HomeMy WebLinkAboutC-7444-5 - Newport Beach Library Lecture Hall Naming Rights Donation AgreementAMENDMENT NO. ONE TO NEWPORT BEACH LIBRARY
LECTURE HALL DONATION AGREEMENT BETWEEN THE CITY OF NEWPORT
BEACH, THE NEWPORT BEACH PUBLIC LIBRARY FOUNDATION, AND
WILLIAM A. WITTE & KEIKO SAKAMOTO
THIS AMENDMENT NO. ONE TO THE NAMING RIGHTS DONATION
AGREEMENT ("Amendment No. One") is made and entered into as of this I2 D_I
day of 2024, ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), the
Newport Beach Public Library Foundation, a California nonprofit public benefit corporation
("Foundation") and, William A. Witte and Keiko Sakamoto (collectively, "Donors"), made
with reference to the following:
RECITALS
A. On September 12, 2022, the City, Foundation, and Donors entered into a Naming
Rights Donation Agreement ("Agreement") for the Donors to make a charitable gift
to the City towards the Library Lecture Hall subject to the terms and conditions set
forth in the Agreement.
B. The parties desire to enter into this Amendment No. One to update Exhibit A that
was approved at the January 9, 2024 City Council meeting.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING
Exhibit A to the Agreement shall be amended in its entirety and replaced to include
the attached Amendment No. Three to the Memorandum of Understanding.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
Da
J614,���
By:
AaroQrney
. Harp
City
ATTEST:
Date: '� �•
ma
r
Leilani I. Brown
City Clerk ��T
._1.1 FOR®
DONORS:
Date:
as
William A. Witte
t
Keiko akamoto
z
CITY: CITY OF NEWPORT BEACH, a
California municipal corporation
Date: l' 17 1 7-6
y—�-
G c K. Leung
Manager
FOUNDATION: THE NEWPORT BEACH
PUBLIC LIBRARY FOUNDATION, a
California non-profit public benefit
corporat 0n
D ate'. ja .x a ee- I
By. /
rold D. Ka'
Chief xecutive Officer
Date: C vl" ca I A)��,A_
By:
Ma yn Kra
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Third Amendment to Memorandum of Understanding
Library Lecture Hall Naming Rights Donation Agreement Page 2
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING BETWEEN
THE CITY OF NEWPORT BEACH AND THE NEWPORT BEACH
PUBLIC LIBRARY FOUNDATION RELATED TO FUNDRAISING FOR THE
LECTURE HALL PROJECT
This Third Amendment to Memorandum of Understanding ("Third Amendment")
is entered into as of the 9 day of Ja"2024 ("Effective Date") by and between
the City of Newport Beach, a California municipal corporation and charter city ("City")
and the Newport Beach Public Library Foundation, a California nonprofit public benefit
corporation ("Foundation"). City and Foundation are at times individually referred to
herein as "Party" and collectively as "Parties."
RECITALS
A. The Foundation and City are Parties to that certain Memorandum of
Understanding entered into as of November 30, 2021, which was amended by
First Amendment to Memorandum of Understanding entered into as of
September 12, 2022, subsequently amended by Second Amendment to
Memorandum of Understanding entered into as of November 15, 2022, and
further amended by this Third Amendment to Memorandum of Understanding
(collectively referred to herein as, the "MOU" or "Agreement").
B. As contemplated in Section 2.4 of the MOU, the Project was competitively bid
in September 2023 based upon construction drawings prepared by RCA (the
"Construction Drawings") and the Estimated Project Costs based upon the
lowest responsible bid and other expenses already incurred has nearly doubled.
C. To complete the Project, the City's Commitment and Foundation's Commitment
must increase from Six Million Five Hundred Thousand Dollars and 00/100
($6,500,000.00) to Eleven Million Seven Hundred Forty -Three Thousand Nine
Hundred Sixty -Eight Dollars and 00/100 ($11,743,968.00) respectively.
D. The City has expended approximately Seven Hundred Fifty -Eight Thousand
Seven Hundred Dollars and 00/100 ($758,700.00) on design, environmental
and permitting for the Project. Additionally, to complete the Project, the City
must enter a construction contract without the Foundation's Commitment fully
secured.
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 1
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
E. As a result, the Foundation and City acknowledge and agree to amend the terms
of the MOU to complete the Project, as provided herein.
F. The Parties desire to reconfirm that the Library Lecture Hall will be a City owned
facility and that it will host a variety of users including the Foundation
programming consistent with the Foundation's mission statement and therefore
it will hereinafter be referred to as the Lecture Hall ("Lecture Hall"). The
Foundation further confirms that the priority of users of the Lecture Hall, other
than uses by the Foundation, is not a matter over which the Foundation will have
any control other than the Foundation's use of the Lecture Hall as provided in
Section 3.6.
G. The City and Foundation have conferred as contemplated by the MOU and have
concluded that the Low Bid should be accepted and the MOU should be
amended to (i) increase the Foundation Commitment and City Commitment in
order to fully fund the Project and (ii) reflect the willingness of the City to award
the Construction Contract and proceed with construction of the Project subject
to the Foundation raising additional funds until the Foundation has met its
revised Foundation Commitment and other amendments provided herein.
NOW, THEREFORE, for and in consideration of the mutual covenants and promises
set forth herein, the City and the Foundation do hereby agree as follows:
1. Section 1.1.2 shall be amended in its entirety to read as follows:
"2. Furniture, fixtures and equipment which is limited to chairs, a podium,
audio-visual equipment, and physical items identified in the Construction Drawings
("FF&E")."
2. Section 1.3 of the MOU shall be amended in its entirety to read as follows:
1.3 Project Costs, The Parties agree that the total Project costs based upon
the Conceptual Design prepared by RCA and approved by the City Council is
estimated to be Twenty -Three Million Four Hundred Eighty -Seven Thousand Nine
Hundred Thirty -Five Dollars and 00/100 ($23,487,935.00) (the "Estimated Project
Cost"). The Estimated Project Cost includes all design related costs, including but not
limited to the costs of Phases I -IV, and all anticipated costs of obtaining permits,
construction of the Project based upon the lowest responsible bid of Nineteen Million
Sixty -Eight Thousand Dollars and 00/100 ($19,068,000.00) (the "Low Bid") received
from AMG & Associates ("Low Bidder"), management of construction, inspections,
other soft costs, FF&E and a contingency of One Million Nine Hundred Six Thousand
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 2
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
Eight Hundred Dollars and 00/100 ($1,906,800.00) representing ten percent (10%) of
the Low Bid for construction of the Project."
3. Section 1.4 is hereby deleted in its entirety.
4. Section 1.5 shall be amended in its entirety to read as follows:
"1.5 Change Orders. The City may unilaterally approve change orders
related to construction issues at the Project that occur during construction and that the
City deems necessary (a "Necessary Change Order"). If the City or the Foundation
desire change orders to the design of the Lecture Hall or FF&E beyond what is
identified in the Construction Drawings as of the effective date of this Third Amendment
and which would create a cost in excess of the Estimated Project Cost, the Party
requesting the Change Order shall notify the non -requesting Party of such desired
change and shall provide all additional funds necessary to implement the Change
Order over and above the requesting Party's financial commitment set forth in Sections
2.1 and 3.1 respectively within seven (7) calendar days."
5. Section 2.1 shall be amended in its entirety to read as follows:
"2.1 The Foundation Commitment. The Foundation expressly agrees that it shall
collect donations in the amount of fifty percent (50%) of the Estimated Project Cost or
Eleven Million Seven Hundred Forty -Three Thousand Nine Hundred Sixty -Eight
Dollars and 00/100 ($11,743,968.00), whichever is less (the "Foundation
Commitment") for the Project.
The Foundation shall place Seven Million One Hundred Thousand Dollars and
00/100 ($7,100,000.00) in escrow on the date set forth in Section 2.4 below. The
remainder of the Foundation Commitment in the amount of Four Million Six Hundred
Forty -Three Thousand Nine Hundred Sixty -Eight Dollars and 00/100 ($4,643,968.00)
("Remainder of Foundation Commitment") shall be paid to the City within two (2) years
of Effective Date of this Third Amendment or prior to the City Council adoption of the
notice of completion of construction of the Lecture Hall in accordance with California
Civil Code Section 9200 et seq. ("Remainder of Foundation Commitment Final
Payment"), whichever occurs later. The Foundation agrees that it shall take
appropriate legal action to collect all outstanding pledges."
6. Section 2.4 shall be amended in its entirety to read as follows:
"2.4 Bidding; Payment of Donations. The City completed construction
drawings, obtained required permits, placed the Project out to bid as a public works
project, notified the Foundation of the date, time and place that the bids received for
the Project were opened by the City, invited representatives of the Foundation to attend
the bid opening, notified the Foundation of the City Council study session held on
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 3
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
November 14, 2023, and the January 9, 2024, meeting wherein the City Council will
consider award of the construction contract to the lowest responsible bidder. The
Foundation shall place Seven Million One Hundred Thousand Dollars and 00/100
($7,100,000.00) ("Escrowed Funds") of the Foundation Commitment into an escrow
account at First American Title Company in Santa Ana, CA or other escrow company
agreed to between the Parties ("Escrow Holder") not later than Friday, January 19,
2024. At such time as the City (i) thereafter demonstrates to the Foundation that the
City has appropriated the City's Commitment set forth in Section 3.1 and (ii) has
awarded the contract, finalized negotiations with the contractor and entered into a
construction agreement for the Project wherein the City is legally bound to pay for and
construct the Project (the "Release of Funds Conditions"), the Escrowed Funds shall
be disbursed to the City. Upon the occurrence of the Release of Funds Conditions,
Foundation agrees to promptly execute instructions if requested by Escrow Holder as
a condition to the disbursement of the Escrowed Funds to the City.
Notwithstanding the foregoing, in the event of the termination or expiration of this MOU
prior to the City entering into a construction contract for construction of the Project, the
Escrowed Funds shall be returned to Foundation. Upon such termination or expiration
of this MOU, the City agrees to promptly execute instructions if requested by Escrow
Holder as a condition to the disbursement of the Escrowed Funds to the Foundation.
Escrow fees of Escrow Holder shall be paid out of the Escrowed Funds."
7. Section 2.5 shall be amended in its entirety to read as follows:
"2.5 Future Protect Enhancements. In the event the Foundation believes that
certain enhancements or upgrades of the Lecture Hall or Bamboo Courtyard would be
worthy of financial support of the Foundation following the Foundation's full payment
of the entire Foundation Commitment, the City will work with the Foundation to
implement those enhancements or upgrades desired by the Foundation that are
reasonably acceptable to the City provided the Foundation pays the entire cost of any
project enhancement."
8. Section 3.1 shall be amended in its entirety to read as follows:
"3.1 City's Commitment. The City has earmarked, and through this MOU
commits to pay up to a maximum of fifty percent (50%) of the Estimated Project Cost
or Eleven Million Seven Hundred Forty -Three Thousand Nine Hundred Sixty -Eight
Dollars and 00/100 ($11,743,968.00) whichever is less (the "City's Commitment") for
the Project."
9. Section 3.6 shall be amended in its entirety to read as follows:
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 4
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
"3.6 Use of Lecture Hall. The Lecture Hall shall be owned and controlled by the City.
Notwithstanding the foregoing, the Foundation shall have a right of first use of the
Lecture Hall not to exceed fifty (50) days each fiscal year which may be exercised by
providing the City with not less than six (6) months prior written notice bi-annually on
July 1 and January 1. Use of the Lecture Hall by the Foundation shall at all times be
subject to the Declaration of Special Land Use Restrictions, as amended, which are
recorded on the Property. Any additional days requested by the Foundation will be
evaluated by the City in coordination with all other requested uses and events. In the
event of default in paying the Remainder of Foundation Commitment Final Payment
by the deadline set forth in Section 2.1, the right of first use provided herein, excluding
any Foundation events already booked, shall be suspended until the Remainder of
Final Payment of Foundation Commitment is paid in full ("Cure Period"). During the
Cure Period, the portion of the Foundation's annual endowment fund allocated to the
Newport Beach Public Library, shall be paid to the City towards the Remainder of Final
Payment of Foundation Commitment until the Foundation Commitment is paid in full.
In order to help defray on -going costs of the Lecture Hall, the Foundation shall
contribute to the City for each use by the Foundation of the Lecture Hall the lesser of
(a) the per diem cost of Lecture Hall operations for the first year of use as determined
by the City's cost study; (b) the lowest rate charged by the City for use of the Lecture
Hall by any third party; or (c) $700. Following the first year of the availability of the
Lecture Hall for program use, this sum shall increase annually by the CPI - All Items
(not to exceed 5% in any year)."
10. Section 4 shall be amended in its entirety to read as follows:
"Subject to the provisions of Section 11 below, the term of this MOU shall commence
upon mutual execution of this MOU and shall continue until the sooner to occur of (i)
completion of the Project and full payment of the Foundation Commitment to the City
or (ii) five (5) years from the date of this agreement (the "Term"). Provided, however,
once construction of the Project has commenced and for so long as it is being
continuously pursued, this MOU shall remain in effect until construction is completed
and the Foundation Commitment is paid to the City. If at the end of the Term,
construction of the Project has not commenced, this MOU shall terminate regardless
of any design work already completed or any funds expended by either party.
However, the Parties may extend the term of this MOU by mutual written consent and
an amendment to this MOU. The provisions of Section 2.5, Section 3.6, Section 11.5
and Section 12 of this MOU shall survive the expiration or earlier termination of this
MOU."
11. Section 12.3 shall be amended in its entirety to read as follows:
"Other Naming Opportunities. In addition to the naming rights of the Named
Donor, the City agrees that the Foundation may offer naming rights to the Bamboo
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 5
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
Courtyard, the lobby, the green room, the audio-visual booth at the rear of the Lecture
Hall, the auditorium, audience seats, and a donor wall subject to prior review and
approval of the City Council and execution of a Named Donor Agreement."
12. Section 13.1 shall be amended in its entirety to read as follows:
"13.1 Compliance With all Laws. Foundation shall at its own cost and expense
ensure that the Foundation entering into the MOU and any amendments comply with
its obligations under all applicable statutes including, but not limited to, California
Business and Professions Code Section 17510.8 or other statutes related to charitable
contributions, ordinances, regulations and requirements of all federal, state, county or
municipal entities including, but not limited to any interpretations or approvals by the
California Attorney General Charitable Trust Division related to its obligations under
this MOU."
13. Except as amended by this Third Amendment, the MOU shall remain in full force
and effect.
14. This Third Amendment may be executed in two (2) or more counterparts, each of
which shall be deemed an original and all of which together shall constitute the same
instrument.
[SIGNATURES ON NEXT PAGE]
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 6
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
IN WITNESS WHEREOF, the parties have caused this Amendment No. Three
to be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaro C. Harp as
City Attorney o\ 00
ATTEST:
Date:�.`t
By:
Leilani I. Brown
City Clerk
P'�,wpnr
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: /`'f'�`
Will O'Neill
Mayor
FOUNDATION:
Newport Beach Public Library
Foundation, a California Nonprofit
Corporation
z_'C'>
ief Executive Officer
Date:
By.
Marilyn Ki
Secretary
[END OF SIGNATU
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 7
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
1
7' NEWPORT BEACH LIBRARY LECTURE HALL
? NAMING RIGHTS DONATION AGREEMENT BETWEEN
r THE CITY OF NEWPORT BEACH, THE NEWPORT BEACH PUBLIC LIBRARY
V FOUNDATION, AND WILLIAM A. WITTE & KEIKO SAKAMOTO
THIS NAMING RIGHTS DONATION AGREEMENT ("Agreement") is made and
entered into by and between the CITY OF NEWPORT BEACH, a California municipal
corporation and charter city ("City"), the Newport Beach Public Library Foundation, a
California nonprofit public benefit corporation ("Foundation"), and William A. Witte and
Keiko Sakamoto (collectively, "Donors") made with reference to the following:
RECITALS
A. The City is a municipal corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now
being conducted under the statutes of the State of California and the Charter of
City.
B. The Foundation is duly organized and validly existing under the laws of the State
of California with the power to carry on its business as it is now being conducted
under the statutes of the State of California and its articles of incorporation and
bylaws.
C. The Foundation and the City entered into a Memorandum of Understanding, which
was amended on August 23, 2022, to fund and construct a lecture hall located at
1000 Avocado, Newport Beach, California ("Library Lecture Hall") to
accommodate library, cultural, educational, informational, entertainment, civic, and
community focused events to serve the community ("Amended Memorandum of
Understanding"). The Donors acknowledge receipt of a copy of the Amended
Memorandum of Understanding, which is attached hereto as Exhibit "A" and
incorporated herein by reference.
D. The Amended Memorandum of Understanding authorizes the Foundation to offer
the right to a donor to place the name of the donor, donor's spouse, or donor's
family ("Named Donor") at the location defined in Section 3.1 of this Agreement
based upon a contribution by the Donors of an amount specified in Section 1.1 of
this Agreement and subject to the City's absolute discretion and approval
("Naming").
E. The Donors wish to make a charitable gift to the Foundation towards the
construction of the Library Lecture Hall subject to the terms and conditions set forth
in this Agreement and the Amended Memorandum of Understanding.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. DONORS' SUPPORT OF CONSTRUCTION OF LIBRARY LECTURE HALL
1.1 Subject to the terms of this Agreement and the Amended Memorandum of
Understanding, Donors hereby pledge a gift in the amount of $4,000,000 to the
Foundation ("Gift") for the exclusive use by the City and the Foundation for the
construction of the Library Lecture Hall.
1.2 The Gift provided by the Donors under this Agreement shall be payable to
the Foundation at least two (2) business days prior to the date by which the City requires
the Foundation to place the Foundation Commitment (as that term is defined in Section
2.1 of the Amended Memorandum of Understanding) into escrow pursuant to the terms
and conditions of Section 2.4 of the Amended Memorandum of Understanding. For the
avoidance of doubt, the date on which the Gift is payable to the Foundation under this
Section 1.2 shall be referred to as the "Gift Donation Deadline." Notwithstanding the
foregoing, the Foundation must provide Donors with at least ten (10) days' prior written
notice of the Gift Donation Deadline.
1.3. Because the Donors are relying on the City to adopt the Amended
Memorandum of Understanding before the Donors enter this Agreement, this Agreement
will be effective, therefore, only upon the later to occur of the date on which the City adopts
the Amended Memorandum of Understanding or the date all of the parties execute the
Agreement (the "Effective Date").
2. USE OF THE GIFT
2.1 The Foundation and the City shall use the Gift exclusively to pay for the
"Actual Project Costs" (as that term is defined in Section 1.3 of the Amended
Memorandum of Understanding) of the Library Lecture Hall as generally described in
Exhibit "B" attached hereto and incorporated herein by reference. Notwithstanding
anything to the contrary in the foregoing sentence, for purposes of this agreement, "actual
project costs" shall not include any costs incurred prior to the start of construction. For the
avoidance of doubt, the Foundation may not deduct from the Gift any "Reasonable
Expenses" (as that term is defined and as authorized in Section 2.2 of the Amended
Memorandum of Understanding). Additionally, neither the Foundation nor the City may
otherwise use any amount of the Gift to pay for any other expenses that are not Actual
Project Costs.
The Foundation and the City acknowledge that the Donors are relying on the
Foundation's and the City's respective promises to use the Gift exclusively for Actual
Project Costs of the Library Lecture Hall in determining whether to proceed with making
the Gift. Therefore, the City and the Foundation shall return to the Donors the entire Gift
in the event either (i) the City does not proceed with construction of the Library Lecture
Hall or (ii) the City proceeds with construction of the Library Lecture Hall but does not
complete such construction within five (5) years from its commencement.
2.2 After the Donors transfer the Gift to the Foundation, the handling of the
funds by the Foundation and the City shall be governed by the Amended Memorandum
of Understanding. In particular, the Foundation will hold the Gift in a Foundation account
Library Lecture Hall Naming Rights Donation Agreement Page 2
and will disburse the Gift to the City only in accordance with Section 2.4 of the Amended
Memorandum of Understanding unless terminated in accordance that Section 2.4.
Furthermore, should the Amended Memorandum of Understanding terminate or expire
prior to the City having entered into a construction agreement for the construction of the
Library Lecture Hall, the City and the Foundation shall return the Gift to the Donors.
2.3. The Donors acknowledge that the City and the Foundation are relying on
the Gift in determining whether to proceed with the construction of the Library Lecture
Hall and would suffer substantial damages should the Donors breach this Agreement and
fail to provide the Gift to the Foundation as set forth herein.
3. ACKNOWLEDGEMENT AND NAMING RIGHTS
3.1 In honor of the Donors, in grateful recognition of the Donors' generosity, and
in reliance upon the Donors' full performance pursuant to this Agreement, the City agrees
to name the Library Lecture Hall East Exterior elevation as well as monument signage
along Avocado Avenue, as approved by the City and the Donors, ("Location") with the
Named Donor displayed as: "Witte Hall."
The City will ensure that the recognition of the Donors will be substantially as set
forth in Exhibit "C" attached hereto and incorporated herein by reference, consistent with
the aesthetics and architecture of the Library Lecture Hall.
3.2 Naming rights shall exist for the useful life of the Library Lecture Hall. In the
event the Library Lecture Hall is substantially renovated less than forty (40) years from
the Effective Date, demolished, destroyed, or if the Location is relocated, the City and the
Foundation will work with the Donors, or the Donors' designee, successor, or assigns, to
determine another appropriate form of recognition for the support provided by the Gift.
Destroyed, as used in this Section 3.2, means the City is unable to cover all of the costs
after the City duly pays any deductible to repair, restore, or rebuild the Library Lecture
Hall by applying or paying the proceeds of any insurance policy.
4. TERMINATION
4.1 In addition to any rights and remedies available at law, the City may
terminate this Agreement and the Naming on behalf of itself and the Foundation and all
rights and benefits of the Donors hereunder:
4.1.1 in the event of any default in payment of the entire Gift as provided
in this Agreement to the Foundation; or
4.1.2 in the unlikely event the City determines in its reasonable and good
faith opinion that circumstances have changed such that the Naming chosen by the
Donors would adversely impact the reputation, image, mission, or integrity of the City or
the Foundation due to the continued association by the City or the Foundation with the
Donors and the continuation of the Naming provided for herein. Notwithstanding the
foregoing, inasmuch as the Naming will only include the Donors' family name, should the
circumstances described in this Section 4.1.2 come to fruition, the City, by and through
its City Manager, and the Foundation by and through its representative, to the extent the
Library Lecture Hall Naming Rights Donation Agreement Page 3
Foundation is still a legal entity, will meet and confer in good faith, with the Donors, or the
Donors' designee, successor, or assigns, to determine whether there is another
appropriate form of recognition for the support the Donors provided with the Gift. All
parties hereto agree that the meet and confer process shall conclude within thirty (30)
calendar days of the City notifying the Foundation and Donor that the City wishes to
engage in the meet and confer process. After the meet and confer process is complete,
the City Manager, shall make a recommendation to the City Council and the City Council
shall act on that recommendation at a noticed public meeting of the City Council.
4.2 Upon any such termination of this Agreement and/or the Naming hereunder
as set forth in Section 4.1 of this Agreement, neither the Foundation nor the City shall
have any further obligation or liability to the Donors and shall not be required to return
any portion of the Gift already paid. The City together with the Foundation, however, may
in their sole and absolute discretion determine an alternative recognition for the portion
of the Gift already received.
5. PUBLICITY
For purposes of publicizing the Gift and the Naming, the City and the Foundation
shall have the right, without charge, to photograph the Donors and use the names,
likenesses, and images of the Donors in photographic, audiovisual, digital, or any other
form of medium and to use, reproduce, distribute, exhibit, and publish such materials in
any manner in whole or in part, including in brochures, website postings, informational
and marketing materials, and reports and publications describing the Library Lecture
Hall's activities. Notwithstanding the foregoing, the City and the Foundation shall secure
prior written consent from the Donors for the use of any photographic, audiovisual, digital,
or any other form of medium containing any likeness or image of the Donors, which
consent Donors will not unreasonably withhold.
6. ASSIGNMENT
This Agreement and the rights and benefits hereunder may not be assigned by
any party without the prior written consent of the other parties, which consent shall be in
the sole and absolute discretion of the non -assigning parties.
7. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the parties regarding the
matters referred to herein, and supersedes all prior oral and written agreement, if any, of
the parties in respect hereto. The captions inserted in this Agreement are for convenience
only and in no way define, limit, or otherwise describe the scope or intent of this
Agreement, or any provision hereof, or in any way affect the interpretation of this
Agreement.
8. STANDARD PROVISIONS
8.1 Advice. The City and the Foundation encourage the Donors to seek their
own tax or legal counsel concerning the treatment of any Gift.
Library Lecture Hall Naming Rights Donation Agreement Page 4
8.2 Waiver. A waiver by any party 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.
8.3 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement, or any attachments attached hereto, the terms
of this Agreement shall govern.
8.4 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against any party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
8.5 Amendments. This Agreement may be modified or amended only by a
written document executed by the Donors, the Foundation, and the City and approved as
to form by the City Attorney.
8.6 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
8.7 Controllinq Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
8.8 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
8.9 Binding on Successors and Assigns. This Agreement shall be binding on
the Donors' successors and assigns, including without limitation the Donors' estate, which
is hereby directed to pay the sums for which the Donors are obligated hereunder pursuant
to the terms of this Agreement.
8.10 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which together shall constitute one (1) and
the same instrument.
[SIGNATURES ON FOLLOWING PAGE]
Library Lecture Hall Naming Rights Donation Agreement Page 5
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date -.—
By:
Aa on t. Harp
City Attorney p�
ATTEST: n
Date -.—
By: llr ►�
Brown"
City Clerk
DONORS:
Date: Z�22
By:
William A. Witte
Keiko Sakai otoa
CITY: CITY OF NEWPORT BEA
California municipal cor oratio n
Date: i ��
By,
Kevin Mu on
Mayor
FOUNDATION: THE NEWPORT BEACH
PUBLIC LIBRARY FOUNDATION, a
California non-profit public benefit
corporation
Date: � z / , Z o z -Z
By: 7---t -0/ l
e old D Kappel
ief E ecu ive Officer
10 e: zo
By:
Dorothy L#6on
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Amended Memorandum of Understanding
Exhibit B — Brief Description of the Library Lecture Hall Plans
Exhibit C — Outline of Particular Place, Size and Other Attributes of
the Name Recognition (To Be Personalized for Each Naming Site)
Library Lecture Hall Naming Rights Donation Agreement Page 6
EXHIBIT A
AMENDED MEMORANDUM OF UNDERSTANDING
Library Lecture Hall Naming Rights Donation Agreement Page A-1
Gj
s
S FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING BETWEEN
r THE CITY OF NEWPORT BEACH AND THE NEWPORT BEACH
v PUBLIC LIBRARY FOUNDATION RELATED TO FUNDRAISING FOR THE
LIBRARY LECTURE HALL PROJECT
This First Amendment to Memorandum of Understanding ("Amendment") is
entered into as of the 12 day of SEPT'E►VISE 2 , 2022 ("Effective Date") by and
between the City of Newport Beach, a California municipal corporation and charter city
("City") and the Newport Beach Public Library Foundation, a California nonprofit public
benefit corporation ("Foundation"). City and Foundation are at times individually referred
to as "Party" and collectively as "Parties" herein.
RECITALS
A. The Foundation and the City are Parties to that certain Memorandum of
Understanding entered into as of November 30, 2021 (the "MOU").
B. The Parties desire to enter into this Amendment as set forth herein. Use of the
terms "Agreement" and "Amendment" are intended between the Parties to mean
the MOU and this Amendment.
C. Capitalized terms which are not otherwise defined in this Amendment shall have
the meanings ascribed to those terms in the MOU.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises set forth herein, the City and the Foundation do hereby agree as follows:
1. Section 1.3 of the MOU shall be amended in its entirety to read as follows:
"1.3 Project Cost. The Parties agree that the total Project costs based upon the
Conceptual Design prepared by RCA and approved by City Council, is estimated to be
Twelve Million Eight Hundred Thousand Dollars and 00/100 ($12,800,000.00) (the
"Estimated Project Cost"). The Estimated Project Cost also includes all design related
costs, including but not limited to the costs of Phases I -IV above, and all anticipated costs
of obtaining permits, construction, management of construction, inspections, FF&E and
a contingency. The Parties understand and agree that the Estimated Project Cost is an
estimate based upon the best available information known to the Parties at the
commencement of this Agreement and that the actual Project cost which is defined as
the actual cost of designing the Project, including but not limited to the actual costs of
Phases I -IV above, obtaining permits, constructing, managing construction, inspecting,
and FF&E for the construction of the Project (the "Actual Project Cost") may vary based
upon several contingencies, including but not limited to change(s) to the design and
configuration of the Project and/or increase in the cost of materials and/or labor."
FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 1
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
2. Section 2.2 of the MOU shall be amended in its entirety to read as follows:
"2.2 Control Over Fundraising. City shall have no control over the manner or
mechanism in which Foundation chooses to manage, hold or invest funds or the manner
or mechanism in which Foundation solicits or receives funds. City shall not direct or
authorize any specific fundraising activity; nor shall City prohibit or otherwise interfere
with Foundation's fundraising activities. Foundation shall be solely responsible for
soliciting donors, establishing partnerships with local businesses and organizations, and
handling all administrative and other responsibilities related to fundraising. Until
Foundation has released the Foundation Commitment to the City, Foundation shall be
solely responsible for determining the use or distribution of all funds raised.
Notwithstanding the foregoing, the Foundation represents that no part of any donation
shall inure to the benefit of any director, officer, member or employee of the Foundation,
except in payment of reasonable compensation for services rendered. Notwithstanding
such limit, the Foundation shall have the right to deduct from funds raised reasonable
fundraising costs, costs of preparation of the reports required pursuant to this Agreement
and other expenses directly related to fundraising for the Project ("Reasonable
Expenses") unless the Library Lecture Hall Naming Rights Donation Agreement ("Named
Donor Agreement") described in Section 12.1 dictates otherwise. This Section 2.2 shall
not be construed as limiting Foundation's obligations in Section 5 (Reporting and
Accounting Requirements). Nothing in this Agreement shall limit the right of the
Foundation to raise funds for other existing or proposed projects, including but not limited
to existing and future programming."
3. Section 2.4 of the MOU shall be amended in its entirety to read as follows:
"2.4 Bidding; Payment of Donations. Upon completion of construction
drawings and permitting for the Project, the City shall put the Project out to bid as a public
works project. The City shall notify the Foundation of the date, time and place that the
bids received for the Project will be opened by the City and representatives of the
Foundation shall be invited to attend the bid opening. Upon opening of the bids, or as
soon thereafter as is practicable, City staff ("Staff") shall determine if it will recommend to
the City Council that the City Council approve a contract to construct the Project with the
lowest responsible bidder. If such determination is made by Staff after the bid opening,
the City shall promptly notify the Foundation of the Staffs determination to make such a
recommendation to the City Council. Thereafter, the City shall notify the Foundation of
the date of the City Council meeting at which a contract with the lowest responsible bidder
will be considered by the City Council, and if acceptable, awarded; provided, however,
said City Council meeting shall not occur earlier than fifteen (15) days after the Foundation
is given such notice of the date of such City Council meeting. The Foundation shall place
one hundred percent (100%) of the Foundation Commitment into an escrow account at
First American Title Company in Santa Ana, CA or other escrow company agreed to
between the Parties ("Escrow Holder") not later than the Friday before said City Council
meeting so long as the agenda item remains on the City Council's agenda for such
meeting (i.e., the matter has not theretofore been removed from the City Council's
agenda). At such time as the City (i) thereafter demonstrates to the Foundation that the
FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 2
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
City has appropriated the City's Commitment set forth in Section 3.1 and (ii) has awarded
the contract, finalized negotiations and entered into a construction agreement for the
Project wherein the City is legally bound to pay for and construct the Project (the "Release
of Funds Conditions"), the Escrowed Funds shall be disbursed to the City. Upon the
occurrence of the Release of Funds Conditions, Foundation agrees to promptly execute
instructions if requested by Escrow Holder as a condition to the disbursement of the
Escrowed Funds to the City. In the event of the termination or expiration of this
Agreement prior to the City entering into a construction contract for construction of the
Project, the Escrowed Funds shall be returned to Foundation. Upon such termination or
expiration of this Agreement, the City agrees to promptly execute instructions if requested
by Escrow Holder as a condition to the disbursement of the Escrowed Funds to the
Foundation. Escrow fees of Escrow Holder shall be paid out of the Escrowed Funds."
4. Section 12.1 of the MOU shall be amended in its entirety to read as follows:
"12.1 Naming Rights. Subject to City Council absolute discretion and approval,
the Foundation may offer the right to a donor to place the name of the donor, donor's
spouse or donor's family on the exterior of the Library Lecture Hall (the "Named Donor").
The amount of the contribution of the Named Donor shall not be less than a minimum
amount agreed to by the City and Foundation (the "Named Donor Contribution") and shall
be memorialized by way of the Named Donor Agreement between the City, the
Foundation, and the Named Donor."
5. Section 12.3 of the MOU shall be amended in its entirety to read as follows.-
"12.3 Other Naming Opportunities. In addition to the naming rights of the Named
Donor, the City agrees that the Foundation may offer naming rights to the Bamboo
Courtyard, the lobby, the green room, the audio-visual booth at the rear of the Lecture
Hall, and a donor wall subject to prior review and approval of the City Council and
execution of a named donor agreement for such naming rights."
6. Section 12.4 of the MOU shall be amended in its entirety to read as follows:
"12.4 Rights of Donors upon Termination of Agreement. The rights of a Donor
under Section 12.3 upon termination of this Agreement shall be memorialized in named
donor agreements for each Donor."
7. Except as amended by this Amendment, the MOU shall remain in full force
and effect.
8. This Amendment may be executed in two (2) or more counterparts, each of
which shall be deemed an original and all of which together shall constitute the same
instrument.
[SIGNATURES ON NEXT PAGE]
FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 3
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
Y
AaFoA C. Harp 2
City Attorney o�.
ATTEST:
�.-
0
►.i�_. 1, azw_�_
:.
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
C
7P
IviQyul
FOUNDATION:
Newport Beach Public Library
Foundation, a California Nonprofit
Corporation
Je Fd D Kappe
hief Executive Officer
Date: q6 Z1,-,
By: Qj>44t— -
Dorothy Lars
Secretary
[END OF SIGNATURES]
FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 4
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
EXHIBIT B
BRIEF DESCRIPTION OF THE LIBRARY LECTURE HALL PLANS
The Newport Beach Public Library Lecture Hall will be a modern auditorium with
tiered, cushioned permanent seating accommodating up to 299 people, technically
advanced stage lighting and audio-visual equipment, and excellent acoustics to house
the expected range of planned presentations, from the Witte Lecture series to the Library
Sunday Musicales, from documentary films to children's programs.
The Lecture Hall will be a free-standing building just under 10,000 square feet,
sited on the Library grounds adjacent to Avocado Avenue and the current Bamboo
Courtyard. The Bamboo Courtyard will also be expanded to provide outdoor pre -event
and event space.
The Lecture Hall has been designed by Robert R. Coffee Architect + Associates.
Library Lecture Hall Naming Rights Donation Agreement Page B-1
EXHIBIT C
Outline of Particular Place, Size and Other Attributes of the Name Recognition
(To Be Personalized for Each Naming Site)
Library Lecture Hall Naming Rights Donation Agreement Page C-1
e c E
c
•iO•
E 'c Y E m a c' a
- 5E£ nE3
- c E A
2 E
q
m E m ? v -
n�$
= c 2s
v
En
E
o _
o Eu
E .Em c
'G S 3 aE E;7;a m
,
rn
il7
a
c E c
p
i —
a
_ E—'� -
E ; 4 n
x
EYL.Yn
I
°c - cC
�s
,n E EASE
i
i
r
>
r
-T
_
✓
.
W
a
3
w
>
V.
o
j
v
in
Q
x
o=
u
w Z
J � _
K
m
Z
J l7
x w
V �
Q
4
m Q
n
� F
O w
v
_
3 z
Z V '
-
�
o
m
i
�
N s
3 �
`o `o
co co
c o 0
o = —
o
co
a o 0