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HomeMy WebLinkAbout09-26 Resolution No. 09-26 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE OF SERVICE AGREEMENT WITH THE ELGIN SYMPHONY ORCHESTRA 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 the Elgin Symphony Orchestra for youth programming and general operational support, a copy of which is attached hereto and made a part hereof by reference. s/ Ed Schock Ed Schock, Mayor Presented: March 4, 2009 Adopted: March 4, 2009 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this 3 day of Febr-u.a.ry , 2009, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"), and Elgin Symphony Orchestra, a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Service Provider"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Service Provider for the Service Provider to provide certain contract services as described in this agreement; and WHEREAS, the Service Provider 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 Service Provider 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 Symphony Orchestra-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 Service Provider represents and warrants that the Service Provider 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 Service Provider 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 Service Provider 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. Service Provider agrees and warrants that the Service Provider will periodically inspect all of such facilities and equipment for such purposes. Service Provider also warrants that the Service Provider and the Service Provider'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, Service Provider 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 Service Provider for the Subject Services under this agreement the total amount of Two Hundred Six Thousand One Hundred Forty-Five Dollars ($206,145). Such payment by the City to the Service Provider shall be made in two installments of One Hundred Three Thousand Seventy-Two Dollars and Fifty Cents ($103,072.50). The first aforementioned installment payment shall be made within 30 days of the date of this agreement. The second aforementioned installment payment shall be made on or before July 30, 2009. However, the second installment payment shall not be made prior to eight days after the Service Provider's submission of the budget document and audited financial statement documents referred to in paragraph 6 of this agreement. 5. The Service Provider shall apply the monies to be paid by the City to the Service Provider pursuant to the proceeding paragraph hereof solely to operating expenses such as staff salary and benefits, meeting expenses, and expenses associated with the Subject Services to be provided by the Service Provider pursuant to this agreement. 6. The Service Provider 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 Service Provider 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 Service Provider shall provide written performance reports detailing the disbursements of the monies to be paid by the City to the Service Provider pursuant to this agreement. The reports shall be provided to the City quarterly on March 31, 2009; June 30, 2009; September 30, 2009; and December 31, 2009. C. The City has the right to review all accounting records of the Service Provider related to the use of the monies to be paid by the City to the Service Provider pursuant to this agreement upon 72 hours advance notice from the City to the Service Provider. D. The Service Provider 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 Service Provider shall provide the City with two copies of the said audited financial statement along with the management letter and any other correspondence related to internal control matters on or before July 15, -2- I 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 � J which the City funds provided herein are to be applied are discontinued, or the Service Provider ceases its operations prior to December 31, 2009, the Service Provider 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. Service Provider 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 Service Provider 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, Service Provider hereby certifies, represents and warrants to the City that all of the Service Provider'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. Service Provider 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. Service Provider 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 Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Service Provider shall make available to the City the Service Provider's relevant records at no cost to the City. 9. The City of Elgin shall be recognized as a sponsor of the Service Provider 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 Service Provider'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". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Service Provider 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. Service Provider understands and agrees that the relationship of the Service Provider to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Service Provider -3- and the Service Provider'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. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Service Provider in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Service Provider 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 Service Provider. In the event this agreement is so terminated, the Service Provider 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 Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law, Service Provider 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 Service Provider in connection herewith,including negligence or omissions or agents of the Service Provider 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 section shall survive any expiration, completion and/or termination of this agreement. 16. The Service Provider 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 Service Provider 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 Service Provider 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 Service Provider 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 Service Provider 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, the Service Provider shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works 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 and execution of this agreement. 26. Notwithstanding any other provision in this agreement, it is expressly agreed and understood that in connection with the performance of this agreement the Service Provider 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, the Service Provider hereby certifies,represents and warrants to the City that all of Service Provider'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. Service Provider 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 pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Service Provider shall make available to the City the City's relevant records at no cost to the City. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 27. Notwithstanding anything to the contrary in this agreement,with the sole exception of the monies the City has agreed to pay the Service Provider pursuant to Section 4 hereof, no action shall be commenced by the Service Provider, any related persons or entities, and/or any of their successors and/or assigns, against the City for monetary damages. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 28. 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 Service Provider: City of Elgin Elgin Symphony Orchestra 150 Dexter Court 20 DuPage Court Elgin, IL 60120-5555 Elgin, IL 60120 Attention: Sean Stegall Attention: Dr. Dale J. Lonis Assistant City Manager CEO With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 29. This agreement is and shall be deemed to construe to be a joint and collective work -6- product of the City and the Service Provider 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. 30. 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 Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. 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 Symphony Orchestra corporation By: By. City nager ,�I Attest: City Clerk -7- EXHIBIT A ELGIN SYMPHONY ORCHESTRA—SCOPE OF SERVICES FOR 2009 PURCHASE OF SERVICE AGREEMENT 1. The ESO shall apply$32,465 of the aforementioned$206,145 to Youth Initiatives. The ESO shall provide youth programs, including but not limited to, Petite Musique, Kids Konzerts, In-School Music Program, Apprentice Program, and the Homeschool Subscription series. 2. The ESO shall apply$30,000 of the aforementioned$206,145 to office and salary expenses related to their location at 20 DuPage Court, including their box office. In exchange, ESO shall maintain and operate a box office in the Center City Area throughout the year. 3. The ESO shall apply $63,000 of the aforementioned $206,145 to general operational expenses. 4. The ESO shall apply$5,000 to an Elgin Restaurant Reservation Program,through which the ESO shall offer to make dinner reservation at Elgin restaurants for ESO patrons at the conclusion of every telephone or walk-up sale. 5. The ESO shall apply $2,680 of the aforementioned$206,145 to cover janitorial services as outlined in section 4 of the Office Lease agreement made and entered into April 11, 1996. 6. The ESO shall apply $73,000 of the aforementioned $206,145 to cover expenses for the matinee series for 2 - 2009 7. The ESO shall provide a public performance at FoxFire Fest on August 2, 2009 at Festival Park. 8. The ESO shall provide the City up to 14 complimentary tickets for the Gala Pops Concert on April 17, 2010. 9. ESO shall be granted an additional 10 percent discount on Hemmens usage fees, including hall rates and equipment charges should it hold more than 15 performances in a calendar year at the Hemmens Cultural Center. -8- February 5 2009 TO: Mayor and Members of the City Council OEM FROM: Olufemi Folarin, City Manager / etr�rrrinrfar.rtr�r, r Y g Cnkurr+Opparnrnirics jar:9L Ciri_cei RuthAnne K. Hall, Management Analyst SUBJECT: Purchase of Service Agreement with Elgin Symphony Orchestra 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 the Elgin Symphony Orchestra (ESO) for youth programming and general operational support. RECOMMENDATION It is recommended that the City Council approve the Purchase of Service Agreement with the ESO in the amount of$206,145. BACKGROUND For several years, the City of Elgin has provided financial support to the ESO for general operation support. This support has continued with acknowledgement that the presence of the Symphony helps establish Elgin as a regional center for the performing arts, drawing over 49;000 ticketed patrons into the community each season. The City's 2009 Budget includes $206,145 to fund this Purchase of Service Agreement. This includes $133,145 in general operational support and $73,000 for matinee performances. In years past, the Purchase of Service Agreement has only provided for the general operational support. In 2008, staff included the additional annual support for the performance at Fox Fire Fest and matinee performances. As part of the 2009 Purchase of Service Agreement, the performance for Fox Fire Fest will be provided free of charge. In addition to the general operational, the City also supports the ESO through the provision of office space at 20 DuPage Court, at an estimated value of $40,181 per year. The ESO also receives a 45% discount on rental fees and a 10% discount on equipment at the Hemmens Cultural Center. The ESO has met all the requirements of the 2008 Purchase of Service Agreement. Purchase of Service Agreement with Elgin Symphony Orchestra February 5, 2009 Page 2 COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None FINANCIAL IMPACT The cost of the Purchase of Service Agreement with ESO totals $206,145. There are sufficient funds budgeted ($215,980) and available ($215,980) in the Riverboat Fund budget, account number 275-0000-791.80-11, to enter into this agreement. LEGAL IMPACT None ALTERNATIVES 1. The City Council may choose to approve the Purchase of Service Agreement with the Elgin Symphony Orchestra as presented. 2. The City Council may choose to modify the provisions of the Service Agreement with the Elgin Symphony Orchestra as presented. 3. The City Council may choose to reject the Purchase of Service Agreement with the Elgin Symphony Orchestra as presented. Respectfully submitted for Council consideration. rkh Attachment • — City of Elgin Memorandum Date: March 6, 2009 To: RuthAnne Hall, Management Analyst From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 09-26, Regarding the agreement with Elgin Symphony Orchestra 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.