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HomeMy WebLinkAboutContracts & Agreements_11-2010_CCv0001.pdf Music LOCAL GOVERNMENTAL LCE Performance LI-09/09-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 $25,004'. 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, Intemet, 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 (B) by means of a coin operated jukebox. 3. REVIEW OF STATEMENTS AND 1 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 appointed, they shall appoint a third arbitrator. If ten (10) days BMI may impose a late payment charge of one and one-half elapse after the appointment of the second arbitrator and the two percent (1i/zoo) per month, or the maximum rate permitted by arbitrators are unable to agree upon a third arbitrator, then either law, whichever is less, from the date payment is due on any party may, in writing, request the American Arbitration payment that is received by BMI more than thirty(30)days after Association to appoint the third arbitrator. The award made in the due date. BMI may impose a$25.00 service charge for each the arbitration shall be binding and conclusive on the parties and unpaid check, draft or other means of payment LICENSEE judgment may be, but not need be, entered in any court having submits to BMI. jurisdiction. Such award shall include the fixing of the costs, expenses,and attorneys'fees of arbitration,which shalt be bome 5. BMI COMMITMENT TO CUSTOMER J INDEMNiTY by the unsuccessful party. So long as LICENSEE is not in default or breach of this Agreement, BMI agrees to indemnify,save harmless, and defend 10. NOTICES LICENSEE and its officers, and employees, from and against Any notice under this Agreement will be in writing and deemed any and all claims, demands, or suits that may be made or given upon mailing when sent by ordinary first-class U.S. mail to 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 time address which either party may designate. Any such notice sent 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 f 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)days or enforceability of any other provisions. This Agreement after LICENSEE's receipt of written notice thereof. The right to constitutes the entire understanding between the parties and cancel granted to BMI shall be in addition to any and all other cannot be waived or added to or modified orally and no waiver, 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 accordance BMI shall have the right to cancel the Agreement along with the with the Rate Schedule on Page 3. For purposes of this simultaneous cancellation of the Agreements of all other 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 and advance written notice. based on LICENSEE's population as established in the most recent published U,S. Census data. It does not 8. ASSIGNMENT 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 Date 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 Fee does it authorize any public performances at any of the Premises due. 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 9. ARBITRATION municipal and/or county attorneys shall be required to All disputes of any kind, nature, or description arising in pay only the fee under the Schedule C of the Rate connection with the terms and conditions of this Agreement, Schedule. Such leagues or associations are not subject except for matters within the jurisdiction of the BMI Rate Court, to Schedule A or Schedule B of the Rate Schedule. shall be submitted to the American Arbitration Association in the Fees paid by such leagues or associations do not cover City,County,and State of New York,for arbitration under its then performances of the municipality, county, or other local prevailing arbitration rules. The arbitrator(s) to be selected as government entity represented by the league or follows. Each of the parties shall, by written notice to the other, association. Schedule C fees are not applicable to have the right to appoint one arbitrator. If, within ten (10)days municipal, county or other government entities, 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 Page 2of4 20109 RATE SCHEDULE FOR LOCAL GOVERNMENTS SCHEDULE A Check Population LICENSEE's Population Base License Fee Enter Fee Based Upon Range(4) cePopulation Lj 1 - 50,000 $305 50,001 75,000 $608 $608 75,001 100,000 $731 100,001 - 125,000 $975 ❑ 125,001 - 150,000 $1,219 150,001 200,000 $1,584 Lj 200,001 250,000 $1,949 250,001 - 300,000 $2,317 300,001 - 350,000 $2,682 350,001 - 400,000 $3,049 400,001 - 450,000 $3,414 450,001 - 500,000 $3,780 500,001 - plus $5,133 plus$500 for every 100,000 population increment If 500,001 or more,enter population or portion thereof above 500,000 up to a maximum annual fee of$50,950 SCHEDULE A FEE $608.00 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$25,000.00_ "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 BW will provide a report form to reportyour events' SCHEDULE C State Municipal and/or County Leagues or State Associations of Attorneys (to be completed if you are a State Municipal andlor 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$305.00.No Special Events fee applies to LICENSEES qualifying under this schedule. SCHEDULE C FEE 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. (e) If LICENSEE presents, sponsors or promotes a Special Event that is reportable under Rate Schedule B with another person or November 19,200! 1871980 Page 3 of 4 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 201 BAND THEREAFTER For each calendar year commencing 201q 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 any percentage 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 dune 1,2009 which shall be considered the effective date of this Agreement, and continuing thereafter for additional terns 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 BW upon execufion) between BROADCAST MUSIC, INC., a State of New York corporation with its principal offices at 320 West 57'"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. LEGAL NAME LICENSED PREMISES Redlands, California All locations are authorized by the LICENSEE {Name of Corparatlon.Partnership,or Individual Owner) (Street Address) TRADE NAME (c ) (state) (zip) Redlands, California (Doing business under the name of) (Telephone Numbe4 (Fay Number) PLEASE CHECK APPROPRIATE BOX (ContactNama) (fide) ❑ individual Ownership (EmailAddress) (web address) ❑ LLC ❑ Corporation t5�fe d!„uvrP,rddon,if dMdeN frau L+reresed Pramisas) ❑ LLP ❑ Partnership MAILING ADDESS tFakernames nrpafnersy (if different from U€ansed Premises) ❑ Other (Street Address) Federal Tax ID No. (CihJ Metal (yip) GOVERNMENT ENTITIES (if applicable,please check ane) (Telephone!Number) (Far Number) ❑ Federal © State rState) {CcnferY Name) (Trtte) ❑ Local eMunlcipeLty and Stale) (Email Address-if d,ffarent from above) TO BE COMPLETED BY LICENSEE FOR ADMINISTRATIVE USE ONLY By signing this Agreement you represent that you have the authority to hind TO BE COMPLETED BY BMI LICENSEE and that yov have read,understood and agree to all at the terms and conditions herein. BROADCAST MUSIC INC. __--(�fGN HERE—PLEASE INCLVDE PA'YMEN'T) Signature Pat Gilbreath, Mayor Sam Ir in Print Name ITitle City Clerk Signatory Email Address' rrfd:9erentfrom above) FOR BMI USE ONLY LGE 'in order to receive a eaov of your executed Aatroement lees® rovide the email address of the 51_qni4ory 1871960 PLEASE RETURN THIS ENTIRE SIGNED 1 0 LICENSE AGREEMENT TO: ACCOUNT Na• COID BMI,10 MUSIC SQUARE E.,NASHVILLE,TN 37203 �BMI and the music stand symbol are registered trademarks of Broadcast Mush,Inc II��I�€ I�i�IIII�I��BfN��ll!�I�II�IIIfI��IIq�l�llll�il�� Page 4 of 4 authorize the use of the form by staff to execute individual Hangar Lease Agreements with a term of up to three years between the City and airport tenants. Revised COPLINK Contractor Agreement - On motion of Councilmember Gallagher, seconded by Councilmember Harrison, the City Council unanimously agreed to approve the City's revised agreement with Cletus Hyman in connection with this services for the San Bernardino County Police Chiefs and Sheriffs Association's COPLINK Project and to approve an additional appropriation in the amount of$100,000 for the COPLINK Project Management Contract. Music Performance Ap-reement - On motion of Mayor Pro Tem Bean, seconded by Councilmember Gallagher, the City Council unanimously agreed to approve and authorize the Mayor to execute a Music Performance Agreement with Broadcast Music, Inc. for the purposes of compliance with United States Copyright law. Fee Waiver Form - On motion of Mayor Gilbreath, seconded by Mayor Pro Tern Bean, the City Council unanimously agreed to approve the use of a standard form for fee waiver requests received from non-profit or charitable organizations. Mayor Gilbreath stipulated that approval of the proposed form was subject to changes to be made to include the City resident/non-resident status of waiver applicants. COMMLN- ICATIONS Healthy Redlands Proms — Mayor Gilbreath relayed the receipt of Congressional Recognition from the Office of Joe Baca, State Recognition from the Office of Gloria Negrete McLeod, Recognition from Kaiser Permanente, and Recognition from the California Assembly all citing the good work done by this exemplary program. The Mayor also expressed appreciation to Amanda Frye for her participation in the program. Mustard Seed Tutorial Center—Mayor Gilbreath informed the City Council of a letter she had written to Stater Brothers Charities in support of the Mustard Seed Tutorial Center's request for funding. Streets and Roads Needs Assessment — Municipal Utilities and Engineering Director Hoerning presented an update of the findings of the California Statewide Local Streets and Roads Needs Assessment Report. The bottom line of the report is that our streets and roads are currently classified as "at risk" and with our present level of funding the classification will be "poor" by 2033. The State projects a shortfall of $71.4 billion in funds required to adequately maintain our streets and roads for the next ten years. If that shortfall is January 19, 2010 Page 4