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HomeMy WebLinkAboutC-4130 \lcX 2© DONATION AGREEMENT THIS AGREEMENT made and entered into as of the Z i- day of Mk , 2018, by and between the ROTARY CLUB OF ARCADIA, CA, a 501(c)4 Non-Profit Organization located at PO BOX 660638, Arcadia, California 91066 ("Donor") and the CITY OF ARCADIA ("City"), a charter city and 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 Donor has determined that a contribution to the City would 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 Donor owns one hundred percent (100%) ownership interest in the work commissioned and described as follows: A Veterans Memorial monument near the main entrance of the Arcadia Community Center. The Memorial will consist of seven pieces of polished black granite in a row ranging from approximately 5 feet in height at the right and left ends pieces, to a center stone maximum height of 6 feet. The width of the stone pieces will be from a range of 2 feet at the right end left end pieces, to a center stone width of 2 1/2 feet. The gaps between each stone will be 3 inches. The overall length of the monument will be 17 1/3 feet (the "Work"). WHEREAS, the Donor wishes to donate 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 donation for such purposes and on the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of mutual promises contained herein, the parties hereto agree as follows: 1. Pledge of Work, Donation, and Acceptance a. Donor agrees to donate, convey, and transfer to City, and City agrees to receive and accept from Donor, all of Donors' right, title, and interest in and to the Work subject to terms, conditions, and provisions hereof. b. Donor hereby pledges (the "Pledge") that on or before June 15, 2018, Donor shall transfer all of its respective title to and ownership of the Work to the City, free and clear of any liens, (other than copyright as set forth in Section 4 hereof), as a charitable donation in the form of a Deed of Gift (attached as Attachment "A" and incorporated by reference herein). Donor 1 Donor agrees that this Pledge shall extend to and be binding upon each of its officers, administrators, and assigns. c. This Pledge is an express and definite commitment and Donor understands 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 and ownership of the Work, ii) the City's ability to make 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 provisions 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 of proof determining such applicability or lack thereof. 2. Public Use City intends to use the Work exclusively for public use purposes. 3. Location and Display for Public Use of Work The Work shall be installed and displayed for public use near the front entry of the Arcadia Community Center following conveyance and installation of the Work. 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 as determined by the City. 4. Copyright, Attribution Donor does not own the copyright to the Work. The artist and creator of the work is Permeco, Inc., who holds copyright and attribution rights in and to the Work. 5. Insurance City agrees to provide at its cost all risk insurance coverage 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 final design and installed value of the Work which will be obtained by the Donor and submitted to the City upon completion of the Work's installation, as such value may change from time to time. The insurance and/or government indemnity shall cover all risks, excluding normal wear and tear. 6. Installation City agrees to commission the creation of the base, adjustment of surface drainage, irrigation and landscape adjustments, electrical improvements, America's with Disabilities Act (ADA) 2 improvements to the site, and other improvements as agreed to between the parties, which agreement shall not be unreasonably withheld. The Work shall be installed and displayed for public use by Permeco, Inc., with all associated costs to be paid for by the Donor, at the Arcadia Community Center in accordance with the provisions set forth in section 3 otherwise applicable to the Work. 7. Care, Preservation, Display a. The City will give the Work the same care it gives comparable property of its own. Reasonable 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 reasonably necessary to protect the integrity of the Work. 8. Miscellaneous This Agreement represents the entire understanding of the parties and supersedes any and all other prior Agreements between the parties, and the parties declare 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, officers, administrators, and executors 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 Central 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. IN WITNESS WHEREOF, the parties hereto have hereunto signed their hands and seals the day and year first wri ten above. City of Arcadia "• - C , • of Arcadia, California By: i< Dominic Lazzaret'ta' City Manager Attest: By: V�V,'t l�I�e C' y Clerk Approved as to form:By: � }• ...U" . Luale, City Attorney 3 Attachment A DEED OF GIFT I, /71-i✓i i� P �! , acting as the duly authorized representative for the y ROTARY CLUB OF ARCADIA, CA, a 501(c)4 Non-Profit Organization located at PO BOX 660638, Arcadia, California 91066, being the absolute owner of the Arcadia Veterans Memorial monument as described below: The monument will consist of seven pieces of polished black granite in a row ranging from approximately 5 feet in height at the right and left ends pieces, to a center stone maximum height of 6 feet. The width of the stone pieces will be from a range of 2 feet at the right end left end pieces, to a center stone width of 2 1/2 feet. The gaps between each stone will be 3 inches. The overall length of the monument will be 17 1/3 feet. created by Permeco, Inc., do hereby give, assign, and transfer over to the City of Arcadia all our respective right, title, and interest in and to said monument, including any copyright interest therein owned by the Rotary Club of Arcadia, if any, absolutely and forever. It is our intention that this transfer of the above-described monument shall constitute a donation of the same to the City of Arcadia, and that the monument called Veteran's Memorial shall be displayed for public use at the Arcadia Community Center, or such location shall no longer be viable, at another location accessible or visible to the public as determined by the City. r�.u.� a ` ) Ro , Club of Arcadia The above described gift is accepted by me on behalf of the City of Arcadia this a day of Mal , 2018. City of Arcadia By: „Al Dominic Lazzaretto City Manager 4