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CCR2005022. . . COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #022-2005 APPROVAL OF LICENSE AGREEMENT WITH AMERICAN SOCIETY OF COMPOSERS, AUTHORS & PUBLISHERS (AS CAP) BE IT RESOLVED That the Common Council of the City of Muskego, upon the recommendation of the Finance Committee, does hereby approve the attached License Agreement with the American Society of Composers, Authors & Publishers. BE IT FURTHER RESOLVED That the Parks and Recreation Director is authorized to sign the Agreement in the name of the City. DATED THIS 25th DAY OF Januarv ,2005. SPONSORED BY FINANCE COMMITTEE Ald. Nancy Salentine Ald. Eric Schroeder Ald. Eileen Madden This is to certify that this is a true and accurate copy of Resolution #022-2005 which was adopted by the Common Council of the City of Muskego. 1/05 jmb . . . "'..., ... '-LICENSE AGREEMENT - LOCAL GOVERNMENTAL ENTITIES ;zLgreement between the American Society of Composers, Authors and Publishers ("ASCAP") located at 2690 Cumberland Parkway, Suite 490 Atlanta, GA 30339-3913 by City of Muske go, WI ("LICENSEE"), located at P.O. Box 749 Muskego, WI 53150 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 "ASCAP repertory." The performances licensed under this Agreement may be by means of "Live Entertainmenf' 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. (ü) "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 audio tape players (but not including "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 Láw; or (D) a music-on-hold telephone system operated by LICENSEE at the Premises. (ill) "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 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 eveni1) 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. (vü) "Special Events" means musical events, concerts, shows, pageants, sporting events, festivals, competitions, and other events oflimited duration presented by LICENSEE for which the "Gross Revenue" of such Special Event exceeds $25,000 (as defined in paragraph 4.(d) below). (b) This Agreement shall be for an initial term of one year, commencingOl/0l/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. ,,~_. . ~ - -, .':;~,,;-, .- Limitations On License' . . . (a) This license is not assignable or transferable by operation oflaw 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 (ü) performances by means of background music (such asMuzak) 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; (ill) 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 cólleges and universities; (üi) 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 communìty 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 Agreemem,. . (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. . (ü) "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. (ill) 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 8 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 (ü) 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 executiön 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; (ü) the name of the attraction(s) appearing; (ill) the "Gross Revenue" of the event. "Gross Revenue" means all monies received by LICENSEE or on LICENSEE'S behalftrom the sale of tickets for each Special Event. If there are no monies trom the sale of tickets, "Gross Revenue" shall mean contributions trom 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 indicatet.he name, addre.ss, 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 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. (a) . 5. 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 trom 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-Discriminátion -',,-- --" _-."no- .L"_- 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 equiù employment opportunity or n~ndiscrimmation on the basis of race, creed, color, sex or national origin. 8. Notices A~CAP 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 WI1NESS WHEREOF, this Agreement has been duly executed by ASCAP and LICENSEE, this day of , 20 . AMERICAN SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS CITY OF MUSKEGO, WI LICENSEE by by II I LIò (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.) . . . A,merican ~ociety of Composers, Authors and Publishers 2690 Cumbertand Parkway, Suite 490 Atlanta, GA 30339 INVOICE Invoice Date: December 10, 2004 City of Muskego, WI P.O. Box 749 Muskègo, WI 53150 Re: City of Muskego, WI Muskego, WI 53150 Billing Period: 01/01/2005 Thru 12/31/2005 Annual Rate: $268.00 Amount Due: $268.00 The only credit cards ASCAP accepts are MasterCard and VISA Payment Amount: $ Check No.: Credit Card No.: Name exactly as on card: Signature: OR Exp. Date: Visa - Mastercard- . Cardholder acknowledges receipt of goods and/or services in the amount of the total shown hereon. and agrees to perfonn the obligations set forth in the Cardholder's Agreement with the Issuer. Please return ALL PAGES of signed License Agreement with your payment. License fees due and payable in advance. Retain bottom portion for your records. City of Muskego, WI W182 S8200 Racine Ave Muskego, WI 53150 Billing Period: 01/01/2005 Thru 12/31/2005 Annual Rate: $268.00 AMERICAN SOCIETY OF COMPOSERS, AlITHORS & PUBLISHERS 2690 Cumberland ParkWay; Suite 490 Atlanta, GA 30339 (770) 805-3400 Fax: (770) 805-3410 . ASCAP LOCAL GOVERNMENT FACT SHEET . Benefit of License: 1 Comprehensive Aqreement - 1 annual fee & sinqle report ! Covers almost any municipal activity Removes potential liability - Automatically covers additional uses without extra fees/reports** Cheap - cost less than individual rates * *Monitoring or Tracking only of events with gross revenue in excess of $25,000.00 What's Covered: 1.) All Government Owned Buildinqs & Property Examples: . - Background Music in Municipal Buildings - Music On Hold in Municipal Buildings - Employee Functions, parties - City Buses & Trains - Libraries - Swimming Pools (Water Aerobics) - Municipal owned shops - Senior Center Dances & Classes - Golf & Tennis Center Snack Bars - Community/Recreation Center Activities (Dances, classes) - Arena & Convention Centers (when not "rented out" to others) - Airports - Museums - Ice & Roller Rinks - Skate parks - Zoos & Aquariums - Hospitals - Carousels - Public Parks 2.) Also covers events sponsored by or presented solely by municipalitv: - Arts & Crafts Fairs - Parades - Festivals - Concerts . - First NighUNew Year's Celebrations - Carnivals - Amateur Athletic Leagues - City Sponsored Conventions - Non-exempt elementary & secondary school performances Examples: Restrictions/Not Covered: Examples: . - Coin-Operated Jukeboxes Performances by or at Colleges & Universities Performances at any professional sports evenUgame - Theme & Amusement Parks Community or Symphony Orchestras Conventions presented by outside entities Broadcast radio or TV, Cable, Satellite or internet (except closed circuit) . . . ~1 AS CAP 2004 RATE fiCHEDUlÆ FOR LOCAL GOVERNMENTS SCHEDULE ABase License Fee . .... . . . . . BASE LICENSE FEE $ 260 520 POPULATION 1 50,000 50,001 75,000 75,001 100,000 100,001 125,000 125,001 150,000 150,001 200,000 200,001 250,000 250,001 300,000 300,001 350,000 351,001 400,000 400,001 450,000 450,001 500,000 500,001 plus .......,. . ...,..... . .......,.. .......... ...,...... .......... ...,...... . .. .. . . . . . .. . . .. . . . . .......... . . . . .. . .. . .......... SCHEDULE BSpecial Events The rate for Special Events shall be 1 % of Gross Revenue. 624 833 1,041 1,353 1,665 1,978 2,291 2,603 2,915 3,228 3,956 plus $500 for each 100,000 of population above 500,000 to a maximum fee of $52,054. . "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 ITom sponsors or other payments received by LICENSEE for each Special Event. SCHEDULE C State Municipal and/or Countv Lea!!Ues or State Associations of Attornevs 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 àccordance with the increase in the Consumer Price Index - All Urban Consumers (CPI-V) 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: municipaUicensing@ascap.com . ~ AS CAP 2005 RATE SCHEDULE FOR LOCAL GOVERNMENTS SCHEDULE A Base License Fee POPULATION 1 50,000 . . . . .. . . . . 50,001 75,000 ......... . 75,001 100,000 .......... 100,001 125,000 . . . . .. . . . . 125,001 150,000 . . . . . . . .. . 150,001 200,000 . . . .. . . .. . 200,001 250,000 ......... . 250,001 300,000 ......... . 300,001 350,000 . . . .. . . . . . 351,001 400,000 .. . . .. . . . . . 400,001 450,000 . . . . . . . .. . 450,001 500,000 ......... . 500,001 plus . .. . .. . . . . SCHEDULE B SDecial Events The rate for Special Events shall be 1 % of Gross Revenue. 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. "Special Events" means musical events, concerts, shows, pageants, sporting events, festivals, competitions, and other events oflimited 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 Lea2Ues or State Associations of Attornevs 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 $268. License Fee for Year 2006 and Thereafter For each calendar year commencing 2006, all dollar figures set forth in Schedules ~ 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 uponbi1ling by ASCAP. ASCAP, 2690 Cumberland Parkway, Suite 490, Atlanta, GA 30339-3912 1-800-505-4052 770-805-3475 (Fax) ~- ...~ .A.SCAI' -'-.- -'~", . ~ f k~" , f' Ei ~. r. ,-- v n --(;~. ,.~::> to . 0, .Dt.6:,:JS~ ..=:..n;""u' .r.::::. .:..ha.L':'h~ '~ ~.... a1 !:::-t'::'IT' Y on .':"'n:::. ,I, h_- -- :::.. - L I L 1o1:1...... --':::I, . ,I.-IIL, I,ll""" ' : 3gr~~m2:nt is' tilled infHsted correctly. ' - O.P\ease verify that the PrerrlÍse ,!.\ddress shown in, .the agr::ement is . correct. if .il-is not CDíßcL,'p\ease . .make any necessary cn3nges on the àDcum~h Land " .iil\ti.a\ next, LD tn::' C~a1lge. ' OThe p~r3pn sig'ning th:: 3gr~em~nt must initl31 3.ny' . . '3gï:::edupon. cn3ngesto the 3gr::em~lìt. O'Pì::ase s.\gn the dDcument and Est YDur 1\t\e in, Lne " , apprOprt3te space'sprov\dedonthe \.astpag2. Þ.JsD D\::ase fill in the nam'e DTYDur business in ih:: SD3ce " ' , , , '\f\rnere it asks fDr-nLi~enseé". ' 0 Pl:::ase r:.t'urn the ~ntire 3gr::.emeilt b3Ck to ^Q(-AD ' , ,-..,..;:1 ~J~L . . .