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County of San Diego - Provision of Library ServicesAgreement Between the City of Poway and the County of San Diego for the Provision of Library Services This Agreement is made and dated this 25th day of September 2019, by and between the City of Poway, a municipal corporation organized •ursuant to the laws of the State of California (hereinafter, "City"), and the County of San Diego, a political subdivision of the State of California (hereinafter, "County"). The City and the County are, at times, collectively referred to as the "Parties". WHEREAS, City and County hereto entered into an "Agreement Between the City of Poway and the County of San Diego for the Provision of Library Services" dated October 20, 2009, for the purposes of operating the Poway Community Branch Library and providing a level of service each fiscal year based on the annual Poway Library budgets approved by the San Diego County Board of Supervisors and the Poway City Council; and WHEREAS, That Agreement was amended on May 20, 2014, to extend its term to August 18, 2019, and to govern the project to remodel the City -owned and County - operated library building at 13137 Poway Road (such remodel project, the "Poway Library Remodel Project"); and WHEREAS, The City wishes to enter into a new agreement with the County for the provision of library services at the Poway Community Branch Library; and WHEREAS, The County is agreeable to the rendering of such services subject to the terms and conditions hereinafter set forth. NOW, THEREFORE, based on the foregoing recitals, City and County agree as follows: 1. Previous Agreement. This Agreement supersedes the Agreement Between the City of Poway and the County of San Diego for the Provision of Library Services dated October 20, 2009, and amended May 20, 2014, which, as of the Effective Date (defined in Section 18 below), no longer has any force or effect except for any rights or remedies granted to the Parties in that agreement. 2. Term. The term of this Agreement shall be for five (5) years commencing upon the Effective Date. The Parties may renew this Agreement by mutual consent and by giving written notice of such renewal to the other party in writing, at least sixty (60) calendar days prior to the expiration date. 3. Termination. City or County may terminate this Agreement, without cause, upon one hundred and eighty (180) days written notice to the other party. Notwithstanding the foregoing, if the City terminates this Agreement prior to December 14, 2019, the City shall pay to the County $150,000 within 60 days of the termination date. If the City terminates this Agreement prior to December 14, 2020, the City shall pay to the County $75,000 within 60 days of the termination 1 of 9 date. If the City terminates this Agreement on or after December 14, 2020, the City shall not be required to pay the County any amount of money. 4. Regular Services by County. a. The County shall provide to Poway Community Branch Library patrons the full range of library services currently provided system wide by the San Diego County Library including, but not limited to, library administration services, circulation services, technical services, information system services, adult services, children services, reference and readers advisory services, community room use, and public programs. b. The County shall provide library materials collection development at a level that is consistent with the annual library budget approved by the County Board of Supervisors. c. The level of services and materials provided by the County and the City for the Poway Community Branch Library will be based on the library budget approved each fiscal year by the County Board of Supervisors. The service level for the Poway Branch will increase or decrease accordingly, as for all other County Library branches in like branch categories as detailed by the County Plan of Service. In the event that the County Plan of Service changes or is eliminated, the County will provide reasonable notice to the City prior to the change. d. The City Manager of the City, or his/her designee, shall be the City's agent with respect to determining, evaluating, and obtaining the County's compliance with this Agreement. The Chief Administrative Officer of the County, or his/her designee, shall be the County's agent. e. The County shall operate the Poway Community Branch Library in a manner consistent with the County Board of Supervisors -approved County Library Plan of Service. f. The County shall procure, furnish, and supply all gas and electric, labor, supervision, and supplies necessary to provide the library services, with the exception that the actual library facility, including community room and outdoor spaces, and its repairs and upkeep shall be provided by the City. County staff shall at all times take care to prevent damage to the facility where possible, whether caused by library staff actions or library patrons. Library staff shall perform inspections of the facility 3 times per day, including restrooms, to monitor the condition and note any damage that occurs. Damage necessitating repair shall be reported to the City in a timely manner. In case of recurring damage, County shall where possible ascertain the cause and put in place staff protocols or processes to prevent g. 2 of 9 further incidents. County staff may hang items on the interior walls of the facility but should do so in a way to minimize any damage. h. The programming of the Community Meeting Room shall be the sole responsibility of the County. The City will be granted priority access for City - sponsored meetings, activities, and functions as needed, and at no charge. All room reservations, policies, set up and take down, and revenues shall be handled by the County. i. The City and County shall mutually agree upon terms for the collection of any additional charges adopted by the Poway City Council for City - purchased materials that are different from those currently established by the County. 5. Automation and Telecommunication. The Poway Community Branch Library will use an automated circulation and online catalog system that is presently used by the San Diego County Library. Appropriate equipment and quantity of equipment will be determined and paid for by the County. a. The County computers and peripheral equipment will be in conformity with County Information Technology contract provisions and County policies, and will be connected to the County Library's system giving library users access to all library materials available in the County Library. The County, at its sole expense, shall provide telecommunications (including telephones), computer hardware and software, peripheral equipment, and support and maintenance of this equipment. b. Additional computers and software requested by the City beyond what is provided by the County Library are not permitted. Should the City wish additional County standard and supported computers or software, the City will pay County for all initial and ongoing associated costs, including network access fees and maintenance, if applicable. 6. Enhanced Service Level. The City may request an enhanced level of regular library -related services, including additional staffing and/or hours of operation. County shall make its best effort to accommodate the City's request in this regard. An enhanced level of library services may be purchased by the City from the County at a rate to be determined by mutual written agreement of both parties. All requests by the City for enhanced library services shall be made in writing to the County. 7. Payment Schedule for Enhanced Services. Should City and County agree to enhanced service levels that become part of this Agreement and are paid by City, payments by the City to the County shall be made quarterly within thirty (30) days of receipt of billing from the County. 3 of 9 8. Reports and Records. The County shall provide the City with a copy of the County Plan of Service and monthly reports on circulation and other services as requested in writing by the City. 9. Annual Library Budget Service Planning. In the absence of notification of budget changes, each entity will prepare their budgets based on the prior year. If change is required, notification by either party shall be at the earliest point, so neither party is taken by surprise. The governing premise regarding change is "Good Faith Effort." 10. Notices. Whenever it shall be necessary for either of the parties to serve notice on the other regarding this Agreement, such notice may be personally served upon City or County or any person hereafter authorized by either in writing to receive such notice or may be served by certified letter addressed to the appropriate address hereinafter set forth or to such other address as City and District may hereafter designate by written notice. CITY COUNTY City Manager City of Poway P.O. Box 789 Poway, CA 92074-0789 Library Director San Diego County Library 5560 Overland Avenue, Suite 110 San Diego, CA 92123 11. Status of County. County is, and shall at all times be deemed to be, an independent contractor. Nothing herein contained shall be construed as creating the relationship of employer and employee, or principal and agent, between City and County or any of County's agents or employees. County and its Library Director shall retain all authority for rendition of services, standards of performances, control of personnel, and other matters incident to the performance of services by County pursuant to this Agreement. County, its agents, and employees shall not be entitled to any rights or privileges of City employees and shall not be considered in any manner to be City employees. 12. Status of City. The City is owner of the library buildings, community room, and property at 13137 Poway Road. The City shall be responsible for the interior and exterior maintenance of the buildings, custodial services for the interior of the buildings, and maintenance of the landscaping surrounding the library facility as detailed in Exhibit A. 13. State Audit. Pursuant to Government Code Section 8546.7, City and County shall be subject to examination and audit by the State Auditor for a period of three (3) years after this Agreement. City and County shall retain all records relating to the performance of this Agreement for said three-year period, except that records pertaining to any audit then in progress, or any claims or litigation, shall be retained beyond said three-year period until final resolution of said audit, claim or litigation. 4 of 9 14.Alteration of Terms. This Agreement fully expresses all understanding of City and County with respect to the subject matter of this Agreement and shall constitute the total Agreement between the parties for these purposes. No addition to, or alteration of, the terms of this Agreement shall be valid unless made in writing, formally approved and executed by duly authorized agents of both parties. 15. Indemnification. The Parties, their officers, agents and employees shall not be deemed to have assumed any liability for the negligence or any other act or omission of the other Party or any of its officers or employees, or for any dangerous or defective condition of any property of the other Party. a. City shall indemnify and hold County, its elected officials, officers, agents, employees and independent contractors free and harmless from any claim or liability whatsoever, based or asserted upon the condition of any property of City, or upon any act or omission of City, its elected officials, officers, agents, employees, subcontractors and independent contractors related to this Agreement, for property damage, bodily injury or death or any other element of damage of any kind or nature, and City shall defend at its expense including attorney fees County, its elected officials, officers, agents, employees and independent contractors in any legal action or claim of any kind based upon such condition of City property, or alleged acts or omissions. b. County shall indemnify and hold City, its elected officials, officers, agents, employees and independent contractors free and harmless from any claim or liability whatsoever, based or asserted upon any act or omission of County, its elected officials, officers, agents, employees, subcontractors and independent contractors related to this Agreement, for property damage, bodily injury or death or any other element of damage of any kind or nature, and County shall defend at its expense including attorney fees City, its elected officials, officers, agents, employees and independent contractors in any legal action or claim of any kind based upon such alleged acts or omissions. 16. Dispute Resolution. The parties agree to provide each other with written notice of nonperformance, unsatisfactory performance, or any other dispute arising from the terms of this Agreement within thirty (30) days of the deficiency or dispute being identified. The parties shall have thirty (30) days from receipt of said written notice to correct any performance deficiencies. The parties agree to cooperate in good faith to resolve any performance issue or dispute arising from this Agreement. In the event any dispute cannot be resolved under these procedures, each party retains such legal and equitable remedies as it may have under law to enforce this Agreement. 5 of 9 17. Certification and Indemnification Regarding Public Employees' Retirement Law/Pension Reform Act of 2013. County hereby certifies that all persons providing services to City by County are not current members of the California Public Employees' Retirement System (CaIPERS) and shall not become members of CaIPERS while providing services to City. County further provides that in the event SDHS assigns a retired annuitant receiving a pension benefit from CaIPERS to perform services for City, the retired annuitant is in full compliance with Government Code section 7522.56. A copy of Government Code section 7522.56 is attached hereto as Exhibit "B." Further, County hereby fully and unconditionally indemnifies City from all penalties, fees, employer and employee contributions, or any other assessments imposed by CaIPERS in the event CaIPERS determines the person assigned by County to provide services to City has been misclassified. County and City have executed this Agreement as of the day and year written below. This Agreement shall be effective after it is approved and authorized by the County's Board of Supervisors and upon as of the date of its execution by the County's Director, County Library (such date, the "Effective Date"). CITY OF POWAY Chris Hazeltine, City Manager Date: •2'' 11 ATTEST: Faviola Medin , City Clerk APPROVED AS TO FORM: Alan Fenstermacher, City Attorney 6 of 9 COUNTY OF SAN DIEGO Library Director Date: q---02 APPROVED AS TO FORM: Senior Deputy County Counsel Exhibit A Facility Maintenance and Repair As owner of the Library property and building, City shall have responsibility for facility maintenance and repair, including but not limited to the following: • Maintain all landscaping including irrigation equipment and plant materials, as well as all outdoor areas including parking lots and walkways. • Raise and lower flags as necessary. • Provide daily janitorial service to all indoor areas (library, bookstore, conference room) including: o Emptying of trash containers o Sweeping, mopping, dusting, and other general cleaning o Wiping/dusting exposed tabletops and other surfaces o Vacuuming of carpets, including moving and replacing furniture as necessary o Restroom cleaning and restocking • Provide a copy of the janitorial services scope and schedule to the library • Provide deep cleaning services at a frequency based on the janitorial scope and schedule • Clean windows as part of deep cleaning at a frequency based on the janitorial scope and schedule • Power -wash the outdoor patio area at a frequency based on the janitorial scope and schedule • Provide routine repair and maintenance of indoor facilities, including keeping the facility in a safe operating condition, painting interior and exterior, interior and exterior lighting, plumbing repairs, HVAC repairs and maintenance, glass repair and replacement, pest control, door and lock maintenance and repair, security/alarm system maintenance and repair, water heater maintenance and repair, floor maintenance and repair including refinishing, fire exit signs and other safety items, and utility repairs. • Perform any capital upgrades, replacement, and major maintenance of indoor facilities including HVAC replacement, flooring replacement, roofing, fire suppression/fire alarm system, and electrical switching panels and gear. 7 of 9 Exhibit B Government Code Section 7522.56 (a) This section shall apply to any person who is receiving a pension benefit from a public retirement system and shall supersede any other provision in conflict with this section. (b) A retired person shall not serve, be employed by, or be employed through a contract directly by, a public employer in the same public retirement system from which the retiree receives the benefit without reinstatement from retirement, except as permitted by this section. (c) A person who retires from a public employer may serve without reinstatement from retirement or Toss or interruption of benefits provided by the retirement system upon appointment by the appointing power of a public employer either during an emergency to prevent stoppage of public business or because the retired person has skills needed to perform work of limited duration. (d) Appointments of the person authorized under this section shall not exceed a total for all employers in that public retirement system of 960 hours or other equivalent limit, in a calendar or fiscal year, depending on the administrator of the system. The rate of pay for the employment shall not be less than the minimum, nor exceed the maximum, paid by the employer to other employees performing comparable duties, divided by 173.333 to equal an hourly rate. A retired person whose employment without reinstatement is authorized by this section shall acquire no service credit or retirement rights under this section with respect to the employment unless he or she reinstates from retirement. (e) (1) Notwithstanding subdivision (c), any retired person shall not be eligible to serve or be employed by a public employer if, during the 12 -month period prior to an appointment described in this section, the retired person received any unemployment insurance compensation arising out of prior employment subject to this section with a public employer. A retiree shall certify in writing to the employer upon accepting an offer of employment that he or she is in compliance with this requirement. (2) A retired person who accepts an appointment after receiving unemployment insurance compensation as described in this subdivision shall terminate that employment on the last day of the current pay period and shall not be eligible for reappointment subject to this section for a period of 12 months following the last day of employment. (f) A retired person shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement unless he or she meets one of the following conditions: (1) The employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and the appointment has been approved by the governing body of the employer in a public meeting. The appointment may not be placed on a consent calendar. 8 of 9 (2) (A) Except as otherwise provided in this paragraph, for state employees, the state employer certifies the nature of the employment and that the appointment is necessary to fill a critically needed state employment position before 180 days have passed and the appointment has been approved by the Department of Human Resources. The department may establish a process to delegate appointing authority to individual state agencies, but shall audit the process to determine if abuses of the system occur. If necessary, the department may assume an agency's appointing authority for retired workers and may charge the department an appropriate amount for administering that authority. (B) For legislative employees, the Senate Committee on Rules or the Assembly Rules Committee certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar. (C) For employees of the California State University, the Trustees of the California State University certifies the nature of the employment and that the appointment is necessary to fill a critically needed position before 180 days have passed and approves the appointment in a public meeting. The appointment may not be placed on a consent calendar. (3) The retiree is eligible to participate in the Faculty Early Retirement Program pursuant to a collective bargaining agreement with the California State University that existed prior to January 1, 2013, or has been included in subsequent agreements. (4) The retiree is a public safety officer or firefighter hired to perform a function or functions regularly performed by a public safety officer or firefighter. (g) A retired person who accepted a retirement incentive upon retirement shall not be eligible to be employed pursuant to this section for a period of 180 days following the date of retirement and subdivision (f) shall not apply. (h) This section shall not apply to a person who is retired from the State Teachers' Retirement System, and who is subject to Section 24214, 24214.5, or 26812 of the Education Code. (i) This section shall not apply to (1) a subordinate judicial officer whose position, upon retirement, is converted to a judgeship pursuant to Section 69615, and he or she returns to work in the converted position, and the employer is a trial court, or (2) a retiree of the Judges' Retirement System or the Judges' Retirement System II who is assigned to serve in a court pursuant to Section 68543.5. 9 of 9