HomeMy WebLinkAbout99-0729 BMI Music Qq- o'4aq
OF F<C
Memorandum
; � %, fit; City of Elgin
Date: December 27, 2007
To: Jennifer Quinton, Deputy City Clerk
Butch Wilhelmi, Hemmens Cultural Center Supervisor
From: Michael R. Gehrman, Assistant Corporation Counsel
Subject: BMI Music License Agreement
Attached for your records please find a copy of the agreement between the city and BMI.
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Agreement Facilities Lf-98/03-39L
. -With less than 10,000 seals-
THIS AGREEMENT made and entered into on(Dare will be entered by BAH upon execution) JUL 2 9
between BROADCAST MUSIC,INC.,a corporation with principal offices at 320 West 57th Street,New York,N.Y. 10019,hereinafter referred to
• as BMI,and the entity described below and hereinafter referred to as LICENSEE:
I ENTER LEGAL NAME City of Elgin , Illinois, a municipal corporation
Name of corporunon.Pursnership or rndh dual Owner
ENTER TRADE NAME The He;nmens Cultural Center
(Doing business under the mine o/)
CHECK APPROPRIATE xn Corporation 0 Partnership (Enter names of partners) ❑ Individual Owner
BOX AND COMPLETE "`Illinois
(Stale of Incorporation)
BUSINESS ADDRESS -MAILING ADDRESS
150 Dexter Court 150 Dexter Court
Street Name Street Name
Elgin Illinois 60120 Elgin Illinois 60120
Cfry Stare Zip City Pate Zip
847-697-3616 Blythe Rainey-Cuyler 847-697-3616 Blythe Rainey-Cuyler
___.
Telephone No. Contact Name Telephone No. Concoct Name .
Cultural Center Manager Cultural Center Manager
Title Title
1. DEFINITIONS
(a) "Facility"shall include, but not be limited to.a concert hall, stadium,auditorium,civic center, coliseum,theatre,amphitheater,museum,
library, stage, restaurants/nightclubs or similar venues whether enclosed or not, where an attraction may be presented, located within the United
States of America,its territories and possessions.
(b) "Attractions"shall mean concerts, variety shows(excluding circuses), pageants and other similar spectator events (including events
sponsored by charitable organizations or for charitable purposes) that include music, whether or not music is the principal type of
0 entertainment.
(c) "Seating Capacity"shall mean the total number of seals permanently affixed in the facility where the attraction is presented plus any
temporary scats added within the facility for a particular attraction. If the total number of scats available for the attraction shall be less than that of
the permanent seating capacity of the facility,"seating capacity" shall mean the total number of seats available far the particular attraction. If a
facility does not have permanent seating,"seating capacity"shall mean the total number of persons attending a particular attraction. if a facility has
lawn seating, then "scaling capacity" shall mean the total number of seats permanently affixed in the facility, in addition io total lawn scaling
capacity as determined by the local Firc Marshall. .
(d) "Gross Ticket Revenues"shall mean the total monies received,directly or indirectly,by LICENSEE or their authorized representatives
from all ticket sales per attraction. The tens"gross ticket revenues"shall not include: I)federal,state and/or local taxes;2)building/facility charge .
per ticket sold;3)ticketing agent/service charge placed on each ticket sold;or 4)facility parking fees. Should the artist/performing act(s)choose to .
donate a portion of their fees from each ticket sale to a particular charity, then the appropriate deduction may be taken from the "gross ticket
revenues";provided however,that E3M(be given copies of said artist'perforrning act(s)agreement(s)stipulating such with the exact amount of the
l charitable donation per ticket sold.
(e) "Benefit Concert" shalt mean a public entertainment performance or social event held to raise funds for a specific person or cause in
which all proceeds less direct expenses arc donated to charity. .
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2. IIMI GRANT --
(a) BM1 hereby grants to LICENSEE, for the term of this Agreement, a non-exclusive license solely to perform, present or cause the
performance of,as part of attractions in facilities,including recorded music performed in conjunction with attractions before,after or during the
intermissions thereof,all the musical works as to which BMI shall have the right to grant public performance licenses during the tam hereof. Such
license shall be restricted to performance of music in the manner described herein,and is granted in consideration of payment of the Iiccnse fees as
set forth herein and is subject to all of the terms and conditions hereof.This license does not include: (i)dramatic rights, the right to perform
dramatico-musical works in whole or in substantial part,the right to present individual works in a dramatic setting or the right la use the music
licensed hereunder in any context which may constitute an exercise of the "grand rights"therein; or(ii) the right to simultaneously broadcast.
telecast,cabtecast,or otht vise transmit(including by the Internet or on-line service)the performances licensed hereunder to persons outside of the
facility in which they originate;(iii)per'ommnces of music by means of a coin-operated phonurecard player(jukebox).
(b) BMI reserves the right at its discretion to withdraw from the license granted hereunder any musical work as to which any legs!action has
been instituted ore claim made that BMI does not have the right to license the performing rights in such work or that such work infringes another
composition. •
3. TERM OF AGREEMENT
The initial teen of this Agreement shall begin on JAN l 3 1? and end on December 31,2000("Term")and shall continue thereafter
for additional periods of one(1)year each,unless canceled by either party at the end of the term or any subsequent one-year period,upon not less
than sixty(60)days advance written notice by regular U.S.mail to the other party.Each one(1)year period is a"contract year." BMI shall have the :
right to cancel this Agreement along with the simultaneous cancellation of the Ago^ements of all other licensees of the same class and category:s
LICENSEE,at the end of the Term or at the end of any month during any subsequent one-year period,upon sixty(60)days advance written notice.
4. FEES
(a) LICENSEE agrees to pay BMI a fee for each performance of an attraction that the LICENSEE promotes.except where another person,
entity or venue is responsible for paying the license fee for that performance,computed on the basis set forth in Schedule A(or in the case of a
benefit concert or no charge attraction,Schedule B)of this Agreement.
(b) The minimum annual fee billed and payable for 1998, 1999 and 2000 shall be SI50.00 per year.
(c) When an attraction is believed to be comprised entirely of musical compositions for which BMI shall not have the right to grant public
performance licenses, LICENSEE may, at its option, submit a schedule, including writer and publisher information, for all those musical
compositions performed at said attraction.Including opening acts and recorded music,[any,and in those instances in the opinion of BMi,where nil
of the musical compositions performed at said attraction are ones to which BM1 does not have the right to grant public performance licenses,no Are
shall be due and payable to BMI. In the event no schedule is submitted to BMI,LICENSEE must pay the applicable fee for said attraction pursuant
to Schedule A(or in the case of a benefit concert or no charge attraction,Schedule B)of this Agreement. •
5. REPORTING OF ATTRACTIONS/PAYMENT
(a) LICENSEE shall submit reports and payments quarterly.LICENSEE shall submit the reports setting forth the attractions which actually
were presented during each period.For all quarterly periods,reports and payments shall be due on the twentieth(20th) day of January,April,July
and October of each year of this Agreement for all attractions presented by LICENSEE during the prior calendar quarter. Should LICENSEE fail to
report and submit payments to BM1 within thirty(30)days after the specified date,then BM1 will apply estimated billings to the account based on
the prior quarters figures for such LICENSEE. Any differences between the estimated and the actual reported fee Shall be payable by LICENSEE when
the report is submitted.If BM1's estimated fee is greater than the actual reported fee,then LICENSEE's account shall be credited with the difference.
(b) As required in this paragraph, LICENSEE shall furnish to 13M1,when it makes payment of license fees pursuant to this Agreement, a
statement,on forms available from BMI,signed by an officer or auditor of LICENSEE,setting forth all performances of all attractions occurring
during the applicable calendar quarter reporting period in LICENSEE's facility. Such statement shall include the name of each attraction,the seating
capacity for each attraction,the dates of each attraction,the number of pen'ormances each day and the gross ticket revenues(as defiled in Paragraph
1(d))for a regularly scheduled performance of each attraction.LICENSEE's statement shall also include performances of attractions where another
person,entity or venue is responsible for paying the license fee. A state:nent shall be furnished to BMI by LICENSEE for each reporting period
during the tem of the Agreement,regardless of whether or not any performances occurred during that period.
(e) In the event that LICENSEE engages in the presentation of an attraction in conjunction with, or sells or otherwise transfers the
promotional responsibility of an attraction to,other persons or entities licensed separately by BMI under its Musical Attractions or Facility Music
Performance Agreements,LICENSEE shall indicate on the statement required by Sub-paragraph 5(b)hereof the names of all other persons, entities
or venues promoting or co-promoting,or otherwise responsible for,each attraction and who is responsible for payment of the BMI license fee for
such attraction. Transferring liability for promoted attractions to anyone but a licensed promoter or co-promoter of the musical attractions is not
permitted.If the responsible promoter, co-promoter or person, entity, or venue is not licensed by BMI under its Musical Attractions or Facility
Music Performance Agreements,LICENSEE shall be deemed liable for payment of the fees due for such attraction. In the event BMI receives a fee
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for an attraction from both LICENSEE and one or more of its co-promoters or other promoter,or person,entity or venue,the total of which exceeds
the amount due,BMI shall refund or credit the excess proportionally among all promoters,co-promoters,persons,entities,or venues who made payment.
(d) LICENSEE shall deliver to 13M1 for each calendar quarter,by the twentieth(20th)day following the end of the calendar quarter,copies of
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any programs or lists of the musical works presented by LICENSEE in its musics]attractions during such quarter. Programs prepared for audiences
or for the LICENSEE's own use arc to be included,and shall include the presentation of encores to the extent possible.Nothing contained herein
shalt be deemed to require LICENSEE to deliver material not otherwise prepared
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6. TERMINATIONS OF AGREEMENT BY LICENSEE
If LICENSEE permanently ceases to present attractions,this Agreement and 1.ICENSEiEE's obligation to Ball shall thereupon terminate,provided,
that LICENSEE shall,within ten(10)days thereafter,give written notice of such termination to BM],setting forth the effective date thereof,and that
LICENSEE shall submit all reports and pay to DMI all fees due hereunder until said effective date.
7. REVIEW OF STATEMENTS/ACCOUNTINGS
(a) BMl shall have the right to verify such data or information that is required to be furnished by LICENSEE pursuant to Paragraph 5(a)and
(b),by reference to a reliable,published,third-party industry source(such as Pollster)and by EDMI's authorized representatives,at any time during
customary business hours, and upon thirty (30)days advance written notice, examining those portions of LICEENSEEE's books and records of
account to such extent as may be necessary to verify any and all statements and/or accountings made hereunder. 1iM1 shall consider all data and
information coming to its attention as the result of any such examination of LICENSEEi's books and records confidential.
(b) In the event BM1 discovers an inaccuracy in any information reported by LICENSEE pursuant to Paragraph 5(h), either through to
examination of LICENSEE.or otherwise,and as a result it is revealed that LICENSEE underpaid license fees to BMI,and the correct license fee is
not paid to Ball within thiny(30)days of BMr's notice to LICENSEE of the inaccuracy or underpayment,then LICENSEE shall pay a late payment
charge on the additional license fees due as a result of the examination(s)of one & one-half percent (1 '/%) per month, or the maximum rate
permitted by law,whichever is less,from the date(s)the license fees should have been paid pursuant to this Agreement.
8. LATE PAYMENT CHARGE
BMI may impose a late payment charge of one and one-half percent(1 ''/%)per month from the date any payment is due hereunder
on any payment that is received by BMI more than one month after the due date.
9. INDEMNITY BY BMI
BNB agrees to indemnify,save harmless and defend LICENSEE, its officers and employees, from and against any and all claims.demands or suits
that may be made or brought against them or any of them with respect to the performance of any material licensed under this Agreement. This
indemnity shall be limited to works which are licensed by BMI nt the tune of LICENSEE's performances. BM( will, upon reasonable written
request,advise LICENSEE whether particular musical works arc availabf•for performance as part of BM]'s repertoire.LICENSEE shall provide the
title and the writer/composer of each musical composition requested to be identified. LICENSEE agrees to give BMI immediate notice of any such
claim,demand or suit, to deliver to I3M1 any papers pertaining thereto,and to cooperate with BMI with respect thereto, and BMI shall have full
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charge of the defense of any such claim,demand or suit.
10. OFFER OF COMPARABLE AGREEMENT
In the event that BMI,at any time during the terns hereof,shall,for the same class and category as that of LICENSEE, issue licenses grunting
rights similar to those in this Agreement on a more favorable basis, BM1 shall, for the balance of the term. offer LICENSEE a comparable
Agreement.
11. BREACH OR DEFAULT/WAIVE
Upon any breach or default of the terms and conditions of this Agreement, Wail has the right to cancel this Agreement. but any such cancellation
shall only become effective if such breach or default continues thirty(30) days after the date of I3MI's written notice to LICENSEE.The right to
cancel shall he in addition to any and all other remedies which BM1 may have. No waiver by BMI of full performance of this Agreement by
LICENSEE in any one or more instances will be a waiver of the right to require full and complete performance of this Agreement thereafter or of the
right to cancel this Agreement in accordance with the terms of this Paragraph.
12. ARBITRATION
All disputes of any kind, nature or description arising in connection with the terms and conditions of this Agreement, not subject to the jurisdiction
of the BNB Rate Court,shall be submitted to the American Arbitration Association in the City,County and State of New York.fur arbitration under
its then prevailing arbitration rules.The arbitrator(s)arc to he selected as follows: Each of the parties shall, by written notice to the other,have the
right to appoint one arbitrator.lf,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 tote arbitrator. If two arbitrators are so 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 need not he,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.
13. NOTICES
Any notice under this Agreement will be in writing and deemed given upon mailing. when sent by ordinary first-class U.S. marl to the parry
intended,at its mailing address above stated,or any other address which either party may designate. Any such notice sent to BMl shall be to the
attention of the Vice President.General Licensing Department at 10 Music Square East,Nashville, TN 37203. Any notice sent to LICENSEE
shall be to the attention of the person signing this Agreement on behalf of LICENSEE or such other person as LICENSEE may advise BM] in
writing.
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14. MISCELLANEOUS
(a) This Agreement shall not be prejudicial to any position taken by either of the parties as to what is a reasonable license fcc or as to the form
of license for any subsequent licensing period.
(b) This Agreement is the entire understanding between the parties,will not be binding until signed by both parties,and cannot be waived or
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added to or modified orally,and no waiver, addition or modification will be valid unless in writing and signed by th;parties. This Agreement is
executed by the duly authorized representative of BMI and LICENSEE. The rights of LICENSEE are not assignable_ This Agreement.its validity.
construction and effect,will be governed by the substantive laws of the:hate of New York The fact that any provisions arc found by a court of
competent jurisdiction to be void or unenforceable will not affect the validity or enforceability of any other provisions. All headings on this !
Agreement are for the purpose of convenience and shall not be considered'to be part of this Agreement_
SCHEDULE A. LICENSE FEE SCHEDULE
FEE BASIS PERCENTAGE •
APPLIED TO GROSS TICKET
SEATING CAPACITY REVENUES PER ATTRACTION
0-9,999 SEATS 0.30% •
SCHEDULE B. LICENSE FEE SCHEDULE
FEE PER BENEFIT CONCERT
• SEATING CAPACITY OR ATTRACTIONS WITH NO CHARGES
0 to 250 $15.00
251 to 750 — $18.00 •
751 to 1,500 $28.00
1,501 to 2,500 $45.00
2,501 to 5,000 $67.00
5,001 to 7,500 S90.00 .
7,501 to 10,000 Y $125.00
10,001 to 15,000 T S190.00
15,001 to 20,000 S260.04
20,001 to 25,000 S315.00 _
25,001 to 40,000 $345.00
40,001 to over S480.00
. (To be Completed by BMI) (To be Completed by LICENSEE) 1
BROADCAST MUSIC,INC.
City of Elgin, Illinois, a municipal
radon
Name of Corporation.Partnership or Individual i)wncr
(S e legal name of CEN as on page 1)
'�/ Sign here , rl _
/Alia.. • _ .( rCi,4gi (Signature)
THIS G iAS Joyce A. Parker
VICE PRES PN 'l QISING (Print Name of Signer)
City Manager ......---
(Title ofSigner) (Tile of Signer)
(a) If mrpontioa,state co powu cif re hctd;
(b) if a rattnership,wrtice`Pain':
(C) if ia5ridual ownv,write"tne.hidud Owner"
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