HomeMy WebLinkAboutResolution - 4614 - License Agreement - Maria Elena Holly - Buddy Holly Memorabilia - 09/22/1994Resolution No. 4614
Item X621
September 22, 1994
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
herewith, 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 fully copied herein in detail.
Passed by the City Council this 22nd da,
ATTEST:
i
Betty M. ohnson, Vity Secretary
AS TO CONTENT:
APPROVED AS TO FORM:
Donald G. VandiverFirst Assistant1
C
Attorney
WV ja/CONAGMT.RES
ccdocs/July 19, 1994
Resolution No. 4614
Item 121
September 22, 1994
LICENSE AGREEMENT
THE STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS §
THIS LICENSE AGREEMENT made as of the 22nd day of September
1994, between MARIA ELENA HOLLY, ("Licensor"), and THE CITY OF LUBBOCK,
TEXAS, (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, effective September 1, 1987, rights of publicity and the descendibility
thereof were codified in Texas when H.B. 834 was passed by both Houses of the Texas
Legislature, signed into law by the Governor of Texas, and enacted as Chapter 26 of
Texas Property Code; and
WHEREAS, on September 29, 1987, Licensor filed in the Office of the Secretary
of State of the State of Texas REGISTRATION OF CLAIM under Section 26.006 of said
Property Code, reflecting that Licensor, as Claimant, was and is the surviving spouse of
Charles Hardin Holley (BUDDY HOLLY), and thus statutorily perfected the rights of
Licensor in and to the Name; and
WHEREAS, Licensee is a Texas Home Rule Municipal Corporation, organized in
1917; and
WHEREAS, Licensee is in the process of obtaining a collection of Buddy Holly
memorabilia with the intent of enhancing the acclaim and knowledge of the contributions
of Buddy Holly to the world of music, with particular emphasis on his roots in Lubbock
and West Texas, by means of displaying said memorabilia in City of Lubbock (Licensee)
facilities; 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, Licensee very much desires to be able to keep the aforementioned
Buddy Holly memorabilia in Lubbock, rather than to have it be sold at international
auction to bidders; and
WHEREAS, the Buddy Holly memorabilia 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, Licensee also may desire to promote the image and memory of
Buddy Holly by naming one or more public buildings or other facilities in his honor from
time to time; and
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 2
WHEREAS, the Licensee believes that having the Buddy Holly memorabilia as a
display attraction for visitors to the City of Lubbock will enhance 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
before the Licensee may use the name, voice, signature, photograph or likeness of Buddy
Holly in memorabilia display and otherwise as herein contemplated, pursuant to Section
26.011 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:
Addresses of Parties: The correct mailing address of Licensor is #135,
P. O. Box 93402, Colleyville, Texas 76034, but with copy of all mail to Licensor in
connection with this License to be sent to Shannon Jones, Jr., Passman & Jones, 1201 Elm
Street, Suite 2500, Dallas, Texas 75270. The correct mailing address of Licensee is City
Manager, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457.
2. Grant of License and Consent:
A. Scope: This License and Consent covers the right, for a period
beginning on the date set forth hereinabove and continuing through February 3, 2009, for
Licensee to display, in one or more facilities owned or leased by the City of Lubbock,
Texas, and, temporarily, at Texas Tech University Museum (with the Texas Tech
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 3
University Museum's agreeing in writing in advance to abide by the terms of this License
Agreement during the temporary period of such display) the aforementioned Buddy Holly
memorabilia for historical and memorial purposes, which display may be accompanied by
incidental sales of souvenirs and related items. Licensee shall also have the right to name
one or more public facilities in the City of Lubbock, Texas, in honor of Buddy Holly
including appropriate signage as contemplated in Exhibit A hereto and which shall be
created in good taste. In addition, Licensee shall also have the right to provide flyers or
other printed materials, radio, video or television coverage, placed, displayed, produced
or published by Licensee itself or by others at the direction of Licensee, describing,
depicting or portraying through the above-described media the display or the
aforementioned public facilities bearing the name of Buddy Holly, 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. A list of permitted
convention, tourism and entertainment advertising uses by the Licensee, which list shall
not be deemed to be comprehensive, but which shall be by way of example only and not
limitation, is attached hereto as Exhibit A and made a part hereof for all intents and
purposes. If any commercial enterprise that is not City -owned, such as hotels, motels,
restaurants, banks or other commercial ventures also desires to place an ad in any
advertising media, and if the name of Buddy Holly is howsoever utilized in such
advertising, then the commercial venturer or venturers must, in each instance, procure a
License from Licensor upon mutually agreeable terms as a condition precedent the
publication of such advertising. This License to display memorabilia or display or sell
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 4
souvenir items is limited to public facilities owned or leased 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, such as, by way of example but
not limitation, a traveling display in other cities promoting Buddy Holly and the City of
Lubbock. It is expressly agreed and understood that, in any building bearing the name of
Buddy Holly, a commercially sponsored enterprise utilizing the name of Buddy Holly in
any way other than as part of the name of the facility must obtain the Licensor's prior
written consent and a separate License Agreement and provision for royalty payments. By
way of example, where a concert held in a Buddy Holly Arena owned or leased by
Licensee, with admission charge made, and with Buddy Holly's name used by the
entertainer, in connection therewith such as a "Buddy Holly Jamboree", a separate License
Agreement would be required between Licensor and the entertainer or promoter and a
royalty would be due and payable to Licensor thereunder. On the other hand, if an
entertainer, a "Joe Smith", were to have a concert in a Buddy Holly Arena owned or
leased by Licensee with no mention made of Buddy Holly in any advertising (other than
mention of the fact that the performance to be held in the Buddy Holly Arena) and with all
advertising pertaining to and only to "Joe Smith", then no separate License with the
entertainer would be required and no royalty would be payable to Licensor in connection
therewith. Licensee is further granted the right and License to sell, in connection with the
display of Buddy Holly memorabilia in any public facility of Licensee, such items as key
chains, T-shirts, postcards and posters depicting Buddy Holly. It is expressly understood
that no person other than Buddy Holly is to be depicted on such memorabilia without
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 5
Licensee's having obtained the express written consent in advance of such other person or
persons, as, for example, members of The Crickets; however, such memorabilia may
depict the City of Lubbock or City of Lubbock public facilities that are now or hereafter
may be named in honor of Buddy Holly.
3. Photographs and Si ns: Subject to the rights granted to and the
obligations imposed upon the Licensee in numbered paragraph 2 of this Agreement,
Licensee hereby agrees to post conspicuous signs in, around, and/or leading to any display
of memorabilia of Buddy Holly, 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.
4. Quality Control: Licensee acknowledges that if any articles manufactured
or sold under this License (merchandise) were of inferior quality in design, material or
workmanship, the substantial goodwill which Licensor has built up and now possesses
in the name would be impaired. Accordingly, it is an essential condition of this License,
and Licensee hereby covenants and agrees to use its best efforts to ensure that the articles
covered by this LICENSE AGREEMENT (articles of merchandise) shall be of high
standard and of such quality, style and appearance as shall be reasonably adequate and
suited to their exploitation to the best advantage and to the protection and enhancement of
the Name and the goodwill pertaining thereto; that such articles shall be manufactured,
sold and distributed in accordance with all applicable Federal, State, and local laws; and
that the policy of sale, distribution and/or exploitation by Licensee shall be of high
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 6
standard and to the best advantage of the Name, and that the same shall in no manner
reflect adversely upon the good name of Licensor, of any of Licensoes programs, or of the
Name. True samples of each item of contemplated merchandise shall be submitted to
Licensor, who shall have ten (10) days after receipt to approve or disapprove the item and
if Licensor shall disapprove an item, Licensor shall state the reason for such disapproval in
writing. If the Licensor does not respond to such submission within the stated time
period, the item will be deemed to be approved. In the event the Licensee's vendor holds
a license from Licensor, the product may be sold by the Licensee without product
approval by Licensor or royalty payment to Licensor by Licensee. It is not presently
contemplated by Licensor nor by Licensee, nor is it agreed that any merchandise covered
by this License shall include any product such as food or drink, intended for human
consumption, or soap, shampoo, or a similar product. All T-shirts sold by Licensee under
this License shall be of 50% cotton/501/6 polyester construction and preshrunk.
Territory: It being in the best interest of both the Licensor and the Licensee
to draw visitors from the largest area possible, except as expressly otherwise provided
herein, this License shall therefore 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.
6. Approval: Licensee has been advised and expressly recognizes that,
heretofore, Licensor has granted certain rights to Innovisions, Inc., as the producer of the
motion picture ultimately named "The Buddy Holly Story" and others. Subject to the
rights granted to and the obligations imposed upon the Licensee in numbered paragraph 2
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page
of this Agreement, this License does not include, and expressly excludes, the right to make
video tapes, television tapes, or motion picture films for portrayal in any media.
7. 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.
8. Royalty and Term of Payment:
A. Rate: Licensee shall pay to Licensor a royalty of ten percent (10%)
of gross sales (exclusive of sales taxes) on each souvenir item sold pursuant to the
provisions of this Agreement.
B. Time of Payment: The royalty provided for herein shall be paid to
Licensor by Licensee quarterly in Dallas County, Texas, within fifteen (15) days after the
end of each calendar quarter, with quarters being deemed to end on March 31, June 30,
September 30 and December 31 of each year. 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 quarter in which there are no
sales, a negative report that no sales were effected shall be made, reflecting that no royalty
is due and payable to Licensor.
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 9
C. Attorneys' Fees: Licensee shall further pay, as additional compensation
to Licensor hereunder and in addition to all of the sums specified hereinabove, the
reasonable attorneys' fees of Licensor's attorney in connection with the exchange of
correspondence leading up to and the preparation and granting of this License and the
preparation and review of further correspondence and royalty statements and payments in
connection herewith and hereunder, which fees shall not exceed the reasonable fees
charged by Licensor's attorney as "standard hourly rates" to all clients; and Licensee shall
further pay said attorney's out-of-pocket expenses, including but not limited to photocopy
expense, long distance charges, and special (such as Federal Express) mail charges. Such
fees shall be payable upon presentation of statements to Licensee from Licensor's
attorney, which may be rendered in one or more statements, depending upon the time
frame in which the work occurs, both prior to and subsequent to the execution of this
license agreement.
hereto.
D. Minimum Royalties. No minimum annual royalty is applicable
9. Limited Grant:
A. 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. By execution hereof, Licensor indemnifies and
holds the City harmless of, from and against any claim that Licensor has hereby authorized
the City to exercise any right or privilege that the Licensor has heretofore granted
exclusively to another person or entity. The recovery of any damages from Licensor
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 9
under this provision shall be limited to an amount not exceeding future royalties due
Licensor under this license agreement.
B. Performer's Name and/or Likeness: The name and/or likeness of
any performer portraying, live, Buddy Holly, shall not be and is not included in the
definition of "Name", and the use thereof is not licensed herein, nor does the Licensor
claim any rights therein except those expressly set forth herein.
10. odwill: Licensee recognizes the great value of the goodwill associated
with the Name and acknowledges that the Name and all rights therein and goodwill
pertaining thereto, subject only to the grant of other licenses heretofore or hereafter
granted by the Licensor, belong exclusively to the Licensor, and that the Name has a
secondary meaning in the mind of the public.
11. Licensor's Title and Protection of Licensor's Rights: Licensee agrees that
it shall not, during the term of this LICENSE 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. Records: Licensee agrees to keep accurate books of account and records
covering all transactions relating to the License hereby granted, and Licensor and
Licensor's duly authorized representatives shall have the right at all reasonable times
during normal business hours to examine said books of account and records
and all other documents and material in the possession of or under the control of the
Licensee with respect to the subject matter and terms of this LICENSE AGREEMENT.
13. Indemni : Licensee hereby indemnifies Licensor against any and all claims
and suits, damages, judgments, attorney's fees and costs arising out of any claim or lawsuit
LICENSE AGREEN E 17 — MARIA ELENA HOLLY
Page 10
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 souvenirs 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.
14. Public Appearances by Maria Elena Holly: 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. 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. Her
health permitting, and in the absence of a prior commitment, Licensor agrees, for a
reasonable and mutually agreeable appearance fee, to appear and to be present at such
ceremony. 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, plus ground transportation from Licensor's home to Love Field if the flight
emanates out of Love Field, and will provide all of Licensoes 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 Licenwes
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 11
appearance. If Licensoes 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.
15. No Joint Venture or Partnership: Nothing herein contained shall be
construed to place the parties in the relation or partners or joint venturers, and Licensee
shall have no power to obligate or bind Licensor in any manner whatsoever.
16. Assimment 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. The Licensor shall have the right to assign, mortgage or otherwise encumber the
Licensoes 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.
17. Applicable Law: This Agreement is made and shall be construed under the
laws of the State of Texas, particularly Chapter 26 of the Texas Property Code, and the
laws of the United States of America.
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 12
18. Hscellaneous Provisions: None of the terms of this LICENSE
AGREEMENT can be waived or modified except by an express agreement in writing,
signed by Licensor and Licensee. There are no representations, promises, warranties,
covenants or undertakings other than those contained in this LICENSE AGREEMENT,
which represents the entire understanding of the parties. The failure of either party hereto
to enforce, or the delay by either party in enforcing, any of that party's rights under this
LICENSE AGREEMENT shall not be deemed a continuing waiver or a modification
thereof, and either party, may, within the time provided by applicable law, commence
appropriate legal proceedings to enforce any or all of such rights. No person, firm, group
or corporation (whether included in the Name or otherwise) other than the Licensee and
Licensor, shall be deemed to have acquired any rights by reason of anything contained in
this LICENSE AGREEMENT. While this LICENSE AGREEMENT may be executed in
multiple copies, each fully executed copy shall for all purposes be deemed to be the
original hereof, but all of such copies shall be deemed to constitute but one Agreement.
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
Buddy Holly souvenir items 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
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 13
yes, require such artist or vendor to provide a copy of a license from Licensor for such use
of the name. Licensee shall not attempt to obtain any trademark or service mark
registration of a logo of a facility containing or pertinent to Buddy Holly's name.
However, Licensee shall have the right to obtain a trademark or service mark registration
containing or pertinent to Buddy Holly's name as such trademark or service mark would
identify or depict a public facility owned or operated by Licensee which bears the name of
Buddy Holly so long as the application and registration shall disclaim protection of the
name Buddy Holly.
19. Notices. All notices required or permitted by this Agreement shall be given
or made as follows:
If to Licensor: Mrs. Maria Elena Holly # 13 5
P. O. Box 93402
Colleyville, Texas 76034
With Copy to: Shannon Jones, Jr., Attorney
1201 Elm Street, Suite 2500
Dallas, Texas 75270
If to Licensee: City Manager
City of Lubbock
P. O. Box 2000
Lubbock, Texas 79457
20. 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.
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 14
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year first above written.
W„_1-147
DAVID R. I;GSTON,YOR
ATTEST: VV
Betty M. Johnson, City Secretary
APPROVU,D AS TO CONTENT:
/ " / &I , T--
Direct ro ofof
sure
LICENSOR:
MARIA ELENA HOLLY
SHANNON JONES, JR.,
Attorney for Maria Elena Holly
APPROVED AS TO FORM:
nald G. Vandiver, First Assistant City Attorney
DGV:da/dgv14A HOLLY.doc
rev. September 20, 1994
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 15
EXHIBIT A
List of Potential Convention and Tourism Uses of the Name 'Buddy Holly' by the
City of Lubbock as part of a facility name only:
FACILITY SPECIFIC:
Facility brocures
Advertising placed by facility, both electronic and print
Examples: Television
Radio
Trade Publications
EX: BillBoard
Agent and Manager
Aud-Arena Guide
Performance
Trade Show Weekly
Pollstar
Amusement Business
IAAM Directory and Publications
Grammy's Program
CMA Awards Program
American Music Awards Program
TSAE Directory and publications
Chamber of Commerce publications
Newcomers Guide
National Association of Sports Commissions
Directory
EOMI Directory
Cavalcade of Acts and Attractions Directory
Other facility Directories
Texas Highways
Texas Monthly
Telephone Directories
Local Newspapers
Area Newspapers
Exhibit Booth Display to promote use of facility
Other Local, National, and International Magazines,
newspapers, and printed publications
Schedule of Events
Letterhead Stationary/Envelopes
Business Cards
Outdoor/Indoor Electronic Message Centers
Signage on the facility itself (new arena)
Interior signage
Employee Uniforms
Employee nametags
Event Programs
Dedication Plaque
Critic reviews of performances in print publications
Invitations to performances, receptions, or events
Tickets printed to events/Ticket Envelopes
Notepads
Identification of facility equipment
Banners, both interior and exterior
Advertising placed by the Convention and Visitor's Bureau on behalf of the City
of Lubbock, both electronic and print advertising. Examples would include
brochures, Lubbock Travel Guide, Group Tour Manual, Meeting Planners Guide,
etc.
Advertising placed by Promoters/Lessees. Facility has no control over which
media and/or publications that Promoters/Lessees use to advertise an event,
using the name of the facility as the event location. Would include both
electronic and print advertising, posters, flyers, tickets, or anything that would
identify the name of the facility as the location of the event. Promoters/Lessees
will be required to obtain their own license agreements with Mrs. Holly as
needed for promotion or souvenir sales.
MEMORABILIA COLLECTION:
Electronic and Print advertising by City of Lubbock or Visitors and
Convention Bureau in travel, tourism, and special interest publications,
not including photos of the actual collection.
Ex: Texas Monthly
Ladies Home Journal
Woman's Day
Better Homes and Gardens
Midwest Living
Reader's Digest
Adventure Road
West Texas Travel Guide
Southwest Spirit
Rand McNally Road Atlas
Other airline on -board publications
Lubbock Travel Guide
Group Tour Manual
Meeting Planner's Guide
Signage located at the collection location
LICENSE AGREEMENT
THE STATE OF TEXAS §
Resolution No. 4614
Item #21
September 22, 1994
§ KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS §
THIS LICENSE AGREEMENT made as of the 22nd day of September
1994, between MARIA ELENA HOLLY, ("Licensor"), and THE CITY OF LUBBOCK,
TEXAS, (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, effective September 1, 1987, rights of publicity and the descendibility
thereof were codified in Texas when H.B. 834 was passed by both Houses of the Texas
Legislature, signed into law by the Governor of Texas, and enacted as Chapter 26 of
Texas Property Code; and
WHEREAS, on September 29, 1987, Licensor filed in the Office of the Secretary
of State of the State of Texas REGISTRATION OF CLAIM under Section 26.006 of said
Property Code, reflecting that Licensor, as Claimant, was and is the surviving spouse of
Charles Hardin Holley (BUDDY HOLLY), and thus statutorily perfected the rights of
Licensor in and to the Name; and
WHEREAS, Licensee is a Texas Home Rule Municipal Corporation, organized in
1917; and
WHEREAS, Licensee is in the process of obtaining a collection of Buddy Holly
memorabilia with the intent of enhancing the acclaim and knowledge of the contributions
of Buddy Holly to the world of music, with particular emphasis on his roots in Lubbock
and West Texas, by means of displaying said memorabilia in City of Lubbock (Licensee)
facilities; 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, Licensee very much desires to be able to keep the aforementioned
Buddy Holly memorabilia in Lubbock, rather than to have it be sold at international
auction to bidders; and
WHEREAS, the Buddy Holly memorabilia 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, Licensee also may desire to promote the image and memory of
Buddy Holly by naming one or more public buildings or other facilities in his honor from
time to time; and
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 2
WHEREAS, the Licensee believes that having the Buddy Holly memorabilia as a
display attraction for visitors to the City of Lubbock will enhance 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
before the Licensee may use the name, voice, signature, photograph or likeness of Buddy
Holly in memorabilia display and otherwise as herein contemplated, pursuant to Section
26.011 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. Addresses of Parties: The correct mailing address of Licensor is #135,
P. O. Box 93402, Colleyville, Texas 76034, but with copy of all mail to Licensor in
connection with this License to be sent to Shannon Jones, Jr., Passman & Jones, 1201 Elm
Street, Suite 2500, Dallas, Texas 75270. The correct mailing address of Licensee is City
Manager, City of Lubbock, P. O. Box 2000, Lubbock, Texas 79457.
2. Grant of License and Consent:
A. Scope: This License and Consent covers the right, for a period
beginning on the date set forth hereinabove and continuing through February 3, 2009, for
Licensee to display, in one or more facilities owned or leased by the City of Lubbock,
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 3
Texas, and, temporarily, at Texas Tech University Museum (with the Texas Tech
University Museum's agreeing in writing in advance to abide by the terms of this License
Agreement during the temporary period of such display) the aforementioned Buddy Holly
memorabilia for historical and memorial purposes, which display may be accompanied by
incidental sales of souvenirs and related items. Licensee shall also have the right to name
one or more public facilities in the City of Lubbock, Texas, in honor of Buddy Holly
including appropriate signage as contemplated in Exhibit A hereto and which shall be
created in good taste. In addition, Licensee shall also have the right to provide flyers or
other printed materials, radio, video or television coverage, placed, displayed, produced
or published by Licensee itself or by others at the direction of Licensee, describing,
depicting or portraying through the above-described media the display or the
aforementioned public facilities bearing the name of Buddy Holly, 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. A list of permitted
convention, tourism and entertainment advertising uses by the Licensee, which list shall
not be deemed to be comprehensive, but which shall be by way of example only and not
limitation, is attached hereto as Exhibit A and made a part hereof for all intents and
purposes. If any commercial enterprise that is not City -owned, such as hotels, motels,
restaurants, banks or other commercial ventures also desires to place an ad in any
advertising media, and if the name of Buddy Holly is howsoever utilized in such
advertising, then the commercial venturer or venturers must, in each instance, procure a
License from Licensor upon mutually agreeable terms as a condition precedent the
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 4
publication of such advertising. This License to display memorabilia or display or sell
souvenir items is limited to public facilities owned or leased 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, such as, by way of example but
not limitation, a traveling display in other cities promoting Buddy Holly and the City of
Lubbock. It is expressly agreed and understood that, in any building bearing the name of
Buddy Holly, a commercially sponsored enterprise utilizing the name of Buddy Holly in
any way other than as part of the name of the facility must obtain the Licensor's prior
written consent and a separate License Agreement and provision for royalty payments. By
way of example, where a concert held in a Buddy Holly Arena owned or leased by
Licensee, with admission charge made, and with Buddy Holly's name used by the
entertainer, in connection therewith such as a "Buddy Holly Jamboree", a separate License
Agreement would be required between Licensor and the entertainer or promoter and a
royalty would be due and payable to Licensor thereunder. On the other hand, if an
entertainer, a "Joe Smith", were to have a concert in a Buddy Holly Arena owned or
leased by Licensee with no mention made of Buddy Holly in any advertising (other than
mention of the fact that the performance to be held in the Buddy Holly Arena) and with all
advertising pertaining to and only to "Joe Smith", then no separate License with the
entertainer would be required and no royalty would be payable to Licensor in connection
therewith. Licensee is further granted the right and License to sell, in connection with the
display of Buddy Holly memorabilia in any public facility of Licensee, such items as key
chains, T-shirts, postcards and posters depicting Buddy Holly. It is expressly understood
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 5
that no person other than Buddy Holly is to be depicted on such memorabilia without
Licensee's having obtained the express written consent in advance of such other person or
persons, as, for example, members of The Crickets; however, such memorabilia may
depict the City of Lubbock or City of Lubbock public facilities that are now or hereafter
may be named in honor of Buddy Holly.
3. Photographs and Signs: Subject to the rights granted to and the
obligations imposed upon the Licensee in numbered paragraph 2 of this Agreement,
Licensee hereby agrees to post conspicuous signs in, around, and/or leading to any display
of memorabilia of Buddy Holly, 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.
4. Quality Control: Licensee acknowledges that if any articles manufactured
or sold under this License (merchandise) were of inferior quality in design, material or
workmanship, the substantial goodwill which Licensor has built up and now possesses
in the name would be impaired. Accordingly, it is an essential condition of this License,
and Licensee hereby covenants and agrees to use its best efforts to ensure that the articles
covered by this LICENSE AGREEMENT (articles of merchandise) shall be of high
standard and of such quality, style and appearance as shall be reasonably adequate and
suited to their exploitation to the best advantage and to the protection and enhancement of
the Name and the goodwill pertaining thereto; that such articles shall be manufactured,
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 6
sold and distributed in accordance with all applicable Federal, State, and local laws; and
that the policy of sale, distribution and/or exploitation by Licensee shall be of high
standard and to the best advantage of the Name, and that the same shall in no manner
reflect adversely upon the good name of Licensor, of any of Licensor's programs, or of the
Name. True samples of each item of contemplated merchandise shall be submitted to
Licensor, who shall have ten (10) days after receipt to approve or disapprove the item and
if Licensor shall disapprove an item, Licensor shall state the reason for such disapproval in
writing. If the Licensor does not respond to such submission within the stated time
period, the item will be deemed to be approved. In the event the Licensee's vendor holds
a license from Licensor, the product may be sold by the Licensee without product
approval by Licensor or royalty payment to Licensor by Licensee. It is not presently
contemplated by Licensor nor by Licensee, nor is it agreed that any merchandise covered
by this License shall include any product such as food or drink, intended for human
consumption, or soap, shampoo, or a similar product. All T-shirts sold by Licensee under
this License shall be of 50% cotton/50% polyester construction and preshrunk.
5. Territory: It being in the best interest of both the Licensor and the Licensee
to draw visitors from the largest area possible, except as expressly otherwise provided
herein, this License shall therefore 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.
6. Approval: Licensee has been advised and expressly recognizes that,
heretofore, Licensor has granted certain rights to Innovisions, Inc., as the producer of the
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 7
motion picture ultimately named "The Buddy Holly Story" and others. Subject to the
rights granted to and the obligations imposed upon the Licensee in numbered paragraph 2
of this Agreement, this License does not include, and expressly excludes, the right to make
video tapes, television tapes, or motion picture films for portrayal in any media.
7. 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.
8. Royalty and Term of Payment:
A. Rate: Licensee shall pay to Licensor a royalty of ten percent (10%)
of gross sales (exclusive of sales taxes) on each souvenir item sold pursuant to the
provisions of this Agreement.
B. Time of Payment: The royalty provided for herein shall be paid to
Licensor by Licensee quarterly in Dallas County, Texas, within fifteen (15) days after the
end of each calendar quarter, with quarters being deemed to end on March 31, June 30,
September 30 and December 31 of each year. 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 quarter in which there are no
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 8
sales, a negative report that no sales were effected shall be made, reflecting that no royalty
is due and payable to Licensor.
C. Attorneys' Fees: Licensee shall further pay, as additional compensation
to Licensor hereunder and in addition to all of the sums specified hereinabove, the
reasonable attorneys' fees of Licensor's attorney in connection with the exchange of
correspondence leading up to and the preparation and granting of this License and the
preparation and review of further correspondence and royalty statements and payments in
connection herewith and hereunder, which fees shall not exceed the reasonable fees
charged by Licensor's attorney as "standard hourly rates" to all clients; and Licensee shall
further pay said attorney's out-of-pocket expenses, including but not limited to photocopy
expense, long distance charges, and special (such as Federal Express) mail charges. Such
fees shall be payable upon presentation of statements to Licensee from Licensor's
attorney, which may be rendered in one or more statements, depending upon the time
frame in which the work occurs, both prior to and subsequent to the execution of this
license agreement.
hereto.
D. Minimum Royalties. No minimum annual royalty is applicable
9. Limited Grant:
A. 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. By execution hereof, Licensor indemnifies and
holds the City harmless of, from and against any claim that Licensor has hereby authorized
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 9
the City to exercise any right or privilege that the Licensor has heretofore granted
exclusively to another person or entity. The recovery of any damages from Licensor
under this provision shall be limited to an amount not exceeding future royalties due
Licensor under this license agreement.
B. Performer's Name and/or Likeness: The name and/or likeness of
any performer portraying, live, Buddy Holly, shall not be and is not included in the
definition of "Name", and the use thereof is not licensed herein, nor does the Licensor
claim any rights therein except those expressly set forth herein.
10. Goodwill: Licensee recognizes the great value of the goodwill associated
with the Name and acknowledges that the Name and all rights therein and goodwill
pertaining thereto, subject only to the grant of other licenses heretofore or hereafter
granted by the Licensor, belong exclusively to the Licensor, and that the Name has a
secondary meaning in the mind of the public.
11. Licensor's Title and Protection of Licensor's Rights: Licensee agrees that
it shall not, during the term of this LICENSE 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. Records: Licensee agrees to keep accurate books of account and records
covering all transactions relating to the License hereby granted, and Licensor and
Licensoes duly authorized representatives shall have the right at all reasonable times
during normal business hours to examine said books of account and records
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 10
and all other documents and material in the possession of or under the control of the
Licensee with respect to the subject matter and terms of this LICENSE AGREEMENT.
13. Indemni : Licensee hereby indemnifies Licensor 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 souvenirs 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.
14. Public Appearances by Maria Elena Holly: 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. 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. Her
health permitting, and in the absence of a prior commitment, Licensor agrees, for a
reasonable and mutually agreeable appearance fee, to appear and to be present at such
ceremony. 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,
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 11
Texas, plus 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.
15. No Joint Venture or Partnership: Nothing herein contained shall be
construed to place the parties in the relation or partners or joint venturers, and Licensee
shall have no power to obligate or bind Licensor in any manner whatsoever.
16. 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. 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.
17. Applicable Law: This Agreement is made and shall be construed under the
laws of the State of Texas, particularly Chapter 26 of the Texas Property Code, and the
laws of the United States of America.
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 12
18. Miscellaneous Provisions: None of the terms of this LICENSE
AGREEMENT can be waived or modified except by an express agreement in writing,
signed by Licensor and Licensee. There are no representations, promises, warranties,
covenants or undertakings other than those contained in this LICENSE AGREEMENT,
which represents the entire understanding of the parties. The failure of either party hereto
to enforce, or the delay by either party in enforcing, any of that party's rights under this
LICENSE AGREEMENT shall not be deemed a continuing waiver or a modification
thereof, and either party, may, within the time provided by applicable law, commence
appropriate legal proceedings to enforce any or all of such rights. No person, firm, group
or corporation (whether included in the Name or otherwise) other than the Licensee and
Licensor, shall be deemed to have acquired any rights by reason of anything contained in
this LICENSE AGREEMENT. While this LICENSE AGREEMENT may be executed in
multiple copies, each fully executed copy shall for all purposes be deemed to be the
original hereof, but all of such copies shall be deemed to constitute but one Agreement.
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
Buddy Holly souvenir items 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
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 13
yes, require such artist or vendor to provide a copy of a license from Licensor for such use
of the name. Licensee shall not attempt to obtain any trademark or service mark
registration of a logo of a facility containing or pertinent to Buddy Holly's name.
However, Licensee shall have the right to obtain a trademark or service mark registration
containing or pertinent to Buddy Holly's name as such trademark or service mark would
identify or depict a public facility owned or operated by Licensee which bears the name of
Buddy Holly so long as the application and registration shall disclaim protection of the
name Buddy Holly.
19. Notices. All notices required or permitted by this Agreement shall be given
or made as follows:
If to Licensor: Mrs. Maria Elena Holly #135
P. O. Box 93402
Colleyville, Texas 76034
With Copy to: Shannon Jones, Jr., Attorney
1201 Elm Street, Suite 2500
Dallas, Texas 75270
If to Licensee: City Manager
City of Lubbock
P. O. Box 2000
Lubbock, Texas79457
20. 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.
LICENSE AGREEMENT -- MARIA ELENA HOLLY
Page 14
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the day and year first above written.
CITY
MA
ATTEST:
Betty X4. John n, City Secretary
TO CONTENT:
Aliamus,
APPROVED AS TO FORM:
LICENSOR:
G?/'c.c.aJ G7
ELENA AOLLY
SHANNON 7O S, .,
Attorney for Mari Ina Holly
Culture/Leisure
D nald & Vandiver, First Assistant City Attorney
DGV:d&/dgv1/1A HOLLY.doc
rev. September 20, 1994
LICENSE AGREEMENT — MARIA ELENA HOLLY
Page 15
EXHIBIT A
List of Potential Convention and Tourism Uses of the Name 'Buddy Holly' by the
City of Lubbock as part of a facility name only:
FACILITY SPECIFIC:
Facility brocures
Advertising placed by facility, both electronic and print
Examples: Television
Radio
Trade Publications
EX: BillBoard
Agent and Manager
Aud-Arena Guide
Performance
Trade Show Weekly
Pollstar
Amusement Business
[AAM Directory and Publications
Grammy's Program
CMA Awards Program
American Music Awards Program
TSAE Directory and publications
Chamber of Commerce publications
Newcomers Guide
National Association of Sports Commissions
Directory
EOMI Directory
Cavalcade of Acts and Attractions Directory
Other facility Directories
Texas Highways
Texas Monthly
Telephone Directories
Local Newspapers
Area Newspapers
Exhibit Booth Display to promote use of facility
Other Local, National, and International Magazines,
newspapers, and printed publications
Schedule of Events
Letterhead Stationary/Envelopes
Business Cards
Outdoor/Indoor Electronic Message Centers
Signage on the facility itself (new arena)
Interior signage
Employee Uniforms
Employee nametags
Event Programs
Dedication Plaque
Critic reviews of performances in print publications
Invitations to performances, receptions, or events
Tickets printed to eventsJTicket Envelopes
Notepads
Identification of facility equipment
Banners, both interior and exterior
Advertising placed by the Convention and Visitor's Bureau on behalf of the City
of Lubbock, both electronic and print advertising. Examples would include
brochures, Lubbock Travel Guide, Group Tour Manual, Meeting Planners Guide,
etc.
Advertising placed by Promoters/Lessees, Facility has no control over which
media and/or publications that Promoters/Lessees use to advertise an event,
using the name of the facility as the event location. Would include both
electronic and print advertising, posters, flyers, tickets, or anything that would
identify the name of the facility as the location of the event. Promoters/Lessees
will be required to obtain their own license agreements with Mrs. Holly as
needed for promotion or souvenir sales.
MEMORABILIA COLLECTION:
Electronic and Print advertising by City of Lubbock or Visitors and
Convention Bureau in travel, tourism, and special interest publications,
not including photos of the actual collection.
Ex: Texas Monthly
Ladies Home Journal
Woman's Day
Better Homes and Gardens
Midwest Living
Reader's Digest
Adventure Road
West Texas Travel Guide
Southwest Spirit
Rand McNally Road Atlas
Other airline on -board publications
Lubbock Travel Guide
Group Tour Manual
Meeting Planner's Guide
Signage located at the collection location