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Curtis Collection_Sale to Dubuque Cultural Preservation CommitteeTHE CITY OF DUB E MEMORANDUM Masterpiece on the BARRY LINDAH CITY ATTORNE To: Michael C. Van Milligen City Manager DATE: August 28, 2008 Re: Curtis Collection Sale Enclosed is an Agreement for the purchase of the Curtis Collection by the Dubuque Cultural Preservation Committee. Also enclosed is an Addendum to that Agreement to be approved by the City Council. Pursuant to the Addendum, the City joins in the Agreement for the purchase of the Curtis Collection. would recommend that the Agreement and Addendum be submitted to the City Council for consideration and approval. BAL:tIs Enclosure cc: Susan Henricks, Library Director F:\USERSItstecklelLindahlWlemoslMVM CurtisCollectionSale 082808.doc OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563)583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org Brian J. Kane Les V. Reddick* Brad J. Heying Todd L. Stevenson* Kevin T. Deeny** Bradley B. Kane Joseph P. Kane All admitted in Iowa *Also admitted in Illinois **Also admitted in Wisconsin August 27, 2008 VIA HAND DELIVERY Mr. Barry A. Lindahl Corporation Counsel Harbor View Place, Suite 330 300 Main Street Dubuque, Iowa 52001-6944 Phone: (563) 582-7980 Facsimile: (563) 582-5312 E-mail:bkane@kanenorbylaw.com Re: Dubuque Cultural Preservation Committee / Curtis Collection Purchase Dear Barry: Enclosed please find the original Agreement for Purchase of Curtis Collection and original Addendum to Agreement for Purchase of Curtis Collection both executed by Jeffrey Mozena on behalf of Dubuque Cultural Preservation Committee. We understand you will obtain the authorized signature of the City on the Addendum and also obtain the appropriate signature of the Library Board on both documents. Once fully executed, please return the originals to us. Please do not hesitate to contact us directly should you have any questions. Thank you. Best regards, KANE, NORBY &REDDICK, P.C. t By Brian J. Kan BJK:aId Enclosures cc: Mr. Jeffrey Mozena KANE, NORBY &REDDICK, P.C. ATTORNEYS 2100 ASBURY ROAD, SUITE 2 DUBUQUE, IA 52001-3091 Of Counsel: Gary K. Norby G:\WPDOCS\Angie\CORRES\Lindahl Barry LET re Dub Cultural Preservation-Curtis Collection.wpd THE IOWA STATE BAR ASSOCIATION Official FOfm No. 117 Brian J. Kane FOR THE LEGAL EFFECT OF THE USE OF THIS FORM, CONSULT YOUR LAWYER , c1`A7~ r ~ BILL OF SALE ~ ~~ {} _ y~~ ~"' S`S(J(:IA"t~C~ For the consideration of $500,000.00 Dollar(s) and other valuable consideration, Dubuque Carnegie Stout Public Library, by and through its Board ofTrustee~("Seller") does hereby sell, transfer and assign to and the City of Dubuque, Iowa Dubuque Cultural Preservation Committee, an Iowa general partnershif("Buyer") the following described personal property located in the City of Dubuque, Dubuque County, State of Iowa The North American Indian, by Edward S. Curtis, 1907-1930, consisting of 20 illustrated volumes of ethnographic text and over 720 large -format photogravures -complete set of both volumes and portfolios (the "Curtis Collection"), pursuant to that certain Agreement for Purchase dated August , 2008 by and between Seller and Buyer. Seller hereby covenants with Buyer that Seller is the owner of s~4~'r~olG~Q~4~~}lelEty, that Seller has good and lawful authority to sell, transfer, and assign thds~(r~Qe and that the ~1Qie is free and clear of all liens, security interests and encumbrances except as may be above stated; and Seller covenants to warrant and defendk~+~liQaQ$~~lg1Q~IQ~y against the lawful claims of all persons except as may be above stateSELLER HEREBY SELLS, TRANSFERS AND ASSIGNS*$'AQ~~I~C~I~C~I~Y IN "AS IS" CONDITION. XI?QX1I~OIQI~41~?C 1~DQI~C~b2CXdia~C~~C X~l~XC~~CS~IG~(~C R1;C41H~X)CI~~C I~C~C ~)&D(k~~.aRfi~X on ~ out l~l ~ i ~ n be h~Ifo i t~~lXor md ~ " e n Xe o ~ a ti ~ i ~ t ~~~uXe s a d ~~~'~ ~ ~ an ers o ro a rec l r c o ar t c n Sellers ert at n 2TIFICA Y fY Y 9. Y Y Y P 9 P. entity or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated National and Blocked Person" or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and are not engaged in this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney's fees and costs) arising from or related to my breach of the foregoing certification. Words and phrases herein, including acknowledgement hereof, shall be construed as in the singular or plural number, and as the appropriate gender, according to the content. Dubuque Cultural Preservation Committee, an Iowa general partner ip Dated: August , 2008 Dub que Carnggte tout is Lt rary Boar o Trustees By its au orzie representative 9-.~- ,.-a ~ ~~ _ ~i • -mod ~~ _A-" By its authorized representative (Seller) City of T~uhudile, Towa ~ *the Curtis Collection k STATE OF COUNTY OF By its authorized representative This instrument was acknowledged before me on , by, ,Notary Public STATE OF ,COUNTY OF This instrument was acknowledged before me on , by as of Notary Public ©The Iowa State Bar Association 2008 117 BILL OF SALE IOWADOCS Revised January 2008 AGREEMENT FOR PURCHASE OF CURTIS COLLECTION This Agreement for Purchase of Curtis Collection ("Agreement") is made and entered into this day of ~ E,~S '~ , 2008, by and between DUBUQUE CARNEGIE STOUT PUBLIC LIBRARY, by and through its Board of Trustees, of Dubuque, Iowa ("Seller") and DUBUQUE CULTURAL PRESERVATION COMMITTEE, an Iowa general partnership ("Buyer"). RECITALS A. Seller is the owner of that certain collection known as the "Curtis Collection" and more specifically described as The North American Indian, by Edward S. Curtis, 1907-1930, consisting of 20 illustrated volumes of ethnographic text and over 720 large -format photogravures -complete set of both volumes and portfolios (the "Curtis Collection"); and, B. Seller is desirous of selling the Curtis Collection, and Buyer is desirous of purchasing the Curtis Collection, all upon the terms and conditions contained herein, which the parties desire to reduce to writing. THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree upon the following mutual terms and conditions: 1. Agreement to Sell. Seller agrees to sell and the Buyer agrees to purchase the Curtis Collection upon the terms and conditions contained herein. 2. Title to Curtis Collection. Seller represents and warrants that it has clear and unencumbered title to the Curtis Collection, free and clear of any and all liens or any other restrictions whatsoever, and has right, title and authority to sell the Curtis Collection and to grant. clear title to the Curtis Collection to the Buyer at the closing (defined below). 3. Condition of Curtis Collection. Subject to Seller's representations and warranties provided in the preceding section concerning Seller's title to the Curtis Collection, the Buyer purchases the Curtis Collection in "as is" condition as of the closing (defined below). From and after the date hereof through and including the closing date, Seller shall maintain and preserve the Curtis Collection in its current condition, ordinary and reasonable wear and tear excepted, and all risk of loss with regard to the Curtis Collection shall remain with Seller until the closing. 4. Purchase Price. Buyer agrees to pay $500,000.00 to Seller for the Curtis Collection. The purchase price shall be paid in full at the closing. The purchase price is not subject to any financing contingency. 5. Closing. The closing for all purposes hereunder shall occur on October 1, 2008 at the offices of the Seller at a mutually agreeable time. 6. Delivery of Curtis Collection. On payment to the Seller of the purchase price provided for herein, Buyer shall remove the Curtis Collection from Seller's possession. Seller shall deliver to Buyer at the closing a Bill of Sale in the form as attached hereto as Exhibit "A" and by this reference made a part hereof. Upon receipt of the purchase price by Seller at the closing, risk of loss shall pass to Buyer. 7. Continuing Cooperation. The parties agree to cooperate with regard to the purchase and sale contemplated herein, and each will cooperate and assist the other with regard to effecting a smooth transition of possession of the Curtis Collection from Seller to Buyer. Seller shall allow Buyer reasonable inspection of the Curtis Collection prior to the closing. 8. Miscellaneous. The parties agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Iowa. No party may assign its interest in this Agreement without the prior written consent of the other parties hereto, which consent may be withheld for any reason. This Agreement shall be binding upon the parties hereto and their respective successors in interest and permitted assigns. This Agreement may not be amended except by an instrument in writing signed by all the parties hereto. Dated this. day of ~ ~13~~' , 2008. DUBUQUE CARNEGIE STOUT PUBLIC LIBRARY BOARD OF TRUSTEES ,,,, Its authorized representative DUBUQUE CULTURAL PRESERVATION COMMITTEE By a horized r , p esentative G:\WPDOCS~Angie\DOCS\Dubuque Cultural Preservation Board A~~reement to Purchase Curtis Collection-CLEAN.doc 2 EXHIBIT "A" See attached Bill of Sale. THE IOWA STATE BAR ASSOCIATION Official Form No. 117 Brian J. Kane FOR THE LEGAL EFFECT OF THE USE OF THIS FORM, CONSULT YOUR LAWYER 4711 fr ®r ~ ~ BILL OF SALE ss'OC[A.S1~ For the consideration of $500,000.00 Dollar(s) and other valuable consideration, Dubuque Carnegie Stout Public Library, by and through its Board ofTrustee~"Seller") does hereby sell, transfer and assign to Dubuque Cultural Preservation Committee, an Iowa general partnership ("Buyer") the following described personal property located in the Citv of Dubuque, Dubuque County, State of Iowa The North American Indian, by Edward S. Curtis, 1907-1930, consisting of 20 illustrated volumes of ethnographic text and over 7201arge -format photogravures -complete set of both volumes and portfolios (the "Curtis Collection"), pursuant to that certain Agreement for Purchase dated August , 2008 by and between Seller and Buyer. Seller hereby covenants with Buyer that Seller is the owner of"s~~a4~r~o16~Q~~lelEty, that Seller has good and lawful authority to sell, transfer, and assign thds~r a and that the die is free and clear of all liens, security interests and encumbrances except as may be above stated; and Seller covenants to warrant and defend`~jr;?lAlb~Q~ky against the lawful claims of all persons except as may be above stateSELLER HEREBY SELLS, TRANSFERS AND ASSIGNS* Y IN "AS IS" CONDITION. Xl?Q?GDIdDQI~C ~CI~~41~~CXG~Caf 1~i~s~CCXdIa~C~(f~C#~QX~(~(N~~-~4~CA(I~Ca~r2'dfa1~P4 ~ ~~~Kl&9(I~~1C)~N~~~7C l'4 Y- 3~~~R)CI~~C 9 X X X ~~~V T ~ ~ ~~~~x~ ' ~ fh- ~ -XXXXXX)CX~~K~XXX)O.CX)C~~J~XX~;X~X~Xf _ _ _X~CXXXXX group or or on e al o any person Irectly or Indirec y are not actin at the ert f l d S ~ ~~C~~ ~~ , , , g, y ers eac c i y e CAI uyers an I J. e RTIF entity or nation named by any Executive Order or the United States Treasury Department as a terrorist, "Specially Designated National and Blocked Person" or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and are not engaged in this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney's fees and costs) arising from or related to my breach of the foregoing certification. Words and phrases herein, including acknowledgement hereof, shall be construed as in the singular or plural number, and as the appropriate gender, according to the content. Dated: August , 2008 Dubuque Carnegie tout Pu tc Li rary Boar o Trustees Dubuque Cultural Preservation Committee, an Iowa general partne hip By its authorized representative (Seller) By its authorzied representative (Buyer) *the Curtis Collection STATE OF COUNTY OF This instrument was acknowledged before me on , bY. ,Notary Public STATE OF ,COUNTY OF This instrument was acknowledged before me on by as of ,Notary Public ©The Iowa State Bar Association 2008 117 BILL OF SALE IOWADOCS Revised January 2008 AI)DENI3UIi~I T® AG~EIVIE~TT F'OR PU12C>~ASE ®F CURT'IS C®LLECTI®1~1 This Addendum to Agreement For Purchase of Curtis Collection ("Addendum") is made and entered into this day of ~, , 2008, by and between DUBUQUE CARNEGIE STOUT PUBLIC LIBRARY, by and through its Board of Trustees, of Dubuque, Iowa ("Seller"), the CITY OF DUBUQUE, IOWA, an Iowa municipal corporation ("City") and DUBUQUE CULTURAL PRESERVATION COMMITTEE, an Iowa general partnership ("Buyer"). RECITALS A. Seller and Buyer have entered into that certain Agreement for Purchase of Curtis Collection dated August , 2008 (the "Agreement"); B. The parties desire to be sure that Buyer acquires clear and unencumbered title to the Curtis Collection (as defined in the Agreement) and therefore desire to have the City join in the Agreement; and, C. The parties desire to reduce the City's joinder in the Agreement to writing. THEREFORE, for good and valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the parties agree upon the following mutual teens and conditions: 1. Joinder by City in Agreement. The City hereby j oins in the Agreement for the sale of the Curtis Collection by Seller to Buyer. To the extent that City has any right, title or interest in and to the Curtis Collection, the City hereby agrees to sell and convey the same to Buyer in accordance with the teens and conditions of the Agreement, and for no additional consideration. The City hereby joins the Seller with respect to the sale of the Curtis Collection pursuant to the Agreement. 2. Joinder b~y in Bill of Sale. The City hereby agrees to join Seller in the Bill of Sale conveying the Curtis Collection to Buyer pursuant to the Agreement. The form of the Bill of Sale in this regard is attached hereto as Exhibit "A" and by this reference made a part hereof. 3. Miscellaneous. The parties agree that this Addendum shall be governed by and construed in accordance with the laws of the State of Iowa. No party may assign its interest in this Addendum without the prior written consent of the other parties hereto, which consent may be withheld for any reason. This Addendum shall be binding upon the parties hereto and their respective successors in interest and permitted assigns. This Addendum may not be amended except by an instrument in writing signed by all the parties hereto. 4. Affirmation. Except as specifically amended or supplemented herein, the parties ratify, affirm and confirm the terms and conditions of the Agreement. Dated as of the date and year first above written. DUBUQUE CARNEGIE STOUT PUBLIC LIBRARY BOARD OF TRUSTEES By ,- Its authorized representative DUBUQUE CULTURAL PRESERVATION COMMITTEE By s a thorized resentative CITY OF Dy.UQUE, IOWA Y ~ - .Its authorized representative G:\WPDOCS\Angie\DOCS\Dubuque Cultural Preservation Addendum to Agreement to Purchase Curtis Collec6ou.wpd ~14A111D11 GG A 99 See attached Bill of Sale. THE IOWA STATE BAR ASSOCIATION Official FOrm No.11T Brian J. Kane FOR THE LEGAL EFFECT OF THE USE OF THIS FORM, CONSULT YOUR LAWYER $1ATe o r ~ BILL OF SALE 'fir ~,~ SQCiw'~ For the consideration of $500,000.00 Dollar(s) and other valuable consideration, Dubu ue Came ie Stout Public Libr , b and throu hits Board ofTmstee~"Seller") does hereby sell, transfer and assign to and the City o Du uque, Iowa Dubuque Cultural Preservation Committee, an Iowa general partnership("Buyer") the following described personal property located in the City of Dubuque, Dubuque County, State of Iowa The North American Indian, by Edward S. Curtis, 1907-1930, consisting of 20 illustrated volumes of ethnographic text and over 7201arge -format photogravures -complete set of both volumes and portfolios (the "Curtis Collection"), pursuant to that certain Agreement for Purchase dated August , 2008 by and between Seller and Buyer. Seller hereby covenants with Buyer that Seller is the owner of s~'i4~c~olb~Q~4y, that Seller has good and lawful authority to sell, and assign thd'sl~i a and that the die is free and clear of all liens, security interests and encumbrances except as may be above transfer , stated; and Seller covenants to warrant and defend`~QI(ep(6~y against the lawful claims of all persons except as may be above stated. SELLER HEREBY SELLS, TRANSFERS AND ASSIGNS* IN "AS IS" CONDITION. XIi.Q?G1~1)41~Q~C C I uyers and Se ers eac ce I at hey are not a ing, ireCt y or in Irec y, or or on a al o any person, group, Executive Order or the United States Treasury Department as a terrorist, "Specially Designated National and an or nation named b tit y y en y Blocked Person" or any other banned or blocked person, entity, nation or transaction pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control; and are not engaged in this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Each party hereby agrees to defend, indemnify and hold harmless the other party from and against any and all claims, damages, losses, risks, Liabilities and expenses (including attorney's fees and costs) arising from or related to my breach of the foregoing certification. Words and phrases herein, including acknowledgement hereof, shall be construed as in the singular or plural number, and as the appropriate gender, according to the content. Dubuque Cultural Preservation Committee, an Iowa general partner ip Dated: August , 2008 Dubuque Carnegie tout u is i rary oar o rustees y rts aut orzie representative By its authorized representative (Seller) City of Dubuque, Iowa ~ *the Curtis Collection By its authorized representative STATE OF COUNTY OF This instrument was acknowledged before me on , bY. ,Notary Public STATE OF ,COUNTY OF This instrument was acknowledged before me on , by as of Notary Public ®The laws State Bar Association 2008 11T BILL OF SALE IOWADOCS Revised January 2008