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HomeMy WebLinkAbout07-245 Resolution No. 07-245 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE OF SERVICE AGREEMENT WITH THE CHILDREN'S THEATRE OF ELGIN BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Olufemi Folarin,City Manager,and Diane Robertson,City Clerk,be and are hereby authorized and directed to execute a Purchase of Service Agreement on behalf of the City of Elgin with the Children's Theatre of Elgin for productions of"Aladdin" on October 25, 26, 27 and 28, 2007 and "Placing Out" on April 10, 11, 12 and 13,2008,a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: October 10, 2007 Adopted: October 10, 2007 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this\&\ day of tj c .e_ic- , 2007, 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 "Service Provider") . WHEREAS, the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Service Provider for the Service Provider to provide certain contract services as described in this agreement; and WHEREAS, the Service Provider represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1 . The Service Provider shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Children' s Theatre of Elgin - Scope of Services for 2007 Purchase of Service Agreement, attached hereto as Exhibit A and made a part hereof (such services including the terms, conditions, dates and times are hereinafter referred to as the "Subject Services") . In the event of any conflict between the provisions of this agreement and the provisions in Exhibit A, the provisions of this agreement shall control. The Service Provider represents and warrants that the Service Provider has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A and that the Subject Services set forth in Exhibit A are integral parts of this agreement and may not be modified, amended or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 2 . The Service Provider shall address all inquiries and requests made pursuant to this agreement to the Hemmens Cultural Center Supervisor. 3. In connection with the Subject Services to be performed on other than City properties, the Service Provider warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Service Provider agrees and warrants that the Service Provider will periodically inspect all of such facilities and equipment for such purposes. Service Provider also warrants that the Service Provider and the Service Provider' s facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, Service Provider agrees and warrants to use, and to cause persons participating in the Subject Services to use, through proper supervision and control, all facilities with due care, and to report all defects in or damage to any such facilities, and the cause thereof, if known, immediately to the Hemmens Cultural Center Supervisor. 4 . The City shall reimburse the Service Provider for the Subject Services under this agreement a total amount not to exceed Fifteen Thousand Two Hundred Dollars ($15, 200) . Such payment by the City to the Service Provider shall be made as outlined in Paragraph 3 of Exhibit "A". 5. The Service Provider shall apply the monies to be paid by the City to the Service Provider pursuant to the proceeding paragraph hereof solely to offset the rental expenses of The Hemmens Cultural Center associated with the Subject Services to be provided by the Service Provider pursuant to this agreement as outlined in Paragraphs 2 an 3 of Exhibit "A". 6. The Service Provider shall complete, maintain and submit to the Hemmens Cultural Center Supervisor any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City. Without limiting the foregoing, the parties further agree as follows : A. The Service Provider shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Hemmens Cultural Center Supervisor prior to any payment by the City. B. Service Provider shall provide to the Hemmens Cultural Center Supervisor financial statements of the organization' s total operations. These statements shall be submitted on or before July 31 and December 31, 2007. C. The City has the right to review all accounting records of the Service Provider related to the use of the monies to be paid by the City to the Service Provider pursuant to this agreement -2- upon 72 hours advance notice from the City to the Service Provider. D. The Service Provider shall have an audit performed on its financial statements for the year ending December 31, 2006. Such audit shall be performed by an independent certified public accountant recognized in good standing by the American Institute of Certified Public Accountants and licensed in the State of Illinois. The Service Provider shall provide the City with two copies of the said audited financial statement along with the management letter and any other correspondence related to internal control matters on or before July 15, 2007 . Such statements shall be submitted to the Hemmens Cultural Center Supervisor at The Hemmens Cultural Center, 150 Dexter Court, Elgin, Illinois 60120-5555. 7 . In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Service Provider ceases its operations prior to December 31, 2007, the Service Provider shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 8 . Service Provider agrees and warrants that the Service Provider has procured all licenses, permits or like permission required by law to conduct or engage in the Subject Services provided for in this agreement, and that the Service Provider will procure all additional licenses, permits or like permission hereinafter required by law during the term of this agreement, and that the Service Provider will keep same in full force and effect during the term of this agreement. Service Provider shall perform the Subject Services with due care and in compliance with all applicable legal requirements . 9. The City of Elgin shall be recognized as a sponsor of the Service Provider and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Service Provider' s organization, press releases, radio advertising, web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin" . Three samples of this acknowledgement -3- shall be provided to the City. A logo provided by the City to the Service Provider shall be used for this purpose. 10. In all printed materials in which a City seal or logo is deemed appropriate, approval by the Public Information Officer of the City is required prior to printing. 11 . The term of this agreement shall commence from the date of the execution hereof and continue through May 31, 2008 . 12 . 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 Service Provider to the City arising out of this agreement shall be that of an independent contractor. The Service Provider and the Service Provider' s officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 13. If either party violates or breaches any term of this agreement, such violation or breach shall deemed to constitute a default, and the other party has the right to seek administrative contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party by reason of any default, fails to, within fifteen (15) days after notice thereof by the other party, comply with the conditions of the agreement, the other party may terminate this agreement. Notwithstanding the foregoing, or anything else to the contrary in this agreement, no action shall be commenced by the Service Provider against the City for monetary damages . In the event any legal action is brought by either party for the enforcement of any of the obligations of the other party to this agreement, the prevailing party in such action shall not be entitled to recover attorney' s fees. 14 . Notwithstanding any other provision hereof, the City may terminate this agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this agreement is so terminated, the Service Provider shall be paid for services actually performed, and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not in any event exceed the total amount set forth under paragraph 4 above. Additionally, in the event this agreement is so terminated, the Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law, Service Provider agrees to indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits, judgments, costs, attorney' s -4- fees, damages or other relief, including but not limited to worker' s compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Service Provider in connection herewith, including negligence or omissions or agents of the Service Provider arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any expiration and/or termination of this agreement. 16. The Service Provider shall provide, pay for and maintain in effect, during the term of this agreement, comprehensive automobile liability insurance covering all owned, non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than $500,000 per occurrence for damages to persons or property. The Service Provider shall also provide, pay for and maintain in effect, during the term of this agreement, worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Service Provider shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 17 . No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 18 . In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 19. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the City. 20 . The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement, -5- . or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 21 . This Agreement and its exhibits constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. 22 . This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. 23. The Service Provider certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24 . As a condition of this contract, the Service Provider shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state and federal law; C. a description of sexual harassment, utilizing examples; D. Service Provider' s internal complaint process, which process shall include a procedure whereby complainants may circumvent the individual subject of the complaint, and which shall also include a description of 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) . 25. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class -6- Mail, postage prepaid, addressed as follows : As to the City: As to Service Provider: City of Elgin Children's Theatre of Elgin 150 Dexter Court 1700 Spartan Dr. VPAC 141A Elgin, IL 60120-5555 Elgin, IL 60123-7189 Attention: Butch Wilhelmi Attention: Susan Heaton Cultural Center Supervisor Office Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 26. This agreement is and shall be deemed to construe to be a joint and collective work product of the City and the Service Provider and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 27 . This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. IN WITNESS WHEREOF, the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (SERVICE PROVIDER) corporation By City nager % res ent Attest: City Clerk -7- • EXHIBIT A 1. Service Provider hereby agrees to present the production of: "Aladdin" on October 25, 26, 27, and 28, 2007; and "Placing Out" on April 10, 11, 12, and 13, 2008 (hereinafter referred to as "Productions") as specifically provided for herein. 2. That concurrently with the execution of this Purchase of Service Agreement Service Provider agrees to enter into lease agreements for the use of the Hemmens Cultural Center on the dates for the productions described herein, in a form substantively similar to the lease form agreement attached hereto and made a part hereof as Attachment "A". The parties hereto shall execute such leases no later than 30 days prior to the first scheduled audition for each production. The rental amounts for each lease shall be determined pursuant to the requested services and materials at the rates established and set forth in City of Elgin Resolution No. 06-292, a copy of which is attached hereto and made a part hereof as Attachment "B" . 3. That in conjunction with the Productions the City agrees to pay an amount not to exceed $7, 600. 00 of the costs and charges related to the use of the Hemmens for each of the Productions. The City' s agreement to refund up to $7, 600. 00 of the costs and charges related to the use of the Hemmens for each of the Productions shall be the sole and only costs to the City for the subject shows. In the event that costs and charges related to the use of the Hemmens total less than $7, 600. 00, the City shall pay the dollar amount equal to the actual charges based on the rates as set forth in City of Elgin Resolution No. 06-292. The City shall make such payment within 30 days of the completion of the final billing for each Production. 4 . That notwithstanding the City' s agreement to pay certain costs for the Productions as provided herein, and the Service Provider' s agreement to produce the Productions, the parties hereto understand and agree that the Service Provider shall be solely responsible for conducting the shows. 5. Service Provider shall adhere to all rules, regulations and conditions as outlined in The Hemmens Cultural Center Lease Agreement. That in the event of any conflict between the terms of this Purchase of Service Agreement and the terms of the Lease Agreement, the terms of this Purchase of Service Agreement shall control. -8- 6. That within (60) days following the final performance for each Production, the City shall provide a statement to the Service Provider regarding each such Production. Such statement shall also identify the amount of box office receipts. Such statement shall identify the amount of all the costs and charges related to the use of the Hemmens for the productions described herein. The City shall pay the Service Provider the amount of box receipts which exceed all such costs and charges related to the use of the Hemmens, if any. Service Provider shall pay to City an amount equal to the amount of costs and charges which exceed the total of the box office receipts. Such excess costs and charges shall be paid by the Service Provider within thirty (30) days of billing, unless otherwise expressly authorized in writing by the Lessor. The City shall in turn provide Service Provider with a refund check of an amount not to exceed $7, 600 within thirty (30) days of billing. 7 . The City shall provide audition space at The Hemmens in either the Theatre or the Exhibition Hall, depending on the event schedule at City' s sole discretion. 8 . The City shall provide rehearsal space at The Hemmens in either the Theatre or the Exhibition Hall depending on the applicable event schedule in City' s sole discretion. No rehearsal space shall be considered guaranteed until a final rehearsal/performance schedule is provided by The Hemmens to Service Provider. Such schedule shall be provided no later than the Call Back Audition for each production. 9. The City shall reserve the Theatre for preparation and performances, commonly known as "Tech Week", beginning at 8 : 00 pm on the Sunday prior to the first performance. 10. Service Provider shall make participation available to at-risk youth through (1) outreach to organizations and institutions serving at-risk and low-income youth and (2) providing assistance to enable low-income youth to participate. 11. Service Provider shall provide reduced and waived registration fees to certain individuals based on need. The degree and amount of such assistance shall be at Children' s Theatre discretion. 12 . Service Provider shall provide The Hemmens' staff with a list of authorized designees as defined in the Lease Agreement. -9- 13. Any changes by Service Provider regarding rehearsal or performance times, number or dates of shows, ticket prices, or any other changes which may impact or affect Hemmens operations shall be submitted in writing to The Hemmens' Front-of-House Supervisor not less than five (5) days prior to any affected rehearsal or thirty (30) day prior to any affected performance. No such changes shall be implemented without the prior written approval of The Hemmens Front-of- House Supervisor. In the event that Service Provider fails to provide such written notification in a timely manner and to obtain the aforementioned written approval, the City reserves the right to deny such changes. 14 . Service Provider shall provide proof of the appropriate licensing of copyrighted works for each production to the City on or before the first day of the given Production' s auditions. 15. If Hemmens' staff is to be used for the purpose of Lighting Design and/or Stage Management, a full copy of the script (in WORD format if available) , stage drawings, backdrop lists and any other related technical information shall be provided no later than the first rehearsal. Any changes shall be provided in writing in a timely fashion. Furthermore, if Hemmens' staff is to be used for Stage Management, such staff person shall have authority over the backstage area and staff; including but not limited to, the use of intercom communication during rehearsals and performances, and the placement of scenery, props, and costumes when stored offstage. 16. Hemmens' staff reserves the right to approve or deny the use of technical equipment to be used in conjunction with City' s facility systems (lighting, sound, rigging, etc. ) . 17 . Service Provider shall limit the length of school shows to allow not less than one hour between the end of the first performance and the scheduled start time of the second performance. 18 . Service Provider shall provide to the Hemmens Cultural Center Supervisor a report of each Production including the following information within thirty (30) days after the final performance for each Production: A. total number of minors participating in Productions, B. number of scholarships or financial assistance provided, included equivalent financial value of such assistance, C. total number of minors participating who reside Elgin, and D. description of outreach methods. -10- 19. Service Provider shall provide to the Hemmens' Cultural Center Supervisor written reports detailing related expenses related to each production within thirty (30) days after receipt of Production statement. 20. The fiscal year of the City is the twelve month period ending December 31. The obligations of the City under any agreement for any fiscal year are subject to and contingent upon the appropriation by the City Council of the City of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the agreement. If, for any fiscal year during the term of this agreement, sufficient funds for the discharge of the City' s obligations under the agreement are not appropriated and authorized by the City Council of the City, then this agreement shall terminate on the last day of the preceding year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the City of any kind including, without limitation, damages, penalties or other charges on account of such termination. The terms of this agreement shall be severable. In the event any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. -11- } ANT 5 e, 'r$ September 21, 2007 >— • TO: Mayor and Members of the City Council -+...� FROM: Olufemi Folarin, City Manager ,ra pporsu( kif rrt arie Grlhrry Q nrurnities orA((Citi<cns Randy Reopelle, Parks & Recreation Director SUBJECT: Purchase of Service Agreement with Children's Theatre of Elgin PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider a Purchase of Service Agreement for two productions with Children's Theatre of Elgin, a not-for-profit organization,. RECOMMENDATION It is recommended that the City Council approve the Purchase of Service Agreement with Children's Theatre of Elgin by providing financial support in the amount of$15,200 ($7,600 for each of two productions). BACKGROUND Children's Theatre of Elgin's (CTE)mission is to enhance the quality of life of children and their families by providing performing arts education and making live theatre accessible. CTE serves children living in Elgin and the immediate surrounding areas who are between the ages of eight and 16. Children are encouraged to participate as cast or crew members as well as workshop participants. During the 2006-2007 performance season, 166 children participated in the productions presented at The Hemmens Cultural Center with approximately 54 percent (54%) of the participants being Elgin residents. Under this Purchase of Service Agreement, the City would provide a contribution not to exceed $7,600 per production to be applied to Hemmens fees. In return, Children's Theatre, in addition to presenting two productions, would agree to include at-risk youth and provide reduced or waived registration fees based on need. During the 2006-2007 Performance Season, complimentary tickets were provided to several groups including at-risk elementary students, Hamilton Wings and Easter Seals. In total, 1,030 complimentary tickets were provided to Children's Theatre performances. PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 2 It should be noted that CTE has met all the requirements of their 2006 Purchase of Service Agreement. However, due to low participation rates by at-risk youth, City staff will be working with CTF to increase their numbers in 2008. COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED None. FINANCIAL IMPACT The cost of the proposed Purchase of Service Agreement with Children's Theatre of Elgin will total $15,200, with $7,600 in support being provided in 2007 and $7,600 being provided in 2008. There are sufficient funds available ($7,600) in the Riverboat Fund, account number 275-0000- 791.80-40 to make the initial payment. The final payment will need to be addressed as part of the 2008 budgeting process. LEGAL IMPACT None. ALTERNATIVES 1. The Council may choose to approve the Purchase of Service Agreement with Children's Theatre of Elgin. 2. The Council may choose to not approve the Purchase of Service Agreement with Children's Theatre of Elgin. Respectfully submitted for Council consideration. bw attachment PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 3 PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this day of , 2007, 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 "Service Provider"). WHEREAS, the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Service Provider for the Service Provider to provide certain contract services as described in this agreement; and WHEREAS, the Service Provider represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. The Service Provider shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Children's Theatre of Elgin - Scope of Services for 2007 Purchase of Service Agreement, attached hereto as Exhibit A and made a part hereof (such services including the terms, conditions, dates and times are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this agreement and the provisions in Exhibit A, the provisions of this agreement shall control. The Service Provider represents and warrants that the Service Provider has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A and that the Subject Services set forth in Exhibit A are integral parts of this agreement and may not be modified, amended or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 2. The Service Provider shall address all inquiries and requests made pursuant to this agreement to the Hemmens Cultural Center Supervisor. 3. In connection with the Subject Services to be performed on other than City properties,the Service Provider warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Service Provider agrees and warrants that the Service PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 4 Provider will periodically inspect all of such facilities and equipment for such purposes. Service Provider also warrants that the Service Provider and the Service Provider's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, Service Provider agrees and warrants to use, and to cause persons participating in the Subject Services to use, through proper supervision and control, all facilities with due care, and to report all defects in or damage to any such facilities, and the cause thereof, if known, immediately to the Hemmens Cultural Center Supervisor. 4. The City shall reimburse the Service Provider for the Subject Services under this agreement a total amount not to exceed Fifteen Thousand Two Hundred Dollars ($15,200). Such payment by the City to the Service Provider shall be made as outlined in Paragraph 3 of Exhibit «A» 5. The Service Provider shall apply the monies to be paid by the City to the Service Provider pursuant to the proceeding paragraph hereof solely to offset the rental expenses of The Hemmens Cultural Center associated with the Subject Services to be provided by the Service Provider pursuant to this agreement as outlined in Paragraphs 2 an 3 of Exhibit"A". 6. The Service Provider shall complete, maintain and submit to the Hemmens Cultural Center Supervisor any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City. Without limiting the foregoing, the parties further agree as follows: A. The Service Provider shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Hemmens Cultural Center Supervisor prior to any payment by the City. B. Service Provider shall provide to the Hemmens Cultural Center Supervisor financial statements of the organization's total operations. These statements shall be submitted on or before July 31 and December 31, 2007. C. The City has the right to review all accounting records of the Service Provider related to the use of the monies to be paid by the City to the Service Provider pursuant to this agreement upon 72 hours advance notice from the City to the Service Provider. S. , PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 5 D. The Service Provider shall have an audit performed on its financial statements for the year ending December 31, 2006. Such audit shall be performed by an independent certified public accountant recognized in good standing by the American Institute of Certified Public Accountants and licensed in the State of Illinois. The Service Provider shall provide the City with two copies of the said audited financial statement along with the management letter and any other correspondence related to internal control matters on or before July 15, 2007. Such statements shall be submitted to the Hemmens Cultural Center Supervisor at The Hemmens Cultural Center, 150 Dexter Court, Elgin, Illinois 60120-5555. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Service Provider ceases its operations prior to December 31, 2007, the Service Provider shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 8. Service Provider agrees and warrants that the Service Provider has procured all licenses, permits or like permission required by law to conduct or engage in the Subject Services provided for in this agreement, and that the Service Provider will procure all additional licenses, permits or like permission hereinafter required by law during the term of this agreement, and that the Service Provider will keep same in full force and effect during the term of this agreement. Service Provider shall perform the Subject Services with due care and in compliance with all applicable legal requirements. 9. The City of Elgin shall be recognized as a sponsor of the Service Provider and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Service Provider's organization, press releases, radio advertising, web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Service Provider shall be used for this purpose. 10. In all printed materials in which a City seal or logo is deemed appropriate, approval by the Public Information Officer of the City is required prior to printing. 11. The term of this agreement shall commence from the date of the execution hereof and continue through May 31, 2008. PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 6 12. 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 Service Provider to the City arising out of this agreement shall be that of an independent contractor. The Service Provider and the Service Provider's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 13. If either party violates or breaches any term of this agreement, such violation or breach shall deemed to constitute a default, and the other party has the right to seek administrative contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party by reason of any default, fails to, within fifteen (15) days after notice thereof by the other party, comply with the conditions of the agreement, the other party may terminate this agreement. Notwithstanding the foregoing, or anything else to the contrary in this agreement, no action shall be commenced by the Service Provider against the City for monetary damages. In the event any legal action is brought by either party for the enforcement of any of the obligations of the other party to this agreement, the prevailing party in such action shall not be entitled to recover attorney's fees. 14. Notwithstanding any other provision hereof, the City may terminate this agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this agreement is so terminated, the Service Provider shall be paid for services actually performed, and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not in any event exceed the total amount set forth under paragraph 4 above. Additionally, in the event this agreement is so terminated, the Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law, Service Provider agrees to indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or other relief, including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Service Provider in connection herewith, including negligence or omissions or agents of the Service Provider arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any expiration and/or termination of this agreement. 16. The Service Provider shall provide,pay for and maintain in effect, during the term of this agreement, comprehensive automobile liability insurance covering all owned, non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 7 $500,000 per occurrence for damages to persons or property. The Service Provider shall also provide,pay for and maintain in effect, during the term of this agreement, worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Service Provider shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 17. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 18. In all hiring or employment made possible or resulting from this Agreement,there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 19. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the City. 20. The parties intend and agreed that, if any paragraph, sub-paragraph,phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 21. This Agreement and its exhibits constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. 22. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. 23. The Service Provider certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 8 24. As a condition of this contract, the Service Provider shall have written sexual harassment policies that include, at a minimum,the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state and federal law; C. a description of sexual harassment, utilizing examples; D. Service Provider's internal complaint process, which process shall include a procedure whereby complainants may circumvent the individual subject of the complaint, and which shall also include a description of 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). 25. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: As to the City: As to Service Provider: City of Elgin Children's Theatre of Elgin 150 Dexter Court 1700 Spartan Dr. VPAC 141A Elgin, IL 60120-5555 Elgin, IL 60123-7189 Attention: Butch Wilhelmi Attention: Susan Heaton Cultural Center Supervisor Office Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 26. This agreement is and shall be deemed to construe to be a joint and collective work product of the City and the Service Provider and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any,of the terms and provisions contained herein. PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 9 27. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. IN WITNESS WHEREOF, the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (SERVICE PROVIDER) corporation By By City Manager President Attest: City Clerk PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21,2007 Page 10 EXHIBIT A 1. Service Provider hereby agrees to present the production of: "Aladdin" on October 25, 26, 27, and 28, 2007; and "Placing Out" on April 10, 11, 12, and 13, 2008 (hereinafter referred to as"Productions") as specifically provided for herein. 2. That concurrently with the execution of this Purchase of Service Agreement Service Provider agrees to enter into lease agreements for the use of the Hemmens Cultural Center on the dates for the productions described herein, in a form substantively similar to the lease form agreement attached hereto and made a part hereof as Attachment "A". The parties hereto shall execute such leases no later than 30 days prior to the first scheduled audition for each production. The rental amounts for each lease shall be determined pursuant to the requested services and materials at the rates established and set forth in City of Elgin Resolution No. 06-292, a copy of which is attached hereto and made a part hereof as Attachment "B". 3. That in conjunction with the Productions the City agrees to pay an amount not to exceed $7,600.00 of the costs and charges related to the use of the Hemmens for each of the Productions. The City's agreement to refund up to $7,600.00 of the costs and charges related to the use of the Hemmens for each of the Productions shall be the sole and only costs to the City for the subject shows. In the event that costs and charges related to the use of the Hemmens total less than $7,600.00, the City shall pay the dollar amount equal to the actual charges based on the rates as set forth in City of Elgin Resolution No. 06- 292. The City shall make such payment within 30 days of the completion of the final billing for each Production. 4. That notwithstanding the City's agreement to pay certain costs for the Productions as provided herein, and the Service Provider's agreement to produce the Productions, the parties hereto understand and agree that the Service Provider shall be solely responsible for conducting the shows. 5. Service Provider shall adhere to all rules, regulations and conditions as outlined in The Hemmens Cultural Center Lease Agreement. That in the event of any conflict between the terms of this Purchase of Service Agreement and the terms of the Lease Agreement, the terms of this Purchase of Service Agreement shall control. 6. That within (60) days following the final performance for each Production, the City shall provide a statement to the Service Provider regarding each such Production. Such statement shall also identify the amount of box office receipts. Such statement shall identify the amount of all the costs and charges related to the use of the Hemmens for the productions described herein. The City shall pay the Service Provider the amount of box PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 11 receipts which exceed all such costs and charges related to the use of the Hemmens, if any. Service Provider shall pay to City an amount equal to the amount of costs and charges which exceed the total of the box office receipts. Such excess costs and charges shall be paid by the Service Provider within thirty (30) days of billing, unless otherwise expressly authorized in writing by the Lessor. The City shall in turn provide Service Provider with a refund check of an amount not to exceed $7,600 within thirty (30) days of billing. 7. The City shall provide audition space at The Hemmens in either the Theatre or the Exhibition Hall, depending on the event schedule at City's sole discretion. 8. The City shall provide rehearsal space at The Hemmens in either the Theatre or the Exhibition Hall depending on the applicable event schedule in City's sole discretion. No rehearsal space shall be considered guaranteed until a final rehearsal/performance schedule is provided by The Hemmens to Service Provider. Such schedule shall be provided no later than the Call Back Audition for each production. 9. The City shall reserve the Theatre for preparation and performances, commonly known as"Tech Week",beginning at 8:00 pm on the Sunday prior to the first performance. 10. Service Provider shall make participation available to at-risk youth through (1) outreach to organizations and institutions serving at-risk and low-income youth and (2) providing assistance to enable low-income youth to participate. 11. Service Provider shall provide reduced and waived registration fees to certain individuals based on need. The degree and amount of such assistance shall be at Children's Theatre discretion. 12. Service Provider shall provide The Hemmens' staff with a list of authorized designees as defined in the Lease Agreement. 13. Any changes by Service Provider regarding rehearsal or performance times, number or dates of shows, ticket prices, or any other changes which may impact or affect Hemmens operations shall be submitted in writing to The Hemmens' Front-of-House Supervisor not less than five (5) days prior to any affected rehearsal or thirty (30) day prior to any affected performance. No such changes shall be implemented without the prior written approval of The Hemmens Front-of-House Supervisor. In the event that Service Provider fails to provide such written notification in a timely manner and to obtain the aforementioned written approval, the City reserves the right to deny such changes. PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 12 14. Service Provider shall provide proof of the appropriate licensing of copyrighted works for each production to the City on or before the first day of the given Production's auditions. 15. If Hemmens' staff is to be used for the purpose of Lighting Design and/or Stage Management, a full copy of the script (in WORD format if available), stage drawings, backdrop lists and any other related technical information shall be provided no later than the first rehearsal. Any changes shall be provided in writing in a timely fashion. Furthermore, if Hemmens' staff is to be used for Stage Management, such staff person shall have authority over the backstage area and staff; including but not limited to,the use of intercom communication during rehearsals and performances, and the placement of scenery,props, and costumes when stored offstage. 16. Hemmens' staff reserves the right to approve or deny the use of technical equipment to be used in conjunction with City's facility systems(lighting, sound, rigging, etc.). 17. Service Provider shall limit the length of school shows to allow not less than one hour between the end of the first performance and the scheduled start time of the second performance. 18. Service Provider shall provide to the Hemmens Cultural Center Supervisor a report of each Production including the following information within thirty(30) days after the final performance for each Production: A. total number of minors participating in Productions, B. number of scholarships or financial assistance provided, included equivalent financial value of such assistance, C. total number of minors participating who reside Elgin, and D. description of outreach methods. 19. Service Provider shall provide to the Hemmens' Cultural Center Supervisor written reports detailing related expenses related to each production within thirty (30) days after receipt of Production statement. 20. The fiscal year of the City is the twelve month period ending December 31. The obligations of the City under any agreement for any fiscal year are subject to and contingent upon the appropriation by the City Council of the City of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the agreement. If, for any fiscal year during the term of this agreement, sufficient funds for the discharge of the City's obligations under the agreement are not appropriated and authorized by the City Council of the City, then this agreement shall terminate on the last day of the preceding year, or when such PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 13 appropriated and authorized funds are exhausted, whichever is later, without liability to the City of any kind including, without limitation, damages, penalties or other charges on account of such termination. The terms of this agreement shall be severable. In the event any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 14 The Jungle Book Presented by Children's Theatre of Elgin. Production Report to City of Elgin/Hemmens per PSA Grantee's Information Children's Theatre of Elgin 1700 Spartan Drive, VPAC 141A Elgin, IL 60120 Phone: (847) 214-7152 Fax: (847) 622-3058 E-mail: cteelgin@hotmail.com A. Youth Participation Number cast: 78 Age Range: 8-15 years B. Number of scholarships: None requested C. Total Elgin children participating: 44 (56% of cast) D. Outreach Methods: • 600 students from at-risk school (Hillcrest Elementary) paid $1 each to help defray bus expense and received complimentary tickets to school show • Total number of reduced-price school show tickets sold: 3,482; total number of complimentary tickets donated to school show students &teachers: 797 • Donated over$200 worth of leftover concessions food to Elgin Community Crisis Center • Donated leftover show t-shirts and other concessions items to homeless students in School District U-46 valued at$100 • Contacted School District U-46 at-risk student director Nancy Schueneman and Youth Leadership Academy's Bob Cywinski to encourage them to invite their students to audition for"The Jungle Book" • Total number of outreach complimentary tickets: 797 • Total value of outreach complimentary tickets: $3,985 PSA with Children's Theatre of Elgin/Fox Valley Youth Theatre Company September 21, 2007 Page 15 Pocahontas Presented by Children's Theatre of Elgin, April 12-15, 2007 Production Report to City of Elgin/Hemmens per PSA Grantee's Information Children's Theatre of Elgin 1700 Spartan Drive, VPAC 141A Elgin, IL 60120 Phone: (847) 214-7152 Fax: (847) 622-3058 E-mail: cteelgin@hotmail.com A. Youth Participation Number cast: 88 Age Range: 8-15 years B. Number of scholarships: None requested C. Total Elgin children participating: 46 (52%of cast) D. Outreach Methods: • Total number of reduced-price school show tickets sold: 2,668; total number of complimentary tickets donated to school show students&teachers: 113 valued at $565 • Donated 60 complimentary tickets to Hamilton Wings S.C.O.R.E. program valuing$510 for Saturday evening show to allow students & families to attend • Provided 60 tickets to area organizations, including Easter Seals & Crisis Center valuing $600 • Provided 380 reduced-price tickets to Girl Scout troops for Saturday matinee • Provided 24 reduced-price tickets to Dundee Senior Center& Grandma& Grandpa Club for school show performances • Total number of complimentary outreach tickets: 233 • Total value of complimentary outreach tickets: $1,135