HomeMy WebLinkAbout07 - CC-8 - Funding Agreement Donald Dungan Library - 8/7/2012CITY COUNCIL AGENDA REPORT
MEETING DATE: AUGUST 7, 2012
ITEM NUMBER:
SUBJECT: FUNDING AGREEMENT BETWEEN THE COUNTY OF ORANGE AND THE CITY OF
COSTA MESA FOR DONALD DUNGAN LIBRARY BEAM REPLACEMENT PROJECT
DATE: JULY 26, 2012
FROM: PUBLIC SERVICES DEPARTMENT/ENGINEERING DIVISION
PRESENTATION BY: ERNESTO MUNOZ, PUBLIC SERVICES DIRECTOR
FOR FURTHER INFORMATION CONTACT: FARIBA FAZELI, INTERIM CITY ENGINEER
(714)754-5335
RECOMMENDATION:
1. Approve the Funding Agreement between the County of Orange and the City of
Costa Mesa for Donald Dungan Library Beam Replacement Project (Attachment
1).
2. Authorize the Mayor and the City Clerk to execute the Agreement.
BACKGROUND:
The Costa Mesa Donald Dungan Library located at 1855 Park Avenue was constructed
in 1986. Although the City owns the building, the maintenance and operation of the
library is the responsibility of the County of Orange (County). The County has initiated a
retrofit project to replace the deteriorated exposed beams in the roof of the building.
The County requested the City to contribute a portion of the cost to perform the needed
roof repairs, and the City Council authorized the contribution through the adoption of
the 2012-2013 Fiscal Year Budget.
ANALYSIS:
The Donald Dungan Library features a circular floor plan and inclined roof structure that
spans the library floor. The roof framing consists of radially arrayed Wood Glu -
Laminated roof beams that span between a high, central steel compression ring, and
low, perimeter concrete tension ring. There are a total of twelve main radial beams, six
of which are partially exposed to the exterior of the building. Long term weather
exposure has resulted in structural rot deterioration at the low ends of several of the
exposed beams. The project will replace the deteriorated roof beams with new Wood
Glu -Laminated beams. The total construction is estimated to cost $270,000.
Due to lack of adequate funding by the County, the project has not been advertised for
construction. Upon the City Council's approval of the attached funding agreement, the
County will proceed with the bidding and construction phase of this project.
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ALTERNATIVES CONSIDERED:
Council may elect to not approve the Agreement. However, this alternative will result in
delaying the needed repairs at the Donald Dungan Library. Due to safety issues, the
library may need to be closed until the County has sufficient funding to proceed with this
project.
FISCAL REVIEW:
The total construction cost for the roof rehabilitation of the Donald Dungan Library is
estimated at $270,000. In FY 2012-13, the City Council allocated $100,000 from Capital
Improvement Funds towards this project. The remaining balance of $170,000 will be
entirely funded by the County.
LEGAL REVIEW:
The City Attorney has reviewed and approved the Funding Agreement as to form.
CONCLUSION:
The deteriorated exposed beams in the roof of the Donald Dungan Library are in need
of replacement. The attached Funding Agreement will commit the City to contribute
$100,000 to the County towards this project. Staff recommends that the City Council
authorize the Mayor and the City Clerk to execute the Funding Agreement.
ERNESTO Z FARIBA FAZELI
Public Se rqlcesA irector Interim City Engineer
ATTACHMENT: 1 ā Funding Agreement
DISTRIBUTION: Chief Executive Officer
Assistant Chief Executive Officer
City Clerk
City Attorney
Staff
File
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ATTACHMENT I
AGREEMENT BETWEEN
CITY OF COSTA MESA
AND
COUNTY OF ORANGE
FOR THE BEAM REPLACEMENT PROJECT
AT
COSTA MESA DONALD DUNGAN BRANCH LIBRARY
This AGREEMENT FOR THE BEAM REPLACEMENT PROJECT AT COSTA MESA
DONALD DUNGAN BRANCH LIBRARY ("Agreement") is made and entered into as of the
day of , 2012, by and between the COUNTY OF ORANGE, a political
subdivision of the State of California ("COUNTY") and the CITY OF COSTA MESA, a California
municipal corporation ("CITY"). COUNTY and CITY are referred to herein individually as a
"Party" and collectively as the "Parties."
RECITALS
A. COUNTY identified the need to replace major roof beams at the Costa Mesa
Donald Dungan Branch Library, a COUNTY library operating out of a CITY -owned building
maintained by the COUNTY, located at 1855 Park Avenue in the City of Costa Mesa, at an
estimated cost of $270,000.
B. On April 17, 2012, the Orange County Board of Supervisors approved the plans
and specifications and authorized staff to advertise for bids.
C. Due to the County's tight financial situation, the CITY has committed a $100,000
contribution to the COUNTY for the Beam Replacement Project ("Project") at Costa Mesa
Donald Dungan Branch Library.
D. Upon commencement of this Agreement, COUNTY shall advertise for bids and
proceed with the Project in accordance with the COUNTY's Contract Policy Manual.
E. CITY and COUNTY desire to enter into this Agreement to set forth the
obligations and responsibilities of the Parties with respect to the financing of the Project.
AGREEMENT
Based upon the foregoing Recitals, which are incorporated herein by this reference, and
for good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, CITY and COUNTY agree as follows:
1. TERM.
The term of this Agreement shall commence on the date of execution by COUNTY and
CITY, which date shall be inserted in the preamble to this Agreement, and shall terminate upon
COUNTY's receipt of payment from CITY as set forth in Section 2 of this Agreement, below.
Costa Mesa Donald Dungan Library Page 1 Beam Replacement Project
2. CITY RESPONSIBILITIES.
CITY shall make payment to COUNTY within 30 days of receiving an invoice from
COUNTY upon completion of the Project.
3. COUNTY RESPONSIBILITIES.
3.1 COUNTY shall submit an invoice to CITY in an amount not to exceed $100,000
upon completion of the Project.
3.2 COUNTY shall not utilize the CITY's contribution to offset Project costs related
to contingencies. and/or change orders.
3.3 COUNTY agrees, at the request of CITY, to make available to a representative of
the CITY for examination of its data, financial records and related project reports maintained for
the Project within ten (10) business days of the written request. COUNTY shall retain such
financial and project records for at least three (3) years from the date of payment.
4. IT IS MUTALLY AGREED THAT:
4.1 The obligations and participation of CITY under this Agreement shall be limited
solely to the issuance of funds to COUNTY in accordance with the terms of this Agreement.
4.2 Status of County as Independent Contractor. 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 shall retain all authority for
rendition of services, standards or performance, 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 considered to be CITY employees.
4.3 Insurance. Each Party agrees that the insurance held by the other, whether
commercial or self-insurance, is sufficient for the purposes of this Agreement.
4.4 Indemnification. COUNTY shall defend, indemnify and save harmless CITY, its
officers, agents, and employees, from and against any and all claims, demands, losses, or
liabilities of any kind or nature which CITY, its officers, agents, and employees may sustain or
incur or which may be imposed upon them for injury to or death of persons, or damage to
property as a result of, or arising out of this Agreement.
4.5 Defaults and Remedies.
4.5.1 Default. The failure by either Party to perform any of its obligations set
forth in this Agreement shall constitute a default of this Agreement. Except as required to
protect against further damages, the nondefaulting Party may not institute legal proceedings
against the party in default until the nondefaulting Party has provided the defaulting Party notice
of the default and the cure period set forth in this Agreement has expired, or if no other specific
Costa Mesa Donald Dungan Library Page 2 Beam Replacement Project
time period is set forth in this Agreement, the follow applicable cure period has expired: (i) the
cure period for any monetary default shall be fifteen (15) days after the defaulting Party's receipt
of written notice from the nondefaulting Party that such obligation was not performed; and (ii)
the cure period for any other default shall be thirty (30) days after the defaulting Party's receipt
of written notice from the nondefaulting Party that such obligation was not performed; provided,
however if the failure cannot be corrected within such thirty (30) day period, it shall not
constitute a default if the failure is correctable without material adverse effect on the
nondefaulting Party, and if corrective action is instituted within fifteen (15) days of notice and
diligently pursued until the failure is corrected.
4.5.2 Remedies Upon Default. Upon the occurrence of any default and after the
defaulting Party has received written notice of default and the time period to cure the default has
expired, the nondefaulting Party may at its option, (i) pursue damages or specific performance or
any other legal and equitable remedies the injured Party may have against the defaulting Party in
accordance with applicable law; and/or (ii) terminate this Agreement.
4.6 Assignment. Neither Party shall assign this Agreement or any interest in it or
any money due or is to become due under it voluntarily without the non -assigning Party's prior
written consent. In the event of any such purported assignment by a Party without the other
Parry's prior written consent, the non -assigning Party shall have the right, in addition to all other
rights provided by law, to terminate this Agreement by giving written notice to the assigning
Party.
4.7 Compliance with Laws. Each Party shall perform its obligations under this
Agreement in conformity with all applicable laws, regulations and rules of any governmental
agency having jurisdiction, and shall direct any contractors or subcontractors retained by such
Party to not engage in discrimination in employment of persons because of the race, religious
creed, color, national origin, ancestry, physical disability, mental disability, medical condition,
marital status, or sex of such persons, or any other protected class.
4.8 Labor Code Compliance. All improvements or modifications required to be
performed under this Agreement by either Party costing more than $1,000 shall be governed by
and performed in accordance with the applicable provisions of Article 2 of Chapter 1, Part 7,
Division 2 of the Labor Code of the State of California (Sections 1770, et seq.).
Pursuant to the provisions of Section 1773 of the Labor Code of the State of California, the Party
performing the improvements ("Performing Party") shall comply with the general prevailing rate
of per diem wages and the general prevailing rate for holiday and overtime work in the locality
applicable to this Lease for each craft, classification, or type of workman needed to execute the
aforesaid improvements or modifications. The rates are available from the Director of the State
Department of Industrial Relations at the following website:
http://www.dir.ca.gov/dlsr/DPreWageDetermination.htm. The Performing Party shall post a
Costa Mesa Donald Dungan Library Page 3 Beam Replacement Project
copy of such wage rates at the job site and shall pay the adopted prevailing wage rates. The
Performing Party shall comply with the provisions of Sections 1775 and 1813 of the Labor Code.
As required by applicable law, the Performing Party shall maintain certified payroll records for
all workers that will be assigned to the improvements or modifications. Said payroll records
shall contain, but not be limited to, the complete name, address, telephone number, social
security number, job classification, and prevailing wage rate for each worker.
4.9 Governing Law and Venue. This Agreement has been negotiated and executed
in the State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this Agreement, the sole and
exclusive venue shall be a court of competent jurisdiction, located in Orange County, California,
and the Parties hereto agree to and hereby submit to the jurisdiction of such court,
notwithstanding Code of Civil Procedure Section 394. Furthermore, the Parties specifically
agree to waive any and all rights to request that an action be transferred for trial to another
county.
4.10 Entire Agreement. This Agreement comprises the entire agreement between
CITY and COUNTY related to the subject matter addressed herein. All previous proposals,
offers, discussions, preliminary understandings, and other communications relative to this
Agreement, oral or written, are hereby superseded, except to the extent that they have been
incorporated into this contract.
4.11 Amendments. No alteration or variation of the terms of this Agreement shall be
valid unless made in writing and signed by the Parties; no oral understanding or agreement not
incorporated herein shall be binding on either of the Parties; and no exceptions, alternatives,
substitutes or revisions are valid or binding on a Party unless authorized by the Party in writing.
4.12 Severability. If any term, covenant, condition or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of
the provisions hereof shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby to the extent such remaining provisions are not rendered
impractical to perform taking into consideration the purposes of this Agreement.
4.13 Attorney's Fees. In any action or proceeding to enforce or interpret any
provision of this Agreement, or where any provision hereof is validly asserted as a defense, each
Party shall bear its own attorney's fees, costs and expenses.
4.14 Intemretation. This Agreement has been negotiated at arm's length and
between persons sophisticated and knowledgeable in the matters dealt with in this Agreement.
In addition, each Party has been represented by experienced and knowledgeable independent
legal counsel of its own choosing or has knowingly declined to seek such counsel despite being
encouraged and given the opportunity to do so. Each Party further acknowledges that is has not
been influenced to any extent whatsoever in executing this Agreement by the other Party hereto
or by any person representing the other Party, or both. Accordingly, any rule or law (including
California Civil Code Section 1654) or legal decision that would require interpretation of any
ambiguities in this Agreement against the Party that has drafted it is not applicable and is
Costa Mesa Donald Dungan Library Page 4 Beam Replacement Project
waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect
the purpose of the Parties and this Agreement.
4.15 Consent to Breach Not Waiver. No term or provision of this Agreement shall be
deemed waived and no breach excused, unless such waiver or consent shall be in writing and
signed by the Party claimed to have waived or consented. Any consent by' any Party to, or
waiver of, a breach by the other, whether express or implied, shall not constitute consent to,
waiver of, or excuse for any other different or subsequent breach.
4.16 Authority. The Parties to this Agreement represent and warrant that this
Agreement has been duly authorized and executed and constitutes the legally binding obligation
of their respective organization or entity, enforceable in accordance with its terms.
4.17 Confidentiality. To the extent permitted by applicable law, including but not
limited to the California Public Records Act, CITY agrees to maintain the confidentiality of all
COUNTY and COUNTY -related records and information pursuant to all statutory laws relating
to privacy and confidentiality that currently exist or exist at any time during the term of this
Agreement. All such records and information shall be considered confidential and kept
confidential by CITY and CITY staff, agents and employees. To the extent permitted by
applicable law, including but not limited to the California Public Records Act, COUNTY agrees
to maintain the confidentiality of all CITY and CITY -related records and information pursuant to
all statutory laws relating to privacy and confidentiality that currently exist or exist at any time
during the term of this Agreement. All such records and information shall be considered
confidential and kept confidential by COUNTY and COUNTY staff, agents and employees.
4.18 Termination. The termination of this Agreement for any reason shall not release
any party in default.
4.19 Execution in Part. This Agreement may be executed in counterparts, each of
which, when both the Parties hereto have signed this Agreement, shall be deemed to be an
original, and such counterparts shall constitute one and the same instrument.
4.20. Notices. All notices authorized or required by this Agreement shall be effective
when sent via electronic mail or written and deposited in the United States Mail, first-class
postage paid, and addressed as follows:
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Costa Mesa Donald Dungan Library Page 5 Beam Replacement Project
CITY: City Chief Executive Officer (or other designated person)
City of Costa Mesa
77 Fair Drive
Costa Mesa, CA 92626
FAX Number: (714) 754-5330
COUNTY: County Librarian (or other designated person)
County of Orange/ OC Community Resources
OC Public Libraries
1501 E. St. Andrew Place
Santa Ana, CA 92705
FAX Number: (714) 566-3073
[signatures on next page]
Costa Mesa Donald Dungan Library page 6 Beam Replacement Project
IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first
above written.
APPROVED AS TO FORM: CITY
OFFICE OF COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA CITY OF COSTA MESA
:'` ' kk,
By.
By:
Deputy
Date: ( (-Lā
RECOMMENDED FOR APPROVAL:
OC PUBLIC LIBRARIES
Title:
Title:
i
APPROVED AS TO FORM:
By:
COUNTY LIBRARIAN
Signed and certified that a copy of this document has
been delivered to the Chair of the Board per G.C.
Sec. 25103, Resolution 79-1535
Attest:
Susan Novak
Clerk of the Board of Supervisors
Orange County, California
CITY ATTORNEY
COUNTY
COUNTY OF ORANGE
Chair, Board of Supervisors
Costa Mesa Donald Dungan Library Page 7 Beam Replacement Project_