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HomeMy WebLinkAbout2008-3045 - Ordinance - 02/14/2008r ORDINANCE NO. 3045 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, APPROVING A LICENSE AGREEMENT BETWEEN THE CITY OF COLLEGE STATION AND TEXAS A &M UNIVERSITY FOR THE USE OF ONE OR MORE OF THE UNIVERSITY'S LICENSED MARKS FOR THE AGGIE FIELD OF HONOR PORTION OF THE MEMORIAL CEMETERY OF COLLEGE STATION. WHEREAS, the City of College Station ( "City ") is developing a portion of the Memorial Cemetery of College Station as the Aggie Field of Honor; and WHEREAS, in conjunction with this use the City desires to enter into a License Agreement with Texas A &M University to use one or more of the University's licensed marks as part of the Aggie Field of Honor component of the cemetery; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the City Council hereby finds it to be in the best interests of its citizens to enter into that one certain License Agreement with Texas A &M University for the use of one or more of its university licensed marks for the Aggie Field of Honor portion of the Memorial Cemetery of College Station and marketing relating thereto. A copy of said License Agreement is attached as Exhibit "A" and incorporated herein by reference. PART 2: That this ordinance shall take effect immediately from and after its passage. ADOPTED this 14th day of T':TEST: City Secretary February A.D. 2008, APPROVED: MAYOR APPROVED: "E fijne� } MairAbn Pbvy ll VERI tla ticity with A r�Nv r' � # City Attorney 110 ORDINANCE NO. 3045 Page 2 EXHIBIT "A" C: \DOCUME- I \CHOOKS- I.CST\LOCAIS -I \Temp \Ordinance.doc2 /9/20083:14:51 PM 111 LICENSE AGREEMENT This License Agreement ( "License Agreement ") is entered between the parties° hereto, who agree as follows in consideration of the mutual contained herein: PARTIES 1.1 Texas A &M University (hereinafter "LICENSOR ") is an institution of higher education existing under the laws of the State of Texas, having an address of 1180 TAMU, College Station, Texas 78743 -1180. 1.2 The .City of College Station, Texas (1�fter., "LICENSEE ") is a home -rule municipality under the laws of the State of Texas, ,ha an a &tress of P.O. Box 9960, College Station, Texas 77842. Y; 1.3 The LICENSOR and LICENSE13 e the parties to this License Agreement. 2. BACKGROUND 2.1 LICENSOR and LICI1. .' parties t6, ,eel Estate Contract dated May 24, } ��: 2006 (the "Real Estate Contract "), Ad uari j j hich LICE ` SOR granted and conveyed to LICENSEE by Special Warranty Deed ed Ju',2006 (fh ), recorded in the Real use as Property (tl>nun cipayn} \j \ \ \ \ert}ii Brazos County, Texas, for �l 2.2 The Read;Mate �tract and t� Deed provided, among other things, that a portion ofthe;Municipal d t tet be,usec "an "Aggie Field of Honor" for the interment of studer} %�ents'a � faculfycas. &M University, their families and other friends` "o:fhe university „accorce with r�flopted by LICENSEE. 2.Y : :r, The Real Este .Contr” ;and Deed further provided, among other things, that LICENSOR ww;60ld grant to LirC, EE y separate agreement, exclusively in connection with the "Aggie Field p,.Honor," a rFOp= exclusive license (i) to use "Aggie" in the name "Aggie Field of Honor and (ii) ;use such, t her protected names, logos, trademarks, and other identifying marks as the parties mdy_agreupon, without cost to LICENSEE. 2.4 LICENSEE recognizes the goodwill appurtenant to the use and /or ownership of the protected names, logos, trademarks and other identifying marks and desires to obtain a license to utilize them in connection with the "Aggie Field of Honor ". LICENSOR is willing to grant such a license under the terms and conditions of this License Agreement. Prepared b% Assistant General Counsel College Station Municipal Cemeter, Legal Files 2005-0010322 n 12208 -TVC 112 3. DEFINITIONS 1!, 3.1 MARKS includes names, trademarks and service marks. 3.2 LICENSE means the license set forth in this License Agreement. 3.3 LICENSED MARKS means those MARKS identified in Attachment A. 3.4 LICENSED USE means the right (i) to use "Aggie" in the name "Aggie Field of Honor ", and (ii) to use any of the LICENSED MARKS in Attachment A solely in connection with the Municipal Cemetery, and subject to the terms and conditions of this License Agreement. 3.5 TERRITORY means that portion of tke :.IV1icipal Cemetery required by the Deed to be used by LICENSEE as an "Aggie Field ;od` 4 nor `6 isting of not less than twenty (20) acres. 3.6 EFFECTIVE DATE means the * date on which both �iaxties have signed this License Agreement. ' :. 3.7 TERM means the Metive period d .t) s License Agreement, which shall commence on the EFFECTIVE DA*�fi hall contin6i *r so long as LICENSEE complies ..a with the restrictive covenants contained`*the"D&d 3.8 QUALI,�jji3i.� specific��y, defirLdi�ction 1-'1 hereof. 4. LICENSE G 4.1 u:bject to tai "'erf%ihitdcndition ° , ;this License A reement, LICENSOR ants :, : g g� to LICE the non- exclavve rig- hf,end license to utilize the "ATM" Mark (see Attachment X R A) in th`IRRITORY sia :y in c8htection with the LICENSED USE during the TERM hereof, at the cation and in <;tlae manner" shown on Attachment C (monumental concrete form), (b) the non - exclusive right and license to use the "ATM" Mark (see Attachment A) as incorporated into the czgg "1,e'Field of Honor" Mark (see Attachment B) in the TERRITORY solely in connection with the'LICENSED USE during the TERM hereof, at the locations and in the manner shown on Attachment C, (c) the non - exclusive right and license to use the "ATM" Mark (see Attachment A) as part of the "Aggie Field of Honor" Mark (see Attachment B) in media intended for general distribution or on promotional materials distributed outside the TERRITORY, and .'r 2 Prepared b% Assistant General Counsel College Station Municipal Cennelere Legal Files 2005-X)10322 X12208 -NC 113 (d) the non - exclusive right and license to use the "Muster" Mark (see Attachment A) in the TERRITORY solely in connection with the LICENSED USE during the TERM hereof, at the locations and in the manner shown on Attachment C. _ 4.2 Attachment C is the approved plan for the use of the LICENSED MARKS in the TERRITORY. 4.3 Notwithstanding the foregoing, LICENSEE may use photographic, real images of actual improvements in the Aggie Field of Honor in media intended for general distribution or on promotional materials distributed outside the TERRITORY. 5. CONSIDERATION This LICENSE is granted pursuant to the terrris%of the \ V' 1;:_Estate Contract and the Deed and no further consideration shall be payable by LTCI✓NSEE to LICNSOR. 6. TERMINATION 6.1 LICENSEE may terminate the LIC81WE g. ,4inted under this U��` Agreement at any time without cause after serv44g upon LICENSO -ane (1) month's Nof'ice of Intent to Terminate. In such event, the LIC? ISU granted undithis License Agreement shall be automatically terminated one (1) montt% : :s yice by LfftNSEE of the Notice of Intent to Terminate. is \\ 6.2 Unle. ;' ner t�ri "ipated puf PAT,r ions of this License Agreement, •_: :' the LICENSE granted�li er this L�li�ense Agreeri3�fft shall remdih in effect throughout the TERM .� >: described in Section 3.1`666ve. 7. Eli �T O;E.PIRkTf10I OR` I IIMINATION / Upon expii�'on or teination of this License Agreement, all licensed rights granted t I ENSEE heredfidor shall h e, and LICENSEE will refrain from further use of the LICENSED N KS, or any`'friark or nariie confusingly similar to the LICENSED MARKS, in connection with unicipal Cemetery. 7.2 Upon e iration or termination of this License Agreement, LICENSEE shall not operate the Municipal C� in any manner that would falsely suggest to the public that this License Agreement is still in force. 8. PERSONAL LICENSE 8.1 The LICENSE granted to LICENSEE is personal, and no rights hereunder may be transferred by LICENSEE without the express written approval of LICENSOR. 8.2 LICENSEE shall grant no sublicenses under this License Agreement. 3 Prepared b� Assistant General Counsel College Slation Municipal Cemelen Legal Files 2005 -W 10322 01220% -TVC 114 9. GOODWILL IN LICENSED MARKS 9.1 LICENSEE agrees that the LICENSED MARKS have goodwill in the minds of . the consuming public. LICENSEE agrees that such goodwill should be protected and enhanced and, toward this end, LICENSEE shall not during the TERM or thereafter: (a) attack LICENSOR's ownership of the LICENSED MARKS; (b) offer for sale any merchandise bearing any of the LICENSED MARKS; or (c) apply to register or maintain any appli MARKS. 9.2 Al use by LICENSEE of the LICENSOR. 9.3 In order to facilitate protection media intended for general public distribution agrees to provide to LICENSOR for approv accordance with Section 10.2. ion of the LICENSED GEftD I4I S inures to the benefit of the "Aggie Field of Honor" Mark in print tl:; i n any,ptomotional 'rnaterials, LICENSEE :< ;ttplprt..edia and promotional materials in 9.4 LICENSEE agrees to cozj bra ei LI the LICENSED MARKS Against others''? prow ing', uses of which LICENS es aware; t0114 by eg actions against allego 11, singe Au -hin the " 10. QUALITY CONTROL goodw#J/ sociated v Aftem, markers n monuments itstgi Cemetery,` 4articularly Etta: or workmansl ''a`,the substantifi impaired. Accordingly, LICEN design and shall b6%,, fined in the enforcement of rights in 1P, . with notice of unauthorized 'CCENSOR's expense, in any se the" ` MARKS in a manner that will foster the $FNSEE owledges that if any signs, displays, boundary 3�Nssed by LICENSEE in connection with the Municipal ie T d.of Honor, were of inferior quality in design, material Awifft�hich LICENSOR possesses in the MARKS would be agrees that all such uses shall be of quality workmanship and at state at all times. 10.2 To assistl3c SOR in controlling the manner of use of the "Aggie Field of Honor" Mark (which incorporates LICENSOR'S "ATM" Mark), outside the TERRITORY as permitted in Section 4, and in controlling the quality of any such usage, LICENSEE shall, before it uses the "Aggie Field of Honor" Mark in any media intended for general distribution or on promotional materials furnish to LICENSOR, free of cost, for its approval, a sample 6'f each such use of the "Aggie Field of Honor" Mark. The samples required in this Section shall be provided to LICENSOR by mailing, emailing, or shipping them, postage or shipping costs prepaid, to: . iil 4 Prepared b)' Assistant General Counsel College Station Municipal Centel — Legal Files 2005- 1x110322 012211% -NC 115 Chief Marketing Officer Texas A &M University 1180 TAMU College Station, Texas 77843 -1180 LICENSOR shall have five (5) business days from receipt of each new sample of use in connection with the "Aggie Field of Honor" Mark in which to reject the sample. In absence of rejection, or upon earlier written acceptance, the sample shall be deemed as accepted as an example of the quality for that use of the "Aggie Field of Honor" Mark. LICENSOR's pre - approval shall not be unreasonably withheld (by way of example, and not limitation of possible grounds for withholding approval, it shall be granted unless��NSEE's contemplated use is in poor taste or has a negative impact on LICENSOR's ir"'' e4 Once a proposed use has been approved, it may be used thereafter throughout the TEI VL,r 'Itb6i. t additional approval. 11. MARKING 11.1 LICENSEE agrees that it vvrll We the LICENSED KS in a manner as specified from time to time in writing by LICENI to indicate the right LICENSOR in the LICENSED MARKS, including registration status:'=` t 'fTCENSED MAIZ S and that the LICENSED MARKS are used nurstl'ant to_ license. (a) The "ATM" Mark incd Arafdzl � the " 4"%Vleld of Honor" Mark must include the registration symbol :. %� '\\ \'� (b) The >olo O WN atf � ution sta I �fne: >4 st b ;,uded in a conspicuous manner and in a prominent j�l" (for ex \ple on a ';, ite) on or near the large ATM Mark in the central circle shown on'th -h side oft 7 -, [an attached as Attachment C: "The "ATM trademark is a-:,trademarlC %t`;;, "' Un�sity and its use is pursuant to a license �fta Following `es�trat�o� LICENSOR, LICENSOR may require the following attribution sa2sment be plac in a co" ,icuous manner on a plaque or sign in proximity to the :; .:. "Muster" Mark, "The "Mustet�?�lrademar`is a trademark of Texas A &M University and its use is pursuant to a Iicer►se agreement with the university. 11.2 If LICE1';1SEE;iases the "Aggie Field of Honor" Mark on its website, it will use :, the trademark notice will make the Attribution Statement described in Section H.1 above in a small, legible font footnote or bottom -of -page disclosure. The disclosure will appear on any page where the "Aggie Field of Honor" Mark is a significant feature and on the legal disclosure /disclaimer page of the website. The "Aggie Field of Honor" Mark is considered to be a "significant feature" if - it is used in a manner that distinguishes it from other printed information on the page, such as by differing larger font, larger size, or color). if the "Aggie Field of Honor" Mark is used in text on the website, no trademark notice or footnote disclosure is required, but the "Aggie Field of Honor" Mark will be set off in quotation marks or in all caps. Prepared b. Assislanl General Counsel College Slauon Municipal Cemelen Legal Files 2016 - 10322 1112200 -NC W 11.3 If LICENSEE uses the "Aggie Field of Honor" Mark on print media intended for general distribution or in any promotional materials, LICENSEE will use the trademark notice ("e") on the "ATM" Mark. Ilk. 12. INDEMNITY/HOLD HARMLESS 12.1 LICENSEE agrees that it is wholly responsible for the LICENSED USE in connection with the Municipal Cemetery. 12.2 To the extent permitted by the Constitution . 44d laws of the State of Texas, LICENSEE indemnifies and holds harmless LICENSOR atjd.-:Aio officers, employees, attorneys, and agents thereof, from any claims, demands, causes- ,�oy action, and damages, including reasonable attorney's fees, caused by or arising out oftise"b" X�JJCENSEE of any LICENSED MARK, including without limitation, claims or actions16r pate! r copyright infringement. 12.3 To the extent permitted by t h 6AQ " nstitution and I` the State of Texas, A LICENSOR indemnifies and holds harmless Lj and the offic loyees, attorneys, and agents thereof, from any claims, demand causes off, action, 9 a es, including reasonable attorney's fees, caused by or arising odt'bb`f usjh1 e LICE �.,�",y LICENSED MARK, including without or actions P , ,f6r4`;fttent or copyright iii ingement. X 13. NOTICES/ OPPORTUNITY F C k UR E,� 13.1 Except i id d in Sect or ddffionds required to be made or t r%via email and shall be deemed served when receive permitted under this��% e e f n i'" e folio i i City ager liege Station exas Avenue P. O. Box 9960 College Station, Texas 77842 City Attorney 1101 Texas Avenue College Station, Texas 77840 Chief Marketing Officer Texas A&M University 1180 TAMU College Station, Texas 77843-1180 .ii Prepared b� Assistant General Counsel 6 Colle 5(anon Municipal Cerneien Legal Files 200i-(X)10322 012208-TVC 117 If to,tbp,;L-j.CENSEM>�.\. 2, A ' a copy to: If to LICENSOR: City ager liege Station exas Avenue P. O. Box 9960 College Station, Texas 77842 City Attorney 1101 Texas Avenue College Station, Texas 77840 Chief Marketing Officer Texas A&M University 1180 TAMU College Station, Texas 77843-1180 .ii Prepared b� Assistant General Counsel 6 Colle 5(anon Municipal Cerneien Legal Files 200i-(X)10322 012208-TVC 117 with a copy to: Office of General Counsel The Texas A &M University System Texas A &M System Building,: Suite 2079 200 Technology Way College Station, Texas 77840 or to such other address as either party may from time to time designate in writing. 13.2 Opportunity for Cure /Mediation. If either party believes that the other party is in default or material violation of this License Agreement, such party shall provide notice in writing to the other party specifying the alleged violation within,jbirty (30) days of gaining actual knowledge of the alleged violation and specify a reasoriat le means for curing such violation. Failure to give notice of an alleged violation shall note consfijute waiver of that violation unless the offended party has actual knowledge of the allege&/* iolatio € %Moreover, waiver with regard to one violation shall not constitute waiver of subsequent violations;;:: The allegedly offending party shall use; best efforts to cure fltrceived violation as soon as possible, but will, in any event, immediately (within..fve (5) bus ass days of receipt of notice) contest the alleged violation,,as provided bet 06 the alleged id tion within no more than twenty (20) days of recoipl tfnotice. If tlie,alegedly offending party opts to contest the allegation of a violation, it shall j r�?Yide�notice of its' dt�4greement with the alleged violation within five (5) business days of receipt %qf nofiie. q the alle6 violation and explain the grounds for such disagreement. Similarly, if curWis�attem(ted at►d the d ti l edly offended party does not believe that the cure ; ' ° rent, the allegedly, , \ part ;hall provide notice of the insufficiency of cure'n i'(' busines5day of denting that cure was, in its opinion, insufficient. The p� ti ;desigriet�4def n,Sectio 3.1. or other representatives identified under Section 9' %�; f >to; q. er by-t'j 1J., e or: eTSOn.within ten (10) business days of the sending of eitllexfit�otices of cI:eemet a noticed -.the insufficiency to cure to attempt to resolve ,.:<:. the disa :` bnent. If the t�s are 6p #e le to reach agreement regarding resolution of the alleged violation fi in said ten (H .usines `21ays, then the parties agree to participate in mediation concerning thbklIeged violatiot within forty -five (45) days of the date of sending of the notice of disagreement witYi;tkae allegatiotiof violation or of the notice of insufficiency of cure, as the case shall be. The media`(t'n;shall be;cohducted before a mediator mutually agreed to by the parties. If the parties are unable'to'<agree,upon a single mediator, each party shall select a neutral mediator, and the mediation shall b��tofiducted before the two selected mediators as neutral co- mediators. If the parties are unable to agree upon the time and /or place for the mediation, it shall be determined by the mediator(s). The above time periods may be extended by agreement of the parties. The parties shall share evenly the costs of the mediator(s). Neither party shall file suit without first providing the above - required notice and opportunity for cure. While the parties agree to be generally guided by the mediation process, if no agreement is reached in mediation, the allegedly offended party may pursue whatever claims or remedies it believes are available to it under this License Agreement; the other party may assert whatever defenses it believes are available to it, and both parties reserve all of t0ir rights under this License Agreement. Prepared b� Assis(anl General Counsel College Station Municipal Ceme(er, Legal Files 2005 - (X)10322 012208 -NC 118 14. STATUS OF PARTIES This License Agrement is not intended to create, and shall not he interpreted or construed as creating, a partnership, joint venture. franchise. agency, employment. maeter and servant, or similar relationship between LICENSOR and LICENSEE, and no representation to the contrary shall be binding upon LICENSOR. 15. BINDING EFFECT This License Agreement shall be binding upon and inure to the benefit of LICENSOR and LICENSEE and, subject to Section 8.1 above, their respecive successors and assigns. 16. LAW GOVERNING is THIS LICENSE AGREEMENT SHALL jR ALL PUR?OSES BE GOVERNED BY AND INTERPRETED AND ENFORCED IN... %CORDANCE Wifli,THE LAWS OF THE STATE OF TEXAS. ;; 17. MISCELLANEOUS 17.1 The provisions of th sU'L bo- seAgreemefi e severable, and if any provision :. shall be held illegal, invalid, or unenforable >t j�h hol not affect the legality, validity, or enforceability of any other provision::^Any sucK inv, or unenforceable provision shall be deemed strick ;it, had neve��een \ e i1 in tl1t License Agreement, but all other provisions shaijnue iri: >11 force a.e` ,. ,.,:,:, >: . 17.2 This Lic6'h§e Agreq,,\h ffibrit may not /e,amended, modified, or rescinded except by a written agreetne i Lfl' %, OR.and L E NSEE. EXECUTED in duplicaM- prigina *is ? %%: " day of 2008, by LICENSOR, TEXAS A &M UNIVERSITY >;< By. ELSA MURANO President 8 Prepared b% Assistant General Counsel College Sianon Municipal Cemeten Legal Files 2005 10322 012211% -7VC 119 RECOMMEND APPROVAL: J ASON D. COOK Vice President for Marketing and Communications Texas A&M University STEVEN B.M00RE Chief Marketing Officer Texs» »M University APPRO AS TO FORM: TIMOTHY V COFFRY 6 Assistant General Co �e ƒ Office of General Coun" ko� The Texas �A M,:2&cq� ��t : :Y; , ; \ ^ , \ £X£CU,Ep in dulB2 /04 62 ElCENSEg . t � s% ` ^ day of 2008, by CITY OF COLLEGE STATION By BEN WHITE Mayor 9 .o.\ Lega + a,m, 01—e 120 � � \ § y � < \« yy � s% ` ^ day of 2008, by CITY OF COLLEGE STATION By BEN WHITE Mayor 9 .o.\ Lega + a,m, 01—e 120 § y � < 2008, by CITY OF COLLEGE STATION By BEN WHITE Mayor 9 .o.\ Lega + a,m, 01—e 120 ATTEST: C§> Secretary APPROVED: . ,., . � l0 Prepar // Geneml Counsel mw _a,0322 m_— e 121 C� n N D --I fl+ rt lk_. Attachment "A" - Muster Logo Page 2 of 2 =k - 1 P-1 r N A M r, m < i —i—f rdr Attachment "B" "Aggie Field of Honor" Mark s.- r ^ r t : `•i =t'; _ r `Ka! p v„ D va -* � v s`z 0 z 0 a Z m x `::,lye- ♦ ;ti. ^' f.9: ��' ��.:' ='fo •1:'L k `r, ' ��':w .. .� � - `v`- • -a... �.al \?(:e?4•`�va ° ^ F'?ai: S.j� . :2':,, �'='�`� 'f:. TW A t .' now W •'oC, l~- YSjgTZ S:, y n?=:� , c -P r. 7' A: : = e5. < <�. ' .�<.< f :t as IN SIM µ. kra I AGGIE FIELD OF HONOR SAYINGS AND SYMBOLS ATM logo Spirit Gato Monumental concrete form, raised and tilted with the bottom lower portion facing the central plaza, roughly 32' by 32' fn plan, and approx. 6 at the highest point above the spirit gate plaza level. City of College Station Logo Entrance Gate Left Gate 4' diameter metal medallion secured to gate. (Location 11) Columns flanking entrance to North Field. Right side smaller column. 2' diameter Circular medallion secured to stone face. (Location 18) Aggle field of Honor Seat Entrance Gate Right Gate 4' diameter metal medallion secured to gate. (Location 12) Spirit Gate Back of raised /tilted portion of the monumental 4 T" on the left side (when facing the back of the 4 T') engraved metal secured to concrete face. (Location 4) Columns flanking entrance to East, West, and South Fields. Right side smaller column, 2' diameter circular medallion secured to stone face. (Locations 14, 16, 20) Aggle Ring Crest Spirit Gate Back of raisedltilted portion of the monumental "T' on the right side (when facing the back of the "T') engraved metal secured to concrete face. (Location 6) Aggle Columbarium Engraved into concrete floor at center point of radial coiumbarium wall. 5' diameter. (Location 2) Aggle Muster Seat Spirit Gate Central raised location between the steps leading to the walkway around the raised block ATMs. (Location 7) Aggie Coiumbarium Left side smaller column. 2' diameter circular medallion secured to stone face. (Location 1) Attachment "C" Page 2 & 3 "We are the Aggies, the Aggtes are Vice." Spirit Gate _ Back of raised.itifled nortion of the monuimentai-° ; ` ire the center. Engraved metal secured to concrete face. (Location 5) "Softly call the Muster, Let Cornrade Answer, Here?" by Dr. John Ashton, Class 1906 Aggie Columbarium Portion of muster description. Right side smaller column. 2' diameter circular medallion secured to stone face. (Location 3) Spirit Gate First stone "section" of perimeter wall on the left and right sides. 2' plaque secured to stone face. (Location B) _.