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HomeMy WebLinkAbout11-16 • Resolution No. 11-16 RESOLUTION AUTHORIZING EXECUTION OF A SERVICE AGREEMENT WITH DIXON DANCE ACADEMY, INC. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN,ILLINOIS,that Sean R. Stegall, City Manager,and Diane Robertson,City Clerk,be and are hereby authorized and directed to execute a service agreement on behalf of the City of Elgin with the Dixon Dance Academy, Inc. to provide dance instruction at The Centre for the year 2011, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: January 26, 2011 Adopted: January 26, 2011 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk SERVICE AGREEMENT THIS AGREEMENT is made and entered into this 26th day of January, 2011, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City") , and Dixon Dance Academy, Inc . , 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. C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 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 amount of 65% of listed Class Resident Fees per person for all classes provided by the Service Provider. 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 C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 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. 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 C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 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 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 . C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 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 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 . C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 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; 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; C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 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 Dixon Dance Academy 150 Dexter Court 777 S. 8th Street Elgin, IL 60120-5555 West Dundee, IL 60118 Attn: Jan Monell Attn: Cathy Dixon 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. C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 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. 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 /1/#4'. 4§4(" By By c ' Sean R. Stegall City Manager Attest : City Clerk C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY SERVICE PROVIDER: 1) Provide instructors and instruction for adult and youth dance classes in the areas of - Creative Dance, Small Fry Combo, Hip Hop, Ballet, Jazz, Tap. 2) Work cooperatively with the Program Supervisor in management of participants and instructors . 3) Provide 1-2 staff to assist photographers on picture day. 4) Arrange Dress Rehearsal schedule and Dance Recital Performance schedule . 5) Choreograph, direct and manage the Dance Recital performance and rehearsal . 6) Design Recital Program. 7) Manage, direct and oversee the Dress Rehearsal and Recital operation. 8) Measure participants; collect fees, select, and order recital costumes . DESCRIPTION OF SERVICES TO BE PROVIDED BY CITY OF ELGIN: 1) Program space for dance programs . 2) Registration, fee collection, refund services and class list maintenance. 3) Print and reproduction of Dance Recital Program. 4) Contracting of a photographer and videographer for student and group photos and recital performances . 5) Program space for picture day and recital program design. 6) Use of Hemmens Cultural Center for Dress Rehearsal and Recital performances . 7) Any revenue collected through recital ticket sales from the Dance Recital shall be used to: a. Reimburse Hemmens Cultural Center for any staff, equipment and box office fees and costs . b. Reimburse the City of Elgin for staff used for Will Call, Ushers and program printing. c . Reimburse Dixon Dance Academy for documented expenses incurred that was the direct result of the Dress Rehearsal and Recital performances . d. Any remaining revenue that may exist after expenses have been paid shall be kept by City of Elgin as program revenue . C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx DATES AND TIMES OF SERVICES: January - December 2011 Dance Recital June 23 , 2011 . LOCATION OF SERVICES : The Centre of Elgin 100 Symphony Way Elgin, IL 60120 C:\Documents And Settings\Monell_J\Local Settings\Temporary Internet Files\Content.Outlook\HC25JOEU\PR Dixon Dance Academy Service Agreement Attachment A.Docx 01/10/2011 00:40 18474266241 STATE FARM PAGE 02/02 • CERTIFICATE OF INSURANCE This certifies that ® STATE FARM FIRE AND CASUALTY COMPANY, Bloomington, Illinois ❑ STATE FARM GENERAL INSURANCE COMPANY, Bloomington, Illinois O STATE FARM FIRE AND CASUALTY COMPANY, Scarborough,Ontario 0 STATE FARM FLORIDA INSURANCE COMPANY,Winter Haven, Florida ❑ STATE FARM LLOYDS,Dallas,Texas insures the following policyholder for the coverages indicated below; Name of policyholder DIXON, CATEI)J1;EN DBA DIXON DANCE ACADEMY — Address of policyholder 777 S 8TH ST NEST DUNDES IL 60118--2106 Location of operations Same Description of operations Dance Instruction ---- liability .--- The hown. The insurance policies listed below policyholder for the icy periods s described is subject to all the terms exclusions,and conditions o hoepolciesThe limits of shown may hvbeeeneduced by any paid claims POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE Effective Date Expiration Date (at beginning of policy period) 01/09/11 01/09/3,2 BODILY INJURY AND 93-OF-"17.22�6 Comprehensive Business Liability PROPERTY DAMAGE This insurance includes: El Products-Completed Operations 0 Contractual Liability 0 Underground Hazard Coverage Each Occurrence $ 1,000,000 ® Personal Injury El Advertising Injury General Aggregate $z,000,000 ❑Explosion Hazard Coverage LI Collapse Hazard Coverage Products-Completed $2,000,000 O Operations Aggregate ❑ , ---- POLICY PERIOD BODILY INJURY AND PROPERTY DAMAGE EXCESS LIABILITY Effective Date Expiration Date_ (Combined Single Limit) [I Umbrella a Each Occurrence $ ❑Other Aggregate $ —�--~ Part 1 STATUTORY Part 2 BODILY INJURY 93-•S3-L720-8 Workers'Compensation 10/18/10 10/18/17 Each Accident $ 100,000 and Employers Liability Disease Each Employee $1.00,000 Disease-Policy Limit $ 500,000 POLICY PERIOD LIMITS OF LIABILITY POLICY NUMBER TYPE OF INSURANCE Effective Date a ', Expiration Date (at beginning of policy period) THE CERTIFICATE OF INSURANCE IS NOT A CONTRACT OF INSURANCE AND NEITHER AFFIRMATIVELY NOR NEGATIVELY AMENDS,EXTENDS OR ALTERS THE COVERAGE APPROVED BY ANY POLICY DEC If IBEDof o HEREIN. descr bed policies are canceled before Listed as additional insured. its expiration date, State Farm will try to mall a written notice to the certificate holder 30 days before cancellation. If however, we fail to mail such notice, Name and Address of Certificate Holder no obligation or liability will be imposed on State Far oor its agents,or representatives. city of Ei.g:i.n 7r c 0/ ,s'd Signature of Authorized Representative Agent/Staff _ 01/09/2011 Title Date Agent's Code Stamp AFO Code 394 6 558-994 a.3 04.1909 Printed In U.S.A. Report to Mayor & Members of City Council E LG I N THE CITY IN THE SUBURBS- MEETING DATE: January 12, 2011 INITIATIVE E: Service Agreement with Dixon Dance Academy Contractor ICOMMUNITY GOAL • Recreational, leisure, and cultural opportunities for all citizens OBJECTIVE • Approving the service agreement with Dixon Dance Academy for 2011 PURPOSE • Providing high-quality dance classes for Elgin residents RECOMMENDATION • Approve service agreement with Dixon Dance Academy to provide dance instruction for 2011 at The Centre in the amount of$32,126 BACKGROUND The Centre currently has a yearly independent contractor service agreement with Dixon Dance Academy. Dixon Dance has been the service provider for dance instruction at The Centre since opening in November 2002. Dixon Dance provides class instruction in ballet, tap, jazz and hip hop for participants ages three through adult. As well as instruction, Dixon Dance will provide direction and chorography of the annual dance recital held at Hemmens Cultural Center. Dixon Dance currently instructs 70 classes per year serving about 620 students. Due to the fact that their compensation may exceed the $20,000 procurement threshold, city council approval is being sought to enter into this agreement. OPERATIONAL ANALYSIS The contractual agreement proposed with Dixon Dance Academy provides a cost effective partnership with a private sector business who is an expert in the field of dance instruction. The instruction provided is at a high standard from experienced instructors with flexible schedules, which is a benefit to the customers at The Centre. Dixon Dance Academy will be paid a certain dollar amount per participant per class taught. Dixon Dance Academy will receive 65 percent of fees per participant per class. The city will receive 35 percent of the fees collected per participant per class. During the term of the agreement, Dixon Dance Academy must maintain insurance coverage of $1 millon per occurrence for bodily injury and $1 million per occurrence for property damage and name the city as an additional insured. Copies of the service agreement, which have been drafted by the Legal Department, are attached. INTERESTED PERSONS CONTACTED Dixon Dance Academy has been notified and they will have to sign the attached service agreement. FINANCIAL ANALYSIS It is estimated that total revenues of $49,425 will be received from individuals registering for dance instructional classes provided by this contractor. The estimated service fee to the contractor will be $32,130 leaving the city with net revenues of $17,295. The net revenues to the city will offset various program costs including administrative salaries, marketing efforts and facility maintenance. BUDGET IMPACT FUND(S) ACCOUNT(S) PROJECT#(S) AMOUNT AMOUNT BUDGETED AVAILABLE Parks& 296-5053-762.45-99 AS0033 $30,000 $30,000 Recreation 296-5056-762.45-99 PS0035 $37,820 $37,820 Fund 296-5057-762.45-99 YT0040 $36,990 $36,990 LEGAL IMPACT None. ALTERNATIVE COURSES OF ACTION The city council may choose not to approve the contract for Dixon Dance Academy. NEXT STEPS 1. Sign the attached contract so that a purchase order can be established for Dixon Dance Academy Prepared by: Amy Knorek, Associate Centre Manager—Customer Service Reviewed by: Randy Reopelle, Parks and Recreation Director Reviewed by: Colleen Lavery, Chief Financial Officer Reviewed by: William A. Cogley, Corporation Counsel/Chief Development Officer Final Review by: Richard G. Kozal, Assistant City Manager/Chief Operating Officer Approved by: 1/-7Ad ZG ---__- Sea R. Stegall, City Manager ATTACHMENTS A: Service Agreement SERVICE AGREEMENT THIS AGREEMENT is made and entered into this day of January, 2011, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City") , and Dixon Dance Academy, Inc. , 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 G:\City Wide Shared\COW Memos\COW Memos 2011\O1 January 12\P&R Dixon Dance Academy Service Agreement Attachment A.Docx 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 amount of 65% of listed Class Resident Fees per person for all classes provided by the Service Provider . 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 . G:\City Wide Shared\COW Memos\COW Memos 2011\O1 January 12\P&R Dixon Dance Academy Service Agreement Attachment A. Docx 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. 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 . G:\City Wide Shared\COW Memos\COW Memos 2011\O1 January 12\P&R Dixon Dance Academy Service Agreement Attachment A.Docx 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 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 G:\City Wide Shared\COW Memos\COW Memos 2011\O1 January 12\P&R Dixon Dance Academy Service Agreement Attachment A.Docx 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 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 G:\City Wide Shared\COW Memos\COW Memos 2011\01 January 12\P&R Dixon Dance Academy Service Agreement Attachment A.Docx 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; 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 . G:\City Wide Shared\COW Memos\COW Memos 2011\01 January 12\P&R Dixon Dance Academy Service Agreement Attachment A.Docx 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 Dixon Dance Academy 150 Dexter Court 777 S . 8th Street Elgin, IL 60120-5555 West Dundee, IL 60118 Attn: Jan Monell Attn: Cathy Dixon 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 . 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, G:\City Wide Shared\COW Memos\COW Memos 2011\O1 January 12\P&R Dixon Dance Academy Service Agreement Attachment A. Docx 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 . 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 Richard G. Kozal Assistant City Manager Attest : City Clerk G:\City Wide Shared\COW Memos\COW Memos 2011\O1 January 12\P&R Dixon Dance Academy Service Agreement Attachment A.Docx EXHIBIT A DESCRIPTION OF SERVICES TO BE PROVIDED BY SERVICE PROVIDER: 1) Provide instructors and instruction for adult and youth dance classes in the areas of - Creative Dance, Small Fry Combo, Hip Hop, Ballet, Jazz, Tap. 2) Work cooperatively with the Program Supervisor in management of participants and instructors . 3) Provide 1-2 staff to assist photographers on picture day. 4) Arrange Dress Rehearsal schedule and Dance Recital Performance schedule . 5) Choreograph, direct and manage the Dance Recital performance and rehearsal . 6) Design Recital Program. 7) Manage, direct and oversee the Dress Rehearsal and Recital operation . 8) Measure participants; collect fees, select, and order recital costumes . DESCRIPTION OF SERVICES TO BE PROVIDED BY CITY OF ELGIN: 1) Program space for dance programs . 2) Registration, fee collection, refund services and class list maintenance. 3) Print and reproduction of Dance Recital Program. 4) Contracting of a photographer and videographer for student and group photos and recital performances . 5) Program space for picture day and recital program design. 6) Use of Hemmens Cultural Center for Dress Rehearsal and Recital performances . 7) Any revenue collected through recital ticket sales from the Dance Recital shall be used to : a. Reimburse Hemmens Cultural Center for any staff, equipment and box office fees and costs . b. Reimburse the City of Elgin for staff used for Will Call, Ushers and program printing. c. Reimburse Dixon Dance Academy for documented expenses incurred that was the direct result of the Dress Rehearsal and Recital performances . d. Any remaining revenue that may exist after expenses have been paid shall be kept by City of Elgin as program revenue . G:\City Wide Shared\COW Memos\COW Memos 2011\O1 January 12\P&R Dixon Dance Academy Service Agreement Attachment A. Docx DATES AND TIMES OF SERVICES: January - December 2011 Dance Recital June 23, 2011 . LOCATION OF SERVICES : The Centre of Elgin 100 Symphony Way Elgin, IL 60120 G:\City Wide Shared\COW Memos\COW Memos 2011\01 January 12\P&R Dixon Dance Academy Service Agreement Attachment A.Docx ELGIN THE CITY IN THE SUBURBS DATE: February 8, 2011 TO: Amy Knorek, The Centre Associate Manager of Customer Service FROM: Jennifer Quinton, Deputy City Clerk SUBJECT: Resolution No. 11-16, Adopted at the January 26, 2011, Council Meeting Enclosed you will find the agreement listed below. Please distribute this agreement to the other party and keep a copy for your records if you wish. If you have any questions please feel free to contact our office 847-931-5660 and we will do our best to assist you. Thank you. • Service Agreement with Dixon Dance Academy, Inc.