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Home My WebLink About5.753 Original Contract LEGAL DEP ARTMENT WIlham E. Bloor City Attorney [4531] Dennis Dickson Sr. Assistant City Attorney [4532] Candace Kathol Legal Assistant [4536] Diana Lusby Legal Admimstrative Assistant [4530] Jeanie DeFrang Legal Administrative Assistant [4530] RandiFelton Legal Records Specialist [4576] 5, 7 5.3 F; OR'~T':Al.N'G'Eil, E,ISI I I I , I II . [ J '~ .J {, r WAS H I N G TON, U. S. A. TO: Becky Upton, City Clerk FROM: William E. Bloor, City Attorney DATE: November 22,2005 RE: ASCAP License Agreement Attached for your records please find the original, signed ASCAP License Agreement. If you have any questions or comments, please feel free to contact me. 6# William E. Bloor City Attorney Attachment WEB:dl G'\LEGALIMEMOS 20051Upton Xnut ASCAP Contract 112205 wpd . 5.753 ..500SgD~2- LICENSE' AGREEMENT - LOCAL GOVERNMENTAL ENTITIES " NOV 04 2005 o2l9t'eemeDt between the American SocIety of Composers, Authors and Publishers ("ASCAP") located at 2690 Cumberland Parkway, Suite 490 Atlanta, GA 30339-3913 by City of Port Angeles, W A ("LICENSEE"), located at PO Box 1150 Port Angeles, W A 98362 as follows: 1. 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 "AS CAP repertory." The performances licensed under this Agreement may be by means of "Live Entertamment" 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 perfonning at the Premises, including, but not limited to (A) compact disc, audio record or audio tape players (but not induding "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 perfonners. (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 wntten or published by ASCAP members or members of affiliated foreign performing nghts SOCIetIes, including compositions written or published during the tenn of thIs Agreement and of which ASCAP has the right to license non-dramatic public perfonnances. (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 III paragraph 4 (d) below). (b) This Agreement shall be for an initial term of one year, commencing 08/15/2005, 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 authonze LICENSEE to grant to others any right to perfonn publicly in any manner any of the musical compositions licensed under this agreement, nor does it authonze any public perfonnances at any of the Premises ill 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, ofrenditions 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) perfonnances by means of background music (such as Muzak) or other services delivered to the Premises. Nothing in this paragraph shall be deemed to lunit 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 perfonnances, and does not authorize any dramatic performances. For purposes of this agreement, a dramatic perfonnance shall include, but not be limited to, the following: (i) perfonnance of a "dramatico-musical work" (as hereinafter defined) 111 its entirety; (ii) perfonnance of one or more musical compositions from a "dramatico-musical work (as heremafter defined) accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken; (iil) perfonnance 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) perfonnance of a concert version of a "dramatlco-musical work" (as heremafter defined). The tenn "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 pennanently 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 Uukebox) 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 ofthe Rate Schedule and based on LICENSEE's population as established in the most recent published U.S. Census data It does not mclude any fees due for Special Events (il) "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 mU11lclpal 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 perfonnances of the mU11lcipality, county or other local government entity represented by the league or associatIOn. Schedule C fees are not applicable to mUl1lclpal, county or other local government entities. (b) 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 withm thirty days of ItS due date. ." 4. Reports a'nd Payments (a) Upon the execution of this Agreement, LlCENSEE 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 ofthis 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 ofthe 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, LlCENSEE shall submit to ASCAP payment for such Special Event and a report in prmted 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 LlCENSEE or on LlCENSEE'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 LlCENSEE for each Special Event; (iv) the license fee due for each Special Event. (e) If LlCENSEE presents, sponsors or promotes a Special Event that is reportable under Rate Schedl1Je B with another person or entity licensed under an ASCAP License Agreement, LlCENSEE 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 AS CAP, LlCENSEE 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 LlCENSEE 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 LlCENSEE'S books and records at LICENSEE's place of bus mess during normal busmess 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 LlCENSEE'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 tenn 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, tJllS license shall tenninate 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 III 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 substantialmcrease in the cost of, ASCAP's operations as the result of any law m the state, terntory, dependency, possession or political subdivision in whIch LlCENSEE is located which is applicable to the licensing of performing rights. In the event of such terminatIon, ASCAP shall refund to LlCENSEE 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 discrimmation 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 recogmzed 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. IN WITNESS WHEREOF, this Agreement hi,s been duly executed by ASCAP and LICENSEE, this day of .IJIt'p:.' 20 . 'fl' ~ AMERICAN SOCIETY OF COMPOSERS, CITY OF PORT ANGELES, WA AUTHORS AND PUBLISHERS LICENSEE --, .J bY~ f, 7f!0-..4,.., t!.-t 7 ~~~ TlfLE (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) bY5dt; ~ ASCAP 2005 RATE SCHEDULE FOR LOCAL GOVERNMENTS SCHEDULE A Base License Fee POPULATION 1 50,001 75,001 100,001 125,001 150,001 200,001 250,001 300,001 350,001 400,001 450,001 500,001 50,000 75,000 100,000 125,000 150,000 200,000 250,000 300,000 350,000 400,000 450,000 500,000 plus BASE LICENSE FEE $ 268 537 644 860 1,074 1,396 1,718 2,041 2,364 2,686 3,008 3,331 4,082 plus $500 for each 100,000 of population above 500,000 to a maximum fee of$53,714. SCHEDULE B Special Events 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 oflimited duration presented by LICENSEE for wmch the "Gross Revenue" of such Special Event exceeds $25,000. "Gross Revenue" means all morues 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 Lea2'ues or State Associations of Attornevs The annual hcense fee for LICENSEES who are legally organized as state murucipal and/or county leagues or state assoclatlOns of mumcIpal and/or county attorneys shall be $268. License Fee for Year 2006 and Thereafter For each calendar year commencmg 2006, all dollar figures set forth m Schedules A. Band C above (except for $500 add-on for populatlOns of500.001 or more) shall be the lIcense fee for the precedmg calendar year, adjusted m accordance With the mcrease m the Consumer Pnce Index - All Urban Consumers (CPI-U) between the precedmg October and the next precedmg October. Any addItional lIcense fees due resultmg from the CPI adjustment shall be payable upon billmg by AS CAP . AS CAP, 2690 Cumberland Parkway, Suite 490, Atlanta, GA 30339-3912 1-800-505-4052 770-805-3475 (Fax) LEGAL DEP ARTMENT William E. Bloor City Attorney [4531] Dennis Dickson Sr. Assistant City Attorney [4532] Candace Kathol Legal Assistant [4536] DIana Lusby Legal Administrative Assistant [4530] Jeanie DeFrang Legal Administrative Assistant [4530] RandiFelton Legal Records Specialist [4576] FORTANGELES 5.753 -:< tDQ'\ /' WAS H I N G TON, U. S. A. DATE: October 18, 2005 To: Mark E. Madsen, City Manager FROM: William E. Bloor, City Attorney RE: Music Copyright Summary: The City is sometimes a sponsor or co-sponsor of events throughout the year at which music is played or performed. Much of that music is subject to copyright. I recommend that the City enter into the music licensing agreement offered by ASCAP. Discussion: The City received an offer of a copyright agreement from the American Society of Composers, Authors and Publishers (AS CAP). This license agreement was negotiated specifically for cities by the International Municipal Lawyers Association (IMLA). It is being offered to all cities. The annual fee is $268, which is relatively inexpensive. The license covers music performances at all venues of the City for the entire year. At first I was not convinced that Port Angeles needs this license. However, after doing some investigation in the Parks Department, I found that we do offer public performances of music at different City venues frequently throughout the year. Additionally, I did legal research to determine whether the City has an obligation in these circumstances. My conclusion is that it does. Unlike other types of copyrighted material, there is no "fair use" or "non commercial" exemptions for playing or performing copyrighted music. Russ Veenema has some familiarity with ASCAP through prior dealings in the restaurant business. He agrees that the $268 is an inexpensive fee for providing annual copyright license. To: Mark E. Madsen, CIty Manager Re: Music Copyright Date: October 18,2005 Page 2 The City has gone for a number of years without any question being raised about music copyright. The City might go on for a number of years in the future without a question being raised. However, the probability that we might not get caught does not make it right. Also, the expense the City would incur in responding to just one such claim would cover our annual license fees for many, many years into the future. One drawback ofthe agreement IS that ASCAP does not represent all music copyright holders. Thus, this is not a complete guarantee against some future claim. Even so, it substantially reduces the risk. Based on all of these facts I do recommend that we enter into the agreement. Since the agreement is well within the City Manager's discretion, I suggest that you sign it and simply report it to the City Council's part of the Consent Agenda. However, if you would like to discuss this or have questions before proceeding please do let me know. Very truly yours, w@ilor Attachment cc: Glenn Cutler, Director of Public Works & Utilities Yvonne Ziomkowski, Finance Director Bill Sterling, Parks Department WEB:dl G ILEGALIMEMOS 2005IMadsen MUSlcCopynghllOl105 wpd