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HomeMy WebLinkAbout09-0101 Walker O9-o l O c ( 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 Ruth Walker, 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 $25 per group fitness class. 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 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 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 thirty (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 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 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; 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 Ruth Walker 150 Dexter Court 318 South 3rd Street Elgin, IL 60120-5555 West Dundee, IL 60118 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 VBy / � �• B4PIi ! Director of Parks and Recreation Rut Walker Attest: City Clerk F:\Legal Dept\Agreement\PSA-DRAFT FORM-CENTRE INSTRUCTORS-MRG.doc EXHIBIT B ACTIVITY PLAN TO BE PROVIDED Group Fitness classes taught will include any one or more of the following exercise components : warm-up, aerobic activity, anaerobic activity, cool down, stretching. 2009 Accounts Payable Schedule--Fitness Paperwork to Purchasing By Payout Date December 3, 2008 December 19, 2008 December 17, 2008 January 2, 2009 December 30, 2008 January 16, 2009 January 14, 2009 January 30, 2009 January 28, 2009 February 13, 2009 February 11 , 2009 February 27, 2009 February 25, 2009 March 13, 2009 March 11 , 2009 March 27, 2009 March 25, 2009 April 10, 2009 'April 8, 2009 lApril 24, 200a April 22, 2009 May 8, 2009 May 6, 2009 May 22, 2009 Ma y 20, 2009 June 5, 2009 June 3, 2008 June 19, 2009 June 17, 2009 July 3, 2009 July 1 , 2009 July 17, 2009 July 15, 2009 July 31 , 2009 July 29, 2009 August 14, 2009 August 12, 2009 August 28, 2009 August 26, 2009 September 11 , 2009 September 9, 2009 September 25, 2009 September 23, 2009 October 9, 2009 October 7, 2009 October 23, 2009 October 21 , 2009 November 6, 2009 November 4, 2009 November 20, 2009 November 18, 2009 December 4, 2009 December 2, 2009 December 18, 2009 December 16, 2009 January 1 , 2010 ,AcoRpR, CERTIFICATE OF INSURANCE ISSUE DATE IMMiDD!YY) 10-01-2008 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS Markel Insurance Company NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, P.O. Box 3870 EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Glen Allen, VA 23058-3870 COMPANIES AFFORDING COVERAGE COMPANY CODE SUB-CODE LETTER A MARKEL INSURANCE COMPANY COMPANY INSURED LETTER B Ruth Walker COMPANY 31 8 S. 3rd Street LETTER C West Dundee, IL 60118 COMPANY D LETTER COMPANY E LETTER COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY DAID CLAIMS. CO POLICY EFFECTIVE POLICY EXPIRATION LTR TYPE OF INSURANCE POLICY NUMBER LIMITS DATE(MM/DD/YY) DATE(MM/DD/YY) A GENERAL LIABILITY GENERAL AGGREGATE S 1,500,000 X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMP/OPS AGGREGATE $ 500,000 CLAIMS MADE X OCCUR. 3602 HF306602-1 01-01-2009 01-01-2010 PERSONAL&ADVERTISING INJURY S 500,000_ OWNERS&CONTRACTOR'S PROT. EACH OCCURRENCE $ 500,000 FIRE DAMAGE(Any one fire) $ 100,000 MEDICAL EXPENSE(Any one person) $ 5,000 AUTOMOBILE LIABILITY COMBINED SINGLE S ANY AUTO LIMIT ALL OWNED AUTOS BODILY INJURY SCHEDULED AUTOS IPer Person) HIRED AUTOS BODILY INJURY S NON-OWNED AUTOS IPer accident) GARAGE LIABILITY PROPERTY DAMAGE S EXCESS LIABILITY EACH OCCURRENCE UMBRELLA FORM AGGREGATE $ OTHER THAN UMBRELLA FORM STATUTORY LIMITS WORKER'S COMPENSATION EACH ACCIDENT $ AND DISEASE-POLICY LIMIT $ EMPLOYERS'LIABILITY DISEASE-EACH EMPLOYEE $ OTHER DESCRIPTION OF OPERATIONS/LOCATIONS/VEHICLES/SPECIAL ITEMS Certificate holder only. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO The Centre Of Elgin MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION 100 Symphoney Way OR LIABILITY OF ANY KIND UPON THE COMPANY, ITS AGENTS OR Elgin, IL 60120 REPRESENTATIVES. /4224e, AUTHORIZED REPRESENTATIVE Bruce A. Kay PAR ACORD 25-S17/90) lc) CORD CORPORATION 1990