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HomeMy WebLinkAbout03 - Cooperative Agreement with the Board of Library Trustess & the Library FoundationCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 3 September 23, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Attorney's Office Robert Burnham, City Attorney; 644 -3131 - rburnham @city.newport- beach.ca.us SUBJECT: Approval of a Cooperative Agreement between the City Council, Board of Library Trustees and the Library Foundation ISSUE Should the Council approve a Cooperative Agreement between the City Council, Board of Library Trustees and the Library Foundation? RECOMMENDATION Approve the Cooperative Agreement between the City Council, Board of Library Trustees and the Library Foundation. DISCUSSION On April 11, 2000, the Chairs of the Board of Library Trustees and the Library Foundation executed a Memorandum of Cooperation (MOC) that addressed issues related to the use of office space by a Foundation employee, the transfer of certain contributions and the Distinguished Speaker Lecture Series (DSLS). The MOC has served to more clearly define the roles and responsibilities of the Trustees and the Foundation and has fostered good communication concerning issues of interest to both parties. Recently, representatives of the Trustees and the Foundation discussed the terms and conditions of a Cooperative Agreement (copy attached) that would take the place of the MOC and serve as a more appropriate vehicle for addressing important issues. The Trustees and the Foundation have approved the Cooperative Agreement and are asking the City Council to do so pursuant to provisions of Section 708 of the City Charter. This Cooperative Agreement is consistent with the City Council's current practice, evidenced by the recent agreements with the Friends of the Newport Theatre Arts Centre and the Balboa Performing Arts Theatre Foundation, of adopting formal contracts rather than relying on Council Policies in matters involving the exclusive use of City property by private organizations. Environmental Review: None required. ared by: Robert Burnham, City Attorney Attachments: Cooperative Agreement COOPERATIVE AGREEMENT This Cooperative Agreement (Agreement) between the Board of Library Trustees of the City of Newport Beach (Trustees) and the Newport Beach Public Library Foundation (Foundation), which is subject to the approval of the City Council (City Council) of the City of Newport Beach (City) pursuant to the provisions of Section 708 of the City Charter is dated this day of 2003 and is made with respect to the following: RECITALS WHEREAS, the Trustees are, in approving this Agreement, acting pursuant to their authority as specified in the City Charter of the City of Newport Beach. WHEREAS, the Newport Beach City Charter (Charter) grants the Trustees the power and duty, among other things, to "have charge of the administration of City libraries", to "make recommendations" to the City Council with respect to the annual budget for library purposes, to accept donations to the City for library purposes and to contract "to render or receive library services or facilities" subject only to City Council approval. WHEREAS, the Foundation is a public benefit nonprofit corporation established for the express purpose of soliciting funds to be used for the benefit of the Newport Beach Public Library (Library). WHEREAS, the Trustees, the City Council and library staff, both past and present, have made the Library one of the finest facilities in the nation and have consistently provided the community with resources, programs and services that have greatly enriched the quality of life for persons who live and work in and around Newport Beach. WHEREAS, the Foundation has donated more than $1,566,688 to the City for library purposes, the Foundation is in the process of establishing an endowment fund to supplement City funding of the Library during difficult economic times and the Foundation's donations to, and overall support for, the Library have materially contributed to its status as one of the finest facilities in the nation. WHEREAS, the Parties share the goal of ensuring that the Library remains one of the finest in the nation and continues to have the community support, funding, staff and resources necessary to maintain the tradition of excellent service, an extensive collection and unique programs that the community has come to expect. 1 WHEREAS, the Trustees and Foundation acknowledge that they play different roles in helping the City maintain this standard of excellence and that the Library and the community will benefit by a clear delineation of their respective functions and responsibilities as well as acknowledgement that the Trustees, the Foundation and the City are independent entities that are each subject to special laws and rules. WHEREAS, the Foundation acknowledges that the Trustees and the City Council, in recommending and adopting the annual budget and making commitments with respect to expenditures, are prohibited by statutory, constitutional and /or decisional law from (a) incurring indebtedness in any fiscal year that exceeds anticipated income and revenue absent approval by two - thirds of those voting in an election to authorize additional debt; and (b) delegating to any third party, in whole or in part, the responsibility for controlling, appropriating, supervising or interfering in a city's improvements, money, property, taxing authority, staffing levels or duties and any other basic municipal functions. WHEREAS, the City Council and Trustees acknowledge that the Foundation, as a public benefit corporation, is an independent organization that is subject to compliance with statutory and decisional law that is similar to, and as complex as, the rules and regulations applicable to the City. WHEREAS, the City Council and the Trustees believe that it is in the best interests of the Library and the residents of Newport Beach to provide the Foundation with clerical support and office space to assist the Foundation in its fund - raising efforts and to ensure appropriate coordination between Foundation staff and Library staff in the preparation for and presentation of the events and activities described in this Agreement. WHEREAS, the Foundation, the Trustees and Library staff have recently cooperated in presentations of the Distinguished Speaker Lecture Series (DSLS) special program to bring to the Library persons who have excelled in, and are able to bring a unique perspective and insight to, their specific area of expertise or experience. WHEREAS, The Trustees and the Foundation acknowledge that the DSLS program has been a valuable and unique learning opportunity for the community and the continuation of the DSLS program is consistent with, and will help achieve, their mutual goal of maintaining the Library's standard of excellence. WHEREAS, the Trustees and Foundation also acknowledge that the DSLS program, has been successful largely because of the significant commitment of resources by the Trustees, the Foundation and Library staff and that it is appropriate, given the level of funding required to maintain the 2 DSLS Program, that the Foundation be given the primary responsibility for conducting the DSLS Program and each event with the understanding that the Trustees and the Library Services Director will provide support for, and acknowledge the efforts of the Foundation, in the presentation of this valuable program to the community. WHEREAS, the Trustees and the City Council have determined that the staffing commitments the City is making in this Agreement are fully consistent with all restrictions and limitations on the authority of the Trustees and City Council that are contained in the Charter as well as constitutional, statutory and decisional law. WHEREAS, the Trustees have also determined, and the City Council by approval of this Agreement has evidenced its support of the determination, that the office space commitments contained in this Agreement will not, given the current level of Library staffing, adversely affect Library operations and that fund - raising activities of the Foundation are facilitated by the presence of a Foundation employee in the Central Library. WHEREAS, the purpose of this Agreement is to properly describe and delineate the respective duties and commitments of the Parties with respect to the DSLS program and the Foundation's use of City facilities to engage in fund- raising and related activities. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: 1. TERM The term of this Agreement shall commence on the date specified in the preamble and shall continue in full force and effect until terminated as provided in Section 9. 2. DSLS ADVISORY COMMITTEE The Trustees and the Foundation agree to maintain, and fully participate in, the existing DSLS Advisory Committee established pursuant to a previous memorandum of cooperation between the Parties. The DSLS Advisory Committee consists of two members of the Trustees, two members of the Foundation, the Library Services Director and additional members that are appointed from time to time to provide assistance. The primary purpose of the DSLS Advisory Committee is to ensure that the Trustees, the Foundation and the Library Services Director are continuing to fully cooperate with one another to ensure that each DSLS event and the DSLS program achieve the mutual objectives of the Parties. The DSLS Advisory Committee shall meet at least once prior to the onset of each DSLS Program series, and as often as appropriate during each series, to exchange ideas and suggestions regarding 0 the frequency, format, duration or content of the DSLS Program. The DSLS Advisory Committee meetings may be held in the Library on the dates and at the times selected by the DSLS Advisory Committee. 3. ROLE AND DUTIES OF TRUSTEES/ LIBRARY SERVICES DIRECTOR (A) Trustee Authority. The Trustees have, pursuant to the provisions of Section 708 of the City Charter, the power and authority to "administer" the Library. The Trustees perform this function in cooperation with the Library Services Director and Library staff. The Trustees also play an important role in budgetary decisions related to the annual Library budget, the extent, timing, place and manner of Library programs, resources and services and the staffing and resources necessary to implement policy decisions. (B) Library Services Director Authority. The Library Services Director is, among other duties, responsible for implementing the policies adopted by the Trustees pursuant to the authority conferred by the City Charter and the contractual obligations (related to the Library) created by agreements recommended by the Trustees and approved by the City Council. (C) Trustee Approval. The Trustees have, pursuant to their authority to administer the Library, reviewed and approved the commitments to the Foundation contained in this Agreement, including the commitments with respect to the functions of Library staff and the use of the Library by Foundation staff, and have determined that those commitments are consistent with the proper administration of the Library and will serve the best interests of the residents of Newport Beach. The Trustees have also determined that execution and performance of this Agreement is consistent with the power and authority conferred by the City Charter and does not reduce or diminish that power or authority. (D) Trustee Duties. The Trustees shall, during the term of this Agreement, perform the following duties: (i) Select two of its members to represent the City on the DSLS Committee and, through those members, participate in the DSLS Committee discussions and decisions. M (ii) Attend, when feasible, DSLS events and, to the extent that each Member deems appropriate, support the DSLS program through presentations and public statements. (E) Trustee /Library Services Director Duties. The Trustees, by and through the Library Services Director and Library staff, shall perform the following duties: (i) Allow the Foundation the use of the Friends Meeting Room in the Central Library, and such other space as may reasonably be necessary to properly conduct each DSLS event (space needs include seating area for patrons, and dining area for evening DSLS events), no less than four (4) times each year. The Foundation shall be allowed use of the space for a period of time sufficient to conduct the event but DSLS events shall be scheduled at a date and time that will minimize or eliminate the impact of the event on Library service and Library patrons; (ii) Provide, for each DSLS event, no fewer than three Library staff for evening events, and no fewer than one Library staff for afternoon events to assist Foundation staff and volunteers in setting up and removing tables, chairs and equipment used during the event; (iii) If requested by Foundation staff, prepare the initial drafts of advertising, publicity and press material for each DSLS event and submit the drafts to Foundation staff; (iv) Provide Foundation staff with services available to Library staff such as reception services, access to copier and fax machine and limited clerical support subject to availability of Library staff, (v) Prepare and disseminate minutes of each meeting of the DSLS Advisory Committee. 4. ROLE AND DUTIES OF FOUNDATION (A) Foundation Authority. The Foundation has the power and authority conferred by its articles of incorporation, its by -laws and relevant provisions of statutory and decisional law. The Foundation plays a major role in soliciting contributions for Library purposes and provides a strong base of community support for the Library. 5 The Foundation also has established an endowment fund that is intended to provide the Library with a source for the funding of programs and services necessary to help maintain the standard of excellence if and when the City is unable to do so because of revenue shortfalls. The Foundation has, in cooperation with the Trustees and Library staff, presented programs such as DSLS that further enhance the Library and the quality of life in the community. (B) Foundation Duties. During the term of this Agreement, the Foundation shall perform the following duties: (i) Subject only to input from the Trustees and the Library Services Director in their capacity as members of the DSLS Advisory Committee and the duties of the Library Services Director that are specified in this Agreement, to oversee, direct and financially support the DSLS Program in substantially the same frequency, content and format of the current DSLS program; (ii) The specific duties the Foundation will perform pursuant to Subparagraph 4(13)(i) include, without limitation, the selection and recruitment of speakers, the selection and recruitment of sponsors and vendors supplying food or services at the DSLS events, the printing and sales of tickets and related material, the development and printing of advertising and press releases (subsequent to the Library Services Director's submittal of the initial advertising and press material for each DSLS event), providing meals for Library staff performing duties pursuant to this Agreement, the introduction of Trustees in attendance at the beginning of each DSLS event, the payment of all DSLS expenses and the receipt of all DSLS revenues and accounting for all revenue and expenses to the extent required by law; (iii) Acknowledge, in all promotional material for any DSLS event, that the City Council and Trustees are co- sponsors of the DSLS program; (iv) Foundation staff will, in the use of City facilities, observe the rules of conduct generally applicable to Library staff. In no event shall any City employee attempt to counsel or discipline any Foundation employee or representative for any alleged act or omission of any kind. V 5. ROLE AND DUTIES OF CITY COUNCIL The City Council is responsible for funding, through approval of the annual budget, the level of Library staffing, the level of funding available to the Library Services Director to implement the collection policies adopted by the Trustees and the approval of agreements between the Trustees and third parties relative to Library services or facilities. The City Council also has, subject to the power and authority conferred by the City Charter to the Trustees, authority over all buildings and property owned by the City. The City Council has historically considered the Library to be a key component of the high quality of life enjoyed by Newport Beach residents and presently intends to continue to fund Library services and facilities to the extent that the Trustees and the Library Services Director will have the personnel and funding necessary to perform their respective duties pursuant to this Agreement. 6. COOPERATION The Chair of the Trustees and the President of the Foundation, or their designees, shall meet from time to time and in the presence of the Library Services Director, to discuss their respective activities and plans and any issues that either perceives with respect to the activities, employees, officers or representatives of the other. In the event the Foundation determines, at any time, to consider any significant modification of the frequency, format or funding of the DSLS Program, the Chair of the Trustees and the President of the Foundation shall meet and confer, in good faith and as soon as possible, in an attempt to develop a proposed modification that will ensure continuation of the DSLS Program and they shall present those modifications to their respective Boards for approval. 7. (A) City /Trustee Acknowledgements. The City Council and Trustees acknowledge that they have no legal authority over the fund raising activities of the Foundation or the disbursement of donations by the Foundation. The City Council and the Trustees also acknowledge that the Foundation's accounting and auditing procedures are regulated by State law. The Trustees and City Council also acknowledge that the Foundation has no legal obligation to provide the Trustees with specific information regarding contributions or the use of those contributions that is not otherwise required by State Law. (B) Foundation Acknowledgments. The Foundation acknowledges that, given the Foundation's use of the Newport Beach Public Library in soliciting donations, the City Council, the Trustees and 7 the community have a legitimate interest in ensuring that fundraising activity and the use of contributions is consistent with the intent of the donors and the purpose of the Foundation. The Foundation also acknowledges that the City Council and the Trustees do have a right to express their opinion regarding the most appropriate use of donations and to advise the Foundation of any immediate needs of the Library that have not been funded by the City. (C) Mutual Acknowledgements. The Trustees and the Foundation acknowledge that, with the exception of the space in the Central Library occupied by an employee of the Foundation, they are each entities with no legal right or authority to control or direct the activities, officers, agents or representatives of the other. The Trustees and the Foundation also acknowledge that, since each is a legally independent entity, they are not legally liable or responsible for the acts or omissions of the other. This Agreement is not intended to, and does not, establish any right or authority on the part of either party over the activities, employees, officers or representatives of the other. (D) Non - Interference. The City Council, Trustees and the Foundation acknowledge the differences in their respective roles. The Foundation commits not to interfere with the Trustees or the City Council in the performance of their duties and powers granted by the City Charter. The Trustees and City Council commit not to interfere with the Foundation when they are performing the duties and powers granted by their articles of incorporation or by- laws. Neither Party will attempt to assume any power or duty granted to the other Party by the documents pursuant to which each was formed or established. In no event shall any member or representative of either the Trustees or the Foundation give direction to any employee, agent or representative of the other except to the extent specifically authorized by this Agreement. El The parties agree that non - restricted gifts and gifts designated for specific library material, resources, equipment and programs (except for the DSLS Program or similar activity) shall be disbursed to the Trustees in a manner consistent with Article 7 of the Bylaws of the Foundation. The Foundation shall provide the Trustees, within thirty days after completion, with copies of financial reports or audits the preparation of which is required by Foundation by -laws. 9. TERMINATION (A) Trustee Termination. 9 The Trustees, after giving notice of its intention to terminate to the City Council and, if requested by City Council, consulting with the City Council regarding the termination, may terminate this Agreement by giving written notice of termination no later than sixty days after the expiration of the last DSLS event in any annual DSLS Program. (B) Foundation Termination. The Foundation may terminate this Agreement by giving written notice of termination no later than sixty days after the expiration of the last DSLS event in any annual DSLS Program, 10. This Agreement represents the entire understanding of the Parties and supersedes any prior agreement, memorandum of understanding or memorandum of cooperation between the parties. DATED X03 By o Chair of the Newport each Public Library Board of Trustees DATED / C� �r i By iiv -"- -- Chair of a Newport Beach Public Library Foundation DATED Mayor of the City of Newport Beach APPROVED AS TO FORM Newport Beach City Attorney '0