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HomeMy WebLinkAbout13-22 Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: C_-Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"),and Ballet Folklorico,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the '`Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled"(Ballet Folklorico)- Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A (such services, including terms, conditions, dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto,the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,.-at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Four Thousand, Six Hundred and Twenty Eight Dollars ($4,628.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous,year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a.Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant'related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor.' It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual,legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default;fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee,any related agents,persons or entities,and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action,the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. -3- 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. 'Additionally, in the event this Agreement is so terminated,the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law, Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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 Agreemerii-br because of their execution, approval or attempted execution of this Agreement. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City.proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Ballet Folklorico 4vehuemy4 1 150 Dexter Court P.O.Box 5C)to a Elgin, IL 60120-5555 Elgin, IL 60121 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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,-or delegated by the Grantee without the express written consent of the City,which consent may be.withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 50511, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or.its affiliates,officers,employees, agents,attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTEE: call P-t FO'k101r'�CZ� uehueco�o \a)-By: !�• By: S Stegall, City Manag Name/Print: 1.�—\ L2 L�Zy-r�wl.�qe-z- Title: 'D\Q t--c Q Z Attest: City Clerk f legal depAagreementkultural arts comm grant agrt-final-1-12-1 l.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Ballet Folklorico will hold a September dance performance at the Blizzard Theater. This will be a recap of previous works as well as new suites that will be taught by guest teachers. I -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: , amzatron �_,. Event w �. mm unto t A. Ballet Folklorico September Dance $ 4,628 Performance (B. M ldren'_s Theatre_of- iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total 1 $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk r, CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City ),and Children's Theatre of Elgin,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled"(Children's Theatre of EI in -Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A(such services, including terms, conditions,dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto,the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Six Thousand, Six Hundred and Eleven Dollars ($6,611.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous-year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a. Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15,:2014. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the'. ssistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this Agreement as may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the.City to verify the performance of the Subject Services and/or granvrelated receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual, legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply Iwith the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a_ default, and in the event the City fails, within fifteen (15) days after notice thereof,by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee, any related agents,persons or entities,and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action,the City shall also be entitled to recover from the Grantee interest;at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated,the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law,Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/3')E, et seq., or any similar state or federal statute.regarding bid rigging. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit,, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Children's Theatre of Elgin 150 Dexter Court 1700 Spartan Drive Elgin, IL 60120-5555 Elgin, IL 60120 Assistant City Manager Attention: Richard G. Kozal With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. -6- 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers, employees, agents, attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation G1�i i� —�6aJtt of E l i By: By: 7� can Stegall, City Mana Name/ ' Title: Attest: City Clerk fAlegal depAagreemenAcultural arts comet grant aert-final-I-12-1 l.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Children's Theatre of Elgin will perform a June concert, iSing— Sounds of the Next Generation, At the Blizzard Theater. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: � Or amzafion Z_ ; . ,Events=i A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance [C—. -El—gi—nHigt&JqdP Wendell Moselay Art $ 1,771 -Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 45533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 35772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 25689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 1. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"), and Elgin Area Historical Society, a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled "(Elgin Area Historical Society)- Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A (such services, including terms, conditions, dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto, the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of One Thousand, Seven Hundred and Seventy-one Dollars (51,771.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely Ito fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment; capital improvements, construction or for the payment of any previous.year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum,.the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual, legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee,any related agents,persons or entities, and/or any of their successors.and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. -3- 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated, the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law, Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any an d all claims, suits,judgments,costs,attorney's fees,damages or other relief, including,but not limited to, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith, including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon. request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Elgin Area Historical Society 150 Dexter Court 360 Park Street Elgin, IL 60120-5555 Elgin, IL, 60120 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers,employees, agents,attorneys, boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTEE: t�UN 4Na [�bhcice"L Socs,. By: �� ' By: S n Stegall, City Manag Name/Print: .1(2 Lt`VA IM&A SAM Title: MU4�QjkAjr\ W(-Q C Attest: a City Clerk fAleeal dept\agreement\cultural arts comm Brant agrt-final-1-12-1 l.doc -7- . EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The museum will construct an exhibit featuring the work of Wendell Mosely and display the works at the museum as well as various sites around town. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ati`on Event x r i �Atno nt, A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit rD Elgin_Children's? Symphony of Song Concert $ 4,533 hi orus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total 1 1 $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"),and Elgin Children's Chorus,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled "(Elgin Children's Chorus - Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A(such services, including terms, conditions, dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto,-the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total.amount of Four Thousand, Five Hundred and Thirty Three Dollars ($4,533.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013.. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual,legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee, any related agents,persons or entities, and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated, the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law, Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City -certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. 'The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Elgin Children's Chorus 150 Dexter Court 1700 Spartan Drive Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates, officers,employees, agents, attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANT E:. By: By: S1 Stegall, City Manage Name/Pri t: Re-}�L 6� Title: (P�(.? -►1r'� V' Attest: 6444(-4�1 City Clerk f legal depAagreemenAcultural arts comet grant agrt-final-1-12-1 I.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Elgin Children's Chorus will perform their March Concert , Symphony of Song, at the Blizzard Theater. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: g= 5 4V. , :'. Qr anization Event _ A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus [E.w-_E1gin.Choral-Union? Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"),and Elgin Choral Union, a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled "(Erin Choral Union - Scope of Services for 2013 Grant Agreement,- attached hereto and made a part hereof as Exhibit A(such services, including terms, conditions,dates and times,are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto, the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Three Thousand, Seven Hundred and Seventy Two Dollars ($3,772.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City, including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales, and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission.'' Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual, legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply, with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee, any related agents,persons or entities, and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action,the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. -3- 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated, the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law,Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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 statuteyegarding bid rigging. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's.relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Elgin Choral Union 150 Dexter Court 1700 Spartan Drive Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act; as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers, employees,agents,attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTE I,O� V�b►'1 K , By: By: S• n Stegall, City Manag Name/Print: Ih U Title: Attest: City Clerk f.\legal dept\aereement\cultural arts comet grant agrt-final-1-12-1 l.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Elgin Choral Union will perform, Carmina Burana for their spring (April/May) concerts at the Blizzard Theater. -8- i Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: Or`aIIi�zation `� `' �Everit -_ _ xAmount `= �__...__ - LL A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 El in OPERAS Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Inde endent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor i Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City ),and Elgin OPERA,a not-for it corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled "(Elgin OPERA) - Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A (such services, including terms, conditions, dates and times, are hereinafter referred to as the `.Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto, the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Three Thousand, One Hundred and Thirty Seven Dollars (53,137.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City, including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales, and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor'_It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual, legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute .a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception.of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee,any related agents,persons or entities, and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is.the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. -3- 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated,the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law,Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Elgin OPERA 150 Dexter Court 350 Park Street Elgin, IL 60120-5555 Elgin, IL 60120 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers, employees,agents,attorneys, boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTEE: clt e By: B : Sean Stegall, City Manager Name//Print: Title: l Attest: City Clerk f legal depAagreemenAcultural arts comm grant agrt-final-1-12-1 l.doc -7 EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Elgin OPERA, in conjunction with Channing Elementary School, will perform, "Savior Flaire" — a salute to the "language of love" in music, as a spring concert. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: Or a�u at on Euent , 1mount n�M _ A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 [G:o Xl4iri_Theatre Com`p an Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"),and Elgin Theatre Company,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled "(Elgin Theatre Company - Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A(such services, including terms,conditions,dates and times, are hereinafter referred to as the"Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto, the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such=facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Two Thousand, Six Hundred and Eighty Nine Dollars ($2,689.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous"year's deficit: 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City" within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City, including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting "records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for'review by the.City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to . verify the performance of the Subject Services and/or grant"related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013,the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission.'' Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right'to seek such administrative,contractual, legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee, any related agents,persons or entities, and/or any of their successors and/or assigns; 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 Grantee in this Agreement and the City is the prevailing party in such action,the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated, the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. = 14. To the fullest extent permitted by law, Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. - 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. All notices,reports and documents required under this Agreement shall be in,"Titing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: As to the City: As to Grantee: City of Elgin Elgin Theatre Company 150 Dexter Court P.O. Box 208 Elgin, IL 60120-5555 Elgin, IL 60121-0208 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers,employees,agents,attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GPNTE y By: By Sean tegall, City Manager Name/Print: e w6er ✓� S Title: Qh e,-s r we C^ Attest: 0 City Clerk fAlegal depAagreemenAcultural arts Comm grant agrt-final-1-12-1 l.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Elgin Theatre Company will commission the writing of, Princess Diana, the Musical and produce the musical in June at Elgin Academy. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 EH. I-.E1 it Youth_S =_ hon Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total 1 $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"),and Elgin Youth Symphony Orchestra,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled ``(ElIzin Youth Symphony Orchestra)-Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A(such services, including terms,conditions,dates and times;are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto, the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Six Thousand, Five Hundred and Sixty Four Dollars (56,564.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit-A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to' the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor.,. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual, legal or equitable remedies to which it may be entitled by,law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute'a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall'be commenced by the Grantee,any related agents,persons or entities,and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. t 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated, the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law,Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, -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 arid-selection for training, including apprenticeship. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Elgin Youth Symphony Orchestra 150 Dexter Court P. O. Box 6508 Elgin, IL 60120-5555 Elgin, IL 60121-6508 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 50511, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers, employees,agents,attorneys, boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTEE: 614 ;n y hony drrhes>�rQ By: r2 �/G� , By: Sean tegall, City Manager Name/Print- U Ma: ,P-a,?5 Title: Attest: City Clerk f legal depflaereementkultural arts Comm grant agrt-final-1-12-1 I.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Elgin youth symphony Orchestra will perform Christopher Theofanidis' Rainbow body for their spring 2013 Youth Symphony/Philharmonia concert. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: r'amzation :; E�entx Am O ount ^mow A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 L^-Hamilton Wings r SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total 1 1 $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"),and Hamilton Wings,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled"(Hamilton Wings)- Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A (such services, including terms, conditions, dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto,the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Six Thousand, Nine Hundred and Forty Two Dollars ($6,942.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013, 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a.'Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15,'2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City, including but not limited I to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting,.records substantiating any and all revenues and expenses relating to the.grant funds awarded pursuant to this Agreement. Such accounting.records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided;for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor.-It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right�to seek such administrative,contractual, legal or equitable remedies to which it may be entitled bylaw as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply:with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates-or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee,any related agents,persons or entities, and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. -3- 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated,the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law,Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith, including any negligent acts or omissions of agents of the Grantee 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 an.y expiration, completion and/or termination of this Agreement. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse r -5- I I 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The.Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Hamilton Wings 150 Dexter Court 14 Crescent Street Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates, officers,employees,agents,attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation G NT t n . r J By: By: Sean 4Stegall, City Manager Name/Print: Title: IZcI'V15 Attest: "4x 1Ae, City Clerk f\legal dept\agreement\cultural arts comm grant agrt-final-1-12-1 I.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Hamilton Wings will produce their student driven opera through their SCORE! program. This musical performance will be take place at the Blizzard Theater. -8- Resolution No. 13-22 I RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ;®r amzation fra ttveritx-- `gigs Amo nt a;x u A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance -J`_HeartlandVoices Celebrate America Concert $ 8,075 K. Inde endent Players Two Theatrical Productions $ 2,828 L. Janus Theatre Summer Rep Theater $ 8,128 Festival Total 1 1 $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor i Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013,by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"),and Heartland Voices,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled"(Heartland Voices)- Scope of Services for 2013 Grant Agreement,"attached hereto and made a part hereof as Exhibit A (such services, including terms, conditions, dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto, the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Eight Thousand and Seventy Five Dollars ($8,075.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous,Iyear's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a. Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15,`2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting:records shall be submitted by the Grantee to the City for review by the`City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales, and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant=related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided.for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual,legal or equitable remedies to which it may be entitled bylaw as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default;fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply;:with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exceptionof the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee,any related agents,persons or entities, and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30) days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated,the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law, Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith, including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor; '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. 18. 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- i 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Heartland Voices 150 Dexter Court P.O.Box 5484 Elgin, IL 60120-5555 Elgin, IL 60121-5484 . Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- I entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers,employees,agents, attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTEE: B : B Y Y: Sean Stegall, City Manager Name/Print: Title: -JR�� 1 r.•� q r- Attest: City Clerk fAlegal depAagreemenkultural arts comm grant agrt-final-1-12-1 l.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Heartland Voices will perform "Celebrate America" a series of vocal concerts in April at the First United Methodist Church in Elgin. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: amz�ation Event F Amounts A A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 El in Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 I. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 ^K: _Inde endent Pla-e"r—Q Two Theatrical Productions $ 2,828 L. Janus Theatre_ Summer Rep Theater $ 8,128 Festival Total $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013,by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City''), and Independent Players, a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled "(Independent Player's -Scope of Services for 2013 Grant Agreement," attached hereto and madq a=part hereof as Exhibit A(such services, including terms, conditions,dates and times, are hereinafter_referred tows the "Subject Services"). In the event of any conflict between the provisions of this-portion of this Agreement and the provisions in Exhibit A hereto,the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Two Thousand, Eight Hundred and Twenty Eight Dollars (52,828.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall:include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The relationship'of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right•to seek such administrative,contractual,legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the,City violates or breaches any term of this Agreement, such violation or breach shall be deemed,to constitute.a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee,any related agents,persons or entities,and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.0.0) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. -3- r 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated, the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. To the fullest extent permitted by law, Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. No person shall be denied or subjected to discrimination in receipt ofthe benefit of any services or activities made possible by or resulting from this Agreement on thegrounds 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 -4- 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and A warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Independent Players 150 Dexter Court 208 Lovell Street Elgin, IL 60120-5555 Elgin, IL 60120 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or its affiliates,officers, employees,agents,attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTEE: J By: By: . Sea Stegall, City Mana Name/Print: 0 Title: Attest: a City Clerk Blegal depttagreement\cultural arts comm grant agrt-final-1-12-1 l.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Independent Players will produce two theatrical productions in the spring. One will be a classic mystery,Death Trap,and the second an original musical cabaret.Both will be performed at the Elgin Art Showcase. -8- Resolution No. 13-22 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and' WHEREAS, in 2013 applications have been made for thirteen projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: .. ,Or amzat�onr �.�. Events Amount;_fl A. Ballet Folklorico September Dance $ 4,628 Performance B. Children's Theatre of iSing-June $ 6,611 Elgin Concert/Performance C. Elgin Historical Wendell Moselay Art $ 1,771 Museum Exhibit D. Elgin Children's Symphony of Song Concert $ 4,533 Chorus E. Elgin Choral Union Carmina Burana Concert $ 3,772 F. Elgin OPERA Savior Flaire Concert $ 3,137 G. Elgin Theatre Company Theatrical Production $ 2,689 H. Elgin Youth Symphony Rainbow Body Concert $ 6,564 1. Hamilton Wings SCORE! Musical $ 6,942 Performance J. Heartland Voices Celebrate America Concert $ 8,075 K. Independent Players Two Theatrical Productions . $ 2,828 j=l Janus Theatre Summer Rep Theater $ 8,128 Festival Total $59,678 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 13, 2013 Adopted: February 13, 2013 Vote: Yeas: 6 Nays: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 13 day of February , 2013,by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the and Janus Theater Company,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this Agreement; and WHEREAS, the Grantee 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 mutually acknowledged,the parties hereto,hereby agree as follows: 1. The Grantee shall provide all of the services described in and pursuant to the terms and conditions and on the dates and times described in the document entitled "(Janus Theater Company -Scope of Services for 2013 Grant Agreement," attached hereto and made a part hereof as Exhibit A(such services, including terms, conditions, dates and times, are hereinafter referred to as the"Subject Services"). In the event of any conflict between the provisions of this portion of this Agreement and the provisions in Exhibit A hereto, the provisions of this portion of this Agreement shall control. The Grantee represents and warrants that the Grantee has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A in a reasonable and workmanlike manner, 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 Grantee 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 any Subject Services to be performed on any property other than City-owned properties,the Grantee 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. Grantee agrees and warrants that the Grantee will periodically inspect,at reasonable intervals and with a reasonable degree of thoroughness, all of such •facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee'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, Grantee agrees and warrants to use, and to cause persons participating in the Subject Services to use,through proper and reasonable 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 provide a grant to the Grantee for the Subject Services under this Agreement in the total amount of Eight Thousand, One Hundred and Twenty Eight Dollars ($8,128.00). Such payment by the City to the Grantee shall be made on or before April 30, 2013. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2013 and December 31, 2013. All funds awarded pursuant to this Agreement shall be expended in accordance with the terms and provisions of this Agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the money to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this Agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous year's deficit. 6. Prior to entry into this Agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City within forty- five (45) days of completion of the Subject Services, but no later than January 15, 2014. Without limiting the foregoing, the Grantee shall also 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 may be requested by the City,including but not limited to,as follows: (a) The Grantee 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 Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales, and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 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, or the Grantee ceases its operations prior to December 31, 2013, the Grantee shall refund to the City on a prorated per diem -2- 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. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee'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 and the Elgin Cultural Arts Commission." Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 9. In all printed materials in which a City seal or logo is deemed appropriate, written approval by the Public Information Officer of the City shall be required prior to printing. 10. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2013, unless otherwise terminated as provided for herein. 11. This Agreement shall not be construed so as to create a partnership;joint venture, employment or other agency relationship between the parties hereto. The relationship of the Grantee to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee'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. 12. If the Grantee violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek such administrative,contractual, legal or equitable remedies to which it may be entitled by law as a result of such violation or breach; and, in addition, if the Grantee, by reason of any default, fails, within fifteen (15) days after notice thereof by the City demanding compliance, to comply with the terms and conditions of this Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute-a default, and in the event the City fails, within fifteen (15) days after notice thereof by the Grantee demanding compliance, fails to comply with the terms and conditions of this Agreement, the Grantee,as its sole and exclusive remedy,may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement or by implication or estoppel,with the sole exception'of the money the City has agreed to pay the Grantee pursuant to paragraph 4 hereof,no action shall be commenced by the Grantee,any related agents,persons or entities,and/or any of their successors and/or assigns, 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 Grantee in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee interest at the rate of nine percent(9%)per annum,plus attorney's fees at the rate of Two Hundred Fifty Dollars($250.00) per hour,which Grantee agrees to be reasonable. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. -3- 13. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this Agreement is so terminated, the Grantee shall only be paid for services actually performed, and reimbursable expenses actually incurred prior to termination,except that any such reimbursement shall not,in any event, exceed the total amount set forth in paragraph 4 above. Additionally, in the event this Agreement is so terminated,the Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 14. . To the fullest extent permitted by law, Grantee 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, workers' compensation claims, in any way resulting from or arising out of any negligent acts or omissions of the Grantee in connection herewith,including any negligent acts or omissions of agents of the Grantee 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. 15. The Grantee 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 Grantee 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 Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 16. 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 Agreemenf or because of their execution, approval or attempted execution of this Agreement. 17. In all hiring or employment associated with, arising out of or resulting from this Agreement, there shall be no discrimination against any independent contractor, 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. 18. 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 -4- I 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. 19. The terms and provisions of this Agreement shall be severable. 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. 20. 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. 21. 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. 22. The Grantee 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. 23. As a condition of this contract, the Grantee 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. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 24. As a condition of this Agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse -5- 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. 25. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Grantee 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 Grantee hereby certifies, represents and warrants to the City that all of Grantee'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. Grantee shall also at its sole 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 Grantee to determine the Grantee's compliance with the provisions of this section or of law. In the event the City proceeds with such an audit, the Grantee shall make available to the City the City's relevant records at no cost to the City. The Grantee shall pay any and all costs associated with any such audit. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 26. 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 Grantee: City of Elgin Janus Theater Company 150 Dexter Court 919 Prospect Blvd Elgin, IL 60120-5555 Elgin, IL 60120 Attention: Richard G. Kozal Assistant City Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 27. This Agreement is, and shall be deemed and construed to be, a joint and collective work product of the City and the Grantee 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. 28. 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 or delegated by the Grantee without the express written consent of the City,which consent may be withheld at the sole discretion of the City. 29. Grantee hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be -6- entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.). 30. Grantee shall not be entitled to, and hereby waives, any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City and/or-its affiliates,officers,employees, agents,attorneys,boards and commissions of whatsoever nature and in whatsoever forum after two (2) years from the date of this Agreement. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal corporation GRANTEE: B : *tegall., • B : Y Y Seay Manager Name/Print: Secr• �2y^ Title: �'•-e�.5..�� I . Attest: City Clerk fAlegal dept\agreement\cultural arts comm grant agrt-final-1-12-1 l.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Janus Theater Company will run it's Summer Rep series "One Playwright, One Festival" during the summer season of 2013. I� -8-