Loading...
HomeMy WebLinkAbout04-111 Resolution No. 04-111 RESOLUTION AUTHORIZING EXECUTION OF A PERFORMANCE AGREEMENT WITH THE ELGIN SYMPHONY ORCHESTRA FOR THE ELGIN FINE ARTS FESTIVAL BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that David M.Dorgan,City Manager,be and is hereby authorized and directed to execute a Performance Agreement on behalf of the City of Elgin with the Elgin Symphony Orchestra for a performance at the Elgin Fine Arts Festival on August 20,2004,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: May 12, 2004 Adopted: May 12, 2004 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Dolonna Mecum Dolonna Mecum, City Clerk ESO PERFORMANCE AGREEMENT This Agreement is made and entered into this *11j',#day of 1 2004,by and between the City of Elgin,Illinois,an Illinois municipal corporation(hereinafter referred to as the"City"),and Elgin Symphony Orchestra,a not-for profit corporation of Illinois(hereinafter referred to as"Artist"). For and in consideration of the mutual promises and undertakings contained herein,and other good and valuable consideration,the sufficiency of which is hereby mutually acknowledged,the parties hereto agree as follows: 1. That Artist will give a performance as follows: Name and Address of Place of Engagement: Wing Park Bandshell,Elgin, IL 60123 Date(s)of Engagement: Friday,August 20,2004 Type of Engagement: Elgin Fine Arts Festival Starting and finishing time of engagement: 7:30 p.m.-9:30 p.m. Number of Musicians: 70 2. City,in consideration of the artistic services of the Artist,shall pay to Artist a total fee of $18,000. Said fee is the total compensation to be paid the Artist inclusive of any and all costs and expenses incurred by the Artist in connection with the subject performance. Payment shall be made to the Artist by check upon completion of the performance. 3. That it is understood and agreed that the Artist has executed this agreement as an independent contractor and is not an employee of the City. This agreement shall not be construed so as to create a joint venture,partnership,employment or other agency relationship between the parties hereto. 4. That the content,nature and medium of the program shall be entirely within discretion of the Artist,except that the City shall have the right to direct the Artist to discontinue any activity constituting a violation of a state statute,applicable ordinances or directions of lawful authority. 5. That no performance shall be recorded,reproduced or transmitted from the place of the performance in any manner or by any means whatsoever in the absence of a specific written agreement with the Artist or the Artist's representative. 6. That the City grants approval for the Artist to sell his/her own recordings or souvenirs prior to the performance,during intermission,and directly after the performance. 7. City may terminate this agreement and cancel the performance upon thirty(30)days prior written notice to the Artist for any or no reason. In the event the City cancels this performance within thirty(30)days of the scheduled date thereof,the Artist shall be paid fifty percent(50%)of the contracted fee. In the event the City cancels this performance within seven(7)days of the scheduled date thereof,the Artist will be paid its full performance fee. 8. That in the event the performance involves an outdoor performance and the City cancels the outdoor performance due to rain,the Artist agrees to perform on the same day indoors,at a later time the same day outdoors or on a later date depending upon the Artist's touring obligations. In the event the outdoor temperature drops below 55 degrees Fahrenheit,the Artist agrees to perform on the same day indoors or on an agreed to later date as mutually agreed by the parties taking into account the Artist's touring obligations. Notwithstanding anything contrary to this agreement,in the event the parties are unable to agree on a later date for the performance the Artist will not be paid any portion of its fee,and shall refund to City any amounts paid by City. 9. That Artist may terminate this agreement and cancel the performance upon sixty(60)days prior written notice to the City in the event of television,motion picture or other major career enhancing engagements. In such event the Artist will not be paid any portion of its fee. 10. That the Artist shall pay all applicable union fees. The Artist hereby indemnifies and holds the City of Elgin,its officers,employees and agents harmless from any and all claims,causes of action or expenses whatsoever relating to same. 11. Indemnification. To the fullest extent permitted by law,Artist agrees to indemnify, defend and hold harmless the City, its officers,employees,boards and commissions from and against any and all claims, suits,judgments,costs,attorney's fees,damages or other relief arising out of or resulting from or through or alleged to arise out of any reckless or negligent acts or omissions of Artist's officers, employees or agents in the performance of this agreement. In the event of any action against the City, its officers,employees,agents,boards or commissions covered by the foregoing duty to indemnify,defend and hold harmless,such action shall be defended by legal counsel of the City's choosing.The provisions of this paragraph shall survive any termination or expiration of this agreement. 12. That this agreement shall be subject to and governed by the laws of the State Illinois. Venue for any action brought pursuant to this agreement shall be in the Circuit Court of Kane County,Illinois. 13. This Agreement,the documents it incorporates and its attachments,if any, constitute the entire Agreement of the parties on the subject matter hereof and may not be changed,modified,discharged or extended except by written amendment duly executed by the parties. 14. In the event any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason,the remainder of this contract shall remain in full force and effect. 15. No official,director,officer,agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval of attempted execution of this Agreement. 16. The terms of this agreement shall be severable. In the event that any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 17. All notices required herein shall be directed to the parties as follows: Jane Gregory,CPRP Artist: Elgin Symphony Orchestra Special Events Coordinator 20 DuPage Ct. 100 Symphony Way Elgin, IL 60120 Elgin, IL 60120 Payable to: Elgin Symphony Orchestra IN WITNESS WHEREOF,the parties have executed this agreement on the date and year first written above. CITY OF ELGIN ARTIST By City Manager Its 3 D i re e �r F #/SS a Agenda Item No. City of Elgin g 1 April 23, 2004 TO: Mayor and Members of the City Council R—REA MAL LEISURE NI}C__l1 LlJ HA I.OFP<>it"T aJNITt F:S F a7R All.('1 iIJF.NS FROM: David M. Dorgan, City Managery Monica Meyers, Parks & Recreation Director SUBJECT: Performance Agreement with the Elgin Symphony Orchestra for the Fine Arts Festival PURPOSE The purpose of this memorandum is to provide the Mayor and members of City Council with information to approve the Performance Agreement with the Elgin Symphony Orchestra for the Fine Arts Festival Concert to be held on Friday, August 20, 2004. RECOMMENDATION It is recommended that the City Council approve the Performance Agreement with the Elgin Symphony Orchestra for the Fine Arts Festival Concert, Friday, August 20 in the amount of $17,000. BACKGROUND For twelve of the thirteen years that the City has sponsored the Fine Arts Festival, the Elgin Symphony Orchestra (ESO) has provided the kick-off concert on Friday evening. This performance, free to the public, will again take place at the Wing Park Bandshell on Friday, August 20 at 7:30 p.m. The ESO has promised an exciting program for all ages. Attached is the Standard Performance Agreement that is utilized with all entertainment contracted with the City. In 2003, 3,000 people attended the Symphony's Friday evening performance. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED American Association of University Women and Fine Arts Festival Steering Committee. FINANCIAL IMPACT There are sufficient funds budgeted ($134,330) and available ($121,380 as of April 19, 2004) in the Recreation Fund, Special Events expense, account number 296-5011-762.47-00, project number 340210, to enter into an agreement with ESO in a not-to-exceed amount of$17,000. Performance Agreement with the Elgin Symphony Orchestra ( April 23, 2004 Page 2 LEGAL IMPACT None ALTERNATIVES 1. To approve the Performance Agreement with the Elgin Symphony Orchestra for the Fine Arts Festival Concert, Friday, August 20 in the amount of$17,000. 2. To not approve the Performance Agreement with the Elgin Symphony Orchestra for the Fine Arts Festival Concert, Friday, August 20 in the amount of$17,000. Respectfully submitted for Council consideration. JG Attachments F ESO PERFORMANCE AGREEMENT This Agreement is made and entered into this day of ,2004,by and between the City of Elgin,Illinois,an Illinois municipal corporation(hereinafter referred to as the"City"),and Elgin Symphony Orchestra,a not-for profit corporation of Illinois(hereinafter referred to as"Artist"). For and in consideration of the mutual promises and undertakings contained herein,and other good and valuable consideration,the sufficiency of which is hereby mutually acknowledged,the parties hereto agree as follows: 1. That Artist will give a performance as follows: Name and Address of Place of Engagement: Wing Park Bandshell,Elgin, IL 60123 Date(s)of Engagement: Friday,August 20,2004 Type of Engagement: Elgin Fine Arts Festival Starting and finishing time of engagement: 7:30 p.m.-9:30 p.m. Number of Musicians: 70 2. City,in consideration of the artistic services of the Artist, shall pay to Artist a total fee of $17,000. Said fee is the total compensation to be paid the Artist inclusive of any and all costs and expenses incurred by the Artist in connection with the subject performance. Payment shall be made to the Artist by check upon completion of the performance. 3. That it is understood and agreed that the Artist has executed this agreement as an independent contractor and is not an employee of the City. This agreement shall not be construed so as to create a joint venture,partnership,employment or other agency relationship between the parties hereto. 4. That the content,nature and medium of the program shall be entirely within discretion of the Artist,except that the City shall have the right to direct the Artist to discontinue any activity constituting a violation of a state statute,applicable ordinances or directions of lawful authority. 5. That no performance shall be recorded,reproduced or transmitted from the place of the performance in any manner or by any means whatsoever in the absence of a specific written agreement with the Artist or the Artist's representative. 6. That the City grants approval for the Artist to sell his/her own recordings or souvenirs prior to the performance,during intermission, and directly after the performance. 7. City may terminate this agreement and cancel the performance upon thirty(30)days prior written notice to the Artist for any or no reason. In the event the City cancels this performance within thirty(30)days of the scheduled date thereof,the Artist shall be paid fifty percent(50%)of the contracted fee. In the event the City cancels this performance within seven(7)days of the scheduled date thereof,the Artist will be paid its full performance fee. 8. That in the event the performance involves an outdoor performance and the City cancels the outdoor performance due to rain,the Artist agrees to perform on the same day indoors, at a later time the same day outdoors or on a later date depending upon the Artist's touring obligations. In the event the outdoor temperature drops below 55 degrees Fahrenheit,the Artist agrees to perform on the same day indoors or on an agreed to later date as mutually agreed by the parties taking into account the Artist's touring obligations. Notwithstanding'anything contrary to this agreement,in the event the parties are unable to agree on a later date for the performance the Artist will not be paid any portion of its fee,and shall refund to City any amounts paid by City. 9. That Artist may terminate this agreement and cancel the performance upon sixty(60)days prior written notice to the City in the event of television,motion picture or other major career enhancing engagements. In such event the Artist will not be paid any portion of its fee. 10. That the Artist shall pay all applicable union fees. The Artist hereby indemnifies and holds the City of Elgin,its officers,employees and agents harmless from any and all claims,causes of action or expenses whatsoever relating to same. 11. Indemnification. To the fullest extent permitted by law,Artist agrees to indemnify, defend and hold harmless the City, its officers,employees,boards and commissions from and against any and all claims, suits,judgments,costs,attorney's fees,damages or other relief arising out of or resulting from or through or alleged to arise out of any reckless or negligent acts or omissions of Artist's officers, employees or agents in the performance of this agreement. In the event of any action against the City,its officers,employees,agents,boards or commissions covered by the foregoing duty to indemnify,defend and hold harmless, such action shall be defended by legal counsel of the City's choosing.The provisions of this paragraph shall survive any termination or expiration of this agreement. 12. That this agreement shall be subject to and governed by the laws of the State Illinois. Venue for any action brought pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. 13. This Agreement,the documents it incorporates and its attachments, if any, constitute the entire Agreement of the parties on the subject matter hereof and may not be changed,modified, discharged or extended except by written amendment duly executed by the parties. 14. In the event any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason,the remainder of this contract shall remain in full force and effect. 15. No official, director,officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution,approval of attempted execution of this Agreement. 16. The terms of this agreement shall be severable. In the event that any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. 17. All notices required herein shall be directed to the parties as follows: Jane Gregory,CPRP Artist: Elgin Symphony Orchestra Special Events Coordinator 20 DuPage Ct. 100 Symphony Way Elgin, IL 60120 Elgin, IL 60120 Payable to: Elgin Symphony Orchestra IN WITNESS WHEREOF,the parties have executed this agreement on the date and year first written above. CITY OF ELGIN ARTIST By By City Manager Its FEIN#/SSN