HomeMy WebLinkAboutResolution 2006-168 agreement with BMI for public performances of music
MARANA RESOLUTION NO. 2006-168
RELATING TO ADMINISTRATION; APPROVING AND AUTHORIZING THE TOWN
MANAGER TO EXECUTE AND CARRY OUT AN AGREEMENT WITH BROADCAST
MUSIC, INC. (BMI) FOR PERMISSION FOR PUBLIC PERFORMANCES OF
COPYRIGHTED MUSIC MANAGED BY BMI.
WHEREAS, under the United States copyright laws, copyrighted music cannot be played
for any Town activity or function unless the Town holds the appropriate copyright license; and
WHEREAS, the International Municipal Lawyers Association negotiated a standardized
agreement with Broadcast Music, Inc. (BMI) for public performances of BMI-managed music;
and
WHEREAS, the Mayor and Council find that the terms and conditions of the
standardized agreement are in the best interest of the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COUNCIL OF THE
TOWN OF MARANA, ARIZONA, that the standardized agreement between the Town of
Marana and BMI, attached to and incorporated by this reference in this resolution as Exhibit A is
hereby approved, and the Town Manager is hereby authorized to execute it for and on behalf of
the Town of Marana.
BE IT FURTHER RESOLVED that the Town's Manager and staff are hereby directed
and authorized to undertake all other and further tasks required or beneficial to carry out the
terms, obligations, and objectives of the aforementioned agreement including without limitation
the preparation of all necessary reports and the payment of all necessary fees.
PASSED AND ADOPTED BY THE MAYOR AND COUNCIL OF THE TOWN OF
MARANA,ARIZONA,thiS7thdaYOfNovember,2006.... . ~ ~
s.\n~UiYII.Mayor d Honea
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{00002856.DOC I}
HMr
Music
Performance
Agreement
LOCAL GOVERNMENTAL
ENTITIES
I LGE I
L1-05/12-LGE I
http://www.bmLcom
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) 8MI 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. 8MI 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 BMl'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
4. LATE PAYMENT AND SERVICE CHARGES
BMI may impose a late payment charge of one and one-half
percent (1%%) per month, or the maximum rate permitted by
law, whichever is less, from the date payment is due on any
payment that is received by BMI more than thirty (30) days after
the due date. BMI may impose a $25.00 service charge for each
unpaid check, draft or other means of payment LICENSEE
submits to BM!.
5. BMI COMMITMENT TO CUSTOMER I INDEMNITY
So long as LICENSEE is not in default or breach of this
Agreement, BMI agrees to indemnify, save harmless, and defend
LICENSEE and its officers, and employees, from and against
any and all claims, demands, or suits that may be made or
brought against them with respect to the performance of any
musical works which is licensed under this Agreement at the time
of performance. LICENSEE agrees to give BMI immediate
notice of any such claim, demand, or suit, to deliver to BMI any
papers pertaining thereto, and to cooperate with BMI with
respect thereto, and BMI shall have full charge of the defense of
any such claim, demand, or suit.
6. BREACH OR DEFAULT I WAIVER
Upon any breach or default of the terms and conditions
contained herein, BMI shall have the right to cancel this
Agreement if such breach or default continues for thirty (30) days
after LICENSEE's receipt of written notice thereof. The right to
cancel granted to BMI shall be in addition to any and all other
remedies which BMI may have. No waiver by BMI of full
performance of this Agreement by LICENSEE in anyone or
more instances shall be deemed ~ waiver of the right to require
full and complete performance of this Agreement thereafter or of
the right to cancel this Agreement with the terms of this
Paragraph.
7. CANCELLATION OF ENTIRE CATEGORY
BMI shall have the right to cancel the Agreement along with the
simultaneous cancellation of the Agreements of all other
licensees of the same class and category as LICENSEE, as of
the end of any month during the Term, upon sixty (60) days
advance written notice.
8. ASSIGNMENT
This license is not assignable or transferable by operation of law
or otherwise. This license does not authorize LICENSEE to
grant to others any right to perform publicly in any manner any of
the musical compositions licensed under this Agreement, nor
does it authorize any publiC performances at any of the Premises
in any manner except as expressly herein provided.
9. ARBITRATION
All disputes of any kind, nature, or description anslng in
connection with the terms and conditions of this Agreement,
except for matters within the jurisdiction of the BMI Rate Court,
shall be submitted to the American Arbitration Association in the
City, County, and State of New York, for arbitration under its then
prevailing arbitration rules. The arbitrator(s) to be selected as
follows: Each of the parties shall, by written notice to the other,
have the right to appoint one arbitrator. If, within ten (10) days
following the giving of such notice by one party, the other shall
not, by written notice, appoint another arbitrator, the first
arbitrator shall be the sole arbitrator. If two arbitrators are so
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appointed, they shall appoint a third arbitrator. If ten (10) days
elapse after the appointment of the second arbitrator and the two
arbitrators are unable to agree upon a third arbitrator, then either
party may, in writing, request the American Arbitration
Association to appoint the third arbitrator. The award made in
the arbitration shall be binding and conclusive on the parties and
judgment may be, but not need be, entered in any court having
jurisdiction. Such award shall include the fixing of the costs,
expenses, and attorneys' fees of arbitration, which shall be borne
by the unsuccessful party.
10. NOTICES
Any notice under this Agreement will be in writing and deemed
given upon mailing when sent by ordinary first-class U.S. mail to
the party intended, at its mailing address stated, or any other
address which either party may designate. Any such notice sent
to BMI shall be to the attention of the Vice President, General
Licensing Department at 10 Music Square East, Nashville, TN
37203. Any such notice sent to LICENSEE shall be to the
attention of the person signing the Agreement on LICENSEE's
behalf or such person as LICENSEE may advise BMI in writing.
11. MISCELLANEOUS
The fact that any provisions are found by a coun of competent
jurisdiction to be void or unenforceable will not affect the validity
or enforceability of any other provisions. This Agreement
constitutes the entire understanding between the parties and
cannot be waived or added to or modified orally and no waiver,
addition and modification shall be valid unless in writing and
signed by both parties.
12. FEES
(a) In consideration of the license granted herein, LICENSEE
agrees to pay BMI a license fee which includes the total of
the "Base License Fee" and any applicable "Special Events
License Fees", all of which shall be calculated in accordance
with the Rate Schedule on Page 3. For purposes of this
Agreement,
(i) "Base License Fee" means the annual fee due in
accordance with Schedule A of the Rate Schedule
and based on LICENSEE's population as established
in the most recent published U.S. Census data. It
does not include any fees due for Special Events.
(ii) "Special Events License Fees" means the amount due
in accordance with Schedule B of the Rate Schedule
when Special Events are presented by or on behalf of
LICENSEE. It does not include any Base License
Fee due.
(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
to pay only the fee under the Schedule C of the Rate
Schedule. Such leagues or associations are not
subject to Schedule A or Schedule B of the Rate
Schedule. Fees paid by such leagues or associations
do not cover performances of the municipality, county,
or other local government entity represented by the
league or association. Schedule C fees are not
applicable to municipal, county or other government
entities.
2006 RATE SCHEDULE FOR LOCAL GOVERNMENTS
SCHEDULE A
Check Population LICENSEE's Population Base License Fee Enter Fee Based Upon
Range <") Population
I7l 1 - 50,000 $280 ::J.M .00
0 50,001 - 75,000 $560
0 75,001 - 100,000 $672
0 100,001 - 125,000 $897
0 125,001 - 150,000 $1,121
0 150,001 - 200,000 $1,457
0 200,001 - 250,000 $1 ,793
0 250,001 - 300,000 $2,131
0 300,001 - 350,000 $2,467
0 350,001 - 400,000 $2,803
0 400,001 - 450,000 $3,139
0 450,001 - 500,000 $3,476
0 500,001 - plus $4,260 plus $500 for every 100,000
If 500,001 or more, enter population population increment or portion
thereof above 500,000 up to a
maximum annual fee of $56,054
SCHEDULE A FEE $ 280.00
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.
I SCHEDULE B FEE I 8MI 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 $280.00. No Special Events fee applies to LICENSEES qualifying under this schedule.
I
SCHEDULE C FEE
1$
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
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(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 I LICENSE FEE FOR YEAR 2006 AND THEREAFTER
For each calendar year commencing 2007, all dollar figures set forth in Schedules A, Band 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 BM!.
15. TERM OF AGREEMENT
This Agreement shall be for an initial Term of one (1) year, commencing November 1,2006 , 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 8MI upon execution) NOV 1 6 200~etween 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: 8M I, 10 MUSIC SQUARE EAST, NASHVILLE, TN 37203
ENTER LEGAL NAME:
Town of Marana, an Arizona municipal corporation
(Name of Corporation, Partnership, or Individual Owner)
LICENSED PREMISES
11555 W Civic Center Drive
(Street Address)
Marana AZ 85653
(City) (State) (Zip)
520-382-1900 520-381-1945
(Telephone No.) (Fax Number)
Frank Cassidy Town Attorney
(Contact Name) (Title)
ENTER TRADE NAME:
Town of Marana
(Doing business under the name of)
fcassidy@marana.com
(Email Address)
www.marana.com
(Web Address)
MAILING ADDRESS
(If different from Licensed Premises address)
CHECK APPROPRIATE BOX AND COMPLETE
o
o
o
IZJ
Individual Ownership
(Street Address)
LLC 0 Corporation
LLP 0 Partnership
(State of Incorporation, if different from Licensed Premises)
(City)
(State)
(Zip)
(Enter names of partners)
(Telephone No.)
(Fax Number)
Other Municipal corporation (local government)
(Contact Name)
(Title)
860331775
Fed Tax ID #
(Email Address)
TO BE COMPLETED BY AN AUTHORIZED
REPRESENTATIVE OF LICENSEE
FOR ADMINISTRATIVE USE ONLY
TO BE COMPLETED BY BMI
BROADCAST MUSIC, INC.
'711tn11Q;-.4 ~Va.o
~~
Ed ~~tL VlaV1~
Print Name I Title 1
Thomas G. Annastas, Vice President
FOR BMI USE ONLY
LBa 14 ~3 I 14337'43<009$<[51 @
Account No. COlD
@ BMI and the music stand symbol are registered trademarks of Broadcast Music, Inc.
Page 4 of 4
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