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HomeMy WebLinkAbout14-135 Resolution No. 14-135 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH THE ASSOCIATION FOR INDIVIDUAL DEVELOPMENT FOR CONCESSION MANAGEMENT AND OPERATIONS AT THE CENTRE OF ELGIN BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Sean R. Stegall, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an agreement with the Association For Individual Development on behalf of the City of Elgin for concession management and operations at The Centre of Elgin, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: October 8, 2014 Adopted: October 8, 2014 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT BETWEEN THE CITY OF ELGIN AND THE ASSOCIATION FOR INDIVIDUAL DEVELOPMENT THIS AGREEMENT is hereby made and entered into this 8th day of October , 2014, by and between the CITY OF ELGIN, an Illinois municipal corporation (hereinafter referred to as the "City") and the ASSOCIATION FOR INDIVIDUAL DEVELOPMENT, an Illinois not-for-profit corporation(hereinafter referred to as "AID"). WHEREAS, the City is the owner of certain property used for community and recreational uses commonly known as the Centre of Elgin, 100 Symphony Way, Elgin, Illinois, at which the City owns and operates a concession stand (hereinafter referred to as the "Premises"); and, WHEREAS, AID desires to manage and operate the concession stand located at the Premises to provide a job training opportunity for their clients; and, WHEREAS, the City is a home rule municipality as defined in Article VII, Section 6A of the 1970 Constitution of the State of Illinois; and, WHEREAS, as a home rule unit the City may exercise any power and perform any function pertaining to its government and affairs; and, WHEREAS, permitting AID to manage and operate the concession stand at the Premises pertains to the government and affairs of the City; and, WHEREAS, the City has determined that it would serve a beneficial public purpose to enter into an agreement with AID to permit AID to manage and operate the concession stand at the Premises in accordance with and subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. The City agrees that AID shall manage and operate the concession stand at the Premises on a daily basis in accordance with the youth basketball program schedule, as follows: Saturdays 8:00 a.m. —3:30 p.m. said management and operations to commence on Saturday, October 11, 2014, and concluding on Saturday February 28, 2015, inclusive. All concession activities shall take place only when the Centre of Elgin is open and it is safe to do so such that there are no conditions presenting a risk of injury or harm to the public or AID's clients, agents or employees. The City shall have the sole right to determine when the Centre shall be open or closed due to weather or other conditions, in its sole discretion. 2. This Agreement shall be in full force and effect from date of this Agreement set forth above through February 28, 2015, unless sooner terminated as provided herein. AID agrees and acknowledges that it shall have no right to use or occupy the Premises after the expiration of the Agreement term, or upon termination of the Agreement as provided herein. This agreement shall automatically renew for two (2) additional terms, from October 10, 2015 to February 27, 2016 and October 8, 2016 to February 25, 2017, respectively, under same terms and conditions of this Agreement, unless a party hereto provides written notice to the other party of its intention not to renew the Agreement no less than sixty(60) days prior to the commencement of a term. 3. This Agreement may be terminated by the City for any reason or no reason upon giving seven (7) days written notice to the other party. In addition, this Agreement may be immediately terminated by the City upon written notice of a breach of any term or condition of this Agreement. The City may, in its sole discretion, provide AID with an opportunity to correct or cure any breach of the terms or conditions of this agreement. 4. During the course of the performance of this Agreement, AID shall designate one (1) supervisory staff members and four (4) clients for the management and operation of the concession stand. During the hours of operation of the concession stand, the staffing ratio shall be at least one (1) supervisory staff members per four (4) clients. AID has represented and agrees that the individual clients that it has designated for job training in connection with the operation of the concession stand are residents of the City of Elgin. AID has further represented and agrees that the individual clients that it has designated for operation of the concession stand are individuals with developmental disabilities, which can generally be characterized as learning disabilities. 5. All persons performing any service or function relating to the management or operations of the concession stand at the Premises shall be subject to a screening process by the City, including but not limited to a background check, criminal history investigation, drug screening and/or an interview by the City. 6. For a two day period prior to the opening of the concession stand operations, the City shall provide personnel to AID for the purposes startup assistance and training relating to the operation and management of the concession stand. 7. Except as otherwise provided for in this Agreement, AID shall be solely responsible for all expenses associated with or arising from AID's management and operation of the concession stand, including but not limited to all salaries, inventories, food and beverages, paper, cleaning, miscellaneous supplies, and other costs incurred in the course of AID's operations. AID shall maintain adequate levels of such inventories and supplies for its operation of the concession stand. AID shall be responsible for all cash handling. The City shall provide the concession stand with all necessary utilities associated with the operation of the concession stand, and shall pay for the cost of the same. 8. AID shall collect and receive all revenues derived from its operation of the concession stand. AID shall be entitled to retain one hundred percent (100%) of the revenues received from its operation of the concession stand up to an amount equal to its expenses -2- incurred from its operation of the concession stand. Net profits from the operation of the concession stand shall be shared in equal amounts between the City and AID, with each party to receive fifty percent (50%) of such net profits. Net profits shall be defined as the amount by which total revenues derived from AID's operation of the concession stand during the term of this Agreement exceed the total expenses incurred by AID from its operation of the concession stand during the term of this Agreement. 9. AID shall adhere to and comply with all ordinances, laws, rules and regulations that may pertain to or apply to the Premises and AID's use thereof, as determined by the City. AID agrees and warrants that it has procured or will procure any licenses, permits or like permission required by law, if any, to conduct or engage in use of the Premises described herein, that AID will procure all additional licenses, permits or like permission hereinafter required by law during the term of this Agreement, and that AID will keep the same in full force and effect during the term of this Agreement. In addition, AID's supervisory staff shall complete appropriate food service training prior to the commencement of the operation of the concession stand. 10. AID will use the existing equipment provided by the City and some vendors' equipment in its operation of the concession stand. The City shall be responsible for the costs of routine equipment repairs and maintenance. AID shall be strictly responsible for, and agrees and covenants to repair or pay for any damage or loss to such equipment caused by the negligence, carelessness or waste of AID or its officers, employees, agents, members, independent contractors or volunteers. AID shall further be responsible for keeping the Premises and the equipment thereon in a clean condition and properly attended to during its operation of the concession stand. 11. In connection with AID's use of the Premises, AID agrees and warrants to use, and to cause persons participating in AID's use of the Premises to use, through proper supervision and control, all property, facilities and equipment with due care, and to report all defects in or damage to any such property, facilities and equipment, and the cause thereof if known, immediately to the City. AID shall be strictly responsible for, and agrees and covenants to repair or pay for any damage or loss to the Premises or the property thereon caused by the negligence, carelessness or waste of AID or its officers, employees, agents, members, independent contractors or volunteers. AID shall not make any modifications or alterations to the Premises without the prior written consent of the City. 12. AID shall complete, maintain and submit to the Parks and Recreation Director of the City, or his designee, monthly profit and loss statements for October 2013 thru March 2014 relating to AID's operation of concession stand no later than ten (10) days after the end of each month, and a year-end statement no later than thirty days after the end of AID's operation of the concession stand. In addition, AID shall complete, maintain and submit to the Parks and Recreation Director of the City, or his designee, any and all records, reports and forms relating to AID's use of the Premises and this Agreement as requested by the City. AID shall keep and maintain records of all sales relating to its operation of the concession stand pursuant to this Agreement. All records shall be in a form in accordance with good accounting practice. The -3- aforementioned records shall be made available upon request to the City or its duly authorized representatives for inspection, copying or auditing purposes upon reasonable notice. 13. AID shall attend, through a duly-authorized representative, regular meetings with the City to review AID's operation of the concession stand and to discuss any outstanding issues or concerns of the parties. AID shall utilize its best efforts to address any concerns raised by the City concerning AID's operation of the concession stand. 14. AID may display signage promoting its job training program, provided that any such signage is in compliance with City ordinances and shall be subject to the approval of the City, in its sole discretion. 15. To the fullest extent permitted by law, AID agrees to and shall indemnify, defend and hold harmless the City, its officials, officers, employees, attorneys, agents, volunteers, boards and commissions, and successors, either jointly or severally, from and against any and all liability, demands, claims, suits, judgments, costs, damages or other relief, including attorneys' fees, in any way resulting from or arising out of, or alleged to be resulting from or arising out of, this Agreement and/or AID's or its officers', employees', staff's, agents', clients', members', independent contractors', or volunteers' use of or presence on the Premises. In the event of any action against the City, its officers, employees, attorneys, agents, volunteers, boards and commissions, and successors 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. AID shall be liable for the acts or omissions of AID and its officers, employees, staff, agents, clients, members, independent contractors, or volunteers, and AID shall pay for any and all damage to the Premises, or theft of property from the Premises, done or caused by any such person or persons. The City shall not be responsible for any loss or damage to any property of AID or its officers, employees, staff, agents, clients, members, independent contractors, or volunteers, and AID shall be solely responsible for any such property. AID shall add the City and its officials, officers, employees, agents, volunteers, boards and commissions, and successors, to the list of parties released in any waiver and release of liability form utilized by AID relating to its operation of the concession stand, if any. 17. Nothing herein shall be construed as an express or implied waiver, relinquishment or release of any common law or statutory privileges and/or immunities of the City or any of its officers, employees, attorneys, volunteers, agents, boards or commissions, including without limitation those privileges and immunities existing under the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq., as amended, the Recreational Use of Land and Water Areas Act, 745 ILCS 65/1, et seq., and/or as otherwise provided by law, it being agreed that all the civil immunities as set forth in such Acts, as amended, and/or as otherwise provided by law shall fully apply to any claims asserted or which might be asserted against the City and/ its officials, officers, employees, attorneys, volunteers, agents, boards or commissions as a result of this Agreement or any actions of the parties pursuant to this Agreement. -4- 18. AID shall procure and provide, at no cost to the City, liability insurance naming the City as an additional insured in the amounts and for the limits as follows: 1. Commercial General Liability: a. $2,000,000 General Aggregate b. $1,000,000 Auto c. $1,000,000 Personal and Advertising Injury d. $1,000,000 Each Occurrence e. $50,000 Fire Damage (any one fire) f. $5,000 Medical Expense (any one person) 2. Workers' Compensation: a. State Statutory b. Federal Statutory c. Employers' Liability $500,000.00 Per Accident $500,000.00 Disease, Policy Limit $500,000.00 Disease, Each Employee 3. Umbrella Policy: a. $12,000,000. AID shall provide the City with certificates of insurance naming the City as an additional insured with respect to such insurance. Such certificate shall provide that the insurance shall not be terminated or renewed for any reason without thirty (30) days advance written notice to the City. Such insurance shall apply as primary insurance with respect to any other insurance or self- insurance programs afforded to the City as to acts or omissions of AID, and its employees and/or agents. There shall be no endorsement or modification of such insurance to make it excess over other available insurance; alternatively, if such insurance states that it is excess or pro rata, it shall be endorsed to be primary with respect to the City. 19. If AID 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, the City may terminate this Agreement in accordance with Paragraph 3. If the City violates or breaches any term of this Agreement, and in the event the City fails to within fifteen (15) days after notice thereof by AID to comply with the conditions of this Agreement, AID as its sole and exclusive remedy may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, no action shall be commenced by AID, any related persons or entities, its employees, staff, clients, 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 AID in this Agreement and the City is the prevailing party in such action, the City shall also be entitled to recover from AID interest at the rate of nine percent (9%) per annum and reasonable attorney's fees. The provisions of this section shall survive any expiration, completion and/or termination of this Agreement. -5- 20. Notwithstanding any expenditure of money, time and/or labor by AID on or within the Premises, this Agreement shall in no event be construed to create an assignment coupled with an interest or any vested rights in favor of AID. AID shall expend any time, money or labor on or in the Premises at AID's own risk and peril. 21. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. AID understands and agrees that the relationship of AID to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that AID and AID's officers, employees, staff, clients and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 22. No official, director, officer, attorney, 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. 23. 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. 24. 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. 25. 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. 26. This Agreement 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. 27. 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. -6- 28. AID 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. 29. As a condition of this contract, AID shall have a written sexual harassment policy that includes, 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). 30. As a condition precedent of this Agreement, AID shall have in place a written substance abuse prevention program approved by the City. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry and execution of this Agreement. 31. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement AID 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, AID hereby certifies, represents and warrants to the City that all of AID'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. AID 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 AID to determine AID's compliance with the provisions of this section. In the event the City proceeds with such an audit, AID shall make available to the City the City's relevant records at no cost to the City. AID 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. -7- 32. 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 AID: City of Elgin Association for Individual Development 150 Dexter Court 1135 Bowes Road Elgin, IL 60120-5555 Elgin, IL 60123 Attention: Parks and Recreation Director With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 33. This agreement is and shall be deemed to construe to be a joint and collective work product of the City and AID 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. 34. 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 AID without the express written consent of the City which consent may be withheld at the sole discretion of the City. 35. AID on behalf of itself and its respective successors and assigns hereby acknowledges the propriety, necessity and legality of all of the terms and provisions of this Agreement, and does hereby further agree and does waive any and all rights to any and all legal or other challenges or defenses to any of the terms and provisions of this Agreement, and hereby agrees and covenants on behalf of itself and its successors and assigns, not to sue the City or maintain any legal action or other defenses against the City with respect to any challenges of the terms and provisions of this Agreement. [SIGNATURE PAGE FOLLOWS] -8- IN WITNESS WHEREOF, the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal ASSOCIATION FOR INDIVIDUAL corporation DEVELOPMENT By: By: 4ityanager Attest: Title: �f,Q� C— j) City Clerk a-ZC( — lL� Date Date F:\Legal Dept\Agreement\AID Agreement for Centre Concessions-clean-9-12-12.docx -9-