RES 2020-1151 - Transfer Agmt with Joslyn Art Museum for Native American artifacts City Clerk Office Use Only:
{)2D-1'57 Publication Date (if plicable):
RESOLUTION NO. � �) I �( � �
Agenda Date: / `)
Department: /�ln0
Submitter: A I(, zi 4 I/
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha, Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, the City of Omaha, through the Omaha Public Library, previously maintained a
"museum" facility displaying art and artifacts, but no longer has such facilities; and
WHEREAS, under such circumstances, the City, through the Omaha Public Library, became
the owner of certain artifacts donated by General Charles F. Manderson, Mr. and/or Mrs. C.N. Dietz and
Robert Gilder during the early 1900s when there was no museum in the City of Omaha; and,
WHEREAS, in or about December 1948, the City made a perpetual loan of these collections to
the Joslyn Art Museum for the purposes of education, conservation, and display; and
WHEREAS, Joslyn Art Museum has lent some of the items in the collections to the University
of Nebraska State Museum ("Morrill Hall"); and
WHEREAS, the original intent of the donors is maintained and furthered through such a
transfer of ownership; and
WHEREAS, it is the best interest of the City of Omaha to transfer ownership of these items to
Joslyn Art Museum, which is better equipped to further the intent of the original donors; and
WHEREAS, the Mayor recommends approval of such Transfer Agreement.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
THAT, as recommended by the Mayor, the Transfer Agreement between the City of Omaha
and Joslyn Art Museum is hereby approved.
APPROVED AS TO FORM:
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DEPU Y CITY ATTORNEY DATE
Adopted: DEC 0 8 2020 1 oI
Attest:
City Clerk
Approved: __,1 ka., -r ��
Mayor
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (this "Agreement") is made and entered into by and between
the City of Omaha, a municipal corporation ("City"), and Joslyn Art Museum, a Nebraska nonprofit
corporation("JAM"). The City and JAM are individually referred to herein as a "Party" or collectively as
the "Parties."
WHEREAS, the City(by and through the Omaha Public Library ("OPL")) previously maintained
a "museum" facility displaying art and artifacts at the original main library located at 1823 Harney Street,
but no longer has any comparable museum facilities; and
WHEREAS, under such circumstances, the City (by and through OPL) became owner of
(a)certain art and artifacts donated by General Charles F. Manderson to OPL (the "Manderson-
Collection"), (b)certain art and artifacts donated by Mr. and/or Mrs. C. N. Dietz to OPL (the "Dietz
Collection"), and (c) certain art and artifacts donated by Robert F. Gilder to OPL (the "Gilder
Collection"); and
WHEREAS, the terms of said donations were very vague and simply transferred the artifacts to
the Omaha Public Library via a letter for the purpose of exhibition of said artifacts at the Library; and
WHEREAS, in or about December 1948, the City (by and through OPL) made a perpetual loan
(terminable on one year's notice) of the Manderson Collection, Dietz Collection, and Gilder Collection to
JAM, provided that JAM would (a)house and preserve such collections, (b)use such collections for
study and research; and(c)exhibit and display as JAM determined appropriate; and
WHEREAS, at various times, (a)the City (by and through OPL) loaned additional items to JAM,
and (b) JAM exchanged or sold items from the Manderson Collection and/or the Dietz Collection and/or
the Gilder Collection and acquired appropriate replacements and substitutes with the proceeds (the
Manderson Collection, Dietz Collection, and Gilder Collection, together with any subsequent additions,
deletions,replacements, and substitutes,the "OPL Collection");and
WHEREAS, commencing in 1971 and at various times thereafter, JAM loaned to the University
of Nebraska State Museum (also known as Morrill Hall) ("UNSM") certain ethnographic artifacts from
the OPL Collection that were determined to be more appropriate for display and/or research by a natural
history museum than by JAM as an art museum; and
WHEREAS, JAM currently possesses approximately 259 objects from the OPL Collection (the
"JAM Sub-Collection") and UNSM currently possesses approximately 1,386 objects form the OPL
Collection(the "UNSM Sub-Collection"); and
WHEREAS, the Parties have determined that is in their mutual best interest for the City to
terminate any previous loan arrangement and fully transfer ownership of the OPL Collection to JAM,
with (a)JAM retaining the JAM Sub-Collection, and (b)JAM permitted in JAM's discretion to transfer
and/or loan all or any parts of the UNSM Sub-Collection to UNSM; and
WHEREAS,the original intent of the donors is maintained by such a transfer to facilities that are
more appropriately suited for the preservation,study and display of such artifacts,and
WHEREAS, the foregoing transfers will allow JAM (and, as applicable, UNSM) to (a) preserve
and conserve OPL Collection items with significant historical, cultural, and artistic value for the benefit
of the public (including students and researchers, the viewing public, and affected Native American
tribes), (b) make decisions regarding OPL Collection items based on applicable collection standards and
goals, and(c) comply with applicable legal requirements, all in furtherance of the original donative intent.
NOW, THEREFORE, for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged,the Parties,intending to be legally bound,hereby agree as follows:
1. Transfer and Acceptance/Assignment and Assumption. City hereby assigns,transfers,
conveys, and delivers to JAM, its successors and assigns, and JAM hereby acquires, accepts, and
assumes, all rights, titles, and interests in and to any and all items in the OPL Collection of every kind,
form, and description and wherever situated.
2. Transfer of UNSM Sub-Collection. City hereby grants its consent to any subsequent
transfers and/or loans of all or any part of the UNSM Sub-Collection from JAM to UNSM, and hereby
waives and releases any and all further conditions or requirements with respect to such subsequent
transfers and/or loans.
3. Representation,Warranties and Covenants of JAM.
(a) JAM hereby represents and warrants that (i)the execution and delivery of this
Agreement and the consummation of the transactions completed hereby have been duly
authorized by all requisite corporate action, (ii)JAM has the requisite power and authority to
execute and deliver this Agreement and consummate the transactions contemplated hereby, and
(iii) when executed and delivered pursuant hereto, this Agreement will constitute the valid and
legally binding obligation of JAM, enforceable in accordance with its terms.
(b) JAM hereby covenants to house, protect, preserve, conserve, conduct research
on, exhibit to the public, loan to other institutions, deaccession, and sell or exchange all items in
the JAM Sub-Collection (and any items in the UNSM Sub-Collection, to the extent retained by
JAM) in accordance with JAM's internal collection standards, and in all events in accordance
with museum standards for comparable items owned by comparable museums of art.
(c) JAM hereby covenants that items within the JAM Sub-Collection and any
subsequent replacements and substitutes for items within the JAM Sub-Collection(and any items
in the UNSM Sub-Collection,to the extent retained by JAM) shall be known and exhibited as the
"Manderson Collection," "Dietz Collection," and "Gilder Collection" as applicable, to
acknowledge the original donors of such items.Notwithstanding the foregoing,JAM may change
the reference name for the collection(s), and need not acknowledge a donor's name, in the event
such donor's name falls into disrepute and in JAM's reasonable discretion would therefore
adversely impact JAM's reputation, image, mission, or integrity.
(d) Certain items within the OPL Collection are Native American cultural items
subject to the Native American Graves Protection and Repatriation Act ("NAGPRA"). Although
the City has been the owner of the OPL Collection, the Parties acknowledge and agree that JAM
(not the City) has been responsible for compliance with NAGPRA requirements with regard to
the JAM Sub-Collection and UNSM (not the City) has been responsible for compliance with
NAGPRA requirements with regard to the UNSM Sub-Collection. JAM hereby covenants to
comply (or require UNSM to comply) with the NAGPRA requirements, if any, applicable as a
result of this Agreement, including any notice to affected Native American tribes.
4. Representations and Warranties of City.
(a) City hereby represents and warrants that (i)the execution and delivery of this
Agreement and the consummation of the transactions completed hereby have been duly
authorized by all requisite corporate action, (ii)City has the requisite power and authority to
execute and deliver this Agreement and consummate the transactions contemplated hereby,
(iii) when executed and delivered pursuant hereto, this Agreement will constitute the valid and
legally binding obligation of City, enforceable in accordance with its terms.
(b) City hereby represents and warrants that, except only to the extent otherwise
dictated by NAGPRA, City is the lawful owner of the OPL Collection, free and clear of all liens
and encumbrances, and has the right, power, and authority to transfer the OPL Collection to JAM.
(c) Except for the specific representations and warranties set forth in the Agreement,
the OPL Collection is being transferred on an "as is," "where is" basis and City makes no
warranties, express or implied, with respect to the OPL Collection. Without limiting the
generality of the foregoing, City makes no representations or warranties as to the value, quality,
or condition of the OPL Collection.
5. Interest of the City. Pursuant to Section 8.05 of the City's Home Rule Charter, no
elected official or any officer or employee of the City shall have a financial interest, direct or indirect, in
any City contract. Any violation of this section with the knowledge of the person or corporation
contracting with the City shall render the contract voidable by the Mayor or Council.
6. Further Assurances. At any time, or from time to time after the date hereof, at a Party's
request, and without further consideration, each other Party shall execute and deliver such other
instruments, provide such materials and information, and take such other actions as such other Party may
reasonably deem necessary or desirable in order to more effectively confirm, implement, or effect the
transactions contemplated by this Agreement.
7. Miscellaneous. This Agreement constitutes the entire agreement between the Parties and
supersedes any prior written or oral agreements between the Parties on the same subject matter. This
Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective
successors, legal representatives, and assigns. This Agreement shall be governed, construed, and
interpreted in accordance with Nebraska law, without regard to conflict of laws principles. The recitals to
this Agreement are hereby included in, and by this reference, constitute an integral part of this Agreement
and shall be considered a part of this Agreement for any construction or interpretation of this Agreement.
Headings in this Agreement are for convenience only and shall not be used to interpret or construe its
provisions. The provisions of this Agreement are declared severable so any invalidity or unenforceability
of any provision or application of this Agreement shall not affect other lawful provisions and applications,
and any invalid or unenforceable provision shall be reformed by the Parties to carry out the Parties'
intentions. Nothing in this Agreement is intended to confer any rights or remedies on any third persons
nor is anything herein intended to relieve or discharge the obligation or liability of any third persons to
any Party hereto. Any amendment to or waiver of this Agreement or any of the rights or obligations
created herein shall be in writing and signed by all Parties. This Agreement may be executed in multiple
counterparts,all of which together shall constitute one and the same agreement.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the IL)day of
C,P.w.lari✓ ,20 .
CITY OF OMAHA: JOSLYN ART MUSEUM:
Atit,
Jean Stothert Jack :-c m, Ph.D.
Mayor Exe. Director&CEO
OMAHA PUBLIC LIBRARY
......... .
Approved Form:
•
Miche le Peters, Deputy City Attorney