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HomeMy WebLinkAboutResolution - 2009-R0047 - License Agreement With Maria Elena Holly - 01/26/2009 Resolution No. 2009-R0047 January 26, 2009 Item No. 2.3 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 Agreement and all related documents by and between the City of Lubbock and Maria Elena Holly, which Agreement is attached hereto and which shall be spread upon the minutes of the Council and as spread upon the minutes of this Council shall constitute and be a part of this Resolution as if frilly copied herein in detail. Passed by the City Council this 26th day of January 2009. iw r - --- ------- ---- ------------ — TOM MARTIN, MAYOR ATTEST: RebeL�—a Garza, City Secretary APPROVE)A-S-TOJC)'ONTENT: 1l / i Paul R. Beane City Council Member, District 4 APPROVED AS TO FORM: l c Donald G. Vandiver, City Attorney ,cdoes,Don,Hol ly-LicenscAgrceRes0l.01 09 January 13.2009 Resolution No. 2009—R0047 LICENSE AGREEMENT This Agreement, made this 26th day of January , 2009, is between Maria Elena Holly ("Licensor"), c/o Luminary Group, LLC ("Luminary"), located at 2150 Intelliplex Drive, Suite 100, Shelbyville, IN 46176 and the City of Lubbock, Texas, P.O. Box 2000, Lubbock, Texas, 79457 ("Licensee") (a home rule municipality of the State of Texas doing business as the "Buddy Holly Center") (collectively, the "Parties"). WITNESSETH: WHEREAS, Licensor is widow of rock and roll legend Buddy Holly and the proprietor of the intellectual property rights related to the name, image, likeness, voice, signature and similar indicia including the rights of publicity, privacy, endorsement, sponsorship, and all common law and registered trademarks of, to and concerning the late Buddy Holly ("Property"); and WHEREAS, Licensee is a Texas Home Rule Municipal Corporation, organized in 1917; and WHEREAS, Licensee has obtained a collection of Buddy Holly memorabilia and displays said memorabilia in City of Lubbock facility, hereinafter known as the Buddy Holly Center ("Center"), 1801 Crickets Ave., Lubbock, Texas 79401; and WHEREAS, Licensor and Licensee recognize that there is a mutuality of interest between them in preserving and enhancing the public's awareness of the role of Buddy Holly and the Lubbock area in the musical history of Texas, the United States of America and the world; and WHEREAS, the Buddy Holly Center plays a very important role in Licensee's being able to demonstrate and promote the musical heritage of Lubbock and the South Plains and in preserving and enhancing the reputation of Buddy Holly; and WHEREAS, the Licensee believes that having the Buddy Holly memorabilia as a display attraction for visitors to the City of Lubbock enhances both the City's position with regard to tourism and convention activities, and, as well, will promote the image and memory of Buddy Holly; and WHEREAS, Licensee recognizes that the written consent of Licensor is required for the Licensee to continue to use the Property as herein contemplated, pursuant to Licensor's various intellectual property rights; and WHEREAS, Licensee desires to utilize the Property upon and in connection with, and only upon and in connection with the matters set forth herein below. 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) Subject to the conditions and limitations set forth in this Agreement, Licensor hereby grants to Licensee the non-exclusive right for Licensee to operate the Buddy Holly Center owned by the City of Lubbock, Texas, and to display the aforementioned Buddy Holly memorabilia for historical and memorial purposes. This Agreement is limited to the Buddy Holly Center owned by Licensee within the municipal limits of the City of Lubbock, Texas, or at such other locations as may be specifically approved in writing in advance by Licensor. (b) Licensee is further granted, in connection with the display of Buddy Holly memorabilia in the Buddy Holly Center, the non-exclusive right to produce and/sell merchandise consisting only of key chains, T-shirts, postcards and posters depicting Buddy Holly ("Goods"), to be sold solely at the Center's gift shop or through the Center's official Internet website only, and subject to the limited and express provisions of this Agreement. It is expressly understood that no person other than Buddy Holly is to be depicted on such merchandise without Licensee's having obtained the express written consent of Licensor, as well as other clearances necessary for use of any such Licensor- approved person or persons; however, such memorabilia may depict the City of Lubbock or City of Lubbock public facilities that are now or hereafter named in honor of Buddy Holly. Licensee shall make every reasonable effort to carry goods of Licensor's other licensees in the Center's gift shop or other retail areas. (c) This Agreement shall commence on February 3, 2009, and automatically expire on February 3, 2029. (d) This Agreement shall apply to the City of Lubbock, Texas, and all relevant market areas, including state, national and international markets. It also shall include radio and television advertising in the radio and television relevant market areas. (e) The Licensee hereby agrees to establish a green space or "pocket park" to include shade trees, greenery, benches and parking at a location just west of the Buddy Holly Center, to be named "THE BUDDY AND MARIA ELENA HOLLY PLAZA." In addition, the Licensee agrees to move the existing Buddy Holly statue and the "West Texas Walk of Fame" to The Buddy and Maria Elena Holly Plaza. The Buddy Holly Center will receive infrastructure improvements amounting to approximately $900,000 as provided for in the City of Lubbock FY 2008-09 Budget. The improvements and repairs will be in keeping with the building's designation as a historic Lubbock building. Renovations and repairs will include a new roof, re-pointing of stone trimming, new doors and windows, development of undeveloped space and new finishes, lighting and HVAC. Licensee shall use its best efforts to obtain appropriate signage on Interstate Highway 27 for the above named public facilities. (f) During the term of this Agreement, Licensee shall not remove or change the name for any public facilities named using the Property pursuant to this Agreement or any prior Agreement without prior approval of Licensor. However, nothing herein shall require the Licensee to remove the Buddy Holly name from public facilities already named by Licensee in accordance with this or any prior agreement with Licensor or as may be hereinafter named with approval of the Licensor. (g) No license is granted hereunder for the use of the Property for any purpose other than that which is expressly provided herein. Licensee shall ensure that any sponsors it secures for the Center or any of Licensee's related activities understand that their sponsorship is for the Center only, and that any such sponsors shall not be entitled to use the name or likeness of Buddy Holly for any purpose not directly related to the Center. Licensee shall ensure that any written sponsorship agreement shall include language confirming this requirement of Licensor. Sponsors shall be encouraged by Licensee to contact Luminary Group for the possibility of a grant of license to sponsor, in the event that sponsor wishes to take advantage of its role as a sponsor of Licensee through further commercial utilization of Property under license from Licensor. 2. Compensation and Royaltv. (a) Licensee shall pay to Licensor the sum equivalent to Eighty-Three Dollars and Thirty-Three Cents ($83.33) for each month of the Term of this Agreement, for a total of Twenty Thousand Dollars ($20,000.00) within thirty days of signing of this Agreement. This payment shall be non-refundable and non-recoupable from any other sources of funding or consideration owed to Licensor. (b) Licensee shall pay to Licensor a royalty of Fifteen percent (15%) of gross sales (exclusive of sales taxes)of all items sold through the gift shop at the Center. (c) Royalties shall be paid to Licensor by Licensee monthly within fifteen (15) days after the end of each calendar month. Licensee shall provide, concurrently with each royalty payment, an accounting of the merchandise sold, the unit price, and the resulting total sum realized, exclusive of sales taxes. In any month in which there are no sales, a negative report that no sales were effected shall be made, reflecting that no royalty is due to Licensor. An item will be considered to be sold when it is ordered and then invoiced or shipped, whichever is sooner. The Licensee shall issue all compensation and royalties to the Licensor c/o Luminary Group LLC, 2150 Intelliplex Drive, Suite 100, Shelbyville, IN, 46176, such royalties as the statement indicates are due the Licensor. All payments shall be made by check drawn on U.S. funds payable to "Luminary Group LLC." (d) Each party shall bear its own legal costs and attorney's fees in the review and negotiation of this Agreement. 3. Appearance. Licensee may desire that Licensor be present at the formal opening of any Buddy Holly display or exhibit, or at any ceremony naming any City of Lubbock facility for Buddy Holly and/or Maria Elena Holly. If the Licensee desires that Licensor be present for any of said purposes, Licensee shall notify Licensor, as well in advance as possible, of the date of such desired public appearance, sending the notice directly to Licensor's home address with copy to Licensor's attorney named herein. Attendance and participation at any such display, exhibit, event or related activities, and the extent of any such attendance and participation, shall be in the sole discretion of Maria Elena Holly. If Licensor is able and willing to attend, then Licensee shall pay Licensor a reasonable appearance fee subject to the terms for payments to be made under this Agreement. In addition to an agreed appearance fee, Licensee shall provide to Licensor, in advance, a round-trip airline ticket from Dallas, Texas (either D/FW Airport or Love Field, as Licensor may direct) and Lubbock, Texas, on the best available class of air travel that flies non-stop from the Dallas area to Lubbock, together with ground transportation with a driver during the time that Licensor is at the airport and in and around Lubbock, Texas, this ground transportation from Licensor's home to Love Field if the flight emanates out of Love Field, and will provide all of Licensor's lodging and meal costs in and around Lubbock, Texas, without any expense whatsoever to Licensor, the lodging accommodations to be first-class accommodations at a hotel in Lubbock, and with all of Licensor's incidental expenses to be borne, as well, in connection with Licensor's appearance. If Licensor's appearance is desired by the promoter at a commercially- sponsored event, such as a concert, Licensor and Licensee agree that Licensor's appearance shall be subject to a separate License Agreement which only Licensor can grant. 4. Notice to Public Regarding Photography or Filming. Licensee hereby agrees to post conspicuous signs in, around, and/or leading to any display of memorabilia in the Buddy Holly Center, stating that PHOTOGRAPHING OR VIDEO TAPING OF ANY PART OF THIS DISPLAY OF BUDDY HOLLY MEMORABILIA IS PROHIBITED, AND THE SALE OR PUBLICATION OF ANY PHOTOGRAPHS OR VIDEO TAPES OR OTHER REPRODUCTIONS OF ALL OR ANY PART OF THIS MEMORABILIA IS PROHIBITED BY LAW. 5. Quality. Licensee acknowledges that if the Center or any Goods manufactured and sold by Licensee are of inferior quality, material or workmanship, the substantial goodwill which the Licensor has built up and now possesses in the Property will be impaired. Accordingly, Licensee warrants that the Center and the Goods will be of high standard and of such appearance and quality as shall be reasonably adequate and suited to their exploitation and best advantage. Licensee shall submit to Licensor via Luminary all finished art work of all Goods to be manufactured, together with its packaging and wrapping material, which shall be approved in writing by the Licensor before the Goods are advertised, distributed or sold. Any article submitted and not disapproved within fourteen (14) days of their receipt of same by Licensor shall be deemed to have been approved. After samples of the Goods have been approved pursuant to this paragraph, Licensee shall not depart therefrom without written consent from Licensor. In the event there is a departure from the approved sample of the Goods made or distributed by Licensee, or in the event there is an occurrence connected with the Goods which reflect unfavorably upon Licensor, the Licensor shall have the right, in the reasonable exercise of its sole discretion, to withdraw its approval of such Goods, at which time this Agreement shall automatically terminate with respect to such Goods. Thereupon, Licensee shall cease the use of the Property in the sale, advertising, distribution or use of such Goods immediately upon notice from Licensor, and within ten (10) days thereafter shall pay all amounts due to Licensor hereunder. If there are other Goods under this Agreement not covered or affected by the foregoing two sentences of this paragraph, this Agreement shall remain in full force and effect as to those other Goods. 6. Advertising. Subject to the express terms of this Agreement, Licensee shall also have the right to provide flyers or other printed materials, radio, video, Internet, or television coverage, placed, displayed, produced or published by Licensee itself or by others at the direction of Licensee and in strict compliance with this Agreement, describing, depicting or portraying through the above-described media the display or the aforementioned public facilities bearing the name of the Buddy Holly Center, and to refer to such display or public facilities in any advertising materials utilized in any media promoting the City of Lubbock for convention, tourism and entertainment purposes. All advertisements and promotional material which Licensee intends to use to promote the Event or the Goods shall be submitted to Licensor for its written approval prior to publication. Licensor shall have fourteen (14) days from the date of receipt of said material in which to approve or disapprove it, such approval not to be unreasonably withheld. 7. Samples. Licensee shall supply Licensor via Luminary with ten (10) samples of each design of the completed Goods, promptly after completion. Licensor shall have the right to purchase additional samples for its own personal use at the actual cost of the Goods. 8. Books and Records. The Licensee shall keep full, complete and accurate books of account and records covering all transactions relating to the subject matter of this Agreement. Licensor, through its authorized representative, 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 they relate to the manufacture and sale of Goods. The Licensor shall have free and full access there to at any reasonable hour of the day during which the Licensee's offices are open and in any reasonable manner. In the event an examination of Licensee's books and/or records reveals a deficiency in royalties paid to Licensor of more than three hundred dollars ($300), Licensee shall pay all expenses related to the performance of the examination and shall immediately pay the deficient amount to Licensor. 9. Goodwill. Licensee acknowledges that the Property is unique and original and that the Licensor is the owner thereof. Licensor recognizes and hereby affirms that the Property has achieved secondary meaning to the public at large. Licensee shall not, during the Term of the Agreement or at any time thereafter, dispute or contest, directly or indirectly, the Licensor's ownership of the Property; the Licensor's exclusive right (subject to this license) to use the Property; the validity of any of the intellectual property rights pertaining thereto or the Licensor's ownership thereof, nor shall the Licensee assist or aid others in doing so. At the Licensor's request the Licensee shall cooperate with the Licensor in preventing or stopping any infringement or unfair use by any third party of the Goods or Property. The Licensor shall determine what action, if any, it elects to pursue in regard to preventing or stopping any infringement or unfair use by any third party of the Goods or Property and shall be under no obligation whatsoever to take action at Licensee's request. 10. Credit Line. (a) Licensee warrants that it will provide a notice in any advertisements for the Center, any flyers or handouts for the Center, or on any Goods and packaging, wrapping, advertising and promotional material bearing any reproductions of the Goods or the Property, in the following format: TM Maria Elena Holly, licensed by Luminary Group LLC, www.[-uininar-,-Group.com (b) Licensee warrants that it will take such precautions as are necessary to insure that any advertisements, flyers, promotional materials or the like, for the Center or the Goods which utilize the Property bear this credit line. 11. Sales after Expiration. Upon expiration or termination (for whatever reason) of this Agreement, Licensee shall not be permitted to sell or ship its remaining inventory of Goods following the termination date of this Agreement without the express written consent from the Licensor. The Licensee shall not, without prior written consent of the Licensor, sell or ship any such remaining Goods as distress merchandise, or to unaffiliated third parties for eventual resale, or otherwise than in the ordinary course of business. Licensee shall not stockpile inventory prior to expiration or termination of this Agreement for purposes of sale or shipment thereafter. For purposes of this Agreement, a distress sale shall be defined as one in which the merchandise is sold for less than fifty percent (50%) of the normal wholesale selling price. 12. No Exclusivity. The Licensor has fully explained to the Licensee that the Licensor is not possessed of a right to grant exclusivity by the granting of this License, and the Licensee so understands. Licensor warranties that it has not heretofore granted exclusivity to another person or entity for the same purposes contemplated by this Agreement. 13. Live Performers. The name and/or likeness of any performer portraying, live, Buddy Holly at the Center or Center-related activities, shall not be and is not included in the definition of "Property" and the use thereof is not licensed herein, nor does the Licensor claim any rights therein except those expressly set forth herein. Notwithstanding the foregoing, Licensee shall not be permitted to manufacture any Goods whatsoever including any Buddy Holly lookalikes or impersonators without a separate written agreement from Licensor. 14. Rights reserved by Licensor. Any and all rights in and to said Property which are not expressly granted to the Licensee are hereby reserved by the Licensor. Any one or more of such reserved rights may be exercised or enjoyed by the Licensor, directly or indirectly, at any and all times. 15. 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 the 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 legal costs incurred therein by Licensor shall be recoupable by Licensor. 16. Disclaimers by Licensor. Licensor disclaims exclusivity in rights to and copyrights on the music authored, composed, and/or performed by Buddy Holly. Licensee expressly agrees that the Licensee shall, in connection with the performance of Buddy Holly music in any City-owned or leased facility, see that the place of performance is a licensee of the applicable performing rights societies, such as ASCAP, BMI and SESAC, and shall and does hereby indemnify and hold the Licensor harmless, of, from and against any claim on the part of any copyright holder or performing rights society that the performance of any such live concert is violative of the rights of any such claimants. This Agreement in no manner absolves Licensee of its responsibility to procure sufficient permission from any third party intellectual property owners whose rights or interests are included in or implicated by the Production or related activities, including but not limited to the owner(s) of all photographs, illustrations, music, lyrics, and/or publishing rights utilized in conjunction with the Production. Licensee agrees to indemnify and hold harmless Licensor and its agent, including all partners, employees, investors, successors and assigns of Licensor or its agent, from any and all claims, actions, damages or losses (including reasonable attorney's fees) made by third parties with respect to any third party intellectual property owners whose rights or interests are included in or implicated by this Agreement. 17. Indemnification & Product Liability Insurance. (a) Licensee hereby agrees to be solely responsible for, to defend and indemnify Licensor and its respective officers, agents and employees, and to hold each of them harmless from any claims, demands, causes of action or damages, including reasonable attorney's fees arising out of the operation of the Center and its use and access by the public, or the production, distribution or promotion of Goods, or any other activities contemplated by this Agreement. (b) Licensee hereby indemnifies Licensor and its respective officers, agents and employees, against any and all claims and suits, damages,judgments, attorney's fees and costs arising out of any claim or lawsuit brought by any third party as a result of Licensee's display of Buddy Holly memorabilia in its public facilities or use of Buddy Holly's name in and on and in connection with the sale of any Goods or other items promoting the name of Buddy Holly or Licensee's facilities bearing the name of Buddy Holly other than a proven claim of superior or prior license granted by Licensor to another person or entity. (c) Licensee will obtain and maintain reasonable product liability insurance (certificate of which shall be furnished to Licensor) providing adequate protection for Licensor and its respective officers, agents, and employees against any claims, demands, arising out of any alleged defects in Goods or any use thereof. Such insurance policy shall provide that it may not be cancelled without at least ten(10) days written notice to Licensor. 18. 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. 19. Assignment or Sublicensing. The Licensee shall have the right to perform all its rights and duties under this Agreement by means of one or more public non-profit corporations operating under the direction and control of Licensee under its governmental authority. Notwithstanding the foregoing, this Agreement shall not be assignable by any action of the Licensee or by operation of the law to any entity which is not a public non- profit corporation operating under the direction and control of Licensee under its governmental authority or to any such public non-profit corporation operating under the direction and control of Licensee which is not in existence at the time that this Agreement is entered into by the Parties. The Licensor shall have the right to assign, mortgage or otherwise encumber the Licensor's rights or duties hereunder, but such act shall not be binding on the Licensee unless and until fifteen (15) days after the Licensee is sent written notice thereof. 20. 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 officer or 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 above unless notification of a change of address is given in writing. All notices required or permitted by this Agreement shall be given or made as follows: If to Licensor: Mrs. Maria Elena Holly 3824 Cedar Springs Rd. PMB346 Dallas, Texas 75219 With Copy to: Jonathan Faber, Attorney 2150 Intelliplex Dr. Suite 100 Shelbyville, Indiana 46176 If to Licensee: City Manager Citv of Lubbock P.O. Box 2000 Lubbock, Texas 79457 21. Entire Agreement. This Agreement contains the entire understanding of the parties. There are no representations, warranties, promises, covenants or understandings other than those herein contained. 22. Construction and Jurisdiction. This Agreement shall be construed in accordance with the substantive laws of the State of Indiana, regardless of any choice of law provisions which may otherwise be applicable in any location where any action may be brought by any Parties to this Agreement. 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 of condition therein shall be deemed to be 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. 23. Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be. Notwithstanding any present or future legal decisions in any jurisdiction, regarding the necessity of Licensee to be licensed hereunder, Licensee agrees to pay royalties as provided herein for as long as it exploits the Property. 24. Titles & Headings. Titles and section headings in this Agreement are for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement. 25. Miscellaneous Provisions. While it is recognized that Licensee has limited control over promotion of events at its facilities by commercial promoters and entertainers since Licensee only provides a venue for such events, nevertheless Licensee shall not authorize nor negligently permit the sale of unlicensed Buddy Holly merchandise of any kind or character on its owned or leased premises unless the vendor holds a separate License from the Licensor, or is operating under the License herein granted to the Licensee, with the latter sales made under this License being subject to royalty and accounting to Licensor, as required herein. Licensee shall inquire as to whether all artists and vendors intend to use the name Buddy Holly and, if the answer is yes, consult with Licensee or Licensee's representative as to whether such artist or vendor has a valid license from Licensor for such use, merchandise or activities. 26. Not a debt of the City. As required by the Texas Constitution, this License Agreement does not constitute and shall not be construed as being a "debt" of the City within the meaning of any constitutional or statutory provision, and all obligations of the City payable hereunder are payable solely from the sale of items licensed hereunder or from other current revenues lawfully available to the City. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of the day and year first above written. CITY OF LUBBOCK: LICENSEE LICENSOR G • — /'/� J TOM MARTIN, MAYOR IA ELENA HOLLY ATTEST: Rebecca Garza, City Secretary Jonathan Faber Attorney for Maria Elena Holly APPROVE S TO CONTENT: l Paul R. Bcane City Council Member, District 4 APPROVED AS TO FORM: Donald G. Vandiver, City Attorney