Court Motion
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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION The Trustees of the Corcoran Gallery of Art, Civil Action No. 2014 CA 003745 B Petitioner, Initial Conference Date: Sept. 23, 2014 9:30 AM v. The District of Columbia, Respondent MOTION FOR ENTRY OF PROPOSED ORDER COMES NOW the Petitioner, The Trustees of the Corcoran Gallery of Art, and move the Court for the entry of an order, approving under the doctrine of cy près, the Trustees’ entry into and implementation of certain agreements with the National Gallery of Art and The George Washington University, related to the Corcoran Gallery of Art and the Corcoran College of Art + Design. The grounds for the Motion, as more fully set forth in the Memorandum of Law in Support and the Declaration of Lauren Stack filed concurrently herewith, are that under DC Code §9-1304.13, it is impracticable or impossible for the operations of the Corcoran to continue in their current form, and the agreements with the National Gallery of Art and The George Washington University present the best method of continuing to implement the charitable intent at the formation of the Corcoran. The form of order is attached. The Trustees have discussed the proposed form of order with the Office of the Attorney General of the District of Columbia, and believe that Attorney General will support the form of order. The Trustees understand that the Motion will be heard at 2:30 in the afternoon of July 18, 2014. Respectfully submitted, /s/ Charles A. Patrizia (D.C. Bar No. 228999) Paul Hastings LLP 875 15th St., NW Washington, DC 20005 Telephone: (202) 551-1700 Fax: (202) 551-1705 Email: [email protected] Counsel for Petitioners June 25, 2014 2 CERTIFICATE OF SERVICE I hereby certify that on this 25th day of June, 2014, a copy of Petitioner’s Motion for Entry of Proposed Order with Memorandum in Support and Exhibits was sent by first class, postage prepaid U.S. Mail and electronic mail to: Bennett Rushkoff Chief, Public Advocacy Section D.C. Office of the Attorney General 441 4th St., NW, Suite 600 South Washington, D.C. 20001 [email protected] (202) 727-5173 /s/Charles A. Patrizia Charles A. Patrizia LEGAL_US_E # 110695107.1 3 SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION The Trustees of the Corcoran Gallery of Art, Civil Action No. 2014 CA 003745 B Petitioner, Initial Conference Date: Sept. 26, 2014 v. 9:30 AM The District of Columbia, Respondent PROPOSED FORM OF ORDER GRANTING CY PRÈS The Petitioner, The Trustees of the Corcoran Gallery of Art, has brought on a petition seeking the Court’s grant of cy près with regard to its entry into and performance of certain agreements with National Gallery of Art and The George Washington University. The Court, having considered the Petition, the record before it, and having received the views of the Attorney General of the District of Columbia, FINDS AND DETERMINES: 1. The Petitioner is a non-profit institution, initially established under a Deed of Trust given and made in the District of Columbia. The petitioner is a federally chartered non- profit corporation, but is subject to District of Columbia law. The Petitioner currently operates the Corcoran Gallery of Art and the Corcoran College of Art + Design. Since its founding under the Deed of Trust of William Corcoran, the Petitioner has received other gifts and contributions, some of which have included conditions and restrictions. These gifts and contributions include works of art, other physical objects, and monies. The Petitioner owns and operates the Corcoran Building, a designated national historic landmark located in the District of Columbia, and which houses its Gallery and the College. 2. The current financial circumstances of the Petitioner do not permit the assured, continued, long term operation of the Corcoran Gallery of Art and the Corcoran College of Art + Design as they have been operated in the contemplation and intent of the Deed of Trust. The current financial circumstances of the Petitioner do not permit the renovation and rehabilitation of the Corcoran Building. 3. If required to continue to operate in the current mode, the Petitioner would exhaust its available financial resources, and would be required to sell portions of its collection to maintain its operations. Doing so would result in the loss of its accreditation as a museum and would result in significant harm to the institution, its reputation, its ability to attract and retain curatorial staff and faculty, and otherwise undermine its ability to continue in proper operation. 4. As a result of its financial circumstances, the purposes for which the petitioner was established have become impracticable or impossible to achieve as a matter of continuing operation, within the meaning of DC Code Section 19-1304.13. 5. Seeking to address the financial circumstances and to continue to implement the underlying intent of the Deed of Trust, the petitioner has negotiated and, subject to the order of this Court, executed agreements with the National Gallery of Art and The George Washington University. If implemented the agreements will: a. assure a long-term, sustainable future for the Gallery and the College; b. assure the rehabilitation and renovation of the Corcoran Building that houses the Gallery and the College; c. assure the preservation and display of the Corcoran’s valuable collection of art and its retention, to the extent reasonably possible, within the District of Columbia; d. assure the continued use of space within the Corcoran Building for the display of art; and e. assure the continuing fulfillment of the charitable intent of the original grantor and subsequent contributors. 2 5. It is therefore appropriate that the Court modify the terms of the Deed of Trust and related instruments, to allow the distribution and use of the Petitioner’s property and assets in a manner consistent with the grantor’s intent. THEREFORE, IT IS HEREBY ORDERED AND DECREED: A. The entry of the Trustees of the Corcoran Gallery of Art into the following Agreements (the “Agreements”), is hereby approved and the Corcoran Deed of Trust and any other applicable instrument is deemed to be revised to the extent necessary to permit the entry of the Trustees of the Corcoran Gallery of Art into the following Agreements: 1. The Accession and Custodial Transfer Agreement between the Trustees and the National Gallery of Art, dated as of May 15, 2014. 2. A License Agreement between the Trustees and the National Gallery of Art, in a form substantially similar to that attached to the Accession and Custodial Transfer Agreement as Exhibit B. 3. The Asset Contribution Agreement between the Trustees and The George Washington University, dated as of May 15, 2014 4. A License Agreement between the Trustees and The George Washington University, in a form substantially similar to that attached to the Asset Contribution Agreement as Exhibit B. 5. A side letter dated as of June 17, 2014, between the Trustees and The George Washington University, relating to the continued use of space in the Corcoran Building as exhibition and gallery space. 6. The letter dated as of June 17, 2014, between the Trustees and the National Gallery of Art, relating to the policy for the distribution of Custodial Art that is not accessioned by the National Gallery of Art. B. The actions necessary by the Trustees of the Corcoran Gallery of Art to perform and implement the Agreements listed in Paragraph A, above according to their terms, are hereby 3 approved and the Corcoran Deed of Trust and any other applicable instrument is deemed to be revised to the extent necessary to permit the Trustees to perform and implement the Agreements according to their terms. The Trustees, and their employees and agents, shall have no liability to any person as a result of their actions to enter into, and to perform and implement the Agreements. C. Pending the closing of the Agreements, the Trustees of the Corcoran shall continue to operate the Corcoran Gallery of Art and the Corcoran College of Art + Design in a manner consistent with the restrictions applicable to the assets, as they have been understood and implemented by the Trustees previously. D. The National Gallery of Art shall take and hold the Corcoran’s collection of art, in the manner and for the purposes described in the Accession and Custodial Transfer Agreement, and shall adhere to the restrictions as otherwise applicable to the collection, as those restrictions have been understood and implemented by the Trustees previously. E. The George Washington University shall take and hold the assets as described in the Asset Contribution Agreement, in the manner and for the purposes described therein and in the letter of June 17 described in subparagraph A.5 above, and shall adhere to the restrictions applicable to such assets as those restrictions have been understood and implemented by the Trustees previously. F. As and to the extent that elements of the Corcoran’s collection of art are not accessioned by the National Gallery of Art into its collection, in the manner and for the purposes set forth in the Accession and Custodial Transfer Agreement, the Trustees of the Corcoran Gallery of Art shall, in conjunction with the National Gallery of Art, implement the policy and plan for the distribution of the remaining collection, as described in the letter of June 17 identified in subparagraph A.6 above, in accordance with its terms and subject to its provisions. G. The Trustees of the Corcoran Gallery of Art, following the closing of the Agreements, shall hold and retain the existing federal charter, and shall continue to operate as a non-profit entity, dedicated to “encouraging American genius,” as set forth in the Corcoran Deed of Trust.