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HomeMy WebLinkAbout09-21 • Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS • WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD 1 Art For All Winter Show-Paint Your World Green $612 2 Ballet Folklorico Two Dance Performances $5,292 3 Elgin Chapter Barbershop Harmony Society Spring Concert $2,290 4 Elgin Children's Chorus Hear Freedom Ring Concert $5,376 5 Elgin Choral Union Mendessohn's Concert $4,861 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert $5,376 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4,771 9 Independent Players A musical and a comedy production $2,109 10 Janus Theatre Oedipus The King production $5,126 Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/ Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this I I day of rejjeu.kiv , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter referred to as the "City"), and Art For All, a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the"Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Art For All-Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of six hundred twelve dollars($612.00). Such payment by the City to the Grantee shall be made within 90 days. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted bythe Grantee to the Cityfor review bythe City's Y Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31, 2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30) days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee shall 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs, attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G.protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Art For All 150 Dexter Court 749 Scott Drive Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Sean Stegall Assistant City 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 Grantee and, as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Art For All By:ei \ __ , _ By: c -► —itt-�,W I4,2--� ±►- — . Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- * r f EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Art For All will display their artwork for their Winter Show, Paint Your World Green. -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD 1 Art For All Winter Show-Paint Your World Green $612 2 Ballet Folklorico Two Dance Performances $5,292 $2,290 3 Elgin Chapter Barbershop Harmony Society Spring Concert $ , 90 4 Elgin Children's Chorus Hear Freedom Ring Concert 5 Elgin Choral Union Mendessohn's Concert $4,861 $5,376 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4,771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 10 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/ Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this I I day of Fa,or tar , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter referred to as the "City"),and Ballet Folklorico,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the"Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Ballet Folklorico-Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to beperformed on other than Cityproperties, p p the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of five thousand two hundred and ninety two dollars ($5,292). Such payment by the City to the Grantee shall be made within 90 days. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31, 2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee shall 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs,attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- • 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; g Y B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G.protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the City's Assistant CityManager prior to the entryand execution of thisagree ment. 26. Notwithstanding any other provision in this agreement, it is expressly agreed and understood that in connection with the performance of this agreement the Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Ballet Folklorico 150 Dexter Court P.O. Box 5062 Elgin, IL 60120-5555 Elgin, IL 60121 Attention: Sean Stegall Assistant City 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 Grantee and, as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corpor,ition Ballet Folklorico By: 11111% City M. ager Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- • . EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Ballet Folklorico will present two cultural dance performances showcasing the entire Ballet Folklorico Huehuecoyotl. -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED THE under the COUNCIL ultural Art Commission F THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: PROJECT AWARD ORGANIZATION 1 Art For All Winter Show-Paint Your World Green $612 2 Ballet Folklorico Two Dance Performances $5,292 $ ,292 3 Elgin Chapter Barbershop Harmony Society Spring Concert $ ,290 4 Elgin Children's Chorus Hear Freedom Ring Concert Mendessohn's Concert $4,861 5 Elgin Choral Union 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert $5,376 Legends Of Music Production 7 Fox Valley Theatre Co. $4,906 8 Heartland Voices Mass of the Children Performance 1 $4,$4,777 9 Independent Players A musical and a comedy production 9 10 Janus Theatre Oedipus The King production $1,120. $40,719 Total: BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this 11 day of Fa.brval , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter refereed to as the "City"),and Elgin Chapter Barbershop Harmony Society,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the"Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Elgin Chapter Barbershop Harmony Society -Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of two thousand two hundred ninety dollars($2,290). Such payment by the City to the Grantee shall be made within 90 days. , 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31,2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this agreement is so paidfor services actuallyperformed, and reimbursa ble expenses terminated, the Grantee shall be p 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs, attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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 thepresence of anysensory,mental or physical rY p Y 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. the No person shall be denied or subjected to discrimination in receipt of 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 materialprovision 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G.protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Elgin Chapter Barbershop Harmony 150 Dexter Court Society Elgin, IL 60120-5555 216 E. Highland Ave Attention: Sean Stegall Elgin, IL 60120 Assistant City 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 Grantee and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS • -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Elgin Chapter Barbershop Harmony Society � \ 7 By: � By: !c l >< . �ag'er Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Elgin Chapter Barbershop Harmony Society will produce and perform a Spring Concert . -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD I Art For All Winter Show-Paint Your World Green $612 2 Ballet Folklorico Two Dance Performances $5,292 $2,290 3 Elgin Chapter Barbershop Harmony Society Spring Concert Hear Freedom Ring Concert $5,376 4 Elgin Children's Chorus $4,861 5 Elgin Choral Union Mendessohn's Concert Discover: Bernstein Concert $5,376 6 Elgin Youth Symphony Orchestra $4,906 7 Fox Valley Theatre Co. Legends Of Music Production 8 Heartland Voices Mass of the Children Performance $4,771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 10 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/ Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 • Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this I I day of f Q 'air�/ , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter referred to as the "City"),and Elgin Children's Chorus,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the"Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Elgin Children's Chorus - Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of five thousand three hundred seventy six dollars ($5,376). Such payment by the City to the Grantee shall be made within 90 days. • 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31,2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- • 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorneys fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee shall 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims, suits,judgments,costs, attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A.the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Elgin Children's Chorus 150 Dexter Court P.O. Box 725 Elgin, IL 60120-5555 Elgin, IL 60121 Attention: Sean Stegall Assistant City 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 Grantee and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Elgin Children's Chorus By: By: AC ifft2et City a ger Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Elgin Children s Chorus will produce and perform a Hear Freedom Ring Concert . -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD 1 Art For All Winter Show-Paint Your World Green $612 2 Ballet Folklorico Two Dance Performances $5,292 $2,290 3 Elgin Chapter Barbershop Harmony Society Spring Concert $ , 90 4 Elgin Children's Chorus Hear Freedom Ring Concert 5 Elgin Choral Union Mendessohn's Concert $4,861 $5,376 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4,771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 10 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/ Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this l I day of F2.46rcJar , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter refeied to as the "City"),and Elgin Choral Union ,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Elgin Choral Union-Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of four thousand eight hundred sixty one dollars ($4,861). Such payment by the City to the Grantee shall be made within 90 days. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City,including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31, 2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee shall 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs,attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the .City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum,the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G.protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Elgin Choral Union 150 Dexter Court 1700 Spartan Drive Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Sean Stegall Assistant City 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 Grantee and, as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Elgin Choral Union By: By. City tiger Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Elgin Choral U ion shall perform Mendessohn' s Concert in the spring. C ° , �01A -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD 1 Art For All Winter Show-Paint Your World Green $612 Two Dance Performances $5,292 2 Ballet Folklorico Spring Concert $2,290 3 Elgin Chapter Barbershop Harmony Society SP g $ , 90 4 Elgin Children's Chorus Hear Freedom Ring Concert 5 Elgin Choral Union Mendessohn's Concert $4,861 $5,376 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4,771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 10 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/Ed Schock Ed Schock, Mayor d: February rY 11, 2009 Adopted: February 11, 2009 s: 0 Omnibus Vote: Yeas: 5 Nays: Attest: s/Diane Robertson Diane Robertson, City Clerk 1/2109 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this I day of fkjAjaiV , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter ref&red to as the "City"),and Elgin Youth Symphony Orchestra,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Elgin Youth Symphony Orchestra - Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of five thousand three hundred seventy six dollars ($5,376). Such payment by the City to the Grantee shall be made within 90 days. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31, 2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. f Citymayterminate this ag reement any other provision hereof,the at any time upon thirty(30) days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims, suits,judgments,costs,attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- . , or necessary and incident to the due and lawful prosecution of the work, and/or the products and/ services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Elgin Youth Symphony Orchestra 150 Dexter Court 1700 Spartan Drive Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Sean Stegall Assistant City 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 Grantee and, as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Elgin Youth Symphony Orchestra • By: `ll1111‘ By: .ger Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Elgin Youth Symphony Orchestra will produce and perform Discover: Bernstein Concert . -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS • WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CIT Y OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD 1 Art For All Winter Show-Paint Your World Green $612 2 Ballet Folklorico Two Dance Performances $5,292 $2,290 3 Elgin Chapter Barbershop Harmony Society Spring Concert $ , 90 4 Elgin Children's Chorus Hear Freedom Ring Concert 5 Elgin Choral Union Mendessohn's Concert $4,861 $5,376 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4,771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 l0 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 • Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this /I day of Fejjr'jaj , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter referred to as the "City"), and Fox Valley Theatre Co. ,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Fox Valley Theatre Co. - Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of four thousand nine hundred and six dollars($4,906). Such payment by the City to the Grantee shall be made within 90 days. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued,or the Grantee ceases its operations prior to December 31,2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at .,any time upon thirty(30) days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee shall 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims, suits,judgments,costs,attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5 necessary and incident to the due and lawful prosecution of the work, and/or the products and/or • ,services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Fox Valley Theatre Co. 150 Dexter Court 1700 Spartan Drive Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Sean Stegall Assistant City 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 Grantee and, as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Fox Valley Theatre Co. By: By: ,� amwor y age ���' V Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean I-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE The Fox Valley Theatre Company will present "Legends of Music" Production -8- • Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT be THE al OF THE CITY Commission OF ELGIN, ILLINOIS, that grant assistance p Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: PROJECT AWARD ORGANIZATION Winter Show-Paint Your World Green $612 1 Art For All 2 Ballet Folklorico Two Dance Performances $5,292 $2,290 3 Elgin Chapter Barbershop Harmony Society Spring Concert $ , 90 4 Elgin Children's Chorus Hear Freedom Ring Concert 5 Elgin Choral Union Mendessohn's Concert $4,861 $5,376 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4 771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 10 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 • Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this I I day of Fejorvcu ,2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter refeifed to as the "City"),and Heartland Voices. ,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Heartland Voices - Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of four thousand seven hundred and seventy one dollars ($4,771). Such payment by the City to the Grantee shall be made within 90 days. • 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records,reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31, 2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- • 14. Notwithstanding any other provision hereof,the City may terminate this agreement at agreement time upon thirty(30)days prior written notice to the Grantee. In the event this is so terminated, the Grantee 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs,attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G.protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Heartland Voices 150 Dexter Court 1700 Spartan Drive Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Sean Stegall Assistant City 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 Grantee and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- I IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corpora ion Heartland Voices By: By: vAI; /Kkxv., City an et' Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Heartland Voices will present "Mass of the Children" performance -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS • WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that grant assistance be provided under the Cultural Arts Commission Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD 2 1 Art For All Winter Show-Paint Your World Green 1 2 Ballet Folklorico Two Dance Performances $5,292 $2,290 3 Elgin Chapter Barbershop Harmony Society Spring Concert $ , 90 4 Elgin Children's Chorus Hear Freedom Ring Concert 5 Elgin Choral Union Mendessohn's Concert $4,861 $5,376 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4,771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 10 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/ Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/ Diane Robertson Diane Robertson, City Clerk � r 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this I I day of FJDroar , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter refered to as the "City"),and Independent Players,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Independent Players-Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of two thousand one hundred and nine dollars($2,109).Such payment by the City to the Grantee shall be made within 90 days. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase ofpermanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City, including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31,2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's Officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30) days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee shall 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs, attorney's fees,damages or other relief,including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents,boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement, worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G.protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request(775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the.City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Independent Players 150 Dexter Court P.O. Box 982 Elgin, IL 60120-5555 Elgin, IL 60121 Attention: Sean Stegall Assistant City 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 Grantee and, as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may be withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- 1 � IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Independent Player /► By: By: City ger Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE A theatrical presentation of an English Comedy, "When We Are Married in conjunction with a musical review. -8- Resolution No. 09-21 RESOLUTION APPROVING CULTURAL ARTS COMMISSION GRANT RECIPIENTS WHEREAS, the Cultural Arts Commission Grant Program has been established to provide financial assistance for arts programming; and WHEREAS, in 2009 applications have been made for ten projects under the Cultural Arts Commission Grant Program; and WHEREAS, said applications have been reviewed and recipients selected by the City Council. NOW, THEREFORE, BEIassRs ante be Drovided THE underCITY the CCOultu al OF THE CITY Commission OF ELGIN, ILLINOIS, that grantp Grant Program to the following organizations: The following projects are recommended for funding by the Cultural Arts Commission: ORGANIZATION PROJECT AWARD 1 Art For All Winter Show-Paint Your World Green $612 2 Ballet Folklorico Two Dance Performances $5,292 $2,290 3 Elgin Chapter Barbershop Harmony Society Spring Concert $ , 90 4 Elgin Children's Chorus Hear Freedom Ring Concert 5 Elgin Choral Union Mendessohn's Concert $4,861 $5,376 6 Elgin Youth Symphony Orchestra Discover: Bernstein Concert 7 Fox Valley Theatre Co. Legends Of Music Production $4,906 8 Heartland Voices Mass of the Children Performance $4 771 9 Independent Players A musical and a comedy production $2,109 Oedipus The King production $5,126 10 Janus Theatre Total: $40,719 BE IT FURTHER RESOLVED that the projects shall be in conformance with all applicable codes and ordinances. s/ Ed Schock Ed Schock, Mayor Presented: February 11, 2009 Adopted: February 11, 2009 Omnibus Vote: Yeas: 5 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk 1/21/09 CULTURAL ARTS COMMISSION GRANT AGREEMENT THIS AGREEMENT is made and entered into this I I day of Feb(X. , 2009,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter ref&red to as the "City"),and Janus Theatre,a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to.as the"Grantee"). WHEREAS,the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Grantee to provide a grant to the Grantee in exchange for the Grantee to provide certain contract services as described in this agreement; and WHEREAS, the Grantee represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein,the sufficiency of which is hereby acknowledged,the parties hereto hereby agree as follows: 1. The Grantee shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Janus Theatre- Scope of Services for 2009 Grant 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 Grantee represents and warrants that the Grantee 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 Grantee shall address all inquiries and requests made pursuant to this agreement to the Assistant City Manager of the City or his designee. 3. In connection with the Subject Services to be performed on other than City properties, the Grantee warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Grantee agrees and warrants that the Grantee will periodically inspect all of such facilities and equipment for such purposes. Grantee also warrants that the Grantee and the Grantee's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City,Grantee agrees and warrants to use,and to cause persons participating in the Subject Services to use,through proper supervision and control,all facilities with due care,and to report all defects in or damage to any such facilities,and the cause thereof,if known, immediately to the Assistant City Manager of the City. 4. The City shall provide a grant to the Grantee for the Subject Services under this agreement in the total amount of five thousand one hundred and twenty six dollars ($5,126). Such payment by the City to the Grantee shall be made within 90 days. 5. Grantee shall comply with all of the requirements,terms and conditions of the City's Cultural Arts Commission Grant Program. All grant funds for the Subject Services shall be expended by the Grantee between January 1, 2009 and December 31, 2009. All funds awarded pursuant to this agreement shall be expended in accordance with the terms and provisions of this agreement and of the City's Cultural Arts Commission Grant Program. The Grantee shall apply the monies to be paid by the City to the Grantee pursuant to the proceeding paragraph hereof solely to fund the Subject Services identified in Exhibit A and no funds from the grant provided pursuant to this agreement shall be used by the Grantee for operating expenses or for any purchase of permanent equipment, capital improvements, construction or for the payment of any previous years deficit. 6. Prior to the entry into this agreement, the Grantee shall complete a Cultural Arts Commission Grant Application in a form as required by the City. Following the completion of the Subject Services the Grantee shall submit a final report in a form as required by the City no later than January 15, 2009. Without limiting the foregoing, the Grantee shall also complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City,including but not limited to, as follows: A. The Grantee shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. B. The Grantee shall provide to the City all accounting records substantiating any and all revenues and expenses relating to the grant funds awarded pursuant to this Agreement. Such accounting records shall be submitted by the Grantee to the City for review by the City's Fiscal Services Department within forty-five (45) days following the completion of the Subject Services. Accounting records shall include, but not be limited to, bank statements, cancelled checks, invoices, ticket sales,and such other documentation as determined by the City to verify the performance of the Subject Services and/or grant related receipts and disbursements. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Grantee ceases its operations prior to December 31, 2009,the Grantee 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. Grantee 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 Grantee shall comply with all applicable federal, state, city and other -2- 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, Grantee hereby certifies, represents and warrants to the City that all of the Grantee'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. Grantee 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. Grantee 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 Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the Grantee's relevant records at no cost to the City. 9. The City of Elgin and the Elgin Cultural Arts Commission shall be recognized as sponsors of the Grantee and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's and the Elgin Cultural Arts Commission's support shall be acknowledged on all print materials promoting the Grantee's organization,press releases,radio advertising,web page information and event program(s)through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin and the Elgin Cultural Arts Commission". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Grantee shall be used for this purpose. 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. Grantee understands and agrees that the relationship of the Grantee to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Grantee and the Grantee's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 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 Grantee in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Grantee reasonable interest and reasonable attorney's fees. -3- 14. Notwithstanding any other provision hereof,the City may terminate this agreement at any time upon thirty(30)days prior written notice to the Grantee. In the event this agreement is so terminated, the Grantee shall 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 Grantee shall immediately cease the expenditure of any funds paid to the Grantee by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law,Grantee agrees to indemnify,defend and hold harmless the City,its officers,employees,agents,boards and commissions from and against any and all claims,suits,judgments,costs,attorneys 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 Grantee in connection herewith,including negligence or omissions or agents of the Grantee arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 16. The Grantee shall provide, pay for and maintain in effect, during the term of this agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than$500,000 per occurrence for damages to persons or property. The Grantee shall also provide,pay for and maintain in effect, during the term of this agreement,worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Grantee shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 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 ofpay 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. -4- 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 Grantee certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Grantee shall have written sexual harassment policies that include, at a minimum, the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment,utilizing examples; D. the vendor's internal complaint process including penalties; E.the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G.protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies must be provided to the Department of Human Rights upon request (775 ILCS 5/2-105). 25. As a condition of this agreement,the Grantee shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse 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 Grantee shall comply with all applicable federal,state, city and other requirements of law including,but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Grantee hereby certifies, represents and warrants to the City that all of Grantee's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legal residents of the United States. Grantee shall also at its expense secure all permits and licenses,pay all charges and fees and give all notices -5- necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Grantee to determine the Grantee's compliance with the provisions of this section. In the event the City proceeds with such an audit,the Grantee shall make available to the City the City's relevant records at no cost to the City. The 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 Grantee pursuant to Section 4 hereof, no action shall be commenced by the Grantee, 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 Grantee: City of Elgin Janus Theatre 150 Dexter Court 919 Prospect Blvd. Elgin, IL 60120-5555 Elgin,IL 60120 Attention: Sean Stegall Assistant City 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 Grantee and, as such,this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 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 Grantee without the express written consent of the City which consent may withheld at the sole discretion of the City. SIGNATURE PAGE FOLLOWS -6- IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (GRANTEE) Corporation Janus Theatre By: •SCo•.. /c=\-=,r-.o-c9"--./���-e c z✓. City v an• 11111 Attest: City Clerk F:\Legal Dept\Agreement\CULTURAL ARTS COMM GRANT AGRT-clean 1-12-09.doc -7- EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY GRANTEE Janus Theatre will produce and perform an adaptation of "Oedipus the King" at the Elgin Art Showcase to kick off their Tenth Year Anniversary. -8-