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HomeMy WebLinkAbout09-14 Resolution No. 09-14 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE OF SERVICE AGREEMENT WITH ELGIN OPERA BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Olufemi Folarin,City Manager,and Diane Robertson,City Clerk,be and are hereby authorized and directed to execute a Purchase of Service Agreement on behalf of the City of Elgin with Elgin Opera for a production at the Hemmens Cultural Center on January 31,2009, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: January 28, 2009 Adopted: January 28, 2009 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 1/8/09 PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this oio day of , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter re tined to as the "City"),and Elgin OPERA,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Elgin OPERA"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Elgin OPERA for the Elgin OPERA to provide certain contract services as described in this agreement; and WHEREAS,the Elgin OPERA represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Elgin OPERA shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Elgin OPERA-Scope of Services for 2009 Purchase of Service Agreement, attached hereto as Exhibit A and made a part hereof(such services including the terms, conditions, dates and times are hereinafter referred to as the"Subject Services"). In the event of any conflict between the provisions of this agreement and the provisions in Exhibit A,the provisions of this agreement shall control. The Elgin OPERA represents and warrants that the Elgin OPERA has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A and that the Subject Services set forth in Exhibit A are integral parts of this agreement and may not be modified,amended or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 2. The Elgin OPERA shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Elgin OPERA warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Elgin OPERA agrees and warrants that the Elgin OPERA will periodically inspect all of such facilities and equipment for such purposes. Elgin OPERA also warrants that the Elgin OPERA and the Elgin OPERA's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, Elgin OPERA agrees and warrants to use, and to cause persons participating in the Subject Services to use, through proper supervision and control, all facilities with due care, and to report all defects in or damage to any such facilities, and the cause thereof, if known, immediately to the Assistant City Manager of the City. 4. The City shall reimburse the Elgin OPERA for the subject services under this Agreement the total amount of Twenty-Five Thousand Dollars($25,000). Such payment by the City to the Elgin OPERA shall be made in two(2)installments. The first such installment in the amount of$20,000 shall be paid by the City to the Elgin OPERA on or before January 23,2009. The second such installment payment in the amount of$5,000 shall be paid by the City to the Elgin OPERA after the completion of the performance to take place at the Hemmens Cultural Center on January 31, 2009,after the City receives payment from the Elgin OPERA for all rental and other charges for the Hemmens Cultural Center for such performance and after Elgin OPERA's submission of the budget document and audited financial statement documents referred to in paragraph 6 of this Agreement. 5. The Elgin OPERA shall apply the monies to be paid by the City to the Elgin OPERA pursuant to the proceeding paragraph hereof solely to expenses associated with the production of an operatic performance at Hemmens Cultural Center on January 31, 2009, such as staff salary and benefits, and expenses associated with the Subject Services to be provided by the Elgin OPERA pursuant to this agreement. 6. The Elgin OPERA shall complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City. Without limiting the foregoing, the parties further agree as follows: A. The Elgin OPERA shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Elgin OPERA shall provide written performance reports detailing the disbursements of the monies to be paid by the City to the Elgin OPERA pursuant to this agreement. The reports shall be provided to the City no later than 30 day after the Subject Services are completed. C. The City has the right to review all accounting records of the Elgin OPERA related to the use of the monies to be paid by the City to the Elgin OPERA pursuant to this agreement upon 72 hours advance notice from the City to the Elgin OPERA. D. The Elgin OPERA shall have an audit performed on its financial statements for the year ending December 31, 2008. The audit must be performed by an independent certified public accountant recognized in good standing by the American Institute of Certified Public Accountants and licensed in the State of Illinois. The Elgin OPERA shall provide the City with two copies of the said audited financial statement along with the management letter and any other -2- correspondence related to internal control matters on or before July 15, 2009. These statements shall be submitted to the Assistant City Manager at City Hall, 150 Dexter Court, Elgin, Illinois 60120-5555. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, the Elgin OPERA shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 8. Elgin OPERA agrees and warrants that notwithstanding any other provision of this Agreement that in connection with the performance and/or providing of the Subject Services in this Agreement that the Elgin OPERA shall comply with all applicable federal, state, city and other requirements of law,including,but not limited to,any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Elgin OPERA hereby certifies, represents and warrants to the City that all of the Elgin OPERA 's employees and/or agents who will be performing and/or providing the Subject Services with respect to this Agreement shall be legal residents of the United States. Elgin OPERA shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful performance of the Subject Services to be provided for in this Agreement. Elgin OPERA shall also perform and provide the Subject Services with due care. The City shall have the right to audit any records in the possession of control of the Elgin OPERA to determine the Elgin OPERA's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Elgin OPERA shall make available to the City the Elgin OPERA's relevant records at no cost to the City. 9. The City of Elgin shall be recognized as a sponsor of the Elgin OPERA and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Elgin OPERA's organization,press releases,radio advertising,web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin". A logo provided by the City to the Elgin OPERA shall be used for this purpose. 10. In all printed materials in which a City seal or logo is deemed appropriate, approval by the Public Information Officer of the City is required prior to printing. 11. The term of this agreement shall commence from the date of the execution hereof and continue through December 31, 2009. 12. This agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. Elgin OPERA understands and agrees that the relationship of the Elgin OPERA to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Elgin OPERA and the -3- Elgin OPERA's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 13. If either party violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default,and the other party has the right to seek administrative contractual or legal remedies as may be suitable to the violation or breach;and,in addition,if either party by reason of any default, fails to within fifteen(15)days after notice thereof by the other party to comply with the conditions of the agreement, the other party may terminate this agreement. Notwithstanding the foregoing,or anything else to the contrary in this agreement,no action shall be commenced by the Elgin OPERA against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Elgin OPERA in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Elgin OPERA reasonable interest and reasonable attorney's fees. 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30)days prior written notice to the Elgin OPERA. In the event this agreement is so terminated,the Elgin OPERA shall be paid for services actually performed, and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not in any event exceed the total amount set forth under paragraph 4 above. Additionally, in the event this agreement is so terminated,the Elgin OPERA shall immediately cease the expenditure of any funds paid to the Elgin OPERA by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Elgin OPERA agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or other relief, including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Elgin OPERA in connection herewith,including negligence or omissions or agents of the Elgin OPERA arising out of the performance of this agreement and/or the Subject Services. 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 expiration and/or termination of this agreement. 16. The Elgin OPERA shall provide, pay for and maintain in effect, during the term of this agreement, comprehensive automobile liability insurance covering all owned, non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than $500,000 per occurrence for damages to persons or property. The Elgin OPERA shall also provide, pay for and maintain in effect,during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Elgin OPERA shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 17. 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 or attempted execution of this Agreement. -4- • 18. In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color,creed, national origin,marital status, of the presence of any sensory,mental or physical handicap,unless based upon a bona fide occupational qualification,and this requirement shall apply to,but not be limited to,the following: employment advertising,layoff or termination,rates of pay or other forms of compensation and selection for training, including apprenticeship. 19. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race,color,creed,national origin,age except minimum age and retirement provisions,marital status or the presence of any sensory,mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the City. 20. The parties intend and agreed that,if any paragraph,sub-paragraph,phrase,clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 21. This Agreement and its exhibits constitutes 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. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. 22. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. 23. The Elgin OPERA certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Elgin OPERA shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act. -5- • A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 25, As a condition of this Agreement, Elgin OPERA shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Project Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry into and execution of this Agreement. 26. Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the Elgin OPERA shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing,Elgin OPERA hereby certifies, represents and warrants to the City that all Elgin OPERA's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legal residents of the United States. Elgin OPERA shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this Agreement. The City shall have the right to audit any records in the possession or control of the Elgin OPERA to determine Elgin OPERA's compliance with the provisions of this section. In the event the City proceeds with such an audit the Elgin OPERA's shall make available to the City the Elgin OPERA's relevant records at no cost to the City. 27. All notices,reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: As to the City: As to Elgin OPERA: City of Elgin Elgin OPERA 150 Dexter Court 350 Park Street, The Rider Center Elgin, IL 60120-5555 Room 207, Elgin, IL 60120 Attention: Sean Stegall Attention: Solange Sior Assistant City Manager Artistic Director With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 28. This agreement is and shall be deemed to construe to be a joint and collective work product of the City and the Elgin OPERA and,as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same,by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 29. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the Elgin OPERA without the express written consent of the City which consent may be withheld at the sole discretion of the City. -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal ELGIN OPERA corporation • By: �.r _ — .� By: f 0,1 City ..pager Attest: City Clerk F:\Legal Dept\Agreement\PSA-Elgin OPERA-clean-I-08-09.doc -7- EXHIBIT A Elgin OPERA Performance at Hemmens- Scope of Services For 2009 Purchase of Service Agreement 1. Elgin OPERA shall spend the budgeted amount toward expenses associated with a performance to take place at Hemmens Cultural Center on January 31, 2009. 2. Elgin OPERA shall enter into a separate rental agreement with the City for the Hemmens Cultural Center, which will outline the specific costs associated with abovementioned performance. This Agreement is subject to and contingent upon Elgin OPERA entering into such a separate rental agreement for the Hemmens Cultural Center with the City pursuant to the terms as required by the City. Elgin OPERA shall be responsible for payment of all the charges and expenses pursuant to such separate rental agreement. 3. The City's support shall be acknowledged as the main sponsor of the performance and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. The City's support shall be acknowledged on all print materials as a main sponsor promoting the performance in press releases,radio advertising,web page information and event program(s).A logo provided by the City to Elgin OPERA shall be used for this purpose. 4. In all printed materials in which a city logo is deemed appropriate, approval by the Public Information Officer of the City of Elgin is required prior to printing. 5. Elgin OPERA will make the best effort to provide information to the City to assist in answering inquiries and requests regarding the performance. 6. Elgin OPERA will provide the City of Elgin with 100 complimentary tickets to the performance. 7. Elgin OPERA will provide a free performance at either the 2009 FoxFireFest or other city festival as identified by the City Manager's Office. -8- V 7:1* 1t,4. January 8, 2009 TO: Mayor and Members of the City Council FROM: Olufemi Folarin, City Manager Cherie Murphy, Marketing Officer SUBJECT: 2009 Purchase of Service Agreement with Elgin OPERA PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider a Purchase of Service Agreement with Elgin OPERA, a not-for-profit organization, for a production at the Hemmens Cultural Center on January 31,2009. RECOMMENDATION It is recommended that the City Council approve the Purchase of Service Agreement with Elgin OPERA by providing financial support in the amount of$25,000. BACKGROUND Founded in 2001, the mission of Elgin OPERA is to create and nourish a greater appreciation of the classical vocal arts and to educate through professional performances and community outreach programs. Their vision is to develop an opera company serving the Fox Valley area and Elgin specifically, with professionally produced full operas and opera concerts with piano, chamber ensemble or orchestra, along with community outreach and education programs to inspire new opera lovers and provide a variety of satisfying experiences for all. Elgin OPERA currently provides three to four productions per year in a combination of the above mentioned programming formats, offering a variety of programming for the novice to the experienced opera enthusiast. In February 2007, Elgin OPERA appeared at the Hemmens Cultural Center for the first time, with a Valentine-themed performance of "Elixer of Love", with performances on both Saturday night and Sunday afternoon. This show was produced as a Hemmens standard production, with all costs as well as profits going through the Hemmens. Although ticket sales were respectable, due to high production costs, Hemmen's experienced a net loss of$39,517 on the show. Purchase of Service Agreement with Elgin OPERA January 8, 2009 Page 2 In order to present a performance in 2009, Elgin OPERA has agreed to enter into a Purchase of Service Agreement(Exhibit A)that will enable the City to limit their liability while offering the Elgin OPERA the opportunity to keep any potential profits from the show. In this agreement, the City of Elgin would provide a contribution of$25,000 to the Elgin OPERA for one show to be performed on January 31, 2009. In return, Elgin OPERA agrees to pay all production costs and rental fees for use of the Hemmens Cultural Center (Exhibit B). The Elgin OPERA's project outline and budget proposals are attached. (Exhibit C) COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None FINANCIAL IMPACT The cost of the proposed Purchase of Service Agreement with Elgin OPERA is $25,000. Funding to enter into this agreement in the amount of $25,000 is budgeted ($400,000) and available ($400,000) in account number 296-5402-765.47-00 "Hemmens Special Events Expense,"project number 039791, "Elgin Opera". LEGAL IMPACT None ALTERNATIVES 1. The City Council may choose to approve the Purchase of Service Agreement with Elgin OPERA in the amount of$25,000. 2. The City Council may choose not to approve the Purchase of Service Agreement with Elgin OPERA in the amount of$25,000. Respectfully submitted for Council consideration. cm attachments ` OFEtc ti City of Elgin Memorandum Date: January 29, 2009 To: Cherie Murphy, Marketing Officer From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 09-14, Regarding the agreement with Elgin Opera Enclosed please find the above referenced agreement. Please distribute to the appropriate parties and if needed, retain a copy for your records. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you.