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HomeMy WebLinkAboutC-3496 (B2) - Irvine Avenue, 1300 - Joint Use Agreement for Use of Mariners LibraryJOINT USE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND THE NEWPORT-MESA UNIFIED SCHOOL DISTRICT FOR USE OF MARINERS LIBRARY THIS JOINT USE AGREEMENT ("Agreement"), is made and entered into thisZ(OTIJ day of SEPM144P Ea , 2023, ("Effective Date") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter City ("City") and the NEWPORT- MESA UNIFIED SCHOOL DISTRICT, a political subdivision of the State of California ("District"). City and District and individually referred to as "Party" and collectively referred to herein as "Parties." RECITALS This Agreement is made with reference to the following facts: WHEREAS, City owns the real property and improvements commonly referred to as the Mariners Library located at 1300 Irvine Avenue, Newport Beach, California, 92660 - ("Mariners -Library") -as -depicted -in -Exhibit "A," whic- h-is-attached-hereto-and-incorporated -- herein by reference. WHEREAS, District owns adjoining property located at 2100 Mariners Drive, Newport Beach, California, 92660 where it operates Mariners Elementary School ("Mariners School") as depicted in Exhibit "B," which is attached hereto and incorporated herein by reference. WHEREAS, on June 11, 2002, the City and District entered into the Cooperative Agreement for the Joint Mariners Library to provide joint use library services of Mariners Library for the students enrolled at Mariners School which has expired. WHEREAS, this Agreement provides for the joint access and use by the public of an area within the Children's Room along with the exclusive access and use during Secured Use Hours by Mariners School of another area within the Children's Room, both of which are depicted in Exhibit "C," attached hereto and incorporated herein by reference, and subject to the additional terms and conditions provided herein. WHEREAS, the Parties are authorized to enter into the Agreement pursuant to the provisions of Education Code Section 10900 et. seq., and Government Code Section 6500, et. seq. AGREEMENT NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows: 1. TERM. 1.1. Term. The term of this Agreement shall be for a period of twenty (20) years. Unless otherwise prohibited by the Library Bond Act, either party may terminate the Agreement by providing the other party one (1) year advanced written notice. 1.2. Option to Extend. Upon District's request and City's approval by the City Council, in its sole discretion, the Parties may extend the term of this Agreement for an additional twenty (20) years ("Option Term") commencing on expiration of the Term set forth in Section 1.1, on the same terms and conditions as contained in this Agreement as it may be amended from time to time. District may request the Option Term extension by giving the City written notice of its intention to extend the Term for the Option Term at least ninety (90) days prior to expiration of the Term. 2. CITY/DISTRICT JOINT LIBRARY SERVICES. The Parties agree that the Mariners Library consists of facilities and offers the activities and opportunities specified in this Section: 2.1. Joint Function and Purpose. Mariners Library consists of a 15,000-square- foot, one-story library building housing a children's room, teen corner, reference desk, circulation room, public restrooms and a public meeting room. The Children's Room, as depicted in Exhibit "C" is 3,700 square feet and includes two (2) single occupant unisex restrooms, and a children's activities room that serves the children of the surrounding Mariners Community. A separate "School Entrance," also depicted in Exhibit "C" provides Mariners School students direct access to the Children's Room during the hours that school is in session. The Children's Room is designed so that a portion of the room may be accessed only through the School Entrance by Mariners School students. 2.2. The Library Collection. Mariners School Library Collection is integrated with the Mariners Children's Library Collection. ("Joint Collection"). The Joint Collection is part of the circulation and online catalog system of the Newport Beach Public Library system. The District shall submit a written request to the Library Services Director and/or his/her designee, with a copy to the Board of Library Trustees, for the addition of any new title to the Joint Collection ("Material Request"). Material Requests shall be considered in accordance with the Newport Beach Public Library Collection Development Policy ("Policy"). If approved, District shall be solely responsible for the cost to acquire the new material ("New Material"). r. District staff will be responsible for reviewing both current, materials added by City, and New Material in the Joint Collection in order to meet the needs of Mariners School curriculum. Any Joint Collection materials considered by the District to be not age appropriate, no longer relevant, or not in support of Mariners School curriculum should be addressed in accordance with District policies and procedures. Pursuant to written notice by the District to the Library Services Director and/or his/her designee, with a copy to the Board of Library Trustees, Joint Collection materials deemed by the District as being not age appropriate, no longer relevant, or not in support of Mariners School curriculum located in the Joint Collection shall be relocated outside the Joint Collection, to another City library location, or removed from the Library Collection. If, though, such written notice is directed by the District toward New Material, then such New Material will be removed from the Joint Collection materials and returned to the District. Nothing within this Section 2.2 impairs or impacts the City's ability to review the materials contained in the Joint Collection, to relocate materials within the _JointCollection, or remove materials from the Joint Collection and/or from the Library Collection, consistent with the Policy. District representatives, parents and library patrons with concerns about a specific item in the Joint Collection may exercise their rights under the Patron Rights provisions of the Policy. 3. CITY'S USE AND RESPONSIBILITIES. 3.1. Establishment of Authority. The Mariners Library will remain a City public library under the administrative control of the Board of Library Trustees, as defined in Section 708 of the City Charter. Mariners Library shall be forever free to the inhabitants and non-resident taxpayers of the City, subject always to such rules, regulations, and bylaws as may be made by the Board of Library Trustees. 3.2. City Ownership of Assets. The City shall have sole ownership of the site, the facilities, furnishings, equipment, and library materials, including the Joint Collection. The City assumes full responsibility for operation, maintenance and management of Mariners Library. In the event of termination, at the end of the Term, the Joint Collection will be retained by the Mariners Library, except for those library materials provided by the District, the Mariners School PTA and the Mariners School Foundation. 3.3. City Designated Hours. During District Designated Hours, general public access to the portion of the Children's Room, depicted in Exhibit "C," shall be limited as provided in Section 4.3. During Secured Use Hours, general public access into the portion of the Children's Room, also depicted in Exhibit "C" that is subject to exclusive use by Mariners School is prohibited. 3 City library staff will retrieve materials for the public from the Joint Collection during Secured Use Hours. 3.4. City Fundinq. The City Council/Board of Library Trustees has exclusive control of expenditures of all moneys collected, donated, or appropriated for the library as well as exclusive charge, control and custody of the building. Mariners Library is funded by the City with staffing assistance from the District. City shall be responsible for salaries and staff benefits of all Library personnel employed by City. 3.5. City Staffing. City library staff shall provide overall supervision of Mariners Library. City shall provide District with the names and telephone numbers of personnel that are responsible for the day-to-day operations of the joint services to be provided under this Agreement. The list shall be updated as needed based on personnel changes. City and District shall comply with the requirements of State law with respect to the fingerprinting of personnel and volunteers that may have contact with children. All City and District employees are required to be fingerprinted and clear criminal background check requirements prior to employment with the City and District. 3.6. City Use of Volunteers. The Mariners Library may utilize volunteers from the community for general library use and circulation functions. Mariners Library volunteers will not be permitted to volunteer in the portion of the Children's Room that is subject to exclusive use by Mariners School during Secured Use Hours. 4. DISTRICT'S USE AND RESPONSIBILITIES. 4.1. District Fundinq. The District is responsible for continued dedicated resources to operate the school library. Those resources include dedicated time of teachers and the school principal to supervise and provide instruction and activities in the school library during classroom or student visits and a Children's Room Library Media Technician. The District will be billed for any Joint Collection materials outstanding on Mariners School library accounts at the completion of the school calendar year, for the replacement costs and processing charges in accordance with City library policies. 4.2. District Procedure for Use of Assets. The assets of Mariners Library are the property of the City. District shall follow the procedure set forth herein to allow for students to utilize library materials. A unique Mariners School library account will be created for each Mariners student to check out materials from the Joint Collection during school hours. Mariners School library accounts shall be created by school personnel in accordance with District policy. 2 The District's Board Policies and Regulations regarding student attendance and release from school and visitors on school campuses during school hours shall apply to the use of the portion of the Children's Room, by students of Mariners School. 4.3. District Designated Hours. The Children's Room is designed so that the Mariners School students will have secured use of a school library, on those days and during those hours of required student attendance during the school year. Secured use of the Children's Room shall not exceed 30 hours per week between the hours of 9 a.m. and 3 p.m. ("Secured Use Hours"). The Children's Room design prevents access by the general public to a portion of the Children's Room to serve as a school library to accommodate students during Secured Use Hours. All other non -student days and hours of the year including but not limited to, holidays, school breaks, teacher development days, minimum days when students are not in session and summer, the entire Children's Room shall be open to the public. The remaining area of the Children's Room will remain open and accessible to the public from the main library entrance at all times the library is open for pre-school activities and all other general public uses. 4.4. District Staffing. The District shall employ a school library media technician to perform the mission of the School Library in the Children's Room during school hours. The District shall be responsible for salaries and staff benefits of the Library Media Technician and all other District/Mariners School personnel. The District shall provide the City with the names and telephone numbers of personnel that are responsible for the day-to-day operations at the joint services to be provided under this Agreement. The list shall be updated as needed based on personnel changes. District shall comply with the requirements of State law with respect to the fingerprinting of personnel and volunteers that may have contact with children. All City and District employees are required to be fingerprinted and clear criminal background check requirements prior to employment with the District. 4.5. District Use of Volunteers. The Mariners School may use volunteers in the school library during Secured Use Hours in compliance with Mariners School's Visitor and Volunteer Policies and Regulations. 5. INDEMNITY. City agrees to indemnify, hold harmless and defend District and their respective officers, officials, employees, representatives, agents and/or volunteers from any legal liability, or damages, for bodily injury, death and /or property damage, reasonable costs and expenses arising out of the negligent acts or omissions of 5 City or its officers, employees, representatives, agents, and/or volunteers in the performance of City's responsibilities pursuant to this Agreement. District agrees to indemnify, hold harmless and defend City and City's respective officers, officials, employees, representatives, agents and/or volunteers from any legal liability or damages for bodily injury, death and/or property damage, reasonable costs and expenses arising out of the negligent acts or omissions of District or its officers, employees, representatives and agents in the performance of District's responsibilities pursuant to this Agreement. The City's and District's duties, rights and obligations, as set forth in this Section, shall survive the termination or expiration of this Agreement. 6. NOTICES. If to City: City Manager's Office 100 Civic Center Drive _Newport Beach, CA 92660 (949) 644-3001 FAX 644-3020 gleunq newportbeachca.gov If to District: Superintendent 2985 Bear Street #A Costa Mesa, CA, 92626 (714) 424-5030 FAX 424-5018 superintendent(cD-nmusd.us 7. INSURANCE. The District and the City shall each procure and maintain in full force and effect during the term of the Agreement, the following policies of insurance which may be self -insured: 7.1. Commercial General Liability including public officials' errors and omissions, bodily injury including death, property damage, personal and advertising injury, sexual molestation (to the extent such insurance is available), and defense costs with limits no less than $2,000,000 per occurrence and $4,000,000 in the aggregate. The District and City shall each provide the other Party with an additional insured and primary and noncontributory endorsement. 7.2. Workers' Compensation as required by the State of California with statutory limits and employer's liability insurance for each Party's own personnel and volunteers, if covered, with a limit of not less than $1,000,000 per accident for bodily injury or disease. M. The District and City shall each provide the other Party with a waiver of subrogation. Any insurance available in excess of or broader than the minimum required coverage and/or minimum required limits shall be available to the other Party as an additional insured on a primary and noncontributory basis. B. MISCELLANEOUS PROVISIONS. 8.1. Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties, and all oral or written representations, understandings or agreements are expressly stated in this Agreement. No verbal agreement or implied covenant shall be held to vary the provisions herein. 8.2. Severability. If any term, provision, covenant, or condition of this Agreement is held to be invalid, illegal, void, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 8.3. No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement between the Parties, the prevailing party to such dispute or legal action shall not be entitled to attorney's fees. 8.4. Interpretation. This Agreement shall be construed according to its fair language and common meaning to achieve the objectives and purposes of the Parties and shall not be construed for or against either Party hereto by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 8.5. Section Headings and Recitals. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement. City and District acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 8.6. Compliance with all Laws. The Parties shall at their own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county. 8.7. Singular and Plural. As used herein, the singular of any word includes the plural. 8.8. Waiver. The waiver by either Party hereto of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 7 8.9. Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit for the parties and their successors and assigns. 8.10. Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. 8.11. Specific Performance. The Parties acknowledge that monetary damages would be inadequate to remedy any breach of this Agreement by either Party. Accordingly, the Parties agree that any breach of this Agreement shall entitle the non -breaching Party to file an action for specific performance in a court of competent jurisdiction. In no event shall either Party be liable for monetary damages in the event of a breach of this Agreement. 8.12. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1-) agreement and -have the same effect as if all of the parties had executed the same instrument. 8.13. Governing Law and Venue. The terms of this Agreement and any related disputes shall be governed and interpreted in accordance with the laws of the State of California. Prior to commencing any litigation, a written notice shall be provided to the School Library Advisory Committee. No litigation shall be commenced for thirty (30) calendar days so that the Parties may attempt to resolve their difference. Any action at law or in equity arising under this Agreement or brought by any Party for the purpose of enforcing, construing, or determining the validity of any provision of this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, California. The Parties waive all provisions of law providing for the filing, removal or change or venue to any other court. 8.14. Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated by this Agreement to achieve the objectives of this Agreement. Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record instruments and writing. 8.15. Amendments in Writing/Cooperation. This Agreement may be amended only by written consent of the Parties approved as to form by their respective attorneys specifically approving the amendment and in accordance with the Government Code and Educational Code provisions. The Parties shall cooperate in good faith with respect to any amendment proposed in order to clarify that intent and application of this Agreement and shall treat any such proposal on its own merits. R 8.16. Authority to Execute. Any person or persons executing this Agreement on behalf of the City and District warrants and represents that he/she has the authority to execute this Agreement on behalf of his/her agency and to bind that Agency to the performance of its obligations pursuant to this Agreement. [SIGNATURES ON NEXT PAGE] N IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and year first set forth above. DISTRICT: By: 71�/`,�-�c' Ashley Ande of the Board 0, President ducation APPROVED AS TO FORM: By: f, Aw"4, encer E. Covert, Legal Counsel for wport-Mesa Unified School District CITY: by; X-` �Ao h Blom, Mayor for the City of Newport Beach ATTEST: �EvvPO� r � i O By: Leilani Brown, ?,My lei k for the City of Newport Beach U '==_=-- cloy , N\P ovk APPROVED AS TO FORM: By: V Aaron C. - rp, City I for the Ci � of Newpo -ney `1 27.23 W<- each Attachment(s): Exhibit A - Mariners Public Library Depiction Exhibit B - Mariners School Depiction Exhibit C - Children's Room Depiction 10 %VI Exhibit B - Mariners School Depiction o - N p e, W D l 4 VOW o 1q, DI o � _ s �7O O I _ o W 0 Exhibit C - Children's Room Depiction 3