08-158 Resolution No. 08-158
RESOLUTION
AUTHORIZING EXECUTION OF AN AGREEMENT WITH
ECONOMICS RESEARCH ASSOCIATES (ERA) REGARDING PROPOSED
EXPANSION OF THE HEMMENS CULTURAL CENTER
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that
pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an
exception to the requirements of the procurement ordinance is necessary and in the best interest of
the city; and
BE IT FURTHER RESOLVED that Olufemi Folarin, City Manager,and Diane Robertson,
City Clerk,be and are hereby authorized and directed to execute an agreement on behalf of the City
of Elgin with Economics Research Associates (ERA) regarding the proposed expansion of the
Hemmens Cultural Center, a copy of which is attached hereto and made a part hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: June 25, 2008
Adopted: June 25, 2008
Omnibus Vote: Yeas: 7 Nays: 0
Attest:
s/Diane Robertson
Diane Robertson, City Clerk
AGREEMENT
THIS AGREEMENT is made and entered into thisQday of June, 2008, by and between the
CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as "CITY") and
ECONOMICS RESEARCH ASSOCIATES,a corporation organized and existing under the laws of
the State of California,and authorized to do business in the State of Illinois,(hereinafter referred to
as the"CONSULTANT").
WHEREAS,the CITY desires to engage the CONSULTANT to furnish certain professional services
in conjunction with the Hemmens Auditorium Programming and Expansion Assessment(hereinafter
referred to as the "PROJECT"); and
WHEREAS, the CONSULTANT represents that it has the necessary expertise and experience to
furnish such services upon the terms and conditions set forth herein below.
NOW,THEREFORE,it is hereby agreed by and between the CITY and the CONSULTANT that the
CITY does hereby retain the CONSULTANT for and in consideration of the mutual promises and
covenants contained herein, the sufficiency of which is hereby acknowledged, to act for and
represent it in the matters involved in the PROJECT as described in this Agreement, subject to the
following terms and conditions and stipulations, to-wit:
1. SCOPE OF SERVICES
A. All work hereunder shall be performed under the direction of the City's Assistant
City Manager(hereinafter referred to as the"SUPERVISOR").
B. CONSULTANT shall provide the services for the PROJECT as outlined in the
Economic Research Associates Scope of Services proposal entitled "Scope of
Services Hemmens Auditorium Programming and Expansion Assessment", dated
May 22, 2008, ERA proposal number 49303, consisting of five(5)pages, a copy of
which is attached hereto and made a part hereof as Exhibit 1. In the event of any
conflict between the terms of this Agreement and the terms contained within Exhibit
1, the terms of this Agreement shall control.
2. SCHEDULE
The CONSULTANT shall provide the services for the PROJECT according to the schedule
as set forth in Exhibit 1.
3. WORK PRODUCTS
All work products prepared by the CONSULTANT pursuant hereto including, but not
limited to,reports,designs,calculations,work drawings,plans,design documents,probable
construction costs, floor plans, elevations and sections, renderings, studies, photographs,
models and recommendations shall be the property of the CITY and shall be delivered to the
CITY upon request of the SUPERVISOR provided,however,that the CONSULTANT may
retain copies of such work products for its records. Such work products are not intended or
represented to be suitable for reuse by the CITY on any extension to the PROJECT or on any
other project, and such reuse shall be at the sole risk of the CITY without liability or legal
exposure to the CONSULTANT.
4. PAYMENTS TO THE CONSULTANT
A. For services provided by the CONSULTANT pursuant to this Agreement the
CONSULTANT shall be reimbursed by the CITY at the direct hourly rate of their
personnel and subconsultants employed on the PROJECT total fees not to exceed
$275,000 regardless of the actual time expended or the actual costs incurred by the
CONSULTANT,or its subconsultants,unless substantial modifications to the Scope
of Work are authorized by way of written amendment to this Agreement approved by
the City Council of the City.
B. The City shall also reimburse the CONSULTANT for travel expenses and production
costs associated with the PROJECT in the amount of the actual costs for same
incurred by the CONSULTANT and its subconsultants with the total amount of such
reimbursable costs not to exceed $16,800.
C. The CITY shall make periodic payments to the CONSULTANT based upon actual
progress within 30 days after receipt and approval of invoice. Full payment for each
task shall not be made until the task is completed and accepted by the
SUPERVISOR.
5. INVOICES
A. The CONSULTANT shall submit invoices in a format approved by the CITY.
B. The CONSULTANT shall maintain records showing actual time devoted and cost
incurred. The CONSULTANT shall permit the authorized representative of the
CITY to inspect and audit all data and records of the CONSULTANT and its
subconsultants for work done under this Agreement. The CONSULTANT shall
make these records available at reasonable times during the Agreement period, and
for a year after termination of this Agreement.
6. TERMINATION OF AGREEMENT
Notwithstanding any other provision hereof,the CITY may terminate this Agreement at any
time upon fifteen(15)days prior written notice to the CONSULTANT. In the event that this
Agreement is so terminated, the CONSULTANT shall be paid for services actually
performed and reimbursable expenses actually incurred prior to termination, except that
reimbursement shall not exceed the amounts set forth under Paragraph 4 above.
7. TERM
This Agreement shall become effective as of the date the CONSULTANT are given a notice
to proceed and, unless terminated for cause or pursuant to Paragraph 6, shall be deemed
concluded on the date the CITY determines that all of the CONSULTANT'S work under this
agreement is completed. A determination of completion shall not constitute a waiver of any
rights or claims which the CITY may have or thereafter acquire with respect to any term or
provision of the Agreement.
8. NOTICE OF CLAIM
If the CONSULTANT wishes to make a claim for additional compensation as a result of
action taken by the CITY,the CONSULTANT shall give written notice of his claim within
15 days after occurrence of such action. No claim for additional compensation shall be valid
unless so made. Any changes in the CONSULTANT'S fee shall be valid only to the extent
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that such changes are included in writing signed by the CITY and the CONSULTANT.
Regardless of the decision of the SUPERVISOR relative to a claim submitted by the
CONSULTANT, all work required under this Agreement as determined by the
SUPERVISOR shall proceed without interruption.
9. BREACH OF CONTRACT
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 such
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 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.
10. INDEMNIFICATION
To the fullest extent permitted by law, CONSULTANT agrees to and shall 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 workers compensation claims,in any way resulting from
or arising out of negligent actions or omissions of the CONSULTANT in connection
herewith,including negligence or omissions of employees or agents of the CONSULTANT
arising out of the performance of this Agreement. 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 completion,expiration
and/or termination of this agreement.
11. NO PERSONAL LIABILITY
No official, SUPERVISOR, 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.
12. INSURANCE
A. Comprehensive Liability. The CONSULTANT shall provide,pay for and maintain
in effect, during the term of this Agreement, a policy of comprehensive general
liability insurance with limits of at least$1,000,000 aggregate for bodily injury and
$1,000,000 aggregate for property damage.
The CONSULTANT shall deliver to the SUPERVISOR a Certification of Insurance
naming the CITY as additional insured. The policy shall not be modified or
terminated without thirty (30) days prior written notice to the SUPERVISOR.
ERA's indemnity obligations herein shall not be limited by the amount or coverage
of its Commercial General Liability insurance.
This insurance shall apply as primary insurance with respect to any other insurance or
self-insurance programs afforded to the CITY. There shall be no endorsement or
modification of this insurance to make it excess over other available insurance,
alternatively, if the insurance states that it is excess or prorated,it shall be endorsed
to be primary with respect to the CITY.
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B. Comprehensive Automobile Liability. Comprehensive Automobile Liability
Insurance covering all owned,non-owned and hired motor vehicles with limits ofnot
less than $500,000 per occurrence for damage to property.
C. Combined Single Limit Policy. The requirements for insurance coverage for the
general liability and auto exposures may be met with a combined single limit of
$1,000,000 per occurrence subject to a$1,000,000 aggregate.
D. Professional Liability. The CONSULTANT shall carry Professional Liability
Insurance Covering claims resulting from error, omissions or negligent acts with a
combined single limit of not less than $1,000,000 per occurrence. A Certificate of
Insurance shall be submitted to the SUPERVISOR as evidence of insurance
protection. The policy shall not be modified or terminated without thirty(30)days
prior written notice to the SUPERVISOR.
13. NONDISCRIMINATION
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.
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.
14. ASSIGNMENT AND SUCCESSORS
This Agreement and each and every portion thereof shall be binding upon the successors and
the assigns of the parties hereto; provided, however, that no assignment shall be made
without the prior written consent of the CITY.
15. DELEGATIONS AND SUBCONTRACTORS
Any assignment,delegation or subcontracting shall be subject to all the terms,conditions and
other provisions of this Agreement and the CONSULTANT shall remain liable to the CITY
with respect to each and every item,condition and other provision hereof to the same extent
that the CONSULTANT would have been obligated if it had done the work itself and no
assignment, delegation or subcontract had been made. Any proposed subcontractor shall
require the CITY'S advanced written approval.
16. NO CO-PARTNERSHIP OR AGENCY
This agreement shall not be construed so as to create a partnership, joint venture,
employment or other agency relationship between the parties hereto.
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17. SEVERABILITY
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.
18. HEADINGS
The headings of the several paragraphs of this Agreement are inserted only as a matter of
convenience and for reference and in no way are they intended to define,limit or describe the
scope of intent of any provision of this Agreement, nor shall they be construed to affect in
any manner the terms and provisions hereof or the interpretation or construction thereof.
19. MODIFICATION OR AMENDMENT
This Agreement and its attachments 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, or change order as herein provided.
20. APPLICABLE LAW
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.
21. NEWS RELEASES
The CONSULTANT may not issue any news releases without prior approval from the
SUPERVISOR, nor will the CONSULTANT make public proposals developed under this
Agreement without prior written approval from the SUPERVISOR prior to said
documentation becoming matters of public record.
22. COOPERATION WITH OTHER CONSULTANT
The CONSULTANT shall cooperate with any other consultants in the CITY'S employ or any
work associated with the PROJECT.
23. INTERFERENCE WITH PUBLIC CONTRACTING
The CONSULTANT certifies hereby that it is not barred from bidding on this contract as a
result of a violation of 720 ILCS 5/33E et seq.or any similar state or federal statute regarding
bid rigging.
24. SEXUAL HARASSMENT
As a condition of this contract, the CONSULTANT 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;
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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 512-105.
25. WRITTEN COMMUNICATIONS
All recommendations and other communications by the CONSULTANT to the
SUPERVISOR and to other participants which may affect cost or time of completion, shall
be made or confirmed in writing. The SUPERVISOR may also require other
recommendations and communications by the CONSULTANT be made or confirmed in
writing.
26. COMPLIANCE WITH LAWS
Notwithstanding any other provision of this AGREEMENT it is expressly agreed and
understood that in connection with the performance of this AGREEMENT that the
CONSULTANT 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, CONSULTANT hereby certifies, represents and warrants to the CITY that all
CONSULTANT'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.
CONSULTANT 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 for in this Agreement. The CITY
shall have the right to audit any records in the possession or control of the CONSULTANT
to determine CONSULTANT'S compliance with the provisions of this section. In the event
the CITY proceeds with such an audit the CONSULTANT shall make available to the CITY
the CONSULTANT'S relevant records at no cost to the CITY.
27. NOTICES
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:
A. As to CITY:
Sean R. Stegall, Assistant City manager
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
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With a copy to:
William A. Cogley, Corporation Counsel
City of Elgin
150 Dexter Court
Elgin, Illinois 60120-5555
B. As to CONSULTANT:
Economic Research Associates
20 E. Jackson Boulevard, Suite 1200
Chicago, Illinois 60604
IN WITNESS WHEREOF,the undersigned have placed their hands and seals upon and executed this
Agreement in triplicate as though each copy hereof was an original and that there are no other oral
agreements that have not been reduced to writing in this statement.
FOR THE CITY: FOR THE CONSULTANT:
By: ECO •M R E C ASSOCIATES
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By
Attest: Its 0
City Clerk
F:\Legal Dept\Agreement\ERA-EconomicsResearchAssoc-Feasibility Study-WAC-6-9-08.doc
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May 22, 2008 ";}
TO: Mayor and Members of the City Council
FROM: Olufemi Folarin, City Manager
Sean R. Stegall, Assistant City Manager
Butch Wilhelmi, Cultural Center Manager
SUBJECT: The Hemmens Cultural Center - Performing Arts Facility
Programming Assessment
PURPOSE
The purpose of this memorandum is to provide information to the Mayor and members of
City Council to award a contract to Economics Research Associates (ERA) to undertake
a programming assessment and a formal evaluation of the Hemmens Cultural Center as it
relates to the potential for expansion.
RECOMMENDATION
It is recommended that the City Council award a contract for professional services to
Economics Research Associates in an amount not to exceed $291,800 concerning a
programming assessment and a formal evaluation of the Hemmens Cultural Center as it
relates to the potential for expansion.
BACKGROUND
An analysis by ERA concerning the feasibility of developing a second or new performing
arts venue in Elgin was performed during 2006. During this initiative, the concept of
constructing a second or new performing arts center was explored. Information was
gathered on the financial impact on the community by assessing the change in additional
tax income, development of the business economy, promotion of tourism, creation of jobs
and other similar economic considerations associated with the presence of the new
facility. As a part of this analysis, several major conclusions were arrived at as follows:
• The Hemmens Cultural Center is the economic engine for the Center City and the
single largest touch point for visitors;
• The Elgin Community can support, based on those assumptions made in 2006, a
new performing arts facility; and finally,
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The Hemmens Cultural Center-Performing Arts Facility Programming Assessment
May 22, 2008
Page 2
• Due to the size, age and market position of the Hemmens, it is rapidly nearing
"functional obsolesce" as a venue.
In the event that a new performing arts venue is deemed economically feasible or viable,
a final phase was anticipated that would provide a market analysis of a new venue, design
and cost implications, and the financial and economic impact to the City of Elgin. In
order to move forward with this final phase and before a recommendation can be made to
the community on the construction of a new performing arts center or a "New
Hemmens", it is critical that the estimates be provided on the cost of renovating the
Hemmens for the next generation. With this information in hand, the community will be
provided with this cost information by which they can compare and contrast with the cost
of building a facility. Therefore, this study will provide an answer to the question, "Is it
feasible to undertake a major renovation of the Hemmens, and if so, how much would it
cost."
It should also be noted that a high caliber team of sub-consultants has been incorporated
under the direction of ERA, including Fisher Dachs & Associates, AECOM, Venue and
Talaske. These firms encompass skills in engineering, design, cost estimating and
acoustics. The engagement has been divided into four task areas.
Task 1 —Project Kickoff, Data Collection, and Stakeholder Interviews
The project will begin with a series of related work efforts: A team meeting to review
past work efforts, expectations, timelines, and deliverables; collection of past reports,
architectural drawings, and other project documentation; and a review of financial and
event data for Hemmens, updating performance metrics that were first evaluated in the
2006 facility options assessment.
Task 2—Facility Program Recommendations
The programming assessment will identify facility program recommendations in areas
such as: Stage and Auditorium Design, Seating Count/Layout, ADA Implications,
Backstage and Public Space Function and Layout, Stage, Concert and House Lighting
Control Systems, etc.
Task 3—Baseline Infrastructure Assessment
The Infrastructure scope of services will include a detailed evaluation of the existing
mechanical, electrical, plumbing (MEP) systems in Hemmens Cultural Center. Work
efforts will include items such as: analyzing the current condition of the building,
accounting for deferred maintenance, and replacement/upgrades to maintain the building
in its "as is" condition. This scenario is the baseline; it assumes that Hemmens stays
open for another 25 years and represents the amount of investment that the building will
require to remain open into the reasonable future and compliant
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The Hemmens Cultural Center- Performing Arts Facility Programming Assessment
May 22, 2008
Page 3
Task 4 -Hemmens Expansion Scenario
Assuming that the infrastructure assessment does not identify any apparent
physical/structural constraints that would rule out an expansion of Hemmens, the team
would apply the required recommended program to Hemmens, developing one consensus
expansion scenario for the existing building.
The expansion program would be supported by Talaske, with the intent of supporting a
level of programming and acoustical quality appropriate for a modern multi-purpose
performing arts venue. The expansion scenario will consider recommended changes
relating to seat count, which will impact floor area and hall volume, as well as
improvements to the stagehouse, flyloft, and loading dock.
In the event that a new performing arts venue is deemed economically feasible or viable,
the third and final phase would provide a market analysis of a new venue, design and cost
implications, and the financial and economic impact to the City of Elgin.
ERA is an internationally recognized consulting firm specializing in all aspects of real
estate and land use economics, urban planning and development, commercial recreation
feasibility, strategic planning for communities and corporations, and management and
marketing services. ERA has seven locations worldwide, including one located in
downtown Chicago, which will provide a greater level of proximity and connection to the
proposed project. In addition, ERA has a reputation for providing information to their
clients that has resulted in projects not moving forward. This is important as it
demonstrates their credibility and independence. Finally, due to the fact that ERA and
the associated sub-contractors completed Phase I of the analysis, we felt it was important
to continue our association with the same team and thus a request for proposals was not
undertaken as it was with the original selection of ERA in 2006.
COMMUNITY GROUPS/INTERESTED PERSONS CONTACTED
Elgin Symphony Orchestra, Elgin Children's Chorus, Children's Theatre of Elgin, Elgin
Choral Union and Elgin Youth Symphony.
FINANCIAL IMPACT
The cost of this initiative is based upon a not-to-exceed amount of$291,800. There are
sufficient funds budgeted ($628,000) and available ($600,000) in the Riverboat Fund,
account number 275-0000-791.93-36 (Buildings/Structures), project number 349509
"Hemmens Lobby" to enter into the contact with ERA.
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The Hemmens Cultural Center- Performing Arts Facility Programming Assessment
May 22, 2008
Page 4
LEGAL IMPACT
An exception to the procurement ordinance will be required and a professional services
agreement will need to be prepared.
ALTERNATIVES
1. The Council may choose to approve the contract with Economics Research
Associates in an amount not to exceed $291,800.
2. The Council may choose to deny the contract with Economics Research
Associates in an amount not to exceed $291,800
Respectfully submitted for Council consideration.
SRS
Attachment