HomeMy WebLinkAboutBMI MUSIC - CONTRACT - GENERAL CORRESPONDENCE - BMI CONTRACT EPICt4iL g��
E No embgG 15, 2004
James B Oneill II Ab
a
Edora Pool Ice Center
PO Box 580
Fort Collins CO 80522
NrA-- LL
CERTIFIED S � \�yt, 5901 LC .
A Music License That Fits The Way You Use Music In Your Business.
Dear Mr. Oneill II:
Did you know that BMI, the largest non-profit making performing right organization recognized under
the U.S. copyright law, represents more than 300,000 songwriters, composers, and music publishers
and that approximately half of the music played on radio are BMI-licensed songs? But what does that
mean for your business unless you have access to the vast and growing catalog of musical works and
a cost-effective and convenient way to obtain permission to play those songs?
Since BMI published its last license for skating rinks more than 20 years ago, BMI has increased its
catalog three fold. Since the previous License Agreement for Skating Rinks was introduced to the
market, the BMI repertoire has increased to include approximately 4.5 million musical works, and has
won more awards than the repertories of any other U.S performing right organization. As the BMI
repertoire has evolved, so has the skating industry. For that reason, BMI has revised its License
Agreement to better meet the needs of skating rinks like yours, and to better reflect the value of the
award -winning BMI repertoire. The new BMI agreement has these important new benefits:
Benefits Of The New Of The New Agreement 8t Fee Structure
Fee Structure
■ Flexibility - The license allows you to pay for a portion of the calendar year if your business is
open seasonally. Should you need to change your operating policy, BMI will adjust your fee for
the next contract year.
■ Convenience —The fee structure allows you to make annual, semi-annual or quarterly payments.
BMI now accepts payment via check, VISA, MasterCard, and American Express.
This letter serves to notify you that BMI elects to exercise its option pursuant to Paragraph 2
of your current BMI Music Performance Agreement and hereby cancels your BMI agreement
effective December 31, 2004. We have enclosed a copy of the new BMI License Agreement for
Skating Rinks for your review. In order to be licensed by BMI from January 1, 2005 forward, please
sign and return the enclosed agreement before that date.
On behalf of our more than 300,000 affiliated songwriters, composers, and music publishers, thank
you for playing award -winning BMI music. Should you have any questions about your use of BMI
music or the new BMI Music License for Skating Rinks, please call BMI at (877) 264-2137 .
QL
Siinc
6 Qn.'
Michele A. Reynol
Assistant Vice President
General Licensing
End: SKTI MPA, Q&A, BRE
1179626/!Premise State: CO
• 10 Music Square East, Nashville, Tennessee 37203A399 (877) 264-2137 Fax: (615) 401-2895 SKTRIXL.doc
BMI and the music stand symbol are registered trademarks of Broadcast Music, Inc.
NOTICE TO COLORADO PROPRIETORS
BMI REGARDING ENFORCEMENT OF MUSIC COPYRIGHTS
Colorado law (§6-13-103, C.R.S.), requires BMI (a "performing rights organization"), to provide you with the
following information at least seventy-two (72) hours before you enter into any contract requiring you to pay royalties to
this performing rights organization:
(a) A description of the rules and terms of royalties required to be paid under the contract:
(b) A schedule of the rates and a description of the terms of royalties required to be paid under agreements
executed by the copyright owner or performing rights organization; and
(c) In the case of a performing rights organization, information concerning how to obtain a current list of the
copyright owners represented by that organization and the works licensed under the contract.
NOTE: Such list must be made available to you within fourteen (14) days by electronic means. You shall
not be charged an amount in excess of the actual cost incurred by the performing rights organization for
providing such list.
Failure to provide you with this information will entitle you to bring an action against or to assert a counterclaim
in an action brought by this performing rights organization and, if you prevail, to recover three times your actual damages
or one thousand dollars ($1,000), whichever is greater, plus your costs and reasonable attorneys fees. (§ 6-13-104, C.R.S.)
HOW BMI CAN ASSIST YOU
As the proprietor of a business in the State of Colorado where music is performed, you are required to obtain
authorization from the copyright owners of that music in order for your performances to be legal. BMI represents over
300,000 songwriters, composers and music publishers ("affiliates") and approximately 4.5 million musical compositions.
For a single annual fee, a BMI Music Performance Agreement will authorize you to legally perform at your place of
business all of the musical works' in the BMI repertoire created and owned by our affiliates, and you will avoid the
necessity of having to contact each one individually to obtain permission.
THE BMI MUSIC PERFORMANCE AGREEMENT
• The BMI Music Performance Agreement is the contract that describes the rules and terms of royalties required
to be paid by you to BMI for authorization to perform the music which we license.
• The schedule of rates can be found within the Music Performance Agreement under the heading License Fee
Schedule.
• The Music Performance Agreement, including the schedule of rates and terms of royalties, which BMI has offered
you is the same agreement BMI offers throughout the United States for your class and category of music use. Please
read the Agreement carefully and call us at the tollfree number which appears on the enclosed letter if you have any
questions.
ACCESS TO AFFILIATE AND REPERTOIRE LIST
Using a PC and a modem, you can electronically access a current list of the affiliates we represent and the works in
our repertoire which are licensed under your Music Performance Agreement. You should log onto the Internet and access
the Repertoire section of the bmi.com domain on the World Wide Web. Our URL address is http://bmi.com. Access to
the Internet can be obtained through many commercial on-line services, as well as from specialized Internet access
providers, often for the cost of a local telephone call. BMI imposes no additional charge for this service. If you have
questions about any song title or affiliate listing that you locate on our Internet domain, please call 1-800-800-9313 for
assistance.
BROADCAST MUSIC, INC.
COLORADO Attn: Marketing/Fulfillment ®®
10 Music Square East BMI and the Musicstand symbol are registered
LL-01/I1-04 Nashville, TN37203 trademarks of Broadcast Music, Inc.
rAgreement
Music LGEBN
Performance LOCAL GOVERNMENTAL LI-03/12-LGE ENTITIES http://www.bmi.com
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.
(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 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 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 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 t of 4
4. LATE PAYMENT AND SERVICE CHARGES
BMI may impose a late payment charge of one and one-half
percent (1Y:%) 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, BMI 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.
6. 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
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 government entities.
Page 2 of
2004 RATE SCHEDULE FOR LOCAL GOVERNMENTS
SCHEDULE A
Check Population
Range (�)
LICENSEE'S Population
Base License Fee
Enter Fee Based Upon
Population
1 - 50,000
$260
50,001 - 75,000
$520
75,001 - 100,000
$624
100,001 - 125,000
$833
125,001 - 150,000
$1,041
p
150,001 - 200,000
$1,353
200,001 - 250,000
$1,665
250,001 - 300,000
$1,979
Li
300,001 - 350,000
$2,291
350,001 - 400,000
$2,603
❑
400,001 - 450,000
$2,915
450,001 - 500,000
$3,228
❑
500,001 - plus
$3.956 plus $500 for every 100,000
or
t reof /above on r500,000 up to an ep
maximum annual fee of $52,056
If 500,001 or more, enter population
SCHEDULE A FEE
$ 0
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
BM/ 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 attorneys shall be $260.00. 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
(a) 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 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`h 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
&rh10, 6r-�6V1h 5 Co Y.O. Box SBo
(Name of Corporation, Partnership, or Tindividual Owner) (Street Address)
rvrfCO3&,S 60 4o5z7,
ENTER TRADE NAME: (City) (State) (Zip)
(Doing business under the name of)
CHECK APPROPRIATE BOX AND COMPLETE
❑ Individual Ownership
❑ LLC ❑ Corporation
(State of Incorporation, if ddferent from Licensed Premises)
❑ LLP ❑ Partnership
(Enter names of partners)
Other MU/�jVi L-rPAL C7 0y
Fed. Tax ID # O — 0 44's--y Z,
TO BE COMPLETED BY AN AUTHORIZED
REPRESENTATIVE OF LICENSEE
Signature
LIES &.
r� wit € e rz oic oJe 4/it¢,5X7Ak,
.4- 2.' S/�,, l-1
(Telephone No.) (Fair Number)
(Contact Name) (Title)
MAILING ADDRESS
(if different from Licensed Premises address)
.S-e o
(Street Address)
Fcpg r Cv«a.�s C 0 g (0a'z 2
fcky) (State) (Zip)
9 7o - Z V6 77 s 776 221-670 7
FOR ADMINISTRATIVE USE ONLY
TO BE COMPLETED BY BMI
BROADCAST MUSIC, INC.
FOR BMI USE ONLY
Account No. COID
do BMI and the Music Stand symbol are registered trademarks of Broadcast Music, Inc.
O/L()�'
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Page 4 of 4
® LL-95/06-02
RVI
PLEASE SIGN AND RETURN THIS RIDER WITH YOUR SIGNED
AGREEMENT AND PAYMENT
72 HOUR RIDER
COLORADO
Attached to and forming a part of the Music Performance Agreement by and between BMI and
LICENSEE of even date (the Agreement).
LICENSEE shall have the right to rescind the Agreement for a period of seventy-two hours after
execution of the Agreement.
Except as amended herein, the Agreement is ratified and confirmed in all_ respects.
LICENSEE
(Print name of LICENSEE)
By:
(Print name of Signer)
DATED: /Zi.g /0 j
0
BROADCAST MUSIC INC.
(Print name of Signer)
BMI and the Musicstand symbol are registered
trademarks of Broadcast Music, Inc.