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HomeMy WebLinkAboutC-2767•. 4 THIS AGREEMENT made and entered into as of th day of October, 2012, by and between Margaux Gibson- Viera, residing at 3663 Mount Robidoux Drive, Riverside, California 92501, and Heather Gibson, residing at 149 East Altadena Drive, Altadena, CA 91001, ( "Donors" or individually "Donor ") and the City of Arcadia ( "City "), a municipal corporation, having an office at 240 West Huntington Drive, Arcadia, California 91007. RECITALS WHEREAS, City is a municipality of the State of California and the contribution will constitute a "charitable contribution" within the meaning of Section 170(c)(1) of the Internal Revenue Code of 1986, as amended (the "Code "), and WHEREAS, the Donors each own a respective fifty percent (50 %) ownership interest in the work of art commissioned and described as follows; A nine (9) foot bronze statue of Elias Jackson "Lucky" Baldwin, the founder and first mayor of the City of Arcadia (the "Work "). WHEREAS, Donors wish to loan the Work to the City for public use and display for the interim period of time until such time as Donors have owned the Work for a period of one (1) year and one (1) day, and WHEREAS, at the end of the interim loan period of time Donors wish to donate and contribute the Work to City and City wishes to accept such donation, and WHEREAS, the City has agreed to display the Work for public use and enjoyment, and to accept the gift for such purposes and on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto wish to specify the timing, conditions, and terms of the interim loan and subsequent donation of the Work as follows: Upon artist's completion of the Work and Donors' completion of the purchase of the Work, the Donors shall transfer the Work to the City and the City shall accept the Work on an interim loan basis. The period of the loan shall begin on the date of the City's receipt of possession of the Work, and shall continue only until such time as the Donors have owned the Work for a period of time which is no later than one (1) year and one (1) day from the date that the Donors' joint and concurrent purchase of the Work was completed. 2. Pledge of Work, Donation and Acceptance a. Donors agree to donate, convey, and transfer to City, and City agrees to receive and accept from Donors, all of Donors' right, title and interest in and to the Work subject to the terms, conditions, and provisions hereof. b. Donors hereby pledge (the "Pledge ") to transfer all of their respective title and ownership of the Work to the City of Arcadia as a charitable gift in the form of a Deed of Gift (attached as Schedule A and incorporated by reference herein) on the date set forth in Paragraph 1 above. Donors agree that this Pledge shall extend to and be binding upon each of their respective executors, administrators, heirs and assigns. c. This Pledge is an express and definite commitment and Donors each understand that the City is relying on and may continue to rely on this Pledge in a variety of ways, including, without limitation, i) the City's decision not to acquire other works of art based on the expectation of receiving title to the 'Work, ii) the City's ability to snake this Pledge known to others in order to encourage them to make similar commitments, and iii) the City taking or failing to take other actions in reliance upon this Pledge. d. Notwithstanding any other provision set forth in. this Agreement, the City makes no representation or warranty pertaining to the applicability or lack thereof of any provision of the Internal Revenue Code or regulations promulgated thereunder to the work and its donation to the City. Donor, and not the City, shall have the burden and responsibility for determining such applicability or lack thereof: Public Use City intends to use the Work exclusively for public use purposes. 4. Location and Display for Public Use of the Work The Work shall be installed and displayed for public use in the Monsignor Gerald M. O'Keeffe Rose Garden next to the Arcadia Community Center during the loan period and continuing thereafter from the date of gift. In the event that said location for placement of the Work at any time becomes not viable, in the reasonable determination of the City, then the City may and is hereby authorized to relocate the Work to another location within the City of Arcadia that is accessible or visible to the public. 5. Credit Line The credit line for display, catalog and publicity purposes shall read as follows: Donated by Mrs. Margaux Gibson -Viera and Heather Gibson, Great Great Great Granddaughters of Elias Jackson "Lucky" Baldwin 2 5. Copyright, Attribution Donors do not own the copyright to the Work. The artist and creator of the Work is Alfred Paredes, who holds the copyright and attribution rights in and to the Work. 7. Insurance The City agrees to provide at its cost all risk insurance coverage using standard fine arts commercial insurance from a top rated company and/or government indemnity (e.g. the City's membership in and insurance coverage under a joint powers insurance authority, or in lieu thereof self insurance) for the safekeeping and preservation of the Work, the Work to be insured for the appraised insurance value as determined in an appraisal report prepared by a qualified art appraiser and which will be obtained by Donors and submitted to the City at the time of the initial loan period. The insurance and/or government indemnity shall. cover all risks, excluding only nuclear war and normal wear and tear. The City agrees that the insurance coverage it has obtained for the Insurance value of the work as indicated on the insurance value appraisal report will be the stated value for the Work and all claims, whether for full or partial damage, will be based on this value. 8. Installation City agrees to commission the creation of a pedestal. for the Work with the consultation and approval of Donors, which shall not be unreasonably withheld. Donors shall be consulted and provide final written approval as to the shape, form and size of the pedestal, which shall not be unreasonably withheld. The Work shall be installed and displayed on the pedestal for public use in the Monsignor Gerald M. O'Keeffe Rose Garden next to the Arcadia Community Center during the loan period and then continuing from the date of gift and thereafter, subject to relocation in accordance with the provisions set forth in section 4 otherwise applicable to the Work. q.. Shipping and Expenses Donors agree to arrange for the packing and shipping of the Work upon its completion by the artist from the foundry located in Burbank, California to the Monsignor Gerald M. O'Keeffe Rose Garden next to the Arcadia Community Center in the City of Arcadia. Following the City's receipt of the confirmed costs and upon the City's approval thereof, which shall not be unreasonably withheld, the City agrees to pay for all costs associated with the packing and shipping of the Work from the foundry to the Rose Garden location, as well as the following costs. City agrees to pay for the creation of the pedestal. and the installation of the pedestal upon which the Work shall be placed. City agrees to arrange and pay for all expenses related to the installation of the Work onto the pedestal. 3 10. Care, Preservation, Display a. The City will give the Work the same care it gives comparable property of its own. Precautions will be taken to protect the Work from fire, theft, mishandling, destruction, mutilation, graffiti, the elements, and insects. b. The City will take such steps as seem reasonably necessary to protect the integrity of the Work. 11. Miscellaneous This Agreement represents the entire understanding of the parties and supersedes any and all other prior Agreements between the parties and declares all such prior Agreements between the parties null and void. The terms of this Agreement may not be modified or amended, except in a writing signed by the party to be charged. This Agreement shall inure to the benefit of, and shall be binding upon, the successors, heirs, executors and administrators of the parties hereto. This Agreement and all matters relating to it shall be governed by the laws of the State of California. Any dispute arising hereunder shall be resolved in the courts of the State of California or in the United States District Court for the ninth District of the State of California, and the parties hereto consent to the personal jurisdiction of those courts. This Agreement may be executed in counterparts. WITNESS WHEREOF, the parties hereto have hereunto signed their hands and seals day and fir,,written above. - Viera, Donor He6ther Gibson, Donor City of Arcadia Ii . S Dominic Lazzarett' City Manager 4