HomeMy WebLinkAboutC-7444-8 - 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 ROY B. WOOLSEY
THIS AMENDMENT NO. ONE TO THE NAMING RIGHTS DONATION
AGREEMENT ("Amendrpent No. One") is made and entered into as of this 114
day of2024, ("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, Roy B. Woolsey ("Donor"), made with reference to the following:
RECITALS
A. On December 5, 2022, the City, Foundation, and Donor entered into a Naming
Rights Donation Agreement ("Agreement") for the Donor 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:
1. 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 ATTORNEY'S OFFICE
Date: I ,— _ I I _ .
IA
Aare C. Har
City Attorney
ATTEST: �" 2bZ
Date: , b
Z
_m2w-,P'�
Leilani I. Brown
City Clerk
DONOR:
Date: January 13, 2024
By: ko"' r'� -
Roy B. Woolsey
CITY: CITY OF NEWPORT BEACH, a
California municipal corporation
Date: 1
By:
ac . Leung
Manager
FOUNDATION: THE NEWPORT BEACH
PUBLIC LIBRARY FOUNDATION, a
California non-profit public benefit
corporatiy or1
Date:
[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 q 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 2A 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 Project 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: I '-�''-f-
By: /1/ LL____
Aaro , C. Harp as
City 4orney p\ 00
ATTEST:
Date: �64
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:o.,, --
Will O'Nei I
Mayor
FOUNDATION:
Newport Beach Public Library
Foundation, a California Nonprofit
Corporation
Jeyfd D Kappel ,
Chief Executive Officer
Date:
By: —
Marilyn Ki
Secretary,
[END OF SIGNATURE
THIRD AMENDMENT TO MEMORANDUM OF UNDERSTANDING - 7
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
NEWPORT BEACH LIBRARY LECTURE HALL
NAMING RIGHTS DONATION AGREEMENT
THIS NAMING RIGHTS DONATION AGREEMENT ("Agreement") is made and
entered into as of this 5114 day of DEX-E BeM. 2022, ("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, Roy B. Woolsey, ("Donor"), whose
address is 26649 Snell Lane, Los Altos Hills, California and is made with reference to the
following:
RECITALS
A. 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.
C. The Foundation and the City entered into a Memorandum of Understanding on
November 30, 2021, 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"). Donor acknowledges
receipt of a copy of the Memorandum of Understanding and 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 a donor, donor's spouse, or donor's family
("Named Donor") at the location defined in Section 3.1 based upon a contribution
by Donor of an amount specified in Section 1 of this Agreement and subject to the
City's absolute discretion and approval ("Naming").
E. Donor wishes to make the charitable gift to the Foundation towards 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. GIFT
Subject to the terms of this Agreement and the Amended Memorandum of
Understanding, Donor hereby pledges a gift in the amount of $1,000,000.00 to the
Foundation ("Gift") for the use and benefit of the City and the Foundation towards the
construction of the Library Lecture Hall. The Gift is a binding, irrevocable pledge that will
be paid to the Foundation within thirty (30) calendar days of notice by Foundation.
2. USE OF THE GIFT
The Gift shall be used for the payment of the costs of construction of the Library
Lecture Hall as generally described in Exhibit "B" attached hereto and incorporated herein
by reference and associated Foundation reasonable expenses related to fundraising for
the Library Lecture Hall. The Foundation will hold the Gift in a Foundation account and
will disburse the Gift to the City in accordance with Section 2.4 of the Amended
Memorandum of Understanding unless terminated in accordance with Section 2.4. The
handling of the funds by the Foundation and the City shall be governed by the Amended
Memorandum of Understanding. Donor acknowledges 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 Donor 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 Donor, in grateful recognition of the Donor's generosity, and
in reliance upon Donor's full performance pursuant to this Agreement, the City agrees to
name the Lobby ("Location") with the Named Donor displayed as: "Louise and Roy
Woolsey Memorial Lobby."
The City will ensure that the recognition of the Named Donors will be substantially
as set forth in Exhibit "C," which is attached hereto and incorporated herein by reference,
consistent with the aesthetics and architecture of the Library Lecture Hall.
Donor shall be additionally listed on the multiple donor recognition wall in the Lobby
with the Named Donor displayed as "Roy B. Woolsey, in memory of his parents Louise &
Roy Woolsey," in a manner 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 demolished, destroyed, or ceases to be used by the City,
or if the Location is relocated or substantially renovated, the City and the Foundation will
work with the Donor, or the Donor's designee, successor or assigns to determine another
appropriate form of recognition for the support provided by the Gift.
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 Donor hereunder:
4.1.1 In the event of any default in payment of the entire Gift as provided
in this Agreement to the Foundation and City; or
Library Lecture Hall Naming Rights Donation Agreement Page 2
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 Donor
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 Donor
and the continuation of the Naming provided for herein.
4.2 Upon any such termination of this Agreement and/or the Naming hereunder,
neither the Foundation nor the City shall have any further obligation or liability to Donor
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 Donor and use the names,
likenesses, and images of the Donor 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.
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. This Agreement may not be modified or amended except by
written agreement executed by the parties 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 Donor to seek their own
tax or legal counsel concerning the treatment of any Gift.
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.
PlIfO
Library Lecture Hall Naming Rights Donation Agreement Page 3
8.3 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement, or any other 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 Donor, 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 Donor's successors and assigns, including without limitation Donor's estate, which is
hereby directed to pay the sums for which Donor is obligation 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]
W
Library Lecture Hall Naming Rights Donation Agreement Page 4
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTO EY'S OFFICE
Date: —
►
Aaron C.
By:
p
City Att ey
�a—
CITY:
CITY OF NEWPORT BEACH, a
California municipal corporation
Date-
By.
Kevin Muld
Mayor
ATTEST: FOUNDATION: THE NEWPORT BEACH
Date: 12•5 ��Z PUBLIC LIBRARY FOUNDATION, a
California non-profit public benefit
City Clerk
F
,U
DONOR: Roy B. Woolsey
Date: 1 v 2- 7—
By.
'J Gil
Name: Roy 6. Woolsey
corporation
Date:
By:�
Jer d Kappel
C�Si� Executive Officer
Date: 1�z-
i
By:
Dorothy Larson
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
Library Lecture Hall Naming Rights Donation Agreement Page 5
EXHIBIT A
AMENDED MEMORANDUM OF UNDERSTANDING
Library Lecture Hall Naming Rights Donation Agreement Page A
Cj
9
FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING BETWEEN
THE CITY OF NEWPORT BEACH AND THE NEWPORT BEACH
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 M day of SEPTE►►ISE R , 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 -
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
19`4 WITNESS WHEREOF, the parties have caused this Amendment to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: (? %/ i / 2 -z- C
By:-I',,,r C ���� B
AaForl C. Harp 2
City Attorney oi5
ATTEST:
:.
City Clerk
FOUNDATION:
Newport Beach Public Library
Foundation, a California Nonprofit
Corporation
Jer' d D Kappe
`'Chief Executive Officer
Date:
By:
Dorothy Lars'V
Secretary
[END OF SIGNATURES]
FIRST AMENDMENT TO MEMORANDUM OF UNDERSTANDING -
NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
NO
MEMORANDUM OF UNDERSTANDING BETWEEN
THE CITY OF NEWPORT BEACH AND THE NEWPORT BEACH
PUBLIC LIBRARY FOUNDATION RELATED TO FUNDRAISING FOR THE
LIBRARY LECTURE HALL PROJECT
This Memorandum of Understanding ("Agreement") is entered into as of the 30th
day of November, 2021 ("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 was incorporated in 1989 to raise funds for the construction of the
City of Newport Beach Central Library ("Central Library") located at 1000 Avocado
Avenue ("Property").
B. The Central Library was first completed in 1994, and later expanded in 2013.
C. After completion of the Central Library, the Foundation gradually began to produce
programming at the Central Library as a way to bring people to the Central Library,
raise funds to support the Central Library and otherwise encourage a rich cultural
environment for the residents of the City.
D. The Foundation has grown into an organization that employs three (3) full time
employees, none of whom are City employees (i.e., no current or post -employment
City obligations), whose primary function is to raise funds, and assist in the
production of programming for, and otherwise support the Central Library and its
branches.
E. The Foundation has raised over Seven Million Dollars and 00/100 ($7,000,000.00)
over the ten (10) years prior to Covid-19 in furtherance of library programming or
for valuable library enhancements and benefits, without cost to the City.
F. The Friends Room at the Central Library hosts many Foundation funded programs
including The Witte Lecture Series, Library Live speakers, It's Your Money and
Medicine in your Backyard, in addition to programs sponsored by the City and by
the Friends of the Library, the demand for many of which programs exceed the
capacity of the Friends Room. The ability to attract/afford certain authors and
prominent speakers to the Friends Room is limited by the size of the Friends Room,
its portable plastic chair seating arrangement, flat floor with poor sightlines and
rudimentary audio-visual equipment.
G. There is a need for a modern facility at the Central Library (the "Library Lecture
Hall") to accommodate Foundation programs as well as other library, cultural,
educational, informational, entertainment, civic and community focused events to
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
serve Newport Beach residents and facilitate other City gatherings, including those
of City employees for various purposes.
H. The City is interested in encouraging the quality cultural activities being brought to
the City's residents in a convenient location and in a comfortable state of the art
facility, and anticipates that the cost of developing the Library Lecture Hall in a
manner befitting Newport Beach will necessitate significant private financial
support from the community.
The Foundation is interested in helping to fund the Project (as defined in Section
1.1 below) by seeking donations from its existing supporters as well as from the
community at large.
The City believes that there is a need for the Project and that it is in the best interest
of the City.
K. In furtherance of the development of the Project with substantial private funding
through the Foundation, in December 2019, the City entered into a Professional
Services Agreement with Robert R. Coffee Architects + Associates ("RCA") for the
conceptual design of the Library Lecture Hall, and thereafter the completion of all
construction documents and other project elements.
L. The conceptual design of the Library Lecture Hall is complete and the Foundation
has agreed to fundraise for the design and construction of the Library Lecture Hall
substantially consistent with RCAs conceptual design (the "Conceptual Design"),
and other commitments as provided herein.
M. Through this Agreement, the Parties wish to memorialize their intention to equally
share in the cost of the Project subject to other terms and conditions set forth
below.
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises set forth herein, the City and Foundation do hereby agree as follows:
1. PROJECT DESCRIPTION AND BUILDING COST OF CONSTRUCTION.
1.1 Project Description. Subject to the Newport Beach City Council final
approval of the Conceptual Design, the Library Lecture Hall and related above and
underground improvements and other work generally depicted in the Conceptual Design
and supporting slides attached hereto and incorporated herein as Exhibit "A" and more
particularly further described as follows (collectively, the "Project"):
1. An approximately 9,533 square foot building with a stage, green
room, seating to accommodate between 270 and 299 fixed and/or moveable seats, ADA
compliant paths of travel and an interior lobby area.
2. Furniture, fixtures and equipment including but not limited to chairs,
podiums, audio-visual equipment, tables and the like ("FF&E").
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
3. Outdoor improvements and landscaping including but not limited to
an expanded and refurbished Bamboo Courtyard, sidewalks, covered walkways,
restrooms, donor wall and the like.
4. Site improvements including but not limited to necessary demolition
and removals/hauling/disposals, grading, compacting and other earthwork,
upgrading/relocating water, sewer and storm drain lines and facilities, installing electrical,
telephone and other underground utility services and lines, construction of site and
retaining walls, hardscape, water quality and erosion related improvements, signage and
adding parking areas and changing the circulation pattern of the parking lot including drop
off areas (collectively, the "Site Work").
1.2 Pre -Construction Project Phasing. The Pre -Construction Project phases
estimated completion date for each phase and projected costs are as follows:
Phase
Description
Projected Deadline
Projected Cost
I
Conceptual design for
Completed
the Project
II
Refinement of the
December 2021
conceptual design
including FF&E layouts
III
Completion of
December 2021
environmental exemption
IV
Completion of all
May 2022
$672,670
construction documents
Phases I -IV
needed for Project
bidding including but not
limited to mechanical,
electrical and plumbing
plans
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 (the "Actual Project
Cost") may vary based upon several contingencies, including but not limited to, change(s)
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
to the design and configuration of the Project and/or increase in the cost of materials
and/or labor.
1.4 Construction Contingency. The Parties agree that for the purposes of their
respective commitments under Section 2.1 and Section 3.1 of this Agreement, they will
plan for a construction contingency (the "Contingency") of ten percent (10%) of the
contract amount awarded to the successful bidder (the "Contract Amount"). If the
Contract Amount plus the Contingency exceeds Thirteen Million Dollars and 00/100
($13,000,000.00), the Parties shall meet at the request of either Party and confer in good
faith to discuss alternatives for funding such excess.
1.5 Change Orders. The City may unilaterally approve of change orders
that are 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 Library Lecture Hall (an "Optional
Change Order"), each shall notify the other of such desired change and the Parties shall
meet and confer in good faith to discuss the proposed change order and the reasons
therefor provided the meet and confer process does not delay completion of the Project
pursuant to the construction agreement. To the extent Necessary and Optional Change
Orders in the aggregate (collectively, "Change Orders") exceed the Contingency, and the
Contract Amount, plus the Contingency plus the amount of the Change Orders over the
Contingency exceed Thirteen Million Dollars ($13,000,000), the Parties shall meet as
requested by either Party and confer in good faith to discuss alternatives for funding such
excess.
2. FOUNDATION OBLIGATIONS
2.1 Fundraisinq Commitment. The Foundation expressly agrees that it shall
use best efforts to collect donations in the amount of fifty percent (50%) of the Estimated
Project Cost, or Six Million Five Hundred Thousand Dollars and 00/100 ($6,500,000.00),
whichever is less (the "Foundation Commitment"), to pay towards costs of the Project.
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"). 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
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
limit the right of the Foundation to raise funds for other existing or proposed projects,
including but not limited to existing and future programming.
2.3 Fundraising Reports. From and afterthe commencement of this Agreement,
the Foundation shall provide a report to the City Manager every six (6) months setting
forth the total amount of donations received/collected for funding the Project including any
donations pledged for the Actual Project Costs. Such written progress report may be
transmitted in, and by, any format, including delivery by electronic mail.
2.4 Payment of Donation. Upon completion of construction drawings and
permitting (but prior to the City issuing a notice inviting bids), the City shall give notice to
the Foundation providing evidence reasonably satisfactory to the Foundation of such
completion. Within forty-five (45) calendar days of receipt of such notice, 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 ("Escrow Holder"). At such
time as the City (i) 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 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 City's execution of an
agreement 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.
2.5 Future Project Enhancements. In the event that the Foundation believes
that certain enhancements or upgrades of the Lecture Hall or Bamboo Courtyard would
be worthy of financial support of the Foundation in future years, the City will work with the
Foundation to implement those enhancements or upgrades desired by the Foundation
that are reasonably acceptable to the City.
CITY OBLIGATIONS
3.1 City Commitment. Provided the Foundation is able to provide the amount
set forth in Section 2.1, the City has earmarked, and through this Agreement commits to
pay up to a maximum of fifty percent (50%) of the Estimated Project Cost or Six Million
Five Hundred Thousand Dollars and 00/100 ($6,500,000.00) (the "City's Commitment"),
whichever is less, towards costs of the Project.
3.2 Phase Completion. The City shall use its reasonable efforts to complete
Phases I through IV identified above by May 31, 2022.
3.3 Reporting. The City shall provide to the Foundation electronic copies of the
contractor's construction draw requests when received by City (but without backup unless
specifically requested by the Foundation) as well as a final report to the Foundation
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
documenting use of the Foundation Commitment within six (6) months of completion of
the Project.
3.4 Prolect Control and Property Ownership. Except as provided in Section 3.6
below, City shall have sole responsibility for and control over, completion of the plans and
specification of the Project consistent with the Conceptual Design, obtaining all required
permits for the Project, bidding the Project, selection of the contractor for the Project, and
the construction, project management, inspection and completion of the Project, and
thereafter for the operation and maintenance of the Project. The Parties anticipate that
construction of the Project will take approximately fifteen (15) months. At all times during
and after the Term of this Agreement, the Library Lecture Hall, Site Work, and all related
improvements including FF&E and the real property upon which the Project and related
improvements are located shall be the sole property of the City.
3.5 Use of Donations; Refund of Excess Foundation Prolect Funding. City shall
ensure that donated funds received from the Foundation shall be used solely for payment
of Actual Project Costs. In the event that an audit (with the audit period ending no sooner
than issuance of the notice of completion for the Project) determines that all or any part
of the Foundation Commitment have been paid and such payments in the aggregate
exceed the Foundation's Commitment, the City shall refund such excess amount to the
Foundation within thirty (30) days.
3.6 Use of Library Lecture Hall. To the extent the City controls the use of the
Library Lecture Hall, the Foundation shall have the right to use the Library Lecture Hall in
accordance with the Board of Library Trustees Policy NBPL 15 attached hereto and
incorporated herein as Exhibit "B".
4. TERM
Subject to the provisions of Section 11 below, the term of this Agreement shall
commence upon mutual execution of this Agreement and shall continue until the sooner
to occur of (i) completion of the Project 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 Agreement shall remain in effect until
construction is completed. If at the end of the Term, construction of the Project has not
commenced, this Agreement 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 Agreement by mutual written consent and an amendment to this Agreement.
The provisions of Section 2.5, Section 3.6, Section 11.5 and Section 12 of this Agreement
shall survive the expiration or earlier termination of this Agreement.
5. REPORTING AND ACCOUNTING REQUIREMENTS
5.1. Records. At all times during the term of this Agreement, Foundation shall
maintain true, proper, and complete books, records, and accounts (collectively, "Books
and Records") in which shall be entered fully and accurately all donations received for the
Project as well as the expenditure of any funds donated for the Project or for Reasonable
Expenses. Foundation shall maintain the Books and Records in accordance with
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
Generally Accepted Accounting Principles ("GAAP"). Foundation shall make available to
City copies of such Books and Records upon City's request.
5.2 Inspection. City at City's expense shall have the right to designate its own
employee representative(s) or designate a contracted representative(s) with an
independent Certified Public Accounting firm who shall have the right to audit
Foundation's accounting procedures and internal controls of Foundation's financial
systems as they relate to this Agreement and to examine any cost, revenue, payment,
claim, other records or supporting documentation resulting from any items set forth in this
Agreement during the term of this Agreement and Record Retention period set forth in
Section 5.3 of this Agreement. Any such audit(s) shall be undertaken by City or its
representative(s) at mutually agreed upon reasonable times and in conformance with
generally accepted auditing standards. Foundation agrees to fully cooperate with any
such audit(s).
5.3 Record Retention. Foundation agrees to retain all necessary
records/documentation for a period of three (3) years or longer, if required by law,
following the termination of this Agreement. Foundation agrees to retain all necessary
records/documentation for the entire length of the audit period set forth in Section 5.2.
5.4 Donation Oversight. Foundation agrees to exercise prudent financial
management processes including proper oversight of all donations.
6. INDEPENDENT ENTITY
In the performance of this Agreement, the Foundation, and the volunteers, agents
and employees of Foundation, shall act in an independent capacity and are not officers,
employees or agents of the City. Nothing in this Agreement shall be deemed to constitute
approval for Foundation or any of Foundation's directors, officers, volunteers, employees
or agents, to be the agents or employees of City.
7. INDEMNIFICATION
7.1 To the fullest extent permitted by law, Foundation shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, and employees (collectively, the "City Indemnified Parties") from and against
any and all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorney's fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate
(directly or indirectly) to the breach of this Agreement or the negligent and/or willful acts,
errors and/or omissions of Foundation, its principals, officers, agents, employees
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by
any of them or for whose acts they may be liable or any or all of them.
Likewise and to the fullest extent permitted by law, the City shall indemnify, defend
and hold harmless Foundation, its boards and commissions, officers, agents, volunteers,
and employees (collectively, the "Foundation Indemnified Parties") from and against any
and all Claim or Claims, which may arise from or in any manner relate (directly or
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
indirectly) to the breach of this Agreement or the negligent and/or willful acts, errors and/or
omissions of City, its principals, officers, agents, employees vendors, suppliers,
consultants, subcontractors, anyone employed directly or indirectly by any of them or for
whose acts they may be liable or any or all of them.
8. INSURANCE
Without limiting Foundation's indemnification of City, Foundation shall obtain,
provide and maintain at its own expense during the term of this Agreement or for other
periods as specified in this Agreement, policies of insurance of the type, amounts, terms
and conditions described in the Insurance Requirements attached hereto as Exhibit "C,"
and incorporated herein by reference.
9. PROHIBITION AGAINST TRANSFER
Neither Party shall assign, sublease, hypothecate, or transfer this Agreement
directly or indirectly, by operation of law or otherwise without prior written consent the
other Party. Any attempt to do so without prior written consent of the other Party shall be
null and void.
10. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall
be given in writing and conclusively shall be deemed served when delivered personally
or on the third business day after the deposit thereof in the United States mail, postage
prepaid, first class mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Foundation to City shall be
addressed to the City at:
Attn: City Manager
City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658-8915
All notices, demands, requests or approvals from City to Foundation shall be
addressed to Foundation at:
Attn: Chief Executive Officer
Newport Beach Public Library Foundation
1000 Avocado Avenue
Newport Beach, CA 92660
11. TERMINATION
11.1. Termination. This Agreement shall terminate as provided in Section 4,
except as otherwise provided in this Section 11.
11.2 Termination for Cause. Foundation shall be in default if Foundation fails or
refuses to perform any duty required by this Agreement or performs in a manner
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
inconsistent with the terms, conditions and restrictions in this Agreement. In such event,
City shall give Foundation thirty (30) calendar days' written notice to cure, if the default
can be cured (the "Cure Period"). City shall be entitled to terminate this Agreement if
Foundation has not cured the default within the Cure Period but only if the notice of
termination has been given before the default has been cured. City shall be entitled to
immediately terminate this Agreement if the default cannot be cured through corrective
action.
11.3. Termination without Cause. Prior to the occurrence of the Release of
Escrowed Funds Condition, City may terminate this Agreement at any time with or without
cause upon seven (7) days written notice to Foundation.
11.4 Specific Performance. If the City enters into an agreement for construction
of the Project and the Foundation and/or Escrow Holder has/have not released the
Foundation's Commitment, the Foundation agrees that the City shall have the right to
specifically enforce Foundation's obligations.
11.5 Treatment of Donations Following Termination. In the event that this
Agreement is terminated by the City for cause after the satisfaction of the Release of
Funds Conditions, the Foundation shall deliver or cause to be delivered the Escrowed
Funds and all other donations collected by Foundation for Actual Project Costs to the
City, and the City shall thereafter complete the Project as soon as reasonably practicable.
12. NAMING RIGHTS
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 an agreement between the City and the Named Donor (the
"Named Donor Agreement").
12.2 Named Donor Signage. The location, size and design details of the signage
identifying the Named Donor shall be memorialized in the Named Donor Agreement. The
Parties anticipate Named Donor signage will be on the East elevation of the Lecture Hall,
as well as an appropriately scaled monument sign along Avocado Avenue as reasonably
determined by the City and approved by the Irvine Company.
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, and a donor wall subject to prior review and
approval of the City Council and execution of a Named Donor Agreement.
12.4 Rights of Donors upon Termination of Agreement. The rights of a Named
Donor upon termination of this Agreement shall be memorialized in the Named Donor
Agreement.
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
13. STANDARD PROVISIONS
13.1 Compliance With all Laws. Foundation shall at its own cost and expense
comply with all applicable statutes, ordinances, regulations and requirements of all
governmental entities related to its obligations under this Agreement, including federal,
state, county or municipal, whether now in force or hereinafter enacted.
13.2. Waiver. A waiver by either 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.
13.3 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
13.4 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 either Party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
13.5 Amendments. This Agreement may be modified or amended only by a
written document executed by both Foundation and City and approved as to form by the
City Attorney.
13.6 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.
13.7 Controlling 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.
13.8 Equal Opportunity Employment. Foundation represents that it is an equal
opportunity employer and it shall not discriminate against any contractor, employee or
applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age or any other impermissible basis under law.
13.9 No Attorneys Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorney's fees.
13.10 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 the same instrument.
[SIGNATURES ON NEXT PAGE]
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
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: Eu
By:
Aaron . Harp
City or
ATTEST:
Date: a % - A6j
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
i
B
d Kevin Mul n
Mayor
FOUNDATION:
Newport Beach Public Library
Foundation, a California Nonprofit
Corporation
Date: 2 - 2Y-.2®ZZ
e old D. Kappel
4
ief Executive Officer
Date: � Z-Z
why Larson
Secretary
[END OF SIGNATURES]
Attachments: Exhibit A — Conceptual Plan
Exhibit B — Board of Library Trustees Policy NBPL 15
Exhibit C — Insurance Requirements
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
EXHIBIT A
CONCEPTUAL PLAN
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EXHIBIT B
Board of Library Trustees Policy NBPL 15
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
6 BPL 15
The Library Lecture HA-111
Background
The auditorium at the Newport Beach Central Library is known as the Library Lecture Hall ("LLH").
The Library Board of Trustees and the Library Services Department administer the Library and the
LLH. The LLH is an important source of meeting space for Library, Library -related, Library -affiliated,
City of Newport Beach ("City") and outside lectures, programs, and activities. It is not unusual for
Library and City officers and employees to have a need to use the LLH for Library and City business
on short notice. Moreover, use of the LLH takes Library staff away from their normal duties and, if
uncontrolled, can interfere with the public's use and enjoyment of the Library.
Applicability
Except as otherwise specifically provided to the contrary herein, this Policy shall not apply to First
Priority and Second Priority uses (as defined below) of the LLH as provided below, although the
users of such Priorities are required to complete in advance an Application For Use form for such
uses. So long as they complete and file in advance the Application For Use form, such users shall be
entitled to use the LLH with the permission of and subject to confirming availability with the Library
Services Director, Moreover, it shall be permissible for such users to place an advance hold on
recurring regularly scheduled dates of use by such users, e.g., the first Thursday morning of each
month at 7:30 AM.
Purpose
The purpose of this Policy is to establish:
A. Procedures for processing and approving or disapproving requests from applicable groups
or organizations for permission to use the LLH;
B. Priorities as set forth below for the use of the LLH and to resolve any conflict related to
requests for use; and
C. Standards and criteria for the use of the LLH to insure there is no significant impact on the
workload of staff.
Priorities of Use
The mission of the Library is to be the cultural, educational, and informational heart of Newport
Beach (the "Library Mission"). Subject to the Library Mission, to this Policy, and to all related terms
and conditions, the LLH is available for use as provided herein. The fact that a group or organization
is granted permission to use the LLH in no way constitutes endorsement of the policies or beliefs of
that organization by the Library or the City. Even following an advance reservation pursuant to a
completed Application For Use, NBPL has a right to preempt any event for a Library or Library -
related event; in such rare instances, Library will use its reasonable efforts to assist the group in
reserving another date for use of the LLH. The numerical listing below a particular Priority (e.g.,
First Priority) shall indicate the preference or priority within the stated Priority, e.g., First Priority
A.I. shall have preference over First Priority A.2.
A. FIRST PRIORITY
1. The Newport Beach Public Library Foundation (the "Foundation") and, thereafter, other
NBPL support groups including but not limited to The Friends of the Library and Project
Adult Literacy.
2. Any official Library sponsored, co -sponsored, and/or conducted programs and activities that
are directly related to the Library Mission and the Library's functions and purposes.
B. SECOND PRIORITY
Any meeting or activity of (i) the Newport Beach Chamber of Commerce, (ii) the Corona Del
Mar Chamber of Commerce, (iii) Speak Up Newport, or (iv) any other local non-profit
organization or entity which organization or entity is based in or around the City and whose
meeting or activity is primarily and substantively designed to educate and inform the local
community on current issues. With respect to subsection (iv), the Director shall have the
discretion to determine whether an organization or entity meets the qualifications set forth
in subsection (iv) and whether a meeting or activity meets the qualifications set forth in
subsection (iv).
Any meeting or activity by local non-profit organizations or entities which organizations or
entities are based in or around the City. The Director shall determine whether an
organization or entity qualifies as a local non-profit organization or entity for purposes of
Second Priority status.
C. THIRD PRIORITY
Use of the LLH may be granted by the Library Services Director to those persons, organizations,
or entities listed below on a first come, first serve basis:
1. Sponsored educational or informational programs and activities of state or local public
agencies such as local public schools or public districts.
2. Recreational, social, or civic organizations and/or groups that are promoted and sponsored
by City residents or City non-profit organizations that are open to the public and have fifty
percent (50%) or more of their memberships held by Newport Beach residents.
3. Recreational, social, or civic organizations and/or groups that are non-resident and are
promoted and sponsored by non-profit organizations that are open to the public but do not
qualify under C.2. above.
4. Schools, colleges, hospitals, or other similar groups not qualifying under the definition of
non-profit. Non-profit status is defined as an organization that is so defined by the Internal
Revenue Code Section 501(c) and has a State of California Tax Identification Number.
D. FOURTH PRIORITY
All other outside organizations, municipal agencies, individuals, and groups have Fourth Priority
on all dates, and may reserve events on a first come, first serve basis under the terms,
provisions, and documents required hereunder. All Fourth Priority users shall enter into an
Agreement Regarding Use Of Library Lecture Hall For Outside Events ("Outside Events Contract") in
form and content as the Director may specify from time to time, which Outside Events Contract shall
include the Rules and Regulations (First Addendum to Outside Events Contract) in form and content
as the Director may specify from time to time.
Procedure
All persons, groups or entities seeking permission to use the LLH ("applicant") shall submit an
Application For Use on the form provided by the Department. The applicant shall provide all
information requested in the application and such additional information as may be required by the
Library Services Director to enable the Director to determine if use by the applicant will comply with
this Policy. Applications shall not be considered complete unless accompanied by required fees,
proof of insurance, and any additional requested information to the extent applicable. No person,
group or entity shall be entitled to use of the LLH unless their application has been approved by the
Library Services Director or the Director's designee. If an applicant fails to comply with the standard
conditions of use or any special conditions imposed by the Director, no additional application by
that applicant shall be considered for a one-year period following such failure.
Standard Conditions of Use Applicable to Third Priority and Fourth Priority Users
These standard conditions of use shall be and are applicable to Third Priority and Fourth Priority
users only; with the exception of standard conditions B, D, and F, the standard conditions are not
applicable to First Priority and Second Priority users; provided, however, other than in the case of
the Foundation, the Director shall have the discretion to impose one or more such other standard
conditions on First Priority and Second Priority users. An Application For Use of the LLH may be
approved subject to the Third Priority User's and the Fourth Priority User's compliance with the
following standard conditions of use and other conditions of use as may be imposed by the Library
Services Director:
A. The use of alcoholic beverages is prohibited unless expressly approved in writing by the
Library Services Director and subject to the approval of the Alcoholic Beverage Control
Board.
B. Smoking, vaping of any kind, and other use of tobacco or similar products is prohibited in
the LLH and the entire Library campus, including restrooms and all common areas.
C. At least one (1) adult shall be present in the LLH when minors are in attendance.
D. No person shall interfere with the normal use and activities of the Library by way of noise,
disturbance, or other activity.
E. Meetings or activities conducted in the LLH may not be advertised or promoted as City or
Library sponsored activities unless approved in advance by the Library Services Director. All
materials used for advertising or announcing a meeting or activity to be conducted in the
LLH shall be submitted to the Library Services Director at least ten (10) days prior to the use
for the sole purpose of determining if the materials comply with this condition. The Library
Services Director shall notify the permittee of the Director's determination that the
materials comply or do not comply with the condition within three business days after
submittal.
F. Events or activities in the LLH shall not exceed [274? Actual Number Of Fixed Seats And
Possible Additional Mobile/Temp Chairs At Rear To Be Determined By Architectural
Plan/NBFD Requirements And Approved by Library Services Director] persons unless
approved in advance by the Library Services Director.
G. Use of the LLH is limited from 9 a.m. to 9 p.m. Monday through Thursday, 9 a.m. to 10 p.m.
Friday through Saturday, and 12 p.m. to 5 p.m. on Sundays, unless expressly approved in
writing in advance by the Library Services Director.
3
H. The provision of insurance should be general liability, naming the Library and City and their
officers, agents, officials, employees, and volunteers as additional insureds, providing
coverage in the amount of not less than $1,000,000 for any claim, loss, injury, damage, or
other casualty that is in any way related to the use and/or occupancy of the LLH by the
permittee authorized to use the LLH pursuant to this Policy.
I. The permittee agrees to defend, indemnify, and hold harmless the Library and the City and
their officers and employees with respect to any claim, loss, or injury that arises out of, or is
in any way related to permittee's use and occupancy of the LLH.
J. Applications for reservations must be made no more than 90 days in advance and not more
than once every 90 days.
Fees, Deposits and Cancellation Procedures
Fees may be charged for the use of the LLH. Fees shall be established by Resolution of and
periodically adjusted by the Board of Library Trustees subject to approval of the City Council. Fees
shall include an amount necessary to defray the costs associated with the administration of this
Policy and the maintenance and repair associated with the use of the LLH. Notwithstanding
anything to the contrary herein, the Director may impose fees and other charges on the First
Priority Users and the Second Priority Users; provided, however, in the case of the Foundation, such
fees and other charges shall be agreed upon in advance in writing by the Director and the
Foundation.
Use Subject to Recorded Declaration of Special Land Use Restrictions
Use of the LLH shall at all times be subject to that certain Declaration of Special Land Use
Restrictions, Right of First Refusal, Mortgage Lien and Option to Repurchase recorded May 8, 1992
as Instrument No. 92-304757 in the Official Records of Orange County, California, as modified by
that certain amendment recorded November 24, 2010 as Instrument No. 2010-634195 and as
further amended by that certain amendment (the "Second Amendment") recorded December 5,
2019 as Instrument No. 2019000509265 (all such recorded documents are referred to collectively as
the "Declaration"), The Second Amendment (which as indicated is a part of the Declaration)
specifically provides as follows:
1.2 Use of the Lecture Hall
Declarant expressly agrees that the use of the Lecture Hall by Grantee [City of Newport Beach, a
California municipal corporation] to conduct library, cultural, training, educational, informational,
entertainment, civic and community focused programming as well as for programming of library
support groups, such as the Friends of Newport Beach Public Library and the Newport Beach Public
Library Foundation (collectively, the "Intended Use"), are uses commonly associated with public
libraries, as described in Section 2.1(a) of the Declaration, and these uses do not compete with the
retail and commercial facilities in the Center (Newport Center). Grantee may from time to time
allow, and charge reasonable fees for, such uses of the Lecture Hall, and such other uses of the
Lecture Hall that Grantee determines in its reasonable discretion are complementary to the use of
the Land as a free, public library and will not interfere with the use of the Land by Grantee's library
patrons and available parking for such library patrons; provided such other uses, in Declarant's
reasonable discretion, do not materially compete with the retail and commercial facilities in and
around the Center, and in no event shall the Lecture Hall be used as a commercial banquet hall or
conference center.
1.3 Parking
The number of parking spaces on the Land and available for public use is currently 172. Such
number of parking spaces available for public use shall not be reduced without the prior written
consent of Declarant as described in Section 2.2(a) of the Declaration.
Adopted by the Board of Library Trustees on November 15, 2021
This Policy will be periodically reviewed by the Board of Library Trustees on the first to occur of (i) as
circumstances may require or (ii) every two years from the date of adoption, last amendment, or last
review. Adopted, last amended, or last reviewed on November 15, 2021.
EXHIBIT C
INSURANCE REQUIREMENTS
Provision of Insurance. Without limiting Foundation's indemnification of City,
Foundation shall obtain, provide and maintain at its own expense during the
term of this Agreement, policies of insurance of the type and amounts
described below and in a form satisfactory to City. Foundation agrees to
provide insurance in accordance with requirements set forth here. If
Foundation uses existing coverage to comply and that coverage does not meet
these requirements, Foundation agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Foundation shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code if the Foundation hires employees.
Foundation shall submit to City, along with the certificate of insurance,
a Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers, and employees.
Foundation shall submit to City, along with the certificate of insurance,
a Waiver of Subrogation endorsement in favor of City, its City Council,
boards and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Foundation shall maintain commercial
general liability insurance, and if necessary, umbrella liability insurance,
with coverage at least as broad as provided by Insurance Services Office
form CG 00 01, in an amount not less than one million dollars
($1,000,000) per occurrence, two million dollars ($2,000,000) general
aggregate. The policy shall cover liability arising from premises,
operations, personal and advertising injury, and liability assumed under
an insured contract (including the tort liability of another assumed in a
business contract).
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
C. Automobile Liability Insurance. Foundation shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of
Foundation arising out of or connected in any way with the Agreement,
including coverage for any owned, hired, non -owned or rented vehicles,
in an amount not less than one million dollars ($1,000,000) combined
single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its City Council, boards and commissions, officers, agents,
volunteers, and employees or shall specifically allow Foundation or
others providing insurance evidence in compliance with these
requirements to waive their right of recovery prior to a loss. Foundation
hereby waives its own right of recovery against City, and shall require
similar written express waivers from each of its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to
provide that City, its City Council, boards and commissions, officers,
agents, volunteers, and employees shall be included as insureds under
such policies.
C. Primary and Non -Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or
self-insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which
ten (10) calendar days' notice is required) or nonrenewal of coverage for
each required coverage.
Additional Agreements Between the Parties. The Parties hereby agree to the
following:
A. Evidence of Insurance. Foundation shall provide certificates of
insurance to City as evidence of the insurance coverage required herein,
along with a waiver of subrogation endorsement for workers'
compensation and other endorsements as specified herein for each
coverage. Insurance certificates and endorsement must be approved
by City's Risk Manager prior to commencement of performance. Current
certification of insurance shall be kept on file with City at all times during
the term of this Agreement. The certificates and endorsements for each
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
insurance policy shall be signed by a person authorized by that insurer
to bind coverage on its behalf. At least fifteen (15) days prior to the
expiration of any such policy, evidence of insurance showing that such
insurance coverage has been renewed or extended shall be filed with
the City. If such coverage is cancelled or reduced, Foundation shall,
within ten (10) days after receipt of written notice of such cancellation or
reduction of coverage, file with the City evidence of insurance showing
that the required insurance has been reinstated or has been provided
through another insurance company or companies. City reserves the
right to require complete, certified copies of all required insurance
policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Foundation sixty (60) calendar days'
advance written notice of such change. If such change results in
substantial additional cost to Foundation, City and Foundation may
renegotiate Foundation's compensation.
C. Enforcement of Agreement Provisions. Foundation acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Foundation of non-compliance with any requirement imposes no
additional obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type. If the
Foundation maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits
maintained by the Foundation. Any available insurance proceeds in
excess of the specified minimum limits of insurance and coverage shall
be available to the City.
E. Self -insured Retentions. Any self -insured retentions must be declared
to and approved by City. City reserves the right to require that self -
insured retentions be eliminated, lowered, or replaced by a deductible.
Self-insurance will not be considered to comply with these requirements
unless approved by City.
F. City Remedies for Non -Compliance. If Foundation or any subcontractor
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Foundation's right to proceed
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
until proper evidence of insurance is provided. Any amounts paid by
City shall, at City's sole option, be deducted from amounts payable to
Foundation or reimbursed by Foundation upon demand.
G. Timely Notice of Claims. Foundation shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Foundation's performance under this Agreement, and that involve or
may involve coverage under any of the required liability policies. City
assumes no obligation or liability by such notice, but has the right (but
not the duty) to monitor the handling of any such claim or claims if they
are likely to involve City.
H. Foundation's Insurance. Foundation shall also procure and maintain, at
its own cost and expense, any additional kinds of insurance, which in its
own judgment may be necessary for its proper protection.
MEMORANDUM OF UNDERSTANDING - NEWPORT BEACH PUBLIC LIBRARY FOUNDATION
Mullinax, Carrera
From:
Customer Service <customerservice@ebix.com>
Sent:
February 03, 2022 6:42 AM
To:
Mullinax, Carrera; Insurance
Cc:
lori.alcala@ebix.com
Subject:
Compliance Alert -Vendor Number FV00000692
Follow Up Flag: Follow up
Flag Status: Completed
[EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe.
This Account has moved from non -compliant to COMPLIANT status and is currently in compliance for certificate of
insurance requirements. FV00000692 Newport Beach Public Library Foundation
Sent by Ebix, designated insurance certificate reviewer for the City of Newport Beach.
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
EXHIBIT C
Outline of Particular Place, Size and Other Attributes of the Name Recognition
Library Lecture Hall Naming Rights Donation Agreement Page C
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