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HomeMy WebLinkAbout17-23 Resolution No. 17-23 RESOLUTION AUTHORIZING EXECUTION OF A SERVICE AGREEMENT WITH STERLING SYMMETRY UNLIMITED, INCORPORATED FOR GROUP FITNESS INSTRUCTION AND CLASSES 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 BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Service Agreement on behalf of the City of Elgin with Sterling Symmetry Unlimited, Incorporated for group fitness instruction and classes at The Centre from January 1, 2017 to December 31, 2017, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 22, 2017 Adopted: February 22, 2017 Omnibus Vote: Yeas: 8 Nays: 0 Abstained: 1 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk SERVICE AGREEMENT THIS AGREEMENT is made and entered into this 22nd day Of February f 2017, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City") , and Sterling Symmetry Unlimited, Incorporated (Dawn Jones proprietor) , a 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 on behalf of the City and the City' s Parks and Recreation Department; and WHEREAS, the Service Provider represents that it has the necessary expertise and experience to furnish the Subject Services upon the terms and conditions set forth in this agreement . NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows : 1 . The Service Provider shall provide all of the services as described in Exhibit A. attached hereto and made a part hereof by this reference (such services are hereinafter referred to as the "Subject Services") . Unless otherwise specified in Exhibit A, the Service Provider shall provide the Subject Services at such dates and times as are determined and approved by the City' s Health and Fitness Supervisor and/or Recreation and Facilities Superintendent . 2 . The Service Provider shall also perform the Subject Services according to the Activity Plan which is attached + hereto and made a part hereof as Exhibit B. 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 in the Activity Plan set forth in Exhibit B. It is agreed and understood that the City is relying on such representations and it is further agreed and understood that the Subject Services set forth in Exhibit A and the activity plan set forth in Exhibit B are integral parts of this agreement and not be modified, amended H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx or altered except by a written amendment to this agreement agreed to and executed by both parties hereto. 3 . The Service Provider shall perform the Subject Services at the location specified in Exhibit A. 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 City' s Recreation and Facilities Superintendent . 4 . The Service Provider shall complete, maintain and submit to the Recreation and Facilities Superintendent of the City, or her designee, any and all records, reports and forms relating to the Subject Services and this agreement as requested by the City. 5 . The City shall pay the Service Provider for the Subject Services under this agreement the amount of $36. 00 per group fitness class, 65% per personal training session and 650 of group training course fees and 650 of massage therapy sessions provided by the Service Provider. In the event that the revenue for personal training and massage therapy (combined in the calendar year) exceeds $22, 000 . 00, the Service Provider would then receive 70% per personal training session and 70% per massage therapy session for those sessions provided after the $22, 000 threshold has been reached. Notwithstanding anything to the contrary in this agreement, the total monies to be paid by the City to the Service Provider pursuant to this agreement shall not exceed the total amount of $42, 000 . The City shall make payments to H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx the Service Provider based upon actual progress of the Subject Services within sixty ( 60) days after the receipt and approval of an invoice. Said periodic payments shall not be made until the services for which payment is sought are completed and accepted by the City. The Service Provider shall submit invoices in a format approved by the City. Progress reports will be included with all payment requests . The Service Provider shall maintain records showing actual time devoted and costs incurred. The Service Provider shall permit the authorized representative of the City to inspect and audit all data and records of the Service Provider for work done under this agreement . The Service Provider shall make these records available at reasonable times during the agreement period, and for a year after the completion of the Subject Services to be performed pursuant to this agreement . 6. Service Provider agrees and warrants that the Service Provider has procured all licenses, permits or like permission required by law to conduct or engage in the Subject Services provided for in this agreement, and that the Service Provider will procure all additional licenses, permits or like permission hereinafter required by law during the term of this agreement, and that the Service Provider will keep same in full force and effect during the term of this agreement. Service Provider shall perform the Subject Services with due care and in compliance with all applicable legal requirements . 7 . The enrollment of students or participants for the Subject Services to be conducted pursuant to this agreement is the sole responsibility and right of the City. Service Provider shall not disseminate information to the public concerning the Subject Services to be conducted pursuant to this agreement or independently advertise or solicit students or participants for the Subject Services to be conducted hereunder except with the prior written consent of the City' s Recreation and Facilities Superintendent . Service Provider shall not represent any activity in which the Service Provider is engaged, including but not limited to the activity which is the subject of this agreement, as having been approved or otherwise use the City' s name in a testimonial manner without the prior written permission of the City' s Recreation and Facilities Superintendent . The Service Provider shall not solicit or encourage students or participants enrolled by the City in the Subject Services to enroll or participate in competing or similar services which are not sponsored by the City. H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx 8 . Notwithstanding any other provision hereof, the City may terminate this agreement at any time upon written notice to the Service Provider. In the event this agreement is so terminated, the Service Provider shall be paid for services actually performed. 9. This agreement shall become effective as of the date the Service Provider is given a notice to proceed by the City, and unless terminated for cause or pursuant to paragraph 8, shall be deemed concluded on the date the City determines that all of the Service Provider' 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 . 10 . 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. City shall not be entitled to direct Service Provider as to the means or methodology of performance of this agreement by the Service Provider. 11 . If either party violates or breaches any term of this agreement, such violation or breach shall be deemed to constitute a default, and the other party has the right to seek administrative, contractual or legal remedies as may be suitable to the violation or breach. 12 . 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 . In the event of any action H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx 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 termination of this agreement . 13. 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 . 14 . The Service Provider shall provide, pay for and maintain in effect, during the term of this agreement, a policy of comprehensive general liability insurance, written in occurrence form, with limits of at least $1, 000, 000 per occurrence for bodily injury and $1, 000, 000 per occurrence for property damage. The Service Provider shall deliver to the City a certificate of insurance naming the City as an additional insured. The policy shall not be modified or terminated without ten (10) days prior written notice to the City. The certificate of insurance shall include the contractual obligation assumed by the Service Provider under Paragraph 12 hereof. 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 pro rate, it shall be endorsed to be primary with respect to the City. 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 . 15. 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. 16. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx 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. 17 . 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 . 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. 19. 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 . With the sole exception of an action to recover any money to which it may be entitled pursuant to the specific provisions of this Agreement, and notwithstanding anything else to the contrary in this agreement, no action shall be commenced by the Service Provider 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 Service Provider 9% per annum interest and attorney' s fees at the rate of $300 per hour, which Service Provider hereby agrees constitutes a reasonable rate. 20 . 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. 21 . 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; H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx 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 . 22 . As a further condition of this agreement, the Service Provider shall submit to and pass a drug test and criminal history background check. The requirements necessary to constitute "passing" shall be at City' s sole discretion. Service Provider warrants and represents, and understands and agrees, that as a term and condition of this agreement that Service Provider is not and has not within the past thirty (30) days, and shall not during the term of this agreement, use or used any illegal drug or unexplained legal drug; nor has Service Provider been convicted of any crime of which Service Provider has failed to provide written notice to City. In the event that Service Provider is determined to have violated this or any other provisions of this agreement, Service Provider shall be deemed to be in breach of this agreement, and may be terminated by City immediately without penalty to City. 23. 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: Dawn Jones City of Elgin c/o Sterling Symmetry Unlimited, Inc. 150 Dexter Court 259 Weston Avenue Attn: Ron Anderson Elgin, IL 60123 24 . 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 cons rued against the other party, as the otherwise purported drafter of same, by any court of competent jurisdiction in 1. H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx I c order to resolve any inconsistency, ambiguity, vagueness or conflict, if any, of the terms and provisions contained herein. 25 . 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. 26. Notwithstanding any other provision of this agreement it is expressly agreed and understood that in connection with the performance of this agreement that the Service Provider shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Without limiting the foregoing, Service Provider hereby certifies, represents and warrants to the City that all Service Provider' s employees and/or agents who will be providing products and/or services with respect to this agreement shall be legal residents of the United States. Service Provider shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this agreement. The City shall have the right to audit any records in the possession or control of the Service Provider to determine Service Provider' s compliance with the provisions of this section. In the event the City proceeds with such an audit the Service Provider shall make available to the City the Service Provider' s relevant records at no cost to the City. Service Provider shall pay any and all costs associated with any such audit . EXECUTION, this agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same agreement . For the purposes of executing this agreement, any signed copy of this agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document . The signature of any party on a copy of this agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this agreement shall be considered to have the same binding legal effect as an original document . At the H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx 4, request of either party any fax or e-mail copy of this agreement shall be re-executed by the parties in an original form. No party to this agreement shall raise the use of fax machine or e-mail as a defense to this agreement and shall forever waive such defense. IN WITNESS WHEREOF, the undersigned have entered into executed this agreement on the date and year first written above. CITY OF ELGIN, a municipal (SERVICE PROVIDER) ff 1 r' Corporation �{6 tl;rt,► rP�� 1^z- By BY Richard G. Kozal City Manager �aw� pn�s �Y.ecs+ e est 1 zlo7 11&Z City Cle H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx s EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY SERVICE PROVIDER: 1) Instruct Group Fitness classes 2) Personal Train pre-paid clients 3) Group Train pre-paid clients 4) Conduct Massage Therapy sessions with pre-paid clients DATES AND TIMES OF SERVICES: January 1, 2017 - December 31, 2017 Massage Therapy sessions, Group Fitness classes and Personal and Group Training sessions will occur during normal business hours of operation, which are Monday through Friday from 5 : 00am through 9: 00pm; Saturday, 7 : 00am through 5 : 00pm and Sunday from 8 : 00am through 5 : 00pm. The Group Fitness classes will be determined by the Health and Fitness Supervisor. LOCATION OF SERVICES: All of the above services will be rendered in The Centre Of Elgin, 100 Symphony Way, Elgin, Illinois 60120 . Any outdoor Group Fitness classes, Group Training programs and Personal Training sessions must be authorized by the Health and Fitness Supervisor and/or Operations Manager. H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx EXHIBIT B ACTIVITY PLAN Group Fitness classes taught will include any one or more of the following exercise components : warm-up, aerobic activity, anaerobic activity, cool down, stretching. H:\2017 Contracts\2017\2017 Contractual Agreement Corporation - Sterling Symmetry.Docx L