R-03-06-12-10A3 - 6/12/2003MEMORANDUM
TO: Christine R. Martinez
FROM: Veronica Rivera V'
SUBJECT: BMI License Agreement
DATE: June 19, 2003
Enclosed are two copies of the BMI License Agreement, with addendums, for execution
by the Mayor. Susan has reviewed and approved the form provided for in the agreement.
Please have the Mayor sign page 4 of the agreements and the attached addendums. The
signed agreements and addendums need to be mailed to BMI, at the address provided on
page 4 for their execution. Once you receive the executed agreement from BMI, please
provide our office with a copy for our records. Thanks.
@PFDesk top \::ODMA / W ORLDOX/O J W DOX/CORR/GNL /BM1/00052153. W PD/vr
Bear 111411 Customer,
MINCE GILL
As a songwriter who's been fortunate enough to make a
career of It, 1'd like to thank you for playing my songs. I'm also
proud and grateful that seueral of them such as, " 1 Still
Believe In You When I Call Your Name', and 'Look Rt Us'
have been played millions of times all ouer the world.
R successful career perhaps owes as much to chance as to
talent, but one decision that has been a "sure thing" for me is
my association with BMI. 1 joined BMI in 1988 and through
the years 1'ue consistently enjoged the benefits of their
representation, encouragement and resources as they work
on behalf of all songwriters and publishers. BMI is truly
committed to prouiding the best for music creators and music
users.
Again, my thanks for making my songs popular and to BMI for
supporting my songs and me.
Mayor
Nyle Maxwell
Mayor Pro -tem
Tom Nielson
Council Members
Alan McGraw
Carrie Pitt
Scot Knight
Isabel Gallahan
Gary Coe
City Manager
Jim Nose
City Attorney
Stephan L. Sheets
ROUND ROCK, TEXAS
PURPOSE. PASSION. PROSPERITY.
June 30, 2003
Broadcast Music, Inc.
License Division
10 Music Square East
Nashville, TN 37203
Dear Sir,
The Round Rock City Council approved Resolution No. R- 03- 06 -12-
10A3 at their regularly scheduled meeting on June 12, 2003. This
resolution approves a license agreement for public performances of
copyrighted music.
Enclosed is a copy of the resolution and two original agreements.
Please return one fully executed agreement to my attention. If you
have any questions, please do not hesitate to contact Sharon Prete at
218 -5540.
Christine R. Martinez
City Secretary
Enclosure
aki
CITY OF ROUND ROCK Administrative Dept., 221 East Main Street • Round Rock, Texas 78664
Phone: 512.z18.540o - Fax: 512.218.7097 • www.ci. round- rock.tx.us
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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 / 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 see addendum , 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 JUL 3 0 2003
AGREEMENT, made at New York, N.Y. on (Date will be entered by BM/ upon execution) 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.
PLEASE RETURN THIS ENTIRE SIGNED LICENSE AGREEMENT TO: BMI, 10 MUSIC SQUARE EAST, NASHVILLE, TN 37203
ENTER LEGAL NAME: LICENSED PREMISES
City of Round Rock, Texas multiple locations
(NameofCOrporwon, Partership. orindividual Owner) (SfreetaddreSs)
ENTER TRADE NAME:
City of Round Rock, Texas
(Doing business under the name or)
CHECK APPROPRIATE BOX AND COMPLETE
❑ Individual Ownership
❑ LLC ❑ Corporation
❑ LLP ❑ Partnership
fL7 other Municipal Corporation
Fed. Tax ID # 74- 6017485
(C)
(Telephone No.)
(Contact Name)
MAILING ADDRESS
(If different from Licensed Premises address)
221 East Main Street
(Street Address)
Round Rock TX 78664
(State of Incorporation, tl different from Licensed Fremont (Oay) (Stare) (zip)
(En ternanwaofparme rel
TO BE COMPLETED BY AN AUTHORIZED
REPRESENTATIVE OF LIC
Signature
Nyle Maxwell, Mayor
Print Name / Title
Page 4 of 4
(512)218 -5401
(Telephone NO.)
Nyle Maxwell
(Contact Name)
FOR ADMINISTRATIVE USE ONLY
TO BE COMPLETED BY BMI
BROADCAST MUSIC, INC.
THOMAS G. ANNASTAS
VICE PRESIDENT, GENERAL LICENSING
Account No.
( Stare)
FOR BMI USE ONLY
(Fax Number)
(512)218 -7097
(Fax Number)
Mayor
moo
tbao3i4
COID
® HMI and the Musicstand symbol are registered trademarks of Broadcast Music, Inc.
ADDENDUM TO BMI MUSIC PERFORMANCE AGREEMENT
This Addendum to BMI Music Performance Agreement ( "Addendum ") is entered into by and
between Broadcast Music, Inc., a New York corporation ( "BMI ") and the City of Round Rock, a
home -rule municipal corporation ( "City") and agree as follows:
Section 15 of the BMI Music Performance Agreement is deleted in its entirety and replaced
with the following Section 15:
15. Term of the Agreement
This Agreement shall be for an initial term of eighteen (18) months, commencing on
July 1, 2003, which shall be considered the effective date of this Agreement, and
expiring on December 31, 2004. This Agreement shall continue thereafter for
additional terms of one (1) year each, commencing on January 1, 2005. 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. The license fee for
the initial term shall be $765.00 and any applicable "Special Events License Fees."
The license fee for any renewal term shall be in accordance with the terms of this
Agreement.
This Addendum is incorporated into the BMI Music Performance Agreement for all intent
and purposes, as if fully set forth therein.
1 e- 03 -06 -is -1013
@PFDaMop\ :,ODMNwouAOXiO /WDowcoxwGNVBMI /aooso93OEWPD
CITY OF ROUNDROCK
ELL, Mayor
CHRISTINE R. MARTINEZ
City Secretary
BROADCAST MUSIC, INC., a New York
oratiovec
Name: THOMAS G. ANNASTAS
Title: VICE PRESIDENT, GENERAL LICENCING
By:
2003 RATE SCHEDULE FOR LOCAL GOVERNMENTS
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 attomeys shall be 8255.00. 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.
Page 3 of 4
SCHEDULE A
Check Population
Range (J)
LICENSEE's Population
Base License Fee
Enter Fee Based Upon
Population
[1
1 - 50,000
5255
10
50,001 - 75,000
$510
510
❑
75,001 - 100,000
$612
100,001 - 125,000
$816
125,001 - 150,000
$1,020
_
150,001 - 200,000
$1,326
•
200,001 - 250 000
$1,632
•
250 001 - 300,000
$1,939
❑
300,001 - 350,000
$2,245
350,001 - 400,000
$2,551
400,001 450,000
$2,857
$3,163
$3077 plus $500 for every 100,000
population Increment or porton thereof
above 500,000 up to a maximum
annual fee of $51,015
450,001 500,000
500,001 - plus
❑
If population
500,001 or more, enter P p
SCHEDULE A FEE
$ 510
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
BIN will provide a report
form to report your events•
2003 RATE SCHEDULE FOR LOCAL GOVERNMENTS
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 attomeys shall be 8255.00. 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.
Page 3 of 4
4. LATE PAYMENT AND SERVICE CHARGES
BMI may impose a late payment charge of one and one -half
percent (11/4%) 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 BMI.
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
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 / WAIVER
Upon any breach or default of the terms and conditions
contained herein, EMI 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 any one or
more instances shall be deemed a 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.
8. ARBITRATION
All disputes of any kind, nature, or description arising 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
Page 2 of 4
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 court 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 govemment entities.
IlI Music
Performance LOCAL GOVERNMENTAL
Agreement ENTITIES
(l
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.
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 EMI 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. EMI 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
)1 i 2-
LGE
LI- 03102 -LGE
BMI
Dear BMI Customer,
The enclosed letter from BMI songwriter Vince Gill expresses the gratitude that all of us feel here at
BMI. Our staff is very proud of the small contribution we make toward the continued growth of
American Music. But our work and the work of our more than 300,000 affiliated songwriters,
composers, and publishers would not be possible without your support.
I am pleased to enclose you an executed copy of your BMI Music Performance Agreement — your
official verification that your business can enjoy any of BMI's 4.5 million musical works. Our vast
repertoire includes popular music, rock, jazz, concert music, country, gospel, Broadway show tunes,
movie, and TV themes — whatever kind of music you need to create the right mood for your business.
I've also enclosed a BMI decal to display in your establishment, letting your employees and customers
know that you support the writers of the music they enjoy.
Again, on behalf of the entire family of BMI songwriters, composers, and publishers, thank you for
your cooperation and contribution.
TA: ss
Enclosures
71 10 Music Square East, Nashville, Tennessee 37203.4399
BMI and the Musiostand symbol are registered trademarks 01 Broadcast Music, Inc.
Sincerely,
Thomas G Annastas
Vice President
General Licensing
1 (800) 9258451 Fax: (615) 401 -2812
RESOLUTION NO. R- 03- 06- 12 -10A3
WHEREAS, pursuant to United States Copyright Law, creators and
owners of copyrighted musical works have the exclusive right to perform
or authorize the performance of their works publicly; and
WHEREAS, pursuant to United States Copyright Law, persons or
entities cannot publicly perform copyrighted works without the
permission of the copyright owner; and
WHEREAS, in a municipality such as the City of Round Rock,
copyrighted music may be performed in a multiple variety of contexts;
and
WHEREAS, the City of Round Rock wishes to act within the bounds
of federal copyright law and avoid any liability from violating of such
law; and
WHEREAS, Broadcast Music, Inc. (BMI) has presented the City of
Round Rock with a licensing agreement that would cover the majority of
public performances of copyrighted music for a fee of $765.00, Now
Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized to execute the license
agreement proposed by BMI, attached hereto as Exhibit "A" and
incorporated herein, and to pay the $765.00 fee to BMI for such
license.
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
.FOesktop \::0
/WORL000 /O: /0000 /RESOLtJTI /R30612A3, 1400 /00
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 12th day of June, 2003.
CHRISTINE R. MARTINEZ, City Secr
NY 1 , Mayor
City of Round Rock, Texas
2
B�II®
Performance
Agreement
EXHIBIT
I "An
LOCAL GOVERNMENTAL
ENTITIES
Page 1 of 4
LGE
LI -03/02 -LGE 1
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 10 (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 ausp 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
musk -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 corning 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.
4. LATE PAYMENT AND SERVICE CHARGES
BMI may impose a late payment charge of one and one -half
percent (114 %) 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 BMI.
5. BM! COMMITMENT TO CUSTOMER / 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 / WAIVER
Upon any breach or default of the terms and conditions
contained herein, BAN 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 EMI of full
performance of this Agreement by LICENSEE in any one or
more instances shall be deemed a 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 arising 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
Page 2 of 4
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 court 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.
(ill) LICENSEES who are legally organized as state
municipal and /or county leagues or state associations
of municipal and /or county attomeys 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 govemment entity
represented by the league or association. Schedule
C fees are not applicable to municipal, county or
other government entities.
SCHEDULE A
Check Population
Range (J)
LICENSEE's Population
Base License Fee
Enter Fee Based Upon
Population
"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.
•
1 - 50 000
$255
SCHEDULE B FEE BMl will provide a report
form to report your events'
■
50,001 - 75 000
$510
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 attomeys shall be 8255.00. No Special Events fee applies to LICENSEES qualifying under this schedule.
SCHEDULE C FEE $
75,001 - 100 000
$612
100,001 - 125,000
$816
125 001 - 150 000
$1 020
•
150,001 - 200,000
$1,326
•
200,001 - 250 000
$1,632
250,001 - 300,000
$1,939
300,001 - 350 000
$2,245
350,001 - 400,000
$2,551
400,001 - 450,000
$2,857
450,001 - 500,000
$3,163
❑
500,001 - plus
13.877 plus $500 for every 100.000
population increment or portion thereof
above 500,000 up to a maximum
annual fee of 551,015
If 500,001 or more. enter population
SCHEDULE A FEE
$
2003 RATE SCHEDULE FOR LOCAL GOVERNMENTS
Page 3 of 4
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 10 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.
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 BMl 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 attomeys shall be 8255.00. No Special Events fee applies to LICENSEES qualifying under this schedule.
SCHEDULE C FEE $
2003 RATE SCHEDULE FOR LOCAL GOVERNMENTS
Page 3 of 4
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 10 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
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 EMI, 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 - 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 , 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 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.
PLEASE RETURN THIS ENTIRE SIGNED LICENSE AGREEMENT TO: BMI, 10 MUSIC SQUARE EAST, NASHVILLE, TN 37203
ENTER LEGAL NAME: LICENSED PREMISES
ENTER TRADE NAME:
(Name of Caryorauon. Partnership, or Individual Ovine()
(Doing business under Me name of)
CHECK APPROPRIATE BOX AND COMPLETE
❑ Individual Ownership
❑ LLC ❑ Corporation
(stele of (ncoreorabon, If different fom Licensed Parses)
❑ LLP ❑ Partnership
❑ Other
Fed. Tax ID #
(Enter names of parMem)
TO BE COMPLETED BY AN AUTHORIZED
REPRESENTATIVE OF LICENSEE
Signature
Print Name / Title
(SMrel Addrea)
(ctrl
(telephone No.)
(Contact Name)
(Shae.Address)
(Cty)
(Telephone No.)
(Cordacl Name)
(Stare)
(Fax Number)
MAILING ADDRESS
(If different from Licensed Premises address)
FOR BMI USE ONLY
(Stare) (De)
(Fax Number)
(Title)
FOR ADMINISTRATIVE USE ONLY
TO BE COMPLETED BY BMI
BROADCAST MUSIC, INC.
241
Account No. COID
e BMI and the Musicstand symbol are registered trademarks of Broadcast Music, Inc.
Page 4 of 4
ADDENDUM TO BMI MUSIC PERFORMANCE AGREEMENT
This Addendum to BMI Music Performance Agreement ( "Addendum ") is entered into by and
between Broadcast Music, Inc., a New York corporation (`BMI ") and the City of Round Rock, a
home -rule municipal corporation ( "City") and agree as follows:
Section 15 of the BMI Music Performance Agreement is deleted in its entirety and replaced
with the following Section 15:
15. Term of the Agreement
This Agreement shall be for an initial term of eighteen (18) months, commencing on
July 1, 2003, which shall be considered the effective date of this Agreement, and
expiring on December 31, 2004. This Agreement shall continue thereafter for
additional terms of one (1) year each, commencing on January 1, 2005. Either party
may give notice of tennination 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. The license fee for
the initial term shall be $765.00 and any applicable "Special Events License Fees."
The license fee for any renewal term shall be in accordance with the terms of this
Agreement.
This Addendum is incorporated into the BMI Music Performance Agreement for all intent
and purposes, as if fully set forth therein.
®rFnsloop ,ODI wwortLoox /o1woowODRRCNvana /aoososao.weo
CITY OF ROUNDROCK
NYLE MAXWELL, Mayor
ATTEST:
CHRISTINE R. MARTINEZ
City Secretary
BROADCAST MUSIC, INC., a New York
corporation
By:
Name:
Title:
Event Name
(MMIDDIYY)
If more than 1 Event
per Day, Please
Report as Separate
Entries.
Performer(s) or
Group(s) Appearing
Gross Revenue"
Of Event
(Must exceed
ye
APPLIED
Event
Fee
IS A
PROGRAM
OF MUSICAL
WORKS
ATTACHED
YES
YES OR NO
IF THE EVENT IS CO-SPONSORED
Please Identify the Cosponsor name,
Address, phone number and
BMI account number
TO GROSS
REVENUE
X .01
Name:
N tiDDh
Address:
...ma mme
Phone No.:
Account No:
X .01
Name:
Nw oow
Address:
E
Phone No •
Account NO•
X .01
Name:
MEOW
Address:
•era 16ni
Phone No.:
Account Ne:
X .01
Name:
Address:
E no
Phon. N..:
Account No:
X .01
Neme:
Address:
Event u°"
Phone Ne.:
Aceoum No:
TOTAL Schedule B Fee for all Events 1 $ 0.00
¢�n
BROADCAST MUSIC, NC
1O1tillr<icSgtaeEatt
Na,Imie,TN 372034305
1477- 264 -2137
FAX(615)401 -2995
Schedule A - Base License Fee 1
Report Year:
Schedule B - Special events° 1
LOCAL GOVERNMENTS
Report Form for
2003
Licensee: Report Completed By:
Title: Date Completed: E -Mail Address:
Telephone No: Fax No: Web Site Address:
CERTIFICATE: I hereby certify that the data reported below is true and correct as of this
POPULATION:
(Report and payment due 90 days after the conclusion of each special event.)
(for each event with revenue exceeding 525,000)
I Schedule C - State Municipal and/or County Leagues or State Associations of Attomeys I
BMI and the Music Stand symbol are regislered trademarks of Broadcast Music, Inc,
(Per current U.S. Census Data)
BMI AccounI Number
day of 2
(Due upon execution of Agreement and within 30 days of the Agreement's renewal date.)
BASE LICENSE FEE: $
LGE
LI 03/01-LGE
(Please refer to Rate Schedule
'' Events means musical events, concerts, shows, pagents. sporting events, festivals, competitions. and other events of limited duration presented by LICENSEE for which the 'Gross
Revenue' of such Special Events exceed 525,000.
— Gross Revenue means all monies received by LICENSEE or on LICENSEE's behalf from the sale of tickets br each Special Event. If there are no monies from the sale of tickets, 'Gross
Revenue' shall mean cdnbibutions from the sponsors or other payments received by LICENSEE for each Special Event.
REPORT YEAR:
TOTAL Schedule C Annual LICENSE FEE:
$
(0255.00 (Due within 30 days of renewal date)
(No "Special Events" fee(s) (Schedule 8 above) applies to LICENSEES qualifying under Schedule C)
I Total Fees Reported From Any Schedules A,B or C: 1 $
0.001
DATE: June 6, 2003
SUBJECT: City Council Meeting — June 12, 2003
ITEM: *10.A.3. Consider a resolution authorizing the Mayor to execute a license
agreement with Broadcast Music, Inc. for the use of copyrighted
music for public performances.
Resource: Steve Sheets, City Attorney
History: Pursuant to the Copyright Law of the United States, creators and owners of
copyrighted musical works have the exclusive right to perform or authorize the
performance of their works publicly. Therefore, other parties like municipalities
cannot publicly perform copyrighted works without the permission of the copyright
owner. This means that in order to play or perform music in public, including music
performed or played at festivals, concerts, sporting events, community centers,
swimming pools, dances, aerobics classes, etc., a municipality must have a license
or is in violation of federal copyright law.
Funding:
Cost: $765.00
Source of funds: N/A
Outside Resources: Sheets & Crossfield, P.C.
Impact: The City will not be subject to damages for violating copyright law.
Benefit: The City will be operating pursuant to the law.
Public Comment: N/A
Sponsor: N/A