HomeMy WebLinkAboutRes 05-01 Authorizing an Agreement with the American Society of Composers, Authors, and PublishersTOWN OF WESTLAKE
RESOLUTION NO. 05-01
A RESOLUTION OF THE BOARD OF ALDERMEN OF THE TOWN OF
WESTLAKE, AUTHORIZING THE TOWN MANAGER TO SIGN AND ADOPT
THE LICENSE AGREEMENT WITH THE AMERICAN SOCIETY OF
COMPOSERS, AUTHORS, AND PUBLISHERS (ASCAP).
WHEREAS, the Town of Westlake desires to use music that may be copyrighted
during events, productions, or sporting events; and
WHEREAS, the Town of Westlake desires to comply with all federal, state, and
local laws regarding the public use of copyrighted music; and
WHEREAS, the Town of Westlake recognizes that the appropriate license can be
obtained from ASCAP via license agreement, to be renewed annually;
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
ALDERMEN OF THE TOWN OF WESTLAKE:
SECTION 1: That the Town of Westlake Board of Aldermen does hereby
approve the license agreement with ASCAP for the public use of copyrighted music.
SECTION 2: That the Town of Westlake Board of Aldermen does hereby
authorize the Town Manager to sign and adopt the license agreement with ASCAP for the
public use of the copyrighted music.
SECTION 3: That this Resolution shall become effective upon the date of its
passage.
PASSED AND APPROVED ON THIS IOT' DAY OF JANUARY 2005.
ATTEST:
)
ing rosswy, Town cretary
APPROVED A TO F
L. Stantont} , Awri,,A6torney
Scott Bradley, Mayor
Trent O. Petty, To ager
DISCLOSURE STATEMENT
This is notice that, in compliance with Set. 3 of the 1995 Texas Copyright Royalty Collection
]Practices Act (V. Tex. C. A., Occupations Cade §§2102.001, et seq.):
(1) The performing rights license agreement you have been offered by the American Society of
Composers, Authors and Publishers (ASCAP) contains a schedule of the rates and terms of royalties
under that contract;
(2) At your request, you have the opportunity to review the most current available list of the
members of ASCAP; and
(3) ASCAP will make available, on your written request, and at your sole expense, the most
current availalilelisting of the copyrighted musical works in the ASCAP repertory.
-You may obtain gratis the most current available list of ASCAP's members by written request to
ASCAP; 2690 Cumberland Parkway, Suite 490, Atlanta, GA 30339, Attention: Phil Skinner.
Information about ASCAP's members and the musical works in the ASCAP repertory can be
obtained in -a variety of ways. Separate databases of works that have been registered with ASCAP since
January_ 1, 1991, or identified in ASCAP's surveys of performed works since January 1, 1978, are
available online at the ASCAP Web Site, www.ascap.com (access the "ACE Database of Musical Titles"
to determine whether particular songwriters or specific songs are in the ASCAP repertory). Data similar
to that contained in the ACE Database is also available on CD-ROM and is available free of charge by
written request to ASCAP, One Lincoln Plaza, New York, NY 10023, attn: Director of Repertory. More
comprehensive records of the titles, dates of U.S. Copyright registration (if any), writers and current
publishers or other copyright owners of all known works .in the ASCAP repertory are available for public
inspection at ASCAP's New York office during regular business hours. A printed current list of ASCAP
members can be obtained gratis by written request to ASCAP, 2690 Cumberland Parkway, Suite 490,
Atlanta, GA 30339, attn: Phil "Skinner. A computer-generated listing of copyrighted musical works in the
ASCAP repertory may also be obtained by written request addressed to Mr. Skinner at a cost of $2200.00
plus shipping and handling (the listing is over 10,000 pages in length). You can also call or write to us
for information as to specific works: (800) 95-ASCAP; or, at our New 'York address, attn: Repertory
Dept. -- Clearance Section.
ASCAP, 2693 Cumberland Parkway, Suite 4901, Atlanta, GA 30339-3913
1,800.505.4052 (Phone) 1.770.805.3475 (Fax)
LICENSE AGREEMENT - LOCAL GOVERNMENTAL ENTITIES
41- 5 -
, gYeementbetween the American Society of Composers, Authors and Publishers ("ASCAP")
located at
2690 Cumberland Parkway, Suite 490
Atlanta, GA 30339-3913
by City of Westlake
("LICENSEE"), located at
4201 Wingren Ste. 108
Irving, TX 75062
as follows:
1. Grant and Term of License
(a) ASCAP grants and LICENSEE accepts a license to perforin publicly on the "Premises" and at "Events" and
"Functions," and not elsewhere or otherwise, non -dramatic renditions of the separate musical compositions in the
"ASCAP repertory.." The performances licensed under this Agreement may be by means of "Live Entertainment" or
"Mechanical Music". For purposes of this Agreement,
(i): LICENSEE":shall include the named entity and any of its constituent bodies, departments,
agencies or leagues.
(ii) "Mechanical Music'.' means music which is performed at the Premises by means other than by live
musicians who are performing at the Premises, including, but not limited to (A) compact disc, audio record
or audiotape players :(butmot incliiding "jukeboxes"), (B) videotape, videodisc or DVD players; (C) the
reception and communication at the premises of radio or television transmissions which originate outside
the Premises; and which are not exempt under the Copyright Law; or (D) a music -on -hold telephone system
operated by LICENSEE at the Premises.
..(iii) "Live Entertainment "means music that is performed at the Premises by musicians, singers or
other performers.
(iv) . "Premises" means buildings, hospitals, airports, zoos, museums, athletic facilities, and recreational
facilities, including, but not limited to, community centers, parks, swimming pools, and skating rinks owned
or operated by LICENSEE and any site which has been engaged by LICENSEE for use by LICENSEE.
(v) "ASCAP repertory" means all copyrighted musical compositions written or published by ASCAP
members or members of affiliated foreign performing rights societies, including compositions written or-
published
rpublished during the term of this Agreement and of which ASCAP has the right to license non -dramatic
public performances.
(vi) "Events" and "Functions" means any activity conducted, sponsored, or presented by or under the
auspices of LICENSEE. Except as set forth in paragraph 2.(d) below, "Events" and "Functions" shall
include, but are not limited to, aerobics and exercise classes, athletic events, dances and other social events,
concerts, festivals, arts and crafts fairs, and parades held under the auspices of or sponsored or promoted by
LICENSEE on the Premises.
(vii) "Special Events" means musical events, concerts, shows, pageants, sporting events, festivals,
competitions, and other events of limited duration presented by LICENSEE for which the "Gross Revenue"
of such Special Event exceeds $2.5,000 (as defined in paragraph 4.(d) below).
(b) This Agreement shall be for an initial term of one year, commencing 1110112004, which shall be considered
the effective date of this Agreement, and continuing thereafter for additional terms of one year each. Either party
may give notice of termination to the other no later than thirty (30) days prior to the end of the initial or any renewal
term. If such notice is given, the agreement shall terminate on the last day of the term in which notice is given.
2. Limitations On License
(a) This license is not assignable or transferable by operation of law or otherwise. This license does not
authorize LICENSEE to grant to others any right to perform publicly in any manner any of the musical compositions
licensed under this agreement, nor does it authorize any public performances at any of the Premises in any manner
except as expressly herein provided.
(b) This license does not authorize (i) the broadcasting, telecasting or transmission or retransmission by wire,
Internet, website or otherwise, of renditions of musical compositions in ASCAP's repertory to persons outside of the
Premises, other than by means of a music -on -hold telephone system operated by LICENSEE at the Premises; and (ii)
performances by means of background music (such as Muzak) or other services delivered to the Premises. Nothing
in this paragraph shall be deemed to limit LICENSEE's right to transmit renditions of musical compositions in the
ASCAP repertory to those who attend Events or Functions on the Premises by means of teleconferencing,
videoconferencing or similar technology.
(c) This license is limited to non -dramatic performances, and does not authorize any dramatic performances.
For purposes of this agreement, a dramatic performance shall include, but not be limited to, the following:
(i) performance of a "dramatico-musical work" (as hereinafter defined) in its entirety;
(ii) performance of one or more musical compositions from a "dramatico-musical work (as hereinafter
defined) accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work
from which the music is taken;
(iii) performance of one or more musical compositions as part of a story or plot, whether accompanied
or unaccompanied by dialogue, pantomime, dance, stage action, or visual representation;
(iv) performance of a concert version of a "dramatico-musical work" (as hereinafter defined).
The term "dramatico-musical work" as used in this Agreement, shall include, but not be limited to, a musical
comedy, opera, play with music, revue, or ballet.
(d) This license does not authorize performances:
(i) at any convention, exposition, trade show, conference, congress, industrial show or similar activity
presented by LICENSEE or on the Premises unless it is presented or sponsored solely by and under the
auspices of LICENSEE, .is.,presented entirely on LICENSEE'S Premises, and is not open to the general
public;
(ii) by or at colleges and universities;
(iii) at any professional sports event or game played on the Premises;
;,(iv) . , at .any permanently. situated theme or amusement park owned or operated by LICENSEE;
(v) by any symphony or community orchestra;
(vi) by means of a coin operated phonorecord player (jukebox) for which a license is otherwise
available from the Jukebox License Office.
3. License Fee
{a) In consideration of the license granted herein, LICENSEE agrees to pay ASCAP a license fee which
includes the total of the `Base License Fee" and any applicable "Special Events License Fees", all of which shall be
calculated in accordance with the Rate Schedule attached to and made part of this Agreement. For purposes of this
Agreement,
(i) "Base License Fee" means the annual fee due in accordance with Schedule A of the Rate Schedule
and based on LICENSEE's population as established in the most recent published U.S. Census data. It
does not include any fees due for Special Events.
(ii) "Special Events License Fees" mean the amount due in accordance with Schedule B of the Rate
Schedule when Special Events are presented by or on behalf of LICENSEE. It does not include any Base
License Fees due.
(iii) LICENSEES who are legally organized as state municipal and/or county leagues or state
associations of municipal and/or county attorneys shall be required to pay only the fee under Schedule C
of the Rate Schedule. Such leagues or associations are not subject to Schedule A or Schedule B of the
Rate Schedule. Fees paid by such leagues or associations do not cover performances of the municipality,
county or other local government entity represented by the league or association. Schedule C fees are not
applicable to municipal, county or other local government entities.
(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 within
thirty days of its due date.
4. Reports and Payments
(a) Upon the execution of this Agreement, LICENSEE shall submit:
(i) a report stating LICENSEE's population based on the most recent published U.S. Census data.
The population set forth in the report shall be used to calculate the Base License Fee under this
Agreement; and (ii) a report containing the information set forth in paragraph 4.(d) below for all Special
Events that were presented between the effective date of this Agreement and the execution of this
Agreement.
(b) The Base License Fee for the first year of this Agreement and any license fees due for Special Events that
were presented between the effective date of this Agreement and the execution of this Agreement shall be payable
upon the execution of this Agreement.
(c) Base License Fees for subsequent years shall be due and payable within 30 days of the renewal date of
this Agreement and shall be accompanied by a statement confirming whether any Special Events were presented
during the previous calendar year.
(d) Ninety days after the conclusion of each Special Event, LICENSEE shall submit to ASCAP payment for
such Special Event and a report in printed or computer readable form stating:
(i) the date presented;
(ii) the name of the attraction(s) appearing;
(iii) the "Gross Revenue" of the event. "Gross Revenue" means all monies received by LICENSEE or
on LICENSEE'S behalf from the sale of tickets for each Special Event. If there are no monies from the
sale of tickets, "Gross Revenue shall mean contributions from sponsors or other payments received by
LICENSEE for each Special Event;
(iv) the license fee due for each Special Event.
(e) If LICENSEE presents, sponsors or promotes a Special Event that is reportable under Rate Schedule B with
another person or entity licensed under an ASCAP License Agreement, LICENSEE shall indicate the naive, address,
phone number and ASCAP account number of the other person(s) or entity(ies) and the party responsible for
paymentfor such Special Event. If the other,party is not licensed by ASCAP, LICENSEE shall pay the license fee
due hereunder, notwithstanding any agreement to the contrary between LICENSEE and the other party.
(f)_ .. LICENSEE agrees to.furnish to ASCAP, where available, copies of all programs of musical works
performed, -which are prepared for distribution to the audience or for the use or information of LICENSEE or any
department thereof. 'The `programs shall include all encores to the extent possible. LICENSEE shall be under no
obligation to furnish programs when they have not been otherwise prepared.
(g) ASCAP shall have the right to examine LICENSEE'S books and records at LICENSEE's place of business
during normal business hours to .such extent as may be necessary to verify the reports required by paragraph 4.(d)
above. - ASCAP shall have the right to adjust LICENSEE's Base License Fee based upon the most recently available
.revised population figures and Population Estimates Program provided by the U.S. Census Department.
S. Breach or Default
Upon any breach or default by LICENSEE of any term or condition herein contained, ASCAP may terminate this
license by giving LICENSEE thirty days notice to cure such breach or default, and in the event that such breach or
default has not been cured within said thirty days, this license shall terminate on the expiration of such thirty -day
period without further notice from ASCAP. In the event of such termination, ASCAP shall refund on a pro -rata basis
to LICENSEE any unearned license fees paid in advance.
6. Interference in Operations
ASCAP shall have the right to terminate this license upon thirty days written notice if there is any major interference
with, or substantial increase in the cost of, ASCAP's operations as the result of any law in the state, territory,
dependency, possession or political subdivision in which LICENSEE is located which is applicable to the licensing
of performing rights. In the event of such termination, ASCAP shall refund to LICENSEE on a pro -rata basis any
unearned license fees paid in advance.
7. Non Discrimination
LICENSEE recognizes that ASCAP must license all similarly situated users on a non-discriminatory basis.
LICENSEE agrees that any modifications to this Agreement by ASCAP, which are required by local, state or federal
law for other municipalities, counties and other governmental entities shall not constitute discrimination between
similarly situated users. Examples of such modifications are statements of equal employment opportunity or
nondiscrimination on the basis of race, creed, color, sex or national origin.
8, Notices
ASCAP or LICENSEE may give any notice required by this Agreement by sending it by certified United States Mail,
by generally recognized same-day or overnight delivery service or by electronic transmission (i.e., Mailgram,
facsimile or similar transmission) to the appropriate person/office as listed herein. Each party agrees to notify the
other of any change in contact information, such as change of address, change of person/office responsible, etc.
within 30 days of such change.
IN WITNESS WHEREOF, this Agreement has been duly executed by ASCAP and LICENSEE,
this day of , 20
AMERICAN SOCIETY OF COMPOSERS,
_ ...... AUTHORS. AND PUBLISHERS
by `'�if
°
,A
CITY OF WESTLAKE
LIC£IQ _'
by \(
f
(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.)
Policy - Local Governmental Entities
City of Westlake City of Westlake
Premise Address:
10 Paigebrooke Ln
Mailing Address:
4201 Wingren Ste. 108
City, State Zip:
Westlake, TX 76262-7417
City, State Zip:
Irving, TX 75062
Phone:
972-650-7102
Fax:
Size of Screen:
ilMain Contact:
Mr. Stan Lowry
Account Num:
Seasonal End:
Role:
City Attorney
ALM:
Tina Roberts
Phone:
972-650-7102
TLM:
Ann McKnight
Identified By:
ALM
District:
Status- New Prospect
Factors
Values
Rate Start Date: 11/01/2004
Number of Units:
Rate End Date:
Size of each Unit:
Charge Freq: Annual
Size of Screen:
Seasonal Start:
Projection:
Seasonal End:
Self-contained speaker?
Exception: Yes
Extensinn speaker?
Total Rate: $260.00
VCR present?
Billing Information J
Year Rate
Site Information
Audio
Audio/Visual
Number Speakers:
Number of Units:
Type of Speakers:
Size of each Unit:
Square footage:
Size of Screen:
Receiver Location:
Projection:
Wiring:
Self-contained speaker?
Paging Capability?
Extensinn speaker?
VCR present?
Type of programming:
Comments:
ver uo a - mt-i Internationa
2004 RATE SCHEDULE
FOR LOCAL GOVERNMENTS
SCHEDULE A Base License Fee
POPULA'T'ION
BASE LICENSE FEE
I -
50,000
.......... $ 260
50,001 -
75,000
........ , . 520
75,001 -
100,000
.......... 624
100,001 -
1.25,000
.......... 833
125,001 -
150,000
.......... 1,041
150,001 -
200,000
.......... 1,353
200,001 -
250,000
....... 1,665
250,001 -
300,000
1,978
300,001 -
350,000
2,291
351,001 -
400,000
....... 2,603
400,001 -
450,000
.......... 2,915
450,001 -
500,000
.......... 3,228
500,001 -
plus
.......... 3,956 plus $500 for each 100,000 of
population above 500,000 to a maximum fee
of $52,054.
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 of limited duration presented by LICENSEE for which the "Gross Revenue" of such Special Event
exceeds $25,000.
"Gross Revenue" means all monies received by LICENSEE or on LICENSEE'S behalf from the sale of tickets for
each Special Event. If there are no monies from the sale of tickets, "Gross Revenue" shall mean contributions from
sponsors or other payments received by LICENSEE for each Special Event.
SCHEDULE C State Municipal and/or County Lea es or State Associations of
Attorneys
The annual license fee for LICENSEES who are legally organized as state municipal and/or county leagues or state
associations of municipal and/or county attorneys shall be $260.
License Fee for ,Year 2005 and Thereafter
For each calendar year commencing 2005, all dollar figures set forth in Schedules A, B and C above (except for
$500 add-on for populations of 500,001 or more) shall be the license fee for the preceding calendar year, adjusted in
accordance with the increase in the Consumer Price Index - All Urban Consumers (CPI -U) between the preceding
October and the next preceding October. Any additional license fees due resulting from the CPI adjustment shall be
payable upon billing by ASCAP.
ASCAP, 2690 Cumberland Parkway, Suite 490, Atlanta, GA 30339-3913
1.800.505.4052 770.805.3475 (Fax)
Email: municipal_licensing@ascap.com