 RCVD CONTRACT NO. EMI° Music LGE Performance LOCAL GOVERNMENTAL Ll-03/12-LGE Agreement ENTITIES 1. DEFINITIONS (a) LICENSEE shall include the named entity and any of its constituent bodies, departments,agencies or leagues. (b) Premises means buildings, hospitals, airports, zoos, museums, athletic facilities, and recreational facilities, including, but not limited to, community centers, parks, swimming pools, and skating rinks owned and/or operated by LICENSEE and any site which has been engaged by LICENSEE for use by LICENSEE. (c) Recorded Music means music which is performed at the Premises by means other than by live musicians who are performing at the Premises, including, but not limited to (1)compact disc, audio record or audio tape players(but not including"jukeboxes"); (2) videotape,videodisc or DVD players; (3)music performed as an accompaniment to karaoke; (4)the reception and communication at the premises of radio or television transmissions which originate outside the Premises, and which are not exempt under the Copyright Law;or(5)a music-on-hold telephone system operated by LICENSEE at the Premises. (d) Live Entertainment means music that is performed at the Premises by musicians,singers and/or other performers. (e) BMI Repertoire means all copyrighted musical compositions written and/or published by BMI affiliates or members of BMI- affiliated foreign performing rights societies, including compositions written or published during the Term of this Agreement and of which BMI has the right to license non-dramatic public performances. (f) Events and Functions means any activity conducted, sponsored, or presented by or under the auspices of LICENSEE. Except as set forth in Paragraph 2 (d)below, "Events"and"Functions"shall include, but are not limited to, aerobics and exercise classes, athletic events, dances and other social events, concerts,festivals, arts and crafts fairs, and parades held under the auspices of, or sponsored or promoted by, LICENSEE on the Premises. (g) Special Events means musical events, concerts, shows, pageants, sporting events, festivals, competitions, and other events of limited duration presented by LICENSEE for which the "Gross Revenue" (as defined in Schedule B) of such Special Event exceeds$25,000. 2. BMI GRANT (a) BMI grants and LICENSEE accepts a non-exclusive license to perform, present or cause the live and/or recorded public performance on the "Premises" and at"Events" and "Functions", and not elsewhere or otherwise, non-dramatic renditions of the separate musical compositions in the "BMI Repertoire". The performances licensed under this Agreement may be by means of "Live Entertainment"or"Recorded Music". (b) This license does not authorize (1)the broadcasting, telecasting or transmission or retransmission by wire, Internet, website or otherwise,of renditions of musical compositions in BMI's Repertoire to persons outside of the Premises, other than by means of a music-on-hold telephone system operated by LICENSEE at the Premises; and (2) performances by means of background music (such as Muzak)or other services delivered to the Premises. Nothing in this Paragraph shall be deemed to limit LICENSEE's right to transmit renditions of musical compositions in the BMI Repertoire to those who attend Events or Functions on the Premises by means of teleconferencing,videoconferencing or similar technology. (c) This license is limited to non-dramatic performances, and does not authorize any dramatic performances. For purposes of this Agreement, a dramatic performance shall include, but not be limited to, the following: (1) performance of a "dramatico-musical work" (as hereinafter defined) in its entirety; (2) performance of one or more musical compositions from a "dramatico-musical work" (as hereinafter defined) accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken; (3) performance of one or more musical compositions as part of a story or plot, whether accompanied or unaccompanied by dialogue, pantomime,dance,stage action, or visual representation; and (4)performance of a concert version of a "dramatico-musical work" (as hereinafter defined). The term "dramatico-musical work" as used in the Agreement,shall include,but not be limited to,a musical comedy,opera,play with music, revue,or ballet. (d) This license does not authorize performances: (1) at any convention, exposition, trade show, conference, congress, industrial show or similar activity presented by LICENSEE or on the Premises unless it is presented or sponsored solely by and under the auspices of LICENSEE, is presented entirely on LICENSEE's Premises,and is not open to the general public; (2)by or at colleges and universities; (3)at any professional sports events or game played on the Premises; (4) at any permanently situated theme or amusement park owned or operated by LICENSEE; (5) by any symphony or community orchestra; and (6) by means of a coin operated jukebox. 3. REVIEW OF STATEMENTS AND/OR ACCOUNTINGS (a) BMI shall have the right to require such reasonable data necessary in order to ascertain the Annual License Fee. (b) BMI shall have the right, by its authorized representatives, at any time during customary business hours, to examine the books and records of account of LICENSEE to such extent as may be necessary to verify the statements made hereunder. BMI shall consider all data and information coming to its attention as a result of any such examination of books and records as completely confidential. (c) BMI shall have the right to adjust LICENSEE's Annual License Fee based upon the most recently available revised population figures provided by the U.S. Census Department. Page 1 of 4 W--gH, /7 -h4�E-�� Metil�sete -e - BMI may impose a late payment charge of one and � elapse after the appointment of the second arbitrat d the percent (1'/z%) per month, or the maximu permitted by two arbitrators are unable to agree upon a t ' r itrator, then law, whichever is less, from the ayment is due on any either party may, in writing, request merican Arbitration payment that is receive I more than thirty (30)days after Association to appoint the thir i rator. The award made in the due dat may impose a $25.00 service charge for the arbitration shall be b' g and conclusive on the parties and e paid check, draft or other means of payment LICENSEE judgment may;be not need be, entered in any court having submits to BMA----- junsdictio uch award shall include the fixing of the costs, ex es, and attorneys' fees of arbitration, which shall be 5. BMI COMMITMENT TO CUSTOMER/INDEMNITY So long as LICENSEE is not in default or breach of this Agreement, BMI agrees to indemnify, save harmless, and 10. NOTICES defend LICENSEE and its officers, and employees, from and Any notice under this Agreement will be in writing and deemed against any and all claims, demands, or suits that may be made given upon mailing when sent by ordinary first-class U.S. mail to or brought against them with respect to the performance of any the party intended, at its mailing address stated, or any other musical works which is licensed under this Agreement at the address which either party may designate. Any such notice sent time of performance. LICENSEE agrees to give BMI immediate to BMI shall be to the attention of the Vice President, General notice of any such claim, demand, or suit, to deliver to BMI any Licensing Department at 10 Music Square East, Nashville, TN papers pertaining thereto, and to cooperate with BMI with 37203. Any such notice sent to LICENSEE shall be to the respect thereto, and BMI shall have full charge of the defense of attention of the person signing the Agreement on LICENSEE's any such claim,demand, or suit. behalf or such person as LICENSEE may advise BMI in writing. 6. BREACH OR DEFAULT/WAIVER 11. MISCELLANEOUS Upon any breach or default of the terms and conditions The fact that any provisions are found by a court of competent contained herein, BMI shall have the right to cancel this jurisdiction to be void or unenforceable will not affect the validity Agreement if such breach or default continues for thirty (30) or enforceability of any other provisions. This Agreement days after LICENSEE's receipt of written notice thereof. The constitutes the entire understanding between the parties and right to cancel granted to BMI shall be in addition to any and all cannot be waived or added to or modified orally and no waiver, other remedies which BMI may have. No waiver by BMI of full addition and modification shall be valid unless in writing and performance of this Agreement by LICENSEE in any one or signed by both parties. more instances shall be deemed a waiver of the right to require full and complete performance of this Agreement thereafter or of 12. FEES the right to cancel this Agreement with the terms of this (a) In consideration of the license granted herein, LICENSEE Paragraph. agrees to pay BMI a license fee which includes the total of the"Base License Fee" and any applicable "Special Events 7. CANCELLATION OF ENTIRE CATEGORY License Fees", all of which shall be calculated in BMI shall have the right to cancel the Agreement along with the accordance with the Rate Schedule on Page 3. For simultaneous cancellation of the Agreements of all other purposes of this Agreement, licensees of the same class and category as LICENSEE, as of (i) "Base License Fee" means the annual fee due in the end of any month during the Term, upon sixty (60) days accordance with Schedule A of the Rate Schedule advance written notice. and based on LICENSEE'population as established in the most recent published U.S. Census data. It 8. ASSIGNMENT does not include any fees due for Special Events. This license is not assignable or transferable by operation of law (ii) "Special Events License Fees" means the amount due or otherwise. This license does not authorize LICENSEE to in accordance with Schedule B of the Rate Schedule grant to others any right to perform publicly in any manner any of when Special Events are presented by or on behalf of the musical compositions licensed under this Agreement, nor LICENSEE. It does not include any Base License does it authorize any public performances at any of the Fee due. Premises in any manner except as expressly herein provided. iii) LICENSEES who are legally organized as state municipal and/or county leagues or state associations of municipal and/or county attorneys shall be required All disputes of any kind, nature, or description a ' ' g in to pay only the fee under the Schedule C of the Rate connection with the terms and conditions of t ' greement, Schedule. Such leagues or associations are not except for matters within the jurisdiction of MI Rate Court, subject to Schedule A or Schedule B of the Rate shall be submitted to the American Ar ' tion Association in the Schedule. Fees paid by such leagues or City, County, and State of Ne ork, for arbitration under its associations do not cover performances of the then prevailing arbitration s. The arbitrator(s)to be selected municipality, county, or other local government entity as follows: Each o parties shall, by written notice to the represented by the league or association. Schedule other, have th ' t to appoint one arbitrator. If, within ten (10) C fees are not applicable to municipal, county or days fol ng the giving of such notice by one party, the other other government entities. s not, by written notice, appoint another arbitrator, the first bitrator f-twaarHitrators--are--sa- rr Page 2 of 4 2004 RATE SCHEDULE FOR LOCAL GOVERNMENTS SCHEDULE A Check Population LICENSEE's Population Base License Fee Enter Fee Based Upon Range(4) Population 1 - 50,000 $260 ❑ 50,001 - 75,000 $520 ❑ 75,001 - 100,000 $624 ❑ 100,001 - 125,000 $833 ❑ 125,001 - 150,000 $1,041 ❑ 150,001 - 200,000 $1,353 ❑ 200,001 - 250,000 $1,665 ❑ 250,001 - 300,000 $1,979 ❑ 300,001 - 350,000 $2,291 ❑ 350,001 - 400,000 $2,603 ❑ 400,001 - 450,000 $2,915 ❑ 450,001 - 500,000 $3,228 © 500,001 - plus $3,956 plus$500 for every 100,000 population increment or portion If 500,001 or more,enter population thereof above 500,000 up to a 534,694 maximum annual fee of$52,056 SCHEDULE A FEE $ 4,010.40 SCHEDULE B Special Events Fee (to be reported 90 days after each event*, see Par. 13(d)) The rate for Special Events shall be 1%of Gross Revenue. • "Special Events" means musical events, concerts, shows, pageants, sporting events, festivals, competitions, and other events of limited duration presented by LICENSEE for which the"Gross Revenue"of such Special Events exceeds$25,000. • "Gross Revenue"means all monies received by LICENSEE or on LICENSEE's behalf from the sale of tickets for each Special Event. If there are no monies from the sale of tickets,"Gross Revenue"shall mean contributions from the sponsors or other payments received by LICENSEE for each Special Event. SCHEDULE B FEE BMI will provide a report form to report your events* SCHEDULE C State Municipal and/or County Leagues or State Associations of Attorneys (to be completed if you are a State Municipal and/or County Leagues or State Associations of Attorneys) The annual license fee for LICENSEES who are legally organized as state municipal and/or county leagues,or state associations of municipal and/or county attorneys shall be$260.00. No Special Events fee applies to LICENSEES qualifying under this schedule. SCHEDULE C FEE $ 0.00 13. REPORTING (a) Upon the execution of this Agreement, LICENSEE shall submit: (i) a report stating LICENSEE's population based on the most recent published U.S. Census data. The population set forth in the report shall be used to calculate the Base License Fee under this Agreement;and (ii) a report containing the information set forth in Paragraph 13(d) below for all Special Events that were presented between the effective date of this Agreement and the execution of this Agreement. (b) The Base License Fee for the first year of this Agreement and any license fees due for Special Events that were presented between the effective date of this Agreement and the execution of this Agreement shall be payable upon the execution of this Agreement. (c) Base License Fees for subsequent years shall be due and payable within 30 days of the renewal date of this Agreement and shall be accompanied by a statement confirming whether any Special Events were presented during the previous calendar year. (d) Ninety(90)days after the conclusion of each Special Event, LICENSEE shall submit to BMI payment for such Special Event and a report in printed or computer readable form stating: (i) the date presented; (ii) the name of the attraction(s)appearing; (iii) the"Gross Revenue"of the event(as defined above); (iv) the license fee due for each Special Event. Page 3 of 4 (e) If LICENSEE presents, sponsors or promotes a Special Event that is reportable under Rate Schedule B with another person or entity licensed under a BMI License Agreement, LICENSEE shall indicate the name, address, phone number and BMI account number of the other person(s)or entity(ies)and the party responsible for payment for such Special Event. If the other party is not licensed by BMI, LICENSEE shall pay the license fee due hereunder, notwithstanding any agreement to the contrary between LICENSEE and the other party. (f) LICENSEE agrees to furnish to BMI, where available, copies of all programs of musical works performed, which are prepared for distribution to the audience or for the use or information of LICENSEE or any department thereof. The programs shall include all encores to the extent possible. LICENSEE shall be under no obligation to furnish programs when they have not been otherwise prepared. 14. RATE ADJUSTMENTS/LICENSE FEE FOR YEAR 2004 AND THEREAFTER For each calendar year commencing 2004,all dollar figures set forth in Schedules A, B and C(except the$500 add-on for populations of 500,001 or more) shall be the license fee for the preceding calendar year, adjusted in accordance with the increase in the Consumer Price Index—All Urban Consumers (CPI-U)) between the preceding October and the next preceding October, rounded to the nearest dollar. Any additional license fees due resulting from the CPI adjustment shall be payable upon billing by BMI. 15. TERM OF AGREEMENT This Agreement shall be for an initial Term of one(1)year,commencing April 1,2004 which shall be considered the effective date of this Agreement, and continuing thereafter for additional terms of one (1) year each. Either party may give notice of termination to the other no later than thirty (30) days prior to the end of the initial or any renewal term. If such notice is given, the Agreement shall terminate on the last day of the Term in which notice is given. AGREEMENT AGREEMENT,made at New York, N.Y.on (Date will be entered by BMI upon execution) between BROADCAST MUSIC,INC., a State of New York corporation with its principal offices at 320 West 57th Street, New York,N.Y. 10019(hereinafter"BMI')and the legal or trade name described below and referred to thereafter as"LICENSEE"(the"Agreement"). This Agreement includes all of the terms and conditions set forth herein. PLEASE RETURN THIS ENTIRE SIGNED LICENSE AGREEMENT TO: BMI,10 MUSIC SQUARE EAST,NASHVILLE,TN 37203 ENTER LEGAL NAME: LICENSED PREMISES City of Fort Worth (All locations authorized by the LICENSEE) (Name of Corporation,Partnership,or Individual Owner) (StrestAddress) ENTER TRADE NAME: A(C.nW1 iph (State) (Zip) City of Fort Worth (Doing business under the name of) (Fax Number) A" (Title) CHECK APPROPRIATE BOX AND COMPLETE MAILING ADDRESS (If different from Licensed Premises address) ❑ Individual Ownership 4200 South Freeway,Suite 2200 (Stree(Address) ❑ LLC ❑ Corporation Fort Worth TX 76115 (State of Incorporation,if differentfrom Licensed Premises) (City) (State) (Zip) ❑ LLP ❑ Partnership 817-871-5755 (Enter names of partners) (Telephone No.) (Fax Number) ❑✓ Other Municipality Sandra Youngblood City Attorney (Contact Name) (Title) Fed.Tax ID# TO BE COMPLETED BY AN AUTHORIZED FOR ADMINISTRATIVE USE ONLY EPRESENTATIVE OF LICENSEE TO BE COMPLETED BY BMI BROADCAST MUSIC, INC. Signature �Z THOMAS G.ANNASTAS Print Name/Title VICE PRESIDENT, GENERAL LICENSING FOR BMI USE ONLY _ . 1 G, APPROVED AgO FORM AND LEGAUM- Account No. COID � I BMI and the Music Stand symbol are registered trademarks of Broadcast Music, Inc. A CAyAttoff y Date ATTESTED BY Page 4 of 4 �J c) M e cWeeci . �G -' 4%�i�/I/