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HomeMy WebLinkAbout25A - CARNIVALSREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: FEBRUARY 4, 2008 TITLE: AGREEMENTS AND APPROPRIATION ADJUSTMENT FOR CARNIVALS AT CITY- OWNED PARRS ~, `-~ , Cam,..----~" CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1 g` Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For_ CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to execute the attached agreement with Fiesta de Carnival in the amount of $22,000 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 Acosta and Associates in the amount of $18,000 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 "0" Entertainment in the amount of $7,000 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 $47,000 in the Recreation Special Fees and Donations revenue account (no. 22-01-5799) and appropriate funds to the Recreation Special Fees and Donations expenditure account (no. 22- 231-6291). DISCUSSION Requests for Proposal for providing eight carnivals on City-owned parks were issued and mailed to 17 carnival operators. Apre-proposal conference was conducted, and three vendors submitted proposals for consideration. Acosta and Associates, Fiesta de Carnival and ~~O" Entertainment each submitted proposals for review. An evaluation committee consisting of representatives from the Police Department, Fire Department, and Parks, Recreation and Community Services Agency rated the three proposals. The committee rated each proposal based on the operator's ability to successfully conduct carnivals using the following evaluation criteria: 25A-1 Agreements and Appropriation Adjustment for Carnivals at City-Owned Parks February 4, 2008 Page 2 ^ Equipment capability and functionality (200) ^ Level of service and support (200) ^ Experience of firm and personnel (20%) ^ Past performance (40o) Fiesta de Carnival rated highest, scoring 454 out of a maximum 500 points. Acosta and Associates scored 450 points, followed by "O" Entertainment, which scored 401 points. Traditionally, carnivals conducted at Jerome, Centennial and Madison parks draw larger crowds and are more profitable. Conversely, carnivals conducted at 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, Centennial and Madison parks will be $7,000 per carnival and the license fee for small carnivals conducted at Cesar Chavez/Campesino, Rosita and El Salvador parks will be $4,000 per carnival. The total projected annual revenue for these agreements is $47,000 per year. Based on the results of the evaluation scores, the evaluation committee recommended the following 2008 Carnival Schedule: Park Site Carnival Dates Proposed Carnival Operator License Fee Jerome April 11-13, 2008 "O" Entertainment $7,000 Cesar Chavez/Campesino April 18-20, 2008 Acosta and Associates $4,000 Centennial Park May 23-26, 2008 Memorial Weekend Fiesta de Carnival $7,000 Jerome July 3-6, 2008 4th of July Weekend Fiesta de Carnival $7,000 El Salvador August 22-24, 2008 Fiesta de Carnival $4,000 Madison August 29-Sept. 1 Labor Day Weekend Acosta and Associates $7,000 Rosita Sept. 19-21, 2008 Fiesta de Carnival $4,000 Centennial October 10-12, 2008 Acosta and Associates $7,000 Total $47,000 25A-2 for Carnivals at City-Owned Parks Agreements and Appropriation Adjustment for Carnivals at City-Owned Parks February 4, 2008 Page 3 FISCAL IMPACT The appropriation adjustment will recognize projected carnival revenue in the amount of $47,000 in the Recreation Special Fees and Donations revenue account (no. 22-01-5799) and appropriate funds to the Recreation Special Fees and Donations expenditure account (no. 22-231-6291). APPROVED AS TO FUNDS AND ACCOUNT: .-„G-.~ Gerardo Mo t Executive Director Recreation & Comm. Svcs. Agency ~' Ric c~c~ ~ ~ r ,~ J Francisco Gutierrez Executive Director Finance & Management Svcs. Agency 25A-3 NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this day of January, 2008 by International Promotions, Inc., dba Fiesta de Carnival (hereinafter "Operator"), 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 October 18, 2007, the City issued a Request for Proposals, No. 07-085-PRCSA, seeking carnival operators to provide carnivals at specified City owned parks. Operator submitted a proposal to provide carnival services. Operator represents that Operator is able and willing to provide carnival services to the City as specified in the Request for Proposals No. 07-085-PRCSA and any addendums thereto. In undertaking the performance of this Agreement, Operator represents that it is knowledgeable in its field and that any services performed by Operator under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival operator 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 2115 W. McFadden Ave., Santa Ana; El Salvador Park, located at 1825 W. Civic Center Dr. West, Santa Ana; Rosita Park, located at 706 N. Newhope St., Santa Ana; and, Centennial Park, located at 3000 W. Edinger Ave, Santa Ana. City hereby grants to the Operator anon-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. Operator 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 Operator is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in their entirety for public purposes to which they presently are and may, at the option of the City, be devoted. Operator 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) Operator 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 Operator's use and occupancy of 2 5A-4 the Carnival Areas within the Parks shall be limited solely to the permission for such use and occupancy granted herein. (D) As a covenant to this Agreement, Operator agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request for Proposals, RFP 07- 085-PRCSA, issue date October 18, 2007, 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. (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 Operator alternative dates for the conducting of the Carnival Events within the term of this Agreement. If Operator desires to obtain alternative dates as provided in this paragraph, Operator must timely request the same from City. 2. SCOPE OF SERVICES Operator 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. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of each Carnival as set forth below, Operator shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Operator agrees to pay the City and City agrees to accept from Operator the following fees per Carnival Event. ParW Carnival Dates Fee Centennial Park $7,000.00 May 23, 24, 25, 26, 2008 Jerome Park $7,000.00 July 3, 4, 5 and 6, 2008 El Salvador Park $4,000.00 August 22, 23 and 24, 2008 Rosita Park $4,000.00 September 19, 20 and 21, 2008 In addition to the fees set forth herein, Operator 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 2 25A-5 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, Operator 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 Operator of all the terms, covenants, and conditions of this Agreement to be kept and performed by Operator during the Term of this Agreement, or any extension thereof, and including the removal of Operator'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, 2008 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 Operator 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. Operator 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. Operator shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Operator'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. 25A-6 B. All Operator'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 Operator 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 anemployer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Operator performs the services which are the subject matter of this Agreement; however, the services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services. Operator 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, Operator shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Commercial General Liability Insurance. Operator shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) and 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 Operator's operations in the performance of this Agreement, 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. Operator shall supply City with a fully executed additional insured endorsement in substantially the form attached as Exhibit B to the RFP, Exhibit B hereto, upon execution of this Agreement and shall be approved in form by the City Attorney. B. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Operator, if Operator 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, Operator agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. D. If Operator is or employs a licensed professional such as an architect or engineer: 4 25A-7 Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. E. The following requirements apply to the insurance to be provided by Operator pursuant to this section: i. Operator 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 operator it shall include the name of the carnival promoter as additionally insured. F. If Operator 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. Operator agrees to indemnify the City for any work performed prior to approval of insurance by the City. 11. INDEMNIFICATION Operator agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Operator or its 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, 25A-8 by reason of the events referred to in this Agreement or by reason of the terms of, or effects, arising from this Agreement. The Operator further agrees to 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. Operator 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 Operator's performance of this Agreement or any failure to comply with any of Operator's obligations contained in this Agreement by Operator, its officers, agents or employees. 12. TRASH/UTILITIES/CLEANUP Operator 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. Operator 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, Operator 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 Operator represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and it 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. Operator 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 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. 25A-9 14. WASTE OR NUISANCE Operator shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Operator 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 Operator 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 Operator. 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. 17. LIENS Operator 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 Operator, or any person claiming under Operator. 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 Operator's judgment, Operator 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 Operator 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) written notice to Operator. In the event of condemnation, unless Operator 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 Operator is required to cease its operations, 25A-10 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 OPERATOR Should Operator 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 OPERATOR The insolvency of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Operator, or the making of a general assignment for the benefit of creditors by Operator, 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 Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Operator either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Operator 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 25A-11 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 Telefacsimile (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 Telefacsimile (714) 647-6515 To Operator: International Promotions, Inc. dba Fiesta de Carnival Attn: Ted Holcoms 11278 Los Alamitos Blvd. #101 Los Alamitos, CA 90720 Telephone (562) 799-7737 Telefacsimile (562) 799-1443 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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 25A-12 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 Operator shall, at Operator'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 Operator's use and occupancy of the Park and Carnival Area and Operator'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 Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Operator and shall be considered grounds for termination of this Agreement by City. Operator will obtain all permits and other governmental approvals, required in connection with Operator's activities hereunder, and update such permits/approvals as necessary. 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Operator, 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 Operator. 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 Operator, Operator 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 Operators retained by City. 30. NON-DISCRIMINATION Operator 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 10 25A-13 applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Operator 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 and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. 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 Operator 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. Operator 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. 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. 30. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination, or expiration of this Agreement, shall so survive 35. 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 11 25A-14 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: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By: Joseph Straka Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager RECOMMENDED FOR APPROVAL: OPERATOR Gerardo Mouet Executive Director of the Parks Recreation and Community Services Agency (NAME) TITLE)_ Employer ID # or Individual SS # 12 25A-15 fed Holcomb 443 .2 273 ~~~ CERTIFICATE OF L.IABf~. AlZ Led Spec alt]r o~. Texas 8 5 N . E . LQOp ~ 14 ITY INSURANCE is/°"~'°°''a T'H15 C)r CATE IS ISSUED AS A MAT'f~t OF INFORMA'tJOR OM.Y ANb GChiFERS !W R[GH7S t~WM THE CERTIFICATE SLT.1 i:e 6 04 FIQLDER, THIS CEI~TIF~ATE DOEES HOT A11[EI~ EXTEND OR S A ax ntozxio, TS 7823.6 8 fl Q / 235 - 8 7 74 weu® 5hamroCk Sh,aws IIYSt7liERS AFPORDINfi CONERA6E NA[C ~ Nort h A i ~„,~,~ T. H. S . 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E- E[ANLOYEE S O1FlBi E.O. fld3lAS8- PCCICYOAff S 0l~MTtlp QF QPEfMTit>IISlLOC1~7ON6fYF1pC0~/~ICNS MDPD liYM!•ITISPE~OAL PRpM ADDTTIONA;:, INSURED WxTFi RESPECTS TO TFIE OPERATIONS OF `FETE ~ INSIIRED ; CITY OF SAAtTA ANA, ITS DF'FICERS, ENIPLOYEBS, AGENTS AND VOLIJATTEERS RE: G>~>wT~'~~r. 3~FORNIP,TZON StE HOLDER Txzs CzTY DP SANTA ANA ~~~,~,~nawEOeae~o ~~ ~~~~ o~v:a~ 2U CIVIC CENF'ER PLAZA ~,r>~~~~xleuRYnrr.~o~i>ronmra~ 3p ~~~~ SANTA ANA CA 9 2 7 01 KormTOme cam~~sae~e wu~oso ~ ~ , auT m oo sosw~u AIPO~E NOQBLAr/O7IDN OK ISF AOYY NOI~UFON YOOO!ai1~.i7$AOiA:~t7SOR Att1HORVJBJ R®'RE$1[SJl ACORQ 2S [2001~8j ®ACORD itAT10N 1988 25A-16 Dec 14 07 10:01a Ted Ho{comb 562799144? p.3 - - -- - ---- -- -_ ._..__" 313 ADDiTIQNAL IMSl1RED ENOC}RSEMEIVT Insurance Company_T,H.E. insurance Comparrv This endorsement modifies such insurance as is afforded by the provisions of Policy # M7MT2856 relating to the foNawing: 1. The City of Santa Ana, 20 Civic Cerr6er Plaza, Santa Ana, California 92701; its officers, employees, agents and volunteers are named as additional insureds ("additional insureds"? with regard to liability and defense of suits ar(sing from the operations and uses performed by or on behalf of the Warned insured. 2. With respect to claims arising out tYf the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is prirrrary and is not additional to or contribut~g with any other insurance carried by or for the benefit ofthe additional insureds. 3. This insurance applies separately to each ~sured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall net affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage ar lirriits except after thirty (30) mays written notice has been given to the Ciiy of Santa Ana, 2Q Civic Cerrter Plaza, Santa Ana, California 92701. (Completion of the fallowing, including cour~tersignatyre is required to make this endorsement effective.) EfFective 02111107 ,this endorsement farm as a part of Policy# M7MT2856 __ issued ~ Shamrock Shows Named Insured Countersigned by th ' ed epresenta e 25A-17 Dec 14 07 10:Q1a Ted Holcomb 5627991443 Ei-iD4RSE AGR~EME4iT STATE STATUTORY ACCOUNTING PRIIECIPLES COMPEMSPaTIOMf BILL RECEIVABLE IPiSIJRANCE ~~~ ffQME QiFFtCE 5AN Ft;ANCISCI? EFFECTIY6 APRIL ALL EFFECTIVE DAT'ESJ-RE AT 72U1 AM PACIFIC STANDARD TIME Oti THE TIME INQICATED AT PACJHC STANDARD TIME 1, 2007 aT 12.01 A.M. NORTB ~1I~RICAN AHIFSEii83QTS, I11TC 11101 CAT.+ABAS$ AVE FONT14N1~. CA 92337 P, RgP 31 184$138-Q7 RENE417AL SD 1-6~-93--92 PAGE Z OF AN7 CONTRtfl7C7I0N BETWEEN THE POLICY AND THIS ENDORSEH£N? WILL BE CO34?ROLLED BY THFS ENDORSEtiENT'. IT IS AGR£ED 7RAT TBIS EIVDORSE2~ENT AHEND$ SECZIDN D. QF PART FIVE flF THE POLICT. YQ1€Ji POLICY HAS BEEN WRITT'F..N QN HO1'fTIILY AD.7uST1~SENT PER7OD. Yfl[t F1ILL PAY ALL PRE1SItTM tiHENf DUE. PAYROLL REP06tTS ANII P$El7IUH ARE DIIE 1i'ITHIPf ID DAYS (TEN) AFTER 7HE LAST DAY 4F i8E REPOR7TNG P&RTUD. PAYME!VT OF OUTSTAIQDiiY6 PRE?SIIIi~! IS DUE WITHTPY 10 DAYS (TEN) FROM THE BILL DATE, NOTINNG fN THLS ENDORSEMEpfT CdUTAiNIED SHALL BE HELD TfI VARY, ALTER, WAIVE OR EXTEND AIrY OF THE TERIiIS, C0IVOITIOl1fS, AGRE~NTS, DR LINN'CATIOl11S OF TENS POLICY OTHER THAN AS STATED. NOTHIAIKI ELSEWHERE M11 THIS PDIiGY SHALL BE HELD T[) VARY, ALTER, YrA1VE OR LMNIIT 'fHE TERMS, C101YO11'IONS, At3RE1ClYlENTS Ofd Lf1UiiTATIDNS OF THIS FJVD4RSEMENT_ COU1HTfcfi5iC311ED MID! 15Sa,I~D AT SAN FRAtVC15CQc APRIL 1Z, 2007 ~~.~~~" ~~4~^ HQRIZED REPRESENTATN PRE5IDENT SC{F FORM 70217 ~tEV.3-p3i ~O$9 Ol0 DP 2'17 25A-18 1 Ted Holcomb 443 c. p.~ ~~A~~ Httf~ OFFICE SAH FRANICISCU ANNIUAL AATItYG ENOpRSEMEl11T CO MFENSAT'ION >V S V Ft A N C E R IS AGREED TtfAT T!t!: OLASSiFICATIONS AiVD RATES PER 5100 OF REiM1NEFlAT1pN APPEARttrG ~~~ ~ iN TH6 Ct?NTINUOUS Pta~tC~l' ISSUED TO THIS EMPLOYER AFIE AlIAENQF~ A,S SHOWN BEltyl/i[. Dec 14 07 10:01a rcnC /MnC IVUn nCw tSA1C3 tVli THt PEHI(7~ INDICATE O_ F YOUR NAME pq 11pp}lEgg Bti{~ULD BE CORRtcCTED tJR lF 1N51JFiANCE IS NOT NtSEt]~ FOA NEXT YEAR, PLEASE TELL USr. ~MPORTaNT Tti1S IS NOT A BILL Col+lrln~t,~0us POLICY 1648138-07 SEND !10 YgNEY UNLESS STATEMENT IS ENCLDSEp THE RATING PERIOD BEGINS AND ENDS AT 12:09AN R~IT i?IG PERIOD 4-O 1-D 7 TQ 4-O 1-O S PACIFIC STANDARD TIME NORTH AMERICSN AMETSSMEhTTS, INC DEPOSIT' PRI£MIIJlE $44, 649.00 11101 CALABASH AVS MII~IIMUM PREMIUM $354.00 FONTANA, C14GIF 9233? PRBMIIIM ADi7T1STMENT PERIOD IIpHTALq ~I' 31 R SII NAi'LE OF EMPLOYER- lIORTH A>'iF.RICAN AiSUSEtiENTS, INC (A GORPORATZ02~1) CODE [~. PitI1YCIPAL WORE Al~'D RATES EFFECTI{fE FROM 04-O1-Q7 Fp 04-d1-4$ INTERIM PRE?SIUH SASE BII.LINC BASIS RATE RATB~ 9026-1 AMUSEN[ENT PARISS 4R E?~IBITIONS 383573 i©. D1 8.55 8810-1 CLERICAL OFFICE EMPLOYEES--N,O.C_ 29287 1.16 .99 9180-1 AMUSENSENT PARtfS OR EX}IIBITIONS ?2?392 7.7T 6.63 EXPERIENCE riODIFICATIaN 4-01-07 20 4-01-08 326 x *x*et~:***BUREAEI N03'E INFORMATION*~°~`=~`* FEIN 330708455 FEIN 33Q744a8$ - TOTAL ESTIMATSD ANNUAL PAE'lRIUl~ $134, 285 -~N ~'SogM I gi~ED ~D ~I 5 SiJSD AT S~iN FA]!NC I~ 3CO ~R I L 12 , 20 0 7 POLICY L FAfiE 1 OF OvEft PLEASE 3 25A-19 J .~ . i i . ~ i i I i j I i J I r 1 I! i .~ 1 . ~ i 1 i '~. a i z r 3 `a ~ u ~ c .~ 0 V O y ` F ; 1 \_, Exhibit "A" ~7 ~~ s~ ~- ~ 1 ~ 1 ~ ~,,. ~ I G 1 I ~ i ~ ~ I ~. ~ ~ •~{ ~ V ~ ~ Z - ~ F% 0 z ~ ~~ U a~ S 1' w dl ~~ ~~F -~ ^ `~ }'--~~ . -- , ~ ~ ... J _ M _ ~ ~Y I~ ._~ ~~ ' i . __ ~. F m ~~~~~ t. ~----- _ O ~ `s~ f`~ ,, ~~ ~ (~ •' f ~. ~!~-~~-' i '~h ~ 1 i i ~ .+ ~ 77 1 ~ ~~ 1. ~ ~i I;r ,. ~~~ _ . . O \~ .~ . -,,~ ~ ~ i t N ` ~ ~. ~ • I. l? ~ ~ ,• l t ~o ~~. ~'~_ :. `~ 3 ~. ', i f f t .~ ~i~ ~~~ 7 ~ ©~ ya ~ \i 4-T. 1~~ ;~ o ~~ ~ Y + `• ~~ ~} ~ o `•~ 1 ~ ~ O~ ' ~ • ~ ~t . ~~ • ~rO ~ ACS ' .. e jl, J 4 u M Y~ Z ~~14 y HQ QrJ s• a~Q' OZ; Q0 Y Y ~ t `~ <.--, z' r F-°~ ° -04~ Nab ~~ r 0 ~!' ~V ~~ 0 J a J A N Z '1 C 7 e O f~ m 7 h y~ - .. ~ 7 - ~'` ~~ Q,_-- ~o 25A-21 ~ j I ~ ~~ F l yT. ~ i ' •~ ~ ~ 'j ~`r ~] ~ .-! € ~~ ~ t~ Q ~ ~~~ ~~~ • U ~~ Q .. V d ~ ~ :' , .' ~ • , t 1 _ y • C _ ~ j ' • ~~ l ~ ~ ~i • ~ r ~-T ~1 ~ ~ .~~._ i . ~ s '', • - ~ r' ~ - ~~ ~:~ ~ J ,~. z~ 2 ~ ~ Ll a ~~ ~:. ~~ . _ ~: ~ - '~nb~ Z/~~ N /O 3 25A-22 s 0 W Q C a 2 Q ~ ~L ~ ~ . a> f3, a .~ z~ O~ cn ~, p vi a~ N T ~,..:~...~+hw+M -'. r~ il~i~~11~:+ '.1M~Na ~~1'~': ~ ~ s ~ i f=t~ ~ ~ • - i M , j ~ ~~ -~- .c ~, ~ ~ * ~ -~i .- ~~// ~; i y. ~1 ~ ~, ,a- ~ ~ ~ ~ .. -~_~ ~ i~ .: t .~-~----ice ~ ~ ~.~. © ~ ~ ~ ~ }~ ~ ~ ~ ~~xY~ ~~ ti 1~ • - .. 25A-23 _ .~ - ~ s ~ ~ ~ ~ ~~ • =' ~ .. ~~: _ ~ ~ ' ~~~~~ ~ ' ' •~ - ~ • .~ . y • ~' .- ~~ ~. - .. s ~ _ _- I ~ i I ~ t ~ ~ • ~ .~ ' a • ~ ~r s - r _. ~ • . ~ _ ~_~ ~i~~ ~ E - - --r- ~, /"1 S q ~' o~~ ...::::-- 331 W. 25A-24 Exhibit "B" REQUEST FOR PROPOSALS RFP 07-085-PRCSA FOR A CARNIVAL PROMOTER TO PROVIDE CARNIVALS AT CITY OWNED PARKS KEY RFP DATES: Issue Date: Pre-proposal Conference: Proposal Due Date: October 18, 2007 October 25, 2007 November 9, 2007 25A-26 REQUEST FOR PROPOSAL Notice is hereby given that sealed proposals will be received for EIGHT (8) CARNIVALS TO BE PROVIDED AT SPECIFIED CITY OWNED PARKS per the attached specifications, at the Parks, Recreation and Community Services Agency, Budget and Accounting Section, 888 W. Santa Ana Blvd. 2°d Floor, Santa Ana, California, until 5:00 P.M., FRIDAY, NOVEMBER 9, 2007. If fiuther information is needed, contact Robert Carroll, via email at rcarroll@ci.santa-ana.ca.us, or phone at (714) 571-4215. MAILED proposals should be addressed as follows: Parks, Recreation and Community Services Agency Budget and Accounting Section M-23 P.O. Box 1988 Santa Ana, CA 92702 Attn: Robert Carroll or delivery by hand or courier to: Parks, Recreation and Community Services Agency Budget and Accounting Section M-23 888 W. Santa Ana Blvd. 2°d Floor Santa Ana, CA 92701 Attn: Robert Carroll It is the responsibility of the proposer to see that any proposal submitted shall have sufficient time to be received by the Budget and Accounting Section prior to proposal due date and time. Late. proposals will be returned to the vendor unopened. The receiving time in the Budget and Accounting Section will be the governing time for acceptability of proposals. Telegraphic, telephonic and facsimile proposals will not be accepted. 2 25A-27 I. GENERAL A. RFP PROCESS AND GENERAL TERMS PROPOSAL SUBMISSIONS Proposals must be submitted to the Budget and Accounting Section in a sealed envelope showing on the outside, the name of the bidder, RFP NO.07-085-PRCSA, and the proposal due date and time. All proposals must be signed by an authorized representative of the vendor. 2. PROPOSAL WITHDRAWAL Proposals may be withdrawn by written request received before the hour set for the opening. After that time, the vendor may not withdraw proposals for a period of ninety (90) days from the date of the opening. 3. LATE PROPOSALS It is the responsibility of the vendor to see that any proposal submitted shall have sufficient time to be received by the Budget and Accounting Section prior to the proposal due date and time. Santa Ana Parks, Recreation and Community Services Agency shall not be responsible for proposals lost or delayed in the mail. Late proposals will be returned to the vendor unopened. 4. REQUIRED DOCUMENTS Vendor must return the following completed documents with their proposal: • Detailed proposal of services in accordance with the specifications detailed in Section IV. Proposal should take into consideration the evaluation criteria included in Section III and should not to exceed 10 pages. • Signed proposal form (Section V); • A letter or printout of vendor's safety related incidents from insurance company, current or previous, spanning the past three (3) years (Section VI); • Completed vendor's references sheet (Section VI); • A resume or summary detailing vendor's qualifications, accomplishments, and membership in any professional and/or industry organizations; • A representative sample of photos of vendor's past events and/or vendor's equipment; • A list of ride equipment owned, used and/or operated in vendors events, with description and age of all rides; • Completed Proposal Summary and Deviations from Specifications (Section VII) • Any other information the vendor may choose to submit. • Attachments A, B, and C are for reference only, but will be required after the contract is awarded to the successful vendor. Vendor must submit one original and eight photocopies of each proposal offered. RIGHTS RESERVED The right is reserved by the City of Santa Ana to reject any or all proposals or to waive any informality or technical defect in a proposal. 25A-28 6. LICENSE AGREEMENT Successful vendor(s) will be required to enter into a License Agreement with the City of Santa Ana. The City reserves the right to enter into an agreement with said License Agreement with any, all, or none of the vendors for aone-year period, with the option of extending the License Agreement for two additional one-year terms. 7. SELL OR ASSIGN The successful vendor shall not have the right to sell, assign, or transfer any obligations resulting from this proposal without the specific written consent of the City. 8. LOCAL SALES TAX CONSIDERATION In accordance with the Santa Ana Municipal Code, a one percent (1%) preference will be applied to all proposals for taxable goods submitted by suppliers located within the City limits of Santa Ana. 9. RECEIVING TIME The receiving time in the Budget and Accounting Section will be the governing time for acceptability of proposals. Telegraphic, telephonic and facsimile proposals will not be accepted. 10. COMPLIANCE WITH LAWS All proposals shall comply with current federal, state, and other laws relative thereto. Vendor further agrees that the services proposed comply with all applicable Federal and State Occupational Safety and Health laws, standards for regulations, and that vendor will indemnify and hold the City harmless for any failure to so conform. 11. REFERENCE TO SUCCESSFUL VENDOR The terms vendor, supplier, proposer, or contractor may be used interchangeably in these specifications and shall refer exclusively to the vendor(s) with whom the City enters into contract as a result of this request for proposal. 12. INQUIRIES Refer inquiries in writing via email to Robert Carroll, rcarroll ,ci.santa-ana.ca.us. 13. AWARD OF BASE PROPOSAL OR ALTERNATE PROPOSAL The City of Santa Ana reserves the right to award either the Base Proposal or any Alternate Proposals offered, whichever is in the best interest of the City. 14. RIGHTS RESERVED The City reserves the right to contract with any, all, or none of the carnival vendors who submit base proposals and/or alternate proposals. 15. E-MAIL COMMUNICATIONS To facilitate the RFP process, vendors are required to monitor and respond to a-mail requests on a daily basis. 4 25A-29 16. PRE-PROPOSAL CONFERENCE A pre-proposal conference will be held on Thursday, October 25 at 1:30 p.m. in the 2"d Floor Large Conference Room of Santa Ana Pazks, Recreation and Community Services Agency, 888 W. Santa Ana Blvd., Santa Ana, CA. Please RSVP to Robert Carroll, (714) 571-4218, by Monday, October 22, 2007. All proposers are strongly encouraged to attend. II. SCOPE The City of Santa Ana is requesting proposals from carnival vendor(s) to conduct eight (8) carnivals on City-owned park property during the period of Mazch through October 2008 as specified in the table below. A map of each park with the general event area highlighted is attached to this RFP for applicant's reference. Exact locations for carnival rides and equipment will be identified at the pre-event meeting. Park Site Venue/License Fee Maximum Size/Scale of Event 1 Jerome Park Large/$7,000 Up to 16 carnival rides, 12 game booths, 8 food* March 28-30 booths and/or information booths. No live Fri-Sun entertainment 2 Cesaz Chavez/ Small/$4,000 Up to 14 carnival rides, 12 game booths, 8 food* Campesino Park and/or information booths. No live April l 8-20 entertainment Fri-Sun 3 Centennial Park Large/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* May 23-26 and/or information booths. No live entertainment Fri-Mon 4 Jerome Park Large/$7,000 Up to 16 carnival rides, 12 game booths, 8 food* July 3-6 and/or information booths. No live entertainment Thurs-Sun 5 El Salvador Park Small/$4,000 Up to 15 carnival rides, 12 game booths, 8 food* August 22-24 and/or information booths. No live entertainment Fri-Sun 6 Madison Pazk Large/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* Aug. 29- Sept. 1 and/or information booths. No live Fri-Mon entertainment 7 Rosita Park SmalU$4,000 Up to 14 carnival rides, 12 game booths, 8 food* September 19-21 and/or information booths. No live entertainment Fri-Sun 8 Centennial Park Large/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* October 10-12 and/or information booths. No live entertainment Fri-Sun Note: One booth is equal to one 10x10 canopy area. A maximum of five cooking booths will be allowed. 5 25A-30 EVALUATION OF PROPOSALS Vendors will be evaluated based on their ability to conduct successful events in both the small carnival and large carnival categories. For the purposes of this RFP, carnivals conducted at Cesar Chavez/Campesino, Rosita, and El Salvador pazks are considered small carnivals. Carnivals conducted at Centennial, Jerome, and Madison parks aze considered lazge carnivals. An evaluation committee will recommend the most qualified vendors for each the small and large carnival event categories. A committee of City staff representing vazious departments will evaluate all proposals based on the following criteria: Equipment, Capability, and Functionality of Vendor 20% 1. Equipment and related safety specifications of equipment to be used. 2. Training and safety precautions taken to ensure that attractions and/or staff pose no danger to event participants or the general public. 3. Vendor's financial ability to provide a safe, enjoyable carnival while meeting all specifications. Level of Service and Support 20% 1. Responsiveness and thoroughness of proposal. 2. Ability to accommodate proposed carnival dates and locations. Experience of Firm and Personnel 20% 1. All carnival personnel, including operators, proposed to work at carnivals and the qualifications of those individuals. 2. Experience and technical expertise of personnel, including operators, with implementing carnivals and special events in other cities. Past Performances 40% 1. Past record of performance on contracts with other cities, governmental agencies or public bodies, including such factors as reliability, park damage prevention and compliance with contract terms and conditions. 2. The vendor's capacity to perform the work within time specifications. 3. Acceptable, verifiable references and site reviews, and a three (3) year summation of vendor's record of carnival related incidents from vendor's insurance company. FOLLOW-UP OF EVALUATION PROCESS BY VENDOR Vendors may follow up on the evaluation of the proposals by contacting Robert Carroll, via email at rcarroll@ci.santa-ana.ca.us or by phone at (714) 571-4218. REVIEW EVALUATION RESULTS AND AWARD After awazd, the evaluations will become public record. Interested vendors may submit a request in writing, along with aself-addressed stamped envelope to receive results of the evaluation. Submit your request to Budget and Accounting Section M-23, Parks, Recreation and Community Services Agency, 888 W. Santa Ana Blvd. 2"d Floor, Santa Ana, CA 92701. 25A-31 IV. SPECIFICATIONS Vendor must submit a detailed proposal of the services offered in response to specifications below. Proposal must include a detailed response that addresses the specifications and should not to exceed 10 pages. Vendor must also return all requested documents with their proposal as specified in Item I.4. of this document. Applicants are asked to use 12 point Times New Roman font. A. VENDOR'S RESPONSIBILITIES 1. PROOF OF INSURANCE -Upon selection, vendor must be able to provide proof of $1,000,000 general liability insurance for each event a minimum of ten (10) business days before the event. The insurance certificate must name the "City of Santa Ana, its Officers, Agents and Employees, as additionally insured. It must also contain the following clauses: 1) a thirty day written Notice of Cancelation will be provided to the additional insured; 2) insured's coverage will apply on a primary /non-contributory basis to the additional insured; and 3) the insurance will contain a separation of insureds clause. If the certificate of insurance is in the name of the carnival operator it shall include the carnival promoter as additionally insured. 2. REQUIRED CLEANUP/DAMAGE DEPOSIT -Upon selection, vendor 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 vendor at the conclusion of each carnival. Should costs incurred by the vendor (as stated above) be greater than the total deposit, the vendor will be invoiced for the balance due. The vendor will be required to submit the balance due 10 days prior to conducting another event. The vendor 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. The vendor will not be allowed to start an event if there is an unpaid balance due. 3. CLEANUP DURING AND AFTER THE EVENT -The vendor agrees that they have 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 vendor employee arrives at the park site for set up until the last vendor employee leaves the park. Furthermore, the vendor agrees to be responsible for cleanup of the event site and the surrounding areas after the event. Vendor agrees to arrange for trash pick-up in the parking lots and surrounding neighborhood after each day at vendor's expense. Persons performing clean-up shall be employees or subcontractors of the vendor. Failure to provide continuous clean-up will result in dispatching City staff to perform this work at the vendor's expense or the City hiring a private contractor to perform the work at vendor's expense plus a $500 penalty for each day the vendor fails to perform this responsibility. 7 25A-32 4. STREET SWEEPING -If street sweeping is necessary due to trash left from pedestrian and vehicular traffic and the vendor fails to perform as required in Item V.A.3. of this document, 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 vendor's expense. Furthermore, the vendor agrees to pay a $500 penalty for failure to perform this responsibility. 5. DUMPSTERS -Vendor 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 the by 3:00 p.m. of the second day following the conclusion of the event. Vendor agrees to pay a penalty of $500 per day that the dumpsters are not provided and removed as indicated. 6. REQUIRED PLOT PLAN AND PLAN CHECK PROCESS -Vendor 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, etc. Vendor should not only indicate number of rides on the plot plan, but should indicate 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. Vendor 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. Vendor agrees to pay a $500 penalty per day for each day late in providing the plot plan. 7. CARNIVAL LICENSE FEE= Vendor understands and agrees to pay the required carnival license fee for each event. Checks shall be made payable to "The City of Santa Ana". The license fee is $4,000 for carnivals conducted at El Salvador, Rosita, and Campesino/Cesar Chavez parks, and $7,000 for carnivals conducted at Jerome, Centennial, and Madison parks. 8. FIRE AND ELECTRICAL INSPECTION -Ten (10) business days prior to the event, the vendor must 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. Vendor agrees to pay a $S00 penalty per day for each day late in scheduling appointments as indicated. No more than five (5) cooking booths will be allowed. Actual event rules and regulations will be provided to the vendor at plan check and copies shall be provided to each booth operator by the vendor. Vendor must provide all event electricity. Hookups to park electrical outlets will not be permitted. Vendor agrees to pay a $500 penalty per day for each violation. 9. O.C. HEALTH DEPARTMENT REQUIREMENTS -Vendor 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 25A-33 allowed to operate for the duration of the event during event hours only. To obtain food permits and schedule booth inspections, vendor must contact the Orange County Health Department at (714) 667-3610. Vendor agrees to pay a $500 penalty per day for each day late in securing food permits and food booth inspections. Furthermore, the vendor agrees to pay a $500 penalty per day for each food booth discovered operating without prior approval of the O.C. Heath 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. Vendor agrees to pay a $500 penalty per day for each violation. 10. REQUIRED PERMIT FROM BUSINESS LICENSE OFFICE FOR BOOTH VENDORS (BUSINESSES AND/OR NON-PROFIT ORGANIZATIONS) - Carnival 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 carnival promoter can collect all the necessary information and fees from the vendors and submit the entire packet to the Business License Office a minimum of five (5) days prior to the commencement of the event. Vendor agrees to 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 Ciry of Santa Ana Business License. Businesses who do not have a current City of Santa Ana Business License can obtain aOne-Day Peddler/Solicitor license. Non-Profit Organizations are required to obtain aFee-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. Vendor agrees to pay a $500 penalty per day for each booth operating without a City Business License. 11. CONTACT WITH NEIGHBORHOOD ORGANIZATIONS -Vendor 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 vendor for a particular neighborhood upon request. Vendor must 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. Vendor agrees to pay a $500 penalty for each violation of this section. 12. CONTACT WITH NEIGHBORHOOD RESIDENTS - At least 72 hours prior to each carnival event, vendors 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. Vendor agrees to pay a $500 penalty for each violation of this section. 9 25A-34 13. CONTACT WITH BUSINESS ORGANIZATIONS -Vendor 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 pazking lots. Vendor agrees to pay a $500 penalty for each violation of this section. 14. 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. Vendor must 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 often (10) business days prior to the event. Vendor agrees to pay a $500 penalty per day for each violation of this section. Furthermore, if it is discovered that the security deployment is less than the City's mandated level of security the City may elect to dispatch, at the vendor's expense SAPD and/or Park Ranger's to bring the security levels up to the agreed upon level. 15. 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. Vendor agrees to pay a $500 penalty for failure to perform this responsibility. 16. POLICE DEPARTMENT REQUIREMENTS -The security company to be used by the vendor must be pre-approved by the Santa Ana Police Department. Vendor 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, guazd card numbers and copy of guard cazds of the security officers assigned to the event. io 25A-35 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. Vendor must also have a minimum of two (2) Santa Ana Police Department Officers present at all carnivals during agreed upon hours of event operation. If the number of officers required exceeds two officers, vendor shall not be responsible for the payment of costs for more than four officers. Vendor will also provide the Police Department with a booth at these events. The Police Department will coordinate necessary police assistance for the event at vendors' expense. 17. ADDITIONAL POLICE/FIRE/PARK PERSONNEL -Vendor agrees that if a disturbance occurs due to the operations of the carnival and additional Police, Fire or Parks personnel assistance is required, vendor will pay those additional expenses. 18. PRE-EVENT AND POST EVENT INSPECTIONS WITH PARK PERSONNEL -Vendor 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. Apre-inspection meeting. must occur on the Wednesday prior to the carnival event. Vendor must bring the proposed plot plan to this meeting. Vendor 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 day following the carnival activity at 2:00 pm., unless otherwise stipulated by representatives of the Santa Ana Police 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. The vendor understands and agrees that the Park Supervisor shall be the fmal authority regarding interpretations of the sites existing conditions both before and after the event. Failure by the vendor to set and attend these meetings will result in the Park Supervisor performing the walk through of the park site without the vendor and all conditions recorded by the Park Supervisor shall be deemed as accurate and final. 19. PROTECTION OF FIELD AND TURF -Vendor 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 vendor'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, vendor 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 carnival promoter. 11 25A-36 20. CARNIVAL EQUIPMENT SET UP AND REMOVAL -None of the equipment may be moved into the pazk 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 Pazk, Recreation and Community Services Agency. There will be a $1,000 fee per day for equipment arriving earlier or left in the park later than the above stated times. 21. 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. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Vendor agrees to pay a $500 penalty per day for each violation of this section. 22. PORTABLE RESTROOMS -Vendor 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. Vendor 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. 23. SALE, ADVERTISING AND CONSUMPTION OF BEER, ALCOHOL OR CIGARETTES - Vendor agrees that there shall be no beer, alcohol or cigazettes sold or consumed at any of the proposed events, nor shall there be any inflatables, balloons, or banners advertising beer, alcohol or cigazettes at any of the proposed events. Vendor agrees to pay a $500 penalty per day for each violation of this section. 24. NATURE OF CARNIVAL GAMES AND/OR ACTIVITIES -Vendor understands and 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. Vendor 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 aze 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 decision to remove a game will be final. 25. SIZE OF CARNIVAL RIDES -Vendors 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 pazk 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 vendors will be encouraged to provide only small and medium rides, depending on the venue, up to two spectaculaz rides may be allowed. The Park Superintendent must approve the final ride list at, or any time before, the pre-event meeting. 12 25A-37 26. EVENT STAFF PARKING -Vendor understands and agrees that there shall be no overnight camping or privately owned vehicles for the purpose of overnight camping at the park site. All privately owned 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. The Vendor is permitted one vehicle within the pazk site for security personnel and one vehicle for office purposes. Vendor agrees to pay a $500 penalty per day for each violation of this section. 27. DELIVERIES OF SUPPLIES TO VENDORS -The Vendor 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 azea during programming hours. Loading and unloading of vendors equipment should be done prior to and after the event. 28. PERSONNEL TO PLACE AND COLLECT TRAFFIC BARRICADING EQUIPMENT - Vendor 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 vendor to place and/or collect traffic barricades and/or equipment will .result in City staff or a separate contractor completing this work at the vendor's expense. 29. RENTAL OF TRAFFIC CONTROL EQUIPMENT -Vendor shall be required to pay for the rental of specific traffic control equipment, as required by the Police Department. 30. PERSONNEL PARKING -Vendors shall instruct all personnel to park in areas indicated on the approved plot plan. Vendor 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. 31. EVENT PARKING AND REQUIRED SIGNAGE -Vendor shall be required to post signs 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. Vendor agrees to pay a $500 penalty for each violation of this section. 32. PERSONNEL AT ENTRANCES TO NEIGHBORHOOD -Vendor must provide soft security personnel (licensed as specified in Item V.A.15.) to work at designated neighborhood entrances in close proximity to the pazk. 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. Vendor agrees to pay a $500 penalty per day for each violation of this section. 33. 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. Vendor will be informed of the number of additional officers needed at the pre- event meeting described in Item V.A.18. 13 25A-38 The Police Department will arrange the necessary police staffing for the event. The vendor 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 vendor will be responsible for a minimum of 4 hours of over-time costs. 14 25A-39 V. PROPOSAL FORM Responses to this Request for Proposal are due at 5:00 p.m. FRIDAY, NOVEMBER 9, 2007. The undersigned Vendor agrees to provide carnival services at City-owned parks in accordance with the specifications. UWe have stated herein the services and. fees that Uwe will fiunish and deliver as specified. Award shall be based upon the evaluation criteria included in Section III. Where there is a discrepancy between words and figures, WORDS SHALL GOVERN. The City of Santa Ana reserves the right to cancel any license agreement in the event that terms under which carnival vendor is contracted are violated. Name of Vendor (Person, Firm, Corp.) Signature of Authorized Rep. Address Name and Title (Please Print) Address Date Telephone Number Fax Number 15 25A-40 VI. VENDOR'S REFERENCES This sheet must be completed in full and returned with vendor's proposal. List and describe fully the last three contracts performed by your firm, which demonstrate your ability to provide carnival service in accordance with the specifications in Section IV. Attach additional pages if necessary. The City reserves the right to contact each of the .references listed for additional information regazding your firm's qualifications. Also, please attach a letter or printout from vendor's insurance provider(s), current and/or prior, who have provided your business with insurance over the last three (3) yeazs, detailing any claims that have been filed in connection with vendor's carnival operations. Reference No. 1 Customer Name: Address: Contract Amount: Contact Individual: Phone Number: Year: Description of equipment and services provided: Reference No. 2 Customer Name: Address: Contract Amount: Contact Individual: Phone Number: Yeaz: Description of equipment and services provided: Customer Name: Address: Contract Amount: Reference No. 3 Contact Individual: Phone Number: Year: Description of equipment and services provided: 16 2 5A-41 VII. Proposal Summary and Deviations from Specifications Please check the first column for each event that you aze available to conduct. For each event, please list the carnival operator you aze proposing to use and any deviations from specifications. If necessary, please include additional pages. Vendors will not be allowed to change carnival operators once the proposal has been submitted without approval of City. Intent to Park Site Proposed Other Deviations from Specifications Provide Carnival Please cite item number and summarize how O erator s ecification deviates Jerome Park March 28-30 Fri-Sun Cesar Chavez/ Campesino Park April 18-20 Fri-Sun Centennial Pazk May 23-26 Fri-Mon Jerome Park July 3-6 Thurs-Sun El Salvador Park August 22-24 Fri-Sun Madison Park Aug. 29- Sept. 1 Fri-Mon Rosita Park September 19-21 Fri-Sun Centennial Park October 10-12 Fri-Sun 17 25A-42 ATTACHMENT "A" CERTIFICATION OF NON-DISCRIMINATION BY CONSULTANTS As suppliers of goods or services to the City of Santa Ana, the Firm listed below certifies that it does not discriminate in its employment with regard to race, color, religion, sex, or national origin; that it is in compliance with all federal, state and local directives and executive orders regarding non- discrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. WE AGREE SPECIFICALLY: To take affirmative steps to hire minority employees with the company. 2. To establish or observe employment policies within affirmative promotion opportunities for minority persons at all job levels. 3. To communicate this policy to all persons concerned, including all company employees, outside recruiting services, especially those servicing minority communities, and to the minority communities at large. FIRM TITLE OF PERSON SIGNING SIGNATURE DATE Please include any additional information available regarding equal opportunity employment programs now in effect within your company. 18 25A-43 ATTACHMENT "B" SAMPLE ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the name insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to the endorsement form as part of Name Insured Countersigned by 19 2 5A-44 ATTACHMENT "C" NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this day of , 2008 by (hereinafter "Operator"), 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 October 18, 2007, the City issued a Request For Proposals for carnival operators to provide carnivals at specified City owned parks. Operator submitted a proposal to provide carnival services. Operator represents that Operator is able and willing to provide carnival services as specified in the Request for Proposals to the City. In undertaking the performance of this Agreement, Operator represents that it is knowledgeable in its field and that any services performed by Operator under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival operator 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 park ("Park") within its boundaries: located at., Santa Ana. City hereby grants to the Operator anon-exclusive, revocable user agreement to encroach upon the specific areas of the above stated Park ("Carnival Areas") delineated in the rendering of the Pazk attached hereto Exhibit "", for the purpose of providing a carnival ("Carnival Event") and for no other purpose. Operator shall provide 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 Operator is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in their entirety for public purposes to which they presently are and may, at the option of the City, be devoted. Operator 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) Operator 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 Operator's use and occupancy of the Carnival Areas within the Pazks shall be limited solely to the permission for such use and occupancy granted herein. 20 25A-45 (D) As a covenant to this Agreement, Operator agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request For Proposals, RFP ,issue date (hereinafter "RFP") attached hereto as Exhibit "" and incorporated herein by reference. Any failure to adhere to and comply with the terms, conditions and responsibilities enumerated in the Request for Proposal, 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 Operator alternative dates for the conducting of the Carnival Event within the term of this Agreement. If Operator desires to obtain alternative dates as provided in this paragraph, Operator must timely request the same from City. 2. SCOPE OF SERVICES Operator shall provide at the Park identified in Section 3 hereof a full service Carnival Event complete with the rides, equipment and services as set forth in the RFP (Exhibit) to this Agreement. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of the Carnival Event as set forth below, Operator shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Operator agrees to pay the City and City agrees to accept from Operator the following fees per Carnival Event. ParIJ~'C.4arnival Dates~`~~ F.ee. ~~'=k 7~~» ~. In addition to the fees set forth herein, Operator 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 hereto. All fees and deposits shall be due and payable as set forth in the RFP. The vendor agrees that failure to pay the cleanup/damage deposit and/or any other outstanding balances and fees a minimum often (10) 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 any unpaid balance due. 4. SECURITY DEPOSIT Contemporaneously with the execution of this Agreement, Operator 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 Operator of all the terms, covenants, and conditions of this Agreement to be kept and performed by Operator during the Term of this Agreement, or any extension thereof, and including the removal of Operator's facilities as set forth herein. Assuming successful completion of all terms and conditions of this Agreement, including those within 21 25A-46 the RFP, the security deposit and any unused fees shall be returned within 60 days of the final carnival event provided for herein. 5. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2008 unless terminated eazlier 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 Operator 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. Operator 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. Operator shall establish and maintain sepazate accounting records for each Carnival Event at the specified Parks. Operator'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 Pazk Carnival Events. B. All Operator'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 Operator 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 anemployer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Operator performs the services which are the subject matter of this Agreement; however, the services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services. Operator 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. 22 25A-47 10. INSURANCE Prior to undertaking performance of any work relative to a Carnival Event under this Agreement, Operator shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Commercial General Liability Insurance. Operator shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of Operator's operations in the performance of this Agreement, 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 there from, and property damage, in the total amount of $5,000,000.00 per occurrence. Operator shall supply City with a fully executed additional insured endorsement in substantially the form attached as Exhibit B to the RFP, Exhibit B hereto, upon execution of this Agreement and shall be approved in form by the City Attorney. B. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000.00 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Operator, if Operator 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, Operator agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000.00 per accident. D. If Operator is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000.00 per claim. E. The following requirements apply to the insurance to be provided by Operator pursuant to this section: i. Operator 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." 23 25A-48 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. F. If Operator 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. Operator agrees to indemnify the City for any work performed prior to approval of insurance by the City. 11. INDEMNIFICATION Operator agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Operator or its 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 Operator further agrees to 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. Operator 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 Operator's performance of this Agreement or any failure to comply with any of Operator's obligations contained in this Agreement by Operator, its officers, agents or employees. 12. TRASH/UTILITIES/CLEANUP Operator 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. Operator 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 paragraphs A2 - A4 of 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 paragraph A9 of the RFP, Operator is 24 25A-49 responsible for supplying all utilities to be used during the Carnival Events, including supplying the required portable toilets as specified in the RFP. 13. HAZARDOUS MATERIALS Operator represents and warrants that its use of the Carnival Area herein will not generate any hazazdous substance, and it will not store or dispose on the Park and/or Carnival Area nor transport to or over the Park and/or Carnival Area any hazazdous substance. Operator further agrees to clean-up and remediate any hazazdous 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 similaz 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 maybe 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 Operator shall not commit or permit the commission by others of any waste on the Pazk or Carnival Areas. Operator 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 Pazk or Carnival Areas; and Operator 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 pazk in the Carnival Area, in a location pre- determined by the Park Superintendent, to be used exclusively as a business office by Operator. 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. 25 25A-50 17. LIENS Operator will not permit any mechanics' or materialmens' or other liens to stand against the City Pazk or Carnival Area by reason of any use or occupancy by Operator, or any person claiming under Operator. 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 Operator's judgment, Operator 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 Operator 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 upcoming scheduled carnival, City may terminate this Agreement upon thirty (30) written notice to Operator. In the event of condemnation, unless Operator 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 Operator 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 awazd 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 OPERATOR Should Operator 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 OPERATOR The insolvency of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Operator, or the making of a general assignment for the benefit of creditors by Operator, 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. 26 25A-51 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 bylaw or elsewhere provided in this Agreement. 23. WAIVER OF BREACH The waiver by City of any breach by Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Operator either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Operator 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 Telefacsimile (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 27 25A-52 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647-6515 To Operator: A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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 Operator shall, at Operator'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 Operator's use and occupancy of the Park and Carnival Area and Operator'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 Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Operator and shall be considered grounds for termination of this Agreement by City. Operator will obtain all permits and other governmental approvals, required in connection with Operator's activities hereunder, and update such permits/approvals as necessary. 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Operator, 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 28 25A-53 instrument signed by the City and by an authorized representative of Operator. 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 Operator, Operator 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 Operators retained by City. 30. NON-DISCRIMINATION Operator 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. Operator 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 and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. 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 Operator 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. Operator 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. 29 25A-54 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. CITY OF SANTA ANA DAVID N. REAM City Manager ATTEST: PATRICIA E. HEALY Clerk of the Council 30 25A-55 OPERATOR: By: (Print Name)_ (Title) Tax I.D. # RECOMMENDED FOR APPROVAL: Gerardo Mouet Executive Director of the Parks Recreation and Community Services Agency APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Joseph Straka Assistant City Attorney 31 25A-56 ADDENDUM NO. 1 REQUEST FOR PROPOSAL FOR A CARNIVAL PROMOTER TO PROVIDE CARNIVALS AT CITY OWNED PARKS RFP REFERENCE NO: 07-085 PRCSA DATE DUE: NOVEMBER 9, 2007 Notice is hereby given that the City of Santa Ana, Pazks, Recreation and Community Services Agency has made certain modifications, additions, and/or deletions, in the specifications to RFP NO: 07-085 PRCSA. This addendum shall become a part of the original Request for Proposal due by 5:00 p.m. on November 9, 2007. This addendum is provided in response to questions asked at the pre-proposal conference conducted on October 25. 1. Page 5, Section II. Please clarify the number of food booths and information booths allowed. Up to 20 food and information booths will be allowed. Of these 20 booths, up to six 10 x 10 booths can be cooking booths (or up to three 10 x 20). The remainder can be non-profit, commercial or sponsorship booths. Please include in you plot plan what goods and services each of these booths will offer and the dimension of each booth. The City must approve all goods sold at commercial booths. Massage booths aze not allowable. 2. Page 7, Section IV. A. 2, first paragraph shall be revised as follows: REQUIRED CLEANUP/DAMAGE DEPOSIT -Upon selection, vendor must provide a $5,000 refundable damage/clean-up deposit to the City of Santa Ana, Pazks, Recreation and Community Services Agency a minimum often (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 chazges caused by the event. Any remaining monies from the deposit will be refunded to vendor at the conclusion of o~~~~~~PRI fhe carnival season.. Should costs incurred by the vendor (as stated above) be greater than the. total deposit, the vendor will be invoiced for the balance due. The vendor will be required to submit .: .. the balance due 10 days prior to conducting another event. Deposit balance shall .remain at $5,000 throughout`the,term of the agreement::. 3. Page 8, Section IV. A. 8, second paragraph shall be revised as follows: No more than e-E-5} six (6) cooking booths will be allowed. Actual event rules and regulations will be provided to the vendor at plan check and copies shall be provided to each booth operator by the vendor. Vendor must provide all event electricity. Hookups to park electrical outlets will not be permitted. Vendor agrees to pay a $500 penalty per day for each violation. 25A-57 4. Page 11, Section IV. A. 18, second paragraph shall be revised as follows: 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 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. 5. Page 12, Section IV. A. 21, shall be revised as follows: 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. Vendor agrees to pay a $500 penalty per day for each violation of this section. 5. Please describe where the Carnival at Centennial Park will take place. Please find attached park maps that describe all carnival boundaries. Should you have any questions or require additional information, please contact Robert Carroll at your convenience, (714) 571-4218. Date Mailed: November 1, 2007. 2 25A-58 NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this day of January, 2008 by Acosta Associates, a California Corporation (hereinafter "Operator"), 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 October 18, 2007, the City issued a Request for Proposals, No. 07-085-PRCSA, seeking carnival operators to provide carnivals at specified City owned parks. Operator submitted a proposal to provide carnival services. Operator represents that Operator is able and willing to provide carnival services to the City as specified in the Request for Proposals No. 07-085-PRCSA and any addendums thereto. In undertaking the performance of this Agreement, Operator represents that it is knowledgeable in its field and that any services performed by Operator under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival operator 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: Campesino Park, located at 3311 W. 5th St, Santa Ana; Centennial Park, located at 3000 W. Edinger, Santa Ana; and, Madison Park, located at 1528 S. Standard, Santa Ana. City hereby grants to the Operator anon-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. Operator 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 Operator is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in their entirety for public purposes to which they presently are and may, at the option of the City, be devoted. Operator 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) Operator 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 Operator's use and occupancy of 1 25A-59 the Carnival Areas within the Parks shall be limited solely to the permission for such use and occupancy granted herein. (D) As a covenant to this Agreement, Operator agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request for Proposals, RFP 07- 085-PRCSA, issue date October 18, 2007, 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. (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 Operator alternative dates for the conducting of the Carnival Events within the term of this Agreement. If Operator desires to obtain alternative dates as provided in this paragraph, Operator must timely request the same from City. 2. SCOPE OF SERVICES Operator 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. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of each Carnival as set forth below, Operator shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Operator agrees to pay the City and City agrees to accept from Operator the following fees per Carnival Event. Park/ Carnival Dates Fee Campesino Park $4,000.00 April 18, 19 and 20, 2008 Madison Park $7,000.00 August 29, 30, 31 and September 1, 2008 Centennial Park $7,000.00 October 10-12, 2008 In addition to the fees set forth herein, Operator 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 2 25A-60 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, Operator 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 Operator of all the terms, covenants, and conditions of this Agreement to be kept and performed by Operator during the Term of this Agreement, or any extension thereof, and including the removal of Operator'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, 2008 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 Operator 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. Operator 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. Operator shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Operator'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 Operator'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 25A-61 9. INDEPENDENT CONTRACTOR Operator 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 anemployer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Operator performs the services which are the subject matter of this Agreement; however, the services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services. Operator 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, Operator shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Commercial General Liability Insurance. Operator shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) and 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 Operator's operations in the performance of this Agreement, 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. Operator shall supply City with a fully executed additional insured endorsement in substantially the form attached as Exhibit B to the RFP, Exhibit B hereto, upon execution of this Agreement and shall be approved in form by the City Attorney. B. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Operator, if Operator 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, Operator agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. D. If Operator is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. 4 25A-62 E. The following requirements apply to the insurance to be provided by Operator pursuant to this section: i. Operator 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 operator it shall include the name of the carnival promoter as additionally insured. F. If Operator 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. Operator agrees to indemnify the City for any work performed prior to approval of insurance by the City. 11. INDEMNIFICATION Operator agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Operator or its 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 Operator further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by 25A-63 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. Operator 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 Operator's performance of this Agreement or any failure to comply with any of Operator's obligations contained in this Agreement by Operator, its officers, agents or employees. 12. TRASH/UTILITIES/CLEANUP Operator 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. Operator 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, Operator 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 Operator represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and it 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. Operator 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 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 25A-64 Operator shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Operator 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 Operator 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 Operator. 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. 17. LIENS Operator 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 Operator, or any person claiming under Operator. 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 Operator's judgment, Operator 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 Operator 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) written notice to Operator. In the event of condemnation, unless Operator 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 Operator 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. 25A-65 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 OPERATOR Should Operator 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 OPERATOR The insolvency of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Operator, or the making of a general assignment for the benefit of creditors by Operator, 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 Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Operator either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Operator 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 25A-66 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 Telefacsimile (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 Telefacsimile (714) 647-6515 To Operator: Robert Acosta 74550 Fairway Drive Palm Desert, CA 92260 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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 25A-67 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 Operator shall, at Operator'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 Operator's use and occupancy of the Park and Carnival Area and Operator'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 Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Operator and shall be considered grounds for termination of this Agreement by City. Operator will obtain all permits and other governmental approvals, required in connection with Operator's activities hereunder, and update such permits/approvals as necessary. 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Operator, 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 Operator. 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 Operator, Operator 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 Operators retained by City. 30. NON-DISCRIMINATION Operator 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. Operator affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 10 25A-68 31. JURISDICTION -VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. 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 Operator 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. Operator 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. 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. 30. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination, or expiration of this Agreement, shall so survive 35. 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. 11 25A-69 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Joseph Straka Assistant City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager RECOMMENDED FOR APPROVAL: OPERATOR Gerardo Mouet Executive Director of the Parks Recreation and Community Services Agency (NAME) TITLEI Employer ID # or Individual SS # 12 25A-70 4 / L~ ~D~ CERTIFICATE OrF LIABiL PROauc~ Allied Spe.:ialty of Texas 8 5 N . E . ~ ~~op 410 Suite 600 lTY fNBU IVC 11/07%a I}p8 cERT1FICAlE ~ tS>5ifE0 AS A IItATTER OF iI~FBRMAT1oN HQLDER. THIS ~TlfHrDJ1~ ~OE& NO~i' A4~IO,D qR San A.~ntonio, TX 7$216 . $ 0 0 / 2 3 5 - 8 ; 74 ~;s~ Carnival Midway Attractions Li ll~UtntERS A~FaRniN~ COV~AO>r ~ ,_,~T.H.E. Insurance Compare O~AIC # nton Park Holdings, Tnc. a, 2560 E. Chapman Ave. #245 ~ xaeL~na. -~~ Orange, CA 92869 ~~ D: E: THE PaLtCIES OF tN3Uf~lNCE LR4TEC 13EROW HAVE BEENlSSUED TO THE INSURED 1~14A~ED ABOVc fD;2 7T•E FOUCY PERIQD iNDIGATED NOTfM7HS?'ANDfNG ' . ANv REQUIRf7AEPtT, flwtifid OR CONDTTION OF AIgY CQNT1iAACl' OR OTl-ER DOCU&IENT VVPt1~3 RESPECTTO YNiICH 7?{f5 CiSRTiF[CATE MAY BE NBSUED QR ' !MY PERTAIN. 7HE IN~IRANCE AFF~ tDED BY 7}iE Pbt.ldES ~ HERElN 15 S;~JEGT TO ALL THE TERtr15 EXCLUSIONS AND CONDtTpNS t)F SUCH ' ' , POLIa:lES. AQGREGA7E LiMI t S SHOtiiRI AtAY HAVE 6EEN P.EdUGELi BY PAID C:Al1US. WSR pflL~.yH PDTJ.;YEPF'ECTIYE PDLtC'fEXPStATiON LJplflT3 °rd ~taLLUtNUTV . rR~H~ i f 1, G00, 000 X ron~z~~uGeHERALLaeiLaY `~7MT3897 04%01/`0 04/01 j08 °~'3E3'° . ~, 50,000 ~ i ? CLAIAd6 MADE a 0 :CUR NED e'YG~ L4er dw oenmsl __ It'S 1 ooo 000 i , , f AL ADYMIdlktY s - s ~ o0 0 o 00 , , *;EHEHALAOCt~,TE f G'eN'LAfaYa THLIMR'APP PEtt I 1, 000, 400 ~ ~ S PouCY PRO• LDC 3 _.. AUT DN OS LYt81UTY ~ ~ ~ ~ ~ ~MB~INE'Dp~ PtQLE L1M.T S ALL ~Wt1E~7 AU-C9 ~ ' f SCHECULEDALY{LS { ~ SCiA1:YtHJURY ~ (pe,.pyWq~) i i HIRFL AUTb6 ~ H^..N-0WNEDAUT!}8 . BODt~'Y' ~ (PeraW0~i1t) S ~ I ~_ i ( ~~ u~E f GARAGB LlABIL1TY AUTO OAlY • EAACCDEHT f AxYAUTO ~ OTHERTTVPI EAACG _~ f ~ Au~O a~tr. etc-~rurl~.u,,urs~t,rr M7XT3898 04 ai 0 . 04 O1 08 ~~„_ f ~, 000, Do0 X CrJCUR ~ CLAle1$YADE I ANRE 1E f 1, 000, 000 ~D~cneLE M7XT3899 04/01/07 04/01.f08~EAa'F1000UR. f 3,a0o,000 RerErmoH s AGf REft+TE 3, 0 0 0, 0 0 0 WDRKERSCDMPENSkTIDH ~ ~ TICSTATU- CfH- EMPLOYERS' UAHS ITY ~ . .---- AlIYPROPfSETDRfPARTNER~fJfEGUTNE ELEACHA'T f OFFICER111EM8ER EXCLUDED? ~ r oeawfee undw eL otBE.~sE • ~ EMPLOYEE f E • FDL~ L1R! S OTHER DESCRIPT'f,)N DF OP3?A'FiDH9t40tiAT10N6/V~iM:Bild(CFDSpNf AD06D t3YiHDORSEAIENfISPECIAIPROS78AN6 ADDITIOA?~iL INSURED YdTTH RESPECTS TO OPERATIONS OF NAMED INSURED CNIY: CITY OF' SANTA ANA PARKS, RECREATION & COf~iUNITY SERVICES AGENCY AND THE CITY OF SANTA ANA, CALIFORNIA FOR THE FOLLOWING LOCATIONS: CESAR CHAVEZj C_~MPESxNO P_~,..~C.K, DELHI PARK, JEROME PARK, MAT?ISCN PARK AND EL SAT_,VADOR PARK DATES: MARCH 1, 2008 - i3PRIL 1, 2008 CITY OF SANTA ANA PI•LRK;: , RECREATION & COMMUNITY SHOU[D MY OF TH@ ABDYE OE.SI'~IBED PDt[OIRB Ht: ttAHC~lED BEEDRE THE EXPfiATiON S EP.V Z CE AGENCY DATE THpREDF,THE ISSUIH6 WSURSRWlLL EHDt3gYDR m 1TAR, 3 0 DAYS 8$8 W SA,.'V'TA ANA BLVD, 2ND FLOOR N0TlCE TO tHE CEICJiF1C11TE t~LDEA ttAMED m THE LEPT; BUT rau.uRe m DO iD SHALL i S_~NTA ANA. CA 92702 wPOSetwoaLtr=anaH RmoPAarrmtDUroa~ettaut>:~rt.ITaAO~aTSOR K s. AvrHOR~ .-•w~ui ~.V ~LVV IN4J 25A-~1 ®ACO~ tmRPQRATION l888 J .~ . a r 5 a u ~ ~ ~ O V 4 ~ ~ f ~, Exhibit "A" S ~~ =_ a~ YF <_ )~ ~y_` \'~Y~ i • ' ~ i 1 I v a +3~~~~•~ y,r •r~y1 t i~l ~ v ~ ~= ~ ~ ~ <~ ~ ~ t '~ F Q z ~~ M VJJ< 72 '1 4 ] d o r~ iw ] n .3 i~ `~ ) •, <' ~ ~ ... % (cam, U ~ f ~~; , ~. z ~1 I 4 ~~ ., o~ ~ ~ :o • ~ ~ I - ~ is ~: `. ~ ;~ Y ~. ~ ~ ~ ~ ~~.- ~ ~~ . % . , • ti ~` ~ ~ ~ G f f O ° ~ ~ ' ~ ~ ,3 ' ~'~'' .~ I ~- ~ ~ ~ ~~ ........... : _ ,~s J a Y~ N~ fQ QrJ s• 4VQ~ oZ/; S Y ~ t ~~. ~6~, z` r ~~E o d'. X04 _~ N~ r~ 0~_ ~V ~~ ., .~ W ,• N Z 25A-73 ~ p I I I i '~~ ~ ,F ~ ~ ~ i u ~, _._ iO - ~ . ~ ~ \ ~ Q A C~ ° O _ ~ ~~ ~~' . • ~-~' o d ,~ :~~~1 ' ~ - .~ . - • - .~r i• I o.. t ..~ -'. ~ ~•. ~~ Q ~ 1 a~ II . / / \1 .~' \ i ~•~ Q O 3 25A-74 • ~ ~ ~ -~..' j 1. `! ~ _ ~ ' `~ ~ ~ I t .. 4 ~!, g. _ ~~ _ ~ - J ,~. , ,~ \, ~ 4 ~ ~ Y ~ ~ ~ ~ ~ .° . ~ QQ Z~ O ~ ~; ~ _ ~ ~ cn 0~ a~ N ~~/~b' b~~ N / r e..h~r~r.ia• 1 r• - :4;;~.ifi:• - _ _ ~ iii" ;: .. ~ ~ ~ ~ :.~~ iii. ~. ' .~ # ~ ~ ~ ' i jai' ~ ~.-_ ~~~ ,~ _ ~ ~ .~ ~~.~ ~ ~- ~~~ ,. ~s l ~- ~ ~ ~ ~. _ ~ ~--- ~ i .. . .. ,. - . %~~:~ . ~ ,~.,^,r.~ ~ ~~ ~ ~ ~r~YYd (~ Z ~~ ?~ t~- t ~ ~° .~ ~- >, a~ ._. ~.. .~ ~a~~ ~- a. ~ ~-~ ~~-'° Y... ~~ , -~~~~ :~~ ~ . ~~ ~ t R ~ ~~ ~ z ~"' ~ _ ~ 25A-75 . -yz~ ~-^~ '~ - - ~ . ' - s ~ - -. t ~~ :- _ - •~~ "~! . - - V ` - ~ ~_ - ~~ . - .. - ~- ~ .' . '. - _ - _- - ~ .. - - - -- _ . i - •, - . ~ _ _ ~ - - . ,•: • - - -- ~. - - 1 ~~ . . ~~ o~~° ~ ,~ C;AMp. ~~ ~~ ~ w. sue- 25A-76 Exhibit "B" REQUEST FOR PROPOSALS RFP 07-085-PRCSA FOR A CARNIVAL PROMOTER TO PROVIDE CARNIVALS AT CITY OWNED PARKS KEY RFP DATES: Issue Date: October 18, 2007 Pre-proposal Conference: October 25, 2007 Proposal Due Date: November 9, 2007 25A-78 REQUEST FOR PROPOSAL Notice is hereby given that sealed proposals will be received for EIGHT (8) CARNIVALS TO BE PROVIDED AT SPECIFIED CITY OWNED PARKS per the attached specifications, at the Parks, Recreation and Community Services Agency, Budget and Accounting Section, 888 W. Santa Ana Blvd. 2°d Floor, Santa Ana, California, until 5:00 P.M., FRIDAY, NOVEMBER 9, 2007. If further information is needed, contact Robert Carroll, via email at rcarroll@ci.santa-ana.ca.us, or phone at (714) 571-4218. MAILED proposals should be addressed as follows: Parks, Recreation and Community Services Agency Budget and Accounting Section M-23 P.O. Box 1988 Santa Ana, CA 92702 Attn: Robert Carroll or delivery by hand or courier to: Parks, Recreation and Community Services Agency Budget and Accounting Section M-23 888 W. Santa Ana Blvd. 2°d Floor Santa Ana, CA 92701 Attn: Robert Carroll It is the responsibility of the proposer to see that any proposal submitted shall have sufficient time to be received by the Budget and Accounting Section prior to proposal due date and time. Late. proposals will be returned to the vendor unopened. The receiving time in the Budget and Accounting Section will be the governing time for acceptability of proposals. Telegraphic, telephonic and facsimile proposals will not be accepted. 25~--79 I. GENERAL A. RFP PROCESS AND GENERAL TERMS 1. PROPOSAL SUBMISSIONS Proposals must be submitted to the Budget and Accounting Section in a sealed envelope showing on the outside, the name of the bidder, RFP NO.07-085-PRCSA, and the proposal due date and time. All proposals must be signed by an authorized representative of the vendor. 2. PROPOSAL WITHDRAWAL Proposals may be withdrawn by written request received before the hour set for the opening. After that time, the vendor may not withdraw proposals for a period of ninety (90) days from the date of the opening. 3. LATE PROPOSALS It is the responsibility of the vendor to see that any proposal submitted shall have sufficient time to be received by the Budget and Accounting Section prior to the proposal due date and time. Santa Ana Parks, Recreation and Community Services Agency shall not be responsible for proposals lost or delayed in the mail. Late proposals will be returned to the vendor unopened. 4. REQUIRED DOCUMENTS Vendor must return the following completed documents with their proposal: • Detailed proposal of services in accordance with the specifications detailed in Section IV. Proposal should take into consideration the evaluation criteria included in Section III and should not to exceed 10 pages. • Signed proposal form (Section V); • A letter or printout of vendor's safety related incidents from insurance company, current or previous, spanning the past three (3) years (Section VI); • Completed vendor's references sheet (Section VI); • A resume or summary detailing vendor's qualifications, accomplishments, and membership in any professional and/or industry organizations; • A representative sample of photos of vendor's past events and/or vendor's equipment; • A list of ride equipment owned, used and/or operated in vendors events, with description and age of all rides; • Completed Proposal Summary and Deviations from Specifications (Section VII) • Any other information the vendor may choose to submit. • Attachments A, B, and C are for reference only, but will be required after the contract is awarded to the successful vendor. Vendor must submit one original and eight photocopies of each proposal offered. 5. RIGHTS RESERVED The right is reserved by the City of Santa Ana to reject any or all proposals or to waive any informality or technical defect in a proposal. 3 25A-80 6. LICENSE AGREEMENT Successful vendor(s) will be required to enter into a License Agreement with the City of Santa Ana. The City reserves the right to enter into an agreement with said License Agreement with anv, all, or none of the vendors for aone-year period, with the option of extending the License Agreement for two additional one-year terms. 7. SELL OR ASSIGN The successful vendor shall not have the right to sell, assign, or transfer any obligations resulting from this proposal without the specific written consent of the City. 8. LOCAL SALES TAX CONSIDERATION In accordance with the Santa Ana Municipal Code, a one percent (1%) preference will be applied to all proposals for taxable goods submitted by suppliers located within the City limits of Santa Ana. 9. RECEIVING TIME The receiving time in the Budget and Accounting Section will be the governing time for acceptability of proposals. Telegraphic, telephonic and facsimile proposals will not be accepted. 10. COMPLIANCE WITH LAWS All proposals shall comply with current federal, state, and other laws relative thereto. Vendor further agrees that the services proposed comply with all applicable Federal and State Occupational Safety and Health laws, standards for regulations, and that vendor will indemnify and hold the City harmless for any failure to so conform. 1 1. REFERENCE TO SUCCESSFUL VENDOR The terms vendor, supplier, proposer, or contractor may be used interchangeably in these specifications and shall refer exclusively to the vendor(s) with whom the City enters into contract as a result of this request for proposal. 12. INQUIRIES Refer inquiries in writing via email to Robert Carroll, rcarroll(a~ci.santa-ana.ca.us. 13. AWARD OF BASE PROPOSAL OR ALTERNATE PROPOSAL The City of Santa Ana reserves the right to award either the Base Proposal or any Alternate Proposals offered, whichever is in the best interest of the City. 14. RIGHTS RESERVED The City reserves the right to contract with anv, all, or none of the carnival vendors who submit base proposals and/or alternate proposals. 15. E-MAIL COMMUNICATIONS To facilitate the RFP process, vendors are required to monitor and respond to a-mail requests on a daily basis. 4 25A-81 16. PRE-PROPOSAL CONFERENCE A pre-proposal conference will be held on Thursday, October 25 at 1:30 p.m. in the 2°d Floor Lazge Conference Room of Santa Ana Parks, Recreation and Community Services Agency, 888 W. Santa Ana Blvd., Santa Ana, CA. Please RSVP to Robert Carroll, (714) 571-4218, by Monday, October 22, 2007. All proposers aze strongly encouraged to attend. II. SCOPE The City of Santa Ana is requesting proposals from carnival vendor(s) to conduct eight (8) carnivals on City-owned pazk property during the period of March through October 2008 as specified in the table below. A map of each pazk with the general event area highlighted is attached to this RFP for applicant's reference. Exact locations for carnival rides and equipment will be identified at the pre-event meeting. Park Site Venue/License Fee Maximum Size/Scale of Event 1 Jerome Park Lazge/$7,000 Up to 16 carnival rides, 12 game booths, 8 food* March 28-30 booths and/or information booths. No live Fri-Sun entertainment 2 Cesaz Chavez/ SmalU$4,000 Up to 14 carnival rides, 12 game booths, 8 food* Campesino Pazk and/or information booths. No live April 18-20 entertainment Fri-Sun 3 Centennial Park Lazge/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* May 23-26 and/or information booths. No live entertainment Fri-Mon 4 Jerome Pazk Lazge/$7,000 Up to 16 carnival rides, 12 game booths, 8 food* July 3-6 and/or information booths. No live entertainment Thurs-Sun 5 El Salvador Park Small/$4,000 Up to 15 carnival rides, 12 game booths, 8 food* August 22-24 and/or information booths. No live entertainment Fri-Sun 6 Madison Park Lazge/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* Aug. 29- Sept. 1 and/or information booths. No live Fri-Mon entertainment 7 Rosita Pazk Small/$4,000 Up to 14 carnival rides, 12 game booths, 8 food* September 19-21 and/or information booths. No live entertainment Fri-Sun 8 Centennial Park Lazge/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* October 10-12 and/or information booths. No live entertainment Fri-Sun Note: One booth is equal to one 10x10 canopy area. A maximum of five cooking booths will be allowed. 5 25A-82 EVALUATION OF PROPOSALS Vendors will be evaluated based on their ability to conduct successful events in both the small carnival and large carnival categories. For the purposes of this RFP, carnivals conducted at Cesar Chavez/Campesino, Rosita, and El Salvador parks are considered small carnivals. Carnivals conducted at Centennial, Jerome, and Madison parks are considered large carnivals. An evaluation committee will recommend the most qualified vendors for each the small and large carnival event categories. A committee of City staff representing various departments will evaluate all proposals based on the following criteria: Equipment, Capability and Functionality of Vendor 2p% 1. Equipment and related safety specifications of equipment to be used. 2. Training and safety precautions taken to ensure that attractions and/or staff pose no danger to event participants or the general public. 3. Vendor's financial ability to provide a safe, enjoyable carnival while meeting all specifications. Level of Service and Support 20% 1. Responsiveness and thoroughness of proposal. 2. Ability to accommodate proposed carnival dates and locations. Experience of Firm and Personnel 20% 1. All carnival personnel, including operators, proposed to work at carnivals and the qualifications of those individuals. 2. Experience and technical expertise of personnel, including operators, with implementing carnivals and special events in other cities. Past Performances 40% 1. Past record of performance on contracts with other cities, governmental agencies or public bodies, including such factors as reliability, park damage prevention and compliance with contract terms and conditions. 2. The vendor's capacity to perform the work within time specifications. 3. Acceptable, verifiable references and site reviews, and a three (3) year summation of vendor's record of carnival related incidents from vendor's insurance company. FOLLOW-UP OF EVALUATION PROCESS BY VENDOR Vendors may follow up on the evaluation of the proposals by contacting Robert Carroll, via email at rcarroll@ci.santa-ana.ca.us or by phone at (714) 571-4218. REVIEW EVALUATION RESULTS AND AWARD After award, the evaluations will become public record. Interested vendors may submit a request in writing, along with aself-addressed stamped envelope to receive results of the evaluation. Submit your request to Budget and Accounting Section M-23, Parks, Recreation and Community Services Agency, 888 W. Santa Ana Blvd. 2°a Floor, Santa Ana, CA 92701. 6 25A-83 IV. SPECIFICATIONS Vendor must submit a detailed proposal of the services offered in response to specifications below. Proposal must include a detailed response that addresses the specifications and should not to exceed 10 pages. Vendor must also return all requested documents with their proposal as specified in Item I.4. of this document. Applicants are asked to use 12 point Times New Roman font. A. VENDOR'S RESPONSIBILITIES 1. PROOF OF INSURANCE -Upon selection, vendor must be able to provide proof of $1,000,000 general liability insurance for each event a minimum of ten (10) business days before the event. The insurance certificate must name the "City of Santa Ana, its Officers, Agents and Employees, as additionally insured. It must also contain the following clauses: 1) a thirty day written Notice of Cancelation will be provided to the additional insured; 2) insured's coverage will apply on a primary /non-contributory basis to the additional insured; and 3) the insurance will contain a separation of insureds clause. If the certificate of insurance is in the name of the carnival operator it shall include the carnival promoter as additionally insured. 2. REQUIRED CLEANUP/DAMAGE DEPOSIT -Upon selection, vendor 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 vendor at the conclusion of each carnival. Should costs incurred by the vendor (as stated above) be greater than the total deposit, the vendor will be invoiced for the balance due. The vendor will be required to submit the balance due 10 days prior to conducting another event. The vendor 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. The vendor will not be allowed to start an event if there is an unpaid balance due. 3. CLEANUP DURING AND AFTER THE EVENT -The vendor agrees that they have 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 vendor employee arrives at the park site for set up until the last vendor employee leaves the park. Furthermore, the vendor agrees to be responsible for cleanup of the event site and the surrounding areas after the event. Vendor agrees to arrange for trash pick-up in the parking lots and surrounding neighborhood after each day at vendor's expense. Persons performing clean-up shall be employees or subcontractors of the vendor. Failure to provide continuous clean-up will result in dispatching City staff to perform this work at the vendor's expense or the City hiring a private contractor to perform the work at vendor's expense plus a $500 penalty for each day the vendor fails to perform this responsibility. 7 25A-84 4. STREET SWEEPING -If street sweeping is necessary due to trash left from pedestrian and vehicular traffic and the vendor fails to perform as required in Item V.A.3. of this document, 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 vendor's expense. Furthermore, the vendor agrees to pay a $500 penalty for failure to perform this responsibility. 5. DUMPSTERS -Vendor 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 the by 3:00 p.m. of the second day following the conclusion of the event. Vendor agrees to pay a penalty of $500 per day that the dumpsters are not provided and removed as indicated. 6. REQUIRED PLOT PLAN AND PLAN CHECK PROCESS -Vendor 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, etc. Vendor should not only indicate number of rides on the plot plan, but should indicate 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. Vendor 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. Vendor agrees to pay a $500 penalty per day for each day late in providing the plot plan. 7. CARNIVAL LICENSE FEE- Vendor understands and agrees to pay the required carnival license fee for each event. Checks shall be made payable to "The City of Santa Ana". The license fee is $4,000 for carnivals conducted at El Salvador, Rosita, and Campesino/Cesar Chavez parks, and $7,000 for carnivals conducted at Jerome, Centennial, and Madison parks. 8. FIRE AND ELECTRICAL INSPECTION -Ten (10) business days prior to the event, the vendor must 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. Vendor agrees to pay a $500 penalty per day for each day late in scheduling appointments as indicated. No more than five (5) cooking booths will be allowed. Actual event rules and regulations will be provided to the vendor at plan check and copies shall be provided to each booth operator by the vendor. Vendor must provide all event electricity. Hookups to park electrical outlets will not be permitted. Vendor agrees to pay a $500 penalty per day for each violation. 9. O.C. HEALTH DEPARTMENT REQUIREMENTS -Vendor 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 8 25A-85 allowed to operate for the duration of the event during event hours only. To obtain food permits and schedule booth inspections, vendor must contact the Orange County Health Department at (714) 667-3610. Vendor agrees to pay a $500 penalty per day for each day late in securing food permits and food booth inspections. Furthermore, the vendor agrees to pay a $500 penalty per day for each food booth discovered operating without prior approval of the O.C. Heath 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 prepazation use. Vendor agrees to pay a $500 penalty per day for each violation. 10. REQUIRED PERMIT FROM BUSINESS LICENSE OFFICE FOR BOOTH VENDORS (BUSINESSES AND/OR NON-PROFIT ORGANIZATIONS) - Carnival 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 carnival promoter can collect all the necessary information and fees from the vendors and submit the entire packet to the Business License Office a minimum of five (5) days prior to the commencement of the event. Vendor agrees to 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 aOne-Day Peddler/Solicitor license. Non-Profit Organizations aze required to obtain aFee-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. Vendor agrees to pay a $500 penalty per day for each booth operating without a City Business License. 11. CONTACT WITH NEIGHBORHOOD ORGANIZATIONS -Vendor 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 vendor for a particulaz neighborhood upon request. Vendor must submit copy of signed letter, on the organization's letterhead, to the Santa Ana Police Department and to the Pazks, 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. Vendor agrees to pay a $500 penalty for each violation of this section. 12. CONTACT WITH NEIGHBORHOOD RESIDENTS - At least 72 hours prior to each carnival event, vendors 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. Vendor agrees to pay a $500 penalty for each violation of this section. 9 25A-86 13. CONTACT WITH BUSINESS ORGANIZATIONS -Vendor 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. Vendor agrees to pay a $500 penalty for each violation of this section. 14. 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. Vendor must 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 often (10) business days prior to the event. Vendor agrees to pay a $500 penalty per day for each violation of this section. Furthermore, if it is discovered that the security deployment is less than the City's mandated level of security the City may elect to dispatch, at the vendor's expense SAPD and/or Park Ranger's to bring the security levels up to the agreed upon level. 15. 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. Vendor agrees to pay a $500 penalty for failure to perform this responsibility. 16. POLICE DEPARTMENT REQUIREMENTS -The security company to be used by the vendor must be pre-approved by the Santa Ana Police Department. Vendor 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. io 25A-87 Guards will be required to produce their guazd cazd on demand during the event if requested by the Police Officers assigned to the carnival. If the guard fails to provide said cazd he shall be immediately replaced by the contracted guard company with an officer who has a guard card. Vendor must also have a minimum of two (2) Santa Ana Police Department Officers present at all carnivals during agreed upon hours of event operation. If the number of officers required exceeds two officers, vendor shall not be responsible for the payment of costs for more than four officers. Vendor will also provide the Police Department with a booth at these events. The Police Department will coordinate necessary police assistance for the event at vendors' expense. 17. ADDITIONAL POLICE/FIRE/PARK PERSONNEL -Vendor agrees that if a disturbance occurs due to the operations of the carnival and additional Police, Fire or Parks personnel assistance is required, vendor will pay those additional expenses. 18. PRE-EVENT AND POST EVENT INSPECTIONS WITH PARK PERSONNEL -Vendor must arrange to meet with the Pazk 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. Apre-inspection meeting must occur on the Wednesday prior to the carnival event. Vendor must bring the proposed plot plan to this meeting. Vendor 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 day following the carnival activity at 2:00 pm., unless otherwise stipulated by representatives of the Santa Ana Police 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. The vendor understands and 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 vendor to set and attend these meetings will result in the Pazk Supervisor performing the walk through of the park site without the vendor and all conditions recorded by the Park Supervisor shall be deemed as accurate and final. 19. PROTECTION OF FIELD AND TURF -Vendor shall be responsible for placing the carnival equipment in a way as not to cause damage to the pazk turf or irrigation system (sprinkler heads, etc). Such precautions may include painting azound or covering the sprinkler heads with a "metal disk", or whatever efforts aze necessary to protect the irrigation equipment at vendor'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, vendor 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 carnival promoter. 11 25A-88 20. 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. There will be a $1,000 fee per day for equipment arriving earlier or left in the park later than the above stated times. 21. 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. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Vendor agrees to pay a $500 penalty per day for each violation of this section. 22. PORTABLE RESTROOMS -Vendor 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. Vendor 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. 23. SALE, ADVERTISING AND CONSUMPTION OF BEER, ALCOHOL OR CIGARETTES - Vendor 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. Vendor agrees to pay a $500 penalty per day for each violation of this section. 24. NATURE OF CARNIVAL GAMES AND/OR ACTIVITIES -Vendor understands and 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. Vendor 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 decision to remove a game will be final. 25. SIZE OF CARNIVAL RIDES -Vendors 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 vendors 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. 12 25A-89 26. EVENT STAFF PARKING -Vendor understands and agrees that there shall be no overnight camping or privately owned vehicles for the purpose of overnight camping at the park site. All privately owned 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. The Vendor is permitted one vehicle within the park site for security personnel and one vehicle for office purposes. Vendor agrees to pay a $500 penalty per day for each violation of this section. 27. DELIVERIES OF SUPPLIES TO VENDORS -The Vendor 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. 28. PERSONNEL TO PLACE AND COLLECT TRAFFIC BARRICADING EQUIPMENT - Vendor 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 vendor to place and/or collect traffic barricades and/or equipment will result in City staff or a separate contractor completing this work at the vendor's expense. 29. RENTAL OF TRAFFIC CONTROL EQUIPMENT -Vendor shall be required to pay for the rental of specific traffic control equipment, as required by the Police Department. 30. PERSONNEL PARKING -Vendors shall instruct all personnel to park in areas indicated on the approved plot plan. Vendor 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. 31. EVENT PARKING AND REQUIRED SIGNAGE -Vendor shall be required to post signs 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. Vendor agrees to pay a $500 penalty for each violation of this section. 32. PERSONNEL AT ENTRANCES TO NEIGHBORHOOD -Vendor 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. Vendor agrees to pay a $500 penalty per day for each violation of this section. 33. 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. Vendor will be informed of the number of additional officers needed at the pre- event meeting described in Item V.A.18. 13 25A-90 The Police Department will arrange the necessary police staffing for the event. The vendor 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 vendor will be responsible for a minimum of 4 hours of over-time costs. 14 25A-91 V. PROPOSAL FORM Responses to this Request for Proposal are due at 5:00 p.m. FRIDAY, NOVEMBER 9, 2007. The undersigned Vendor agrees to provide carnival services at City-owned parks in accordance with the specifications. UWe have stated herein the services and fees that Uwe will furnish and deliver as specified. Award shall be based upon the evaluation criteria included in Section III. Where there is a discrepancy between words and figures, WORDS SHALL GOVERN. The City of Santa Ana reserves the right to cancel any license agreement in the event that terms under which carnival vendor is contracted are violated. Name of Vendor (Person, Firm, Corp.) Signature of Authorized Rep. Address Address Telephone Number Name and Title (Please Print) Date Fax Number 15 25A-92 VI. VENDOR'S REFERENCES This sheet must be completed in full and returned with vendor's proposal. List and describe fully the last three contracts performed by your firm, which demonstrate your ability to provide carnival service in accordance with the specifications in Section IV. Attach additional pages if necessary. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Also, please attach a letter or printout from vendor's insurance provider(s), current and/or prior, who have provided your business with insurance over the last three (3) years, detailing any claims that have been filed in connection with vendor's carnival operations. Reference No. 1 Customer Name: Contact Individual: Address: Contract Amount: Phone Number: Year: Description of equipment and services provided: Reference No. 2 Customer Name: Contact Individual: Address: Contract Amount: Phone Number: Year: Description of equipment and services provided: Reference No. 3 Customer Name: Contact Individual: Address: Contract Amount: Phone Number: Year: Description of equipment and services provided: 16 25A-93 VII. Proposal Summary and Deviations from Specifications Please check the first column for each event that you are available to conduct. For each event, please list the carnival operator you are proposing to use and any deviations from specifications. If necessary, please include additional pages. Vendors will not be allowed to change carnival operators once the proposal has been submitted without approval of City. Intent to Park Site Proposed Other Deviations from Specifications Provide Carnival Please cite item number and summarize how O erator s ecification deviates Jerome Park March 28-30 Fri-Sun Cesar Chavez/ Campesino Park April 18-20 Fri-Sun Centennial Park May 23-26 Fri-Mon Jerome Park July 3-6 Thurs-Sun El Salvador Park August 22-24 Fri-Sun Madison Park Aug. 29- Sept. 1 Fri-Mon Rosita Park September 19-21 Fri-Sun Centennial Park October 10-12 Fri-Sun 17 25A-94 ATTACHMENT "A" CERTIFICATION OF NON-DISCRIMINATION BY CONSULTANTS As suppliers of goods or services to the City of Santa Ana, the Firm listed below certifies that it does not discriminate in its employment with regard to race, color, religion, sex, or national origin; that it is in compliance with all federal, state and local directives and executive orders regarding non- discrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. WE AGREE SPECIFICALLY: To take affirmative steps to hire minority employees with the company. 2. To establish or observe employment policies within affirmative promotion opportunities for minority persons at all job levels. 3. To communicate this policy to all persons concerned, including all company employees, outside recruiting services, especially those servicing minority communities, and to the minority communities at large. FIRM TITLE OF PERSON SIGNING SIGNATURE DATE Please include any additional information available regarding equal opportunity employment programs now in effect within your company. is 25A-95 ATTACHMENT "B" SAMPLE ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the name insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to Name Insured the endorsement form as part of Countersigned by 19 25A-96 ATTACHMENT "C" NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this day of , 2008 by (hereinafter "Operator"), 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 October 18, 2007, the City issued a Request For Proposals for carnival operators to provide carnivals at specified City owned parks. Operator submitted a proposal to provide carnival services Operator represents that Operator is able and willing to provide carnival services as specified in the Request for Proposals to the City. In undertaking the performance of this Agreement, Operator represents that it is knowledgeable in its field and that any services performed by Operator under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival operator 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 park ("Park") within its boundaries: located at., Santa Ana. City hereby grants to the Operator anon-exclusive, revocable user agreement to encroach upon the specific areas of the above stated Park ("Carnival Areas") delineated in the rendering of the Park attached hereto Exhibit "", for the purpose of providing a carnival ("Carnival Event") and for no other purpose. Operator shall provide 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 Operator is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in their entirety for public purposes to which they presently are and may, at the option of the City, be devoted. Operator 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) Operator 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 Operator's use and occupancy of the Carnival Areas within the Parks shall be limited solely to the permission for such use and occupancy granted herein. 20 25A-97 (D) As a covenant to this Agreement, Operator agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request For Proposals, RFP ,issue date (hereinafter "RFP") attached hereto as Exhibit "" and incorporated herein by reference. Any failure to adhere to and comply with the terms, conditions and responsibilities enumerated in the Request for Proposal, 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 Operator alternative dates for the conducting of the Carnival Event within the term of this Agreement. If Operator desires to obtain alternative dates as provided in this paragraph, Operator must timely request the same from City. 2. SCOPE OF SERVICES Operator shall provide at the Park identified in Section 3 hereof a full service Carnival Event complete with the rides, equipment and services as set forth in the RFP (Exhibit) to this Agreement. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of the Carnival Event as set forth below, Operator shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Operator agrees to pay the City and City agrees to accept from Operator the following fees per Carnival Event. Parl~."C`n'i~a;I~~ates;~~ .E ~` In addition to the fees set forth herein, Operator 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 hereto. All fees and deposits shall be due and payable as set forth in the RFP. The vendor agrees that failure to pay the cleanup/damage deposit and/or any other outstanding balances and fees a minimum often (10) 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 any unpaid balance due. 4. SECURITY DEPOSIT Contemporaneously with the execution of this Agreement, Operator 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 Operator of all the terms, covenants, and conditions of this Agreement to be kept and performed by Operator during the Term of this Agreement, or any extension thereof, and including the removal of Operator's facilities as set forth herein. Assuming successful completion of all terms and conditions of this Agreement, including those within 21 25A-98 the RFP, the security deposit and any unused fees shall be returned within 60 days of the final carnival event provided for herein. 5. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2008 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 Operator 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. Operator 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. Operator shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Operator'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 Operator'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 Operator 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 anemployer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Operator performs the services which are the subject matter of this Agreement; however, the services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services. Operator 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. 22 25A-99 10. INSURANCE Prior to undertaking performance of any work relative to a Carnival Event under this Agreement, Operator shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Commercial General Liability Insurance. Operator shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of Operator's operations in the performance of this Agreement, 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 there from, and property damage, in the total amount of $5,000,000.00 per occurrence. Operator shall supply City with a fully executed additional insured endorsement in substantially the form attached as Exhibit B to the RFP, Exhibit B hereto, upon execution of this Agreement and shall be approved in form by the City Attorney. B. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000.00 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Operator, if Operator 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, Operator agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000.00 per accident. D. If Operator is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000.00 per claim. E. The following requirements apply to the insurance to be provided by Operator pursuant to this section: i. Operator 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. " 23 25A-100 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. F. If Operator 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. Operator agrees to indemnify the City for any work performed prior to approval of insurance by the City. 11. INDEMNIFICATION Operator agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Operator or its 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 Operator further agrees to 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. Operator 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 Operator's performance of this Agreement or any failure to comply with any of Operator's obligations contained in this Agreement by Operator, its officers, agents or employees. 12. TRASHIUTILITIES/CLEANUP Operator 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. Operator 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 paragraphs A2 - A4 of 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 paragraph A9 of the RFP, Operator is 24 25A-101 responsible for supplying all utilities to be used during the Carnival Events, including supplying the required portable toilets as specified in the RFP. 13. HAZARDOUS MATERIALS Operator represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and it 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. Operator 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 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 Operator shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Operator 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 Operator 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 Operator. 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. 25 25A-102 17. LIENS Operator 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 Operator, or any person claiming under Operator. 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 Operator's judgment, Operator 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 Operator 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 upcoming scheduled carnival, City may terminate this Agreement upon thirty (30) written notice to Operator. In the event of condemnation, unless Operator 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 Operator 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 OPERATOR Should Operator 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 OPERATOR The insolvency of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Operator, or the making of a general assignment for the benefit of creditors by Operator, 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. 26 25A-103 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 Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Operator either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Operator 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 Telefacsimile (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 27 25A-104 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647-6515 To Operator: A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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 Operator shall, at Operator'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 Operator's use and occupancy of the Park and Carnival Area and Operator'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 Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Operator and shall be considered grounds for termination of this Agreement by City. Operator will obtain all permits and other governmental approvals, required in connection with Operator's activities hereunder, and update such permits/approvals as necessary. 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Operator, 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 28 25A-105 instrument signed by the City and by an authorized representative of Operator. 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 Operator, Operator 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 Operators retained by City. 30. NON-DISCRIMINATION Operator 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. Operator 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 and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. 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 Operator 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. Operator 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. 29 25A-106 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. CITY OF SANTA ANA ATTEST: DAVID N. REAM City Manager PATRICIA E. HEALY Clerk of the Council 30 25A-107 OPERATOR: By: (Print Name)_ (Title) Tax I.D. # RECOMMENDED FOR APPROVAL: Gerardo Mouet Executive Director of the Parks Recreation and Community Services Agency APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Joseph Straka Assistant City Attorney 31 25A-108 ADDENDUM NO.1 REQUEST FOR PROPOSAL FOR A CARNIVAL PROMOTER TO PROVIDE CARNIVALS AT CITY OWNED PARKS RFP REFERENCE NO: 07-085 PRCSA DATE DUE: NOVEMBER 9, 2007 Notice is hereby given that the City of Santa Ana, Parks, Recreation and Community Services Agency has made certain modifications, additions, and/or deletions, in the specifications to RFP NO: 07-085 PRCSA. This addendum shall become a part of the original Request for Proposal due by 5:00 p.m. on November 9, 2007. This addendum is provided in response to questions asked at the pre-proposal conference conducted on October 25. 1. Page 5, Section II. Please clarify the number of food booths and information booths allowed. Up to 20 food and information booths will be allowed. Of these 20 booths, up to six 10 x 10 booths can be cooking booths (or up to three 10 x 20). The remainder can be non-profit, commercial or sponsorship booths. Please include in you plot plan what goods and services each of these booths will offer and the dimension of each booth. The City must approve all goods sold at commercial booths. Massage booths are not allowable. 2. Page 7, Section IV. A. 2, first paragraph shall be revised as follows: REQUIRED CLEANUP/DAMAGE DEPOSIT -Upon selection, vendor must provide a $5,000 refundable damage/clean-up deposit to the City of Santa Ana, Parks, Recreation and Community Services Agency a minimum often (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. Anv remaining monies from the deposit will be refunded to vendor at the conclusion of :.~~ ~~the carnival season. Should costs incurred by the vendor (as stated above) be greater than the total deposit, the ~ tdor will be invoiced for the balance due. The vendor will he required to submit the balance duc 10 days prior to conducting another event. Deposit balance sha11'r~rriai~ at ffi~;000 hroughout the term of the agreemem 3. Page 8, Section IV. A. 8, second paragraph shall be revised as follows: No more than frve-(-53 six (6) cooking booths will be allowed. Actual event rules and regulations will be provided to the vendor at plan check and copies shall be provided to each booth operator by the vendor. Vendor must provide all event electricity. Hookups to park electrical outlets will not be permitted. Vendor agrees to pay a $500 penalty per day for each violation. 25A-109 4. Page 11, Section IV. A. 18, second paragraph shall be revised as follows: A post-inspection meeting shall be completed on the ~crAx~d day following the carnival activity at 2:00 pm., unless otherwise stipulated by representatives of the Santa Ana Police 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. 5. Page 12, Section IV. A. 21, shall be revised as follows: 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'`l~'londay night. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Vendor agrees to pay a $500 penalty per day for each violation of this section. 5. Please describe where the Carnival at Centennial Park will take place. Please find attached park maps that describe all carnival boundaries. Should you have any questions or require additional information, please contact Robert Carroll at your convenience, (714) 571-4218. Date Mailed: November 1, 2007. 2 25A-110 NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this day of January, 2008 by "O" Entertainment, Inc., (hereinafter "Operator"), 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 October 18, 2007, the City issued a Request for Proposals, No. 07-085-PRCSA, seeking carnival operators to provide carnivals at specified City owned parks. Operator submitted a proposal to provide carnival services. Operator represents that Operator is able and willing to provide carnival services to the City as specified in the Request for Proposals No. 07-085-PRCSA and any addendums thereto. In undertaking the performance of this Agreement, Operator represents that it is knowledgeable in its field and that any services performed by Operator under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival operator 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 2115 W. McFadden Ave., Santa Ana. City hereby grants to the Operator anon-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. Operator 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 Operator is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in their entirety for public purposes to which they presently are and may, at the option of the City, be devoted. Operator 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) Operator 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 Operator's use and occupancy of the Carnival Areas within the Parks shall be limited solely to the permission for such use and occupancy granted herein. 25A-111 (D) As a covenant to this Agreement, Operator agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request for Proposals, RFP 07- 085-PRCSA, issue date October 18, 2007, 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. (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 Operator alternative dates for the conducting of the Carnival Events within the term of this Agreement. If Operator desires to obtain alternative dates as provided in this paragraph, Operator must timely request the same from City. 2. SCOPE OF SERVICES Operator 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. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of each Carnival as set forth below, Operator shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Operator agrees to pay the City and City agrees to accept from Operator the following fees per Carnival Event. Park/ Carnival Dates Fee Jerome Park April 11-13, 2008 $7,000.00 In addition to the fees set forth herein, Operator 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 often (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, Operator shall deposit with City the additional sum of $5,000.00 as a security deposit. The deposit shall be held by City, 2 25A-112 without liability for interest, as security for the faithful performance by Operator of all the terms, covenants, and conditions of this Agreement to be kept and performed by Operator during the Term of this Agreement, or any extension thereof, and including the removal of Operator'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, 2008 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 Operator 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. Operator 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. Operator shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Operator'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 Operator'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 Operator 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 anemployer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Operator performs the services which are the subject matter of this Agreement; however, the 25A-113 services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services. Operator 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, Operator shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Commercial General Liability Insurance. Operator shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) and 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 Operator's operations in the performance of this Agreement, 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. Operator shall supply City with a fully executed additional insured endorsement in substantially the form attached as Exhibit B to the RFP, Exhibit B hereto, upon execution of this Agreement and shall be approved in form by the City Attorney. B. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Operator, if Operator 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, Operator agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. D. If Operator is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000 per claim. E. The following requirements apply to the insurance to be provided by Operator pursuant to this section: i. Operator 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. 4 25A-114 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 operator it shall include the name of the carnival promoter as additionally insured. F. If Operator 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. Operator agrees to indemnify the City for any work performed prior to approval of insurance by the City. 11. INDEMNIFICATION Operator agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Operator or its 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 Operator further agrees to 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. Operator 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 25A-115 connection with Operator's performance of this Agreement or any failure to comply with any of Operator's obligations contained in this Agreement by Operator, its officers, agents or employees. 12. TRASH/UTILITIES/CLEANUP Operator 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. Operator 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, Operator 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 Operator represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and it 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. Operator 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 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 Operator shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Operator 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 Operator shall not use or permit the use of the Park or Carnival Areas for any unlawful purpose. 25A-116 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 Operator. 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. 17. LIENS Operator 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 Operator, or any person claiming under Operator. 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 Operator's judgment, Operator 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 Operator 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) written notice to Operator. In the event of condemnation, unless Operator 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 Operator 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. 25A-117 20. DEFAULT BY OPERATOR Should Operator 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 OPERATOR The insolvency of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Operator, or the making of a general assignment for the benefit of creditors by Operator, 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 Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Operator either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Operator 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 25A-118 Telefacsimile (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 Telefacsimile (714) 647-6515 To Operator: O Entertainment, Inc. Attn: Roy Hassett 539 East Bixby Road, Suite 59 Long Beach, CA 90807 Telephone (562) 495-5959 Telefacsimile (562) 495-5961 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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. 25A-119 27. COMPLIANCE WITH LAWS Operator shall, at Operator'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 Operator's use and occupancy of the Park and Carnival Area and Operator'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 Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Operator and shall be considered grounds for termination of this Agreement by City. Operator will obtain all permits and other governmental approvals, required in connection with Operator's activities hereunder, and update such permits/approvals as necessary. 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Operator, 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 Operator. 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 Operator, Operator 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 Operators retained by City. 30. NON-DISCRIMINATION Operator 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. Operator 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 and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. This Agreement has been executed and delivered in the State of California and the 10 25A-120 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 Operator 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. Operator 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. 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. 30. SURVIVAL Terms and conditions of this Agreement, which by their sense and context survive the termination, or expiration of this Agreement, shall so survive 35. 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. 11 25A-121 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA PATRICIA E. HEALY DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Joseph Straka Assistant City Attorney RECOMMENDED FOR APPROVAL: OPERATOR Gerardo Mouet Executive Director of the Parks Recreation and Community Services Agency (NAME) TITLEI Employer ID # or Individual SS # 12 25A-122 AC014I~ CERTtF~G~-TE O~ ~.I~•IBILITY INSURANCE D"'~'~"~°°~Y'"Y' as/it/aoa7 PROmJrsa (425) 954-3386 FAX (425) 451-3716 Arthnr J_ Gallagher Sisk ~eanagement Sez~vices, inc. P.O. Sox 367 7H1$ GER3lFICATE IS ISSUED AS A MATTER OF INFORIIAATION ONLY AND CONFERS NO 131GHTS UPON l7iE CERTIFICATE HOLDER_ THIS C>=RTIFIGA7E DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDE6 RY THE hOLICiESRELOW_ Bellevue, RA 980Q9-0367 INSURERS AFFORDING COVERAGE NAIC # nasu~ED Ghristians~n Ansusements, F.nC. INSURER~I American States insurance Co ~--~-- P. O. 84x 997 INSURER B& Escondido, CA 92033-0997 INSURER C: -!.~_r.r _.._...,...., _~ -". -..... . __ INSURER D: _-_-_ _.~_ INSUREFI E•` nnvcown_cc THE POLIC185 OF INSURANCE LISTED BELOW HAVE BEEN ISSt rFn TO THE WSUHED NAMED ABOVE FOR THE POLICY PER~SD IN6ICATED_ NOTiNITHSTANDlNG ANY REOUIREMENT.l-ERM OR CONDITION OF ANY COKTRACT OR OTHER DOCUMENT Wffii RESPECT TO W HIGH THI$ CERTIFICATE AAAY BE SUED OR MAY PERTAIN, THE RVSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREg1i iS SUBJECT TQ ALL THE TERM, EXCLU$IQpIS AND CQNOR1pNS E1F $LJCH POLICIES. AGGREGATE L]MITS SHOW N MAY HAVE BEEN REDUCED BY PAI] CLAMA.S. ~ M4R O' TYPE OF INSURANCE POLIOY NU116ER POLY ~~ ~~ P~(P~A7gN L1f1t1`S pENERAt Ly161L11ry EACH OGCLIRRENCE S OOMMERCUiL GENERAL LIABILITY paMAQE T~O RENTEO FP111SES.(E.ifcwceprej_... S .,.r CLAIMS MADE ~ OCCUR MED EXP (Any one porsor~ _ x _ ..,_._.. µ PER$pNAL 6 AOY INJURY ~ , OENERALAO(3REpATE S -._.....- . GEN'LA(i{aAECiAYE(1MITAPPLIESPER: PRODUCT'S-COMPlORAG6 S PODGY Jgy~7 LOC AlrroIrlDBU.ELwBILnw 01CB.49116161 04/01/2607 04/41/2008 OoMa1NED slNaLe uMrr X ANYAUTa IEsz~d~xl ~ 1, 400, 60 ALL OWNED AUTOS 90QILY R~Ul1RY g SCHEDULED AUTOS IPa ~~nl A N[RED AllTO$ @ODILY INJUFCY NON-0WNED AUT06 (Pa amdenf~ S PROPERTY DAMAGE . (Per aoodmt) S GARAC~ELLiBiLiTY AUTO ONLY-EAACCIDENi S ANY AUTO ~~.D.I~ EA ACC S AUTOONIY: AGG S - --===BBELlALWt3LLrtY ...-. EACHOGCURIRENOE 6 OCCUR ~ GIRTHS MADE AGiGREGATE $ S CEpUCYIeLE g REr~rmoN S S WORKERS COMPENSA'RON AND WC 5TATlY OTH- Fa1PLOYERS' LIABILlfY ANY PRCPRIETORIPAA7NER/E)~CUTNE E,L.EAp-IACCtOENT S OFFICERIM3dBt3~ EKCLUDEO? EL DISEASE - EA EMPLOYE S >;PC{,IAL Pgbv1~10N5 below EL DISEASE -POLICY LIMIT . S OTHER DGSGRO~YION OF OPERATIONS t LflCAT70Nfi l V~`~ ~ ~ EXCLUfi1DN6 ADDED BY EMOOBBEMEN7/ SPE(:IwL PRgYRj7QN$ The City of Samoa Aaa, its officers, agents, employees, representatives aad volTmteer$ are included as additipaal in$uradet but only as reape4t8 ttLe operation of the nsaled fs-sued per galicy tErma and conditions for the dates June 25, 2007 through July 3, 2607_ City of Santa Ana nttn: GarlB• Tompkirss 688 W_ Santa Ana Blvd-, 8200 Santa Ana, CA 93702 SHbI B h ANY OF THE ABOVE DE9(~BED P4LIGtE@ 8E ¢ANC,ELLEO BEFORE THE EJ(P1RAT18N DATE THEREOF, 7'M6165UING INSURER Wltl )q~p[4q~D PAIL 30 DAYS WRRTEN NOTICE T O THE CERTIIaCATE MOLDER NAMED TO THE LEFT, AVI't{ORQ.EO REPRESENTA7SVE _ - Daye H~•,•,~*+/,70ASiNE I7,e~:~.;=.~ta.'~-- ACORQ 2S (20091(18) FaX' (719) 571-A209 ~IACORD CORPORATION 1988 25A-123 25A-124 FRQM :~-ENTERTAIMENT DEG-17-2bb7 MON 03~1Q Pfd FAX NO. :562495561 Dec. S7 2007 02:BEPM P1 FAX PIO. 407 645 2 10 P. 01 ~~~~~~~ ~~ ~~~J~~~~ PRODUCER: UA1't+ IS9U>rP: 121178007 I.136~!'t:R KALMAN$ON AQ&NCY~ II~TC. a1MPA1'IY; P,D. BOX 940008 lllp~n CKRTAiN UNUSItWRTfERB AT LLOYD'S t LONf?ON MATI'Z,AND, FL 32744-0008 PH; (~ b45-SdOD POL[C'S' NUM~EB: NCMQ6S74 FAX: {407]645.2! ( p Q t~N'I'ERTAiNI1~1T, INC. CFty RO'Y HASSCTl"i' • ••-• ~.~• ~ ~ • ~ ~aR ~ a: ~"~tet7lt3Dt DA'i Lr, 339 E, BIICBY R()AI7~ A 59 05/ZSIZO(}7 ~~ LON©BF.~t~'Yi. CAlaFORNIA 90SIT (BOTH QAYS AT I2:Q1 A.1-$ I.f,}CAt. =41'ANDARI) TiMB) an,a w iv ~rn:rte~r'rnAT Tl~ POI.IGY(J} OF INS!!RA IdS7RD $ELOW HAVE 8 F U~ . Utit NAMED AHOVS t'TttT~ pq,IGY PCRtO1a IItiTpICA't'gd„ 2~T0'I' WIINSTANI)R+Ttt ANY Rt;Q[1IRF+MHNT, TERM(S) OR CONbtI7f)N{$) UP ANY CXINTAACT OR OTHER DOCUMENT WYCN 1t>ctfiPFCT TO WHIQ{ TAIS CfiRT1FICAT>3(3) MAYS t$SUED OR MA,Y PERTA]N. THE WSEIRANCR AFAOACi>~IS t3Y THE POI.fpF,.S A88CRIB8D I~IrREiN IS STJBII3CT' !'O ALL 'THS'TE,RMS, FXCLUS[t]NS+~II+ID/Q1'e (SdATp1'I10NS I)F ~t1GFI Pt~LtC1FaS.I.IMIT:9 OF LIAHIl,ITY SHOWN MAY tfAYE Bl;R RfiDLTCBD BY ANY PAQI CL.ArM9 ~,C1-AIT4I~S ]~AJ~~ ------ ,« r...~a~.~.n,~. S 2.W(~,tAxitln ,Zf OWN[3lt8, G.ANDI.ORD9, A, TENANTS LIlNI7`ED pttApUC'Y'S t1GGIRt?GA'I'R ~.p- PBYi~ONIA1. A AbV'. IN1CIItY: S{~ RETRQ DATta: OS/25/~A06 1;.ACI I c3f3CtlRRt~tC13: S 1,fl00,000.00 FIRQ DAMr~GE (AMY ONE F7R&} $.p. ADDITY(3NA~. TN'SUItEt]tS)~ Tt•IP QTY I'lF SANTA ANA. I'i'3 QFFICt3R8, EMPLOYBISS, ~- AMD tiF.1?~ItE58NI'A7 JfiRG1MG PARK fS/A!~ HE8:E8Y ADDED AB ADDI'I'I{~NAI. INSURED OMI.Y AS TH~R INCt~R~'!' MAY APPCAR AV RT;SFF,Ci'S TC1 TIC OPBRA1iON(9} FERPORItilED HY Tt1E NAMPA Iritgrllti3ri AI+IWOR TT'3 EMPi.UYEf?(S) ONLY "1`~tIS t01' IS RRiI~[ARY ANA NON-CO1~17'8iB[TrURY" I'P gA'CF:(S): MARC(i 28.2008 Tt•RtUUGH MARCH 3Q 2008 LC)CATION: lEROME PARK IN's CITYY OF SAN`I~4 ANA ~Aldt:tNINIA 92701 77ii3 TIFICATR TS 1SStt~3 AS A MATTER OF QVPORMATION {>R~fLY AND CANFIs~LS NO R](3}LTS UPI 1Ht3 CBCt'i'1#~JL'A'CR HC)L.pJ?R7"til$ C7RTtFICATS DOES Np'!' AMID. EJiTEND OR ALTER TH>3 GOVBRI-(3E(Sj AFF'ORPFta IIdE POLICY(S) LI3'f6D. "I.[MITS SIftOWtd' ARE T'1106~ !~T I<Z~'RL'7' Al9'QF 3°DI.ICY ItYGEPTIQAL" SHgULD ANY OF TI•iR ABOVR p~ESCRi~~p 1'rr?i.YCY(S) f3F CATTCt3LLBp 66FORB ~ BJCPIItATIflN QATI3 THERfiDP, THE I68UtNG cx3MpA1+1'Y Wtt.G ~pSgcMAfY.~O DAYS WRIT NOTICE TO'fEIE CERTIFICATE Ht)1..p6R, NAMRA>3>~AW~ --.--.. '~ 1p DAY NOTtCB OF CANCR7..LAT7nN W1l.L AI01l~L'!r t'~ 1VC~N-PAYMP.NT OF PRlSMtt7M• CERTIAICAT& HOLDPRlAI~71ANALINSCIR$D: AC!'l1IQRU..t3p Rapt{ F.N'fATIVLT: 'CITE CITY t~ SANTA ANA 20 CN'IC CIsN'rk.ll; PI.AiA 8A?dTA AN't1,1wALi6'nRNIA 92701 ATTN: PllRCHASINCI DEPARTMRIVT' 1;AX4 3b2/49S-5961 TiMs71-4235 7I4/b47-694+1 i X 25A-125 FROM :0-ENTB~TAIMENT FRX N0. :5624965961 Dea 17 2007 @2:@8PM p2 DEC-17-2007 CIQN 03 ~ 14 PM FA}i K0. 40? 645 2810 P, 02 Api1ITIQNAL IRSIIRED _~E*_ TFl~9 EiVDORSIT CE{ANGES YpUR_POLI~~~ E 1tEAA IT CAREB'ClI~LY. ~~• THIS $NI~R$EMENT, E~CTIVE: 3/2$/07: A PART QE' ( AT 12.pI A.M. I~dCAI. STAAl9ARD TIME } gbI.ICY N0: ~TCMd6$7q I99tlEA TO: O Ei~1T'ERTAINIARNT, xNG. AGEt4CY LE.STEet IOILKANSO~t A~NCY INC. / NAxTI~At3Dr Imo. iBBtlEP BY:__ 100 C7:'ATAIN UetD~yPRITERB 1-T I.i~OYDt S / Lt3NMi~1 TN GOAt9IDERATIOtt b8 THE PR}~[yM QiARfaF,br YT' ;$ HEREBY AGREED A~ib [7NI7ER9'~'00l~ THAT Bpt:{i ADDITIONAL IN9t]RLD {3} XS /ARE HEREaY ADDED TO TEiIB POLICY, 4/QR 6Y' 91IJA3EQUEtIT C1~RTIFTCATEtS1 OF It+iSt7RANCE I98UED BY LE5'j'£R lCALMl42i3ClM AQENCY, Y(QD. WIL3. $'E ADDE£3 t73sTLx A9 TI3~rIA INTERE9T8 I~FiY APPEAR. IT T$ AGREED 2flAT SUCK TNSURRNr„& ?~ IS A~'~'Q~it7ED 8Y THE PdLLCY 'Oft BODILY INJURY AND PHOPERTY DRMkGE I,IABILI~'Y stTAI.I~ AI.90 APFLX TO EACH II+ITR[iEST NAME£1 P&R CERTIFXCAT$i (S } OF IpBURARCE ISSUEfl, AS 21N INSURED, BUT OP1~i.X IN RESPECx,~ TO I+IAHII,I~'X ARISING t)~fT O!` THE ~?E3IGNATED 8REl2ISES ar, TEiE NAl~D ;biSURED OR OPEgagTI00]{~! PERF01R7~ri ax OkI Ft}R THE NAl4ED INSUREDr THE INCLtT3iCN Ob' $UC~i AbDIT;CAiA.I. INTTuRE9T{3j SI~z. tidT OPERATE 'fb zNCREA9L THE t'gM~AtJY-S STRTl~A LIMITS A~' LIAHII,ITY. IT 15 AGREED THAT IF THIS E'gLICX i3 IS$t1ED TO A L~DdCTARX. TF(E INSORAt#GE AFFt3FiDED gY THIS EDiDORSEMLtOT Sli112.L NOT AP~'I~Y' TO AMY E7LECOTIVS QFFICEA OR I~MPiAYEe 9PIT~1 REsi'1~;CT TD IbIJURY OR TQ SICltriESSr DISEASE O!i REATH a$ Atg47tHER EXECQTIttE 06kZCEA Ott EPSFY,BYEL OE TAE SAME EM~,QYER TNJOAEI7 IN T8E COtl.R9E OS StJt;H EMP~tYD1ENT. zT I8 FURTHER AtD THA2' "30" DAYS NGTIt~ QT GA(+1C1tLLAT20N 1~IYtT. EE GIVEN Td TF1E ADDITItalyAi. INStJRED(S} .IN TA$ EVENT Off' C.AfiICELLATION 4F TKIS POLIt:Y, ONT,ESS 4TH1SliNISE STATEb. ADDITIONAL iN8E7RI:Ds A) 1'HE CITY QF HApTA i IT'S OFFxC&R9, 3sNlPIAYEEB, A1Q~1 ItEpRES&bITAT ZV'Es $} d~E PARK, SAMIA ANA, CA EVENT DATE{S) : HAF,CH 28 - fit), ~Od6 1i1ARRAA~ED: AtiY APip ALL lU?bYxIONAL INSq[tEU S •ADDEII TO THIS Ft?LIGY SY CERTI$ICATE dT:' INBgRAN(~E t)R HY !.NAORSEMENTr AS S?ATLA ABOVE, ARE ApAED ON ONLY A9 T&EIR It~'PEREST MAY APPEAR IN RE9PECx$ TC THE Qk~DR]-x'xON{3} &/t7~1, ]1CT11~ITY{Sj PSYti'ORMED &/G~t PROVIDED DY TH$ NAMED IDT8LIR$D{S} &/bl~ rT'S FMPLOYEB(S) L1NLY, ANO S,OR WHICf1 ~.IASILITY G~?V&RAtaE IS AF`F'ORDED &!t>R $GFIED[lI.ED HLR,EI~i ANDIt7R HERETO. PR6~! I UM CHA#tGS~ D IFl CdLQSIP~~tATIOiQ OF Tl~S PRE1KIiAA ~MA,FtGED, T!!7R R3SQV$ AACZTYONAL I t]tt1Gp IS ADDED TQ IQ MFiDE A pAltx Off' TtiZ3 p'QI.;t;Y F~ THE STATEp ~{VEsDTT TE tR) gb1LY OR CINTIL EiGPrAATIQN OF TEE POLICY PER~O Ol~i,y, ALI+ Qrl3E~1 TERMS ANA CONDITYONS CS THIS FOi~CY REMAIN NC ~D E N D O R S E M E N T K U M 8 E R H 12/17/t!7 ~ . DATE A[F!'HCIEtTZ FtEP / KALMPiII'S{~1' tPG-].-9/Da°P84-P-Sp~AD-B) ~ LEa~'ER S{JN AGENCY INC. 25A-126 FP.QM :0-ENTEPTRIMENT FAX N0. :5624965951 Ilec. 17 2@07 @2:09PM P3 o~c-is-~oo7 r~ oar ~~ err Fix ~. X07 sa~~ 2slo F, o~ C L• A ~ M ~ 1~+1 A D E ~ p i~ E u D E7 M " A" F O R O ENTERTAINMENTS INC. AGENCY: LE1SxER KAL1vlAN3GN AGENCY ]:PIC. ~'. Q. BOK 940008 MAITLAND, FLORIDA -U.S.A. PIS: 407-645-5000 )='AyC: 407-645-281,0 POLICY PERIOD / TERI~l: a5f25/07 TC 05/25/d$ (32:01. 1~M 7~C3~T, S'PA~iRApt© TrnaEj p(7I,ICY /KINDER NUMBER: NGM(atoS't~~' DE$CCiIPT24~1 QF CLAIMS MADE LIARII.ITY INEtIRANCE CQV>wE{S~ AFFURtJED: A} $PI+CTATQA LIABILITY COVSRAiG x9 A~OADED y't~R Tl(E AUP'PI,XIIV6 CF VARIi3Q6 '--- Cc~al'4'RACTEfl TAT.ICNTS / ACT9 TC BE 9[?I+PI,IJ6C- RY TfiE N7~D iNStDl~EP ~/[Rt iT' S E64RTr0YFS(5} Tt? PERFORM AT VARIOUS CGNTRAGTED (bRA) I,gDATIt)NS ONLY. 8I L'iL~SISES LIABILITY CdVLR1~E X5 Ai`F4RDED POR SHE NAND INSORED~ S 8VEl5T PLA~INiNG i10~ CgD1tDtliATl'7iti BUSINE38 ~ VARIW9 CONTACTED AC~'SVYTY(B) ~/0& OPERRTxON(S) ~'OR COI~ISJ=[>ERATTON SRQVIDSD SY Tt~ l+lA1lED ZNR~IliEi3 &/C1R, ITrS ~tsIAY$l!(S} NILE AT VARiOi7R LbbTT1~CTSt1 (08A} I,gG)q,TiQDl$ ONLY. G) PARMISE$ LIABILITY COV>aRAC,J~ Ig 147'~ORDED TO INCLUDE THE 3ET IIP, q~ lK/Q(a TAl(E DO9PN C1F TFt6 DtAt~D iNSUR&D' (S) OIPNLD EQUIP~Nfi) T'[l aE E!$E~? ZN CON~7pNCTZt~ RITii 'Z$Fi NAl~D IN30RER' (3) CaMl~EACIAL CONTli7sC'},`ED TRIiEN'J~` (S) /ACT (S) 4PERATIQN (S ) /wACTIVITY(S) ONtr,X,`1fHSIrE 711' V7-RIOC$ CODTTRAiCTEO (IISAj LOCATION(.3) ONLY. X} ANIBtAL TALENT ACT(&) 1 SHQiI(S} ARE SPECI~'TC,ALI;X EXCLp13Ei1 UNI.B$$ aT4ERTi9rSE ENpt7R,4Ef] AEAET~J AND !!N AbDZxZOlR71L PRRbdItAd CtiARC,B I9 liAGB. 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Exhibit "B" REQUEST FOR PROPOSALS RFP 07-085-PRCSA FOR A CARNIVAL PROMOTER TO PROVIDE CARNIVALS AT CITY OWNED PARKS KEY RFP DATES: Issue Date: October 18, 2007 Pre-proposal Conference: October 25, 2007 Proposal Due Date: November 9, 2007 25A-134 REQUEST FOR PROPOSAL Notice is hereby given that sealed proposals will be received for EIGHT (8) CARNIVALS TO BE PROVIDED AT SPECIFIED CITY OWNED PARKS per the attached specifications, at the Parks, Recreation and Community Services Agency, Budget and Accounting Section, 888 W. Santa Ana Blvd. 2nd Floor, Santa Ana, California, until 5:00 P.M., FRIDAY, NOVEMBER 9, 2007. If further information is needed, contact Robert Carroll, via email at rcarroll@ci.santa-ana.ca.us, or phone at (714) 571-4218. MAILED proposals should be addressed as follows: Parks, Recreation and Community Services Agency Budget and Accounting Section M-23 P.O. Box 1988 Santa Ana, CA 92702 Attn: Robert Carroll or delivery by hand or courier to: Parks, Recreation and Community Services Agency Budget and Accounting Section M-23 888 W. Santa Ana Blvd. 2nd Floor Santa Ana, CA 92701 Attn: Robert Carroll It is the responsibility of the proposer to see that any proposal submitted shall have sufficient time to be received by the Budget and Accounting Section prior to proposal due date and time. Late proposals will be returned to the vendor unopened. The receiving time in the Budget and Accounting Section will be the governing time for acceptability of proposals. Telegraphic, telephonic and facsimile proposals will not be accepted. 2 25A-135 I. GENERAL A. RFP PROCESS AND GENERAL TERMS 1. PROPOSAL SUBMISSIONS Proposals must be submitted to the Budget and Accounting Section in a sealed envelope showing on the outside, the name of the bidder, RFP NO. 07-085-PRCSA, and the proposal due date and time. All proposals must be signed by an authorized representative of the vendor. 2. PROPOSAL WITHDRAWAL Proposals may be withdrawn by written request received before the hour set for the opening. After that time, the vendor may not withdraw proposals for a period of ninety (90) days from the date of the opening. 3. LATE PROPOSALS It is the responsibility of the vendor to see that any proposal submitted shall have sufficient time to be received by the Budget and Accounting Section prior to the proposal due date and time. Santa Ana Parks, Recreation and Community Services Agency shall not be responsible for proposals lost or delayed in the mail. Late proposals will be returned to the vendor unopened. 4. REQUIRED DOCUMENTS Vendor must return the following completed documents with their proposal: • Detailed proposal of services in accordance with the specifications detailed in Section IV. Proposal should take into consideration the evaluation criteria included in Section III and should not to exceed 10 pages. • Signed proposal form (Section V); • A letter or printout of vendor's safety related incidents from insurance company, current or previous, spanning the past three (3) years (Section VI); • Completed vendor's references sheet (Section VI); • A resume or summary detailing vendor's qualifications, accomplishments, and membership in any professional and/or industry organizations; • A representative sample of photos of vendor's past events and/or vendor's equipment; • A list of ride equipment owned, used and/or operated in vendors events, with description and age of all rides; • Completed Proposal Summary and Deviations from Specifications (Section VII) • Any other information the vendor may choose to submit. • Attachments A, B, and C are for reference only, but will be required after the contract is awarded to the successful vendor. Vendor must submit one original and eight photocopies of each proposal offered. 5. RIGHTS RESERVED The right is reserved by the City of Santa Ana to reject any or all proposals or to waive any informality or technical defect in a proposal. 3 25A-136 6. LICENSE AGREEMENT Successful vendor(s) will be required to enter into a License Agreement with the City of Santa Ana. The City reserves the right to enter into an agreement with said License Agreement with any, all, or none of the vendors for aone-year period, with the option of extending the License Agreement for two additional one-year terms. 7. SELL OR ASSIGN The successful vendor shall not have the right to sell, assign, or transfer any obligations resulting from this proposal without the specific written consent of the City. 8. LOCAL SALES TAX CONSIDERATION In accordance with the Santa Ana Municipal Code, a one percent (1 %) preference will be applied to all proposals for taxable goods submitted by suppliers located within the City limits of Santa Ana. 9. RECEIVING TIME The receiving time in the Budget and Accounting Section will be the governing time for acceptability of proposals. Telegraphic, telephonic and facsimile proposals will not be accepted. 10. COMPLIANCE WITH LAWS All proposals shall comply with current federal, state, and other laws relative thereto. Vendor further agrees that the services proposed comply with all applicable Federal and State Occupational Safety and Health laws, standards for regulations, and that vendor will indemnify and hold the City harmless for any failure to so conform. 11. REFERENCE TO SUCCESSFUL VENDOR The terms vendor, supplier, proposer, or contractor may be used interchangeably in these specifications and shall refer exclusively to the vendor(s) with whom the City enters into contract as a result of this request for proposal. 12. INQUIRIES Refer inquiries in writing via email to Robert Carroll, rcarroll e,ci.santa-ana.ca.us. 13. AWARD OF BASE PROPOSAL OR ALTERNATE PROPOSAL The City of Santa Ana reserves the right to award either the Base Proposal or any Alternate Proposals offered, whichever is in the best interest of the City. 14. RIGHTS RESERVED The City reserves the right to contract with any, all, or none of the carnival vendors who submit base proposals and/or alternate proposals. 15. E-MAIL COMMUNICATIONS To facilitate the RFP process, vendors are required to monitor and respond to e-mail requests on a daily basis. 4 25A-137 16. PRE-PROPOSAL CONFERENCE A pre-proposal conference will be held on Thursday, October 25 at 1:30 p.m. in the 2°d Floor Large Conference Room of Santa Ana Parks, Recreation and Community Services Agency, 888 W. Santa Ana Blvd., Santa Ana, CA. Please RSVP to Robert Carroll, (714) 571-4218, by Monday, October 22, 2007. All proposers are strongly encouraged to attend. II. SCOPE The City of Santa Ana is requesting proposals from carnival vendor(s) to conduct eight (8) carnivals on City-owned park property during the period of March through October 2008 as specified in the table below. A map of each park with the general event area highlighted is attached to this RFP for applicant's reference. Exact locations for carnival rides and equipment will be identified at the pre-event meeting. Park Site Venue/License Fee Maximum Size/Scale of Event 1 Jerome Park Large/$7,000 Up to 16 carnival rides, 12 game booths, 8 food* March 28-30 booths and/or information booths. No live Fri-Sun entertainment 2 Cesar Chavez/ Small/$4,000 Up to 14 carnival rides, 12 game booths, 8 food* Campesino Park and/or information booths. No live April 18-20 entertainment Fri-Sun 3 Centennial Park Large/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* May 23-26 and/or information booths. No live entertainment Fri-Mon 4 Jerome Park Large/$7,000 Up to 16 carnival rides, 12 game booths, 8 food* July 3-6 and/or information booths. No live entertainment Thurs-Sun 5 El Salvador Park Small/$4,000 Up to 15 carnival rides, 12 game booths, 8 food* August 22-24 and/or information booths. No live entertainment Fri-Sun 6 Madison Park Large/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* Aug. 29- Sept. 1 and/or information booths. No live Fri-Mon entertainment 7 Rosita Park Small/$4,000 Up to 14 carnival rides, 12 game booths, 8 food* September 19-21 and/or information booths. No live entertainment Fri-Sun 8 Centennial Park Large/$7,000 Up to 12 carnival rides, 12 game booths, 8 food* October 10-12 and/or information booths. No live entertainment Fri-Sun Note: One booth is equal to one 10x10 canopy area. A maximum of five cooking booths will be allowed. 5 25A-138 EVALUATION OF PROPOSALS Vendors will be evaluated based on their ability to conduct successful events in both the small carnival and large carnival categories. For the purposes of this RFP, carnivals conducted at Cesar Chavez/Campesino, Rosita, and El Salvador parks are considered small carnivals. Carnivals conducted at Centennial, Jerome, and Madison parks are considered large carnivals. An evaluation committee will recommend the most qualified vendors for each the small and large carnival event categories. A committee of City staff representing various departments will evaluate all proposals based on the following criteria: Equipment Capability, and Functionality of Vendor 20% 1. Equipment and related safety specifications of equipment to be used. 2. Training and safety precautions taken to ensure that attractions and/or staff pose no danger to event participants or the general public. 3. Vendor's financial ability to provide a safe, enjoyable carnival while meeting all specifications. Level of Service and Support 20% 1. Responsiveness and thoroughness of proposal. 2. Ability to accommodate proposed carnival dates and locations. Experience of Firm and Personnel 20% 1. All carnival personnel, including operators, proposed to work at carnivals and the qualifications of those individuals. 2. Experience and technical expertise of personnel, including operators, with implementing carnivals and special events in other cities. Past Performances 40% 1. Past record of performance on contracts with other cities, governmental agencies or public bodies, including such factors as reliability, park damage prevention and compliance with contract terms and conditions. 2. The vendor's capacity to perform the work within time specifications. 3. Acceptable, verifiable references and site reviews, and a three (3) year summation of vendor's record of carnival related incidents from vendor's insurance company. FOLLOW-UP OF EVALUATION PROCESS BY VENDOR Vendors may follow up on the evaluation of the proposals by contacting Robert Carroll, via email at rcarroll@ci.santa-ana.ca.us or by phone at (714) 571-4218. REVIEW EVALUATION RESULTS AND AWARD After award, the evaluations will become public record. Interested vendors may submit a request in writing, along with aself-addressed stamped envelope to receive results of the evaluation. Submit your request to Budget and Accounting Section M-23, Parks, Recreation and Community Services Agency, 888 W. Santa Ana Blvd. 2"d Floor, Santa Ana, CA 92701. 6 25A-139 IV. SPECIFICATIONS Vendor must submit a detailed proposal of the services offered in response to specifications below. Proposal must include a detailed response that addresses the specifications and should not to exceed 10 pages. Vendor must also return all requested documents with their proposal as specified in Item I.4. of this document. Applicants are asked to use 12 point Times New Roman font. A. VENDOR'S RESPONSIBILITIES 1. PROOF OF INSURANCE -Upon selection, vendor must be able to provide proof of $1,000,000 general liability insurance for each event a minimum of ten (10) business days before the event. The insurance certificate must name the "City of Santa Ana, its Officers, Agents and Employees, as additionally insured. It must also contain the following clauses: 1) a thirty day written Notice of Cancelation will be provided to the additional insured; 2) insured's coverage will apply on a primary /non-contributory basis to the additional insured; and 3) the insurance will contain a separation of insureds clause. If the certificate of insurance is in the name of the carnival operator it shall include the carnival promoter as additionally insured. 2. REQUIRED CLEANUP/DAMAGE DEPOSIT -Upon selection, vendor 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 vendor at the conclusion of each carnival. Should costs incurred by the vendor (as stated above) be greater than the total deposit, the vendor will be invoiced for the balance due. The vendor will be required to submit the balance due 10 days prior to conducting another event. The vendor agrees that failure to pay the cleanup/damage deposit and/or any other outstanding balances and fees a minimum often (10) business days prior to the start of the event will result in a penalty of $500 per day penalty. The vendor will not be allowed to start an event if there is an unpaid balance due. 3. CLEANUP DURING AND AFTER THE EVENT -The vendor agrees that they have 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 vendor employee arrives at the park site for set up until the last vendor employee leaves the park. Furthermore, the vendor agrees to be responsible for cleanup of the event site and the surrounding areas after the event. Vendor agrees to arrange for trash pick-up in the parking lots and surrounding neighborhood after each day at vendor's expense. Persons performing clean-up shall be employees or subcontractors of the vendor. Failure to provide continuous clean-up will result in dispatching City staff to perform this work at the vendor's expense or the City hiring a private contractor to perform the work at vendor's expense plus a $500 penalty for each day the vendor fails to perform this responsibility. 7 25A-140 4. STREET SWEEPING -If street sweeping is necessary due to trash left from pedestrian and vehicular traffic and the vendor fails to perform as required in Item V.A.3. of this document, 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 vendor's expense. Furthermore, the vendor agrees to pay a $500 penalty for failure to perform this responsibility. 5. DUMPSTERS -Vendor 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 the by 3:00 p.m. of the second day following the conclusion of the event. Vendor agrees to pay a penalty of $500 per day that the dumpsters are not provided and removed as indicated. 6. REQUIRED PLOT PLAN AND PLAN CHECK PROCESS -Vendor 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, etc. Vendor should not only indicate number of rides on the plot plan, but should indicate 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. Vendor 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. Vendor agrees to pay a $500 penalty per day for each day late in providing the plot plan. 7. CARNIVAL LICENSE FEE- Vendor understands and agrees to pay the required carnival license fee for each event. Checks shall be made payable to "The City of Santa Ana". The license fee is $4,000 for carnivals conducted at El Salvador, Rosita, and Campesino/Cesar Chavez parks, and $7,000 for carnivals conducted at Jerome, Centennial, and Madison parks. 8. FIRE AND ELECTRICAL INSPECTION -Ten (10) business days prior to the event, the vendor must 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. Vendor agrees to pay a $500 penalty per day for each day late in scheduling appointments as indicated. No more than five (5) cooking booths will be allowed. Actual event rules and regulations will be provided to the vendor at plan check and copies shall be provided to each booth operator by the vendor. Vendor must provide all event electricity. Hookups to park electrical outlets will not be permitted. Vendor agrees to pay a $500 penalty per day for each violation. 9. O.C. HEALTH DEPARTMENT REQUIREMENTS -Vendor 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 8 25A-141 allowed to operate for the duration of the event during event hours only. To obtain food permits and schedule booth inspections, vendor must contact the Orange County Health Department at (714) 667-3610. Vendor agrees to pay a $500 penalty per day for each day late in securing food permits and food booth inspections. Furthermore, the vendor agrees to pay a $500 penalty per day for each food booth discovered operating without prior approval of the O.C. Heath 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. Vendor agrees to pay a $500 penalty per day for each violation. 10. REQUIRED PERMIT FROM BUSINESS LICENSE OFFICE FOR BOOTH VENDORS (BUSINESSES AND/OR NON-PROFIT ORGANIZATIONS) - Carnival 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 carnival promoter can collect all the necessary information and fees from the vendors and submit the entire packet to the Business License Office a minimum of five (5) days prior to the commencement of the event. Vendor agrees to 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 aOne-Day Peddler/Solicitor license. Non-Profit Organizations are required to obtain aFee-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. Vendor agrees to pay a $500 penalty per day for each booth operating without a City Business License. 11. CONTACT WITH NEIGHBORHOOD ORGANIZATIONS -Vendor 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 vendor for a particular neighborhood upon request. Vendor must 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. Vendor agrees to pay a $500 penalty for each violation of this section. 12. CONTACT WITH NEIGHBORHOOD RESIDENTS - At least 72 hours prior to each carnival event, vendors 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. Vendor agrees to pay a $500 penalty for each violation of this section. 9 25A-142 13. CONTACT WITH BUSINESS ORGANIZATIONS -Vendor 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. Vendor agrees to pay a $500 penalty for each violation of this section. 14. 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. Vendor must 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. Vendor agrees to pay a $500 penalty per day for each violation of this section. Furthermore, if it is discovered that the security deployment is less than the City's mandated level of security the City may elect to dispatch, at the vendor's expense SAPD and/or Park Ranger's to bring the security levels up to the agreed upon level. 15. 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. Vendor agrees to pay a $500 penalty for failure to perform this responsibility. 16. POLICE DEPARTMENT REQUIREMENTS -The security company to be used by the vendor must be pre-approved by the Santa Ana Police Department. Vendor 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. to 25A-143 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. Vendor must also have a minimum of two (2) Santa Ana Police Department Officers present at all carnivals during agreed upon hours of event operation. If the number of officers required exceeds two officers, vendor shall not be responsible for the payment of costs for more than four officers. Vendor will also provide the Police Department with a booth at these events. The Police Department will coordinate necessary police assistance for the event at vendors' expense. 17. ADDITIONAL POLICE/FIRE/PARK PERSONNEL -Vendor agrees that if a disturbance occurs due to the operations of the carnival and additional Police, Fire or Parks personnel assistance is required, vendor will pay those additional expenses. 18. PRE-EVENT AND POST EVENT INSPECTIONS WITH PARK PERSONNEL -Vendor 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. Apre-inspection meeting must occur on the Wednesday prior to the carnival event. Vendor must bring the proposed plot plan to this meeting. Vendor 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 day following the carnival activity at 2:00 pm., unless otherwise stipulated by representatives of the Santa Ana Police 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. The vendor understands and 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 vendor to set and attend these meetings will result in the Park Supervisor performing the walk through of the park site without the vendor and all conditions recorded by the Park Supervisor shall be deemed as accurate and final. 19. PROTECTION OF FIELD AND TURF -Vendor 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 vendor'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, vendor 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 carnival promoter. 11 25A-144 20. 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. There will be a $1,000 fee per day for equipment arriving earlier or left in the park later than the above stated times. 21. 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. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Vendor agrees to pay a $500 penalty per day for each violation of this section. 22. PORTABLE RESTROOMS -Vendor 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. Vendor 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. 23. SALE, ADVERTISING AND CONSUMPTION OF BEER, ALCOHOL OR CIGARETTES - Vendor 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. Vendor agrees to pay a $500 penalty per day for each violation of this section. 24. NATURE OF CARNIVAL GAMES AND/OR ACTIVITIES -Vendor understands and 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. Vendor 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 decision to remove a game will be final. 25. SIZE OF CARNIVAL RIDES -Vendors 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 vendors 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. 12 25A-145 26. EVENT STAFF PARKING -Vendor understands and agrees that there shall be no overnight camping or privately owned vehicles for the purpose of overnight camping at the park site. All privately owned 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. The Vendor is permitted one vehicle within the park site for security personnel and one vehicle for office purposes. Vendor agrees to pay a $500 penalty per day for each violation of this section. 27. DELIVERIES OF SUPPLIES TO VENDORS -The Vendor 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. 28. PERSONNEL TO PLACE AND COLLECT TRAFFIC BARRICADING EQUIPMENT - Vendor 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 vendor to place and/or collect traffic barricades and/or equipment will result in City staff or a separate contractor completing this work at the vendor's expense. 29. RENTAL OF TRAFFIC CONTROL EQUIPMENT -Vendor shall be required to pay for the rental of specific traffic control equipment, as required by the Police Department. 30. PERSONNEL PARKING -Vendors shall instruct all personnel to park in areas indicated on the approved plot plan. Vendor 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. 31. EVENT PARKING AND REQUIRED SIGNAGE -Vendor shall be required to post signs 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. Vendor agrees to pay a $500 penalty for each violation of this section. 32. PERSONNEL AT ENTRANCES TO NEIGHBORHOOD -Vendor 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. Vendor agrees to pay a $500 penalty per day for each violation of this section. 33. 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. Vendor will be informed of the number of additional officers needed at the pre- event meeting described in Item V.A.18. 13 25A-146 The Police Department will arrange the necessary police staffing for the event. The vendor 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 vendor will be responsible for a minimum of 4 hours of over-time costs. 14 25A-147 V. PROPOSAL FORM Responses to this Request for Proposal are due at 5:00 p.m. FRIDAY, NOVEMBER 9, 2007. The undersigned Vendor agrees to provide carnival services at City-owned parks in accordance with the specifications. I/We have stated herein the services and fees that I/we will furnish and deliver as specified. Award shall be based upon the evaluation criteria included in Section III. Where there is a discrepancy between words and figures, WORDS SHALL GOVERN. The City of Santa Ana reserves the right to cancel any license agreement in the event that terms under which carnival vendor is contracted are violated. Name of Vendor (Person, Firm, Corp.) Address Address Telephone Number Signature of Authorized Rep. Name and Title (Please Print) Date Fax Number is 25A-148 VI. VENDOR'S REFERENCES This sheet must be completed in full and returned with vendor's proposal. List and describe fully the last three contracts performed by your firm, which demonstrate your ability to provide carnival service in accordance with the specifications in Section IV. Attach additional pages if necessary. The City reserves the right to contact each of the references listed for additional information regarding your firm's qualifications. Also, please attach a letter or printout from vendor's insurance provider(s), current and/or prior, who have provided your business with insurance over the last three (3) years, detailing any claims that have been filed in connection with vendor's carnival operations. Reference No. 1 Customer Name: Address: Contract Amount: Contact Individual: Phone Number: Year: Description of equipment and services provided: Reference No. 2 Customer Name: Address: Contract Amount: Contact Individual: Phone Number: Year: Description of equipment and services provided: Reference No. 3 Customer Name: Address: Contract Amount: Contact Individual: Phone Number: Year: Description of equipment and services provided: 16 25A-149 VII. Proposal Summary and Deviations from Specifications Please check the first column for each event that you are available to conduct. For each event, please list the carnival operator you are proposing to use and any deviations from specifications. If necessary, please include additional pages. Vendors will not be allowed to change carnival operators once the proposal has been submitted without approval of City. Intent to Park Site Proposed Other Deviations from Specifications Provide Carnival Please cite item number and summarize how O erator s ecification deviates Jerome Park March 28-30 Fri-Sun Cesar Chavez/ Campesino Park April 18-20 Fri-Sun Centennial Park May 23-26 Fri-Mon Jerome Park July 3-6 Thurs-Sun El Salvador Park August 22-24 Fri-Sun Madison Park Aug. 29- Sept. 1 Fri-Mon Rosita Park September 19-21 Fri-Sun Centennial Park October 10-12 Fri-Sun 17 25A-150 ATTACHMENT "A" CERTIFICATION OF NON-DISCRIMINATION BY CONSULTANTS As suppliers of goods or services to the City of Santa Ana, the Firm listed below certifies that it does not discriminate in its employment with regard to race, color, religion, sex, or national origin; that it is in compliance with all federal, state and local directives and executive orders regarding non- discrimination in employment; and that it agrees to demonstrate positively and aggressively the principle of equal opportunity in employment. WE AGREE SPECIFICALLY: To take affirmative steps to hire minority employees with the company. 2. To establish or observe employment policies within affirmative promotion opportunities for minority persons at all job levels. 3. To communicate this policy to all persons concerned, including all company employees, outside recruiting services, especially those servicing minority communities, and to the minority communities at large. FIRM TITLE OF PERSON SIGNING SIGNATURE DATE Please include any additional information available regarding equal opportunity employment programs now in effect within your company. 18 25A-151 ATTACHMENT "B" SAMPLE ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the name insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # Issued to the endorsement form as part of Name Insured Countersigned by 19 25A-152 ATTACHMENT "C" NON-EXCLUSIVE AGREEMENT TO PROVIDE CARNIVALS AT CITY PARKS THIS AGREEMENT, made and entered into this day of , 2008 by (hereinafter "Operator"), 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 October 18, 2007, the City issued a Request For Proposals for carnival operators to provide carnivals at specified City owned parks. Operator submitted a proposal to provide carnival services. Operator represents that Operator is able and willing to provide carnival services as specified in the Request for Proposals to the City. In undertaking the performance of this Agreement, Operator represents that it is knowledgeable in its field and that any services performed by Operator under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional carnival operator 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 park ("Park") within its boundaries: located at., Santa Ana. City hereby grants to the Operator anon-exclusive, revocable user agreement to encroach upon the specific areas of the above stated Park ("Carnival Areas") delineated in the rendering of the Park attached hereto Exhibit "", for the purpose of providing a carnival ("Carnival Event") and for no other purpose. Operator shall provide 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 Operator is subordinate to the prior and paramount right of the City to use the City owned Parks described herein above in their entirety for public purposes to which they presently are and may, at the option of the City, be devoted. Operator 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) Operator 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 Operator's use and occupancy of the Carnival Areas within the Parks shall be limited solely to the permission for such use and occupancy granted herein. 20 25A-153 (D) As a covenant to this Agreement, Operator agrees to adhere to and comply with all of the terms, conditions and responsibilities enumerated in the Request For Proposals, RFP ,issue date (hereinafter "RFP") attached hereto as Exhibit "" and incorporated herein by reference. Any failure to adhere to and comply with the terms, conditions and responsibilities enumerated in the Request for Proposal, 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 Operator alternative dates for the conducting of the Carnival Event within the term of this Agreement. If Operator desires to obtain alternative dates as provided in this paragraph, Operator must timely request the same from City. 2. SCOPE OF SERVICES Operator shall provide at the Park identified in Section 3 hereof a full service Carnival Event complete with the rides, equipment and services as set forth in the RFP (Exhibit) to this Agreement. 3. FEES/DEPOSITS/PERMITS/LICENSES At least 10 days prior to the commencement date of the Carnival Event as set forth below, Operator shall pay to City the applicable fee for use of the Carnival Area as further set forth below. Operator agrees to pay the City and City agrees to accept from Operator the following fees per Carnival Event. Park/ Carnival Dates Fee In addition to the fees set forth herein, Operator 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 hereto. All fees and deposits shall be due and payable as set forth in the RFP. The vendor agrees that failure to pay the cleanup/damage deposit and/or any other outstanding balances and fees a minimum often (10) 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 any unpaid balance due. 4. SECURITY DEPOSIT Contemporaneously with the execution of this Agreement, Operator 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 Operator of all the terms, covenants, and conditions of this Agreement to be kept and performed by Operator during the Term of this Agreement, or any extension thereof, and including the removal of Operator's facilities as set forth herein. Assuming successful completion of all terms and conditions of this Agreement, including those within 21 25A-154 the RFP, the security deposit and any unused fees shall be returned within 60 days of the final carnival event provided for herein. 5. TERM This Agreement shall commence on the date first written above and terminate on December 31, 2008 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 Operator 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. Operator 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. Operator shall establish and maintain separate accounting records for each Carnival Event at the specified Parks. Operator'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 Operator'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 Operator 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 Operator performs the services which are the subject matter of this Agreement; however, the services to be provided by Operator shall be provided in a manner consistent with all applicable standards and regulations governing such services. Operator 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. 22 25A-155 10. INSURANCE Prior to undertaking performance of any work relative to a Carnival Event under this Agreement, Operator shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: A. Commercial General Liability Insurance. Operator shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting there from and damage to property, resulting from any act or occurrence arising out of Operator's operations in the performance of this Agreement, 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 there from, and property damage, in the total amount of $5,000,000.00 per occurrence. Operator shall supply City with a fully executed additional insured endorsement in substantially the form attached as Exhibit B to the RFP, Exhibit B hereto, upon execution of this Agreement and shall be approved in form by the City Attorney. B. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $2,000,000.00 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. C. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Operator, if Operator 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, Operator agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000.00 per accident. D. If Operator is or employs a licensed professional such as an architect or engineer: Professional liability (errors and omissions) insurance, with a combined single limit of not less than $1,000,000.00 per claim. E. The following requirements apply to the insurance to be provided by Operator pursuant to this section: i. Operator 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. " 23 25A-156 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. F. If Operator 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. Operator agrees to indemnify the City for any work performed prior to approval of insurance by the City. 11. INDEMNIFICATION Operator agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, special counsel, and representatives from liability: (1) for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the direct or indirect operations of the Operator or its 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 Operator further agrees to 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. Operator 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 Operator's performance of this Agreement or any failure to comply with any of Operator's obligations contained in this Agreement by Operator, its officers, agents or employees. 12. TRASH/UTILITIES/CLEANUP Operator 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. Operator 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 paragraphs A2 - A4 of 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 paragraph A9 of the RFP, Operator is 24 25A-157 responsible for supplying all utilities to be used during the Carnival Events, including supplying the required portable toilets as specified in the RFP. 13. HAZARDOUS MATERIALS Operator represents and warrants that its use of the Carnival Area herein will not generate any hazardous substance, and it 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. Operator further agrees to clean-up and remediate any hazardous substance on the Park and/or Carnival Area and Properly, 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 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 Operator shall not commit or permit the commission by others of any waste on the Park or Carnival Areas. Operator 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 Operator 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 Operator. 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. 25 25A-158 17. LIENS Operator 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 Operator, or any person claiming under Operator. 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 Operator's judgment, Operator 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 Operator 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 upcoming scheduled carnival, City may terminate this Agreement upon thirty (30) written notice to Operator. In the event of condemnation, unless Operator 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 Operator 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 OPERATOR Should Operator 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 OPERATOR The insolvency of Operator as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Operator, or the making of a general assignment for the benefit of creditors by Operator, 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. 26 25A-159 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 Operator of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Operator either of the same or another provision of this Agreement. 24. CONFLICT OF INTEREST CLAUSE Operator 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 Telefacsimile (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 27 25A-160 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647-6515 To Operator: A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other 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 Operator shall, at Operator'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 Operator's use and occupancy of the Park and Carnival Area and Operator'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 Operator in a proceeding brought against Operator by any government entity, that Operator has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between City and Operator and shall be considered grounds for termination of this Agreement by City. Operator will obtain all permits and other governmental approvals, required in connection with Operator's activities hereunder, and update such permits/approvals as necessary. 28. EXCLUSIVITY AND AMENDMENT This Agreement represents the complete and exclusive statement between the City and Operator, 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 28 25A-161 instrument signed by the City and by an authorized representative of Operator. 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 Operator, Operator 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 Operators retained by City. 30. NON-DISCRIMINATION Operator 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. Operator 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 and all questions relating to its validity, interpretation, performance, and enforcement shall be governed and construed in accordance with the laws of the State of California. 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 Operator 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. Operator 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. 29 25A-162 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. CITY OF SANTA ANA DAVID N. REAM City Manager ATTEST: PATRICIA E. HEALY Clerk of the Council 30 25A-163 OPERATOR: By: (Print Name)_ (Title) Tax I.D. # RECOMMENDED FOR APPROVAL: Gerardo Mouet Executive Director of the Parks Recreation and Community Services Agency APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Joseph Straka Assistant City Attorney 31 25A-164 ADDENDUM NO. 1 REQUEST FOR PROPOSAL FOR A CARNIVAL PROMOTER TO PROVIDE CARNIVALS AT CITY OWNED PARKS RFP REFERENCE NO: 07-085 PRCSA DATE DUE: NOVEMBER 9, 2007 Notice is hereby given that the City of Santa Ana, Parks, Recreation and Community Services Agency has made certain modifications, additions, and/or deletions, in the specifications to RFP NO: 07-085 PRCSA. This addendum shall become a part of the original Request for Proposal due by 5:00 p.m. on November 9, 2007. This addendum is provided in response to questions asked at the pre-proposal conference conducted on October 25. 1. Page 5, Section II. Please clarify the number of food booths and information booths allowed. Up to 20 food and information booths will be allowed. Of these 20 booths, up to six 10 x 10 booths can be cooking booths (or up to three 10 x 20). The remainder can be non-profit, commercial or sponsorship booths. Please include in you plot plan what goods and services each of these booths will offer and the dimension of each booth. The City must approve all goods sold at commercial booths. Massage booths are not allowable. 2. Page 7, Section IV. A. 2, first paragraph shall be revised as follows: REQUIRED CLEANUP/DAMAGE DEPOSIT -Upon selection, vendor must provide a $5,000 refundable damage/clean-up deposit to the City of Santa Ana, Parks, Recreation and Community Services Agency a minimum often (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 vendor at the conclusion of °^^'~ ^^ ~~~^~ the carnival season. Should costs incurred by the vendor (as stated above) be greater than the total deposit, the vendor will be invoiced for the balance due. The vendor will be required to submit the balance due 10 days prior to conducting another event. Deposit balance shall remain at $5.000 throughout the term of the agreement 3. Page 8, Section IV. A. 8, second paragraph shall be revised as follows: No more than #}ve-{-5} six (6) cooking booths will be allowed. Actual event rules and regulations will be provided to the vendor at plan check and copies shall be provided to each booth operator by the vendor. Vendor must provide all event electricity. Hookups to park electrical outlets will not be permitted. Vendor agrees to pay a $500 penalty per day for each violation. 25A-165 4. Page 11, Section IV. A. 18, second paragraph shall be revised as follows: 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 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. 5. Page 12, Section IV. A. 21, shall be revised as follows: 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 n.m. on Monday night. Ticket sales and food sales must stop one half hour prior to the scheduled carnival closing time. Vendor agrees to pay a $500 penalty per day for each violation of this section. 5. Please describe where the Carnival at Centennial Park will take place. Please find attached park maps that describe all carnival boundaries. Should you have any questions or require additional information, please contact Robert Carroll at your convenience, (714) 571-4218. Date Mailed: November 1, 2007. 2 25A-166