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HomeMy WebLinkAbout20B - AGREEMENTS AND APPROPRIATION ADJUSTMENT CARNIVALS CITY OWNED PARKSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 6, 2012 TITLE: AGREEMENTS AND APPROPRIATION ADJUSMENT FOR CARNIVALS AT CITY OWNED PARKS CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2"d Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Fiesta de Carnival in the amount of $22,500 for a one-year term, subject to non- substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute the attached agreement with "O" Entertainment in the amount of $15,250 for a one-year term, subject to non- substantive changes approved by the City Manager and City Attorney. 3. Authorize the City Manager and Clerk of the Council to execute the attached agreement with Robert Acosta & Associates in the amount of $13,500 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. 4. Approve an appropriation adjustment recognizing projected carnival revenue in the amount of $51,250 in the Recreation Special Fees and Donations revenue account (no. 02213002 57010) and appropriate funds to the Recreation Special Fees and Donations expenditure account (no. 02213200 62300). DISCUSSION A Request for Proposal for providing nine carnivals on City-owned parks was issued and mailed to 24 vendors. A pre-proposal conference was conducted on December 21, 2011, and four vendors submitted proposals for consideration. Robert Acosta & Associates, Shamrock Shows, Fiesta de Carnival and "O" Entertainment each submitted proposals for review. A five member evaluation committee consisting of representatives from Library, Police, Community Development, and Parks, Recreation and Community Services rated the four proposals. The committee rated each proposal based on the operator's ability to successfully conduct carnivals using the following evaluation criteria: Carnival Agreements and AA 20B-1 Carnival Agreements and AA February 6, 2012 Page 2 ¦ Equipment capability and functionality (20%) ¦ Level of service and support (20%) ¦ Experience of firm and personnel (20%) ¦ Past performance (40%) "O" Entertainment was rated highest, scoring 470 out of a maximum 500 points. Fiesta de Carnival scored 463 followed by Robert Acosta & Associates, which scored 419 points and Shamrock Shows, which scored 318 points. Fiesta de Carnival submitted for eight carnivals while Robert Acosta & Associates submitted for all nine carnivals. "O" Entertainment only submitted for two carnivals. Based on the results of the evaluation, the evaluation committee recommended the following 2012 Carnival Schedule: Park Site Promoter License Fee 1 Jerome Park "O" Entertainment 8,250 March 9-11 Fri-Sun 2 Cesar Chavez Fiesta De Carnival 4,500 April 6-8 Fri-Sun 3 Madison Fiesta De Carnival 8,750 May 25-28 Fri-Mon 4 Rosita Park Robert Acosta & Associates 4,500 June 8-10 Fri-Sun 5 El Salvador Fiesta De Carnival 2,250 June 15-17 Fri-Mon 6 Jerome Park "0" Entertainment 7,000 August 10-12 Fri-Sun 7 Madison Park Fiesta De Carnival 7,000 August 31 -September 3 Fri-Mon 8 Cesar Chavez Robert Acosta & Associates 4,500 October 12-14 Fri-Sun 9 Delhi Robert Acosta & Associates 4,500 October 19-21 Fri-Sun Total 51,250 20B-2 Carnival Agreements and AA February 6, 2012 Page 3 Traditionally, carnivals conducted at Jerome and Madison parks draw larger crowds and are more profitable. Conversely, carnivals conducted at Delhi, Cesar Chavez/Campesino, Rosita and El Salvador parks draw smaller crowds and generate less revenue. Therefore, the license fee for the large carnivals conducted at Jerome and Madison parks is higher. The Parks, Recreation and Community Services Agency strives to provide safe, clean, low cost carnival events for our community. The total projected annual revenue for these agreements is $51,250 per year and will be used to fund deferred maintenance needs throughout our park system. FISCAL IMPACT The appropriation adjustment will recognize projected carnival revenue in the amount of $51,250 in the Recreation Special Fees and Donations revenue account (no. 02213002 57010) and appropriate funds to the Recreation Special Fees and Donations expenditure account (no. 02213200 62300). APPROVED AS TO FUNDS AND ACCOUNT: Gerardo Mouet, Executive Direct?r Parks, Recreation and Community Services Agency Francisco Gutierrez, Executive Director Finance and Management Services Agency 20B-3 20B-4 NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this 6"' day of February, 2011 by Fiesta De Carnival, a California corporation (hereinafter "Promoter"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS On December 7, 2011, the City issued Request for Proposals, No. 11-068 -PRCSA, seeking carnival Promoters to provide carnivals at specified City owned parks. Promoter submitted a proposal to provide carnival services. Promoter represents that Promoter is able and willing to provide carnival services to the City as specified in the Request for Proposals No. 11-068 -PRCSA and any addendums thereto. In undertaking the performance of this Agreement, Promoter represents that it is knowledgeable in its field and that any services performed by Promoter under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival Promoter in the field. NOW THEREFORE, in consideration of the mutual and respective promises set forth herein, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. PREMISES AND USE (A) The City of Santa Ana owns the following community parks ("Parks") within its boundaries: Cesar Chavez / Campesino Park, located at 3311 W. 5t' St, Santa Ana; Madison Park, located at 1528 S. Standard, Santa Ana; and El Salvador Park, located at 1825 W. Civic Center Dr. West, Santa Ana. City hereby grants to the Promoter a non-exclusive, revocable user agreement to encroach upon the specific areas of the above stated Parks ("Carnival Areas") delineated in the renderings of the Parks attached hereto and collectively referenced as Exhibit "A", for the purpose of providing carnivals and for no other purpose. Promoter shall provide one (1) carnival ("Carnival Event") at each location during the term of this Agreement on dates approved by the Executive Director of Parks, Recreation and Community Services Agency, as set forth in Section 3 hereof. (B) The right and permission of Promoter is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in its entirety for public purposes to which it presently is and may, at the option of the City, be devoted. Promoter agrees to use the Carnival Areas at all times in such manner as will not unreasonably interfere with the full use and enjoyment of the Parks by the City, its residents and guests. (C) Promoter hereby acknowledges that title to the Parks is vested in the City and agrees never to assail or challenge the same, and further agrees that Promoter's use and occupancy of the Carnival Area within the Parks shall be limited solely to the permission for such use and occupancy granted herein. (D) As a covenant to this Agreement, Promoter agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request for Proposals, RFP 11-068 -PRCSA, issue date December 7, 2011 , and Addendum No. 1 thereto (hereinafter, collectively "RFP") attached hereto as Exhibit "B" and incorporated herein by reference. Any failure to adhere to and comply with the Zoe-s terms, conditions and responsibilities enumerated in the RFP shall be deemed a breach of this Agreement and of the RFP. (E) The parties hereto agree that if, at the sole discretion of the City, a Carnival Event should not proceed on the dates set forth in Section 3 hereof due to foul or inclement weather, the City at its discretion may grant Promoter alternative dates for the conducting of the Carnival Events within the term of this Agreement. If Promoter desires to obtain alternative dates as provided in this paragraph, Promoter must timely request the same from City. 2. SCOPE OF SERVICES Promoter shall provide at each of the Parks identified a full service carnival complete with the rides, equipment and services as set forth in the RFP (Exhibit B) to this Agreement. Provider, if it contracts with an Operator to provide carnival attractions, shall require such Operator to fully comply with all the terms and conditions of this Agreement regarding the provision of carnival services, including insurance requirements. Not later than sixty (60) days prior to the staging of any carnival event, Promoter shall obtain the written approval of the Executive Director of Parks, Recreation and Community Services, of any such Operator. Promoter shall not utilize a different operator without first obtaining the written permission of the Executive Director. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of each Carnival as set forth below, Promoter shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Promoter agrees to pay the City and City agrees to accept from Promoter the following fees per Carnival Event. Park/ Carnival Dates Fee Max Event Size Cesar Chaves/Cam esino Aril 6-8 $4,500.00 14 Carnival Rides Madison Park Ma 25-28 $8,750.00 12 Carnival Rides El Salvador Park June 15-17 $2,250.00 15 Carnival Rides Madison Park August 31 - Sept 3 $7,000.00 12 Carnival Rides $22,500.00 *Note: Each carnival may host 12 Game Booths and 20 food / information booths. One booth is equal to one 10x10 canopy area. A maximum ten 10 x 10 cooking booths will be allowed (or five 10 x 20). The remainder can be non-profit, commercial or sponsorship booths. Please include in your plot plan what goods and services each of these booths will offer and the dimension of each booth. The City must approve all goods and services sold at commercial booths. Massage booths are not allowed In addition to the fees set forth herein, Promoter shall pay all required City fees and deposits including the fees for police services and Park clean up, and obtain all required permits and licenses as detailed in the RFP, Exhibit B hereto. All fees and deposits shall be due and payable as set forth in the RFP. Additionally, failure to pay the cleanup/damage deposit and/ or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day. The vendor will not be allowed to start an event if there is an unpaid balance. Vendor is subject to other monetary penalties for failure to perform as set forth throughout the RFP. 2 20B-6 4. SECURITY DEPOSIT Contemporaneously with the execution of this Agreement, Promoter shall deposit with City the additional sum of $5,000.00 as a security deposit. The deposit shall be held by City, without liability for interest, as security for the faithful performance by Promoter of all the terms, covenants, and conditions of this Agreement to be kept and performed by Promoter during the Term of this Agreement, or any extension thereof, and including the removal of Promoter's facilities as set forth herein. Assuming successful completion of all terms and conditions of this Agreement, including those within the RFP, the security deposit, or any remaining portion thereof, and any unused fees shall be returned within 60 days of the final carnival activity provided for in the RFP. 5. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2012 unless terminated earlier in accordance with this Agreement. The term of this Agreement may be extended for an additional l year term at the City's sole discretion through a writing executed by the Executive Director of the Parks Recreations and Community Services Agency and the City Attorney. 6. NON-POSSESSORY INTEREST City retains full possession of the Park and Carnival Area and Promoter will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Promoter will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. 7. NON RECORDING Neither party shall record this Agreement 8. RECORD KEEPING AND AUDIT A. Promoter shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Promoter's accounting system shall conform to generally- accepted accounting principles and all records shall provide a breakdown of total costs and revenues associated with the Park Carnival Events. B. All Promoter's records of revenues and repairs pertaining to the Carnival Events referenced herein shall be kept for the duration of this Agreement and made available at all times for audit by City upon request 9. INDEPENDENT CONTRACTOR Promoter shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Promoter performs the services which are the subject matter of this Agreement; however, the services to be provided by Promoter shall be provided in a manner consistent with all applicable standards and regulations governing such services. Promoter shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 3 206'7 10. INSURANCE Prior to undertaking performance of any work relative to a Carnival Event under this Agreement, Promoter shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Promoter and each of its operators and subcontractors shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of the operations or performance of this Agreement by Promoter, its operators or subcontractors, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $5,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. A. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. B. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Promoter, if Promoter has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Promoter agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. C. The following requirements apply to the insurance to be provided by Promoter pursuant to this section: i. Promoter shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City; and shall state as follows: "The above detailed coverage is not subject to any deductible or self-insured retention, or any other form of similar type limitation. " iv. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with City prior to the execution of this Agreement. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certification of insurance showing that coverage has been renewed, shall be filed with the City. V. If the certificate of insurance is in the name of the carnival Promoter it shall include the name of the carnival promoter as additionally insured. 4 206'8 E. If Promoter fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Promoter agrees to indemnify the City for any work performed prior to approval of insurance by the City. 11. INDEMNIFICATION Promoter agrees to and shall protect, defend, indemnify and save and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability, loss, damage, expense or cost: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Promoter or its operators, contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in Sections 1, 2 and 3 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Agreement or by reason of the terms of, or effects, arising from this Agreement. The Promoter further agrees to defend, indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Promoter shall protect, defend, indemnify and save and hold harmless the City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with Promoter's performance of this Agreement or any failure to comply with any of Promoter's obligations contained in this Agreement by Promoter, its officers, agents, employees or contractors. 12. TRASH/UTILITIES/CLEANUP Promoter is responsible for the collection and disposal of all trash as specified in the RFP (Exhibit B) including the providing of the required 40 yard roll-off dumpsters. Promoter is responsible for the continuous cleaning of the City Park, including the restrooms, at all times while acting pursuant to this Agreement as set forth in the RFP. The area to be cleaned includes the parking lots and the surrounding neighborhood and streets. Further, with the exception of the City supplying two (2) potable water hookups as set forth in the RFP, Promoter is responsible for supplying all utilities to be used during the Carnival Events, including supplying the required portable toilets as specified in the RFP. Persons performing clean-up shall be employees or subcontractors of the vendor. 13. HAZARDOUS MATERIALS Promoter represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and Promoter will not store or dispose on the Park and/or Carnival Area nor transport to or over the Park and/or Carnival Area any hazardous substance. Promoter further agrees to clean-up and remediate any hazardous substance on the Park and/or Carnival Area and Property, and hold City harmless from and indemnify City against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of City, its employees or 5 20B-9 agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 14. WASTE OR NUISANCE Promoter shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Promoter shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Park or Carnival Areas; and Promoter shall not use or permit the use of the Park or Carnival Areas for any unlawful purpose. 15. PUBLIC NECESSITY City may immediately temporarily suspend operation of this Agreement and the Carnival Event in the event of public necessity or emergency, as may be determined by the City Manager. Such suspension will terminate when the public necessity or emergency no longer exists. 16. ON-SITE OFFICE One (1) trailer-type vehicle will be allowed to park in the Carnival Area, in a location pre- determined by the Park Superintendent, to be used exclusively as a business office by Promoter. This vehicle must be equipped as an office and used only as such. Under no circumstances is this vehicle to be used for sleeping accommodations while on Park premises. The office vehicle will be allowed on the premises for the period provided for all other carnival equipment pursuant to the RFP. Promoter shall be at the carnival site during the entire event, including set-up and take-down. If Promoter is must be absent from the site, he shall ensure a supervisor, authorized to act on behalf of Promoter, is present. 17. LIENS Promoter will not permit any mechanics' or materialmens' or other liens to stand against the City Park or Carnival Area by reason of any use or occupancy by Promoter, or any person claiming under Promoter. 18. TERMINATION IN THE EVENT OF CASUALTY OR CONDEMNATION In the event of any damage, destruction or condemnation of the Park and/or Carnival Area, which renders the Park and / or Carnival Area unusable or inoperable in Promoter's judgment, Promoter shall have the right, but not the obligation, to terminate the Agreement with respect to the subject Carnival Area by giving written notice to the City within thirty (30) days after such damage, destruction or condemnation. If by virtue of such damage, destruction or condemnation, City determines that the Park and / or Carnival Area is no longer adequate for Promoter to continue its operations, or any repairs to the Park and / or Carnival Area to remedy such damage, destruction or condemnation have not been completed or cannot reasonably be completed outside of forty-five (45) days from the date of the up coming scheduled carnival, City may terminate this Agreement upon thirty (30) days written notice to Promoter. 6 20B-10 In the event of condemnation, unless Promoter is allowed by the condemning authority to continue its operations in the Carnival Area, this Agreement shall terminate as of the date title to the Property vests in the condemning authority or Promoter is required to cease its operations, whichever is earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to City. 19. TERMINATION This Agreement may be terminated by the City without cause upon thirty (30) days written notice of termination. City may terminate this Agreement for cause upon three (3) days written notice for any violation of the terms contained herein. 20. DEFAULT BY PROMOTER Should Promoter default in the performance of any of the terms, conditions, or obligations contained in this Agreement, City may, in addition to the remedies specified elsewhere in this Agreement and the attached RFP, re-enter and regain possession of the Carnival Area in the manner provided by the laws of unlawful detainer of the State of California then in effect. 21. INSOLVENCY OF PROMOTER The insolvency of Promoter as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Promoter, or the making of a general assignment for the benefit of creditors by Promoter, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle City to re-enter and regain possession of the Carnival Area. 22. CUMULATIVE REMEDIES The remedies given to City in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. 23. WAIVER OF BREACH The waiver by City of any breach by Promoter of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Promoter either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Promoter covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 25. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, addressed to the party concerned as follows: To City: Clerk of the City Council City of Santa Ana 7 20B-11 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Fax 714-647-6956 With courtesy copies to: and Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax 714-647-6515 To Promoter: Fiesta de Carnival Attn: Ted Holcomb 11278 Los Alamitos Blvd. #101 Los Alamitos, CA 90720 Telephone (562) 799-7737 Fax 562-799-1443 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 26. CONTRACT ADMINISTRATOR The Executive Director of Parks Recreation and Community Services Agency, or his/her designee, shall be City's Contract Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. 27. COMPLIANCE WITH LAWS Promoter shall obtain and maintain a permit issued by the Division of Industrial Safety of the Department of Industrial Relations of the State of California. In addition, Promoter shall, at Promoter's own cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state, county and municipal, relating to Promoter's use and occupancy of the Park and Carnival Area and Promoter's facilities whether such statute, ordinances, regulations, and requirements be now in force or hereinafter enacted. The judgment of any court of competent jurisdiction, or the admission by Promoter in a proceeding brought against Promoter by any government entity, that Promoter has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Promoter and shall be considered grounds for termination of this Agreement by City. Promoter will obtain all permits and other governmental approvals, required in connection with Promoter's activities hereunder, and update such permits/approvals as necessary. 8 20B-12 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Promoter, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, including the RFP, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Promoter. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which are not embodied herein. 29. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Promoter, Promoter may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Promoters retained by City. 30. NON-DISCRIMINATION Promoter shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Promoter affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 31. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 32. ATTORNEY'S FEES Except as otherwise provided in this Agreement, in the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 33. PROFESSIONAL LICENSES Promoter shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Promoter shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 9 20B-13 34. BINDING ON HEIRS AND SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions against assignment set forth herein. 35. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination, or expiration of this Agreement, shall so survive 36. MISCELLANEOUS PROVISIONS A. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. B. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: FIESTA DE CARNIVAL Laura Sheedy Assistant City Attorney TED HOLCOMB Owner 209-14 EXHIBIT A PARK LOCATION MAPS II 20B-15 EXHIBIT B A. PROMOTER'S RESPONSIBILITIES REQUIRED CLEANUP/DAMAGE DEPOSIT - Upon selection, Promoter must provide a $5,000 refundable damage/clean-up deposit to the City of Santa Ana, Parks, Recreation and Community Services Agency a minimum of ten (10) business days before the start date of the event. Monies will be deducted from the deposit for repair of any damages incurred, cleanup of the park, unforeseen security or staff costs, or any other charges caused by the event. Any remaining monies from the deposit will be refunded to Promoter at the conclusion of the carnival season. Should costs incurred by the City (as stated above) be greater than the total deposit, the Promoter will be invoiced for the balance due. The Promoter will be required to submit the balance due 10 days prior to conducting another event. The deposit balance shall remain at $5,000 during the term of the agreement. Promoter agrees that failure to pay the cleanup/damage deposit and/or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day penalty. Promoter will not be allowed to start an event if there is an unpaid balance due. 2. CLEANUP DURING AND AFTER THE EVENT - Promoter agrees that it has full responsibility for continuously cleaning the park by removing all trash and debris on the ground, removing trash from the park receptacles and replacing liners and cleaning/sanitizing restrooms from the time the first Promoter employee arrives at the park site for set up until the last Promoter employee leaves the park. Furthennore, Promoter agrees to be responsible for cleanup of the event site and the surrounding areas after the event. Promoter agrees to arrange for trash pick-up in the parking lots and surrounding neighborhood after each day at Promoter's expense. Persons performing clean-up shall be employees or subcontractors of the Promoter. Failure to provide continuous clean-up will result in dispatching City staff to perform this work at Promoter's expense or the City hiring a private contractor to perform the work at Promoter's expense plus a $500 penalty for each day Promoter fails to perform this responsibility. 3. STREET SWEEPING -If street sweeping is necessary due to trash left from pedestrian and vehicular traffic and Promoter fails to perform as required above, the City will arrange for the parking lots and major streets surrounding the park to be swept on the day following the last day of the event at Promoter's expense. Furthermore, Promoter agrees to pay a $500 penalty for failure to perform this responsibility. 4. DUMPSTERS - Promoter is responsible for providing the appropriate number of 40 yard roll-off dumpster(s) to collect trash for the event. The dumpster(s) must be removed by 3:00 p.m. of the second day following the conclusion of the event. Promoter agrees to pay a penalty of $500 per day that the dumpsters are not provided and removed as indicated. 5. REQUIRED PLOT PLAN AND PLAN CHECK PROCESS - Promoter must provide a plot plan utilizing the land use certificate format for the overall equipment set up by a minimum of ten (10) business days before the event. The plot plan must include entrances, exits, all necessary barricading, detailed location of all rides, booths, restrooms, electrical equipment, 12 20B-16 etc. Promoter shall indicate number and name of rides on the plot plan, and the name and number of other types of carnival units such as repair and supply units they would like to have on the park. This plot plan is required by the Police Department, the Fire Department, the Planning and Building Agency (Electrical Division), the Parks, Recreation and Community Services Agency, and the Orange County Health Department. Promoter must walk the plot plan through the City Planning and Building Agency-Plan Check Section, 20 Civic Center Plaza, Ross Annex. For further information on the plan check process, please contact the Santa Ana Police Department at (714) 245-8718 or (714) 245-2709. Copy of approved plot plan must be provided to the Santa Ana Police Department and to the Parks, Recreation and Community Services Agency. Promoter agrees to pay a $500 penalty per day for each day late in providing the plot plan. 6. CARNIVAL LICENSE FEE- Promoter shall pay the required carnival license fees a minimum 10 days prior to each event. Checks shall be made payable to "The City of Santa Ana". 7. FIRE AND ELECTRICAL INSPECTION - Ten (10) business days prior to the event, Promoter shall schedule appointments with the Santa Ana Fire Department and the Santa Ana Planning and Building Agency for an electrical inspection of all generators, carnival equipment, and booths to be used at the carnival. Promoter agrees to pay a $500 penalty per day for each day late in scheduling appointments as indicated. No more than ten (10) 10 x 10 cooking booths will be allowed (or five 10 x 20). Complete event rules and regulations will be provided to Promoter at plan check and copies shall be provided to each booth operator by Promoter. Promoter shall provide all event electricity. Hookups to park electrical outlets will not be permitted. All vendors must be set-up and ready for inspection by 4:00 p.m. on the first day of the carnival. Promoter agrees to pay a $500 penalty per day for each violation. 8. O.C. HEALTH DEPARTMENT REQUIREMENTS - Promoter must obtain food permits and food booth inspections from the Orange County Health Department a minimum of ten (10) business days before the event. Any booths or vendors not receiving prior approval from the Orange County Health Department will not be allowed to operate. Food booths are only allowed to operate for the duration of the event during event hours only. To obtain food permits and schedule booth inspections, Promoter must contact the Orange County Health Department at (714) 667-3610. Promoter agrees to pay a $500 penalty per day for each day late in securing food permits and food booth inspections. Furthermore, Promoter shall pay a $500 penalty per day for each food booth discovered operating without prior approval of the O.C. Health Department. Parks and Recreation will provide two (2) potable water hookups during the entire event. These water hookups are to be used ONLY for sanitation purposes in compliance with the Orange County Department of Health regulations, and are not for camping or refreshment preparation use. Promoter shall pay a $500 penalty per day for each violation. 9. REQUIRED PERMIT FROM BUSINESS LICENSE OFFICE FOR BOOTH VENDORS (BUSINESSES AND/OR NON-PROFIT ORGANIZATIONS) - Promoter is responsible for supplying the Business License Office with a list of pre-approved potential vendors before sending vendors to the Business License Office, in order to avoid unapproved vendors from vending during the event, or Promoter may collect all the necessary information and fees from the vendors and submit the entire packet to the Business License Office a minimum of 13 20B-17 five (5) days prior to the commencement of the event. Promoter shall pay a $500 penalty per day for each day late in submitting/paying the packet to the Business License Office. All vendors, business or non-profit organizations (selling or information only), which vend on City Property are required to possess a City of Santa Ana Business License. Businesses who do not have a current City of Santa Ana Business License can obtain a One-Day Peddler/Solicitor license. Non-Profit Organizations are required to obtain a Fee-Exempt status through the Business Tax Office. This is a once a year registration fee. For more information the Business Tax Office can be contacted at (714) 647 -5447. The Business Tax Office is located at 20 Civic Center Plaza, Rm. 1100, Santa Ana, CA 92702. Promoter agrees to pay a $500 penalty per day for each booth operating without a City Business License. 10. CONTACT WITH NEIGHBORHOOD ORGANIZATIONS - Promoter shall send a letter to the neighborhood associations adjacent to the park where the carnival is to be conducted informing them of the event and to gain their organization's support for the planned activity at the park during the scheduled times and dates, a minimum of ten (10) business days before the event. The Community Development Agency will provide contact information to the Promoter for a particular neighborhood upon request. Promoter shall submit copy of signed letter, on the organization's letterhead, to the Santa Ana Police Department and to the Parks, Recreation and Community Services Agency a minimum of ten (10) business days before the event. The Community Development Agency can be contacted by calling (714) 647-5360. Promoter agrees to pay a $500 penalty for each violation of this section. 11. CONTACT WITH NEIGHBORHOOD RESIDENTS - At least 72 hours prior to each carnival event, Promoter must post a sign or send flyers to the neighborhood surrounding the park informing them that the event will take place. Signs or flyers must be in English and Spanish. Promoter shall pay a $500 penalty for each violation of this section. 12. CONTACT WITH BUSINESS ORGANIZATIONS - Promoter must send a letter a minimum of ten (10) business days before the event to each business owner within a quarter mile radius of the carnival site, notifying them of the dates and times of the event, and what precautions should be taken to prevent program participants from parking in the surrounding business parking lots. Promoter shall pay a $500 penalty for each violation of this section. 13. REQUIRED EVENT PERSONNEL - A minimum number of uniformed, state licensed security personnel contracted through a private bonded security company will be required each day of the event. Promoter shall provide the designated amount of soft security as specified by the Santa Ana Police Department prior to or on the date of the pre-event meeting. The Santa Ana Police Department may modify the number of security required as it sees fit, due to specifications in the scale and activities to be held at the event, and/or recent activity in the park and surrounding areas. Security personnel must be present 30 minutes prior to the beginning of the event each day and must stay a minimum of one (1) hour after the completion of the event each day or until the park is clear, to help prevent any possible disruptions. All security officers must carry two-way radio equipment to enable them to communicate with all other security personnel. All security personnel must wear highly visible attire (security vest, jacket) identifying them as security officers. None of the security company personnel may be armed. A copy of the signed agreement with the security company must be provided a minimum of ten (10) business days prior to the event. Promoter shall pay a $500 penalty per day for each violation of this section. Furthermore, if it is 14 20B-18 discovered that the security deployment is less than the City's mandated level of security the City may elect to dispatch, at Promoter's expense SAPD and/or Park Ranger's to bring the security levels up to the agreed upon level. 14. REQUIRED LICENSE FOR SOFT SECURITY - The soft security organization must obtain clearance from the City of Santa Ana Police Department. Arrangements for clearance to be obtained can be made by calling (714) 245-8718 or (714) 245-2709. Promoter agrees to pay a $500 penalty for failure to perform this responsibility. 15. POLICE DEPARTMENT REQUIREMENTS - The security company to be used by the promoter must be pre-approved by the Santa Ana Police Department. Promoter must provide the Police Department with the names of the contact persons representing the carnival vendor and contracted security company. At least one of those security company contacts must have access to a cell phone to be used in case the Santa Ana Police Department needs to be called for assistance. The promoter will be required to turn in a completed Land Use Certificate form, site plan and Security Guard contract to the Police Department. The security Guard contract shall include the following supplemental information: The Security Officer in charge, name and cell number A list of names, guard card numbers and copy of guard cards of the security officers assigned to the event. Guards will be required to produce their guard card on demand during the event if requested by the Police Officers assigned to the carnival. If the guard fails to provide said card he shall be immediately replaced by the contracted guard company with an officer who has a guard card. Promtoer must also have a minimum of two (2) Santa Ana Police Department Officers present at all carnivals during agreed upon hours of event operation. In addition, one (1) motor officer will be required at Jerome and Cesar Chavez/Campesino locations. If the number of officers required exceeds two officers, Promoter shall not be responsible for the payment of costs for more than four officers. Promoter will also provide the Police Department with a booth at these events. The Police Department will coordinate necessary police assistance for the event at Promoters' expense. 16. ADDITIONAL POLICE/FIRE/PARK PERSONNEL - Promoter agrees that if a disturbance occurs due to the operations of the carnival and additional Police, Fire or Parks personnel assistance is required, promoter will pay those additional expenses. 17. PRE-EVENT AND POST EVENT INSPECTIONS WITH PARK PERSONNEL - Promoter must arrange to meet with the Park Supervisor by calling (714) 448-9127, to schedule a walk through the park before and after the event. The pre-inspection and post-inspection meetings will determine the condition of the sites before and after the event. A pre-inspection meeting must occur on the Tuesday prior to the carnival event. Promoter must bring the proposed plot plan to this meeting. Promoter shall not set up until pre-inspection has been completed. Set up prior to event date and/or before the pre-inspection meeting will result in a fine of $1,000 per day and may lead to a suspension of future events. A post-inspection meeting shall be completed on the second day following the carnival activity at 2:00 pm., unless otherwise stipulated by representatives of the Santa Ana Police 15 20B-19 Department and the Parks, Recreation and Community Services Agency. Failure to do so will result in a fine of $1,000 per day and may lead to a suspension of future events. Promoter agrees that the Park Supervisor shall be the final authority regarding interpretations of the sites existing conditions both before and after the event. Failure by the promoter to set and attend these meetings will result in the Park Supervisor performing the walk through of the park site without the promoter and all conditions recorded by the Park Supervisor shall be deemed as accurate and final. 18. PROTECTION OF FIELD AND TURF - Promoter shall be responsible for placing the carnival equipment in a way as not to cause damage to the park turf or irrigation system (sprinkler heads, etc). Such precautions may include painting around or covering the sprinkler heads with a "metal disk", or whatever efforts are necessary to protect the irrigation equipment at Promoter's expense. Funds to repair damages incurred to the turf or irrigation equipment due to the carnival event will be deducted from the security deposit. In the event that the cost of damages exceeds the deposit amount, Promoter must pay the balance within ten (10) days of the conclusion of the event. All concerns must be resolved prior to continuing with future events. Failure to do so may result in the suspension and or voiding of contract with Promoter. 19. CARNIVAL EQUIPMENT SET UP AND REMOVAL -None of the equipment may be moved into the park prior to the completion of the pre-event inspection meeting and/or 9:00 am on the Tuesday before a carnival event is to be held. All equipment must be removed no later than 2:00 pm on the Tuesday following the conclusion of a carnival event, unless approved in writing by the Park, Recreation and Community Services Agency. No carnival equipment may be stored on City streets or parks. There will be a $1,000 fee per day for equipment arriving earlier or left in the park later than the above stated times. 20. CARNIVAL HOURS - The carnival may not operate earlier than noon each day and no later than 11:00 p.m. on Thursday (if applicable), Friday and Saturday and no later than 10:00 p.m. on Sunday. Carnivals operating on Monday may play until 11:00 p.m. on Sunday night and 10:00 p.m. on Monday night. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Promoter agrees to pay a $500 penalty per day for each violation of this section. 21. PORTABLE RESTROOMS - Promoter shall provide a minimum of seven (7) portable toilets, with one of those toilets designed specifically for disabled persons. The toilets shall be placed no later than noon on the Thursday prior to the event and must be removed by 2:00 pm on the Monday following the conclusion of the event. Two (2) of the portable toilets must be delivered by the Tuesday prior to the event for use by Carnival workers during event set up. Promoter is responsible for arranging for portable toilets to be serviced (waste removal by the portable restroom company) a minimum of once per day or twice per day for capacity crowds. 21. SALE, ADVERTISING AND CONSUMPTION OF BEER, ALCOHOL OR CIGARETTES Promoter agrees that there shall be no beer, alcohol or cigarettes sold or consumed at any of the proposed events, nor shall there be any inflatables, balloons, or banners advertising beer, alcohol or cigarettes at any of the proposed events. Promoter agrees to pay a $500 penalty per day for each violation of this section. 16 206'20 23. NATURE OF CARNIVAL GAMES AND/OR ACTIVITIES - Promoter agrees that no games or activities involving the shooting of a gun or weapon, simulated or real, shall be used in any of the entertainment, including game booths, with the exception of water guns that are clearly recognizable as such. Promoter also understands and agrees that any gambling games or games of chance shall be subject to review and removal by the Santa Ana Police Department, who will ensure that they are fair and legal in nature, and in compliance with any applicable statutes. A determination by the Santa Ana Police Department that any particular game is in violation of any statute shall result in the removal of the game. Any City decision to remove a game will be final. 24. SIZE OF CARNIVAL RIDES - Promoter must bring a list and photos of their proposed rides to the pre-event meetings. The carnival ride list must be pre-approved by the Park Superintendent. In addition to minimizing the damage to park property, the City desires a balance between the number of small, medium and spectacular rides in order to maintain a family and community environment at these events. Although promoters will be encouraged to provide only small and medium rides, depending on the venue, up to two spectacular rides may be allowed. The Park Superintendent must approve the final ride list at, or any time before, the pre-event meeting. All carnival rides used in City parks shall comply with State permitting requirements. 25. EVENT STAFF, OFFICE AND SECURITY PARKING - Promoter agrees that there shall be no overnight camping or privately owned vehicles for the purpose of overnight camping at the park site. All vehicles (cars, motor homes, trailers, tractor trailers with sleeping accommodations, motorcycles, etc.) must be parked outside of the park before, during and after carnival operation hours. The Park Superintendent will identify authorized parking areas at the pre-event meeting. Promoter is permitted one vehicle within the park site for security personnel and one vehicle for office purposes. Promoter shall pay a $500 penalty per day for each violation of this section. 26. DELIVERIES OF SUPPLIES TO VENDORS - Promoter shall be responsible for making certain the booth vendors are well stocked. Once the event is underway, all deliveries of food, drink and supplies must be carried via hand trucks or small Daihatsu or Cushman type vehicles to the booth sites. No trucks or automobiles will be allowed in the program area during programming hours. Loading and unloading of vendors equipment should be done prior to and after the event. 27. PERSONNEL TO PLACE AND COLLECT TRAFFIC BARRICADING EQUIPMENT - Promoter shall provide personnel to assist in placing and collecting the traffic barricades and equipment, under the supervision of the Police Department, before and after each day's event. Failure by the promoter to place and/or collect traffic barricades and/or equipment will result in City staff or a separate contractor completing this work at Promoter's expense. 28. RENTAL OF TRAFFIC CONTROL EQUIPMENT - Promoter shall be required to pay for the rental of specific traffic control equipment, as required by the Police Department. 29. PERSONNEL PARKING -Promoter shall instruct all personnel to park in areas indicated on the approved plot plan. Promoter personnel who fail to park vehicles in pre-approved designated areas may be subject to citation and/or towing at the vehicle owner's expense. 206-21 30. EVENT PARKING AND REQUIRED SIGNAGE - Promoter shall be required to post signs before the start of the event in both English and Spanish stating "No Event Parking" at the entrances to the local neighborhoods and businesses during the full duration of the carnival. Promoter shall ensure that these signs remain in place through the duration of the event. Promoter shall pay a $500 penalty for each violation of this section. 31. PERSONNEL AT ENTRANCES TO NEIGHBORHOOD - Promoter must provide soft security personnel (licensed as specified in Item V.A.15.) to work at designated neighborhood entrances in close proximity to the park. A minimum of two (2) persons, plus necessary directional signage, shall be stationed at each of the housing tract entrances during all event program hours in order to deter event participants from parking in the residential areas adjacent to the event. Promoter agrees to pay a $500 penalty per day for each violation of this section. 32. POLICE DEPARMENT REQUIREMENTS - Santa Ana Police Department officers will be required during event hours to enhance the security of the event. The number of officers needed will be based on factors such as the size of the event, expected attendance, and recent area activity. Promoter will be informed of the number of additional officers needed at the pre-event meeting described in Item IV.A.18. The Police Department will arrange the necessary police staffing for the event. Promoter is responsible for all Santa Ana Police Department regular and overtime costs for the event. In the event that the event is rained out or otherwise cancelled on short notice, the promoter will be responsible for a minimum of 4 hours of over-time costs. 33. LIGHTING - Where applicable, the City will turn on ball field and safety lighting to help light the carnival. Promoter is responsible for providing all other lighting to ensure that all areas of the carnival are adequately lit throughout the duration of the event. Promoter agrees to pay a $500 penalty per day for each violation of this section. 34. NEIGHBORHOOD BOOTHS - Promoter shall provide the local neighborhood associations with a booth for marketing and fundraising. This booth will be in addition to the 20 booths described in Section II. No sales are allowed at these booths. Booth shall include a 10x10 canopy, one 6 foot table, two chairs and adequate lighting. 35. ANIMALS - No petting zoos, pony rides, or any other animals are allowed at the carnival. 36. MASSAGE - No massage booths or massages are allowed at the carnival. 37. DISSALLOWED ITEMS - Blow horns, slingshots, knifes, and adult items (sexual in nature). Zoe-ii NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this 6`n day of February, 2011 by "O" Entertainment, Inc., a California corporation (hereinafter "Promoter"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS On December 7, 2011, the City issued Request for Proposals, No. 11-068 -PRCSA, seeking carnival Promoters to provide carnivals at specified City owned parks. Promoter submitted a proposal to provide carnival services. Promoter represents that Promoter is able and willing to provide carnival services to the City as specified in the Request for Proposals No. 11-068 -PRCSA and any addendums thereto. In undertaking the performance of this Agreement, Promoter represents that it is knowledgeable in its field and that any services performed by Promoter under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival Promoter in the field. NOW THEREFORE, in consideration of the mutual and respective promises set forth herein, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. PREMISES AND USE (A) The City of Santa Ana owns the following community parks ("Parks") within its boundaries: Jerome Park, located at 726 S. Center St., Santa Ana. City hereby grants to the Promoter a non-exclusive, revocable user agreement to encroach upon the specific areas of the above stated Parks ("Carnival Areas") delineated in the renderings of the Parks attached hereto and collectively referenced as Exhibit "A", for the purpose of providing carnivals and for no other purpose. Promoter shall provide one (1) carnival ("Carnival Event") at each location during the term of this Agreement on dates approved by the Executive Director of Parks, Recreation and Community Services Agency, as set forth in Section 3 hereof. (B) The right and permission of Promoter is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in its entirety for public purposes to which it presently is and may, at the option of the City, be devoted. Promoter agrees to use the Carnival Areas at all times in such manner as will not unreasonably interfere with the full use and enjoyment of the Parks by the City, its residents and guests. (C) Promoter hereby acknowledges that title to the Parks is vested in the City and agrees never to assail or challenge the same, and further agrees that Promoter's use and occupancy of the Carnival Area within the Parks shall be limited solely to the permission for such use and occupancy granted herein. (D) As a covenant to this Agreement, Promoter agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request for Proposals, RFP 11-068 -PRCSA, issue date December 7, 2011 , and Addendum No. 1 thereto (hereinafter, collectively "RFP") attached hereto as Exhibit "B" and incorporated herein by reference. Any failure to adhere to and comply with the terms, conditions and responsibilities enumerated in the RFP shall be deemed a breach of this Agreement and of the RFP. Zoe-23 (E) The parties hereto agree that if, at the sole discretion of the City, a Carnival Event should not proceed on the dates set forth in Section 3 hereof due to foul or inclement weather, the City at its discretion may grant Promoter alternative dates for the conducting of the Carnival Events within the term of this Agreement. If Promoter desires to obtain alternative dates as provided in this paragraph, Promoter must timely request the same from City. 2. SCOPE OF SERVICES Promoter shall provide at each of the Parks identified a full service carnival complete with the rides, equipment and services as set forth in the RFP (Exhibit B) to this Agreement. Provider, if it contracts with an Operator to provide carnival attractions, shall require such Operator to fully comply with all the terms and conditions of this Agreement regarding the provision of carnival services, including insurance requirements. Not later than sixty (60) days prior to the staging of any carnival event, Promoter shall obtain the written approval of the Executive Director of Parks, Recreation and Community Services, of any such Operator. Promoter shall not utilize a different operator without first obtaining the written permission of the Executive Director. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of each Carnival as set forth below, Promoter shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Promoter agrees to pay the City and City agrees to accept from Promoter the following fees per Carnival Event. Park/ Carnival Dates Fee Max Event Size Jerome Park March 11-13 $8,250.00 16 Carnival Rides Jerome Park August 10-12 $7,000.00 16 Carnival Rides $15,250.00 *Note: Each carnival may host 12 Game Booths and 20 food / information booths. One booth is equal to one 10x10 canopy area. A maximum ten 10 x 10 cooking booths will be allowed (or five 10 x 20). The remainder can be non-profit, commercial or sponsorship booths. Please include in your plot plan what goods and services each of these booths will offer and the dimension of each booth. The City must approve all goods and services sold at commercial booths. Massage booths are not allowed In addition to the fees set forth herein, Promoter shall pay all required City fees and deposits including the fees for police services and Park clean up, and obtain all required permits and licenses as detailed in the RFP, Exhibit B hereto. All fees and deposits shall be due and payable as set forth in the RFP. Additionally, failure to pay the cleanup/damage deposit and/ or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day. The vendor will not be allowed to start an event if there is an unpaid balance. Vendor is subject to other monetary penalties for failure to perform as set forth throughout the RFP. 4. SECURITY DEPOSIT Contemporaneously with the execution of this Agreement, Promoter shall deposit with City the additional sum of $5,000.00 as a security deposit. The deposit shall be held by City, without liability for interest, as security for the faithful performance by Promoter of all the terms, covenants, and conditions of 2 20B-24 this Agreement to be kept and performed by Promoter during the Term of this Agreement, or any extension thereof, and including the removal of Promoter's facilities as set forth herein. Assuming successful completion of all terms and conditions of this Agreement, including those within the RFP, the security deposit, or any remaining portion thereof, and any unused fees shall be returned within 60 days of the final carnival activity provided for in the RFP. 5. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2012 unless terminated earlier in accordance with this Agreement. The term of this Agreement may be extended for an additional 1 year term at the City's sole discretion through a writing executed by the Executive Director of the Parks Recreations and Community Services Agency and the City Attorney. 6. NON-POSSESSORY INTEREST City retains full possession of the Park and Carnival Area and Promoter will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Promoter will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. 7. NON RECORDING Neither party shall record this Agreement 8. RECORD KEEPING AND AUDIT A. Promoter shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Promoter's accounting system shall conform to generally- accepted accounting principles and all records shall provide a breakdown of total costs and revenues associated with the Park Carnival Events. B. All Promoter's records of revenues and repairs pertaining to the Carnival Events referenced herein shall be kept for the duration of this Agreement and made available at all times for audit by City upon request 9. INDEPENDENT CONTRACTOR Promoter shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Promoter performs the services which are the subject matter of this Agreement; however, the services to be provided by Promoter shall be provided in a manner consistent with all applicable standards and regulations governing such services. Promoter shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 10. INSURANCE Prior to undertaking performance of any work relative to a Carnival Event under this Agreement, Promoter shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 3 20B-25 a. Commercial General Liability Insurance. Promoter and each of its operators and subcontractors shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of the operations or performance of this Agreement by Promoter, its operators or subcontractors, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $5,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. A. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. B. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Promoter, if Promoter has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Promoter agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. C. The following requirements apply to the insurance to be provided by Promoter pursuant to this section: i. Promoter shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City; and shall state as follows: "The above detailed coverage is not subject to any deductible or self-insured retention, or any other form of similar type limitation. " iv. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with City prior to the execution of this Agreement. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certification of insurance showing that coverage has been renewed, shall be filed with the City. V. If the certificate of insurance is in the name of the carnival Promoter it shall include the name of the carnival promoter as additionally insured. E. If Promoter fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Promoter agrees to indemnify the City for any work performed prior to approval of insurance by the City. 4 20B-26 11. INDEMNIFICATION Promoter agrees to and shall protect, defend, indemnify and save and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability, loss, damage, expense or cost: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Promoter or its operators, contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in Sections 1, 2 and 3 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Agreement or by reason of the terms of, or effects, arising from this Agreement. The Promoter further agrees to defend, indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Promoter shall protect, defend, indemnify and save and hold harmless the City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with Promoter's performance of this Agreement or any failure to comply with any of Promoter's obligations contained in this Agreement by Promoter, its officers, agents, employees or contractors. 12. TRASH/UTILITIES/CLEANUP Promoter is responsible for the collection and disposal of all trash as specified in the RFP (Exhibit B) including the providing of the required 40 yard roll-off dumpsters. Promoter is responsible for the continuous cleaning of the City Park, including the restrooms, at all times while acting pursuant to this Agreement as set forth in the RFP. The area to be cleaned includes the parking lots and the surrounding neighborhood and streets. Further, with the exception of the City supplying two (2) potable water hookups as set forth in the RFP, Promoter is responsible for supplying all utilities to be used during the Carnival Events, including supplying the required portable toilets as specified in the RFP. Persons performing clean-up shall be employees or subcontractors of the vendor. 13. HAZARDOUS MATERIALS Promoter represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and Promoter will not store or dispose on the Park and/or Carnival Area nor transport to or over the Park and/or Carnival Area any hazardous substance. Promoter further agrees to clean-up and remediate any hazardous substance on the Park and/or Carnival Area and Property, and hold City harmless from and indemnify City against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of City, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from 5 206'27 time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 14. WASTE OR NUISANCE Promoter shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Promoter shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Park or Carnival Areas; and Promoter shall not use or permit the use of the Park or Carnival Areas for any unlawful purpose. 15. PUBLIC NECESSITY City may immediately temporarily suspend operation of this Agreement and the Carnival Event in the event of public necessity or emergency, as may be determined by the City Manager. Such suspension will terminate when the public necessity or emergency no longer exists. 16. ON-SITE OFFICE One (1) trailer-type vehicle will be allowed to park in the Carnival Area, in a location pre- determined by the Park Superintendent, to be used exclusively as a business office by Promoter. This vehicle must be equipped as an office and used only as such. Under no circumstances is this vehicle to be used for sleeping accommodations while on Park premises. The office vehicle will be allowed on the premises for the period provided for all other carnival equipment pursuant to the RFP. Promoter shall be at the carnival site during the entire event, including set-up and take-down. If Promoter is must be absent from the site, he shall ensure a supervisor, authorized to act on behalf of Promoter, is present. 17. LIENS Promoter will not permit any mechanics' or materialmens' or other liens to stand against the City Park or Carnival Area by reason of any use or occupancy by Promoter, or any person claiming under Promoter. 18. TERMINATION IN THE EVENT OF CASUALTY OR CONDEMNATION In the event of any damage, destruction or condemnation of the Park and/or Carnival Area, which renders the Park and / or Carnival Area unusable or inoperable in Promoter's judgment, Promoter shall have the right, but not the obligation, to terminate the Agreement with respect to the subject Carnival Area by giving written notice to the City within thirty (30) days after such damage, destruction or condemnation. If by virtue of such damage, destruction or condemnation, City determines that the Park and / or Carnival Area is no longer adequate for Promoter to continue its operations, or any repairs to the Park and / or Carnival Area to remedy such damage, destruction or condemnation have not been completed or cannot reasonably be completed outside of forty-five (45) days from the date of the up coming scheduled carnival, City may terminate this Agreement upon thirty (30) days written notice to Promoter. In the event of condemnation, unless Promoter is allowed by the condemning authority to continue its operations in the Carnival Area, this Agreement shall terminate as of the date title to the Property vests in the condemning authority or Promoter is required to cease its operations, whichever is 6 20B-28 earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to City. 19. TERMINATION This Agreement may be terminated by the City without cause upon thirty (30) days written notice of termination. City may terminate this Agreement for cause upon three (3) days written notice for any violation of the terms contained herein. 20. DEFAULT BY PROMOTER Should Promoter default in the performance of any of the terms, conditions, or obligations contained in this Agreement, City may, in addition to the remedies specified elsewhere in this Agreement and the attached RFP, re-enter and regain possession of the Carnival Area in the manner provided by the laws of unlawful detainer of the State of California then in effect. 21. INSOLVENCY OF PROMOTER The insolvency of Promoter as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Promoter, or the making of a general assignment for the benefit of creditors by Promoter, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle City to re-enter and regain possession of the Carnival Area. 22. CUMULATIVE REMEDIES The remedies given to City in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. 23. WAIVER OF BREACH The waiver by City of any breach by Promoter of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Promoter either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Promoter covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 25. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, addressed to the party concerned as follows: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 7 20B-29 With courtesy copies to: and Fax 714-647-6956 Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax 714-647-6515 To Promoter: "O" Entertainment Attn: Troy Hassett 539 E. Bixby Road, Suite 59 Long Beach, CA 90807 Fax 562-495-5961 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 26. CONTRACT ADMINISTRATOR The Executive Director of Parks Recreation and Community Services Agency, or his/her designee, shall be City's Contract Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. 27. COMPLIANCE WITH LAWS Promoter shall obtain and maintain a permit issued by the Division of Industrial Safety of the Department of Industrial Relations of the State of California. In addition, Promoter shall, at Promoter's own cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state, county and municipal, relating to Promoter's use and occupancy of the Park and Carnival Area and Promoter's facilities whether such statute, ordinances, regulations, and requirements be now in force or hereinafter enacted. The judgment of any court of competent jurisdiction, or the admission by Promoter in a proceeding brought against Promoter by any government entity, that Promoter has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Promoter and shall be considered grounds for termination of this Agreement by City. Promoter will obtain all permits and other governmental approvals, required in connection with Promoter's activities hereunder, and update such permits/approvals as necessary. 8 20B-30 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Promoter, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, including the RFP, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Promoter. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which are not embodied herein. 29. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Promoter, Promoter may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Promoters retained by City. 30. NON-DISCRIMINATION Promoter shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Promoter affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 31. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 32. ATTORNEY'S FEES Except as otherwise provided in this Agreement, in the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 33. PROFESSIONAL LICENSES Promoter shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Promoter shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 9 20B-31 34. BINDING ON HEIRS AND SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions against assignment set forth herein. 35. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination, or expiration of this Agreement, shall so survive 36. MISCELLANEOUS PROVISIONS A. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. B. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager `O' ENTERTAINMENT, INC. TROY HASSETT Vice-President Tax ID # Zoe-32 EXHIBIT A PARK LOCATION MAPS II 20B-33 EXHIBIT B A. PROMOTER'S RESPONSIBILITIES REQUIRED CLEANUP/DAMAGE DEPOSIT - Upon selection, Promoter must provide a $5,000 refundable damage/clean-up deposit to the City of Santa Ana, Parks, Recreation and Community Services Agency a minimum of ten (10) business days before the start date of the event. Monies will be deducted from the deposit for repair of any damages incurred, cleanup of the park, unforeseen security or staff costs, or any other charges caused by the event. Any remaining monies from the deposit will be refunded to Promoter at the conclusion of the carnival season. Should costs incurred by the City (as stated above) be greater than the total deposit, the Promoter will be invoiced for the balance due. The Promoter will be required to submit the balance due 10 days prior to conducting another event. The deposit balance shall remain at $5,000 during the term of the agreement. Promoter agrees that failure to pay the cleanup/damage deposit and/or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day penalty. Promoter will not be allowed to start an event if there is an unpaid balance due. 2. CLEANUP DURING AND AFTER THE EVENT - Promoter agrees that it has full responsibility for continuously cleaning the park by removing all trash and debris on the ground, removing trash from the park receptacles and replacing liners and cleaning/sanitizing restrooms from the time the first Promoter employee arrives at the park site for set up until the last Promoter employee leaves the park. Furthermore, Promoter agrees to be responsible for cleanup of the event site and the surrounding areas after the event. Promoter agrees to arrange for trash pick-up in the parking lots and surrounding neighborhood after each day at Promoter's expense. Persons performing clean-up shall be employees or subcontractors of the Promoter. Failure to provide continuous clean-up will result in dispatching City staff to perform this work at Promoter's expense or the City hiring a private contractor to perform the work at Promoter's expense plus a $500 penalty for each day Promoter fails to perform this responsibility. 3. STREET SWEEPING -If street sweeping is necessary due to trash left from pedestrian and vehicular traffic and Promoter fails to perform as required above, the City will arrange for the parking lots and major streets surrounding the park to be swept on the day following the last day of the event at Promoter's expense. Furthermore, Promoter agrees to pay a $500 penalty for failure to perform this responsibility. 4. DUMPSTERS - Promoter is responsible for providing the appropriate number of 40 yard roll-off dumpster(s) to collect trash for the event. The dumpster(s) must be removed by 3:00 p.m. of the second day following the conclusion of the event. Promoter agrees to pay a penalty of $500 per day that the dumpsters are not provided and removed as indicated. 5. REQUIRED PLOT PLAN AND PLAN CHECK PROCESS - Promoter must provide a plot plan utilizing the land use certificate format for the overall equipment set up by a minimum of ten (10) business days before the event. The plot plan must include entrances, exits, all necessary barricading, detailed location of all rides, booths, restrooms, electrical equipment, 12 20B-34 etc. Promoter shall indicate number and name of rides on the plot plan, and the name and number of other types of carnival units such as repair and supply units they would like to have on the park. This plot plan is required by the Police Department, the Fire Department, the Planning and Building Agency (Electrical Division), the Parks, Recreation and Community Services Agency, and the Orange County Health Department. Promoter must walk the plot plan through the City Planning and Building Agency-Plan Check Section, 20 Civic Center Plaza, Ross Annex. For further information on the plan check process, please contact the Santa Ana Police Department at (714) 245-8718 or (714) 245-2709. Copy of approved plot plan must be provided to the Santa Ana Police Department and to the Parks, Recreation and Community Services Agency. Promoter agrees to pay a $500 penalty per day for each day late in providing the plot plan. 6. CARNIVAL LICENSE FEE- Promoter shall pay the required carnival license fees a minimum 10 days prior to each event. Checks shall be made payable to "The City of Santa Ana". 7. FIRE AND ELECTRICAL INSPECTION - Ten (10) business days prior to the event, Promoter shall schedule appointments with the Santa Ana Fire Department and the Santa Ana Planning and Building Agency for an electrical inspection of all generators, carnival equipment, and booths to be used at the carnival. Promoter agrees to pay a $500 penalty per day for each day late in scheduling appointments as indicated. No more than ten (10) 10 x 10 cooking booths will be allowed (or five 10 x 20). Complete event rules and regulations will be provided to Promoter at plan check and copies shall be provided to each booth operator by Promoter. Promoter shall provide all event electricity. Hookups to park electrical outlets will not be permitted. All vendors must be set-up and ready for inspection by 4:00 p.m. on the first day of the carnival. Promoter agrees to pay a $500 penalty per day for each violation. O.C. HEALTH DEPARTMENT REQUIREMENTS - Promoter must obtain food permits and food booth inspections from the Orange County Health Department a minimum of ten (10) business days before the event. Any booths or vendors not receiving prior approval from the Orange County Health Department will not be allowed to operate. Food booths are only allowed to operate for the duration of the event during event hours only. To obtain food permits and schedule booth inspections, Promoter must contact the Orange County Health Department at (714) 667-3610. Promoter agrees to pay a $500 penalty per day for each day late in securing food permits and food booth inspections. Furthermore, Promoter shall pay a $500 penalty per day for each food booth discovered operating without prior approval of the O.C. Health Department. Parks and Recreation will provide two (2) potable water hookups during the entire event. These water hookups are to be used ONLY for sanitation purposes in compliance with the Orange County Department of Health regulations, and are not for camping or refreshment preparation use. Promoter shall pay a $500 penalty per day for each violation. 9. REQUIRED PERMIT FROM BUSINESS LICENSE OFFICE FOR BOOTH VENDORS (BUSINESSES AND/OR NON-PROFIT ORGANIZATIONS) - Promoter is responsible for supplying the Business License Office with a list of pre-approved potential vendors before sending vendors to the Business License Office, in order to avoid unapproved vendors from vending during the event, or Promoter may collect all the necessary information and fees from the vendors and submit the entire packet to the Business License Office a minimum of 13 20B-35 five (5) days prior to the commencement of the event. Promoter shall pay a $500 penalty per day for each day late in submitting/paying the packet to the Business License Office. All vendors, business or non-profit organizations (selling or information only), which vend on City Property are required to possess a City of Santa Ana Business License. Businesses who do not have a current City of Santa Ana Business License can obtain a One-Day Peddler/Solicitor license. Non-Profit Organizations are required to obtain a Fee-Exempt status through the Business Tax Office. This is a once a year registration fee. For more information the Business Tax Office can be contacted at (714) 647 -5447. The Business Tax Office is located at 20 Civic Center Plaza, Rm. 1100, Santa Ana, CA 92702. Promoter agrees to pay a $500 penalty per day for each booth operating without a City Business License. 10. CONTACT WITH NEIGHBORHOOD ORGANIZATIONS - Promoter shall send a letter to the neighborhood associations adjacent to the park where the carnival is to be conducted informing them of the event and to gain their organization's support for the planned activity at the park during the scheduled times and dates, a minimum of ten (10) business days before the event. The Community Development Agency will provide contact information to the Promoter for a particular neighborhood upon request. Promoter shall submit copy of signed letter, on the organization's letterhead, to the Santa Ana Police Department and to the Parks, Recreation and Community Services Agency a minimum of ten (10) business days before the event. The Community Development Agency can be contacted by calling (714) 647-5360. Promoter agrees to pay a $500 penalty for each violation of this section. 11. CONTACT WITH NEIGHBORHOOD RESIDENTS - At least 72 hours prior to each carnival event, Promoter must post a sign or send flyers to the neighborhood surrounding the park informing them that the event will take place. Signs or flyers must be in English and Spanish. Promoter shall pay a $500 penalty for each violation of this section. 12. CONTACT WITH BUSINESS ORGANIZATIONS - Promoter must send a letter a minimum of ten (10) business days before the event to each business owner within a quarter mile radius of the carnival site, notifying them of the dates and times of the event, and what precautions should be taken to prevent program participants from parking in the surrounding business parking lots. Promoter shall pay a $500 penalty for each violation of this section. 13. REQUIRED EVENT PERSONNEL - A minimum number of uniformed, state licensed security personnel contracted through a private bonded security company will be required each day of the event. Promoter shall provide the designated amount of soft security as specified by the Santa Ana Police Department prior to or on the date of the pre-event meeting. The Santa Ana Police Department may modify the number of security required as it sees fit, due to specifications in the scale and activities to be held at the event, and/or recent activity in the park and surrounding areas. Security personnel must be present 30 minutes prior to the beginning of the event each day and must stay a minimum of one (1) hour after the completion of the event each day or until the park is clear, to help prevent any possible disruptions. All security officers must carry two-way radio equipment to enable them to communicate with all other security personnel. All security personnel must wear highly visible attire (security vest, jacket) identifying them as security officers. None of the security company personnel may be armed. A copy of the signed agreement with the security company must be provided a minimum of ten (10) business days prior to the event. Promoter shall pay a $500 penalty per day for each violation of this section. Furthermore, if it is 14 20B-36 discovered that the security deployment is less than the City's mandated level of security the City may elect to dispatch, at Promoter's expense SAPD and/or Park Ranger's to bring the security levels up to the agreed upon level. 14. REQUIRED LICENSE FOR SOFT SECURITY - The soft security organization must obtain clearance from the City of Santa Ana Police Department. Arrangements for clearance to be obtained can be made by calling (714) 245-8718 or (714) 245-2709. Promoter agrees to pay a $500 penalty for failure to perform this responsibility. 15. POLICE DEPARTMENT REQUIREMENTS - The security company to be used by the promoter must be pre-approved by the Santa Ana Police Department. Promoter must provide the Police Department with the names of the contact persons representing the carnival vendor and contracted security company. At least one of those security company contacts must have access to a cell phone to be used in case the Santa Ana Police Department needs to be called for assistance. The promoter will be required to turn in a completed Land Use Certificate form, site plan and Security Guard contract to the Police Department. The security Guard contract shall include the following supplemental information: The Security Officer in charge, name and cell number A list of names, guard card numbers and copy of guard cards of the security officers assigned to the event. Guards will be required to produce their guard card on demand during the event if requested by the Police Officers assigned to the carnival. If the guard fails to provide said card he shall be immediately replaced by the contracted guard company with an officer who has a guard card. Promtoer must also have a minimum of two (2) Santa Ana Police Department Officers present at all carnivals during agreed upon hours of event operation. In addition, one (1) motor officer will be required at Jerome and Cesar Chavez/Campesino locations. If the number of officers required exceeds two officers, Promoter shall not be responsible for the payment of costs for more than four officers. Promoter will also provide the Police Department with a booth at these events. The Police Department will coordinate necessary police assistance for the event at Promoters' expense. 16. ADDITIONAL POLICE/FIRE/PARK PERSONNEL - Promoter agrees that if a disturbance occurs due to the operations of the carnival and additional Police, Fire or Parks personnel assistance is required, promoter will pay those additional expenses. 17. PRE-EVENT AND POST EVENT INSPECTIONS WITH PARK PERSONNEL - Promoter must arrange to meet with the Park Supervisor by calling (714) 448-9127, to schedule a walk through the park before and after the event. The pre-inspection and post-inspection meetings will determine the condition of the sites before and after the event. A pre-inspection meeting must occur on the Tuesday prior to the carnival event. Promoter must bring the proposed plot plan to this meeting. Promoter shall not set up until pre-inspection has been completed. Set up prior to event date and/or before the pre-inspection meeting will result in a fine of $1,000 per day and may lead to a suspension of future events. A post-inspection meeting shall be completed on the second day following the carnival activity at 2:00 pm., unless otherwise stipulated by representatives of the Santa Ana Police 15 20B-37 Department and the Parks, Recreation and Community Services Agency. Failure to do so will result in a fine of $1,000 per day and may lead to a suspension of future events. Promoter agrees that the Park Supervisor shall be the final authority regarding interpretations of the sites existing conditions both before and after the event. Failure by the promoter to set and attend these meetings will result in the Park Supervisor performing the walk through of the park site without the promoter and all conditions recorded by the Park Supervisor shall be deemed as accurate and final. 18. PROTECTION OF FIELD AND TURF - Promoter shall be responsible for placing the carnival equipment in a way as not to cause damage to the park turf or irrigation system (sprinkler heads, etc). Such precautions may include painting around or covering the sprinkler heads with a "metal disk", or whatever efforts are necessary to protect the irrigation equipment at Promoter's expense. Funds to repair damages incurred to the turf or irrigation equipment due to the carnival event will be deducted from the security deposit. In the event that the cost of damages exceeds the deposit amount, Promoter must pay the balance within ten (10) days of the conclusion of the event. All concerns must be resolved prior to continuing with future events. Failure to do so may result in the suspension and or voiding of contract with Promoter. 19. CARNIVAL EQUIPMENT SET UP AND REMOVAL - None of the equipment may be moved into the park prior to the completion of the pre-event inspection meeting and/or 9:00 am on the Tuesday before a carnival event is to be held. All equipment must be removed no later than 2:00 pm on the Tuesday following the conclusion of a carnival event, unless approved in writing by the Park, Recreation and Community Services Agency. No carnival equipment may be stored on City streets or parks. There will be a $1,000 fee per day for equipment arriving earlier or left in the park later than the above stated times. 20. CARNIVAL HOURS - The carnival may not operate earlier than noon each day and no later than 11:00 p.m. on Thursday (if applicable), Friday and Saturday and no later than 10:00 p.m. on Sunday. Carnivals operating on Monday may play until 11:00 p.m. on Sunday night and 10:00 p.m. on Monday night. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Promoter agrees to pay a $500 penalty per day for each violation of this section. 21. PORTABLE RESTROOMS - Promoter shall provide a minimum of seven (7) portable toilets, with one of those toilets designed specifically for disabled persons. The toilets shall be placed no later than noon on the Thursday prior to the event and must be removed by 2:00 pm on the Monday following the conclusion of the event. Two (2) of the portable toilets must be delivered by the Tuesday prior to the event for use by Carnival workers during event set up. Promoter is responsible for arranging for portable toilets to be serviced (waste removal by the portable restroom company) a minimum of once per day or twice per day for capacity crowds. 21. SALE, ADVERTISING AND CONSUMPTION OF BEER, ALCOHOL OR CIGARETTES Promoter agrees that there shall be no beer, alcohol or cigarettes sold or consumed at any of the proposed events, nor shall there be any inflatables, balloons, or banners advertising beer, alcohol or cigarettes at any of the proposed events. Promoter agrees to pay a $500 penalty per day for each violation of this section. 16 20B-38 23. NATURE OF CARNIVAL GAMES AND/OR ACTIVITIES - Promoter agrees that no games or activities involving the shooting of a gun or weapon, simulated or real, shall be used in any of the entertainment, including game booths, with the exception of water guns that are clearly recognizable as such. Promoter also understands and agrees that any gambling games or games of chance shall be subject to review and removal by the Santa Ana Police Department, who will ensure that they are fair and legal in nature, and in compliance with any applicable statutes. A determination by the Santa Ana Police Department that any particular game is in violation of any statute shall result in the removal of the game. Any City decision to remove a game will be final. 24. SIZE OF CARNIVAL RIDES - Promoter must bring a list and photos of their proposed rides to the pre-event meetings. The carnival ride list must be pre-approved by the Park Superintendent. In addition to minimizing the damage to park property, the City desires a balance between the number of small, medium and spectacular rides in order to maintain a family and community environment at these events. Although promoters will be encouraged to provide only small and medium rides, depending on the venue, up to two spectacular rides may be allowed. The Park Superintendent must approve the final ride list at, or any time before, the pre-event meeting. All carnival rides used in City parks shall compy with State permitting requirements. 25. EVENT STAFF, OFFICE AND SECURITY PARKING - Promoter agrees that there shall be no overnight camping or privately owned vehicles for the purpose of overnight camping at the park site. All vehicles (cars, motor homes, trailers, tractor trailers with sleeping accommodations, motorcycles, etc.) must be parked outside of the park before, during and after carnival operation hours. The Park Superintendent will identify authorized parking areas at the pre-event meeting. Promoter is permitted one vehicle within the park site for security personnel and one vehicle for office purposes. Promoter shall pay a $500 penalty per day for each violation of this section. 26. DELIVERIES OF SUPPLIES TO VENDORS - Promoter shall be responsible for making certain the booth vendors are well stocked. Once the event is underway, all deliveries of food, drink and supplies must be carried via hand trucks or small Daihatsu or Cushman type vehicles to the booth sites. No trucks or automobiles will be allowed in the program area during programming hours. Loading and unloading of vendors equipment should be done prior to and after the event. 27. PERSONNEL TO PLACE AND COLLECT TRAFFIC BARRICADING EQUIPMENT - Promoter shall provide personnel to assist in placing and collecting the traffic barricades and equipment, under the supervision of the Police Department, before and after each day's event. Failure by the promoter to place and/or collect traffic barricades and/or equipment will result in City staff or a separate contractor completing this work at Promoter's expense. 28. RENTAL OF TRAFFIC CONTROL EQUIPMENT - Promoter shall be required to pay for the rental of specific traffic control equipment, as required by the Police Department. 29. PERSONNEL PARKING -Promoter shall instruct all personnel to park in areas indicated on the approved plot plan. Promoter personnel who fail to park vehicles in pre-approved designated areas may be subject to citation and/or towing at the vehicle owner's expense. 17 20B-39 30. EVENT PARKING AND REQUIRED SIGNAGE - Promoter shall be required to post signs before the start of the event in both English and Spanish stating "No Event Parking" at the entrances to the local neighborhoods and businesses during the full duration of the carnival. Promoter shall ensure that these signs remain in place through the duration of the event. Promoter shall pay a $500 penalty for each violation of this section. 31. PERSONNEL AT ENTRANCES TO NEIGHBORHOOD - Promoter must provide soft security personnel (licensed as specified in Item V.A.15.) to work at designated neighborhood entrances in close proximity to the park. A minimum of two (2) persons, plus necessary directional signage, shall be stationed at each of the housing tract entrances during all event program hours in order to deter event participants from parking in the residential areas adjacent to the event. Promoter agrees to pay a $500 penalty per day for each violation of this section. 32. POLICE DEPARMENT REQUIREMENTS - Santa Ana Police Department officers will be required during event hours to enhance the security of the event. The number of officers needed will be based on factors such as the size of the event, expected attendance, and recent area activity. Promoter will be informed of the number of additional officers needed at the pre-event meeting described in Item IV.A.18. The Police Department will arrange the necessary police staffing for the event. Promoter is responsible for all Santa Ana Police Department regular and overtime costs for the event. In the event that the event is rained out or otherwise cancelled on short notice, the promoter will be responsible for a minimum of 4 hours of over-time costs. 33. LIGHTING - Where applicable, the City will turn on ball field and safety lighting to help light the carnival. Promoter is responsible for providing all other lighting to ensure that all areas of the carnival are adequately lit throughout the duration of the event. Promoter agrees to pay a $500 penalty per day for each violation of this section. 34. NEIGHBORHOOD BOOTHS - Promoter shall provide the local neighborhood associations with a booth for marketing and fundraising. This booth will be in addition to the 20 booths described in Section II. No sales are allowed at these booths. Booth shall include a 10x10 canopy, one 6 foot table, two chairs and adequate lighting. 35. ANIMALS - No petting zoos, pony rides, or any other animals are allowed at the carnival. 36. MASSAGE - No massage booths or massages are allowed at the carnival. 37. DISSALLOWED ITEMS - Blow horns, slingshots, knifes, and adult items (sexual in nature). 18 20B-40 NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this 6ch day of February, 2011 by Robert Acosta & Associates (hereinafter "Promoter"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS On December 7, 2011, the City issued Request for Proposals, No. 11-068 -PRCSA, seeking carnival Promoters to provide carnivals at specified City owned parks. Promoter submitted a proposal to provide carnival services. Promoter represents that Promoter is able and willing to provide carnival services to the City as specified in the Request for Proposals No. 11-068 -PRCSA and any addendums thereto. In undertaking the performance of this Agreement, Promoter represents that it is knowledgeable in its field and that any services performed by Promoter under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival Promoter in the field. NOW THEREFORE, in consideration of the mutual and respective promises set forth herein, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. PREMISES AND USE (A) The City of Santa Ana owns the following community parks ("Parks") within its boundaries: Rosita Park, located at 706 N. Newhope, Santa Ana; Cesar Chavez / Campesino Park, located at 3311 W. 5th St, Santa Ana; and Delhi Park, located at 2314 S. Halladay St., Santa Ana. City hereby grants to the Promoter a non-exclusive, revocable user agreement to encroach upon the specific areas of the above stated Parks ("Carnival Areas") delineated in the renderings of the Parks attached hereto and collectively referenced as Exhibit "A", for the purpose of providing carnivals and for no other purpose. Promoter shall provide one (1) carnival ("Carnival Event") at each location during the term of this Agreement on dates approved by the Executive Director of Parks, Recreation and Community Services Agency, as set forth in Section 3 hereof. (B) The right and permission of Promoter is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in its entirety for public purposes to which it presently is and may, at the option of the City, be devoted. Promoter agrees to use the Carnival Areas at all times in such manner as will not unreasonably interfere with the full use and enjoyment of the Parks by the City, its residents and guests. (C) Promoter hereby acknowledges that title to the Parks is vested in the City and agrees never to assail or challenge the same, and further agrees that Promoter's use and occupancy of the Carnival Area within the Parks shall be limited solely to the permission for such use and occupancy granted herein. (D) As a covenant to this Agreement, Promoter agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request for Proposals, RFP 11-068 -PRCSA, issue date December 7, 2011 , and Addendum No. 1 thereto (hereinafter, collectively "RFP") attached hereto as Exhibit "B" and incorporated herein by reference. Any failure to adhere to and comply with the terms, conditions and responsibilities enumerated in the RFP shall be deemed a breach of this Agreement and of the RFP. 1 20B-41 (E) The parties hereto agree that if, at the sole discretion of the City, a Carnival Event should not proceed on the dates set forth in Section 3 hereof due to foul or inclement weather, the City at its discretion may grant Promoter alternative dates for the conducting of the Carnival Events within the term of this Agreement. If Promoter desires to obtain alternative dates as provided in this paragraph, Promoter must timely request the same from City. SCOPE OF SERVICES Promoter shall provide at each of the Parks identified a full service carnival complete with the rides, equipment and services as set forth in the RFP (Exhibit B) to this Agreement. Provider, if it contracts with an Operator to provide carnival attractions, shall require such Operator to fully comply with all the terms and conditions of this Agreement regarding the provision of carnival services, including insurance requirements. Not later than sixty (60) days prior to the staging of any carnival event, Promoter shall obtain the written approval of the Executive Director of Parks, Recreation and Community Services, of any such Operator. Promoter shall not utilize a different operator without first obtaining the written permission of the Executive Director. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of each Carnival as set forth below, Promoter shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Promoter agrees to pay the City and City agrees to accept from Promoter the following fees per Carnival Event. Park/ Carnival Dates Fee Max Event Size Rosita Park June 8-10 $4,500.00 16 Carnival Rides Cesar Chaves/Cam esino October 7-9 $4,500.00 14 Carnival Rides Delhi Park October 21-23 $4,500.00 14 Carnival Rides $13,500.00 *Note: Each carnival may host 12 Game Booths and 20 food / information booths. One booth is equal to one 10x10 canopy area. A maximum ten 10 x 10 cooking booths will be allowed (or five 10 x 20). The remainder can be non-profit, commercial or sponsorship booths. Please include in your plot plan what goods and services each of these booths will offer and the dimension of each booth. The City must approve all goods and services sold at commercial booths. Massage booths are not allowed In addition to the fees set forth herein, Promoter shall pay all required City fees and deposits including the fees for police services and Park clean up, and obtain all required permits and licenses as detailed in the RFP, Exhibit B hereto. All fees and deposits shall be due and payable as set forth in the RFP. Additionally, failure to pay the cleanup/damage deposit and/ or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day. The vendor will not be allowed to start an event if there is an unpaid balance. Vendor is subject to other monetary penalties for failure to perform as set forth throughout the RFP. 4. SECURITY DEPOSIT Contemporaneously with the execution of this Agreement, Promoter shall deposit with City the additional sum of $5,000.00 as a security deposit. The deposit shall be held by City, without liability for interest, as security for the faithful performance by Promoter of all the terms, covenants, and conditions of 2 20B-42 this Agreement to be kept and performed by Promoter during the Term of this Agreement, or any extension thereof, and including the removal of Promoter's facilities as set forth herein. Assuming successful completion of all terms and conditions of this Agreement, including those within the RFP, the security deposit, or any remaining portion thereof, and any unused fees shall be returned within 60 days of the final carnival activity provided for in the RFP. 5. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2012 unless tenninated earlier in accordance with this Agreement. The term of this Agreement may be extended for an additional 1 year term at the City's sole discretion through a writing executed by the Executive Director of the Parks Recreations and Community Services Agency and the City Attorney. 6. NON-POSSESSORY INTEREST City retains full possession of the Park and Carnival Area and Promoter will not acquire any interest temporary, permanent, irrevocable, possessory or otherwise by reason of this Agreement, or by the exercise of the permission given herein. Promoter will make no claim to any such interest. Any violation of this provision will immediately void and terminate this Agreement. 7. NON RECORDING Neither party shall record this Agreement 8. RECORD KEEPING AND AUDIT A. Promoter shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Promoter's accounting system shall conform to generally- accepted accounting principles and all records shall provide a breakdown of total costs and revenues associated with the Park Carnival Events. B. All Promoter's records of revenues and repairs pertaining to the Carnival Events referenced herein shall be kept for the duration of this Agreement and made available at all times for audit by City upon request 9. INDEPENDENT CONTRACTOR Promoter shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Promoter performs the services which are the subject matter of this Agreement; however, the services to be provided by Promoter shall be provided in a manner consistent with all applicable standards and regulations governing such services. Promoter shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. 10. INSURANCE Prior to undertaking performance of any work relative to a Carnival Event under this Agreement, Promoter shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: 3 20B-43 a. Commercial General Liability Insurance. Promoter and each of its operators and subcontractors shall maintain commercial general liability insurance which shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of the operations or performance of this Agreement by Promoter, its operators or subcontractors, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $5,000,000 per occurrence. Such insurance shall (a) name the City, its officers, employees, agents, volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to insurance or self-insurance programs maintained by the City; and (c) contain standard separation of insureds provisions. A. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. B. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Promoter, if Promoter has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Promoter agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. C. The following requirements apply to the insurance to be provided by Promoter pursuant to this section: i. Promoter shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. ii. Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. iii. Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City; and shall state as follows: "The above detailed coverage is not subject to any deductible or self-insured retention, or any other form of similar type limitation. " iv. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with City prior to the execution of this Agreement. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certification of insurance showing that coverage has been renewed, shall be filed with the City. V. If the certificate of insurance is in the name of the carnival Promoter it shall include the name of the carnival promoter as additionally insured. E. If Promoter fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. Promoter agrees to indemnify the City for any work performed prior to approval of insurance by the City. 4 20B-44 11. INDEMNIFICATION Promoter agrees to and shall protect, defend, indemnify and save and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability, loss, damage, expense or cost: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including death, and claims for property damage, which may arise from the direct or indirect operations of the Promoter or its operators, contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in Sections 1, 2 and 3 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in this Agreement or by reason of the terms of, or effects, arising from this Agreement. The Promoter further agrees to defend, indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by the City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. Promoter shall protect, defend, indemnify and save and hold harmless the City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with Promoter's performance of this Agreement or any failure to comply with any of Promoter's obligations contained in this Agreement by Promoter, its officers, agents, employees or contractors. 12. TRASH/UTILITIES/CLEANUP Promoter is responsible for the collection and disposal of all trash as specified in the RFP (Exhibit B) including the providing of the required 40 yard roll-off dumpsters. Promoter is responsible for the continuous cleaning of the City Park, including the restrooms, at all times while acting pursuant to this Agreement as set forth in the RFP. The area to be cleaned includes the parking lots and the surrounding neighborhood and streets. Further, with the exception of the City supplying two (2) potable water hookups as set forth in the RFP, Promoter is responsible for supplying all utilities to be used during the Carnival Events, including supplying the required portable toilets as specified in the RFP. Persons performing clean-up shall be employees or subcontractors of the vendor. 13. HAZARDOUS MATERIALS Promoter represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and Promoter will not store or dispose on the Park and/or Carnival Area nor transport to or over the Park and/or Carnival Area any hazardous substance. Promoter further agrees to clean-up and remediate any hazardous substance on the Park and/or Carnival Area and Property, and hold City harmless from and indemnify City against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of City, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from 5 20B-45 time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. 14. WASTE OR NUISANCE Promoter shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Promoter shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Park or Carnival Areas; and Promoter shall not use or permit the use of the Park or Carnival Areas for any unlawful purpose. 15. PUBLIC NECESSITY City may immediately temporarily suspend operation of this Agreement and the Carnival Event in the event of public necessity or emergency, as may be determined by the City Manager. Such suspension will terminate when the public necessity or emergency no longer exists. 16. ON-SITE OFFICE One (1) trailer-type vehicle will be allowed to park in the Carnival Area, in a location pre- determined by the Park Superintendent, to be used exclusively as a business office by Promoter. This vehicle must be equipped as an office and used only as such. Under no circumstances is this vehicle to be used for sleeping accommodations while on Park premises. The office vehicle will be allowed on the premises for the period provided for all other carnival equipment pursuant to the RFP. Promoter shall be at the carnival site during the entire event, including set-up and take-down. If Promoter is must be absent from the site, he shall ensure a supervisor, authorized to act on behalf of Promoter, is present. 17. LIENS Promoter will not permit any mechanics' or materialmens' or other liens to stand against the City Park or Carnival Area by reason of any use or occupancy by Promoter, or any person claiming under Promoter. 18. TERMINATION IN THE EVENT OF CASUALTY OR CONDEMNATION In the event of any damage, destruction or condemnation of the Park and/or Carnival Area, which renders the Park and / or Carnival Area unusable or inoperable in Promoter's judgment, Promoter shall have the right, but not the obligation, to terminate the Agreement with respect to the subject Carnival Area by giving written notice to the City within thirty (30) days after such damage, destruction or condemnation. If by virtue of such damage, destruction or condemnation, City determines that the Park and / or Carnival Area is no longer adequate for Promoter to continue its operations, or any repairs to the Park and / or Carnival Area to remedy such damage, destruction or condemnation have not been completed or cannot reasonably be completed outside of forty-five (45) days from the date of the up coming scheduled carnival, City may terminate this Agreement upon thirty (30) days written notice to Promoter. In the event of condemnation, unless Promoter is allowed by the condemning authority to continue its operations in the Carnival Area, this Agreement shall terminate as of the date title to the Property vests in the condemning authority or Promoter is required to cease its operations, whichever is 6 20B-46 earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to City. 19. TERMINATION This Agreement may be terminated by the City without cause upon thirty (30) days written notice of termination. City may terminate this Agreement for cause upon three (3) days written notice for any violation of the terms contained herein. 20. DEFAULT BY PROMOTER Should Promoter default in the performance of any of the terms, conditions, or obligations contained in this Agreement, City may, in addition to the remedies specified elsewhere in this Agreement and the attached RFP, re-enter and regain possession of the Carnival Area in the manner provided by the laws of unlawful detainer of the State of California then in effect. 21. INSOLVENCY OF PROMOTER The insolvency of Promoter as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Promoter, or the making of a general assignment for the benefit of creditors by Promoter, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle City to re-enter and regain possession of the Carnival Area. 22. CUMULATIVE REMEDIES The remedies given to City in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. 23. WAIVER OF BREACH The waiver by City of any breach by Promoter of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Promoter either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Promoter covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. 25. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, addressed to the party concerned as follows: To City: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 7 20B-47 Fax 714-647-6956 With courtesy copies to: Executive Director of Parks, Recreation and Community Services City of Santa Ana 20 Civic Center Plaza (M-23) P.O. Box 1988 Santa Ana, California 92702 and City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Fax 714-647-6515 To Promoter: Robert Acosta & Associates Attn: Robert Acosta 74450 Fairview Drive Palm Desert, CA 92660 Fax 760-836-0410 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 26. CONTRACT ADMINISTRATOR The Executive Director of Parks Recreation and Community Services Agency, or his/her designee, shall be City's Contract Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. 27. COMPLIANCE WITH LAWS Promoter shall obtain and maintain a permit issued by the Division of Industrial Safety of the Department of Industrial Relations of the State of California. In addition, Promoter shall, at Promoter's own cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state, county and municipal, relating to Promoter's use and occupancy of the Park and Carnival Area and Promoter's facilities whether such statute, ordinances, regulations, and requirements be now in force or hereinafter enacted. The judgment of any court of competent jurisdiction, or the admission by Promoter in a proceeding brought against Promoter by any government entity, that Promoter has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Promoter and shall be considered grounds for termination of this Agreement by City. Promoter will obtain all permits and other governmental approvals, required in connection with Promoter's activities hereunder, and update such permits/approvals as necessary. 8 20B-48 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Promoter, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, including the RFP, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Promoter. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any parties, which are not embodied herein. 29. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Promoter, Promoter may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Nothing in this Agreement shall be construed to limit the City's ability to have any of the services which are the subject to this Agreement performed by City personnel or by other Promoters retained by City. 30. NON-DISCRIMINATION Promoter shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Promoter affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 31. JURISDICTION - VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 32. ATTORNEY'S FEES Except as otherwise provided in this Agreement, in the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 33. PROFESSIONAL LICENSES Promoter shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Promoter shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 9 20B-49 34. BINDING ON HEIRS AND SUCCESSORS This Agreement shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions against assignment set forth herein. 35. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination, or expiration of this Agreement, shall so survive 36. MISCELLANEOUS PROVISIONS A. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. B. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH STRAKA Interim City Attorney By: Laura Sheedy Assistant City Attorney CITY OF SANTA ANA PAUL M. WALTERS Interim City Manager ROBERT ACOSTA & ASSOCIATES ROBERT ACOSTA Owner Tax ID # 10 20B-50 EXHIBIT A PARK LOCATION MAPS II 20B-51 EXHIBIT B A. PROMOTER'S RESPONSIBILITIES REQUIRED CLEANUP/DAMAGE DEPOSIT - Upon selection, Promoter must provide a $5,000 refundable damage/clean-up deposit to the City of Santa Ana, Parks, Recreation and Community Services Agency a minimum of ten (10) business days before the start date of the event. Monies will be deducted from the deposit for repair of any damages incurred, cleanup of the park, unforeseen security or staff costs, or any other charges caused by the event. Any remaining monies from the deposit will be refunded to Promoter at the conclusion of the carnival season. Should costs incurred by the City (as stated above) be greater than the total deposit, the Promoter will be invoiced for the balance due. The Promoter will be required to submit the balance due 10 days prior to conducting another event. The deposit balance shall remain at $5,000 during the term of the agreement. Promoter agrees that failure to pay the cleanup/damage deposit and/or any other outstanding balances and fees a minimum of ten (10) business days prior to the start of the event will result in a penalty of $500 per day penalty. Promoter will not be allowed to start an event if there is an unpaid balance due. 2. CLEANUP DURING AND AFTER THE EVENT - Promoter agrees that it has full responsibility for continuously cleaning the park by removing all trash and debris on the ground, removing trash from the park receptacles and replacing liners and cleaning/sanitizing restrooms from the time the first Promoter employee arrives at the park site for set up until the last Promoter employee leaves the park. Furthermore, Promoter agrees to be responsible for cleanup of the event site and the surrounding areas after the event. Promoter agrees to arrange for trash pick-up in the parking lots and surrounding neighborhood after each day at Promoter's expense. Persons performing clean-up shall be employees or subcontractors of the Promoter. Failure to provide continuous clean-up will result in dispatching City staff to perform this work at Promoter's expense or the City hiring a private contractor to perform the work at Promoter's expense plus a $500 penalty for each day Promoter fails to perform this responsibility. 3. STREET SWEEPING -If street sweeping is necessary due to trash left from pedestrian and vehicular traffic and Promoter fails to perform as required above, the City will arrange for the parking lots and major streets surrounding the park to be swept on the day following the last day of the event at Promoter's expense. Furthermore, Promoter agrees to pay a $500 penalty for failure to perform this responsibility. 4. DUMPSTERS - Promoter is responsible for providing the appropriate number of 40 yard roll-off dumpster(s) to collect trash for the event. The dumpster(s) must be removed by 3:00 p.m. of the second day following the conclusion of the event. Promoter agrees to pay a penalty of $500 per day that the dumpsters are not provided and removed as indicated. 5. REQUIRED PLOT PLAN AND PLAN CHECK PROCESS - Promoter must provide a plot plan utilizing the land use certificate format for the overall equipment set up by a minimum of ten (10) business days before the event. The plot plan must include entrances, exits, all necessary barricading, detailed location of all rides, booths, restrooms, electrical equipment, 12 20B-52 etc. Promoter shall indicate number and name of rides on the plot plan, and the name and number of other types of carnival units such as repair and supply units they would like to have on the park. This plot plan is required by the Police Department, the Fire Department, the Planning and Building Agency (Electrical Division), the Parks, Recreation and Community Services Agency, and the Orange County Health Department. Promoter must walk the plot plan through the City Planning and Building Agency-Plan Check Section, 20 Civic Center Plaza, Ross Annex. For further information on the plan check process, please contact the Santa Ana Police Department at (714) 245-8718 or (714) 245-2709. Copy of approved plot plan must be provided to the Santa Ana Police Department and to the Parks, Recreation and Community Services Agency. Promoter agrees to pay a $500 penalty per day for each day late in providing the plot plan. 6. CARNIVAL LICENSE FEE- Promoter shall pay the required carnival license fees a minimum 10 days prior to each event. Checks shall be made payable to "The City of Santa Ana". 7. FIRE AND ELECTRICAL INSPECTION - Ten (10) business days prior to the event, Promoter shall schedule appointments with the Santa Ana Fire Department and the Santa Ana Planning and Building Agency for an electrical inspection of all generators, carnival equipment, and booths to be used at the carnival. Promoter agrees to pay a $500 penalty per day for each day late in scheduling appointments as indicated. No more than ten (10) 10 x 10 cooking booths will be allowed (or five 10 x 20). Complete event rules and regulations will be provided to Promoter at plan check and copies shall be provided to each booth operator by Promoter. Promoter shall provide all event electricity. Hookups to park electrical outlets will not be permitted. All vendors must be set-up and ready for inspection by 4:00 p.m. on the first day of the carnival. Promoter agrees to pay a $500 penalty per day for each violation. O.C. HEALTH DEPARTMENT REQUIREMENTS - Promoter must obtain food permits and food booth inspections from the Orange County Health Department a minimum of ten (10) business days before the event. Any booths or vendors not receiving prior approval from the Orange County Health Department will not be allowed to operate. Food booths are only allowed to operate for the duration of the event during event hours only. To obtain food permits and schedule booth inspections, Promoter must contact the Orange County Health Department at (714) 667-3610. Promoter agrees to pay a $500 penalty per day for each day late in securing food permits and food booth inspections. Furthermore, Promoter shall pay a $500 penalty per day for each food booth discovered operating without prior approval of the O.C. Health Department. Parks and Recreation will provide two (2) potable water hookups during the entire event. These water hookups are to be used ONLY for sanitation purposes in compliance with the Orange County Department of Health regulations, and are not for camping or refreshment preparation use. Promoter shall pay a $500 penalty per day for each violation. 9. REQUIRED PERMIT FROM BUSINESS LICENSE OFFICE FOR BOOTH VENDORS (BUSINESSES AND/OR NON-PROFIT ORGANIZATIONS) - Promoter is responsible for supplying the Business License Office with a list of pre-approved potential vendors before sending vendors to the Business License Office, in order to avoid unapproved vendors from vending during the event, or Promoter may collect all the necessary information and fees from the vendors and submit the entire packet to the Business License Office a minimum of 13 20B-53 five (5) days prior to the commencement of the event. Promoter shall pay a $500 penalty per day for each day late in submitting/paying the packet to the Business License Office. All vendors, business or non-profit organizations (selling or information only), which vend on City Property are required to possess a City of Santa Ana Business License. Businesses who do not have a current City of Santa Ana Business License can obtain a One-Day Peddler/Solicitor license. Non-Profit Organizations are required to obtain a Fee-Exempt status through the Business Tax Office. This is a once a year registration fee. For more information the Business Tax Office can be contacted at (714) 647 -5447. The Business Tax Office is located at 20 Civic Center Plaza, Rm. 1100, Santa Ana, CA 92702. Promoter agrees to pay a $500 penalty per day for each booth operating without a City Business License. 10. CONTACT WITH NEIGHBORHOOD ORGANIZATIONS - Promoter shall send a letter to the neighborhood associations adjacent to the park where the carnival is to be conducted informing them of the event and to gain their organization's support for the planned activity at the park during the scheduled times and dates, a minimum of ten (10) business days before the event. The Community Development Agency will provide contact information to the Promoter for a particular neighborhood upon request. Promoter shall submit copy of signed letter, on the organization's letterhead, to the Santa Ana Police Department and to the Parks, Recreation and Community Services Agency a minimum of ten (10) business days before the event. The Community Development Agency can be contacted by calling (714) 647-5360. Promoter agrees to pay a $500 penalty for each violation of this section. 11. CONTACT WITH NEIGHBORHOOD RESIDENTS - At least 72 hours prior to each carnival event, Promoter must post a sign or send flyers to the neighborhood surrounding the park informing them that the event will take place. Signs or flyers must be in English and Spanish. Promoter shall pay a $500 penalty for each violation of this section. 12. CONTACT WITH BUSINESS ORGANIZATIONS - Promoter must send a letter a minimum of ten (10) business days before the event to each business owner within a quarter mile radius of the carnival site, notifying them of the dates and times of the event, and what precautions should be taken to prevent program participants from parking in the surrounding business parking lots. Promoter shall pay a $500 penalty for each violation of this section. 13. REQUIRED EVENT PERSONNEL - A minimum number of uniformed, state licensed security personnel contracted through a private bonded security company will be required each day of the event. Promoter shall provide the designated amount of soft security as specified by the Santa Ana Police Department prior to or on the date of the pre-event meeting. The Santa Ana Police Department may modify the number of security required as it sees fit, due to specifications in the scale and activities to be held at the event, and/or recent activity in the park and surrounding areas. Security personnel must be present 30 minutes prior to the beginning of the event each day and must stay a minimum of one (1) hour after the completion of the event each day or until the park is clear, to help prevent any possible disruptions. All security officers must carry two-way radio equipment to enable them to communicate with all other security personnel. All security personnel must wear highly visible attire (security vest, jacket) identifying them as security officers. None of the security company personnel may be armed. A copy of the signed agreement with the security company must be provided a minimum of ten (10) business days prior to the event. Promoter shall pay a $500 penalty per day for each violation of this section. Furthermore, if it is 14 20B-54 discovered that the security deployment is less than the City's mandated level of security the City may elect to dispatch, at Promoter's expense SAPD and/or Park Ranger's to bring the security levels up to the agreed upon level. 14. REQUIRED LICENSE FOR SOFT SECURITY - The soft security organization must obtain clearance from the City of Santa Ana Police Department. Arrangements for clearance to be obtained can be made by calling (714) 245-8718 or (714) 245-2709. Promoter agrees to pay a $500 penalty for failure to perform this responsibility. 15. POLICE DEPARTMENT REQUIREMENTS - The security company to be used by the promoter must be pre-approved by the Santa Ana Police Department. Promoter must provide the Police Department with the names of the contact persons representing the carnival vendor and contracted security company. At least one of those security company contacts must have access to a cell phone to be used in case the Santa Ana Police Department needs to be called for assistance. The promoter will be required to turn in a completed Land Use Certificate form, site plan and Security Guard contract to the Police Department. The security Guard contract shall include the following supplemental information: The Security Officer in charge, name and cell number A list of names, guard card numbers and copy of guard cards of the security officers assigned to the event. Guards will be required to produce their guard card on demand during the event if requested by the Police Officers assigned to the carnival. If the guard fails to provide said card he shall be immediately replaced by the contracted guard company with an officer who has a guard card. Promtoer must also have a minimum of two (2) Santa Ana Police Department Officers present at all carnivals during agreed upon hours of event operation. In addition, one (1) motor officer will be required at Jerome and Cesar Chavez/Campesino locations. If the number of officers required exceeds two officers, Promoter shall not be responsible for the payment of costs for more than four officers. Promoter will also provide the Police Department with a booth at these events. The Police Department will coordinate necessary police assistance for the event at Promoters' expense. 16. ADDITIONAL POLICE/FIRE/PARK PERSONNEL - Promoter agrees that if a disturbance occurs due to the operations of the carnival and additional Police, Fire or Parks personnel assistance is required, promoter will pay those additional expenses. 17. PRE-EVENT AND POST EVENT INSPECTIONS WITH PARK PERSONNEL - Promoter must arrange to meet with the Park Supervisor by calling (714) 448-9127, to schedule a walk through the park before and after the event. The pre-inspection and post-inspection meetings will determine the condition of the sites before and after the event. A pre-inspection meeting must occur on the Tuesday prior to the carnival event. Promoter must bring the proposed plot plan to this meeting. Promoter shall not set up until pre-inspection has been completed. Set up prior to event date and/or before the pre-inspection meeting will result in a fine of $1,000 per day and may lead to a suspension of future events. A post-inspection meeting shall be completed on the second day following the carnival activity at 2:00 pm., unless otherwise stipulated by representatives of the Santa Ana Police 15 20B-55 Department and the Parks, Recreation and Community Services Agency. Failure to do so will result in a fine of $1,000 per day and may lead to a suspension of future events. Promoter agrees that the Park Supervisor shall be the final authority regarding interpretations of the sites existing conditions both before and after the event. Failure by the promoter to set and attend these meetings will result in the Park Supervisor performing the walk through of the park site without the promoter and all conditions recorded by the Park Supervisor shall be deemed as accurate and final. 18. PROTECTION OF FIELD AND TURF - Promoter shall be responsible for placing the carnival equipment in a way as not to cause damage to the park turf or irrigation system (sprinkler heads, etc). Such precautions may include painting around or covering the sprinkler heads with a "metal disk", or whatever efforts are necessary to protect the irrigation equipment at Promoter's expense. Funds to repair damages incurred to the turf or irrigation equipment due to the carnival event will be deducted from the security deposit. In the event that the cost of damages exceeds the deposit amount, Promoter must pay the balance within ten (10) days of the conclusion of the event. All concerns must be resolved prior to continuing with future events. Failure to do so may result in the suspension and or voiding of contract with Promoter. 19. CARNIVAL EQUIPMENT SET UP AND REMOVAL -None of the equipment may be moved into the park prior to the completion of the pre-event inspection meeting and/or 9:00 am on the Tuesday before a carnival event is to be held. All equipment must be removed no later than 2:00 pm on the Tuesday following the conclusion of a carnival event, unless approved in writing by the Park, Recreation and Community Services Agency. No carnival equipment may be stored on City streets or parks. There will be a $1,000 fee per day for equipment arriving earlier or left in the park later than the above stated times. 20. CARNIVAL HOURS - The carnival may not operate earlier than noon each day and no later than 11:00 p.m. on Thursday (if applicable), Friday and Saturday and no later than 10:00 p.m. on Sunday. Carnivals operating on Monday may play until 11:00 p.m. on Sunday night and 10:00 p.m. on Monday night. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Promoter agrees to pay a $500 penalty per day for each violation of this section. 21. PORTABLE RESTROOMS - Promoter shall provide a minimum of seven (7) portable toilets, with one of those toilets designed specifically for disabled persons. The toilets shall be placed no later than noon on the Thursday prior to the event and must be removed by 2:00 pm on the Monday following the conclusion of the event. Two (2) of the portable toilets must be delivered by the Tuesday prior to the event for use by Carnival workers during event set up. Promoter is responsible for arranging for portable toilets to be serviced (waste removal by the portable restroom company) a minimum of once per day or twice per day for capacity crowds. 21. SALE, ADVERTISING AND CONSUMPTION OF BEER, ALCOHOL OR CIGARETTES Promoter agrees that there shall be no beer, alcohol or cigarettes sold or consumed at any of the proposed events, nor shall there be any inflatables, balloons, or banners advertising beer, alcohol or cigarettes at any of the proposed events. Promoter agrees to pay a $500 penalty per day for each violation of this section. 16 20B-56 23. NATURE OF CARNIVAL GAMES AND/OR ACTIVITIES - Promoter agrees that no games or activities involving the shooting of a gun or weapon, simulated or real, shall be used in any of the entertainment, including game booths, with the exception of water guns that are clearly recognizable as such. Promoter also understands and agrees that any gambling games or games of chance shall be subject to review and removal by the Santa Ana Police Department, who will ensure that they are fair and legal in nature, and in compliance with any applicable statutes. A determination by the Santa Ana Police Department that any particular game is in violation of any statute shall result in the removal of the game. Any City decision to remove a game will be final. 24. SIZE OF CARNIVAL RIDES - Promoter must bring a list and photos of their proposed rides to the pre-event meetings. The carnival ride list must be pre-approved by the Park Superintendent. In addition to minimizing the damage to park property, the City desires a balance between the number of small, medium and spectacular rides in order to maintain a family and community environment at these events. Although promoters will be encouraged to provide only small and medium rides, depending on the venue, up to two spectacular rides may be allowed. The Park Superintendent must approve the final ride list at, or any time before, the pre-event meeting. All carnival rides used in City parks shall comply with State permitting requirements. 25. EVENT STAFF, OFFICE AND SECURITY PARKING - Promoter agrees that there shall be no overnight camping or privately owned vehicles for the purpose of overnight camping at the park site. All vehicles (cars, motor homes, trailers, tractor trailers with sleeping accommodations, motorcycles, etc.) must be parked outside of the park before, during and after carnival operation hours. The Park Superintendent will identify authorized parking areas at the pre-event meeting. Promoter is permitted one vehicle within the park site for security personnel and one vehicle for office purposes. Promoter shall pay a $500 penalty per day for each violation of this section. 26. DELIVERIES OF SUPPLIES TO VENDORS - Promoter shall be responsible for making certain the booth vendors are well stocked. Once the event is underway, all deliveries of food, drink and supplies must be carried via hand trucks or small Daihatsu or Cushman type vehicles to the booth sites. No trucks or automobiles will be allowed in the program area during programming hours. Loading and unloading of vendors equipment should be done prior to and after the event. 27. PERSONNEL TO PLACE AND COLLECT TRAFFIC BARRICADING EQUIPMENT - Promoter shall provide personnel to assist in placing and collecting the traffic barricades and equipment, under the supervision of the Police Department, before and after each day's event. Failure by the promoter to place and/or collect traffic barricades and/or equipment will result in City staff or a separate contractor completing this work at Promoter's expense. 28. RENTAL OF TRAFFIC CONTROL EQUIPMENT - Promoter shall be required to pay for the rental of specific traffic control equipment, as required by the Police Department. 29. PERSONNEL PARKING -Promoter shall instruct all personnel to park in areas indicated on the approved plot plan. Promoter personnel who fail to park vehicles in pre-approved designated areas may be subject to citation and/or towing at the vehicle owner's expense. 17 20B-57 30. EVENT PARKING AND REQUIRED SIGNAGE - Promoter shall be required to post signs before the start of the event in both English and Spanish stating "No Event Parking" at the entrances to the local neighborhoods and businesses during the full duration of the carnival. Promoter shall ensure that these signs remain in place through the duration of the event. Promoter shall pay a $500 penalty for each violation of this section. 31. PERSONNEL AT ENTRANCES TO NEIGHBORHOOD - Promoter must provide soft security personnel (licensed as specified in Item V.A.15.) to work at designated neighborhood entrances in close proximity to the park. A minimum of two (2) persons, plus necessary directional signage, shall be stationed at each of the housing tract entrances during all event program hours in order to deter event participants from parking in the residential areas adjacent to the event. Promoter agrees to pay a $500 penalty per day for each violation of this section. 32. POLICE DEPARMENT REQUIREMENTS - Santa Ana Police Department officers will be required during event hours to enhance the security of the event. The number of officers needed will be based on factors such as the size of the event, expected attendance, and recent area activity. Promoter will be informed of the number of additional officers needed at the pre-event meeting described in Item IV.A.18. The Police Department will arrange the necessary police staffing for the event. Promoter is responsible for all Santa Ana Police Department regular and overtime costs for the event. In the event that the event is rained out or otherwise cancelled on short notice, the promoter will be responsible for a minimum of 4 hours of over-time costs. 33. LIGHTING - Where applicable, the City will turn on ball field and safety lighting to help light the carnival. Promoter is responsible for providing all other lighting to ensure that all areas of the carnival are adequately lit throughout the duration of the event. Promoter agrees to pay a $500 penalty per day for each violation of this section. 34. NEIGHBORHOOD BOOTHS - Promoter shall provide the local neighborhood associations with a booth for marketing and fundraising. This booth will be in addition to the 20 booths described in Section II. No sales are allowed at these booths. Booth shall include a 10x10 canopy, one 6 foot table, two chairs and adequate lighting. 35. ANIMALS - No petting zoos, pony rides, or any other animals are allowed at the carnival. 36. MASSAGE - No massage booths or massages are allowed at the carnival. 37. DISSALLOWED ITEMS - Blow horns, slingshots, knifes, and adult items (sexual in nature). 18 20B-58