HomeMy WebLinkAbout09-0101 Paluch pal- OkO%
(1/06/04)
SERVICE AGREEMENT
THIS AGREEMENT is made and entered into this 01 day of
January, 2009, by and between the CITY OF ELGIN, Illinois,
a municipal corporation (hereinafter referred to as the
"City" ) , and Laura Paluch, 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 on the dates and times as described in Exhibit A
attached hereto and made a part hereof (such services are
hereinafter referred to as the "Subject Services" ) .
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 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 reimburse the Service Provider for
the Subject Services under this agreement the amount of 65%
of service fees collected per client for Massage Therapy
sessions and perform as a complimentary service,
introductory massage sessions for membership related
special events . "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 $10, 000 . " The City shall
make payments to 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.
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
1
paid for services actually performed and reimbursable
expenses actually incurred prior to termination, except
that reimbursement shall not exceed the total amount set
forth under paragraph 5 above.
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.
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 against the City,
its officers, employees, agents, boards or commissions
covered bythe foregoing dutyto indemnify, defend and hold
9 9 Y�
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 thirty (30) 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
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 the monies
the City has agreed to pay pursuant to the preceding
paragraph 5 hereof, 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 reasonable
interest and reasonable attorney' s fees .
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 ILLS 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;
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:
City of Elgin Laura Paluch
150 Dexter Court 160 East Chicago St Apt B
Elgin, IL 60120-5555 Elgin, IL 60120
Attention: Health/Fitness Supervisor
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
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.
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.
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)
corporation
By By
City Man er S r ice Pro ider
Attest :
City Clerk
F:\Legal Dept\Agreement\PSA-DRAFT FORM-CENTRE INSTRUCTORS-MRG.doc
EXHIBIT A
DESCRIPTION OF SERVICES TO BE PROVIDED BY SERVICE PROVIDER:
1) Conduct Massage therapy
DATES AND TIMES OF SERVICES :
January 1, 2009 — , December 31, 2009
Sessions will occur during normal hours of operation, which
are Monday - Friday 5 : 30 am - 10 : 00 pm; Saturday 7 : 00 am -
6 : 00pm and Sunday 8 : 00 am - 6 : 00 pm. Schedule will be
determined by Health/Fitness Supervisor.
LOCATION OF SERVICES :
All services will be rendered in The Centre, 100 Symphony
Way, Elgin, IL 60120 .
EXHIBIT B
ACTIVITY PLAN TO BE PROVIDED
Massage Therapy will be performed
' ' ABMP 4/6/2009 3 : 10 PAGE 2/2 Fax Server
x abm Cert fzcute of Insurance
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OCCURRENCE COVERAGE
/ ABMP In-Dues Liability Program
INSURED MAILING ADDRESS: PRODUCER
Associated Bodywork&Massage Professionals Midwest General Agency
1271 Sugarbush Drive
Evergreen,CO 80439-9766 AGENT/BROKER
Midwest General Agency
POLICY#CL 480101318EVANSTON INSURANCE CO. MASTER POLICY EFFECTIVE DATE:1/1/2009
Coverage afforded to individual members by this policy Is applicable for a period
of 12 months from the date the member is added by endorsement or until the
individual member's coverage Is cancelled or they cease to be an active member
of the association.
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LIABILITY LIMITS(per member) ."li:a,.
COMMERCIAL GENERAL LIABILITY GENERAL AGGREGATE $3,000,000
_.::, I' ULI OMP/OP AGGREGATE $3,000,000
,,. .,:Q:::m.,,, : :: E.RGEEs,SIQNAL AcaRFEE,ATE $3,000,000
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{`P. biiiii,i,; PERSONAL& ! 1.TISIN('Th JURY $2,000,000
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<: insii EACH OCCURRENCE____ .> $2,000,000
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proof of coverage for'agy niplby iilllda endent contractors,and/or any other individuals affiliated i h the nam@itf certificate holder.Each
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membership expiratiai(f date— ::,:,.••• ,.••.....
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THIS IS TO ADDITIONAL INSURED:(wit Inception Date)
RTIFY THAT Tt���iLICilil!�',� Li�TED ABOVE HAS BEEN ISSUED TO THE INSURED ceP
NAMED BELOW FOR THE POLIgy,PERINIANOWATElliiNCrINVITHSTANDINGANY REQUIREMENT,TERM OR City of Elgin 08R0/08
CONDITION OF ANY CONTRACT S or,08RiNguylgisfT WITH RESPECT TO WItCH THIS CERTIFICATE MAY ri
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REDUCED BY CLAIMS PAID.COPY f:I]'?:l ;F •, L'JPOIN REQUEST($10.00 CHARGE).
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Membership I.D.#: 958493 nla l::ai:::::,1:::::::.I:::::::si;i;iilii;iiiii;'`
Insured Active Date: March 24,2008
Membership/Policy
Term Expiration: March 23,2010
Issue Date: March 24,2009
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Authorized Representative
CANCELLATION:Should the above described policy be cancelled before the expiration date thereof,the
Issuing company will endeavor to mall 10 days written notice for non payment or 30 days written ndice
for any doer reason to the catlflcate holder named above,but failure to mat such notice shall Impose
no obligation or liability of any kind upon the company,is agents or representatives.
ABMP-19(01/07)
Rev.12/08
-STa
teoflllinois
LICENSE NO. Department of Financial and Professional Regulation
227.009241 Division of Professional Regulation
LICENSED
MASSAGE THERAPIST
LAURA C PALUCH
EXPIRES •
12/31/2010
MICHAELT.McRAITH 7 , 'r: DANIEL E.BLUTHARDT
��' ACTING SECRETARY zic��J�; DIRECTOR
The official status of this license can be verified atwww.idfpr.com •
3909823