R10-001
1\ ,.11iIit4\j"h
1 RESOLUTION NO. RIO- 001
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3 A RESOLUTION OF THE CITY COMMISSION OF THE
4 CITY OF BOYNTON BEACH, FLORIDA, APPROVING
5 AND AUTHORIZING THE EXECUTION BY THE CITY
6 MANAGER OF THE LICENSE AGREEMENT
7 BETWEEN THE CITY OF BOYNTON BEACH AND
8 BROADCAST MUSIC, INC. TO ACQUIRE THE
9 LICENSING NECESSARY TO PLAY MUSIC FOR
10 i PUBLIC PERFORMANCE; AND PROVIDING AN
11 EFFECTIVE DATE.
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13 WHEREAS, the playing of music with "all rights reserved", whether it is purchased,
14 broadcast or live musicians that are hired to play in a public setting is prohibited without the
15 appropriate license; and
16 WHEREAS, every business or organization must receive permission from the
17 copyright owners of the music they are playing before playing it publicly; and
18 WHEREAS, Broadcast Music, Inc. (BMI) is recognized in U.S. copyright law as a
I licensor of music; and
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20i WHEREAS, upon recommendation of staff, the City Commission has determined
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211 that it is in the best interests of the residents of the City to execute a License Agreement with
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221 Broadcast Music, Inc., to acquire the licensing necessary to play music for public
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231 performances.
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241 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
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251 THE CITY OF BOYNTON BEACH, FLORIDA, THAT:
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261 Section 1. The foregoing "Whereas" clauses are hereby ratified and confirmed as
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271 being true and correct and are hereby made a specific part of this Resolution upon adoption
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281 hereof.
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2~ Section 2. The City Commission of the City of Boynton Beach, Florida does
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3~ hereby approve and authorize execution by the City Manager of the License Agreement with
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1 Broadcast Music, Inc., to acquire the licensing necessary to play music for public
2' performances, a copy of which is attached hereto and incorporated herein as Exhibit "A".
3 Section 3. This Resolution shall become effective immediately upon passage.
4 PASSED AND ADOPTED this 5th. day of January, 2010.
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23 ! ATTEST:
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27 t M. Prainito, CMC
28 ty Clerk
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RIO -00\
BMr Mu~c I LGE I
Performance LOCAL GOVERNMENTAL I LI-O~ (11-LG~J
Agreement ENTITIES
1. DEFINITIONS
(a) LICENSEE shall include the named entity and any ofits constituent bodies. departments, agoncies or leaguos.
(b) Premises means buildIngs, hospitals, airports. ZOOs. museums, mhletic 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 sita which
has been el'l9agcd by LICENSEE fOr use by L.ICENSeE,
(e) Recorded Music means music which is performed at the Premises by [TlljallS other than by live rnuslclans who are performing at
the Premises. including, but not limited 10 (1) compaet disc, audio record or audio tape players (but not including 'jukeboxes"); (2)
videotape, viCleodisc or eve players; (3) music performed as an accompaniment to karaoke; (4) the reception and communication
at lne premises of radio or television transmi~iorn; whlcl) originate oulSide the Premises, a.nd which Ilre not exempt under the
Copyright l.aw; or (5) Ei music-on-hold telephone system operaled by LICENSEE at the Premises.
(d) Live EntertaInment /Tlfilans music that is performed at the Premises by musicians. singers and/or other performers.
(e) BMI Repertoire means all copyrighted musical compositions written andfor pl.lblished by 8MI affiliates or membtlTS of BMI-
affiliated foreign performing rights socleties, including compositions written or published durin!) the Term of this Agreement and of
which BMI has the right to license non-dramatlc public perfonnanccs.
(f) Events and Functions ~81'1S any activity conducted. sponsored. or presenteCJ oy or under the auspices of UCENSeE, !:Jtcept
as set forth in Paragraph 2 (d) below, .Events- and "Functions" shall Include. but are not limited to, aerobics and exercise classes,
athletic evenls, dances and other social events. concerts. feslivals, arts end crafts fairs. I:Ind par9(!es held under the auspices of,
or sponsored or promoted by, LICENSEE on the Promises.
(g) SpeCial Events means musical events. concer15. shows, pageants, sporting events, festivals, competitlons. and othar events of
limited duration presenled by I.ICENSee for Which the "Gross ReVOlll,lll" (as defin8d in Scl1edule B) of such Special Event
$xoeec:js $25.000.
2. 8MI GRANT
(a) 8MI grants and LICENSEE accopts a non-exclusive license to perfOfm, present or cause the live IiIndlor recordea public
perform,lnca on the "Promises" and al .E...ents. atW "Functions", and nol clsawhorc or otherwise. non-dramatic renditions of the
soparate musical compositions in the "BMI Repertoire", The perfOl'1Tl9nCQS licensed under this Agrllement may bo by means of
"L.ive Entertainment" or "Recorded Music'.
(b) This licel'lse does not authorize (1) the broadcasting. telecasting or transmission or retransmisSion by wire, Internet, webliile Of
otherwise. of renditions of musical compositions in 8MI"s Repertoire to pel'9ons outside of the Premises, other than by means of a
music"on-nOld telephone system operatad by LICENSEE atlhe Premises: an<! (2) performances by means 01 background music
(such as MtJZak) 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 Repel'lolre to those who attend Events or Functions on the Premises by
means of teloconferencing. vldeoconferenoing or similar technology.
(e) This license is limited to non-dramatic performan<:es, and does not authorize any dramatic performances. For purposes of this
Agreement, a dramatic performance shall include, but nol be limiteClto, the following: (1) performance of a "dramatico-muSical
work' (as hereinafter defined) In its entirety; (2) perfonnl:lnce of OM or more musical oomposillons frorn a "dramaUoo-musical
work' (a9 hereinafter defined) accompanied by dialogue, pantomime, dance, stage action, or visual reprosc:ntalion of the work
frOm which the music is taken; (3) performance of one or more musical compOSitions as pan of a story or plot, whether
accom~nied or unaccompanied by dialogue, pantomime. dance. stage aclion, or visual representation; and (4) performance of a
concert version of a "dramatico.musical wort<;" (as hereinarter defined). The term "dramatlco-musical work" a$ used in the
Agrt;lement. shall include. but not be limited to, a musical comedy, opera, play witn music. revue, or ballet.
(d) This license doas not 8uthori~e performance$: (1) at any convention. exposition, trade ShOW, conference, congress. industrial
$how or similar activity presented by LICENSEE or on the Premises unless it is presented or l>pot'lSOfed sololy by aAd undar the
auspices of LICENSEe, is presenle(t entiroly on LICENSEE's Premises. and Is not open to the general publiC; (2) by or 811 colleges
and unillerslUes; (3) at any professional sports. events or gama playea on the Promls,"; (4) at any permanently situated theme or
amusement park owned or operated by LICENSEE; (5) by any symphony or community orchestra; and (6) by meElns of .. Coin
operated jukebox.
3. REVIEW OF STATEMENTS AND I OR ACCOUNTINGS
(a) 8MI &hall have th!t right to require such reasonl:lole data nec9Ssary in order to ascertain the Annual License Fee.
(b) BMI shall have the right. by ils 8uthori7.ed representativos. at any time during custOrrnl'" business hours, to examine the books
and records of account of liCENSEE to such elltent 8S may bo necessary to verify the statements made hereunder. eMI shall
consider all data and information coming 10 its attention as a result Of any such examlnatiorl of books and records as completely
confid~ntial.
(c) BMI shell have tha right 10 adjustllCENSEE's Annual license Fee based upon the most reC(lntly available revised population
figures provided by the U. S. Census Department.
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4. LATE PAYMENT AND SERVICE CHARGES
BMI may impose a lale payment charge of one and one-half
percent (1 %%) per month, or the maximum rete permitted by
law, whiehever i$ lass, from the date payment is due on any
paymont that is received by BMI more than thirty (30) days after
the due dale, 8MI may impose a $25.00 servicc charge for
each unpaid check, draft or other means of payment L.ICeNSEE
submits to ElMI.
5, 6MI CO~MITMENT TO CUSTOMeR I INDEMNITY
So long as LICENSEE is not in default or t:lreach of this
Agreement, BMI agrees to indemnify, save hamlless, and 10. NOTICES
defend LiCeNSEE and Its officers, and employees. from and Any notice under lhi8 Agreement will be in writing and deemed
against any Elnd all claims. demands, or suits that may be made given upon mailing wnen sent by ordinary fir~-ctass U.S. mail 10
or brought against tnem Wllh respect to the performance of any the party intended, al ils mailing address staled. or any olher
musical wol'ks which is licensed under this Agreement at the address which either party may ClEl$lgnete. Any such notioe sent
time of performance. LiCeNSEE agrees to give aMI Immodiate 10 8MI shall be to lhe allention of the Vice President, General
notiCl:! of any such claim, demand, or suit, to deliver to BMI any licensing Department at 10 Music Square Ea$l, Nestwille, TN
papers pertaining therQto, and to cooperate with 8MI wllh 37203. Any such notice S$nt to LIC!:NSEE shall be to the
respect thereto, and BMI shall have full charge of the defenM of attention of the person signing the Agreement on L.ICeNSEE's
any such claim, demand, 01' lluil. behalf or 5uch person as LICENSEE may advise BMI in writing.
6. BREACH OR DEFAULT I WAIVER 11. MISCELLANEOUS
Upon any broach or default of the terms ano conditions The factthl;!t any provisions are fOUnd by a court 01 competent
contaIned herein, BMI shall halle the right to cancel this juriSdiction to be lIoid or ul"lenforceablfl will not affect the validity
Agreement if such broach Or default continues for thirty (30) or enforceability of any other provisions, Thi6 Agreement
days after LICENSeE's receIpt Of written notice thereof. The cons1ltutes the entire underslal"ldlng between the parties and
right to cancel granted to BMI s"all be In addition 10 any and ..II cannot be waivod or added to or modified orally end no waivef,
otner remedies whfch 8MI may have. No waive! by 8MI of full addition and modification Shall be valId l.mless In writing and
performan<:e of this Agreement by LICENSEE in anyone or signed by bOth parties.
more inStanccs IShall be deemed a waiver of the rignt to reqUire
full and complete performance of this Agreement thereafter or of 12. FEES
the right to cancel thi5 Agreement with the terms of this (a) In cl;msiderallon of t~ license granted herein. LICENSEE
Paragraph. agree5 to pay BMI a license fee whicl'1lncludes tM lotal of
the "Bese License Fee' and any applicable .Speclal Events
7. CANCEJ..l.ATION OF ENTIRE CATEGORY License Fees', all of which shall be calculated in
8MI shall halle the rigntto cancellhe Agreement along with the accordancQ with the Rate Schedule on Page 3. For
simultaneous cancelliltion of the Agreements of all other purposes of this Agreement.
Iicen$C)(ls Of the same class and category as 1.1CENSeE. ilS 01 (i) "Base License Fee" means the annual fee due in
lhe end 01 any month during the TerM, upon sixty (60) days accordance with Schedule A of the Rate Schedule
advance written notice. and baSed on LICENSEE's popUlation 6$ established
in the most recent published U.S. Consus data. II
8. ASSIGNMENT does not Include any f.os due for Special !:vtnts,
This license is not assignable or transferable by operation of law (ii) "Special Events I.lcense Fees' means the amount due
or otherwise. This IIcenso does not authorize LICENSEE 10 in accord,mce with Schedule B of the Rate Schedule
grant \0 others any fig/'lt 10 perform publicly in any mannor any of when Special Evcnl$ are presented by or on behalf of
the musicel compositions licensed under this Agreement. nor LICENseE. It does not include any Base LicellSlj
does it authorize any public performances at any of the Fee due.
Premises in any manner except as expressly herein provided. (iii) LICENSEES wtIo are legally organIZed as state
municipal and/Or county leagues Of state auoclatlons
Of municipal and/or county attorneys shall be required
10 pay only lhe fee under the Schedule C of the Rate
Schedule. Such leagues or associatiOns are not
subject to Schedule A or Schedule e Of the Rate
Schedule. FoelS paid by 5uch leagues or
associations do not cover pertormarn:e5 of tl'le
municipality, county. or other local govemment entity
represented by the league or associatiOn. SchedUle
C fees are not applicable to municipal, county or
other govemmont entities.
Page 2 ot'4
2009 RATE SCHI:DULE FOR LOCAL GOVERNMENTS
SCHEOULE A
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cneck Population L1CENSEE'$ Popl.lloatlol'l Base License Fee Enter Fee Based Upon
Range (..J) Populatlol'l
1 . 50 000 $305
7 50 001 . 75000 $608 S608
75,001 " 109.,p..m> 5731
..._-....
100,001 . 125,0..9:0" $975
125,001 - 150 000 51,219
150,001 200 000 $1,584 -.-
.
200,001 - 250 000 $1.949
250,001 .. 3O_q,.o.og $2,317 -.
300,001 - 350.000 $2.682
350 001 400.000 $3,049 ..
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400,001 . 450,000 $3 414
450,001 - 500,000 - $3.780
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- 500,001 . plus $5.133 pIlJs $i500!(lf e""ry 1 00.000
If 500.001 or more. enter populatioo P/lplJlldiOl1 incr~ or jlOrtion thon:of
8bcM: 500,000 up 10 0 mo.Klmum
""",,,,I fl:'c or $80,950
SCHEDULE A FEE $806.00
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SCHEDULE B
Special Events Fee
(b;J be reported 90 days after each event", see PlIr. 13(d))
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The rate for Special Ev,nts shall be 1% of Gross; Revenue.
. 'Speeial Events' means musical events. concer't$. ShOwS, pag$$nts, sporting evoots, festivals. compelltlons. and other events of
limited duration pr9Sef\led by LICENSeE for which the 'Gress RevenUlil' of :sueh Special Evorlls OllCeed& $25.000.
. 'GrQ$li Revenue" n'lAanS all monl~s received by L.ICeNSEE or on LICENSee's borlalf trom Ihe sale of tlckat$ for each Special Event If
there ere no monies from lIIa sate of tickets, "Gross Revellue" shell mean conlribulions trom the ~pOn~rs or olher paymems received
by liCeNSee for each SpeCiel Evant.
I SCHEDULE B FEE I flUl will provide B 11IpQrT
tD~m to report YOUl'VVIllI$.
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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)
r----..
The er'1l'\ualllcensliI fea for LICENSEES wno are legally organlzad as state municipal and/or county leagues, or state associations 01
municipal and/or county attorneys liihsll bl'l $305.00, No Special Events fee applies to LICeNSeES qualifying under this SChedule.
I SCHEDULE C FEE I
13. REPORTING
(a) Upon the execution 01 this Agreement, LICENSEE shall submit:
(i) a report staling L.ICeNSee's population based on the most recent published U.S. Census data. The population set fOl1h In
the report snail be uSBd 10 calculate the Bese t.~ense Fee uncler this Agr9Qmenl; al'ld
(ii) a report containing the ir'lformalion set forth in Paragraph 13 (d) below for all Special Events thai were presented between \he
effectjve date of this Agreement and the executJon of t/lis Agreement.
(b) The 6l;1se License Fee f01" the firiilt year of this Agreement anCl any license fees due for Special Events that were presented
between the effective date of this Agreement and the execullon of this Agraement shall be payable upon the execution of thl$
Agreement.
(c) Base License Fees for SUbsoquent years shall be due and payable with1n 30 days of the renewal date of this Agreement and shalf
be a~mp~nied by it st!llement confirming woother any Special Events were ptesented during the previous calendar year.
(d) Ninety (90) days after the conclusion of each SpeCial Event, LICENSEE snail submit lQ aMI payment lor such Special Event and a
repOrt in printQd or computer readable form stating:
(i) tne dale presenled;
(ii) the name of the ilnraction(s) appearing;
(ili) the "Gross Revenue' of the evenl (as defined above);
(Iv) the license fee due for each Special Event.
0."" 0910212009 1812007
f>i1gt:' :I of 4
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(a) If LICENSEE prKents, sponsors or promote$ 1)1 Special Event that Is reportablo under Rale Schedule B with another person or
entity licensed under a BMIl.icense Agreement, LICENSEE shall indicate the name, address, phone number and eMI account
number of the other person(s) or entity(ies) and the party responsible for pOlyrnenl for such Special Event. If the other party is nOI
licensed by aMI. LICENSE!; shall pay the IiceJ'l&e fee due hereunder, notwithstanding any agreoment to the contrary betwoo!'\
LICENSEE: and the othor party.
(fl LICENSEE agmes to furnish to BMt, where available, copies of all programs of musical works perlosmed, whiCh are prepared for
distrIbution to the audience or for the use or Informatiorl 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 beei'1 otherwise
prepared.
14. RATE ADJUSTMENTS I LICENSE FEE FOR YEAR 2010 AND THEREAFTER
For each calendar year commencing 2010, all dollar figures set forth in SChedules A. a and C (except the $500 add-on for populations
of 500,001 or more) shall be the liCM5& fee for the preceding calendar year. acljusled In accordance with the increase in the
Consumer Price Index - All Urban Consumel'$ (CPI.U)) between the precading October and the next preceding October. rounded to
the nearest dollar. Any addilionallicehsB fees due resulting from the CPI adjustment shall be payable upon billing by 8M!.
15. TERM OF AGREEMENr June 1, 2009
This Agreement shall be for an initial Term of one (1) year, commenCing , whiCh shall be considered the
effectivo date of this Agreement, and continuing thereal'1er for additional terms of ooe (1) year each. Either party may give notice of
termination to the other no laler than thirty (30) d<l)'S prior to the end of the initial or any renewal tElnT\. If such notice is given, the
Agreement shalllorminate on the last day of the Term in which notieo is given.
AGREEMENT
AGREEMeNT. made at New York, N.Y. on (~tlil wilt t>> tmterad by 8M1 UI1Qfl execution) between BROADCAST MIJSIC. INC.,
~ State 01 New York corporation wllh Ill> princip<ll offices at 320 Wel>t !57~' Street, New York, N.Y. 10019 (herlilinsfler "BMl") IInd the legel or 1/ll(le name
described balcw and rcfcrrccllo thcre8lfter 85 "LICENSEE' (the 'Agreemenr). This Agreement include~ all of the term$ and comll1lons set forth herein,
PLEASe Rt:TURN "'~IS ENTIRE SIGNED LICENSi AGREEMENT TO: BMI, 10 MUSIC SQUARE EAST, NASHVILLE. TN 37203
ENTER lEGAL NAME: l.ICeNSeO PREMISes
City of Boynton Beach (All locations authorized by the LICENSEE)
..- (NlilmD of Coq:,o,.iJ(jon, Partnerahip, Or Ind:-Vidullll Ow..",) (SIt.., Mok....)
ENTeR TRAOE NAME: fCII)IJ (Slolo) (Z~I
City of Boynton Beach
(DOlno ~f.il'f"" ~ar '\he: .IAllI~ 01) (TlII.pl>Ono N..) rFD1t Hum".,)
{ConllJCl Ntlm~J (T;u"J
CHeCK APPROPRIATE BOX AND COMPLETE MAlUNG ADDRESS
(If dlflll'/~nl from Uc;_cd f'r.mlsas add"",)
0 Ind\\lilluat Ownership PO Box 310
($<.., A_51)
0 LLC 0 Corporation Boynton Beach FL 33425
l8lilit..ot CtICGrpofW,UolI, tf clttl.ret\l f~,.,. t.~5t'd foIctirMI'~ I~J (SI.ro) (Lip)
0 LLP 0 Psrtnership (561)742.6255
(E!nter .,...., tI~ pMtnert) rToropMno No.} {F..NIJIJIbIH}
~ Other Municipality Wally Malors Oirector
(1"""'0' Nomo) tTIII.}
Fed. Tax 10 # .
TO BE COMPLETED BY AN AUTHORIZED FOR ADMINISTRATIVE use ONLY
REPRESENTATIVE OF LICENSEE TO BE COMPLETED BY 8MI
~ BROADCAST MUSIC, INC.
KURT ~NER Vice president, Licensing
CITl'MANAGER
BelflllitOO.t;hiCH. fl
FOR 8MI USE ONLY
i 111ftI111I ~WUmIlllIIIIIIIBlllllmIIMIIIII~I~ I I ~ 1_ '''''''-.J I"
Account No. COlD
" BMI IInd the MllSic Sland symbol are registered Iradl1marks ot BrQ;K!easl MUsic. Inc.
t'agc40f4
APPROVED ~RM'
J ~c-. ~5
<!i' ATTORNEY
The City of Boynton Beach
City Clerk's Office
100 E BOYNTON BEACH BLVD
BOYNTON BEACH FL 33435
(561) 742-6060
FAX: (561) 742-6090
e-mail: prainitoj@bbfl.us
www.boynton-beach,org
February 23, 2010
Ms. Tracy Johnson
Licensing Executive
BMI
10 Music Square East
Nashville, TN 37203
Re: Resolution Rl0-00l Music Performance AGreement
Dear Ms. Johnson:
Attached for your information and use is a copy of the executed agreement mentioned above.
Since the document has been fully executed, I have retained the original for our Central File.
If I can be of any additional service, please do not hesitate to contact me.
Very truly yours,
CITYfF BOYNT?N BEACH
z!:: f!Y;~
' , .I, { <-
i/-:Judith ~. Pyle"-CMC
Deputy City Clerk
Attachment
(Copy of Executed Agreement)
Cc: Wally Majors
Central Files
S:\CC\WP\AFTER COMMISSION\Other Transmittal Letters After Commission\ZOlO\R10-QOl Executued BMI Music Performance Agreement.doc
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