Loading...
HomeMy WebLinkAbout25G - BICENTENNIAL FESTIVITIESREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: April 5, 2010 TITLE: AGREEMENT FOR EVENT /ENTERTAINMENT MANAGEMENT SERVICES TO OPERATE THE 2010 BICENTENNIAL FESTIVITIES Ce )4r CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2 "d Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER Direct the City Attorney to prepare and authorize the City Manager and the Clerk of the Council to execute an agreement with Velasquez Publishing & Promotions, and an agreement with MXLive to provide event/entertainment management services for the 2010 Bicentennial festivities DISCUSSION September 16, 2010 will mark the 200th anniversary of Father Hidalgo's call (EI Grito) for Mexico's independence from Spain. The Fourth Street Mexican Independence Day Festivities has been a positive community event supported by the downtown businesses and the community for the past 21 years. Traditionally, this event has included a downtown fiesta and carnival, a parade, and an El Grito ceremony. Since 1989, there have been various private and public organizers of this event including the City, the former Downtown Business Association, the Business Improvement District and other private organizations. Given the significance of the Bicentennial, staff recommends that the City formally organize the following 2010 celebration events and cultural activities.. an official El Grito ceremony on September 15; a Bicentennial festival including a carnival on Fourth Street in Downtown on September 18 and 19; a symbolic El Grito ceremony on Saturday September 18; and a parade on Sunday, September 19. Other activities will include a series of city -wide Mexican Independence cultural events highlighting the historical significance of the El Grito Bicentennial. The City's sponsorship and management of this event will ensure maximum civic involvement and a minimal adverse impact on public resources. 25G -1 2010 Fiestas Patrias April 5, 2010 Page 2 In years past, various organizations including the City, have organized the Fourth Street Mexican Independence Day Festival, and have contracted with a commercial promoter to operate the event. It is recommended that this same course be followed for 2010. It is also recommended that the planning of the parade be integrated with the Fourth Street Bicentennial Festival to ensure that festival revenues are available to reimburse the City for public safety and traffic management costs generated by the parade. The agreements shall provide that Velasquez Publishing & Promotions, and MXLive will be responsible for meeting the usual City requirements for special events such as insurance and security, assume all costs for organizing and conducting the event, reimburse the City for all of its costs including but not limited to police and traffic services. Staff has established a community participation system to ensure that all stakeholders including the Mexican Consulate, downtown merchants, property owners and civic groups are actively engaged in the planning and implementation of the activities. FISCAL IMPACT There is no fiscal impact associated with this request. 25G -2 MEMORANDUM To: Mayor and City Council Date: April 2, 2010 From: City Manager Subject: 2010 Bicentennial Festivities For your information, I have attached the agreements with Velasquez Publishing & Promotions, and MXLive to provide event/entertainment management services for the 2010 Bicentennial Festivities. These agreements are on the City Council agenda (item 25G) for Monday's City Council meeting. Please let me know if you have any questions. David N. Ream 25G -1 AGREEMENT WITH VELAZQUEZ PUBLISHING TO PRODUCE THE 2010 SEPTEMBER MEXICAN BICENNTENNIALDOWNTOWN FESTIVAL This Agreement is entered into on April 5, 2010, by and between the City of Santa Ana, a charter City and municipal corporation duly organized and existing under the Constitution and laws of the state of California, ( "City") and Velazquez Publishing, (hereinafter referred to as "Event Producer ") RECITALS A. The City desires to retain a company having special skill and knowledge in the field of promotion of special events in order to plan and produce the 2010 September Mexican Bicentennial Downtown Festival (hereinafter "Event ") for the City. B. Event Producer has produced said Event in previous years. C. Event Producer shall ensure that the Event remains a positive, family- oriented event reflective of the community. D. Event Producer represents that it is able and willing to provide such services to the City. E. In undertaking the performance of this Agreement, Event Producer represents that it is knowledgeable in its field and that any services performed by Event Producer under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional Event Producer in the field. SCOPE OF WORK Event Producer shall produce said Event on September 18 and 19, 2010, in the downtown area of Santa Ana as described in Exhibit A and Exhibit B "Fiestas de Independecia 2010 Agreement" dated March 24, 2010 (between Velazquez Publishing and MXLive Entertainment hereinafter referred to as "Service Agreement ") attached hereto and incorporated herein by reference. Additional terms included in Scope of Work shall be: a) EVENT HOURS. Event hours will be during the following time periods: i) Saturday, September 18, 2010: 12:00 p.m. to 10 p.m. for the festival with the carnival closing at 12 a.m. ii) Sunday, September 19, 2010: 12:00 p.m. To 9:00 p.m. for the festival with the carnival closing at 10 p.m. b) LAYOUT and BOOTHS. City shall retain the right to approve the general layout of said Event, including the placement of booths, stages, etc., Boundaries of the event shall extend from the east side of Birch to the west side of Minter on Fourth Street. Third Street from the east side of Spurgeon to the east side of French. Sycamore, Bush, and French Streets from the south side of Fifth Street to the north side of Third Street. Main Street from the south side of Fifth to the north side of First Street. c) THEME. If a theme is considered in addition to the Mexican Bicentennial, City and Event Producer must reach mutual agreement as to said theme. 25G -2 d) ENTERTAINMENT. City shall retain final approval over all entertainment. City at its sole discretion and/or for any reason may reject entertainment chosen by Event Producer. Event Producer shall produce a complete schedule for the main stage listing each performer, their popularity rating, and their associated time slot before August 15, 2010. City will provide final approval before August 25, 2010, at which time City will provide written approval in the form of a letter from the City Manager or his designee. The stage located at the intersection of Fourth and Mortimer Streets shall be reserved for the official "El Grito" from 6:30 p.m. until 9 p.m. on Saturday, September 18, 2010, at which time all advertising on stage if any, shall be removed, cloaked, or hidden from display. The "El Grito" shall be conducted by the Mexican Consul. The ceremony shall be coordinated between the City, Mexican Consul and the event Producer. C) STAGES. A minimum of two stages and associated entertainment shall be programmed and produced during the event duration. One stage each provided by each Event Producer. One stage shall be located at the intersection of Mortimer and 4th Street. One stage shall be located at the intersection of Broadway and Fourth Streets as outlined in the Service Agreement. f) ALCOHOL and TOBACCO. Event Producer agrees not to sell or distribute or allow the sale of or distribution of any tobacco products during the Fiestas event. Sponsorship by alcohol product companies shall be considered, but must be pre - approved by City. Absolutely no direct tobacco product advertising shall be allowed within or associated with the Event. Neither tobacco product advertising nor alcohol product advertising shall be distributed to minors. g) PRESS RELEASES and PROMOTIONS. City shall receive copies of all press releases and advertising for the event at least 72 hours prior to the use in the Event promotion. Event Producer will provide to City all distributed documents related to marketing, promotions and administration as distributed. All promotional materials shall include the City of Santa Ana Downtown Orange County Logo. h) SPONSORSHIP. City shall receive copies of all sponsorship agreements for the Event. All sponsorship agreements /contracts must be between Velazquez Publishing (Event producer) and the participating sponsor and not third parties. Sponsor must pay Event Producer directly and not to third parties. i) FEES. Event Producer shall be responsible for all fees and/or costs associated with this event including, but not limited to, additional Police, Fire, Code Enforcement and Public Works; additional security including coverage for downtown parking garages; graffiti removal; and street cleaning j) TRASH. Event Producer will maintain continuous litter control during the entire Event and impose adequate mitigation measures to ensure the removal and disposal of grease from food and/or cooking booths, including but not limited to the use of grease barrels. k) EQUIPMENT. Event Producer shall provide all necessary equipment, resources and manpower to develop and produce the Event. Equipment is to include lighting for all vendor booths which is to be maintained and fully illuminated until all attendees have vacated the festival and carnival grounds as per the Service Agreement. 1) RIGHT OF FIRST REFUSAL. Event Producer shall provide right of first refusal to merchants with businesses along 4th Street and in the Fiesta Marketplace for booths located in front of said businesses at a discounted rate. Requests and payment by merchants for booths are to be received no later than August 1, 2010. m) DISCOUNTED BOOTHS. Event Producer shall provide twelve (12) non - corporate sponsor booths at a discounted rate to the City of Santa Ana Bicentennial Advisory 25d -3 Committee. Requests by the advisory committee for booths are to be received no later than August 1, 2010. Booths are to be located on Fourth Street between Bush Street and Sycamore Street at the rate of $600.00 per 10" by 10" booth. Payment for said booth is to be received no later than August 1, 2010. n) FINANCIAL LEDGER. Event Producer shall maintain a "financial ledger" specifically detailing all expenses /cost and revenues generated from said Event in order to determine net revenue. Within 30 days after the Event, Event Producer shall provide the City the financial ledger independently from other Event Producer. Moreover, within thirty (30) days after the Event, Event Producer shall reimburse the City all City related costs and expenses as specified in the Service Agreement. i. LOFTS. Velazquez Publishing shall exercise caution and special measures to ensure minimal disruption to Loft owners and tenants, including: a. Blocking off the sidewalks on 3rd Street in front of Lofts b. Velazquez Publishing - Promotions shall assume responsibility for any damage done to the Lofts during the course of the Event, including assembly and disassembly c. Velazquez Publishing - Promotions shall make certain that street meters in front of Lofts shall be reserved for Loft owners and their guests, clients, and/or customers d. Velazquez Publishing - Promotions shall compensate Loft owners with pets who choose to board their pets from Thursday through Monday e. Velazquez Publishing - Promotions shall compensate those Loft owners who choose to stay at a hotel on Saturday and Sunday, during the Event, at a maximum of $100 /per day. o) CARNIVAL. A carnival shall be provided on Third Street from Sycamore to Spurgeon, on Bush from Fourth to Third, and on the Third and Bush surface parking lot. p) OPERATIONAL CONDITIONS. Event Producer shall be required to comply with the attached "Operational Conditions /Scope of Work" describing the scope of tasks for which Event Producer shall be responsible. Said "Operational Conditions /Scope of Work" is attached hereto and incorporated herein in Exhibit A and B. q) QUIET HOURS. Specific to 3rd Street: There shall be designated quiet times as follows: Thursday, Friday, Sunday from 10:00 p.m. through 7:00 a.m., and Saturday from 12:00 a.m. through 8:00 a.m. Quiet hours shall be strictly adhered to by all vendors. 2. TERM. City shall grant Event Producer a one time Event Agreement for the year 2010. 3. COMPENSATION. Event Producer shall reimburse as stipulated in the Service Agreement the City for all fees and/or costs associated with the parade including but not limited to additional Police, Fire, Code Enforcement Public Works and private contracts. The Event Producer shall reimburse the City for a maximum of $45,000.00 for all fees and/ or costs associated with the parade. Event Producer shall be required to reimburse the City no later than October 19, 2010. The Traffic Control equipment private 256-4 contract in the amount of $9,800.00 shall be paid to the City no later than August 1, 2010 as stipulated in the Service Agreement. 25d-5 4. LIMITATION OF LIABILITY Without limiting any express financial or liability provisions provided for in this Agreement, City shall not be liable to Promoter for any indirect, consequential, exemplary, special, incident or putative damages, including, without limitation, lost business, revenue, profits or goodwill, arising in connection with this Agreement under any theory of tort, contract, warranty, strict liability or negligence. The foregoing limitation applies to all causes of action and claims, including but not limited to Breach of Contract, Negligence, Strict Liability Misrepresentation and other torts. It is further understood and agreed that City shall not be responsible for any loss or damage caused by EVENT PROTEST, hostile or warlike action, civil disorders or any governmental action, whether such loss be direct or indirect, proximate or remote. 5. INDEPENDENT CONTRACTOR Event Producer is an independent CONTRACTOR and not an employee of City and all of CONTRACTOR'S personnel shall be employees or subcontractors of Event Producer and not employees of the City. Event Producer 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. 6. MISCELLANEOUS PROVISIONS a. Event Producer covenants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of services required hereunder. b. Event Producer will not discriminate against any employee, or applicant for employment, because of race, color, religion, sex, marital status, or national origin. Event Producer will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, marital status, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. C. This Agreement may be terminated by City upon ten (10) days written notice of termination. 7. CONFLICT OF INTEREST CLAUSE Event Producer covenants that it presently has no interests and shall not have interests, direct or indirect, who would conflict in any manner with performance of services specified under this Agreement. 25d-6 INSURANCE Prior to undertaking performance of work under this Agreement, Event Producer shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Event Producer shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) 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 Event Producer'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 $1,000,000 per occurrence. Event Producer shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B 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 $1,000,000 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, Event Producer, if Event Producer 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, Event Producer agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Event Producer 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 Event Producer pursuant to this section: (i) Event Producer 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. f. If Event Producer 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. Such termination shall not effect Event Producer's right to be paid for its time and materials expended prior to notification of termination. Event Producer waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6 25G -7 9. 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, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: and, 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 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 Event Producer: Velazquez Publishing - Promotions Attn: Mr. Sergio Velazquez 2025 S. Main Santa Ana, CA 92707 Telephone: (714) 668 -1010 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. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. CONTRACT ADMINISTRATOR The City Manager or his 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. 11. EXCLUSIVITY AND AMENDMENT 7 25G -8 This Agreement represents the complete and exclusive statement between the City and Event Producer, 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, 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 Event Producer. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Event Producer or the City. 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 party that are not embodied herein. 12. DISCRIMINATION Event Producer 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. Event Producer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 13. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government 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. 14. INDEMNIFICATION AND HOLD HARMLESS CLAUSE Event Producer agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, 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 Event Producer or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable, including any claims made by artist or representatives of artist that the City has violated any copyright law(s) 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 Section or by reason of the terms of, or effects, arising from this Agreement. The Event Producer 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. 8 25G -9 15. BREACH Inasmuch as this Agreement is intended to secure the specialized services of the Event Producer to perform all necessary functions and activities for the two (2) day September Festival of September 18 and 19, 2010 in Downtown Santa Ana, failure by Event Producer to perform the Scope of Work, at a minimum specified in Section 1(a) -(s) and Exhibit A, shall be considered a material breach of this agreement. The City shall be entitled to all legal and equitable remedies including but not limited to incidental and consequential damages. 16. ASSIGNABILITY Inasmuch as this Agreement is intended to secure the specialized services of Event Producer, Event Producer 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 Event Producers retained by City. 17. COMPLIANCE WITH COPYWRITE LAWS Event Producer understands that the songs used by its performers may be copywritten music pursuant to federal law, and, if so, that the Artist may have certain rights relative thereto. This Agreement is explicitly made subject to the artist rights under any such agreement and any applicable law or regulation, if any. To the extent that there is a conflict between any such agreement, applicable law or regulation and this Agreement, the terms of such, applicable law or regulation shall prevail. Event Producer shall defend, indemnify and save harmless City, its officers, agents, volunteers and employees, against any and all damages from any and all claims, demands, suits, actions, or proceedings of any kind of nature, including, but not by way of limitation, violations of federal copywrite laws and/or regulations or by any one whomsoever, in any way resulting from or arising out of Event Producer's acts or omissions in connection with this Agreement, including acts or omissions of subcontractors and acts or omissions of employees or agents of Event Producer or its subcontractors. 18. LICENSES Event Producer 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. Event Producer shall notify the City immediately and in writing of her inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 9 25G -10 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager RECOMMENDED FOR APPROVAL: EVENT PRODUCER David N. Ream City Manager Velazquez Publishing By: Sergio Velazquez 10 25G -11 OPERATIONAL CONDITIONS EXHIBIT A 1. Set up conditions — As stipulated in the Service Agreement a. Velazquez Publishing shall provide all necessary equipment, resources and manpower to develop and produce the Event as agreed to in the Service Agreement. b. Street closures for the carnival will begin Thursday, September 16, from 6:00 p.m. through 10:00 p.m., and may resume on Friday, September 17 no earlier than 8:00 a.m. c. Street closures for the remainder of the festival boundaries will begin Friday, September 17 at 6:00 a.m. with the exception of Main Street and Broadway which will close at 8 p.m. on Friday, September 17. d. "No Parking" signage must be posted on those portions of the street that will be affected by the closure 24 hours in advance of the event. Said posting shall be conducted by City staff and reimbursed by Velazquez Publishing. e. Velazquez Publishing shall pay for the set up of traffic control for the event; barricaded streets are to be staffed by private security maintaining traffic control setup during the event as approved by the City's Risk Management Division following the specification of the City's Public Works Agency's Traffic Division; tear down of traffic control at the end of the event. 2. Trash as stipulated in the Service Agreement a. Velazquez Publishing will maintain continuous litter control during the entire Event to include: i. Maintain a professional cleaning crew during all open times of the event. Velazquez Publishing shall not allow trash to accumulate on the streets & sidewalks at any time during the event. ii. Maintain dumpsters strategically placed throughout the event boundaries to contain trash from the event. Dumpsters shall be placed to avoid the front of establishments, where possible. iii. Sufficient dumpster capacity for all trash generated during the final cleanup of the Event on Sunday evening shall be maintained for those crews. Dumpsters shall be promptly removed at the end of the event and before streets are reopened to the general public. 3. Break down conditions as stipulated in the Service Agreement a. The teardown of the festival will begin at 9:00 p.m. on Sunday, September 19, with the exception of the carnival area. b. Main and Broadway must be open to vehicular traffic no later than 6:00 a.m. on Monday, September 13. c. The entire festival boundaries must be open to vehicular traffic no later than 8:00 a.m., Monday, September 13, with the exception of the carnival area. d. The teardown of the carnival area on 3rd Street between Main and French and on Bush Street between 3rd Street and 4th Street cannot begin until 7:00 a.m. on Monday, September 13, and must be completed and open to traffic no later than 5:00 p.m. on Monday, September 14. 1 25G -12 OPERATIONAL CONDITIONS 4. Clean up as stipulated in the Service Agreement a. Cleaning of the sidewalks in front of the lofts'on Third Street and the streets within the food court areas of the festival will be steam cleaned by a contractor approved by the City. Velazquez Publishing - Promotions shall have all areas cleaned beginning Monday, September 13 and completed no later than Friday, September 17. Loft owners shall be provided 24 hours notice before sidewalks in front of the Lofts are steam cleaned. b. Access must be provided for emergency vehicles at all times (Minimum 20 foot width). 5. Vendor /Sponsor/Food booth management — Ownership as stipulated in the Service Agreement a. Vendorlbooth vehicles cannot reenter the Festival once it has started and until 10:30 p.m. on Saturday and 10:30 p.m. on Sunday night or until it is determined to be safe for the general public by the Police Department Official in charge at the Fiesta. b. All ticket sales at any booth including the Carnival must cease one hour prior to closing of the festival each night. c. All noise generated by this event shall remain within levels specified in S.A.M.C. Section 18 -132. Specifically noise levels shall not exceed 55 db between the hours of 7 a.m. to 10 p.m. and not to exceed 50 db between the hours of 10 p.m. to 7 a.m. S.A.M.C. Section 10 -153 (Loud and Raucous Notice) must be abided by all at all times. d. All booths' canopy support poles closest to the public sidewalk must be kept pushed up to the curb at all times. The front support posts cannot be placed past the gutter. e. Vendor vehicles must park in assigned locations at all times. Vendor vehicles parked in unauthorized locations will be towed at the vendor's expense. f A 20 -foot wide fire lane must be maintained behind. each stage�at all times. Any vehicles blocking this area will be towed at the owner's expense. g. Vendor booths are prohibited from placing items on the public sidewalk except in those areas as approved on the official site plan, and are prohibited from attaching rear tarp or stacking merchandise that obstructs street visibility to the retail storefronts behind the booths. h. Portable fire extinguishers are required for all booths and rides. i. No tables, chairs or other items can be placed in front of the approved booth locations. j. All booths must maintain their area in a clean condition at all times. It is prohibited to dump trash, food, etc on the event grounds. It is further prohibited to dump grease anywhere, except in pre- approved containers. Failure to follow these rules will result in loss of security deposit. k. No flyers, newspapers, and/or pamphlets are to be distributed except by booth vendor or sponsor with prior city approval. 1. No speakers outside booth and no live entertainment are allowed except on the approved stages or by prior city approval. 2 25G -13 OPERATIONAL CONDITIONS m. There will be NO amplified music or vocal presentations allowed in vendor booths within the event except where previously authorized in writing by the City and on the main entertainment stage and the community stage. n. All cooking in all booths at the Fiesta must cease cooking a minimum of one hour prior to the closing of the festival each night, i.e. Saturday at 9:00 p.m., Sunday at 8:00 p.m. Vendors may not sell or give away product after the closing time of the event. o. City shall retain ownership of the complete sponsorship list to include any and all additional sponsors that are acquired during the course of this License Agreement. Velazquez Publishing - Promotions shall be required to submit, in electronic format, all records relating to the event to City. Said list shall include specific points of contact with addresses and phone numbers. p. It is prohibited to sell canned or glass beverages without City approval. q. All food booths must comply with all state health regulations at all times. r. Food vendors must obtain a California Health Permit, and must obey all health laws. s. Food vendors must have a fire extinguisher that is up to date, or vendor will not be permitted to serve food. t. No homemade gas lines or propane bottles or use of charcoal is permitted. u. All booths must have a City of Santa Ana Business License or a One -Day Peddlers License. 6. Carnival as stipulated in the Service Agreement a. Carnival can begin set up of rides at 6:00 p.m., Thursday, September 16. b. Carnival will not be allowed to store equipment prior to the set up time on City owned property and City right of way without prior city approval. c. Carnival staff will not be allowed to sleep inside the Festival boundaries. d. Carnival must supply restroom facilities for their staff during set up. e. Carnival must provide 2 state licensed uniformed guards in the carnival area overnight each day of the festival. 7. Conditions during event as stipulated in the Service Agreement a. Access must be provided for emergency vehicles at all times (Minimum 20 foot width). b. Velazquez Publishing agrees not to sell or distribute any alcohol or tobacco products during the Festival event or allow massage related vendors. c. Velazquez Publishing will pay for a standing fire watch during the entire event. d. Velazquez Publishing will pay for code enforcement during the event. e. Velazquez Publishing will pay for all police personnel needed to protect the safety of people attending the event, crowd control, etc. during the entire event. f. Velazquez Publishing will pay for all City Community Development Agency support staff, Parks and Recreation staff, and City equipment. g. Velazquez Publishing will pay for event Insurance. h. Velazquez Publishing will pay for required state licensed uniformed security staffing at the levels set by the City Police Department. Said staffing shall cover perimeter barricades, overnight security, roving patrol during the event, Federal property protection, and security for stages. The security staff shall take final direction and instruction from the City Police Department supervisor in charge of the event. i. Velazquez Publishing shall provide and pay for additional fencing and protection for the entertainment stages as determined by the City Police Department. 3 25G -14 OPERATIONAL CONDITIONS j. Event hours will be during the following time periods: i. Saturday, September 18: 12:00 p.m. to 10:00 p.m., Carnival will end at 12:00 a.m. ii: Sunday, September 19: 12:00 p.m. to 9:00 p.m., Carnival will end at 10:00 p.m. k. The stage will be activated during the following time periods of the festival: i. Saturday, September 18: 12:00 p.m. to 10:00 p.m. ii. Sunday, September 19: 12:00 p.m. to 8:00 p.m. Entertainment on any stage is prohibited from tossing giveaways into the crowd. This also applies to the live remotes from any radio station. Artist autograph sessions are prohibited without prior city approval Final entertainment schedules are to be provided to the city two weeks prior to the scheduled festival. 4 25G -15 Fiestas de Independencia 2010 Agreement This agreement made March 24, 2010 by and between Velazquez Publishing located at 2025 S. Main Street, Santa Ana, CA 92707 and MX Live Entertainment located at 3 Hutton Centre Dr., Suite 810, Santa Ana, CA 92707. It is mutually agreed between the parties as follows: . Velazquez Publishing and MX Live Entertainment hereby agree to furnish entertainment and execution of "Santa Ana's Fiestas de Independencia 2010" as follows: 1. Place of Engagement: 4th Street, Santa Ana, California 2. Dates of Engagement: Saturday and Sunday, September 18 and 19, 2010 3. Velazquez Publishing will contract and order all services needed for the production of the street festival such as: • City of Santa Ana services: police, fire, code enforcement, Community Development Agency staff, event permit, meter posting, meters, etc. • Logistics: canopies, electricity, trash cans and dumpsters, portable toilets, communications, etc. • Traffic control equipment and setup • Security services • Notice to businesses • Boarding of loft residents and their pets if requested • Steam cleaning of First American Title's parking lot, lofts' sidewalks and other areas as needed • Clean up during and after the event • Other services as needed 4. Velazquez Publishing will produce, manage and cover all costs associated with a stage at the intersection of 4th and Mortimer 5. MX Live Entertainment will produce, manage and cover all costs associated with a stage at the intersection of 4th and Broadway. 6. Velazquez Publishing and MX Live will independently cover all costs of their respective stage including: • Stage • Talent • Sound equipment • Lighting • Electrical generator • Fencing and barricades • Portable toilets and sinks (back stage) • Security 25G -16 7. MX Live has requested and will sell (36) thirty -six 10'x10' booths or spaces. Placement of booths or spaces assigned to MX Live will start near MX Live's stage at the intersection of 4th Street and Broadway and will continue East on 0' Street. MX Live's 36 booths or spaces will be located on 4t' Street between Broadway and Main Street. 8. Velazquez Publishing and MX Live hereby agree to share all costs associated with the production of the street festival indicated in item 3 as follows: Velazquez .Publishing is responsible for 64% of total costs. MX Live is responsible for 3 6% of total costs. 9. With the exception of City of Santa Ana services, Velazquez Publishing is billed and required to pay for all services indicated in item 3 prior to the event. MX Live must pay Velazquez Publishing 36% of the total costs as follows: 550% on or before August 11, 2010, and the remaining 50% balance on or before August 27, 2010. 10. If full payment is not received by Velazquez Publishing on or before August 27, 2010, this contract is null and void. 11. Velazquez Publishing and MX Live hereby agree to share all City of Santa. Ana costs associated with the production of the street festival and parade as follows: Velazquez Publishing is responsible for 64% of the City's costs. MX Live is responsible for 3 6% of the City's costs. The City of Santa Ana will independently execute contracts with Velazquez Publishing and MX Live. The City of Santa Ana will independently bill Velazquez Publishing and MX Live after the event. 12. Revenue generated from parade participating sponsors contracted by either Velazquez Publishing or MX Live will be used to offset the City of Santa Ana parade costs. The balance will be shared by Velazquez Publishing and MX Live as indicated in item 11. 13. Carnival revenue will be shared as follows: Velazquez Publishing will pay MX Live 36% of the revenue as soon as it is received from the carnival operator. 14. Advertising will be discretionary. MV Live is not required to share the cost of Velazquez Publishing's advertising expenses. Velazquez Publishing is not required to share the cost of MX Live's advertising expenses. 15. MX Live Entertainment has agreed to honor Velazquez Publishing's revenue from past years' sponsors. In the event MX Live can generate higherrevenue from Velazquez Publishing's previous sponsors, MX Live will pay Velazquez Publishing an amount equal to that sponsor's previous years' contribution. Velazquez Publishing's past sponsors can be found in 2008 and 2009 promotional materials. By. 6Z cia MX Live Entertainment By. Ser o Velazquez, resident Velazquez Publishing 25G -17 AGREEMENT WITH MXLIVE ENTERTAINMENT TO PRODUCE THE 2010 SEPTEMBER MEXICAN BICENNTENNIALDOWNTOWN FESTIVAL This Agreement is entered into on April 5, 2010, by and between the City of Santa Ana, a charter City and municipal corporation duly organized and existing under the Constitution and laws of the state of California, ( "City") and MXLive Entertainment, (hereinafter referred to as "Event Producer "). RECITALS A. The City desires to retain a company having special skill and knowledge in the field of promotion of special events in order to plan and produce the 2010 September Mexican Bicentennial Downtown Festival (hereinafter "Event ") for the City. B. Event Producer has produced similar Events in previous years. C. Event Producer shall ensure that the Event remains a positive, family- oriented event reflective of the community. D. Event Producer represents that it is able and willing to provide such services to the City. E. In undertaking the performance of this Agreement, Event Producer represents that it is knowledgeable in its field and that any services performed by Event Producer under this Agreement will be performed in compliance with such standards as may reasonably be expected from a professional Event Producer in the field. 1. SCOPE OF WORK Event Producer shall produce said Event on September 18 and 19, 2010, in the downtown area of Santa Ana as described in Exhibit A and Exhibit B "Fiestas de Independecia 2010 Agreement" dated March 24, 2010 (between Velazquez Publishing and MXLive Entertainment hereinafter referred to as "Service Agreement ") attached hereto and incorporated herein by reference. Additional terms included in Scope of Work shall be: a) EVENT HOURS. Event hours will be during the following time periods: i) Saturday, September 18, 2010: 12:00 p.m. to 10 p.m. for the festival with the carnival closing at 12 a.m. ii) Sunday, September 19, 2010: 12:00 p.m. To 9:00 p.m. for the festival with the carnival closing at 10 p.m. b) LAYOUT and BOOTHS. City shall retain the right to approve the general layout of said Event, including the placement of booths, stages, etc., Boundaries of the event shall extend from the east side of Birch to the west side of Minter on Fourth Street. Third Street from the east side of Spurgeon to the east side of French. Sycamore, Bush, and French Streets from the south side of Fifth Street to the north side of Third Street. Main Street from the south side of Fifth to the north side of First Street. 1 25G -18 C) THEME. If a theme is considered in addition to the Mexican Bicentennial, City and Event Producer must reach mutual agreement as to said theme. d) ENTERTAINMENT. City shall retain final approval over all entertainment. City at its sole discretion and/or for any reason may reject entertainment chosen by Event Producer. Event Producer shall produce a complete schedule for the main stage listing each performer, their popularity rating, and their associated time slot before August 15, 2010. City will provide final approval before August 25, 2010, at which time City will provide written approval in the form of a letter from the City Manager or his designee. The stage located at the intersection of Fourth and Mortimer Streets and provided by other Event Producer shall be reserved for the official "El Grito" from 6:30 p.m. until 9 p.m. on Saturday, September 18, 2010, at which time all advertising on stage if any, shall be removed, cloaked, or hidden from display. The "El Grito" shall be conducted by the Mexican Consul. The ceremony shall be coordinated between the City, Mexican Consul and the Event Producer. e) STAGES. A minimum of two stages and associated entertainment shall be programmed and produced during the event duration. One stage each provided by each Event Producer. One stage shall be located at the intersection of Mortimer and 4th Street. One stage shall be located at the intersection of Broadway and Fourth Streets as outlined in the Service Agreement. f) ALCOHOL and TOBACCO. Event Producer agrees not to sell or distribute or allow the sale of or distribution of any tobacco products during the Fiestas event. Sponsorship by alcohol product companies shall be considered, but must be pre - approved by City. Absolutely no direct tobacco product advertising shall be allowed within or associated with the Event. Neither tobacco product advertising nor alcohol product advertising shall be distributed to minors. g) PRESS RELEASES and PROMOTIONS. City shall receive copies of all press releases and advertising for the event at least 72 hours prior to the use in the Event promotion. Event Producer will provide to City all distributed documents related to marketing, promotions and administration as distributed. All promotional materials shall include the City of Santa Ana Downtown Orange County Logo. h) SPONSORSHIP. City shall receive copies of all sponsorship agreements for the Event. All sponsorship agreements /contracts must be between MXLive Entertainment (Event producer) and the participating sponsor and not third parties. i) FEES. Event Producer shall be responsible for all fees and/or costs associated with this event including, but not limited to, additional Police, Fire, Code Enforcement and Public Works; additional security including coverage for downtown parking garages; graffiti removal; and street cleaning j) TRASH. Event Producer will maintain continuous litter control during the entire Event and impose adequate mitigation measures to ensure the removal and disposal of grease from food and/or cooking booths, including but not limited to the use of grease barrels. k) EQUIPMENT.. Event Producer shall provide all necessary equipment, resources and manpower to develop and produce the Event. Equipment is to include lighting for all vendor booths which is to be maintained and fully illuminated until all attendees have vacated the festival and carnival grounds as per the Service Agreement. 1) RIGHT OF FIRST REFUSAL. Event Producer shall provide right of first refusal to merchants with businesses along 4th Street and in the Fiesta Marketplace for booths located in front of said businesses at a discounted rate. Requests and payment by merchants for booths are to be received no later than August 1, 2010. 2 25G -19 m) DISCOUNTED BOOTHS. Event Producer shall provide twelve (12) non - corporate sponsor booths at a discounted rate to the City of Santa Ana Bicentennial Advisory Committee. Requests by the advisory committee for booths are to be received no later than August 1, 2010. Booths are to be located on Fourth Street between Bush Street and Main Street at the rate of $600.00 per 10" by 10" booth. Payment for said booth is to be received no later than August 1, 2010. n) FINANCIAL LEDGER. Event Producer shall maintain a "financial ledger" specifically detailing all expenses /cost and revenues generated from said Event in order to determine net revenue. Within 30 days after the Event, Event Producer shall provide the City the financial ledger independently from other Event Producer. Moreover, within thirty (30) days after the Event, Event Producer shall reimburse the City all City related costs and expenses as specified in the. Service Agreement. i. LOFTS. MXLive Entertainment shall exercise caution and special measures to ensure minimal disruption to Loft owners and tenants, including as stipulated in the Service Agreement: a. Blocking off the sidewalks on 3rd Street in front of Lofts b. MXLive Entertainment - Promotions shall assume responsibility for any damage done to the Lofts during the course of the Event, including assembly and disassembly c. MXLive Entertainment - Promotions shall make certain that street meters in front of Lofts shall be reserved for Loft owners and their guests, clients, and/or customers d. MXLive Entertainment - Promotions shall compensate Loft owners with pets who choose to board their pets from Thursday through Monday e. MXLive Entertainment - Promotions shall compensate those Loft owners who choose to stay at a hotel on Saturday and Sunday, during the Event, at a maximum of $100 /per day. Q) CARNIVAL. A carnival shall be provided on Third Street from Sycamore to Spurgeon, on Bush from Fourth to Third, and on the Third and Bush surface parking lot. P) OPERATIONAL CONDITIONS. Event Producer shall be required to comply with the attached "Operational Conditions /Scope of Work" describing the scope of tasks for which Event Producer shall be responsible. Said "Operational Conditions /Scope of Work" is attached hereto and incorporated herein in. Exhibit A and B. q) QUIET HOURS. Specific to 3rd Street: There shall be designated quiet times as follows: Thursday, Friday, Sunday from 10:00 p.m. through 7:00 a.m., and Saturday from 12:00 a.m. through 8:00 a.m. Quiet hours shall be strictly adhered to by all vendors. 2. TERM. City shall grant Event Producer a one time Event Agreement for the year 2010. 3. COMPENSATION. Event Producer shall reimburse as stipulated in the Service Agreement the City for all fees and /or costs associated with the parade including but not limited to additional Police, Fire, Code Enforcement Public Works and private contracts. The Event Producer shall reimburse the City for a 3 25G -20 maximum of $45,000.00 for all fees and/ or costs associated with the parade. Event Producer shall be required to reimburse the City no later than October 19, 2010. The Traffic Control equipment private contract in the amount of $9,800.00 shall be paid to the City no later than August 1, 2010 as stipulated in the Service Agreement. 4 25G -21 4. LIMITATION OF LIABILITY Without limiting any express financial or liability provisions provided for in this Agreement, City shall not be liable to Promoter for any indirect, consequential, exemplary, special, incident or putative damages, including, without limitation, lost business, revenue, profits or goodwill, arising in connection with this Agreement under any theory of tort, contract, warranty, strict liability or negligence. The foregoing limitation applies to all causes of action and claims, including but not limited to Breach of Contract, Negligence, Strict Liability Misrepresentation and other torts. It is further understood and agreed that City shall not be responsible for any loss or damage caused by EVENT PROTEST, hostile or warlike action, civil disorders or any governmental action, whether such loss be direct or indirect, proximate or remote. INDEPENDENT CONTRACTOR Event Producer is an independent CONTRACTOR and not an employee of City and all of CONTRACTOR'S personnel shall be employees or subcontractors of Event Producer and not employees of the City. Event Producer 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. 6. MISCELLANEOUS PROVISIONS a. Event Producer covenants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of services required hereunder. b. Event Producer will not discriminate against any employee, or applicant for employment, because of race, color, religion, sex, marital status, or national origin. Event Producer will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, marital status, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. This Agreement may be terminated by City upon ten (10) days written notice of termination. 7. CONFLICT OF INTEREST CLAUSE Event Producer covenants that it presently has no interests and shall not have interests, direct or indirect, who would conflict in any manner with performance of services specified under this Agreement. 25G -22 Prior to undertaking performance of work under this Agreement, Event Producer shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Event Producer shall maintain commercial general liability insurance naming the City, its officers, agents, volunteers, and employees as additional insured(s) 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 Event Producer'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 $1,000,000 per occurrence. Event Producer shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B 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 $1,000,000 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, Event Producer, if Event Producer 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, Event Producer agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. If Event Producer 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 Event Producer pursuant to this section: (i) Event Producer 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. f. If Event Producer 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. Such termination shall not effect Event Producer's right to be paid for its time and materials expended prior to notification of termination. Event Producer waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 256-23 9. 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, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: and, 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 City Attorney City of Santa Ana 20 Civic Center Plaza (1\4-29) P.O. Box 1988 Santa Ana, California 92702 telefacsimile (714) 647 -6515 To Event Producer: MXLive Entertainment Attn: Mr. Saul Garcia 3 Hutton Centre Drive, Suite 810 Santa Ana, CA 92707 Telephone: (714) 966 -1788 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. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty -four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. CONTRACT ADMINISTRATOR The City Manager or his 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. 11. EXCLUSIVITY AND AMENDMENT 7 25G -24 This Agreement represents the complete and exclusive statement between the City and Event Producer, 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, 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 Event Producer. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Event Producer or the City. 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 party that are not embodied herein. 12. DISCRIMINATION Event Producer 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. Event Producer affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 13. JURISDICTION - VENUE This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be government 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 fin-ther 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. 14. INDEMNIFICATION AND HOLD HARMLESS CLAUSE Event Producer agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, 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 Event Producer or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement; and (2) from any claim that personal injury, damages, just compensation, restitution, judicial or equitable, including any claims made by artist or representatives of artist that the City has violated any copyright law(s) 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 Section or by reason of the terms of, or effects, arising from this Agreement. The Event Producer 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. 8 25G -25 15. BREACH Inasmuch as this Agreement is intended to secure the specialized services of the Event Producer to perform all necessary functions and activities for the two (2) day September Festival of September 18 and 19, 2010 in Downtown Santa Ana, failure by Event Producer to perform the Scope of Work, at a minimum specified in Section 1(a) -(s) and Exhibit A, shall be considered a material breach of this agreement. The City shall be entitled to all legal and equitable remedies including but not limited to incidental and consequential damages. 16. ASSIGNABILITY Inasmuch as this Agreement is intended to secure the specialized services of Event Producer, Event Producer 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 Event Producers retained by City. 17. COMPLIANCE WITH COPYWRITE LAWS Event Producer understands that the songs used by its performers may be copywritten music pursuant to federal law, and, if so, that the Artist may have certain rights relative thereto. This Agreement is explicitly made subject to the artist rights under any such agreement and any applicable law or regulation, if any. To the extent that there is a conflict between any such agreement, applicable law or regulation and this Agreement, the terms of such, applicable law or regulation shall prevail. Event Producer shall defend, indemnify and save harmless City, its officers, agents, volunteers and employees, against any and all damages from any and all claims, demands, suits, actions, or proceedings of any kind of nature, including, but not by way of limitation, violations of federal copywrite laws and/or regulations or by any one whomsoever, in any way resulting from or arising out of Event Producer's acts or omissions in connection with this Agreement, including acts or omissions of subcontractors and acts or omissions of employees or agents of Event Producer or its subcontractors. 18. LICENSES Event Producer 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. Event Producer 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. 256-26 IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: MARIA D. HUIZAR Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager RECOMMENDED FOR APPROVAL: EVENT PRODUCER David N. Ream City Manager N=ive Entertainment By: Saul Garcia 10 25G -27 OPERATIONAL CONDITIONS EXHIBIT A Set up conditions — As stipulated in the Service Agreement a. MXLive Entertainment shall provide all necessary equipment, resources and manpower to develop and produce the Event as agreed to in the Service Agreement. b. Street closures for the carnival will begin Thursday, September 16, from 6:00 p.m. through 10:00 p.m., and may resume on Friday, September 17 no earlier than 8:00 a.m. c. Street closures for the remainder of the festival boundaries will begin Friday, September 17 at 6:00 a.m. with the exception of Main Street and Broadway which will close at 8 p.m. on Friday, September 17. d. "No Parking" signage must be posted on those portions of the street that will be affected by the closure 24 hours in advance of the event. Said posting shall be conducted by City staff and reimbursed by MXLive Entertainment. e. MXLive Entertainment shall pay for the set up of traffic control for the event; barricaded streets are to be staffed by private security maintaining traffic control setup during the event as approved by the City's Risk Management Division following the specification of the City's Public Works Agency's Traffic Division; tear down of traffic control at the end of the event. 2. Trash as stipulated in the Service Agreement a. MXLive Entertainment will maintain continuous litter control during the entire Event to include: i. Maintain a professional cleaning crew during all open times of the event. MXLive Entertainment shall not allow trash to accumulate on the streets & sidewalks at any time during the event. ii. Maintain dumpsters strategically placed throughout the event boundaries to contain trash from the event. Dumpsters shall be placed to avoid the front of establishments, where possible. iii. Sufficient dumpster capacity for all trash generated during the final cleanup of the Event on Sunday evening shall be maintained for those crews. Dumpsters shall be promptly removed at the end of the event and before streets are reopened to the general public. 3. Break down conditions as stipulated in the Service Agreement a. The teardown of the festival will begin at 9:00 p.m. on Sunday, September 19, with the exception of the carnival area. b. Main and Broadway must be open to vehicular traffic no later than 6:00 a.m. on Monday, September 20. c. The entire festival boundaries must be open to vehicular traffic no later than 8:00 a.m., Monday, September 20, with the exception of the carnival area. d. The teardown of the carnival area on 3rd Street between Main and French and on Bush Street between 3rd Street and 4t' Street cannot begin until 7:00 a.m. on Monday, September 20, and must be completed and open to traffic no later than 5:00 p.m. on Monday, September 14. 1 25G -28 OPERATIONAL CONDITIONS 4. Clean up as stipulated in the Service Agreement a. Cleaning of the sidewalks in front of the lofts on Third Street and the streets within the food court areas of the festival will be steam cleaned by a contractor approved by the City. MXLive Entertainment - Promotions shall have all areas cleaned beginning Monday, September 20 and completed no later than Friday, September 17. Loft owners shall be provided 24 hours notice before sidewalks in front of the Lofts are steam cleaned. b. Access must be provided for emergency vehicles at all times (Minimum 20 foot width). 5. Vendor /Sponsor /Food booth management — Ownership as stipulated in the Service Agreement a. Vendor/booth vehicles cannot reenter the Festival once it has started and until 10:30 p.m. on Saturday and 10:30 p.m. on Sunday night or until it is determined to be safe for the general public by the Police Department Official in charge at the Fiesta. b. All ticket sales at any booth including the Carnival must cease one hour prior to closing of the festival each night. c. All noise generated by this event shall remain within levels specified in S.A.M.C. Section 18 -132. Specifically noise levels shall not exceed 55 db between the hours of 7 a.m. to 10 p.m. and not to exceed 50 db between the hours of 10 p.m. to 7 a.m. S.A.M.C. Section 10 -153 (Loud and Raucous Notice) must be abided by all at all times. d. All booths' canopy support poles closest to the public sidewalk must be kept pushed up to the curb at all times. The front support posts cannot be placed past the gutter. e. Vendor vehicles must park in assigned locations at all times. Vendor vehicles parked in unauthorized locations will be towed at the vendor's expense. f. A 20 -foot wide fire lane must be maintained behind each stage at all times. Any vehicles blocking this area will be towed at the owner's expense. g. Vendor booths are prohibited from placing items on the public sidewalk except in those areas as approved on the official site plan, and are prohibited from attaching rear tarp or stacking merchandise that obstructs street visibility to the retail storefronts behind the booths. h. Portable fire extinguishers are required for all booths and rides. i. No tables, chairs or other items can be placed in front of the approved booth locations. j. All booths must maintain their area in a clean condition at all times. It is prohibited to dump trash, food, etc on the event grounds. It is further prohibited to dump grease anywhere, except in pre- approved containers. Failure to follow these rules will result in loss of security deposit. k. No flyers, newspapers, and/or pamphlets are to be distributed except by booth vendor or sponsor with prior city approval. 1. No speakers outside booth and no live entertainment are allowed except on the approved stages or by prior city approval. 2 25G -29 OPERATIONAL CONDITIONS m. There will be NO amplified music or vocal presentations allowed in vendor booths within the event except where previously authorized in writing by the City and on the main entertainment stage and the community stage. n. All cooking in all booths at the Fiesta must cease cooking a minimum of one hour prior to the closing of the festival each night, i.e. Saturday at 9:00 p.m., Sunday at 8:00 p.m. Vendors may not sell or give away product after the closing time of the event. o. City shall retain ownership of the complete sponsorship list to include any and all additional sponsors that are acquired during the course of this License Agreement. MXLive Entertainment - Promotions shall be required to submit, in electronic format, all records relating to the event to City. Said list shall include specific points of contact with addresses and phone numbers. p. It is prohibited to sell canned or glass beverages without City approval. q. All food booths must comply with all state health regulations at all times. r. Food vendors must obtain a California Health Permit, and must obey all health laws. s. Food vendors must have a fire extinguisher that is up to date, or vendor will not be permitted to serve food. t. No homemade gas lines or propane bottles or use of charcoal is permitted. u. All booths must have a City of Santa Ana Business License or a One -Day Peddlers License. 6. Carnival as stipulated in the Service Agreement a. Carnival can begin set up of rides at 6:00 p.m., Thursday, September 16. b. Carnival will not be allowed to store equipment prior to the set up time on City owned property and City right of way without prior city approval. c. Carnival staff will not be allowed to sleep inside the Festival boundaries. d. Carnival must supply restroom facilities for their staff during set up. e. Carnival must provide 2 state licensed uniformed guards in the carnival area overnight each day of the festival. 7. Conditions during event as stipulated in the Service Agreement a. Access must be provided for emergency vehicles at all times (Minimum 20 foot width). b. MXLive Entertainment agrees not to sell or distribute any alcohol or tobacco products during the Festival event or allow massage related vendors. c. MXLive Entertainment will pay for a standing fire watch during the entire event. d. MXLive Entertainment will pay for code enforcement during the event. e. MXLive Entertainment will pay for all police personnel needed to protect the safety of people attending the event, crowd control, etc. during the entire event. f. MXLive Entertainment will pay for all City Community Development Agency support staff, Parks and Recreation staff, and City equipment. g. MXLive Entertainment will pay for event Insurance. h. MXLive Entertainment will pay for required state licensed uniformed security staffing at the levels set by the City Police Department. Said staffing shall cover perimeter barricades, overnight security, roving patrol during the event, Federal property protection, and security for stages. The security staff shall take final direction and instruction from the City Police Department supervisor in charge of the event. i. MXLive Entertainment shall provide and pay for additional fencing and protection for the entertainment stages as determined by the City Police Department. 3 25G -30 OPERATIONAL CONDITIONS j. Event hours will be during the following time.periods: i. Saturday, September 18: 12:00 p.m. to 10:00 p.m., Carnival will end at 12:00 a.m. ii. Sunday, September 19: 12:00 p.m. to 9:00 p.m., Carnival will end at 10:00 p.m. k. The stage will be activated during the following time periods of the festival: i. Saturday, September 18: 12:00 p.m. to 10:00 p.m. ii. Sunday, September 19: 12:00 p.m. to 8:00 p.m. Entertainment on any stage is prohibited from tossing giveaways into the crowd. This also applies to the live remotes from any radio station. Artist autograph sessions are prohibited without prior city approval Final entertainment schedules are to be provided to the city two weeks prior to the scheduled festival. 4 25G -31 Fiestas de Independencia 2010 Agreement This agreement made March 24, 2010 by and between Velazquez Publishing located at 2025 S. Main Street, Santa Ana, CA 92707 and MX Live Entertainment located at 3 Hutton Centre Dr., Suite 810, Santa Ana, CA 92707. It is mutually agreed between the parties as follows: Velazquez Publishing and MX Live Entertainment hereby agree to fiirn.ish entertainment and execution of "Santa Ana's Fiestas de Independencia 2010" as follows: 1. Place of Engagement: 4th Street, Santa Ana, California 2. Dates of Engagement: Saturday and Sunday, September 18 and 19, 2010 3. Velazquez Publishing will contract and order all services needed for the production of the street festival such as: • City of Santa Ana services: police, fire, code enforcement, Community Development Agency staff, event permit, meter posting, meters, etc. • Logistics: canopies, electricity, trash cans and dumpsters, portable toilets, communications, etc. • Traffic control equipment and setup • Security services • Notice to businesses • Boarding of loft residents and their pets if requested • Steam cleaning of First American Title's parking lot, lofts' sidewalks and other areas as needed • Clean up during and after the event • Other services as needed 4. Velazquez Publishing will produce, manage and cover all costs associated with a stage at the intersection of 4th and Mortimer 5. MX Live Entertainment will produce, manage and cover all costs associated with a stage at the intersection of 4th and Broadway. 6. Velazquez Publishing and MX Live will independently cover all costs of their respective stage including: • Stage • Talent • Sound equipment • Lighting • Electrical generator • Fencing and barricades • Portable toilets and sinks (back stage) • Security 25G -32 7. MX Live has requested and will sell (36) thirty -six 10'x10' booths or spaces. Placement of booths or spaces assigned to MX Live will start near MX Live's stage at the intersection of 4th Street and Broadway and will continue Eas ton 4th Street. MX' Live's 36 booths or spaces will be located on 4"' Street between Broadway and Main Street. S. Velazquez Publishing and MX Live hereby agree to share all costs associated with the production of the street festival indicated in item 3 as follows: Velazquez .Publishing is responsible for 64% of total costs. MX Live is responsible for 36% of total costs. 9. With the exception of City of Santa Ana services, Velazquez Publishing is billed and required to pay for all services indicated in item 3 prior to the event. MX Live must pay Velazquez Publishing 36% of the total costs as follows: 50% on or before August 11, 2010, and the remaining 50% balance on or before August 27, 2010. 10. If full payment is not received by Velazquez Publishing on or before August 27, 2010, this contract is null and void. 11. Velazquez Publishing and MX Live hereby agree to share all City of Santa Ana costs associated with the production of the street festival and parade as follows: Velazquez Publishing is responsible for 64% of the City's costs. MX Live is responsible for 36% of the City's costs. The City of Santa Ana will independently execute contracts with Velazquez Publishing and MX Live. The City of Santa Ana will independently bill Velazquez Publishing and MX Live after the event. 12. Revenue generated from parade participating sponsors contracted by either Velazquez Publishing or MX Live will be used to offset the City of Santa Ana parade costs. The balance will be shared by Velazquez Publishing and MX Live as indicated in item 11. 13. Carnival revenue will be shared as follows: Velazquez Publishing will pay MX Live 36% of the revenue as soon as it is received from the carnival operator. 14. Advertising will be discretionary. MV Live is not required to share the cost of Velazquez Publishing's advertising expenses. Velazquez Publishing is not required to share the cost of MX Live's advertising expenses. 15. MX Live Entertainment has agreed to honor Velazquez Publishing's revenue from past years' sponsors. In the event MX Live can generate higher revenue from Velazquez Publishing's previous sponsors, MX Live will pay Velazquez Publishing an amount equal to that sponsor's previous years' contribution. Velazquez Publishing's past sponsors can be found in 2008 and 2009 promotional materials. By: G cia MX Live Entertainment r` By. Ser o Velazquez, . resident Velazquez Publishing 25G -33