HomeMy WebLinkAboutS13 - Approval of the Joint Use Agreement Between the City of Newport - Staff Memo and Redline AgreementMEMORANDUM
TO: MAYOR BLOM AND MEMBERS OF THE CITY COUNCIL
FROM: GRACE LEUNG, CITY MANAGER
DATE: SEPTEMBER 26, 2023
RE: Proposed Revisions to Consent Calendar
Agreement Between the City of Newport
District for Use of Mariners Branch Library
Item No. S13 — Approval of the Joint Use
Beach and Newport -Mesa Unified School
Councilmember Kleiman has proposed revisions to the Joint Use Agreement Between the City
of Newport Beach and Newport -Mesa Unified School District for Use of Mariners Branch
Library. A redline of her suggested changes is attached for your review in advance of tonight's
City Council meeting. They are also summarized below.
1) Section 1.1. One-year termination previously stated that option could be exercised as of
2026, it was revised to "unless otherwise prohibited by the Library Bond Act..."
2) Section1.2. 20-year option to extend the Joint Use Agreement is revised to state that the
option to extend is within the sole discretion of the City Council.
3) Section 2.2. This section was revised to require a copy of any written request for
materials by the District to be sent to the Board of Trustees.
4) Section 2.2. This section was revised to require a copy of NMUSD's request for removal
of materials to be sent to the Board of Trustees.
5) Section 2.2. This section was revised to require that if the City determines removal or
relocation of material, it is within the sole discretion of the City whether to relocate those
materials.
6) Section 5. The indemnification obligation survives termination of the Joint Use
Agreement.
Staff also revised the title of the agreement back to "Joint Use Agreement."
LEASE JOINT USE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND THE NEWPORT-MESA UNIFIED SCHOOL DISTRICT FOR
USE OF MARINERS LIBRARY
THIS LEASE JOINT USE AGREEMENT ("Agreement"), is made and entered into
this _ day of , 2023, ("Effective Date") by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter City ("City") and the
NEWPORT-MESA UNIFIED SCHOOL DISTRICT, a political subdivision of the State of
California ("District"). City and District and individually referred to as "Party" and
collectively referred to herein as "Parties."
RECITALS
This Agreement is made with reference to the following facts:
WHEREAS, City owns the real property and improvements commonly referred to
as the Mariners Library located at 1300 Irvine Avenue, Newport Beach, California, 92660
("Mariners Library") as depicted in Exhibit "A," which is attached hereto and incorporated
herein by reference.
WHEREAS, District owns adjoining property located at 2100 Mariners Drive,
Newport Beach, California, 92660 where it operates Mariners Elementary School
("Mariners School") as depicted in Exhibit "B," which is attached hereto and incorporated
herein by reference.
WHEREAS, on June 11, 2002, the City and District entered into the Cooperative
Agreement for the Joint Mariners Library to provide joint use library services of Mariners
Library for the students enrolled at Mariners School which has expired en june 202022
WHEREAS, this Agreement provides for the joint access and use by the public of
an area within the Children's Room along with the exclusive access and use during
Secured Use Hours by Mariners School of another area within the Children's Room, both
of which are depicted in Exhibit "C," attached hereto and incorporated herein by
reference, and subject to the additional terms and conditions provided herein.
WHEREAS, the Parties are authorized to enter into the Agreement pursuant to the
provisions of Education Code Section 10900 et. seq., and Government Code Section
6500, et. seq.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual
covenants and for other good and valuable consideration, the receipt and sufficiency of
which is acknowledged, the Parties agree as follows:
TERM.
1—Term. The term of this Agreement shall be for a period of twenty (20)
years. Unless otherwise prohibited by the Library Bond Act, e€ither
party may terminate the Agreement by providing the other party one (1)
year advanced written notice. Notwithstanding the foregoing under the
Library BORd Ant, inint i 68 library convrinoc maSt GGRtlna thrn„h Appil
�r
2026,-therefore, neither Party may exerGise the one (1) year epcien to
teFMORate i intil May 'I 2026.
1.2. Option to Extend. Upon District's request and City's approval by the City
Council, in its sole discretionef G„^h request, the Parties may extend the
term of this Agreement for an additional twenty (20) years ("Option Term")
commencing on expiration of the Term set forth in Section 1.1, on the same
terms and conditions as contained in this Agreement as it may be amended
from time to time. District may request the Option Term extension by giving
the City written notice of its intention to extend the Term for the Option Term
at least ninety (90) days prior to expiration of the Term.
2. CITY/DISTRICT JOINT LIBRARY SERVICES.
The Parties agree that the Mariners Library consists of facilities and offers the
activities and opportunities specified in this Section:
2.1. Joint Function and Purpose. Mariners Library consists of a 15,000-square-
foot, one-story library building housing a children's room, teen corner,
reference desk, circulation room, public restrooms and a public meeting
room. The Children's Room, as depicted in Exhibit "C" is 3,700 square feet
and includes two (2) single occupant unisex restrooms, and a children's
activities room that serves the children of the surrounding Mariners
Community. A separate "School Entrance," also depicted in Exhibit "C"
provides Mariners School students direct access to the Children's Room
during the hours that school is in session. The Children's Room is designed
so that a portion of the room may be accessed only through the School
Entrance by Mariners School students.
2.2. The Library Collection. Mariners School Library Collection is integrated with
the Mariners Children's Library Collection. ("Joint Collection"). The Joint
Collection is part of the circulation and online catalog system of the Newport
Beach Public Library system.
The District shall submit a written request to the Library Services Director
and/or his/her designee, with a copy to the Board of Library Trustees, for
the addition of any new title to the Joint Collection ("Material Request").
Material Requests shall be considered in accordance with the Newport
Beach Public Library Collection Development Policy ("Policy"). If approved,
District shall be solely responsible for the cost to acquire the new material.
Pa
District staff will be responsible for reviewing both current and new
materials, in the Joint Collection in order to meet the needs of Mariners
School curriculum. Any Joint Collection materials considered not age
appropriate, no longer relevant, or not in support of Mariners School
curriculum should be addressed in accordance with District policies and
procedures. The District shall submit a written request to the Library
Services Director and/or his/her designee, with a copy to the Board of
Library Trustees, for the removal or relocation of Joint Collection materials
deemed not age appropriate, no longer relevant, or not in support of
Mariners School curriculum. Materials shall4 be relocated to another
location within the (outside of the Joint Collection.J- to
another City library location, or removed from the Library Collection, at the
sole discretion of the Citv.
City shall have the right to review the materials contained in the Joint
Collection, to relocate materials within the Joint Collection, or remove
materials from the Joint Collection and/or from the Library Collection,
consistent with the Policv.
District representatives, parents and library patrons with concerns about a
specific item in the Joint Collection may exercise their rights under the
Patron Rights provisions of the Policy.
3. CITY'S USE AND RESPONSIBILITIES.
3.1. Establishment of Authority. The Mariners Library will remain a City public
library under the administrative control of the Board of Library Trustees, as
defined in Section 708 of the City Charter. Mariners Library shall be forever
free to the inhabitants and non-resident taxpayers of the City, subject
always to such rules, regulations, and bylaws as may be made by the Board
of Library Trustees.
3.2. City Ownership of Assets. The City shall have sole ownership of the site,
the facilities, furnishings, equipment, and library materials, including the
Joint Collection. The City assumes full responsibility for operation,
maintenance and management of Mariners Library.
In the event of termination, at the end of the Term, the Joint Collection will
be retained by the Mariners Library, except for those library materials
provided by the District, the Mariners School PTA and the Mariners School
Foundation.
3.3. City Designated Hours. During District Designated Hours, general public
access to the portion of the Children's Room, depicted in Exhibit "C," shall
be limited as provided in Section 4.3. During Secured Use Hours, general
public access into the portion of the Children's Room, also depicted in
Exhibit "C" that is subject to exclusive use by Mariners School is prohibited.
City library staff will retrieve materials for the public from the Joint Collection
Cl
during Secured Use Hours.
3.4. City Funding. The City Council/Board of Library Trustees has exclusive
control of expenditures of all moneys collected, donated, or appropriated for
the library as well as exclusive charge, control and custody of the building.
Mariners Library is funded by the City with staffing assistance from the
District. City shall be responsible for salaries and staff benefits of all Library
personnel employed by City.
3.5. City Staffing. City library staff shall provide overall supervision of Mariners
Library. City shall provide District with the names and telephone numbers
of personnel that are responsible for the day-to-day operations of the joint
services to be provided under this Agreement. The list shall be updated as
needed based on personnel changes. City and District shall comply with the
requirements of State law with respect to the fingerprinting of personnel and
volunteers that may have contact with children. All City and District
employees are required to be fingerprinted and clear criminal background
check requirements prior to employment with the City and District.
3.6. City Use of Volunteers. The Mariners Library may utilize volunteers from the
community for general library use and circulation functions. Mariners
Library volunteers will not be permitted to volunteer in the portion of the
Children's Room that is subject to exclusive use by Mariners School during
Secured Use Hours.
4. DISTRICT'S USE AND RESPONSIBILITIES.
4.1. District Funding. The District is responsible for continued dedicated
resources to operate the school library. Those resources include dedicated
time of teachers and the school principal to supervise and provide
instruction and activities in the school library during classroom or student
visits and a Children's Room Library Media Technician.
The District will be billed for any Joint Collection materials outstanding on
Mariners School library accounts at the completion of the school calendar
year, for the replacement costs and processing charges in accordance with
City library policies.
4.2. District Procedure for Use of Assets. The assets of Mariners Library are the
property of the City. District shall follow the procedure set forth herein to
allow for students to utilize library materials. A unique Mariners School
library account will be created for each Mariners student to check out
materials from the Joint Collection during school hours. Mariners School
library accounts shall be created by school personnel in accordance with
District policy.
The District's Board Policies and Regulations regarding student attendance
and release from school and visitors on school campuses during school
C!
hours shall apply to the use of the portion of the Children's Room, by
students of Mariners School.
4.3. District Designated Hours. The Children's Room is designed so that the
Mariners School students will have secured use of a school library, on those
days and during those hours of required student attendance during the
school year. Secured use of the Children's Room shall not exceed 30 hours
per week between the hours of 9 a.m. and 3 p.m. ("Secured Use Hours").
The Children's Room design prevents access by the general public to a
portion of the Children's Room to serve as a school library to accommodate
students during Secured Use Hours. All other non -student days and hours
of the year including but not limited to, holidays, school breaks, teacher
development days, minimum days when students are not in session and
summer, the entire Children's Room shall be open to the public.
The remaining area of the Children's Room will remain open and accessible
to the public from the main library entrance at all times the library is open
for pre-school activities and all other general public uses.
4.4. District Staffing. The District shall employ a school library media technician
to perform the mission of the School Library in the Children's Room during
school hours. The District shall be responsible for salaries and staff benefits
of the Library Media Technician and all other District/Mariners School
personnel.
The District shall provide the City with the names and telephone numbers
of personnel that are responsible for the day-to-day operations at the joint
services to be provided under this Agreement. The list shall be updated as
needed based on personnel changes.
District shall comply with the requirements of State law with respect to the
fingerprinting of personnel and volunteers that may have contact with
children. All City and District employees are required to be fingerprinted and
clear criminal background check requirements prior to employment with the
District.
4.5. District Use of Volunteers. The Mariners School may use volunteers in the
school library during Secured Use Hours in compliance with Mariners
School's Visitor and Volunteer Policies and Regulations.
5. INDEMNITY.
City agrees to indemnify, hold harmless and defend District and their respective
officers, officials, employees, representatives, agents and/or volunteers from any
legal liability, or damages, for bodily injury, death and /or property damage,
reasonable costs and expenses arising out of the negligent acts or omissions of
City or its officers, employees, representatives, agents, and/or volunteers in the
performance of City's responsibilities pursuant to this Agreement.
.01
District agrees to indemnify, hold harmless and defend City and City's respective
officers, officials, employees, representatives, agents and/or volunteers from any
legal liability or damages for bodily injury, death and/or property damage,
reasonable costs and expenses arising out of the negligent acts or omissions of
District or its officers, employees, representatives and agents in the performance
of District's responsibilities pursuant to this Agreement.
The City's and District's duties, rights and obligations, as set forth in this Section
shall survive the termination or expiration of this Agreement.
6. NOTICES.
If to City: City Manager's Office
100 Civic Center Drive
Newport Beach, CA 92660
(949) 644-3001
FAX 644-3020
gleung chi newportbeachca.gov
If to District: Superintendent
2985 Bear Street #A
Costa Mesa, CA, 92626
(714) 424-5030
FAX 424-5018
superintendent(Omusd.us
7. INSURANCE.
The District and the City shall each procure and maintain in full force and effect
during the term of the Agreement, the following policies of insurance which may
be self -insured:
7.1. Commercial General Liability including public officials' errors and
omissions, bodily injury including death, property damage, personal and
advertising injury, sexual molestation (to the extent such insurance is
available), and defense costs with limits no less than $2,000,000 per
occurrence and $4,000,000 in the aggregate.
The District and City shall each provide the other Party with an additional
insured and primary and noncontributory endorsement.
7.2. Workers' Compensation as required by the State of California with statutory
limits and employer's liability insurance for each Party's own personnel and
volunteers, if covered, with a limit of not less than $1,000,000 per accident
for bodily injury or disease.
The District and City shall each provide the other Party with a waiver of
subrogation.
[i
0
Any insurance available in excess of or broader than the minimum required
coverage and/or minimum required limits shall be available to the other
Party as an additional insured on a primary and noncontributory basis.
MISCELLANEOUS PROVISIONS.
8.1. Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the Parties, and all oral or written
representations, understandings or agreements are expressly stated in
this Agreement. No verbal agreement or implied covenant shall be held to
vary the provisions herein.
8.2. Severability. If any term, provision, covenant, or condition of this Agreement
is held to be invalid, illegal, void, or otherwise unenforceable by a court of
competent jurisdiction, the remaining provisions of this Agreement shall
continue in full force and effect.
8.3. No Attorney's Fees. In the event of any dispute or legal action arising under
this Agreement between the Parties, the prevailing party to such dispute or
legal action shall not be entitled to attorney's fees.
8.4. Interpretation. This Agreement shall be construed according to its fair
language and common meaning to achieve the objectives and purposes
of the Parties and shall not be construed for or against either Party hereto
by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
8.5. Section Headings and Recitals. All section headings and subheadings
are inserted for convenience only and shall not affect any construction
or interpretation of this Agreement. City and District acknowledge that the
above Recitals are true and correct and are hereby incorporated by
reference into this Agreement.
8.6. Compliance with all Laws. The Parties shall at their own cost and expense
comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county.
8.7. Singular and Plural. As used herein, the singular of any word includes the
plural.
8.8. Waiver. The waiver by either Party hereto of any breach, of any term,
covenant or condition contained herein shall not be deemed to be a waiver
of any subsequent breach of the same or any other term, covenant or
condition contained herein, whether of the same or a different character.
M
8.9. Third Party Beneficiaries. This Agreement is made and entered into for
the sole protection and benefit for the parties and their successors and
assigns.
8.10. Successors in Interest. The burdens of this Agreement shall be binding
upon, and the benefits of this Agreement shall inure to, all successors
in interest to the Parties to this Agreement.
8.11. Specific Performance. The Parties acknowledge that monetary
damages would be inadequate to remedy any breach of this Agreement
by either Party. Accordingly, the Parties agree that any breach of this
Agreement shall entitle the non -breaching Party to file an action for
specific performance in a court of competent jurisdiction. In no event
shall either Party be liable for monetary damages in the event of a
breach of this Agreement.
8.12. Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one (1) agreement and have the same effect
as if all of the parties had executed the same instrument.
8.13. Governing Law and Venue. The terms of this Agreement and any related
disputes shall be governed and interpreted in accordance with the laws
of the State of California. Prior to commencing any litigation, a written
notice shall be provided to the School Library Advisory Committee. No
litigation shall be commenced for thirty (30) calendar days so that the
Parties may attempt to resolve their difference. Any action at law or in
equity arising under this Agreement or brought by any Party for the
purpose of enforcing, construing, or determining the validity of any
provision of this Agreement shall be adjudicated in a court of competent
jurisdiction in the County of Orange, California. The Parties waive all
provisions of law providing for the filing, removal or change or venue to
any other court.
8.14. Further Actions and Instruments. Each of the parties shall cooperate
with and provide reasonable assistance to the other to the extent
contemplated by this Agreement to achieve the objectives of this
Agreement. Upon the request of either Party at any time, the other Party
shall promptly execute, with acknowledgment or affidavit if reasonably
required, and file or record instruments and writing.
8.15. Amendments in Writing/Cooperation. This Agreement may be amended
only by written consent of the Parties approved as to form by their
respective attorneys specifically approving the amendment and in
accordance with the Government Code and Educational Code
provisions. The Parties shall cooperate in good faith with respect to any
amendment proposed in order to clarify that intent and application of this
Agreement and shall treat any such proposal on its own merits.
M
8.16. Authority to Execute. Any person or persons executing this Agreement
on behalf of the City and District warrants and represents that he/she
has the authority to execute this Agreement on behalf of his/her agency
and to bind that Agency to the performance of its obligations pursuant
to this Agreement.
[SIGNATURES ON NEXT PAGE]
9
IN WITNESS THEREOF, the parties hereto have executed this Agreement on
the day and year first set forth above.
DISTRICT:
By:
Ashley Anderson, President
of the Board of Education
APPROVED AS TO FORM:
By:
Spencer E. Covert, Legal Counsel for
Newport -Mesa Unified School District
CITY:
By:
Noah Blom, Mayor
for the City of Newport Beach
ATTEST:
By:
Leilani Brown, City Clerk
for the City of Newport Beach
APPROVED AS TO FORM:
By:
Aaron C. Harp, City Attorney
for the City of Newport Beach
Attachment(s): Exhibit A — Mariners Public Library Depiction
Exhibit B — Mariners School Depiction
Exhibit C — Children's Room Depiction
10