HomeMy WebLinkAbout09-0801 Dawn Jones ocl- O$0I
(1/06/04)
SERVICE AGREEMENT
THIS AGREEMENT is made and entered into this 1 day of
August, 2009, by and between the CITY OF ELGIN, Illinois, a
municipal corporation (hereinafter referred to as the
"City" ) , and Dawn Jones, 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
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 ILLS 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 Dawn Jones
150 Dexter Court 259 S . Weston AVE.
Elgin, IL 60120-5555 Elgin, IL 60123
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 B
MST. City Manager Ser e Provi er
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 :
Probationary Period: August 1, 2009 — December 31, 2009
Classes 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
American Massage Therapy Association®
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Certificate of Insurance
AMTA Member ID#: 221477 AMTA Member Classification:PROF W
Dawn Marie Jones AMTA Member Effective Date:
259 S Weston 10/01/09 to 09/30/10
Elgin, IL 60123
Administered By: Insurance Company:
Healthcare Providers Service Organization American Casualty Company of Reading,Pennsylvania
Affinity Insurance Services,Inc.
159 East CountyLine Road
Hatboro, PA 19040-1218
Type of Insurance Master Policy Number Limits(per enrolled member)
Professional Liability 0289955556 $2,000,000 each claim/$6,000,000 aggregate
Occurrence Coverage Subject to the Master Policy Aggregate
Admitted Insurance Policy
Coverage is afforded to AMTA Members for a period of 12 months concurrent with the enrolled Member's effective date or
until membership is terminated or expires.If the AMTA Master Policy is non-renewed or cancelled,the AMTA Member's
coverage under this policy will terminate upon the expiration of the AMTA Member Effective Date and will not be renewed.
The Master Policy Aggregate may be reduced by claims paid on behalf of other insureds.
Additional Coverages(included in Professional Liability Limits specified above):
• General Liability
• Products Liability
• Personal Injury Liability
• Good Samaritan Liability
• Malplacement Liability
• Fire&Water Legal Liability(subject to$250,000 sub limit)
Coverage Extensions Coverage Extension Limits
License Protection $10,000 per proceeding/$25,000 aggregate
Defendant Expense Benefit $10,000 aggregate
Deposition Representation $2,500 per deposition/$5,000 aggregate
Assault(excluding Texas) $10,000 per incident/$25,000 aggregate
Medical Payments $2,000 per person/$100,000 aggregate
First Aid $2,500 aggregate
Damage to Property of Others $10,000 aggregate
This material is intended to provide a general overview of the products and services offered.Coverage for enrolled member's business is
limited to claims arising from enrolled member's professional services.Only the policy can provide the actual terms,coverages,amounts,
conditions and exclusions.Please contact HPSO at 1-888-253-1474 directly for a free copy of the complete policy.
S0M0108
®HPSO
AMTA Coverage
Enrolled Members are covered for professional services for which the enrolled member is licensed,certified,
accredited or professionally trained to perform as a massage therapist. If an enrolled member practices in any
jurisdiction which governs massage therapy services,then massage therapy services means those services for
which the enrolled member is licensed,certified, accredited,trained or qualified to perform within the scope of
practice recognized by the governmental regulatory agency responsible for maintaining the standards of the
profession of massage therapy.Professional services also means the enrolled member's massage therapy
services while acting as a member of a formal accreditation,standards review, or similar professional board or
committee, including the directives of such board or committee.
As an AMTA enrolled member covered by our insurance program,enrolled members are responsible for and
expected at all times to be familiar and current with all laws,regulations,etc. in their state of practice that
govern their profession as a massage therapist.
Modality Exclusions
Any acts,errors or omissions involving the activities designated below are excluded. This list is subject to
review and change by AMTA.For the most up-to-date list,go to the Benefits page in the members'section of
the AMTA website: www.amtamassage.org.
Colon hydrotherapy,nutritional or dietary counseling,exercise,yoga,pilates,religious healing,
procedures that use steam or fire,cupping therapy with use of heat,ear candling, saunas,sun tanning
treatments other than tanning lotions or sprays,procedures which penetrate the skin or body cavities
either manually or with other methods of intrusion other than manual soft tissue manipulation of the
oral or nasal cavities.
Diagnosis,prescription,or service in the capacity of any other profession or branch of healthcare or
medicine for which a license to practice is required by law including chiropractic,dentistry,
dermatology,naprapathy,naturopathy,nursing, orthopedics,osteopathy,physical therapy,podiatric,
psychiatry,psychology or psychotherapy.
Additional Information
An AMTA membership card in conjunction with this notice should serve as acceptable evidence of insurance
to anyone requesting proof of your professional liability coverage. If you have any additional questions
concerning the AMTA Professional Liability Insurance Plan,please call our insurance administrator,HPSO,
toll free at 1-888-253-1474. We are dedicated to giving you the best service possible and thank you for the
opportunity to provide this insurance and membership to you. Please also feel free to call AMTA with
questions or comments.
Reporting Claims
Please call HPSO toll free at 1-888-253-1474 for claim reporting procedures or refer to the AMTA Professional
Liability Benefits Guide.
Additional Insured Requests
Please call HPSO toll free at 1-888-253-1474 for additional insured requests.
This program is underwritten by American Casualty Company of Reading,PA a CNA company and is offered through the
Healthcare Providers Service Organization Risk Purchasing Group.This material is intended to provide a general overview
of the products and services offered.Only the policy can provide the actual terms,coverage's,amounts,conditions and
exclusions.Please contact HPSO at 1-888-253-1474 directly for a copy of the complete policy.
Healthcare Providers Service Organization(HPSO)is a division of Affinity Insurance Services,Inc,;in NY and NH,AIS Affinity Insurance
Agency;in MN and OK,AIS Affinity Insurance Agency,Inc;and in CA,AIS Affinity Insurance Agency,Inc.dba Aon Direct Insurance
Administrators License#0795465.
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License Look-up Results http
s://www.idfpr.com/dpr/licenseloolcup/printthispage.asp?&page=
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Illinois Division of Professional Regulation 2:38:34 PM
You requested license number. 227-€a'i092
-- — -._-— r:an Original Current Ever Discpined?
see's Name rDjrCity,State._._, Number I Status
AWN M]ONES I r 227010921 r —ACE TJ( ELGIN,IL 1 09/03/2009 r 12/31/2016 r N _
Page 1
Print this'Us'Ung
9/4/2009 Illinois Division of Professaionel Regulation 2:38:34 PM
You requested license number: 227-c., 22
Liconaee'a Name F OBA'~r
License
AKA Number ( License
Stetus I City,State Original
Dote I Current
Exprtn Ever Disc:_
w-DAWN M]ONES I r 227010921 [_ ACTIVE I ELGIN,IL r- 09/03/2009..._T r 12/31/2010 r...."~ N
Page 1
•
CERTIFICATE OF INSURANCE 9/4/09
* Producer: Affinity Insurance Services, Inc. THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY
159 East County Line Rd. AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER.THIS
Hatboro, PA 19040 CERTIFICATE NOES NOT AMEND,EXTEND,OR ALTER THE COVERAGE
AFFORDED BY THE POLICIES BELOW.
COMPANIES AFFORDING COVERAGE
Insured: American Massage Therapy Association
123 Main Street Company
Evanston, IL 60000 A A. American Casualty Company of Reading,PA
Company
B.
Member: Dawn Marie Jones Company
C.
Company
D.
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF THE INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE 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
PAID CLAIMS.
CO POLICY
LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE EXPIRATION DATE LIMITS
DATE(MM/DD/YYYY) (MM/DDIYYYY)
X GENERAL LIABILITY GENERAL AGGREGATE $6,000,000
COMMERICAL GENERAL LIABILITY PRODUCTS-COMP/OP AGG. $
—
OWNER'S CONT.PROT. EACH OCCURRENCE $2,000,000
X GENERAL LIABILITY' 289955556 10/01/2009 10/01/2010 FIRE DAMAGE(Any one fire) $250,000
•
MED EXP.(Any one person) $
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $
ANY AUTO
ALL OWNED AUTOS BODILY INJURY $
SCHEDULED AUTOS (Per person)
HIRED AUTOS BODILY INJURY $
NON-OWNED AUTOS (Per accident)
PROPERTY DAMAGE $
GARAGE LIABILITY AUTO ONLY-EA ACCIDENT $
ANY AUTO OTHER THAN AUTO ONLY
EACH ACCIDENT$
AGGREGATE $
EXCESS LIABILITY EACH OCCURRENCE'$
RUMBRELLA FORM AGGREGATE $
OTHER THAN UMBRELLA FORM
WORKERS COMPENSATION AND STATUTORY LIMITS
EMPLOYER'S LIABILITY EACH ACCIDENT $
THE PROPIETOR/PARTNERS/ - INCL DISEASE-POLICY LIMIT $
EXECUTIVE/OFFICERS ARE: - EXCL DISEASE-EACH EMPLOYEE $
"General Liability includes:Fire&Water Legal
Liability,Host Liquor Liability and Products Liability.
Description of Operations/LocationsNehicles/Special Items:
The"Certificate Holder"named is considered an additional insured subject to the General Liability and Professional Liability limit of liability shown on the
certificate of insurance,per the terms and conditions stated in the AMTA master policy. In no event is there any coverage provided under this policy for an
occurrence that is the direct liability of the"Certificate Holder".
CERTIFICATE HOLDER CANCELLATION
The City of Elgin SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
Evidence of
Insurance: 150 Dexter Court EXPIRATION DATE THEREOF,THE ISSUING COMPANY WILL ENDEVOR TO MAIL 30
DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,BUT
Elgin, IL 60120
FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY
KIND UPON THE COMPANY,ITS AGENTS OR REPRESENTATIVES.
4(4/
AUTHORIZED REPRESENTATIVE i