HomeMy WebLinkAboutNB-2 - 26-108 - 2. County of Orange Cafe MOU - 2/3/2026DocuSign Envelope ID: 547FB8A8-EOCD-4A54-8A8A-D839445DEAE5
ATTATC H M E NT 2
MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF COSTA MESA AND THE COUNTY OF ORANGE
FOR REVENUE SHARING
This Memorandum of Understanding ("Memorandum") dated as of the 2nd day of
February 2023 is between the City of Costa Mesa, a municipal corporation ("City") and the
County of Orange, a political subdivision of the State of California ("County"). City and County
are referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, on or about December 29, 2022, the Parties entered into the Beneficiary
Agreement Between County of Orange and City of Costa Mesa for American Rescue Plan Act
Funding ("Beneficiary Agreement") in connection with the State and Local Fiscal Recovery
Funds program;
WHEREAS, the Beneficiary Agreement provided that the funds granted under that
agreement would be used for the construction of the Lions Park Cafe at the Lions Park;
WHEREAS, the Beneficiary Agreement was conditioned on the Parties executing a
revenue sharing agreement that will provide for County, through OC Public Libraries, to receive
50% of the Lions Park CaW s Net Revenues on an ongoing basis;
WHEREAS, City will operate the Lions Park Cafe in or about the Lions Park Campus
and adjacent to the Donald Dungan Library;
WHEREAS, the Donald Dungan Library, is an OC Public Libraries branch location and
City desires to complement the Lions Park Campus by operation of the Lions Park Cafe in
furtherance of the public interest; and
WHEREAS, the Parties now desire to enter into this Memorandum for revenue sharing.
NOW THEREFORE, in consideration of the foregoing recitals and the mutual covenants
and promises herein contained, the Parties hereto agree as follows:
ARTICLES
I. Definitions:
A. "Lions Park Cafe" means the cafe, or similar dining establishment, operated at the
facility, site, or building constructed and/or improved using funds under the Beneficiary
Agreement and situated in or about the Lions Park Campus and adjacent to the Donald Dungan
Library.
B. "Net Revenue" or "Net Revenues" means all revenues received by City from the
Lions Park Cafe from any and all sources including, but not limited to, the sale of coffee, food,
refreshments, and leases, operating agreements, concession agreements, licenses, subleases,
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event fees, or the sale of other goods or services by, or from, Lions Park Cafe, less only
Expenses, as defined below.
C. "Expenses" include expenses that are necessary for the operation of the Lions
Park Cafe, and include the cost of goods sold, utility costs, compensation paid to employees,
expenses for supplies, or other actual operating expenses for the Lion Park Cafe, which shall be
capped at and in no event exceed 75% of Revenues. "Expenses" do not include a share of capital
project costs or any costs or expenses for Lions Park Campus or any other building, facility, or
improvement.
D. "Revenues" means all revenues received by City from the Lions Park Cafe from
any and all sources including, but not limited to, the sale of coffee, food, refreshments, and
leases, operating agreements, concession agreements, licenses, subleases, event fees, or the sale
of other goods or services by, or from, Lions Park Cafe.
II. Term and Termination:
A. Term: This Memorandum shall be effective as of the date the last of the Parties
has executed the same ("Effective Date"). This Memorandum shall remain in full force and
effect until the Lions Park Cafe ceases to operate on a permanent basis, unless terminated
pursuant to the provisions of paragraph B below.
B. Termination: In addition to any other remedies or rights it may have by law,
County has the right to immediately terminate this Memorandum with City, without penalty for
cause, or after 30 days' written notice without cause, unless otherwise specified. Cause shall be
defined as any material breach of any provision of this Memorandum by City, or any
misrepresentation or fraud on the part of City. County may exercise its right to terminate the
Memorandum, for cause or without cause, without liability, fee, cost, expense, penalty, or charge
of any kind and County's termination of the Memorandum shall relieve County of all further
obligations.
II. City's Responsibilities:
A. City shall operate the Lions Park Cafe at no expense to County.
B. Within 30 days after the end of each quarter (i.e. on August 1, November 1,
February 1, and May 1 of each year), City shall:
a. Pay 50% of the Lions Park Cafe's Net Revenues received during the
previous quarter to County. City shall commence Net Revenue payments
once the Lions Park Cafe receives revenues and continue making such
payments during the term of this Memorandum;
b. Send payment via a check for the Net Revenues made out to the "County
of Orange, OC Public Libraries" at the following address: OC Public
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Libraries, 1501 E. Saint Andrew Place, 2nd Floor, Santa Ana, CA 92705
and write "Mesa Verde and Donald Dungan Libraries" on the check;
c. Use the other 50% of the Lions Park Cafe's Net Revenues for maintenance
at the Mesa Verde Library and Donald Dungan Library; and
d. Provide County with a summary of Revenues, Net Revenues, and
Expenses for the prior quarter. City may satisfy the foregoing obligation
by providing County with all, or a portion of, Lions Park Cafe's financial
statements for the prior quarter.
C. City shall ensure the Lions Park Cafe incurs only reasonable and necessary
expenses that are typically incurred by other similar establishments within the City. City shall
ensure it, and the Lions Park Cafe, account for Lions Park Cafe's revenue and expenses
according to generally accepted accounting principles applicable to City.
D. City shall maintain records related to the operation of the Lions Park Cafe for not
less than three (3) years after the final payment is made under this Memorandum, unless a longer
period of records retention is required by law, and provide the records to County within 10 days
of County's request.
E. City shall permit County's Auditor -Controller or the Auditor -Controller's
authorized representative access during normal working hours to all books, accounts, records,
reports, files, financial records, supporting documentation, and other papers or property of City
for the purpose of auditing or inspecting any aspect of performance under this Memorandum.
County will provide reasonable notice of such an audit or inspection.
F. City shall maintain commercially reasonable insurance coverage that is adequate
for performing its obligations under this Memorandum.
G. City shall, in performing under this Memorandum, comply at its own expense
with all applicable local, state, and federal laws, statutes, requirements, and regulations.
III. County's Responsibilities:
A. County, through OC Public Libraries, shall accept the revenue sharing funds paid
by City to County under this Memorandum.
B. County shall deposit all such revenues in OC Public Libraries' Library Fund as
OC Public Libraries revenues to be used on an ongoing basis for funding programing by OC
Public Libraries for both the Mesa Verde and Donald Dungan libraries.
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IV. Miscellaneous Articles:
A. Notwithstanding anything to the contrary, nothing herein shall require County to
incur an expense, obligation, or liability of any kind related to operation of the Lions Park Cafe
or this Memorandum.
B. The Parties agree that County's (inclusive of County's affiliates, subcontractors,
employees, officers, directors, elected and appointed officials, and those special districts and
agencies which County's Board of Supervisors acts as the governing Board) liability arising
under or related to the Lions Park Cafe and this Memorandum is limited and disclaimed in full
and/or to the maximum extent allowed by law, whichever is more limiting. In no event shall
County (inclusive of County's affiliates, subcontractors, employees, officers, directors, elected
and appointed officials, and those special districts and agencies which County's Board of
Supervisors acts as the governing Board) be liable or responsible for any type of claim, damage
(including but not limited to exemplary, punitive, indirect incidental, and consequential
damages), or liability regardless of the form of the action or the theory of recovery, whether in
contract or in tort or otherwise.
C. City shall indemnify, defend with counsel approved in writing by County, and
hold County, its elected and appointed officials, officers, employees, agents and those special
districts and agencies which County's Board of Supervisors acts as the governing Board
("County Indemnitees") harmless from and against any claims, demands, liability of any kind or
nature, including but not limited to personal injury or property damage, arising from or related to
the Lions Park Caf6 or the services or performance provided pursuant to this Memorandum. If
judgment is entered against City and County by a court of competent jurisdiction because of the
concurrent active negligence of County or County Indemnitees, City and County agree that
liability will be apportioned as determined by the court. Neither Party shall request a jury
apportionment.
D. City cannot assign this Memorandum without the express written approval of
County. This Memorandum shall be binding upon and inure to the benefit of the Parties and
their permitted successors, assigns, and legal representatives.
E. No alteration or variation of the terms of this Memorandum shall be valid unless
made in writing and signed by the Parties; no oral understanding or agreement not incorporated
herein shall be binding on any of the Parties; and no exceptions, alternatives, substitutes or
revisions are valid or binding on County unless authorized by County in writing.
F. Notices or other communications, which may be required or provided under the
terms of this Memorandum, shall be given as follows:
City: City of Costa Mesa
P.O. Box 1200
Costa Mesa, CA 92628-1200
Attention: Lori Ann Farrell Harrison, City Manager
loriann@costamesaca.gov
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County: County of Orange/OC Community Resources
1501 E. Saint Andrew Place, 2nd Floor
Santa Ana, CA 92705
Attention: Julie Oakley, Real Estate & Non -Profit Strategies Manager,
OC Public Libraries
julie.oakley@occr.ocgov.com
All notices shall be in writing and deemed effective when delivered in person or deposited in the
United States mail, first class, postage prepaid and addressed as above. Notwithstanding the
above, the Parties may also provide notices by facsimile transmittal, and any such notice so
given shall be deemed to have been given upon receipt during normal business hours or, in the
event of receipt after business, on the following business day. Any notices, correspondence,
reports and/or statements authorized or required by this Memorandum, addressed in any other
fashion shall be deemed not given.
G. In any action or proceeding to enforce or interpret any provision of this
Memorandum, or where any provision hereof is validly asserted as a defense, the Parties shall
bear their own attorney's fees, costs, and expenses.
H. The laws of the State of California and applicable local and federal laws,
regulations, and guidelines shall govern this Memorandum.
I. City shall be considered an independent contractor and neither City, its
employees, nor anyone working under City shall be considered an agent or an employee of
County. Neither City, its employees nor anyone working under City shall qualify for workers'
compensation or other fringe benefits of any kind through County. The Parties agree that County
will not operate and is not responsible or liable in anyway for the Lions Park Cafe.
J. If any term, covenant, condition, or provision of this Memorandum 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.
K. This Memorandum may be executed in two or more counterparts, each of which
shall be deemed an original and all of which together shall constitute the same agreement.
Facsimile, documents executed, scanned, and transmitted electronically, and electronic
signatures shall be deemed original signatures for purposes of this Memorandum, with such
facsimile, scanned, and electronic signatures having the same legal effect as original signatures.
L. The individuals signing this Memorandum have the authority to commit the Party
they represent to the terms of this Memorandum, and do so commit by signing.
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DocuSign Envelope ID: 547FB8A8-EOCD-4A54-8A8A-D839445DEAE5
IN WITNESS WHEREOF, the Parties hereto have caused this Memorandum to be executed on
the date first above written.
CITY OF COSTA MESA, CALIFORNIA
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Signed by:
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By: 96AG 4R46684EB... Dated:
Lori Ann Farrell Harrison
City Manager
COUNTY OF ORANGE
2/7/2023
DocuSigned by:
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By: gagppeaDated:
Helen Hernandez, Deputy Purchasing Agent
County Procurement Office
County of Orange, California
APPROVED AS TO FORM:
Office of the County Counsel
County of Orange, California
DocuSigned by:
Deputy
2/15/2023
DATED:
APPROVED AS TO FORM FOR
CITY:
City of Costa Mesa
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cSigned by:
BY: 15a (hw...
Kimberly Hall Barlow
City Attorney
DATED: 2/15/2023
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