Template of a Records Donation Agreement
This is a template. Records donation agreements are tailored to the circumstances of each particular donation.
Records Donation Agreement
THIS AGREEMENT dated as of the day of [date]
(called the “Donor”)
CITY OF TORONTO
(called the “City”)
A. City Council, at its meeting of August 25, 26, 27 and 28, 2014 adopted Government Management Committee Item GM32.7, and enacted City of Toronto By-law No. 1067-2014 which amended Toronto Municipal Code Chapter 217, Records, Corporate (City), by replacing the entirety of the text of Chapter 217, excluding Schedule A.
B. Under § 217-2 A. (4) of Chapter 217, Records, Corporate (City), as amended by By-law No. 1067-2014, the City Clerk is responsible for establishing a framework of standards and policies relating to information and records management, including policies for the acquisition of records or collections from private sources by the City of Toronto Archives.
C. The City Clerk has, by the Memo dated March 23, 2015, established a policy for the acquisition of records or collections from private sources by the City of Toronto Archives.
D. The Donor is the owner of certain Records, and desires to give these Records to the City, subject to the restrictions on the use of the material as is stipulated in this Agreement.
E. The City is authorized to acquire by donation material belonging to or having a bearing on the history of the City and may by agreement with the Donor of the Records place restrictions on the use of the Records as stipulated in the Agreement.
IN CONSIDERATION of the mutual covenants and agreements in this Agreement and for other good and valuable consideration the receipt and sufficiency of which is acknowledged, the parties agree as follows:
In this Agreement, the following terms shall have the meaning indicated unless something in the subject matter or context is inconsistent with it:
(a) “Agreement” refers to this Agreement as amended from time to time and any agreement or instrument supplemental to it;
(b) “Archival Holdings” means that part of the Records which remain after the Archivist has reviewed the Records as described in subsections 3.01 and 3.02 and identified and removed the Culled Material;
(c) “Archives” means the City of Toronto Archives, a program of the City Clerk’s Office situated at 255 Spadina Road in the City of Toronto, or any other location as may be established from time to time as an extension or replacement location;
(d) “Archivist” means the City Archivist employed in the City Clerk’s Office, and includes a person designated by the Archivist to act as Archivist for the purposes of this Agreement;
(e) “Culled Material” means that portion of the Records that have been determined by the Archivist to lack enduring archival value, and have been removed from the Records during processing as part of Standard Procedures;
(f) “Donor” means the person who is a party to this Agreement and described as such;
(g) “Notice” means a written notice delivered in accordance with subsection 7.02 of this Agreement;
(h) “Personal Information” means recorded information about an identifiable individual, as defined in the definition of “personal information” contained in section 2 of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, as amended from time to time;
(i) “Records” means any recorded information regardless of format or medium, that was created, accumulated or used by the Donor as part of his activities and that has been selected by the Donor for transfer to the City in accordance with this Agreement; and
(j) “Standard Procedures” means the procedures established from time to time by the Archivist in accordance with good archival practices.
1.02 Gender and Number
In this Agreement, words importing the singular include the plural and vice versa, and words importing gender include all genders.
1.03 Section Headings
The insertion of headings and the division of this Agreement into sections and subsections are for convenience of reference only and shall not affect the interpretation of this Agreement.
1.04 Entire Agreement
This Agreement constitutes the entire agreement between the parties and which supersedes all prior agreements, understandings, negotiations and discussions with respect to the subject matter of this Agreement, whether oral or written. Except for a transfer and assignment form executed under subsection 2.02, no supplement, modification, or waiver of this Agreement shall be binding unless executed in writing by the parties.
1.05 Applicable Law
This Agreement shall be construed in accordance with the laws of the Province of Ontario and the laws of Canada in Ontario and shall be treated in all respects as a contract made in the City of Toronto. The parties agree to attorn to the jurisdiction of the Ontario courts.
1.06 Severability of Provisions
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision. Any such invalid provision shall be deemed to be severable.
The Donor irrevocably transfers and assigns to the City all right, title and interest in the Records described in Schedule A as a gift for the sole and exclusive use of the City, subject to the provisions of this Agreement.
2.02 Additional Donations
The Donor may from time to time, with the approval of the Archivist, transfer and assign to the City all right, title and interest to additional Records owned by him. In order to implement an additional donation the Donor shall execute a transfer and assignment in a form as reasonably agreed to by the parties from time to time. After the Archivist has acknowledged the receipt of the additional Records on the executed transfer and assignment form, the additional Records shall be subject to the same provisions of this Agreement as if donated under subsection 2.01.
2.03 Warranty and Release
The Donor warrants that he is the sole and rightful owner of all the Records, that he has no knowledge of any claims or demands adverse to such ownership, and that the Records are free and clear of all encumbrances. The Donor releases all claims he now has or may have from this time on to the Records.
3. Obligations of the City
3.01 Review of the Records
Within a reasonable time following the delivery of the Records to the City, having regard to the size and nature of the Records, the Archivist shall carry out an examination of the Records and prepare a list identifying the Culled Material which the Archivist does not consider, in his or her absolute discretion, to be of enduring archival value. The Archivist shall give a copy of the list by way of Notice to the Donor who shall, within 30 days of receipt of the Notice, make arrangements, satisfactory to the Archivist, to remove the Culled Material specified in the list from the Archivist. If the Donor fails to make such arrangements within the time specified, or fails to remove the material in accordance with the arrangements, the Archivist may destroy or otherwise dispose of the Culled Material in any manner or to any persons as the Archivist, in his or her absolute discretion, deems advisable.
3.02 Additional Reviews
If, at any time subsequent to the review under subsection 3.01, the Archivist comes to the conclusion that any part of the Records is not of lasting archival value, the Archivist may give Notice to this effect to the Donor and subsection 3.01 shall apply with any necessary changes.
3.03 Preservation and Maintenance
The Archivist shall preserve and maintain the Archival Holdings at the Archives in accordance with Standard Procedures.
3.04 Income Tax Receipt
Once the Records have been examined in accordance with subsection 3.01, the City shall arrange for an appraisal of the Archival Holdings. The Accounting Services division will then issue an income tax receipt to the Donor for the appraised value of the Archival Holdings.
4. Access To and Use of Records
4.01 Acknowledgement of Access and Use
The Donor acknowledges that the Archives is a publicly funded program established for the purposes of storing and preserving archival records, making such records available for research and inspection by members of the public, and interpreting the history of the City through the use of archival records in exhibits, publications and other aspects of public programming.
4.02 Restrictions on Public Access
All or any part of the Archival Holdings shall be available to members of the public for inspection in accordance with Standard Procedures, except that access to Personal Information will be determined by the Archivist in accordance with the City’s privacy protection policies.
4.03 Access of Archivist
The Archivist shall have access to any Records to which public access is restricted under subsection 4.02 for the purposes of arranging, describing, maintaining and storing the Records in accordance with Standard Procedures.
4.04 Access by Donor
Despite any restriction placed upon the public with respect to access to the Records, the Donor shall have reasonable access to the Records during normal business hours.
5. Rights to Copy, Display & Distribute
All or any part of the Records may be photocopied, photographed, digitized, or otherwise reproduced or copied in accordance with Standard Procedures.
Subject to subsection 4.02, all or any part of the Records may be placed on public display or exhibit at the sole discretion of the Archivist.
5.03 Distribution of Digitized Information
Subject to subsection 4.02, all or any parts of the Records may be reproduced in a machine-readable format for the purposes of publication and distribution at the sole discretion of the Archivist.
The Donor irrevocably assigns and transfers to the City all copyright in the Records, to the full extent that the Donor is the owner of such copyright.
6.02 Moral Rights
The Donor waives all moral rights the Donor may have associated with any work protected by copyright in the Records or any part of the Records donated to the City under this Agreement. The Donor shall use his reasonable best efforts to secure the waiver of all moral rights that any present or past employees or other individual authors or creators may have with respect to the copyright in the Records or any part of it donated to the City under this Agreement.
6.03 Release of Name
The Donor authorizes the release of his name as the Donor of the Records or any part of them.
This Agreement may be executed in counterparts, and each counterpart when so executed and delivered shall be deemed an original.
All written notices, consents and approvals permitted or required to be given under this Agreement shall be deemed to be sufficiently and fully given and delivered personally, in the case of the Donor, to the Donor or his authorized representative and, in the case of the City, to the Archivist; or, in the case of either party, sent in a prepaid registered letter deposited in a post office in Canada or transmitted by facsimile or other form of recorded communication tested prior to transmission and, if the Donor, is addressed as follows:
and, if the City is addressed as follows:
City of Toronto Archives
255 Spadina Road
Toronto, Ontario M5R 2V3
Attention: City Archivist
Any notice so given or made shall be deemed to have been given or made and received on the date of delivery or on the third business day following the date of mailing of it or on the day of transmission by facsimile or other form of recorded communication service of it, as the case may be. Either party from time to time by notice in writing given under the terms of this subsection may change its address.
7.03 Additional Assurances
The parties agree to do or cause to be done all acts or things necessary to implement and carry into effect this Agreement to its full extent.
7.04 Successors and Assigns
This Agreement shall enure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
The Donor shall not assign this Agreement, or any interest in it, without the prior written consent of the City which consent may be withheld unreasonably or arbitrarily or given with conditions.
The Donor shall indemnify and save harmless the City, its Mayor, Councillors, officers, directors, its employees, agents, representatives, successors and assigns from any suits, actions, claims, damages, costs or expenses whatsoever arising from a breach by the Donor of any obligation or warranty under this Agreement, or an infringement or other violation of any copyright, moral right or other intellectual property right of a third party in the Records.
IN WITNESS of which the parties have executed this Agreement by the Donor signing the Agreement and the City affixing its corporate seal under the signature of its duly authorized officers.
SIGNED SEALED AND DELIVERED
in the presence of
[Signature of Donor]
[Signature of Witness]
[Signature of City Solicitor]
[Signature of Deputy City Manager and Chief Financial Officer]
[Signature of City Clerk]
Description of Records
Title of Records:
Author or Creator:
Scope and Content: Records consists of
Office Tel. No.:
City / Town: