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HomeMy WebLinkAboutResolution - 2002-R0105 - License Agreement - Buddy Holly Center Museum - 03_14_2002Resolution No. 2002-RO105 March 14, 2002 Item No. 38 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK . THAT the Mayor of the City of Lubbock BE and is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a license between the Buddy Holly Center Museum and Maria Elena Holly, and all related documents. Said License is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council this 14th day of March , 2002. WINDY SITTON, MAYOR ATTEST: (2p 0 0 � A ^ '�J' �� Rebecca Garza City Secretary APPROVED AS TO CONTENT: eLL'9 �s_io_ Martha Ellerbrook Managing Director of Management Service APPROVED AS TO FORM: William de Haas Contract Manager/Attorney Dh/Cedocs/BuddyHollyCentenres February 27, 2002 Resolution No. 2002-RO105 March 14, 2002 Item No. 38 LICENSE AGREEMENT This License Agreement (hereinafter referred to as the "Agreement"), is made as of the 14th day of March, 2002, by and between MARIA ELENA HOLLY ("Licensor"), and the BUDDY HOLLY CENTER MUSEUM ("Licensee"): WITNESSETH: WHEREAS, Licensor has rights in and to the valuable name, character, likeness, and, in certain instances, visual representation of Charles Hardin Holley, professionally known as Buddy Holly, who died February 3, 1959 (which name, character, likeness and visual representation and/or each of the individual components thereof shall hereinafter be called the "Name"); and WHEREAS, Licensor has, over the years, protected and defended the Name from commercial utilization and defended and protected the rights of publicity incident to the Name, as those rights have heretofore been defined in common law; and WHEREAS, Licensor has statutorily perfected her rights in and to the Name under Chapter 26 of the Texas Property Code; and WHEREAS, Licensee desires to utilize the Name upon and in connection with, and only upon and in connection with the matters set forth hereinbelow: NOW, THEREFORE, in consideration of the mutual promises and agreements, covenants and conditions herein contained, the parties hereto have agreed, and by these presents do agree, as follows: 1. Grant of License. (a) Grant of License. Licensor grants to Licensee, and Licensee hereby accepts, the license and privilege (the "License") of using the Name in connection with, and only in connection with, the Buddy Holly Symposium at Texas Tech University and its related lectures, concerts and activities held at the Buddy Holly Center Museum and those certain venues in Lubbock, Texas set forth on Exhibit A attached hereto (collectively the "Symposium"), to be held during a four (4) or five (5) day period between the dates of August 15, 2002 and September 30, 2002 (collectively the "First Year Event"), subject to the terms and conditions of this Agreement. (b) Renewal. Subsequent to the First Year Event: (i) The License shall renew for the Symposium during a four (4) or five (5) day period between the dates of August 15, 2003 and September 30, 2003, subject to the terms and conditions hereof, unless either Licensor or Licensee provides written notice to the other party that she or it does not wish to renew the License for the following year and thereafter no later than October 31, 2002; (ii) In the event the License is renewed for 2003, the License shall renew for the Symposium during a four (4) or five (5) day period between the dates of August 15, 2004 and September 30, 2004, subject to the terms and conditions hereof, unless either Licensor or Licensee provides written notice to the other party that she or it does not wish to renew the License for the following year and thereafter no later than October 31, 2003; (iii) In the event the License is renewed for 2004, the License shall renew for the Symposium during a four (4) or five (5) day period between the dates of August 15, 2005 and September 30, 2005, subject to the terms and conditions hereof, unless either Licensor or Licensee provides written notice to the other party that she or it does not wish to renew the License for the following year and thereafter no later than October 31, 2004; (iv) In the event the License is renewed for 2005, the License shall renew for the Symposium during a four (4) or five (5) day period between August 15, 2006, and September 30, 2006, subject to the terms and conditions hereof, unless either Licensee or Licensor provides written notice to the other party that she or it does not wish to renew the License for the following year and thereafter no later than October 31, 2005; (v) In the event the License is renewed for 2006, the License shall renew for the Symposium during a four (4) or five (5) day period between August 15, 2007, and September 30, 2007, subject to the terms and conditions hereof, unless either Licensee or Licensor provides written notice to the other party that she or it does not wish to renew the License for the following year and thereafter no later than October 31, 2006; (vi) In the event the License is renewed for 2007, the License shall renew for the Symposium during a four (4) or five (5) day period between August 15, 2008, and September 30, 2008, subject to the terms and conditions hereof, unless either Licensee or Licensor provides written notice to the other party that she or it does not wish to renew the License for the following year and thereafter no later than October 31, 2007; (vii) In the event the License is renewed for 2008, the License shall renew for the Symposium during a four (4) or five (5) day period between August 15, 2009, and September 30, 2009, subject to the terms and conditions hereof, unless either Licensee or Licensor provides written notice to the other party that she or it does not wish to renew the License for the following year no later than October 31, 2008 (the First Year Event and the events under the renewals individually referred to as an Event and collectively the "Events"). (c) Scone and Term. This License covers the right for Licensee to use the Name in connection with the Events for the periods set forth above. This License also covers the right to use the Name in advertising, publicity and promotional materials relating to the Events, subject to the terms and conditions hereof. -2- (d) No Exclusivity. This License is not exclusive and Licensor may grant licenses to third parties to use the Naive in connection with other events in Lubbock, Texas and elsewhere. (e) No Sublicense Rights. The grant of the License is limited to the Licensee, and Licensee has no right to sublicense any rights under this Agreement. No other person or entity may use the Name in connection with the Events or otherwise by virtue of this Agreement. If any person or entity, such as sponsors, merchandise vendors, hotels, motels, restaurants, theaters, banks, or other commercial ventures desire to use the Name in connection with the Events or otherwise, such person or entity shall in each instance procure a license directly from Licensor upon mutually agreeable terms as a condition precedent to the use of the Name. 2. Advertising, Publicity and Promotions. Licensee's use of the Name upon and in advertising, publicity and promotional materials with respect to the Events is subject to the absolute, unfettered, express prior written approval of Licensor. Licensee will submit to Licensor (with a copy to Licensor's counsel) drafts of samples of each such materials as soon as possible, and in no event later than August 1 of the year of such Event. Licensor shall advise Licensee within ten (10) days after receipt of each such draft or sample as to whether such materials are acceptable to Licensor. The lack of express disapproval of such materials by Licensor within such period shall be deemed approval by Licensor of such samples or materials. Licensor acknowledges that Texas Tech University may also promote the Events through its own materials, subject to the necessary approvals of Licensor as set forth herein. 3. Purpose of the Events. Licensee represents and covenants that the Events will promote the image and memory of Buddy Holly and will preserve and enhance the public's awareness of Buddy Holly's contributions to the world of music. 4. Exclusions and Disclaimers. (a) Music. Licensor disclaims exclusivity in rights to and copyrights on the music authored, composed, and/or performed by Buddy Holly. In connection with any live performance of Buddy Holly music at the Events, Licensee shall ensure that the place of performance is a licensee of the applicable performing rights societies, such as ASCAP and BMI, and shall and does hereby indemnify and hold Licensor harmless from and against any claim on the part of any copyright holder or performing rights society that the performance of any such live Buddy Holly music is violative of the rights of any such claimants. (b) Television Motion Pictures Etc. This License does not include, and expressly excludes, the right to make videotapes, television tapes, or motion picture films for portrayal in any media; provided however, Licensee may make archival recordings of the Events for its own records, with Texas Tech University also being allowed to use such archival recordings in its internal educational activities. (c) Performer's Name and/or Likeness. The name and/or likeness of any performer portraying, live, Buddy Holly, is not included in the definition of "Name" and the use -3- thereof is not licensed under this Agreement, except for the performance by John Mueller and his band at the Events only. Licensor does not claim any rights therein, except those expressly set forth in this Agreement. (d) The Crickets. Licensor has no right to grant, and does not grant, Licensee the right to use the name, character, likeness or visual representation of the musical group known as "The Crickets" or any person associated therewith, except Buddy Holly. 5. Performance Restrictions and Approvals. All performers which Licensee seeks to have perform at the Events shall be subject to the absolute, unfettered, express prior written approval of Licensor. Licensee will submit to Licensor a list of such proposed performers (with a copy to Licensor's counsel) as soon as possible, and in no event later than August 1 of the year of such Event. Licensor shall advise Licensee within fifteen (15) days after receipt of such list as to whether such performers are acceptable to Licensor. The lack of express written approval of such performers by Licensor within such period shall be deemed disapproval. Licensor covenants that she will disapprove of proposed performers only for good cause, which includes, but is not limited to, the performer's general reputation for habitual and excessive use of alcohol, usage of narcotics, open and notorious acts of moral turpitude, and other matters which are not consistent with the substantial goodwill which Licensor has established and now possesses in the Name. Licensee shall take all necessary precautions to ensure that no person performing at the Events shall portray Buddy Holly, represent himself to be Buddy Holly, or engage in dialogue as though the words were being spoken by Buddy Holly, except for John Mueller as set forth above. 6. Photographs and Videos. Licensee shall take all necessary steps to prevent any person or entity from taking photographs or videos with cameras, camcorders, videotape reproducing machines or any other picture -making devices at the Events for commercial or documentary purposes, unless such person holds and exhibits an applicable and valid written license from Licensor, or unless such person or entity is a representative of the media who seeks photographs or videotapes for broadcast news or print news reproduction purposes only. Licensee shall prominently post notices during the Events stating: THE TAKING OF PHOTOGRAPHS, VIDEOTAPES, CAMCORDER RECORDINGS OR ANY OTHER PICTORIAL REPRODUCTION FOR COMMERCIAL OR DOCUMENTARY PURPOSES IS EXPRESSLY PROHIBITED, EXCEPT THAT NEWS MEDIA MAY TAKE PHOTOGRAPHS AND VIDEOTAPES FOR AND ONLY FOR BROADCAST AND NEWS MEDIA PURPOSES. 7. Personal Appearance by Maria Elena Holly. Licensee desires that Licensor be present at one or more events of the Events. Licensor will make all reasonable efforts to attend the Events, barring calamities such as her own serious illness or the serious illness of a member of her family. If Licensor is able to travel to Lubbock, Texas, for that purpose, Licensee shall provide to Licensor, in advance, a round-trip airline ticket between Dallas, Texas (either D/FW Airport or Love Field, as Licensor may direct) for first-class air travel on an airline of Licensor's choice that flies non-stop between Dallas and Lubbock. Licensee further agrees to provide Licensor with a ma driver and ground transportation during the time that Licensor is in and around Lubbock, Texas, and Licensee shall provide ground transportation from and/or to Licensor's home to either D/FW Airport or Love Field, as the case may be. Licensee shall provide all of Licensor's lodging and meal costs in and around Lubbock, Texas, without any expense whatsoever to Licensor. The lodging accommodations shall be first-class accommodations at a hotel in Lubbock, Texas, with all of Licensor's incidental expenses to be borne by Licensee. 8. Fees: Terms of Payment. (a) Licensing Fee. Licensee shall pay to Licensor an annual licensing fee of $30,000.00 for each Event (the "Licensing Fee"). The Licensing Fee shall be paid to Licensor, c/o CMG Worldwide, Inc., at its principal place of business located at 10500 Crosspoint Blvd., Indianapolis, Indiana 46256. (b) Time of Payment. Licensee shall pay the Licensing Fee to the Licensor by no later than August 15 of the year of such Event. (c) Attorneys' Fees. Licensee shall further reimburse Licensor, as additional compensation to Licensor hereunder, the reasonable and necessary attorneys' fees and expenses of Licensor's attorney in connection with the preparation, negotiation and granting of this License. Such fees shall be payable by Licensee to Licensor upon execution of this Agreement by the parties hereto. 9. Goodwill. Licensee recognizes the great value of the goodwill associated with the Name and acknowledges that the Name and all associated rights and goodwill, subject only to other licenses previously or subsequently granted by Licensor, belong exclusively to the Licensor, and that the Name has a secondary meaning in the mind of the public. 10. Books and Records. Licensee shall keep full, complete and accurate books of account and records of all transactions relating to the License granted by this Agreement for a period of no less than three (3) years from the date of such Event. Licensor, through her authorized representatives, shall have the right to examine such books of account and records and other documents and material in Licensee's possession or under its control insofar as it relates to this Agreement and the transactions contemplated hereby at all reasonable hours and at Licensor's expense. 11. Licensor's Title and Protection of Licensor's Ri.hg_ts,. Licensee agrees that it shall not, during the term of this Agreement or thereafter, attack the title or any rights of Licensor or Licensor's grantors in and to the Name, or attack the validity of this License. 12. Expiration. This Agreement will automatically expire at 11:59 p.m. on September 30, 2009, unless terminated prior thereto by Licensor or Licensee as provided herein. Licensee shall not be permitted to subsequently market, advertise or promote the Name following the expiration or termination of this Agreement without the express written consent from Licensor. -5- 13. Termination. In the event of a material breach of this Agreement by Licensee, and such material breach continues uncured by Licensee for a period of fifteen (15) days after written notice of such breach by Licensor, Licensor may terminate this Agreement upon written notice to Licensee. 14. Remedies. All specific remedies provided for in this Agreement shall be cumulative and shall not be exclusive of one another or of any other remedies available in law or equity. Failure of the Licensor to insist upon strict performance of any of the covenants or terms hereof to be performed by Licensee shall not be construed to be a waiver of any such other covenants or terms. Should Licensor be forced to initiate legal action due to Licensee's breach hereof, then all reasonable legal costs incurred therein by Licensor shall be recoupable by Licensor. 15. Licensee's Indemnification. To the extent permitted by law, Licensee hereby indemnifies Licensor against any and all claims, suits, damages, judgments, attorneys' fees and costs arising out of any claim or lawsuit brought by any third party as a result of Licensee's use of the Name, other than a proven claim of superior or prior exclusive license granted by Licensor to another person or entity. 16. No Partnership or Joint Venture. This Agreement does not constitute and shall not be construed as constituting a partnership, agency, or joint venture between Licensor and Licensee. The Licensee shall have no right to obligate or bind Licensor in any manner whatsoever and nothing herein contained shall give or is intended to give any right of any kind to any third party. 17. No Assignment. The license hereby granted is and shall be personal to the Licensee and shall not be assignable by any action of the Licensee or by operation of the law, and any attempt at such assignment shall be null and void. The Licensee shall have no right to grant any sublicenses. This Agreement shall inure to the benefit of and shall be binding upon Licensor's representatives and assigns. 18. Notice. Whenever notice is required to be given under this Agreement, it shall be deemed to be good and sufficient notice if in writing, signed by an authorized agent of the party serving such notice and sent by telegram, telefax, or mailed by registered or certified mail, to the other party at the address stated hereinbelow, unless notification of a change of address is given in writing. Maria Elena Holly 3878 Oak Lawn, Suite 100B Dallas, Texas 75219 -6- w copy to: Pass & Jones rofessional Corporation Attn: Josht Oden �,? 1201 Street, , to 2500 D as, Texas 75270; CMG Worldwide, Inc. Attn: Jonathan Faber 10500 Crosspoint Blvd. Indianapolis, Indiana 46256 Buddy Holly Center Museum Attn: Connie Gibbons 1801 Avenue G Lubbock, Texas 79401 with copy to: Susan B. Bruning 1227 Strathmore Drive Southlake, Texas 76092 19. Entire Aueement. This Agreement contains the entire understanding of the parties. There are no representations, warranties, promises, covenants or understandings other than those herein contained. None of the terms of this Agreement can be waived or modified except by an express agreement in writing, signed by Licensor and Licensee. 20. Confidentiality. This Agreement and the contents hereof constitute a confidential business relationship between the parties. Each party acknowledges that significant damage could be done to the other one should the terms of this Agreement become public knowledge. Both parties agree that they will not reveal the terms of this Agreement to any third party (excluding agents, attorneys, representatives, and others with whom Licensor and Licensee have a legal obligation to disclose and to the extent required by law) and that they will exercise reasonable precautions to insure that neither they nor their agents shall allow the terms of this Agreement to become public knowledge. 21. Construction and Jurisdiction. (a) This Agreement shall be construed in accordance with the laws of the State of Indiana. (b) Nothing in this Agreement is intended to be contrary to the laws of any country or political subdivision thereof. In the event that any of the paragraphs or particular terms or conditions set forth within any paragraphs are held to be unenforceable by a court of record with competent jurisdiction, such paragraph or particular term or condition therein shall be deemed to be -7- stricken from this Agreement within the jurisdiction of such court and the Agreement shall otherwise remain in full force and effect in such jurisdiction and in its entirety in other jurisdictions. 22. Forum Selection Clause. BOTH PARTIES ACKNOWLEDGE AND CONSENT THAT ANY LITIGATION INVOLVING A CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH THEREOF, SHALL BE PILED EXCLUSIVELY IN HAMILTON COUNTY, INDIANA. 23. Counterparts. While this Agreement may be executed in multiple copies, each fully executed copy shall for all purposes be deemed to be the original thereof, but all of such copies shall be deemed to constitute but one Agreement. 24. Amendments. This Agreement may not be amended in whole or in part except by written instntment signed by both parties hereto. 25. Captions. The various headings and captions in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement or any paragraph hereof. IN WITNESS WHEREOF, the parties hereto have signed as of the day and year first above written. ATTEST: Rebecca Garza City Secretary "LICENSOR" Maria Elena Holly "LICENSEE" Buddy Holly Center Museum (A/dj 4_1�_ , Windy Aitton, Mayor of Lubbock 'F:11 APPROVED AS TO CONTENT: Martha Ellerbrook Managing Director of Management Service APPROVED AS TO FORM: 'A �-- - �. , /�, , William de Haas Contract Manager/Attorney 199427.02 In Resolution No. 2002-R0105 EXHIBIT A Additional Venues Texas Tech University Buddy Holly Center Lubbock Memorial Auditorium/Colliseum Lubbock Memorial Civic Center 199427.02