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HomeMy WebLinkAboutGLOBAL MUSIC RIGHTS, LLCDocuSign Envelope ID: 308BC1oF-38C54B7C-B48C-DllFC5E17A60 !t jHAv -OUIRED V ' 'ROCEF-D �JUNV.L LICENSE AGREEMENT N-2021-014 This Agreement, including any attached and referenced schedules (the "Agreement"), dated as of December 1 2020, is made by and between Global Music Rights, LLC ("Company"), located at 1100 Glendon Avenue, Suite 2000, Los Angeles, California 90024 and the City of Santa Ana, California, a charter city and municipal corporation organized and existing under the Constitution and laws of the Slate of California, with offices at 20 Civic Center Plaza, Santa Ana, CA 92701 ("Licensee'). Company and Licensee hereby mutually agree as follows: 1. Definitions a. "Compositions" shall mean the musical compositions in which Company controls the right to license (alone or in combination with third party(ies), in each case depending on the percentage share of ownership that Company controls for the specific composition) public performances to the extent such rights are controlled by Company during the Term in the Territory. As used herein, Compositions shall only refer to the share (whether full or partial) of the compositions represented by Company. Licensee acknowledges and agrees that Company continuously makes available via Company's website at https://elobalmusicrights.cons/CataloeRepuest (the "Catalog Request Link") Company's then -current complete list of Compositions in Excel format, in a form that specifies the respective Company songwriters' names and Company publishers' names, the percentage of the Compositions controlled by each such Company songwriter or administered by such publisher and the International Standard Work Code for each Composition, if available (collectively, the "Composition List'). Licensee may request an updated Composition List via the Catalog Request Link at any time throughout the Term. b. "Effective Date" shall mean Decemberl, 2020. c. "Events" shall mean any activity or function wholly or primarily sponsored, promoted or conducted by or under the auspices of Licensee, including but notlimited to festivals, carnivals, farmers markets, fairs, dances, social events, and athletic events. d. "License Fee" shall be the total amount paid for all Licensed Premises and Events, calculated on an annual basis pursuant to the Rate Schedule due to Company by Licensee in exchange for the rights granted to Licensee herein. e. "Licensed Premises" means any locations owned or operated by Licensee and any location which has been engaged by Licensee for an Event. Licensed Premises shall include but not be limited to recreational facilities, community centers, parks, swimming pools, buildings, hospitals, zoos, athletic facilities, airports, streets, and shopping centers operated, owned, or engaged for use by Licensee. E "Rate Schedule" shall mean the document at Exhibit A. g. "Term" shall mean the Initial Term (as defined below) in addition to any Renewal Periods (as defined below). h. "Territory" shall mean the United States, its territories and possessions. 2. Rights Grant (a) Company grants, and Licensee accepts, the non-exclusive right to perform publicly, or cause to be performed publicly solely at Licensee's Licensed Premises and Events in the Territory, non -dramatic renditions of the Compositions during the Term. Licensee agrees that this Agreement, and any amendments or extensions, is for any partial or full share of the Compositions represented by Company and that Licensee will not rely on a license from a third party that purports to grant a license to Licensee in the whole of a Composition based on the partial shares of such Composition offered by any third party. Global Music Rights local government 8-t-17 DocuSign Envelope ID: 3088CtOF-38C5-437C-B48C-DllFC5E17A80 (b) Company shall have the right to withdraw from this license, at any time upon written notice, the right to publicly perform any Composition(s) if (i) Company no longer controls the right to publicly perform any Composition(s); or (if) if a lawsuit has been brought or threatened regarding any such Composition(s). 3. Term (a) The Agreement shall be for an initial term of one (1) year ("Initial Term"), commencing on the Effective Date and continuing thereafter in full force and effect for additional succeeding terms of one (1) year each ("Renewal Period(s)"), unless terminated by either party, (b) Either parry shall have the right to terminate this Agreement as of the last day of the Initial Term or as of the last day of any Renewal Periods) upon giving written notice to the other party.bycertified mail at least thirty (30) days prior to the commencement of the immediately subsequent Renewal Period(s). (c) Notwithstanding anything to the contrary contained herein, Company shall have the right to terminate this Agreement: (i) at any time upon written notice to Licensee in the event that Licensee is adjudicated bankrupt, or a petition in bankruptcy is filed with respect to Licensee, or Licensee is declared or becomes insolvent; or (if) upon thirty (30) days written notice to Licensee in the event that any law, rule, decree, or other enactment having the force of law, by any authority, whether federal, state, local, territorial or otherwise, shall result in substantial interference in Company's operation or any substantial increase in the cost of conducting its business. Company shall refund to Licensee any applicable License Fees paid in advance. 4. Limitations of Rights (a) This license does not convey the right to publicly perform the Compositions by broadcast, telecast, cablecast, transmission by wire, or other electronic transmissions (including, but not limited to, by satellite, the Internet or on-line service) to persons or locations outside of the Licensed Premises. This limitation appliesunless and to the extent otherwise expressly permitted by the Agreement. (b) Company shall have the right, at its election and without limitation, to assign any of Company's rights hereunder, in whole or in pact, to any person, including, without limitation, to a parent company, affiliate or subsidiary. Company shall also have the right to assign or sublicense any of its rights hereunder to any of its licensees in order to effectuate the purposes hereof. Licensee may assign, without written consent of Company, its rights under this Agreement to any person or entity owning or acquiring a substantial portion of the stock or assets of Licensee. Licensee shall not have the right to transfer or assign this Agreement nor the rights granted herein without the written consent of Company except as set forth in the immediately preceding sentence. No permitted assignment by Licensee shall relieve Licensee of its respective obligations hereunder, provided, however, that assignee may accept the obligations of assignor upon written notice to Company. (c) This license is limited to non -dramatic renditions of the Compositions. To clarify, this license does not include the right to perform dramatico-musical works, either in whole or insubstantial part, and it does not include the right to use the Compositions in any context that constitutes the exercise of "grand performance rights," as defined as the right to perform a copyrighted musical composition that is also accompanied by one or more of the following: drama, scenery, narration, storyline, script, costumes, dance and dancers, props, dialogue, pantomime, actors, or plot. (d) This license shall not (1) be construed to grant a license for the public performance of Compositions via any business -to -business background music service or business -to -business digital service which is not itself licensed by Company; or (ii) convey the right to publicly perform the Compositions by coin -operated phonorecord players ("Jukeboxes"), as defined by the Copyright Act In 17 U.S.C. § 116. (e) This license does not authorize performances; (i) at any congress, convention, trade show, exposition or similar activity presented by Licensee or on the Licensed Premises unless it is presented or sponsored solely by and under the auspices of Licensee, takes place entirely on the Licensed Premises, and is not open to the general public; (if) at any permanently situated theme or amusement park owned or operated by Licensee; (III) by or at any colleges or universities; or (iv) at any professional sports events taking place on the Licensed Premises. Global Music mghts.Jocal govemment_8.1-17 DocuSign Envelope ID; 308BC10E-38C5-4B7C-B48C-DllFC5E17AGG (0 This license is limited to the Territory. 5. License Fees (a) In consideration for the rights granted herein, Licensee shall pay to Company the applicable License Fee as calculated pursuant to the Rate Schedule on an annual basis. A copy of the current Rate Schedule is attached hereto, and incorporated herein, as Schedule "A". (b) Notwithstanding anything to the contrary contained in this Agreement, upon sending of written notice to Licensee by certified mail, Company shall have the right to adjust the rates set forth in the state Schedule. In the event that Licensee's License Fee increases as a result of such adjustment to the Rate Schedule, Licensee shall have the right to terminate the Agreement as of the date such increase is to take effect, provided that Licensee gives Company written notice of such termination by certified mail, not later than thirty (30) days after receipt of Company's notice of such Increase to Licensee. (c) Company shall have the right to impose a late payment charge of one and one-half percent (1.5e/u) per month, or the maximum rate permitted by law, whichever is less, on any payment by Licensee that is more than thirty (30) days past due per the terms of the Rate Schedule. Company shall have the right to impose a $25.00 service charge for each unpaid or dishonored check, draft or other means of payment submitted to Company by Licensee. In the event that Company incurs any expenses in connection with the collection of any amounts past due to Company, including but not limited to reasonable attorney's fees and outside collection agency costs, Licensee shall be responsible for reimbursing Company for such expenses. (d) In the event that Company is determined by the taxing authority or courts of any state, territory or possession in which Licensee condom its operation to be liable for the payment of sales, use, business use, gross receipts or other tax that is based on the amount of Company's fees from Licensee, then Licensee shall reimburse Company, within thirty (30) days of notification therefor, for Licensee's pro rata share of any such tax derived from fees received from Licensee. (e) Licensee warrants and represents that Licensee has the right to enter into this Agreement and to satisfy its obligations hereunder to Company including pay the License Fees pursuant to the Rate Schedule. 6. Reports and Payment (a) Licensee shall deliver the License Fee and a report for the initial Term in a computer readable format to Company within thirty (30) days of the full execution of this Agreement. The License Fee and reports for each Renewal Period shall be due within thirty (30) days of the commencement of such Renewal Period. (b) The annual reports shall include: (i) Licensee's population based on the most recent U.S. Census data; (11) The License Fee due for the applicable 12-month period. 7. Right to Verity Reports (a) Upon thirty (30) days prior written notice to Licensee, Company shall have the right to examine, by its duly authorized representatives, during customary business hours, such documentation mutually agreed upon by the parties reasonably necessary to verify the information required in the annual reports enabling Company to verify any and all payments, statements, computations and reports rendered and accountings made or required hereunder. In the event that Company and Licensee are unable to mutually agree on such documentation, Company shall have the right, but not the obligation, to verify the information required in the annual reports through https://www,census.gov/quickfacts/fact/table/santaanacitycalifomia,UWST045219, All data and information brought to Company's attention as a result of any examination shall be treated as confidential. (b) Should anysuch examination reveal that a Licensee has underpaid Companyany License Fee obligation, Licensee shall pay to Company (i) the amount of such underpayment; (ii) a finance charge on the balance shown due of one and Global Music Rights -local government 8-1.17 DocuSign Envelope ID: 308BC10E-38C5-4B7C-B48C-Dl lFC5E17A60 one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, from the date(s) the License Fees should have been paid pursuant to this Agreement; and (III) solely in the event that such examination reveals that Licensee has underpaid Company any License Fee obligation by ten percent (10"/a) or more, any reasonable costs incurred by Company to undertake such examination, as permitted by applicable state law. The amounts payable pursuant to the preceding sentence shall be due within thirty (30) days notice from Company of the additional fees due. & Indemnification (a) Licensee agrees to indemnify, hold harmless, and defend Company (which shall be deemed to include Company's parent company) and Company's officers, directors, employees, successors, and assigns, and each of them (the "Indemnified Parties"), from and against any and all third party claims, demands, or suits that may be made or brought against them or any of them, and the reasonable attorneys' fees and costs that the Indemnified Parties incur in defending such claims, demands, or suits, arising out of Licensee's breach of any representation, warranty, obligation or limitation hereunder. Company will promptly notify Licensee of any such claim, demand, or suit, and reasonably cooperate with Licensee with respect thereto. (b) Provided that Licensee is not in default breach of any obligations pursuant to this Agreement (specifically including, without limitation, Licensee's payment of all License Fees then -owing pursuant to this Agreement), Company agrees to indemnify, hold harmless, and defend Licensee from and against third party claims, demands, or suits made or brought against Licensee alleging copyright infringement regarding the public performance right solely with respect to Licensee's public performance of the share of any Compositions that were licensed by Company to Licensee pursuant to this Agreement at the time of such public performance. Licensee shall promptly notify Company of any such claim, demand, or suit, and reasonably cooperate with Company with respect thereto, Company shall have fall control of the defense of any such claim, demand or suit. 9. Breach or Default (a) Licensee shall not be entitled to recover damages or to terminate the Agreement by reason of any breach by Company of its material obligations, nor shall Company otherwise be deemed in default or breach of this Agreement by reason of any such breach, unless Company is given written notice thereof by Licensee and same is not cured within thirty (30) days after receipt of such notice. In the event Licensee terminates the Agreement pursuant to this paragraph, Licensee shall pay to Company any unpaid License Fees. (b) Company shall not be entitled to recover damages or to terminate the Agreement by reason of any breach by Licensee of its material obligations, nor shall Licensee otherwise be deemed in default or breach of this Agreement by reason of any such breach, unless Licensee is given written notice thereof by Company and sam sis not cured within thirty (30) days after receipt of such notice. This right to terminate shall be available in additionto any and all other remedies that Company may have, including but not limited to the right to institute legal action for copyright infringement as permitted by the Copyright Act under 17 U.S.C. § 501. 10. Notices All notices required or permitted to be given by either party to the other shall be deemed provided if sent by first class U,S. Mail, return receipt requested, or generally recognized expedited services where a receipt is received (e.g., FedEx) to the addresses set forth above. Company and Licensee shall notify the other in writing in the event of any address change. 11. Confidentiality (a) Subject to and in accordance with applicable state law, both parties acknowledge that the nature of this Agreement, the terms set forth in this Agreement and the non-public information provided by the parties to one another in the negotiation and carrying out of this Agreement including, but not limited to, all information pertaining to Company's client and Composition list (collectively, the "Confidential Information") are strictly confidential and both parties agree to keep the Confidential Information strictly confidential and to not disclose the Confidential Information to any third party without the prior written consent of both parties unless in response to legal action, and then upon prior written notice of five (5) business days and opportunity to respond to such legal process and protect Confidential Information, if permitted by law. The parties acknowledge that the Confidential Information is of great Global Music Rights -local govemmenLS-1.17 DocuSign Envelope ID: 308BC10E-38C5-4B7C-B48C-D11 FC5E17A60 value to each party and if disclosed to third parties without the express written consent of the parties would cause irreparable harm, Accordingly, the parties agree that any breach or threatened breach of this confidentiality provision by either of them shall entitle the non -breaching party, in addition to any legal remedies available to it, to apply to a court of competent jurisdiction to enjoin any breach or threatened breach of this Agreement. The parties' obligations under this paragraph shall survive the expiration or termination of this Agreement. Both parties agree that after the Term of this Agreement, each party will destroy the Confidential Information provided by the other party if the providing party provides written notice requesting the receiving party to do so. Nothing herein contained, however, shall prevent Company from using such information for the purpose of licensing or collecting fees from Licensee for performances of the Compositions at the Licensed Premises. (b) Nothing in subparagraph 11(a) above shall be construed to countermand Licensee's obligations under applicable state law (including the California Public Records Act). 12. Miscellaneous (a) This Agreement will be construed in accordance with the laws of the State of California with respectto contracts executed and fully performed there and is binding upon and inure to the benefit of the parties and their respective successors, heirs and assigns. All claims regarding this Agreement will be submitted to theexclusive jurisdiction of the state courts of California or to federal district courts located in Los Angeles County. (b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes and cancels any and all previous and contemporaneous discussions, negotiations, covenants, agreements, commitments, representations, warranties and writings of any kind with respect thereto, all of which have been and are merged and Integrated into, and are superseded by, this agreement. No modification, amendment, waiver, termination or discharge of this Agreement shall be binding upon Company unless confirmed by a written instrument signed by an authorized officer of Company, or binding upon Licensee unless confirmed by a written instrument signed by Licensee or Licensee's representative. A waiver by either party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future or of any subsequent breach thereof, Except as otherwise specifically set forth in this Agreement, all rights, options and remedies in this agreement shall be cumulative and none of them shall be in limitation of any other remedy, option or right available to either party. The headings of the paragraphs hereof are for convenience only and shall not be deemed to in any way affect the scope or meaning of this Agreement or any portion thereof. (c) Each and every provision of this Agreement shall be considered severable, and if for any reason any provision or provisions herein are determined to be indefinite, invalid, contrary to any applicable existing orf rture laws or otherwise legally unenforceable, that shall not impair the operation or effect of any other portion of this Agreement, and any portion of this Agreement found to be unenforceable shall be severed, and the balance of the provisions of this Agreement shall remain in full force and effect. (Signatures on followingpage) Global Music nights -local government_8-1-17 DocuSign Envelope ID: 308BC10E-38C5-4B7C-B48C-D11FC5El7A60 IN WITNESS WHEREOF, the parties hereto have executed this License Agreement on the date and year first written above. e Y ri I ti, d'. _ 4rt !� Daisy Gomez I Clerk of the Council APPROVED AS TO FORM SONIA R. CARVALHO, City-, ttomev By: Rya . H ge Assi nt C ty Attorney RECOMMENDED FOR APPROVAL Cksal'R udloff Executive Director Parks, Recreation, and Community Services Agency Global Music Rights_local government 8-1-17 CITY OF SANTA ANA Kristine Ridge City Manager GLOBAL MUSIC RIGHTS, LLC DOCYSIgned by: E !a �.'aaa -OP D-- Name:General Counsel Title: DocuSign Envelope ID: 308BC10E-38C5-4B7C-B48C-D11FC5F_17A60 LOCAL GOVERNMENTS & MUNICIPALITIES RATE SCHEDULE License Fee for each year shall be as follows: LICENSEE POPULATION (based on most recent US Census data) ANNUAL FEE 1-100,000 $850 100,001- 250,000 $2,000 250,001- 500,000 $3,500 500,001— over* $4,500 *Plus $500 for each additional 100,000 population For illustration purposes only, if Licensee has a population of 125,000, the License Fee shall be $2,000. **Please note that, pursuant to paragraph 6(a), payment for the Initial Term Is due within thirty (30) days of the full execution of the Agreement, and payment for any Renewal Term is due within thirty (30) days of the commencement of such Renewal Term** This schedule is incorporated and made part of the Agreement.