Loading...
HomeMy WebLinkAbout11-0217 Childrens Theater PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this /7t"day of fe6,-ywcy , 2011, by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinaftet'referred to as the "City"), and CHILDREN'S THEATRE OF ELGIN, a not-for-profit corporation organized and existing under the laws of the State of Illinois (hereinafter referred to as the "Service Provider"). WHEREAS, the City has determined that it would serve a beneficial public purpose to enter into an agreement with the Service Provider for the Service Provider to provide certain contract services as described in this agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby mutually acknowledged, the parties hereto hereby agree as follows: 1. The Service Provider shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Children's Theatre of Elgin - Scope of Services for 2011 Purchase of Service Agreement, attached hereto as Exhibit A and made a part hereof (such services including the terms, conditions, dates and times are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this agreement and the provisions in Exhibit A, the provisions of this agreement shall control. The Service Provider represents and warrants that the Service Provider has the skills and knowledge necessary to conduct the Subject Services provided for in Exhibit A and that the Subject Services set forth in Exhibit A are integral parts of this agreement and may not be modified, amended or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 2. The Service Provider shall address all inquiries and requests made pursuant to this agreement to the City's Hemmens Cultural Center Director. 3. In connection with the Subject Services to be performed on other than City properties,the Service Provider warrants and agrees to maintain all facilities and equipment used in the performing of the Subject Services in a clean, sanitary and safe condition and free from defects of every kind whatsoever. Service Provider agrees and warrants that the Service Provider will periodically inspect all of such facilities and equipment for such purposes. Service Provider also warrants that the Service Provider and the Service Provider's facilities and equipment used in the performing of the Subject Services are not now, nor shall be during the term of this agreement in violation of any health, building, fire or zoning code or regulation or other applicable requirements of law. In connection with the Subject Services on properties owned or controlled by the City, Service Provider agrees and warrants to use, and to cause persons participating in the Subject Services to use, through proper supervision and control, all facilities with due care, and to report all defects in or damage to any such facilities, and the cause thereof, if known, immediately to the Hemmens Cultural Center Director. 4. The City shall pay the Service Provider for the Subject Services under this agreement a total amount not to exceed Ten Thousand Seven Hundred Fifty Dollars ($10,750). . Such payment by the City to the Service Provider shall be made as outlined in Paragraph 3 of Exhibit"A". 5. The Service Provider shall apply the money to be paid by the City to the Service Provider pursuant to the proceeding paragraph hereof solely to offset the rental expenses of The Hemmens Cultural Center associated with the Subject Services to be provided by the Service Provider pursuant to this agreement as outlined in Paragraphs 2 and 3 of Exhibit"A". 6. The Service Provider shall complete, maintain and submit to the Hemmens Cultural Center Director any and all records, reports and forms relating to the Subject Services in this agreement as requested by the City. Without limiting the foregoing, the parties further agree as follows: A. The Service Provider shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this agreement during the term of this agreement. The budget shall be submitted to the Hemmens Cultural Center Director prior to any payment by the City. B. Service Provider shall provide to the Hemmens Cultural Center Director financial statements of the organization's total operations. These statements shall be submitted on or before July 31, 2011. C. The City has the right to review all accounting records of the Service Provider related to the use of the monies to be paid by the City to the Service Provider pursuant to this agreement upon 72 hours advance notice from the City to the Service Provider. D. The Service Provider shall have an audit performed on its financial statements for the year ending December 31, 2010. Such audit shall be performed by an independent certified public accountant recognized in good standing by the American Institute of Certified Public Accountants and licensed in the State of Illinois. The Service Provider shall provide the City with two copies of the said audited financial statement along with the management letter and any other correspondence related to internal control matters on or before July 15, 2011. Such statements shall be submitted to the Hemmens Cultural Center Director at The Hemmens Cultural Center, 45 Symphony Way, Elgin, Illinois 60120-5558. 7. In the event this agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Service Provider ceases its operations prior to October 31, 2011, the Service Provider shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 9. The City of Elgin shall be recognized as a sponsor of the Service Provider and shall receive the benefits of sponsorship consistent with the level of support provided in this agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Service Provider's organization, press releases, radio advertising, web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Service Provider shall be used for this purpose. 10. In all printed materials in which a City seal or logo is deemed appropriate, approval by the Public Information Officer of the City is required prior to printing. 11. The term of this agreement shall commence from the date of the execution hereof and continue through October 31, 2011. 12. This agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. Service Provider understands and agrees that the relationship of the Service Provider to the City arising out of this agreement shall be that of an independent contractor. It is expressly agreed and understood that the Service Provider and the Service Provider's officers, employees and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 13. If the Service Provider violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek administrative, contractual, legal or equitable remedies as may be suitable to the violation or breach; and, in addition, if the Service Provider by reason of any default, fails to within fifteen (15) days after notice thereof by the City to comply with the conditions of the agreement, the City may terminate this agreement. If the City violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default, and in the event the City fails to within fifteen (15) days after notice thereof by the Service Provider to comply with the conditions of this agreement, the Service Provider as its sole and exclusive remedy may terminate this agreement. Notwithstanding anything to the contrary in this agreement, with the sole exception of the monies the City has agreed to pay the Service Provider pursuant to Section 4 hereof, no action shall be commenced by the Service Provider, any related persons or entities, and/or any of their successors and/or assigns, against the City for monetary damages. In the event any legal action is brought by the City for the enforcement of any of the obligations of the Service Provider in this agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from the Service Provider reasonable interest and reasonable attorney's fees. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 14. Notwithstanding any other provision hereof, the City may terminate this agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this agreement is so terminated, the Service Provider shall be paid for services actually performed prior to termination, except that reimbursement shall not in any event exceed the total amount set forth under paragraph 4 above. Additionally, in the event this agreement is so terminated,the Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 15. To the fullest extent permitted by law, Service Provider agrees to indemnify, defend and hold harmless the City, its officers, employees, agents, boards and commissions from and against any and all claims, suits,judgments, costs, attorney's fees, damages or other relief, including but not limited to worker's compensation claims, in any way resulting from or arising out of negligent actions or omissions of the Service Provider in connection herewith, including negligence or omissions or agents of the Service Provider arising out of the performance of this agreement and/or the Subject Services. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of the City's choosing. The provisions of this paragraph shall survive any expiration and/or termination of this agreement. 16. The Service Provider shall provide,pay for and maintain in effect, during the term of this agreement, comprehensive automobile liability insurance covering all owned, non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than $500,000 per occurrence for damages to persons or property. The Service Provider shall also provide, pay for and maintain in effect, during the term of this agreement, worker's compensation insurance in amounts required under the laws of the State of Illinois. At the request of the City the Service Provider shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 17. No official, director, officer, agent or employee of the City shall be charged personally or held contractually liable under any term or provision of this Agreement or because of their execution, approval or attempted execution of this Agreement. 18. In all hiring or employment made possible or resulting from this Agreement, there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, national origin, marital status, of the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 19. No person shall be illegally denied or subjected to illegal discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, national origin, age except minimum age and retirement provisions, marital status or the presence of any sensory, mental or physical handicap. Any violation of this provision shall be considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part, of the Agreement by the City. 20. The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement, or any portion thereof, shall be held to be void or otherwise unenforceable, all other portions of this Agreement shall remain in full force and effect. 21. This Agreement and its exhibits constitutes the entire Agreement of the parties on the subject matter hereof and may not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof. 22. This Agreement shall be deemed to have been made in, and shall be construed in accordance with the laws of the State of Illinois. Venue for the resolution of any disputes or the enforcement of any rights pursuant to this agreement shall be in the Circuit Court of Kane County, Illinois. • 23. The Service Provider certifies hereby that it is not barred from bidding on a public contact as a result of a violation of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 24. As a condition of this contract, the Service Provider shall have written sexual harassment policies that include, at a minimum,the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment, utilizing examples; D. Service Provider'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 Service Provider shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Act at 820 ILCS 265/1 et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry and execution of this agreement. 26. Notwithstanding any other provision in this agreement, it is expressly agreed and understood that in connection with the performance of this agreement the Service Provider shall comply with all applicable federal, state, city and other requirements of law including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, the Service Provider hereby certifies, represents and warrants to the City that all of Service Provider's employees and/or agents who will be providing products, and/or services with respect to this agreement shall be legally authorized to perform such work and/or services in the United States. Service Provider shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided pursuant to this agreement. City shall have the right to audit any records in the possession or control of the Service Provider to determine the Service Provider's compliance with the provisions of this section. In the event the City proceeds with such an audit, the Service Provider shall make available to the City the City's relevant records at no cost to the City. Service Provider shall pay any and all costs associated with any such audit. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 27. Notwithstanding anything to the contrary in this agreement, with the sole exception of the monies the City has agreed to pay the Service Provider pursuant to Section 4 hereof, no action shall be commenced by the Service Provider, any related persons or entities, and/or any of their successors and/or assigns, against the City for monetary damages. The provisions of this section shall survive any expiration, completion and/or termination of this agreement. 28. All notices, reports and documents required under this Agreement shall be in writing and shall be mailed by First Class Mail,postage prepaid, addressed as follows: As to the City: As to Service Provider: City of Elgin Children's Theatre of Elgin 150 Dexter Court 1700 Spartan Dr. VPAC 141A Elgin, IL 60120-5555 Elgin, IL 60123-7189 Attention: Butch Wilhelmi Attention: Susan Heaton Cultural Center Director Office Manager With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 29. This agreement is and shall be deemed to construe to be a joint and collective work product of the City and the Service Provider and, as such, this agreement shall not be construed against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 30. This agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. IN WITNESS WHEREOF,the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN,a municipal CHILDREN'S THEATRE OF ELGIN corporation '' BY .�(_: G� • 4/ BY Sean 'tegall, City Manage , t II Greory Ciherr�,vi*te, Pre..siqeA-171— Attest: City Clerk j EXHIBIT A 1. Service Provider hereby agrees to present the production of: "The Legend of Hercules" on April 7, 8, 9 and 10, 2011; and "The Little Mermaid" on October 20, 21, 22 and 23, 2011 (hereinafter referred to as"Productions")as specifically provided for herein. 2. That concurrently with the execution of this Purchase of Service Agreement Service Provider agrees to enter into lease agreements for the use of the Hemmens Cultural Center on the dates for the productions described herein, in a form substantively similar to the lease form agreement attached hereto and made a part hereof as Exhibit "B". The parties hereto shall execute such leases no later than 30 days prior to the first scheduled audition for each production. The rental amounts for each lease shall be determined pursuant to the requested services and materials at the rates established and set forth by City of Elgin for the dates of the production. 3. That in conjunction with the Productions the City agrees to pay an amount not to exceed $5,375.00 of the costs and charges related to the use of the Hemmens for each of the Productions. The City's agreement to refund up to $5,375.00 of the costs and charges related to the use of the Hemmens for each of the Productions shall be the sole and only costs to the City for the Productions. In the event that costs and charges related to the use of the Hemmens (rental charges) total less than $5,375.00, the City shall pay the dollar amount equal to the actual charges based on the rates as set forth by the City of Elgin. The City shall make such payment within forty-five (45) days of the completion of the final billing for each Production. 4. That notwithstanding the City's agreement to pay certain costs for the Productions as provided herein, and the Service Provider's agreement to produce the Productions, the parties hereto understand and agree that the Service Provider shall be solely responsible for conducting the shows. 5. Children's Theatre of Elgin shall make ten (10) pairs of tickets to the public shows available to the City. Said tickets shall be within the first 10 rows of the main floor. 6. Service Provider shall adhere to all rules, regulations and conditions as outlined in The Hemmens Cultural Center Lease Agreement. That in the event of any conflict between the terms of this Purchase of Service Agreement and the terms of the Lease Agreement, the terms of this Purchase of Service Agreement shall control. 7. That within sixty (60)days following the final performance for each Production, the City shall provide a statement to the Service Provider regarding each such Production. Such statement shall also identify the amount of box office receipts. Such statement shall identify the amount of all the costs and charges related to the use of the Hemmens for the productions described herein. The City shall pay the Service Provider the amount of box receipts which exceed all such costs and charges related to the use of the Hemmens, if any. Service Provider shall pay to City an amount equal to the amount of costs and charges which exceed the total of the box office receipts. Such excess costs and charges shall be paid by the Service Provider within thirty (30) days of billing, unless otherwise expressly authorized in writing by the Lessor. The City shall in turn provide Service Provider with a refund check of an amount not to exceed $5,375.00 as provided herein within forty-five (45)days of billing. 8. The City shall provide audition space at The Hemmens in either the Theatre or the Exhibition Hall, depending on the event schedule at City's sole discretion. 9. The City shall provide rehearsal space at The Hemmens in either the Theatre or the Exhibition Hall depending on the applicable event schedule in City's sole discretion. No rehearsal space shall be considered guaranteed until a final rehearsal/performance schedule is provided by The Hemmens to Service Provider. Such schedule shall be provided no later than the Call Back Audition for each production. 10. The City shall reserve the Theatre for preparation and performances, commonly known as"Tech Week", beginning at 8:00 pm on the Sunday prior to the first performance. 11. Service Provider shall make participation available to at-risk youth through (1) outreach to organizations and institutions serving at-risk and low-income youth and (2) providing assistance to enable low-income youth to participate. 12. Service Provider shall provide reduced and waived registration fees to certain individuals based on need. The degree and amount of such assistance shall be at Children's Theatre discretion. 13. Service Provider shall provide The Hemmens' staff with a list of authorized designees as defined in the Lease Agreement. 14. Any changes by Service Provider regarding rehearsal or performance times, number or dates of shows, ticket prices, or any other changes which may impact or affect Hemmens operations shall be submitted in writing to the Hemmens Cultural Center Director not less than five (5) days prior to any affected rehearsal or thirty (30) day prior to any affected performance. No such changes shall be implemented without the prior written approval of the Hemmens Cultural Center Director. In the event that Service Provider fails to provide such written notification in a timely manner and to obtain the aforementioned written approval,the City reserves the right to deny such changes. 15. Service Provider shall provide proof of the appropriate licensing of copyrighted works for each production to the City on or before the first day of the given Production's auditions. 16. If Hemmens' staff is to be used for the purpose of Lighting Design and/or Stage Management, a full copy of the script (in WORD format if available), stage drawings, backdrop lists and any other related technical information shall be provided no later than the first rehearsal. Any changes shall be provided in writing in a timely fashion. Furthermore, if Hemmens' staff is to be used for Stage Management, such staff person shall have authority over the backstage area and staff; including but not limited to, the use of intercom communication during rehearsals and performances, and the placement of scenery,props,and costumes when stored offstage. 17. Hemmens' staff reserves the right to approve or deny the use of technical equipment to be used in conjunction with City's facility systems (lighting, sound, rigging, etc.). 18. Service Provider shall limit the length of school shows to allow not less than one hour between the end of the first performance and the scheduled start time of the second performance. 19. Service Provider shall provide to the Hemmens Cultural Center Director a report of each Production including the following information within thirty (30) days after the final performance for each Production: A. total number of minors participating in Productions, B. number of scholarships or financial assistance provided, included equivalent financial value of such assistance, C. total number of minors participating who reside Elgin,and D. description of outreach methods. 20. Service Provider shall provide to the Cultural Center Director written reports detailing related expenses related to each production within thirty (30) days after receipt of Production statement. 21. The fiscal year of the City is the twelve month period ending December 31. The obligations of the City under any agreement for any fiscal year are subject to and contingent upon the appropriation by the City Council of the City of funds sufficient to discharge the obligations which accrue in that fiscal year and authorization to spend such funds for the purposes of the agreement. If, for any fiscal year during the term of this agreement, sufficient funds for the discharge of the City's obligations under the agreement are not appropriated and authorized by the City Council of the City, then this agreement shall terminate on the last day of the preceding year, or when such appropriated and authorized funds are exhausted, whichever is later, without liability to the City of any kind including, without limitation, damages, penalties or other charges on account of such termination. The terms of this agreement shall be severable. In the event any of the terms or provisions of this agreement are deemed to be void or otherwise unenforceable for any reason, the remainder of this agreement shall remain in full force and effect. EXHIBIT B THE HEMMENS CULTURAL CENTER Elgin,Illinois Lease Agreement This lease agreement is hereby made and entered into this _day of . 2011 by and between the City of Elgin, Illinois, a municipal corporation (hereinafter referred to as "Lessor"), and Children's Theatre of Elgin, (hereinafter referred to as"Lessee"). For and in consideration of the mutual promises and covenants contained herein, the sufficiency of which are hereby acknowledged,the parties hereto agree as follows: 1. PREMISES A) Lessor agrees to lease to Lessee that portion of The Hemmens Cultural Center building located at the Elgin Civic Center Plaza, Elgin, Illinois described as follows: 2 LOCATION EVENT DATE FROM TO HOURS RATE RENTAL_ $ $ $ $ $ - $ $ $ $ $ $ $ - $ $ $ $ $ $ $ - $ PLEASE NOTE: Lessor shall provide security for Lessee at the above-described location during the above- described times. Such security shall be at Lessor's sole discretion and shall be a Lessee's sole expense. Lessor may utilize auxiliary police officers or regular police officers in Lessor's sole discretion. Est Bldg Rental $ - Less 35% Discount Subtotal Bldg. Rental $ - Est Box Office Fees $ - Est. Labor& Equipment $0.00 Total Estimated Charges $ - All amounts are in U.S. Dollars B) The facility is reserved for use by Lessee for the times and areas listed on the face of this Contract. Permission for the Lessee to use the facility beyond the times listed, for whatever reason, is neither expressed nor implied in this Contract. i) Rental of the Theatre includes: Stage, Auditorium, Dressing Rooms/Rehearsal Room, Lobby, Coat Check,Will Call, Loading Dock and public restrooms. ii) Rental of the Lobby includes:Lobby,Coat Check,Will Call,Loading Dock and public restrooms. iii) Rental of the Exhibition Hall includes: Exhibition Hall,Kitchen,Loading Dock and public restrooms. iv) Rental of the Entire Building includes:Stage,Auditorium, Dressing Rooms/Rehearsal Room, Lobby, Coat Check,Will Call, Exhibition Hall, Kitchen, Loading Dock and public restrooms. C) At no time shall Lessee be granted access to the Box Office,Main Office,private offices,Sound Equipment Room,mechanical/storage areas or any area not normally associated with public events. D) The decision to extend the usage time and/or area is solely at the discretion of Lessor. E) Rentals set forth herein are estimates only and actual rentals may be greater based upon the actual services rendered and the rates in effect on the date of the event as established by the City Council. The Lessee shall occupy and use said premises for stated purposes and no other. Deposit: Insurance: Tickets: Concessionaire: 2. RENTAL Lessee shall pay rent as provided herein. Rents shall include charges for building usage, equipment and services at rates set forth herein and on attachments B & C, attached hereto and mad part hereof. Rents shall be estimated at the time this agreement is executed (estimated rentals) but may increase based upon actual use as provided herein(additional charges). 3. DEPOSIT A) Lessee shall pay a deposit of$100.00 per day within 15 days of booking of the event or forfeit the date. This deposit shall not be credited towards estimated rental, but shall be credited against any additional charges beyond the estimated rental or refunded.If the event is cancelled,such deposit shall be refunded only if cancellation of any date or dates occurs no less than 180 days prior to the event. B) The total estimated rental, based upon anticipated usage at rates set forth on Page 1,and Attachments A and B, is$_, This amount shall be paid by Lessee not less than 30 days prior to the opening date of the event unless otherwise expressly authorized by Lessor in writing. Failure to make such payment shall result in cancellation of Lessee's event. 4. FEES A) The Lessee also shall pay Lessor, on demand and at rates set forth on Page 1, and Attachments A and B, such additional charges as may become due on account of additional facilities, equipment, material or services furnished by the Lessor at the request of the Lessee or Lessee's designated representative, or necessitated by the Lessee's occupancy hereinunder the compensation for which is not included in the rent or rents specified above (See Page 1, and Attachments A and B for facility, services and equipment charges). B) Such additional services,equipment or facilities include, but are not limited to, labor required for Lessee's use of facilities, such as stage hands, stage manager or senior technician, ticket takers, security guards, and service charge (if used)for special equipment required in setting up, operation and striking of event. The following designated representatives of Lessee may request such additional services and or equipment,and such requests shall be deemed the request of the Lessee: C) Lessor may also require Lessee to obtain and pay for additional facilities,equipment and services which,in the sole opinion of Lessor, are necessary for the safe, orderly or efficient conduct of the event. Lessee shall be liable for the payment of any additional facility,equipment or service requested by any employee, agent,contractor,assign or sublessee of Lessee. 5. FINAL PAYMENT A) All additional charges shall be paid by cash, money order or check payable to the Lessor, within 30 days of billing, unless otherwise expressly authorized in writing by the Lessor. A charge of 1% per month will be assessed on all accounts not paid within 30 days. B) Lessee warrants and represents that neither it, nor any of its agents or employees on its behalf, either through Lessee's current name or through any other designation, have incurred any outstanding unpaid debt to Lessor. Lessor may deny the use of any facilities to Lessee until any such debt has been satisfied, and shall retain any funds paid by Lessee to Lessor pursuant to this or any other agreement, toward the satisfaction of any such debt. 6. CANCELLATION A) Lessee may cancel this agreement by serving written notice on Lessor not less than 180 days prior to the leased date(s)in which case the Lessor shall refund Lessee's booking deposit. B) In the event Lessee cancels any date or dates less than 180 days prior to the leased date(s) Lessee's deposit shall be forfeited. C) If any event must be cancelled due to inclement weather, upon written agreement of the parties through their designated representative, Lessee shall be charged only for rehearsal and set-up time as well as labor actually utilized based upon the then current fees for such times as established by the City Council of the Lessor. 7. INSURANCE—INDEMNITY A) Lessee shall indemnify and save harmless the Lessor from all loss, cost and expense arising out of any liability, including but not limited to reasonable attorney's fees, or claim of liability for injury or damages to persons or property sustained or claimed to have been sustained by anyone whomsoever, by reason of the operation, use or occupation of the facilities hereinabove described, whether such use is authorized or not, or by any act or omission of Lessee or any of its officers, agents, employees, guests, patrons, or invitees, and Lessee shall pay for any and all damage to the property of Lessor, or loss or theft of such property,done or caused by such person. B) Not less than 30 days prior to event, Lessee shall provide a Certificate of Insurance for general liability claims for personal injury and property damage at the premises described herein, naming Lessor as an additional insured party, with limits of not less than $1,000,000 per occurrence and $1,000,000 in the aggregate. Such certificate shall provide that it may not be terminated without ten (10) days written notice to the Lessor. Failure to submit such certificate by the deadline defined on Page 1 of this Contract shall result in cancellation of Lessee's event. C) The holder of such certificate shall be the same entity as the Lessee signing this Contract. Any deviation will render the certificate invalid. D) Under no circumstances shall Lessee, Lessee's representative, public or any other person involved with the event, directly or indirectly, be allowed to occupy the facility until all of the insurance requirements set forth above are met. 8. ADMISSIONS SURCHARGE A) A twenty-five cent per admission surcharge shall be collected from every person who pays an admission charge to any event at The Hemmens. This surcharge shall be exclusive of any other applicable State or Federal surcharges and shall be collected at the time the Lessee collects the admission charge.The Lessee shall be acting as trustee for and on account of the Lessor and shall pay over to the Finance Director of the Lessor the surcharge under procedures prescribed by said Finance Director. B) The Lessee agrees to inform the Lessor whether or not an admission fee shall be charged for the event. If Lessee fails to inform Lessor to the contrary, it will be assumed that an admission fee will be charged and Lessee will be billed accordingly. C) The Lessee of The Hemmens for any event subject to use admissions surcharge shall file surcharge returns showing surcharge receipts received on forms prescribed by the Finance Director. The returns shall be due on or before the seventh day of the month following the use of The Hemmens. D) The Lessee agrees to inform Lessor of the total paid attendance at the event within three business days of the conclusion of the event. If Lessee fails to inform Lessor of the total paid attendance, the Admissions Surcharge shall be based on a per event attendance of 1,200 paid admissions for the Theatre and 2,000 paid admissions for the Exhibition Hall and/or Entire Building. 9. TICKETING SERVICES A) Lessor shall provide Box Office services upon Lessee's request for Lessee's event under the following conditions: i) Lessee shall provide Lessor with all pertinent event information including, but not limited to, dates,times and ticket prices, including discount structure, for all performances. Any changes in this information shall be communicated in writing to Lessor's Front-of-House Supervisor in writing and may result in additional expense to Lessee as defined below in Paragraph N of this Section. ii) Lessee shall pay the applicable event set-up fee as established by Lessor, in the amount of $ 250.00 to create a new floor plan or$ 45.00 to utilize a previously created floor plan in Lessor's inventory. Such fees shall be paid to Lessor within three days of the date of this agreement and shall be non-refundable for any reason whatsoever. iii) Lessee shall pay to Lessor the per ticket printing surcharge for each and every ticket printed, including, but not limited to, those provided by Lessee to entities on a complimentary basis, as established by Lessor in the amount of$ 1.00 per ticket printed. Lessor shall retain this amount from box office receipts upon final settlement of Lessee's event. In the case of cancellation, Lessee shall pay this amount upon Lessor's demand. iv) Tickets shall not be sold by consignment or by any means other than channels normally utilized by Lessor's Box Office. All fees specified in this Section are in addition to thm ge"specified in Section 8 of this contract. B) Lessee's event shall not be entered into Lessor's computerized ticketing system until a fully executed contract has been received by Lessor. C) At no time shall Lessee be granted entrance to the Box Office. D) Lessor shall assign Box Office staff on the day and/or evening of Lessee's event and Lessee shall pay the current hourly rate per person scheduled. Unless otherwise noted by Lessor in writing, Box Office shall open two hours before Lessee's event and remain open until the Lobby clears after completion of Lessee's event. Lessor shall determine the number of Box Office personnel necessary for Lessee's event. Lessor shall provide daily Box Office staff free of charge during regular daily Box Office hours. E) All communication with Box Office shall be conducted through Lessor's Front-of-House Supervisor unless otherwise agreed in writing. The sole exception to this shall be Lessee's right to contact Box Office to inquire as to how many tickets for Lessee's event have been sold. Any instruction regarding changes in dates,time or ticket prices shall be submitted in writing to Lessor's Front-of-House Supervisor. F) Lessee agrees that Lessor shall charge a per order processing fee to all entities which order tickets via fax, telephone, internet or any means other than in person at The Hemmens Box Office located at 45 Symphony Way, Elgin, IL 60120. The fee per order shall be $5.00 per order. Lessee further agrees that Lessee shall have no participation in revenues generated by the per order fee. G) Lessee agrees that Lessor shall charge a per ticket exchange fee to all entities which exchange or return tickets for Lessee's event. The fee per ticket shall be$ 5.00 per ticket. Lessee further agrees that Lessee shall have no participation in revenues generated by the per ticket exchange fee. H) Lessee agrees that Lessor's service provider,Tickets.com, shall charge a per ticket fee to all entities which order tickets via the Internet. This fee shall be defined by the most current agreement between The City of Elgin, IL and Tickets.com. The per ticket fee currently ranges from $2.50 to $6.50 per ticket and is determined by average ticket price. Lessee further agrees that Lessee shall have no participation in revenues generated by the per ticket fee. I) Lessee shall pay Lessor a credit card fee for all tickets paid by credit card. The fee shall be 4% of gross credit card sales. J) Lessor shall apply Box Office receipts for Lessee's event toward Lessee's "Total Estimated Expenses" as defined in Section 1, Paragraph A and Section 3, Paragraph B of this contract. Lessee shall pay the difference of`Total Estimated Expenses" and monies received by Box Office for Lessee's event to Lessor according to the stipulation defined in Section 3, Paragraph B of this contract. K) Upon completion of Lessee's event, Lessor agrees to provide Lessee with a Box Office statement which displays number of tickets sold and revenues received by Box Office. L) Upon completion of Lessee's event, Lessor shall apply monies received by Box Office toward Lessee's invoice. Lessor shall,to the best of its ability, expedite payment to Lessee the balance of monies received by Box Office in excess of total expenses incurred by Lessee by City of Elgin check. If expenses incurred by Lessee exceed Box Office receipts, Lessee shall be invoiced the difference. M) Upon Lessee's request, Lessor shall provide Lessee with a printout of information gathered by Box Office from entities which purchased tickets for Lessee's event which may include purchaser's name, address,e- mail address and phone number. Lessee shall provide only such information as is provided by each entity. Lessor reserves the right to retain all such information in its own database. N) If Lessee cancels,postpones, reschedules, relocates or in any other way whatsoever alters the information originally entered in Lessor's Box Office computerized ticketing system regarding Lessee's event, Lessee shall: i) Reimburse all entities which incurred fees as defined above in Paragraphs E and F of this Section should such entity not be able to attend event due to Lessee's change of event. In the case of cancellation, such fees shall be reimbursed to all entities which purchased tickets to Lessee's event. ii) Pay the current per ticket exchange fee to Lessor for each and every ticket printed at the rate established by Lessor as of the date of this agreement applicable to Hem mens fees whether the ticket is reissued for the changed event or returned for refund. In the case of cancellation, such fees shall be paid to Lessor for each and every ticket purchased for Lessee's event and may include those provided to entities on a complimentary basis by Lessee. iii) Pay Lessor the per order processing fee as defined above in Paragraph E of this Section for all re- issued ticket orders. This provision does not apply to cancelled events. iv) Reimburse Lessor the credit card fee as defined above in Paragraph G of this Section for all orders paid by credit card which are cancelled due to Lessee's change of event. Failure to comply with the provisions defined in this Paragraph shall be considered a breach of Section 5 of this contract and is subject to the provisions of such Section. 10. LESSEE'S REPRESENTATIVE A) The Lessee shall be present,or have a representative authorized to make decisions on behalf of Lessee,as described in Section 4, paragraph B of this contract, present at The Hemmens Cultural Center during all times the facility is in use by Lessee. B) The Lessee shall identify any and all additional representatives not listed in Section 4, paragraph B authorized to make decisions on behalf of Lessee not less than seven days prior to the event. C) If Lessee fails to identify authorized representative(s),the person whose name appears on the signature page of this contract shall be the only person authorized to make requests of Hemmens staff regarding, but not limited to,the following:staffing,equipment and facility access. D) In the absence of Lessee or an authorized representative,access to The Hemmens Cultural Center shall be denied to all other persons associated with the event, including the paying public. In such event, Lessee shall hold harmless and indemnify Lessor from and against any and all liability of whatsoever nature, including but not limited to attorney's fees,arising out of or in connection with such denial of access. 11. EQUIPMENT RECEIVING AND STORAGE A) Arrangements for delivery of equipment or supplies for Lessee's event shall be made with The Hemmens' Technical Supervisor no less than five business days prior to the event. Such effects shall include, but are not limited to, scenery, props, programs and concessions. Deliveries on behalf of the Lessee shall be accepted at the Lessee's risk, and The Hemmens in no way assumes any responsibility whatsoever for such effects. B) Lessee shall be charged for storage of effects at the rate of $ 151.00 per day equipment remains on premises beyond dates of contracted rental unless expressly authorized in writing by Lessor. C) The Lessor reserves the right to remove from the building all effects remaining in the building after the scheduled Lessee move-out time and the right to store those items wherever it sees fit, in the name of The Hemmens or in the name of the Lessee, but at the cost, expense and risk of the Lessee. The Lessor and its staff shall not be liable in any way for removing and storing,or for damages to,any such effects. 12. CONCESSIONS A) Lessee shall inform Lessor if concessions will be sold during Lessee's event and types of items offered for sale. B) Lessee shall enforce the restriction of food and beverage items in the Theatre. If Lessor determines that Lessee is not properly enforcing this restriction to Lessor's standards, Lessor reserves the right to either hire ushers at Lessee's expense or terminate the sale of concessions. C) Lessor shall pay any and all cleaning charges associated with the sale of concessions. These charges will be in addition to what is considered by Lessor to be standard cleaning. D) Lessor reserves the right to prohibit the sale of certain items at Lessor's sole discretion. E) Lessor reserves the right to restrict sale of concessions to specific areas within The Hemmens. F) Lessee bears sole responsibility for the payment of any and all applicable taxes. G) Lessor shall not be required to cover Lessor's vending machines at any time;provided,however,that in the event Lessor agrees to cover its vending machines at Lessee's request, Lessee shall pay to Lessor the sum of Two Hundred Dollars ($200) per day for each day said vending machines are covered, or ten percent (10%)of all food and beverage sales over the course of the subject event,whichever is greater. 13. ADVERTISING A) Lessee agrees that all advertising of the event will be true and accurate. B) Lessee agrees that all news releases, publicity materials, media announcements of any kind, printed or electronic, or other such public notices issued shall refer to the venue only by the name "The Hemmens Cultural Center". Lessee further agrees to provide copies of any such materials to Lessor for Lessor's approval prior to the public dissemination of such information. C) Lessee shall be solely responsible for all advertising and marketing of Lessee's event. Lessor shall not be required to provide marketing or advertising support of any kind whatsoever including, but not limited to, design services,ad placement,mailing lists or display areas. 14. TERMS OF OCCUPANCY A) Lessee shall use and occupy said premises in a safe and careful manner and shall comply with all municipal, state, and federal laws and rules and regulations pertaining to The Hemmens Cultural Center and all other rules and regulations prescribed by the Fire and Police Departments and other governmental authorities,as may be in force and effect during the tenancy. Lessee shall not do any act or suffer any act to be done during the term of this rental agreement which will in any way mar, deface, alter or injure any part of said Cultural Center. B) In case said premises or any part thereof shall be destroyed or damaged by fire or any other cause, or if any other casualty, strike or other unforeseen occurrence not within Lessor's control, shall render the fulfillment of this lease by Lessor impossible, then and thereupon this lease shall terminate and Lessee shall pay rental for said premises only up to the time of such termination of the rate herein specified,and Lessee hereby waives any claim for damage or compensation should this lease be so terminated. C) Lessee agrees that Lessor may, with or without cause, terminate this entire agreement at any time prior to the payment of Lessee in full of the agreed rent. Unless such termination is on account of breach of or default on the part of the Lessee, the amount of rental paid by Lessee shall be prorated to the date of such termination. D) No more than 1,200 tickets or passes shall be issued per performance in the Theatre unless expressly authorized by Lessor in writing. Failure to comply with this regulation will result in immediate cancellation of the event and/or a penalty to be paid by Lessee equal to 200%of the price of each ticket sold,given,or transferred in excess of 1,200,or$25.00 per such tickets,whichever is higher. E) Lessee accepts the building,its furnishings,fixtures,and equipment in their present condition and state of repair and agrees that upon the end of the term of which the building has been rented it will be vacated and surrendered up to Lessor in the same condition it is now in. All repairs, replacements and clean-up required to return the building and its furnishings,fixtures and equipment to its present condition shall be at the expense of the Lessee. F) Lessee shall provide proof in writing not less than 30 days prior to performance that all applicable license and royalty fees have been paid by Lessee. Failure to provide such proof shall be construed as a material breach of this agreement and may result in cancellation of this agreement at Lessor's sole discretion. In the event of any such cancellation pursuant to this subparagraph, Lessor shall retain any payments made by Lessee. Retention by Lessor of such payments shall not constitute a waiver of any and all rights to which Lessor may otherwise be entitled by law. G) Lessee shall assume all costs arising from the use of patented, trademarked, franchised or copyrighted music, materials, devices, processes or dramatic rights used or incorporated in the event. Lessee shall indemnify, defend and hold harmless the City of Elgin, The Hemmens Cultural Center, its officers, employees and agents from any and all damages and/or costs, including legal fees,which may arise out of or from claims of copyright infringement. Lessee warrants and represents that all applicable royalty, copyright and license fees have been paid by Lessee. H) Smoking is prohibited in The Hemmens Cultural Center. I) All building equipment is to be operated by members of The Hemmens'technical staff only. J) Damage to the building or any building equipment incurred by the Lessee will be added to the final bill. K) Building Lessees shall restrict their activities to the section of the building rented. It is also the responsibility of the Lessee to restrict patrons of their event to said areas. L) All events,including performances and rehearsals, must be terminated at the time stated on the contract. M) No nails,spikes,screws,etc.,are to be driven into the stage. N) No open flame is allowed in any part of the building without prior approval of the Fire Marshal. 0) No taping or stapling to walls, doors or any other surface is permitted. Signs must be free standing or held up by non-permanent, non-residue poster putty. Lessees shall ask Hemmens' Staff for assistance. No object whatsoever may be attached to windows regardless of method used. P) All weapons used in any production must be cleared in advance by The Hemmens Cultural Center Supervisor.All guns used in any stage production must be loaded and unloaded by The Hemmens building technicians in charge.All guns shall have plugged barrels,shotguns included. Q) The sale and service of alcoholic beverages shall be made pursuant to applicable City of Elgin ordinances. All alcoholic beverage sales and service shall only be served by a concessionaire authorized by Lessor. All arrangements for the service and sale of alcoholic beverages shall be made through Lessor's staff. R) The use of The Hemmens for the selling of merchandise,or for the purpose of making sales of any nature, except the sale of admission tickets, is prohibited except with the written permission of Lessor. S) The right to operate any concessions in the building is reserved to Lessor. T) The Lessee shall not obstruct any portion of the sidewalks, entries, halls, vestibules, emergency exits or any ways of access to public utilities in the building. U) Lessee shall not bring, or permit anyone to bring, into the building anything that will increase the fire hazard or rate of insurance of the building. V) Lessee shall obtain and pay for all necessary permits and licenses required by his occupancy of use of The Hem mens Cultural Center. W) Food and beverages shall be handled in designated service areas only. Arrangements for such area shall be made with The Hemmens staff prior to occupancy by Lessee. Food and Drink are not allowed in Theatre without prior approval of Lessor's Cultural Center Supervisor. X) Lessee may not sublease the building or any part thereof without express written permission of the Lessor. Y) Every provision of this contract shall be severable. If any term or provision is illegal, unconstitutional or otherwise invalid or unenforceable,such illegality or invalidity shall not affect the legality or validity of the remainder of this contract. Z) Lessor shall not be liable for delays or losses by the postal service of any country, any delivery/courier service or failures by any other form of information transmission,electronic or otherwise. AA) This Agreement shall not be construed so as to create a joint venture, partnership, employment or other agency relationship between the parties hereto. BB) Lessor believes, to the best of its knowledge that it is in compliance with the Americans with Disabilities Act(ADA)of 1990,with respect to permanent access accommodations. Lessee shall be liable for all non- permanent accessibility requirement pursuant to the Americans with Disabilities Act„ including, but not limited to, all requirements as to seating accessibility and auxiliary aids for individuals with visual, hearing and mobility based disabilities. Lessee shall hold harmless and defend Lessor from and against any and all claims,suits, causes of action, and any and all other liability of whatsoever nature. The provisions of this paragraph shall survive any termination and/or expiration of this agreement. CC) The terms of this contract shall be governed by the laws of the State of Illinois. Venue for the enforcement of any rights and the resolution of any disputes arising out of or in connection with this agreement shall be in the Circuit Court of Kane County, Illinois. Lessee expressly consents to be subject to personal jurisdiction in all courts in the State of Illinois. DD) Lessee shall advise all of its agents, employees and volunteers of any and all rules and regulations of The Hemmens Cultural Center or other applicable provisions of this agreement as may be applicable to the performance of this agreement. Lessee shall also advise participants of the correct rehearsal and performance time, location of the building,and place of entrance. EE) Signator for Lessee shall be personally liable, jointly or severally, with Lessee for any breach of the provisions,terms or covenants of this agreement. Variations from the contract shall not be made without Lessee's authority or Lessee's agent (designated in writing only). Lessee is also responsible for any damage to the building or its contents during occupancy. FF) All requests for deviation from these rules and regulations shall be made in writing in advance with The Hemmens' Front-of-House Supervisor. GG) Lessee shall abide by the regulations listed above. Failure of Lessee to actively enforce these regulations may result in extra charges, legal action and/or cancellation of event. 15. In the event any of the terms or provisions of this agreement contain unfilled blank spaces, such unfilled blank spaces shall be construed to refer to the current rate established by City of Elgin ordinance as of the date of this agreement. 16. This agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes for the enforcement of any rights arising out of or in connection with this agreement shall be in the Circuit Court of Kane County, Illinois. LESSOR By: Randel Reopelle, Parks& Recreation Director LESSEE I understand and agree to all terms and conditions of this contract. I also understand that all times and charges listed in this contract are estimated amounts only, and that rates in effect at the time of the execution of this contract shall be charged. Lessee Children's Theatre of Elgin By Pete Ak ;,T &re3 or y Ckerr Signature 0°7r 6/" A6 Title Vice__Ce__ President Address 1700 Spartan Dr. VPAC 141A City,State,Zip Elgin, IL 60123-7189 0. 1 •C 001 Phone(Bus.) 847-214-7152 (Res.) E-mail: ATTACHMENT A The Hemmens Cultural Center Equipment List 10'11 Equipment Rates Quantity Cost 1 Acoustical Reflectors-- Floor $11.25 2 Acoustical Reflectors-- Hanging(per set) $15.50 3 Chairs-- metal folding $0.80 4 Chairs-- padded $1.75 5 Tables- rectangle: 30x96 , 36x96 , 30x72 $5.25 6 Backstage Tables (5 included with rental) $5.25 7 Tables--round $5.75 8 Table Skirts $6.00 9 ROSCO Stage Dance Floor-at sole discretion of Technical Supervisor $125.00 10 Electric Trucks(per day) $45.00 11 Microphones and Direct Boxes(one at N/C) $24.00 12 Wireless Mic Surcharge(per mic, per day) $5.50 13 Mirrorball , Blacklights $52.50 14 Fog Machines , Strobe Light $62.50 15 Movie Screen $25.00 16 Manhasset Music Stands $0.90 17 Music Stand Lights $2.25 18 Stage Lectern $16.00 19 Orchestra Pit Cover (Fully Raised or Fully Lowered ) $85.00 20 Piano, 9'Concert Grand- Steinway Model B $160.00 21 Piano, Upright--Wurlitzer , Roland RD700sx Electronic Keyboard $90.00 22 Piano Tuning $130.00 23 Portable Sound System $65.00 24 Projector-- LCD video with VCR $55.00 25 Projector--Slide , Overhead $33.00 26 Portable Staging(band risers)-8"_, 16"_, 24" , 32" , 40" $8.00 27 Choral Risers--Wenger 3-step $15.00 28 Choral Risers--Wenger 4-step $20.00 29 Follow Spots $90.00 30 Audio Playback--Cassette , CD , DAT , Mini-disc , Other $45.00 31 Pipe&Drape--i.e.:for quick change booths(per foot) $1.00 32 Backdrops-- Flag , Scrim , Other $115.00 33 100 Cup Coffee Urns(one at N/C) $5.00 34 Confetti Cannon (one load included) $45.00 35 Confetti Loads (per shot) $10.00 36 VCR& Monitor $50.00 37 Wenger Portable Theatre Seating $3.25 38 12,000 Lumen Video Projector(per day) $115.00 39 Box Tower/Truss, 15"or 20.5"(per Section) $16.00 40 Misc. Equipment, Labor&Rental Sub-Total $0.00 ATTACHMENT B The Hemmens Cultural Center Labor Rates * Rates are per person per hour. * Labor rates on observed Federal or City holidays shall be 1 % times the rates listed on this page. * Under normal use, clean up service is included in the base rental. However, at the discretion of the building manager, sponsoring organizations will be assessed for custodian labor when the building is left unusually messy or dirty. * Senior Technician or Stage Manager will be required to call cues for Hemmens Technicians for productions and to supervise a move-in/out. ** Every effort will be made to schedule Auxiliary Officers. However, if they are unavailable, Elgin Police Officers will be scheduled. ** Officer rates are established by the Elgin Police Department and are subject to change. Labor _ 2010-2011 Rates* # of Hrs Cost_ Techs $33.50 0 Sr Techs $50.00 Custodians $33.50 Ushers $16.75 Box Office Staff $25.50 Auxiliary Officer** $22.00 Comm. Service Officer** $46.00 0 Elgin Police Officer** $67.00 ** Estimate only- Rates established by EPD Total $0.00 The Hemmens Cultural Center Box Office Estimate Estimated Box Office Fees: Ticket Tax: $0.25 $ - Tx Printing: $0.50 0 $ - Set-up: $ 45.00 0 $ - Total BO Fees: $ -