HomeMy WebLinkAboutRES 13-059RESOLUTION NO.13 -059
BE IT RESOLVED BY THE CITY COUNCIL
OF THE CITY OF BEAUMONT:
THAT the City Manager be and he is hereby authorized to execute a one (1) year License
Agreement, with an option to renew for additional terms of one year, with ASCAP for the
payment of licensing fees for music to which ASCAP holds the copyrights. The agreement
is substantially in the form attached hereto as Exhibit "A" and made a part hereof for all
purposes.
PASSED BY THE CITY COUNCIL of the City of Beaumont this the 19th day of
March, 2013.
�. or Becky
LICENSE AGREEMENT - LOCAL GOVERNMENTAL ENTITIES
between American Society of Composers, Authors and Publishers ( "SOCIETY "), located at
2 Music Square West, Nashville, TN 37203
and City of Beaumont, TX
( "LICENSEE "), located at
PO Box 3827 Beaumont TX 77704 -3827
as follows:
I. Grant and Term of License
(a) ASCAP grants and LICENSEE accepts a license to perform publicly on the "Premises" and at "Events" and "Functions," and
not elsewhere or otherwise, non - dramatic renditions of the separate musical compositions in the "ASCAP repertory." The
performances licensed under this Agreement maybe by means of "Live Entertainment" or "Mechanical Music ". For purposes of this
Agreement,
(i) "LICENSEE" shall include the named entity and any of its constituent bodies, departments, agencies or leagues.
(ii) "Mechanical 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 (A) compact disc, audio record or audio tape players
(but not including "jukeboxes "), (B) videotape, videodisc or DVD players; (C) 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 (D) a music -on -hold telephone system operated by LICENSEE at the Premises.
(iii) "Live Entertainment " means music that is performed at the Premises by musicians, singers or other performers.
(iv) "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 or operated by
LICENSEE and any site which has been engaged by LICENSEE for use by LICENSEE.
(v) "ASCAP repertory" means all copyrighted musical compositions written or published by ASCAP members or
members of affiliated foreign performing rights societies, including compositions written or published during the
term of this Agreement and of which ASCAP has the right to license non - dramatic public performances.
(vi) "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.
(vii) "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 Event
exceeds $25,000 (as defined in paragraph 4.(d) below).
(b) This Agreement shall be for an initial term of one year, commencing January 1, 2013, which shall be considered the effective
date of this Agreement, and continuing thereafter for additional terms of one 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.
2. Limitations On License
(a) 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.
(b) This license does not authorize (i) the broadcasting, telecasting or transmission or retransmission by wire, Internet, website or
otherwise, of renditions of musical compositions in ASCAP's repertory to persons outside of the Premises, other than by means of a
music -on -hold telephone system operated by LICENSEE at the Premises; and (ii) 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 ASCAP repertory 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:
W performance of a "dramatico- musical work" (as hereinafter defined) in its entirety;
(ii) 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;
EXHIBIT "A"
(iii) 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;
(iv) performance of a concert version of a "dramatico- musical work" (as hereinafter defined).
The term "dramatico- musical work" as used in this 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:
(i) 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;
(ii) by or at colleges and universities;
(iii) at any professional sports event or game played on the Premises;
(iv) at any permanently situated theme or amusement park owned or operated by LICENSEE;
(v) by any symphony or community orchestra;
(vi) by means of a coin operated phonorecord player (jukebox) for which a license is otherwise available from the
Jukebox License Office.
3. License Fee
(a) In consideration of the license granted herein, LICENSEE agrees to pay ASCAP 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 attached to and made part of this Agreement. 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" mean 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 Fees 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 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 local government
entities.
Unless otherwise limited by law, LICENSEE shall pay a finance charge of 1.5% per month from the due date, or the maximum
amount permitted by law, whichever is less, on any required payment that it is not made within thirty days of its due date.
4. Reports and Payments
(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 4.(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 days after the conclusion of each Special Event, LICENSEE shall submit to ASCAP 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. "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 sponsors or other payments received by LICENSEE for each Special
Event;
(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
entity licensed under an ASCAP License Agreement, LICENSEE shall indicate the name, address, phone number and ASCAP 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 ASCAP, 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 ASCAP, 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.
(g) ASCAP shall have the right to examine LICENSEE'S books and records at LICENSEE's place of business during normal
business hours to such extent as may be necessary to verify the reports required by paragraph 4.(d) above. ASCAP shall have the right
to adjust LICENSEE's Base License Fee based upon the most recently available revised population figures and Population Estimates
Program provided by the U.S. Census Department.
5. Breach or Default
Upon any breach or default by LICENSEE of any term or condition herein contained, ASCAP may terminate this license by giving
LICENSEE thirty days notice to cure such breach or default, and in the event that such breach or default has not been cured within
said thirty days, this license shall terminate on the expiration of such thirty -day period without further notice from ASCAP. In the
event of such termination, ASCAP shall refund on a pro -rata basis to LICENSEE any unearned license fees paid in advance.
6. Interference in Operations
ASCAP shall have the right to terminate this license upon thirty days written notice if there is any major interference with, or
substantial increase in the cost of, ASCAP's operations as the result of any law in the state, territory, dependency, possession or
political subdivision in which LICENSEE is located which is applicable to the licensing of performing rights. In the event of such
termination, ASCAP shall refund to LICENSEE on a pro -rata basis any unearned license fees paid in advance.
7. Non - Discrimination
LICENSEE recognizes that ASCAP must license all similarly situated users on a non - discriminatory basis. LICENSEE agrees that
any modifications to this Agreement by ASCAP, which are required by local, state or federal law for other municipalities, counties
and other governmental entities shall not constitute discrimination between similarly situated users. Examples of such modifications
are statements of equal employment opportunity or nondiscrimination on the basis of race, creed, color, sex or national origin.
8. Notices
ASCAP or LICENSEE may give any notice required by this Agreement by sending it by certified United States Mail, by generally
recognized same -day or overnight delivery service or by electronic transmission (i.e., Mailgram, facsimile or similar transmission) to
the appropriate person/office as listed herein. Each party agrees to notify the other of any change in contact information, such as
change of address, change of person/office responsible, etc. within 30 days of such change.
AMERICAN SOCIETY OF COMPOSERS, LICENSEE City of Beaumont, TX
AUTHORS AND PUBLISHERS
M
TITLE
By
(Fill in capacity in which signed: (a) If corporation, state
corporate office held; (b) if partnership, write word
"partner" under signature of signing partner; (c) If
individual owner, write "individual owner" under
signature.)
R. LOCAL GOVERNMENT ENTITIES
2013 Rate Schedule
A S CA P
SCHEDULE A: Base License Fee
f)r+oula�tion
1
Foe`
1
to
50,000
$327.00
50,001
to
75,000
$651.00
75,001
to
100 000
$783.00
100,001
to
125,000
$1,043.00
126,001
to
150,000
$1,304.00
150,001
to
200,000
$1,696.00
200,001
to
250,000
$2,086.00
250,001
to
300,000
$2,478.00
300,001
to
350,000
$2,870.00
350,001
to
400,000
$3,261.00
400,001
to
450,000
$3,651.00
450,001
to
500,000
$4,044.00
500,0011
and
over
* ** $4,955.00
* ** $4,955.00 plus $500 for each 100,000 of population
above 500,000 to a maximum fee of $65,205.00
SCHEDULE B: Snaciat Events
The rate for Special Events shall be 1% of Gross Revenue.
It
"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 Event 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 sponsors or
other payments received by LICENSEE for each Special Event.
SCHEDULE C• SState Municipal and /or County Le r State Aslgociations 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 $327.
For each calendar year commencing 2014, all dollar figures set forth in Schedules A, B and C above (except for $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. Any additional license fees due resulting from the CPI adjustment shall be payable upon billing by
ASCAP.
ASCAP, PO Box 331608 -7515, Nashville, TN 37203 -9998 1- 800 - 505.4052 615.691 -7795 (FAX)
I Epayment Websites: http: / /www.ascap.com /mylicense or http:liwww.ascap.com
F --1
LOCAL GOVERNMENT ENTITIES
2013 Report Form
Account Number: Premise Name: City of Beaumont, TX
SCHEDULE A: Base License Fee (Due upon execution of Agreement and within 30 days of the Agreement's Renewal Date.)
Population Size: ®y ®I
(Per current U.S. Census Data)
Base License Fee: $1 1 1 1 1 1 7M -m
(Please refer to Rate Schedule)
SCHEDULE B: Special Events* (Report and Payment due 90 days after the conclusion of each Special Event)
""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 Event 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 sponsors or other payments received by
LICENSEE for each Special Event.
SCHEDULE C: State Municipal and/or County Leagues or State Association] of Attorneys
Report Year: ® Annual License Fee: $327.00 (Due within 30 days of Renewal Date.)
Total Fees Reported From Any or All of Schedules A, B or C: ,m
Contact Person & Title 111 11111
Phone Number: ®- ®- ® Ext: ® Fax Number: FM E i l - ®-
Em ail: W ebsite:
I certify the above information is true and correct.
Dated: m m ® Signature:
ASCAP, PO Box 331608 -7515, Nashville, TN 37203- 99981- 800 - 505.4052 615491 -7795 (FAX)
L Epayment Websites: httpJ1www.ascap.com1mylicense or http: /twww.ascap.com J
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""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 Event 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 sponsors or other payments received by
LICENSEE for each Special Event.
SCHEDULE C: State Municipal and/or County Leagues or State Association] of Attorneys
Report Year: ® Annual License Fee: $327.00 (Due within 30 days of Renewal Date.)
Total Fees Reported From Any or All of Schedules A, B or C: ,m
Contact Person & Title 111 11111
Phone Number: ®- ®- ® Ext: ® Fax Number: FM E i l - ®-
Em ail: W ebsite:
I certify the above information is true and correct.
Dated: m m ® Signature:
ASCAP, PO Box 331608 -7515, Nashville, TN 37203- 99981- 800 - 505.4052 615491 -7795 (FAX)
L Epayment Websites: httpJ1www.ascap.com1mylicense or http: /twww.ascap.com J