HomeMy WebLinkAboutAndrew Heckman - Agreement and Release, obtain all rights to the Caricature Map of FresnoAGREEMENT AND RELEASE
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THIS AGREEMENT AND RELEASE is made and entered into effective the ay of
July, 2013, by and between the CITY OF FRESNO, a California municipal corporation
(hereinafter referred to as "CITY"), and Andrew Heckman, an individual (hereinafter referred to
as "HECKMAN").
RECITALS
WHEREAS, CITY desires to obtain all rights to the caricature map of Fresno, California
and surrounding areas designed by HECKMAN in substantially the form attached hereto as
Exhibit A, except that the watermark shall be removed and the title "Fresno- The Heart of
California" shall be added to the top (the Map); and
WHEREAS, HECKMAN is a graphic designer and hereby represents that he has
personally designed and produced such Map and is the sole and rightful owner of any and all
rights to said Map;
WHEREAS, this Agreement and Release sets forth the terms and conditions under which
HECKMAN shall receive final payment for such Map from Airports Department funds in
exchange for physical and electronic delivery of said Map to CITY and the full release by
FIECKMAN of any and all intellectual property rights he has or may have in the Map, as well as
the full release by the parties of any and all claims they may have related to the Map or creation
thereof; and
WHEREAS, HECKMAN acknowledges receipt of the initial FIVE THOUSAND
DOLLARS ($5,OOO¡ from CITY on June 22,2012, and further acknowledges receipt of the sum
of, an additional TEN THOUSAND DOLLARS ($10,000.00);
WHEREAS, HECKMAN and City agree as a further consideration and inducement for
this Agreement and Release that it shall apply to all unknown and unanticipated injuries and
damages resulting from said events, as described in HECKMAN'S letter to Ronda Jorn dated
June 20, 2013, as well as those now disclosed.
HECKMAN and City hereby agrees to the special considerations which follow:
AGREEMENT AND RELEASE
1. HECKMAN shall immediately provide CITY with one physical set of accepted
reproducible tracings and documents for the Map. In addition, HECKMAN shall provide CITY
with two complete sets of CAD/System disk files of drawings and complete disk fîles of
specifications in the following formats: TIFF and JPEG.
AGREEMENT & RELEASE 7.9.13
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2. Any reports, information, or other data prepared or assembled by HECKMAN
pursuant to creation of the map or pursuant to this Agreement and Release shall not be made
available to any individual or organization by HECKMAN without the prior written approval of
CITY. HECKMAN shall not, without the prior written consent of CITY, disclose to anyone any
Confidential Information. The term Confidential Information for the purposes of this Agreement
and Release shall include all proprietary and confidential information of CITY, including but not
limited to business plans, marketing plans, financial information, designs, drawings,
specifications, materials, compilations, documents, instruments, models, source or object codes
and other information disclosed or submitted, orally, in writing, or by any other medium or
media. All Confidential Information shall be and remain confidential and proprietary in CITY.
3. Any and all original sketches, pencil tracings of working drawings, plans,
computations, specifications, computer disk files, writings, artwork and other documents
prepared or provided by HECI(MAN pursuant to creation of the Map or pursuant to this
Agreement and Release, and all data, intellectual property rights and copyrights related to such
Map, shall be for the benefit of City. City reserves a royalty-free, nonexclusive, and irrevocable
license to reproduce, publish or otherwise use, and to authorize others to use, the copyright in the
Map and any related work developed pursuant to the creation of such Map or under this Agreement
and Release.
4. HECKMAN shall not reproduce (such as photographs and prints), duplicate,
distribute reproductions, or incorporate into any trademark or service mark, the Map or any portion
thereof without the prior written consent of CITY. Any rights of HECKMAN in the Map terminate
upon the death of IIECKMAN and do not extend to HECKMAN'S heirs, successors or assigns.
5. Title to the Map shall pass to CITY upon execution of this Agreement and Release,
and HECKMAN agrees to execute any other documents necessary to perfect CITY's title or
copyright. CITY reserves the right to reproduce, donate, transfer or sell the Map or any portion
thereof. City shall have the exclusive right to publicly display the Map and shall have a license to
reproduce (such as photographs and prints) or create three-dimensional reproductions of the Map for
any purpose (including, but not limited to, books, slides, postcards, film, Intemet sites, additional
maps, tee shirts, and,/or reproductions for advertising, and other media). CITY reserves the right to
modiff the Map at any time. CITY may incorporate the Map into any trademark or service mark to
be utilized by City to register the same in accordance with Federal, state or local law.
6. HECKMAN and City forever release and discharge each other, and by these
presents do, for themselves, their heirs, executors, administrators and assigns, hereby forever and
fully release, acquit and discharge each other, and their administrators, directors, officers,
managers, agents, servants, employees, successors, assigns, and attorneys; and any and all other
persons, firms or corporations who are or can ever in any way be liable to the undersigneds; of
and from all claims, demands, damages, actions and causes of action of every kind and nature,
AGREEMENT & RELEASE 7.9.13
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including, but not limited to, attorney's fees, costs and expenses, known or unknown, existing,
claimed to exist, or which can ever hereafter arise out of or result from or in connection with the
certain events which occurred in the City of Fresno, County of Fresno, State of Califomia, which
are related to the Map or the creation thereof; and as alleged in the letter from Andrew Heckman
to Rhonda Jorn, dated June 20, 2013.
7. Any liability for all such claims is denied by the parties herein released, and this
final Agreement and Release shall never be treated as an admission of liability or responsibility
at any time for any purpose.
8. The provisions of section 1542 of the Civil Code of the State of California are
hereby expressly waived, and the undersigneds understand that said section provides:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his or her favor at the time of executing the
release, which if known by him or her must have materially affected his or
her settlement with the debtor.
9. HECKMAN has been fully advised and understands that the injuries andlor
damages sustained are of such character that the full extent and type of damages and/or injuries
are not known at the date hereof. It is further understood that said damages andlor injuries,
whether known or unknown at the date hereof, might possibly become progressively worse, and
that as a result thereof further damage may be sustained by him; nevertheless, HECKMAN
desires by these presents to forever and fully release and discharge the parties hereinabove
released and discharged, and understands that by the execution of these presents no further
claims may ever be asserted by HECKMAN, his heirs or assigns.
10. HECKMAN hereby agrees to defend, indemnify and hold the City released and
discharged, harmless for any damages, loss or claims resulting from any and all lien, copyright,
and/or intellectual property claims (past, present or future), including, but not limited to, any and
all claims by any artist, graphic designer, cartographer, compensation carcier, medical care
provider, medical carrier, retirement board or employer (past or present), which relate to or result
from said events as described above.
1 1. In the event legal action is brought to enforce any provision of this Agreement
and Release, save and except subsequent claims for indemnity andlot contribution, the prevailing
party shall be entitled to recover its reasonable attorneys' fees and costs ofsuit.
12. HECKMAN hereby authorizes and directs that payment of the sum of ten
thousand dollars ($10,000) be made by check or draft payable to Andrew Heckman.
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13. Each of the parties hereby represents, warrants and agrees that it has received or
has had an opportunity to engage independent legal advice from an attorney with respect to
meaning of California Civil Code Section 1542, and the effect of the provisions of this
Agreement and Release.
14. The individuals who execute this Agreement and Release hereby expressly
represent that they have the authority to execute this Agreement and Release, and have the
authority to bind the party on whose behalf they are signing.
15. This Agreement and Release shall be governed by, and construed and enforced in
accordance with, the laws of the State of California, excluding, however, any conflict of laws
rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any
action regarding the enforcement or interpretation of this Agreement and Release and any rights
and duties hereunder shall be Fresno County, Califomia.
Dated: ì-'lf-13
Dated:CITY OF FRESNO,
APPROVED AS TO FORM:
City Attorney
FRESNO CITY ATTORNEY'S OFFICE
Attachments:
"Exhibit A" Caricature Map "Fresno- The Heart of California"
ATTEST:
WONNE SPENCE, CIIC
By
Ro ngel
RisKManager
CITY
AGREEMENT & RELEASE 7.9.13
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