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HomeMy WebLinkAbout09-201 T t 5 Resolution No. 09-201 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 Sean R. Stegall, 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 financial assistance for 2009 in the amount of$6,325, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: September 9, 2009 Adopted: September 9, 2009 Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this 7y of Atn.a( 2009, 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 2009 Purchase of Service Agreement, attached hereto as Exhibit A and made a part hereof (such services including the terms, conditions, dates and times are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this agreement and the provisions in Exhibit A, the provisions of this agreement shall control. The Service Provider represents and warrants that the Service Provider has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A and that the Subject Services set forth in Exhibit A are integral parts of this agreement and may not be modified, amended or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 2. The Service Provider shall address all inquiries and requests made pursuant to this agreement to the 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 Twelve Thousand Six Hundred Fifty Dollars ($6,325). 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, 2010. C. The City has the right to review all accounting records of the Service Provider related to the use of the monies to be paid by the City to the Service Provider pursuant to this agreement upon 72 hours advance notice from the City to the Service Provider. D. The Service Provider shall have an audit performed on its financial statements for the year ending December 31, 2009. 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, 2010. 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, 2009,the Service Provider shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 8. Service Provider agrees and warrants that notwithstanding any other provision of this Agreement that in connection with the performance and/or providing of the Subject Services in this Agreement that the Service Provider shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Service Provider hereby certifies, represents and warrants to the City that all of the Service Provider's employees and/or agents who will be performing and/or providing the Subject Services with respect to this Agreement shall be legal residents of the United States. Service Provider shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful performance of the Subject Services to be provided for in this Agreement. Service Provider shall also perform and provide the Subject Services with due care. The City shall have the right to audit any records in the possession of control of the Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Service Provider shall make available to the City the Service Provider's relevant records at no cost to the City. 9. The City of Elgin shall be recognized as a sponsor of the Service Provider and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Service Provider's organization, press releases, radio advertising, web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Service Provider shall be used for this purpose. 10. In all printed materials in which a City seal or logo is deemed appropriate, approval by the Public Information Officer of the City is required prior to printing. 11. The term of this agreement shall commence from the date of the execution hereof and continue through May 31, 2010. 12. This agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. Service Provider understands and agrees that the relationship of the Service Provider to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Service Provider and the Service Provider's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 13. If either party violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek administrative contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party by reason of any default, fails to within fifteen (15) days after notice thereof by the other party to comply with the conditions of the agreement, the other party may terminate this agreement. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Service Provider in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Service Provider reasonable interest and reasonable attorney's fees. 14. Notwithstanding any other provision hereof, the City may terminate this agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this agreement is so terminated, the Service Provider shall be paid for services actually performed, and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not in any event exceed the total amount set forth under paragraph 4 above. Additionally, in the event this agreement is so terminated,the Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law, Service Provider agrees to indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorney's fees, damages or other relief, including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Service Provider in connection herewith, including negligence or omissions or agents of the Service Provider arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this 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 illegally denied or subjected to illegal discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the City. 20. The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable,all other portions of this Agreement shall remain in full force and effect. 21. This Agreement and its exhibits constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. 22. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. 23. The Service Provider certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Service Provider shall have written sexual harassment policies that include,at a minimum,the following information: A.the illegality of sexual harassment; B. the definition of sexual harassment under state 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. As a condition of this agreement, the Service Provider shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry and execution of this agreement. 26. Notwithstanding any other provision in this agreement, it is expressly agreed and understood that in connection with the performance of this agreement the Service Provider shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Service Provider hereby certifies, represents and warrants to the City that all of Service Provider's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Service Provider shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Service Provider shall make available to the City the City's relevant records at no cost to the City. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 27. Notwithstanding anything to the contrary in this agreement, with the sole exception of the monies the City has agreed to pay the Service Provider pursuant to Section 4 hereof, no action shall be commenced by the Service Provider, any related persons or entities, and/or any of their successors and/or assigns, against the City for monetary damages. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 28. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: As to the City: As to Service Provider: City of Elgin 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 29. 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. 30. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. L IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN,a municipal CHILDREN'S THEATRE OF ELGIN corporation By B Sean St all,City ;011,111-inann,mann,President Attest: City Clerk EXHIBIT A 1. Service Provider hereby agrees to present the production of: "Music Man" on October 22, 23, 24 and 25, 2009 (hereinafter referred to as "Production") 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 production 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 by City of Elgin for the dates of the production. 3. That in conjunction with the Production the City agrees to pay an amount not to exceed $6,325.00 of the costs and charges related to the use of the Hemmens. The City's agreement to refund up to $6,325.00 of the costs and charges related to the use of the Hemmens for the Production 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 $6,325.00, the City shall pay the dollar amount equal to the actual charges based on the rates as set forth by the City of Elgin. The City shall make such payment within forty-five(45)days of the completion of the final billing for the Production. 4. That notwithstanding the City's agreement to pay certain costs for the Production as provided herein, and the Service Provider's agreement to produce the Production, the 'parties hereto understand and agree that the Service Provider shall be solely responsible for conducting the shows. 5. Children's Theatre of Elgin shall make ten (10) pairs of tickets to the public shows available to the City. Said tickets shall be within the first 10 rows of the main floor. 6. 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. 7. That within sixty (60) days following the final performance of the Production, the City shall provide a statement to the Service Provider regarding 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 production 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 $6,325.00 within forty-five (45) days of billing. 8. 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. 9. 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 the production. 10. 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. 11. 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. 12. 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. 13. Service Provider shall provide The Hemmens' staff with a list of authorized designees as defined in the Lease Agreement. 14. 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' Production Coordinator 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 Production Coordinator. 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. 15. Service Provider shall provide proof of the appropriate licensing of copyrighted works for the production to the City on or before the first day of the Production's auditions. 16. 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. 17. 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.). 18. 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. 19. Service Provider shall provide to the Hemmens Cultural Center Supervisor a report of the Production including the following information within thirty (30) days after the final performance of the Production: A. total number of minors participating in Production, 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. 20. 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. 21. 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. <0 OF fI.Ci Agenda Item No. City of Elgin TEllFED v ,F /i ,1ft:, Cd` bid . ... (h August 20, 2009 . i TO: Mayor and Members of the City Council - s \ !` 2tJilC7 rit,1XlttrC Jt7t' FROM: Sean R. Stegall, City Manager s 4-�f� l % CBI rajOP},�rtunitt>shrA Ott ,cs Randy Reopelle, Parks and Recreation Director SUBJECT: Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production PURPOSE The purpose of this memorandum is to provide the Mayor and members of the City Council with information to consider the 2009 Purchase of Service Agreement with Children's Theatre of Elgin. RECOMMENDATION It is recommended that the City Council approve the 2009 Purchase of Service Agreement with Children's Theatre of Elgin in the amount of$6,325. 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. For 21 years, CTE has served children living in Elgin and the immediate surrounding areas who are between the ages of 8 and 16. Children are encouraged to participate as cast or crew members as well as workshop participants. During the 2008-2009 performance season, 160 children participated in the productions presented at The Hemmens Cultural Center with approximately 54 percent of the participants being Elgin residents. Fourteen scholarships valued at $1,050 were awarded to participants based on financial need. Under this Purchase of Service Agreement, the City would provide a contribution not to exceed $6,325 per production to be applied to Hemmens fees. In return, CTE, in addition to presenting two productions, agrees to make participation available to at-risk youth and provide reduced or waived registration fees based on need. During the 2008-2009 Performance Season, complimentary tickets were provided to several groups including at-risk elementary students, Hamilton Wings, Larkin Center, the Crisis Center, and others. In total, 2,005 complimentary tickets and 4,329 "reduced price"tickets were provided to CTE performances. CTE has met all the requirements for their 2008 Purchase of Service Agreement. Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 2 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 $6,325. There are sufficient funds budgeted ($13,925) and available ($6,325) in the Riverboat Fund, account number 275-0000-791.80-40 to make the payment. LEGAL IMPACT o, None ALTERNATIVES 1. The City Council may choose to approve the Purchase of Service Agreement with Children's Theatre of Elgin in the amount of$6,325. 2. The City Council may choose not to approve the Purchase of Service Agreement with Children's Theatre of Elgin in the amount of$6,325. Respectfully submitted for Council consideration. bw attachment Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 3 PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this day of , 2009, 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 2009 Purchase of Service Agreement, attached hereto as Exhibit A and made a part hereof (such services including the terms, conditions, dates and times are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this agreement and the provisions in Exhibit A, the provisions of this agreement shall control. The Service Provider represents and warrants that the Service Provider has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A and that the Subject Services set forth in Exhibit A are integral parts of this agreement and may not be modified, amended or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 2. The Service Provider shall address all inquiries and requests made pursuant to this agreement to the 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 Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 4 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 Six Thousand Three Hundred Twenty-Five Dollars ($6,325). 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 December 31, 2009. C. The City has the right to review all accounting records of the Service Provider related to the use of the monies to be paid by the City to the Service Provider pursuant to this agreement upon 72 hours advance notice from the City to the Service Provider. Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 5 D. The Service Provider shall have an audit performed on its financial statements for the year ending December 31, 2009. 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, 2010. 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, 2009, the Service Provider shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 8. Service Provider agrees and warrants that notwithstanding any other provision of this Agreement that in connection with the performance and/or providing of the Subject Services in this Agreement that the Service Provider shall comply with all applicable federal, state, city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Service Provider hereby certifies, represents and warrants to the City that all of the Service Provider's employees and/or agents who will be performing and/or providing the Subject Services with respect to this Agreement shall be legal residents of the United States. Service Provider shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful performance of the Subject Services to be provided for in this Agreement. Service Provider shall also perform and provide the Subject Services with due care. The City shall have the right to audit any records in the possession of control of the Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Service Provider shall make available to the City the Service Provider's relevant records at no cost to the City. 9. The City of Elgin shall be recognized as a sponsor of the Service Provider and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Service Provider's organization, press releases, radio advertising, web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin". Three Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 6 samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Service Provider shall be used for this purpose. 10. In all printed materials in which a City seal or logo is deemed appropriate, approval by the Public Information Officer of the City is required prior to printing. 11. The term of this agreement shall commence from the date of the execution hereof and continue through December 31, 2009. 12. This agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. Service Provider understands and agrees that the relationship of the Service Provider to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Service Provider and the Service Provider's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 13. If either party violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek administrative contractual or legal remedies as may be suitable to the violation or breach; and, in addition, if either party by reason of any default, fails to within fifteen (15) days after notice thereof by the other party to comply with the conditions of the agreement, the other party may terminate this agreement. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Service Provider in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Service Provider reasonable interest and reasonable attorney's fees. 14. Notwithstanding any other provision hereof, the City may terminate this agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this agreement is so terminated, the Service Provider shall be paid for services actually performed, and reimbursable expenses actually incurred prior to termination, except that reimbursement shall not in any event exceed the total amount set forth under paragraph 4 above. Additionally, in the event this agreement is so terminated,the Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law, Service Provider agrees to indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits, judgments, costs, attorney's fees, damages or other relief, including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Service Provider in connection herewith, including Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 7 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, 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. Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 8 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. As a condition of this agreement, the Service Provider shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry and execution of this agreement. 26. Notwithstanding any other provision in this agreement, it is expressly agreed and understood that in connection with the performance of this agreement the Service Provider shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Service Provider hereby certifies, represents and warrants to the City that all of Service Provider's employees Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 9 and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Service Provider shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Service Provider shall make available to the City the City's relevant records at no cost to the City. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 27. Notwithstanding anything to the contrary in this agreement, with the sole exception of the monies the City has agreed to pay the Service Provider pursuant to Section 4 hereof, no action shall be commenced by the Service Provider, any related persons or entities, and/or any of their successors and/or assigns, against the City for monetary damages. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 28. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail, postage prepaid, addressed as follows: As to the City: As to Service Provider: City of Elgin 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 29. 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. 30. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. • Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 10 IN WITNESS WHEREOF, the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal CHILDREN'S THEATRE OF ELGIN corporation y By Sean Stegall, City Manager David Akemann, President Attest: City Clerk Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20,2009 Page 11 EXHIBIT A 1. Service Provider hereby agrees to present the production of: "Music Man" on October 22, 23, 24 and 25, 2009 (hereinafter referred to as "Production") 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 production 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 the production. The rental amounts for each lease shall be determined pursuant to the requested services and materials at the rates established and set forth by City of Elgin for the dates of the production. 3. That in conjunction with the Production the City agrees to pay an amount not to exceed $6,325.00 of the costs and charges related to the use of the Hemmens. The City's agreement to refund up to $6,325.00 of the costs and charges related to the use of the Hemmens for the Production 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 $6,325.00, the City shall pay the dollar amount equal to the actual charges based on the rates as set forth by the City of Elgin. The City shall make such payment within forty-five (45) days of the completion of the final billing for the Production. 4. That notwithstanding the City's agreement to pay certain costs for the Production as provided herein, and the Service Provider's agreement to produce the Production, the parties hereto understand and agree that the Service Provider shall be solely responsible for conducting the shows. 5. Children's Theatre of Elgin shall make ten (10) pairs of tickets to the public shows available to the City. Said tickets shall be within the first 10 rows of the main floor. 6. 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. 7. That within sixty (60) days following the final performance for the Production, the City shall provide a statement to the Service Provider regarding 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 Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 12 production 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 $6,325.00 within forty-five (45) days of billing. 8. 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. 9. 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. 10. 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. 11. 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. 12. 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. 13. Service Provider shall provide The Hemmens' staff with a list of authorized designees as defined in the Lease Agreement. 14. 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' Cultural Center 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 Cultural Center 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. Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20,2009 Page 13 15. 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. 16. 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. 17. 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.). 18. 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. 19. Service Provider shall provide to the Hemmens Cultural Center Supervisor a report of the Production including the following information within thirty (30) days after the final performance for Production: A. total number of minors participating in Production, 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. 20. 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. 21. 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 Purchase of Service Agreement with Children's Theatre of Elgin for Fall 2009 Production August 20, 2009 Page 14 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. f OF Et t> ;e %; , Memorandum , ' N City of Elgin fi C'p c_ fir, ,,,t r�, :Pp..., %17.E. F°'' Date: September 28, 2009 To: Butch Wilhelmi, Hemmens Cultural Center Supervisor From: Jennifer Quinton, Deputy City Clerk Subject: Resolution No. 09-201, Adopted at the September 9, 2009, Council Meeting Enclosed you will find the agreement listed below. Please retain a copy for your records. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. • Purchase of Service Agreement with the Children's Theatre of Elgin