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HomeMy WebLinkAbout11-43 • Resolution No. 11-43 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE OF SERVICE AGREEMENT WITH THE BOYS AND GIRLS CLUB OF ELGIN, 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 Purchase of Service Agreement on behalf of the City of Elgin with the Boys and Girls Club of Elgin, Inc. for youth programs, a copy of which is attached hereto and made a part hereof by reference. s/Ed Schock Ed Schock, Mayor Presented: March 9, 2011 Adopted: March 9, 2011 Omnibus Vote: Yeas: 7 Nays: 0 Attest: s/Diane Robertson Diane Robertson, City Clerk PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this 9thday of March 2011,by and between the CITY OF ELGIN, Illinois, a municipal corporation(hereinafter referred to as the "City"), and the Boys and Girls Club of Elgin, Inc., a not-for-profit 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 services as described in this Agreement; 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Service Provider shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Boys and Girls Club of Elgin - Scope of Services 2011 Purchase of Service Agreement,"attached hereto and made a part hereof as Exhibit A(such services,including the terms,conditions,dates and times,are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this Agreement and the provisions in Exhibit A, the provisions of this Agreement shall control. 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 that the Subject Services set forth in Exhibit A are integral parts of this Agreement and may not be modified,amended or altered, except by a signed, written amendment to this Agreement, agreed to and executed by both parties hereto. 2. The Service Provider shall address all inquiries and requests made pursuant to this Agreement to the Assistant City Manager of the City or his designee. 3. In connection with any Subject Services to be performed on other than City-owned or controlled 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 Assistant City Manager of the City. 4. The City shall pay the Service Provider for the Subject Services under this agreement the total amount of One Hundred Nineteen Thousand Dollars($119,000). Such payment by the City shall be made directly to the Elgin State Bank and shall be applied solely to principal and interest on bonds issued by the Service Provider for the construction of Service Provider's facility at the location commonly known as 355 Dundee Avenue, Elgin, Illinois. 5. The Service Provider shall complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records,reports and forms relating to the Subject Services as requested by the City. Without limiting the foregoing, the parties further agree as follows: a. The Service Provider shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this Agreement during the term of this Agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. b. The Service Provider shall provide written performance reports detailing the disbursements of the monies to be paid by the City to the Service Provider pursuant to this Agreement. The reports shall be provided to the City quarterly on March 31, 2011; June 30, 2011; September 30, 2011; and December 31, 2011. c. The City shall be entitled to inspect any and all accounting records of the Service Provider relating to the use of any funds paid by the City to the Service Provider pursuant to this Agreement, upon seventy-two (72)hours advance notice from the City to the Service Provider. d. The Service Provider shall have an audit performed, at Service Providers sole expense,on its financial statements for the year ending December 31,2010. The audit shall be performed by an independent certified public accountant recognized in good standing by the American Institute of Certified Public Accountants and licensed in the State of Illinois. The Service Provider shall provide the City with two copies of the said audited financial statement along with the management letter and any other correspondence related to internal control matters on or before July 15,2011. These statements shall be submitted to the Assistant City Manager at City Hall, 150 Dexter Court, Elgin, Illinois 60120-5555. 6. In the event this Agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Service Provider -2- ceases its operations prior to December 31,2011,the Service Provider shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 7. The City shall be recognized as a sponsor of the Service Provider and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Service Provider's organization,press releases,radio advertising,web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Service Provider shall be used for this purpose. 8. In all printed materials in which a City seal or logo is deemed appropriate,approval by the Public Information Officer of the City is required prior to printing. 9. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2011,unless otherwise terminated as provided for herein. 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, except as specifically provided for herein. 11. If the Service Provider violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default, and the City shall have the right to seek administrative,contractual,legal or equitable remedies as may be suitable to the violation or breach; and, in addition, if the Service Provider by reason of any default, fails to within fifteen (15) days after notice thereof by the City to comply with the conditions of the Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement,such violation or breach shall be deemed to constitute a default,and in the event the City fails to within fifteen(15) days after notice thereof by the Service Provider to comply with the conditions of this Agreement, the Service Provider as its sole and exclusive remedy may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement,with the sole exception of the monies the City has agreed to pay the Service Provider pursuant to Section 4 hereof, no action shall be commenced by the Service Provider, any related persons or entities, and/or any of their successors and/or assigns,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 the Service Provider interest at the rate of nine percent (9%) per annum and reasonable attorney's fees. The -3- provisions of this section shall survive any expiration, completion and/or termination of this Agreement. 12. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this Agreement is so terminated, the Service Provider shall be paid for services actually performed. Additionally, in the event this Agreement is so terminated,the Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 13. To the fullest extent permitted by law,Service Provider shall 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 of agents of the Service Provider arising out of the performance of this Agreement and/or the Subject Services. In the event of anyaction against the City, its officers, employees, J gagents, 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 section shall survive any expiration, completion and/or termination of this Agreement. 14. The Service Provider shall provide,pay for and maintain in effect,during the term of this Agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than $500,000 per occurrence for damages to persons or property. 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. At the request of the City the Service Provider shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 15. 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. 16. 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. 17. 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 -4- considered a violation of a material provision of this Agreement and shall be grounds for cancellation,termination or suspension,in whole or in part, or rescission of this Agreement by the City at the City's sole discretion, without liability against the City. 18. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason,the remainder of this Agreement shall remain in full force and effect. 19. 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. 20. 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. 21. 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. 22. As a condition precedent 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). -5- 23. As a condition precedent of this Agreement,the Service Provider shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Act at 820 ILCS 265/1, et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry and execution of this Agreement. 24. Service Provider hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement,and any and all such rights to interest to which it may otherwise be entitled pursuant to law,including,but not limited to,the Local Government Prompt Payment Act,as amended(50ILCS 505/1,et seq.),or the Illinois Interest Act,as amended(815 ILCS 205/1,et seq.). 25. Service Provider shall not be entitled to,and hereby waives,any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys,boards and commissions of any nature whatsoever and in whatsoever forum after two (2)years front the date of this Agreement. 26. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement 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, the Service Provider hereby certifies,represents and warrants to the City that all of 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 pursuant to this Agreement. City shall have the right to audit any records in the possession or control of the Service Provider to determine the 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 City's relevant records at no cost to the City. Service Provider shall pay any and all costs associated with any such audit. The provisions of this section shall survive any expiration, completion and/or termination of this Agreement. 27. 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 Boys and Girls Club of Elgin 150 Dexter Court PO Box 416 Elgin, IL 60120-5555 Attention: Rose Reinert Attention: Sean Stegall Executive Director City Manager -6- • With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 28. This Agreement is and shall be deemed and construed 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. 29. 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 g g the date and year first written above. CITY OF ELGIN, a municipal (SERVICE PROVIDER) corporation Bylageta j4.5.41/ By: City Manager Attest: City Clerk f:\legal dept\agreement\purchase of service agreement form clean.doc -7- EXHIBIT A Boys and Girls Club of Elgin—Scope of Services 2011 Purchase of Service Agreement Programming: The Boys & Girls Club of Elgin shall inspire all young people, especially those that need them most, to reach their full potential as productive, caring,responsible citizens through outreach efforts and programs targeted to provide a safe place for children to learn and grow, to provide ongoing relationships with caring, adult professionals, to offer life-enhancing programs and character development experiences, and to create hope and opportunity in our members' lives. 1. Youth development services provided under this purchase of service agreement include the following: after-school programming for children between 5-and 18-years-old(see paragraph two for core program areas); community outreach for membership purposes; and family nights focused on educational opportunities in areas identified in the community needs assessment. 2. The Boys and Girls Club of Elgin shall offer programs under the following core program areas:Education&Career Development;Health and Life Skills;Character Leadership Development; The Arts; and Sports,Fitness and Recreation. Other: The Boys and Girls Club of Elgin shall provide one table to their annual dinner/event for City officials to attend. -8- f I�) Report to Mayor & Members of City Council E LG I N THE CITY IN THE SUBURBS MEETING DATE: February 23, 2011 INITIATIVE G: Purchase of Service Agreement with Boys and Girls Club of Elgin COMMUNITY GOAL • Recreational, leisure, and cultural opportunities for all citizens OBJECTIVE • Approve the purchase of service agreement with the Boys and Girls Club of Elgin for 2011 PURPOSE ■ Offer financial assistance to the Boys and Girls Club of Elgin allowing them to continue to offer programs for the youth of Elgin RECOMMENDATION • • Approve the purchase of service agreement with the Boys and Girls Club of Elgin to provide financial assistance in 2011 in the amount of$119,000 BACKGROUND The Boys and Girls Club of Elgin (the Club) opened its doors in November of 1993. Annually, the Club provides recreational and educational programs to over 400 Elgin youth and teens, many of whom are at risk. The Club works directly with the Housing Authority of Elgin and the parks and recreation department to offer a variety of programs at their 355 Dundee Avenue site. The Club is predominantly drop-in based, but also offers pre-registration programs. The city's contribution for 2011 to the Club is $119,000, all of which will be used as payment towards annual debt service related to bonds issued for the new clubhouse. During 2010, the Club offered the following programs: Computer literacy, homework assistance, choir, arts and crafts, Junior Leaders Program, Housing Authority of Elgin Outreach, Boy Scout activities, trip to Magic Waters Theme Park, participation in the Chicago Bulls Gatorade Basketball Clinic, NBA 2-ball competition, teen pool parties, teen Valentine's dance, 3- on-3 basketball, summer swimming trips to Lords Park pool every Wednesday and a summer block party at the Club. • The Club has met all the requirements of the 2009 Purchase of Service Agreement. OPERATIONAL ANALYSIS For this purchase of service agreement, the city will pay $119,000 directly to the bank with direction to apply the funds to the Club's bond and interest payment for the year 2011. INTERESTED PERSONS CONTACTED Boys and Girls Club of Elgin FINANCIAL ANALYSIS The Club provides quality programs for the clients they serve. Their bond and interest payment for 2011 is $142,820.88. The city's contribution of$119,000 towards this payment will allow the Club to continue offering a variety of programs. BUDGET IMPACT FUND(S) ACCOUNT(S) PROJECT#(S) AMOUNT AMOUNT BUDGETED AVAILABLE Riverboat 275-0000-791.80-30 n/a $119,000 $119,000 LEGAL IMPACT None. ALTERNATIVE COURSES OF ACTION The city council could choose not to approve the purchase of service agreement with the Boys and Girls Club of Elgin. NEXT STEPS 1. Have agreements executed 2. Establish purchase order and make payment directly to bank Prepared by: Maria Cumpata, Recreation and Facilities Superintendent 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: Sea R. Stegall, City Ma er ATTACHMENTS A: Purchase of Service Agreement JIB► PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this day of , 2011, by and between the CITY OF ELGIN, Illinois, a municipal corporation (hereinafter referred to as the "City"), and the Boys and Girls Club of Elgin, Inc., a not-for-profit 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 services as described in this Agreement; 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 mutually acknowledged,the parties hereto hereby agree as follows: 1. The Service Provider shall provide all of the services pursuant to the terms and conditions and on the dates and times as described in the document entitled Boys and Girls Club of Elgin - Scope of Services 2011 Purchase of Service Agreement," attached hereto and made a part hereof as Exhibit A(such services,including the terms,conditions,dates and times, are hereinafter referred to as the "Subject Services"). In the event of any conflict between the provisions of this Agreement and the provisions in Exhibit A, the provisions of this Agreement shall control. 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 that the Subject Services set forth in Exhibit A are integral parts of this Agreement and may not be modified,amended or altered, except by a signed, written amendment to this Agreement, agreed to and executed by both parties hereto. 2. The Service Provider shall address all inquiries and requests made pursuant to this Agreement to the Assistant City Manager of the City or his designee. 3. In connection with any Subject Services to be performed on other than City-owned or controlled 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 Assistant City Manager of the City. 4. The City shall pay the Service Provider for the Subject Services under this agreement the total amount of One Hundred Nineteen Thousand Dollars($119,000).Such payment by the City shall be made directly to the Elgin State Bank and shall be applied solely to principal and interest on bonds issued by the Service Provider for the construction of Service Provider's facility at the location commonly known as 355 Dundee Avenue, Elgin, Illinois. 5. The Service Provider shall complete, maintain and submit to the Assistant City Manager of the City, or his designee, any and all records,reports and forms relating to the Subject Services as requested by the City. Without limiting the foregoing, the parties further agree as follows: a. The Service Provider shall provide a budget to the City which shall reflect the projected distribution of funds received from the City pursuant to this Agreement during the term of this Agreement. The budget shall be submitted to the Assistant City Manager of the City prior to any payment by the City. b. The Service Provider shall provide written performance reports detailing the disbursements of the monies to be paid by the City to the Service Provider pursuant to this Agreement. The reports shall be provided to the City quarterly on March 31, 2011; June 30, 2011; September 30, 2011; and December 31, 2011. c. The City shall be entitled to inspect any and all accounting records of the Service Provider relating to the use of any funds paid by the City to the Service Provider pursuant to this Agreement, upon seventy-two (72)hours advance notice from the City to the Service Provider. d. The Service Provider shall have an audit performed, at Service Providers sole expense,on its financial statements for the year ending December 31, 2010. The audit shall be performed by an independent certified public accountant recognized in good standing by the American Institute of Certified Public Accountants and licensed in the State of Illinois. The Service Provider shall provide the City with two copies of the said audited financial statement along with the management letter and any other correspondence related to internal control matters on or before July 15, 2011. These statements shall be submitted to the Assistant City Manager at City Hall, 150 Dexter Court, Elgin, Illinois 60120-5555. 6. In the event this Agreement is terminated, or in the event the Subject Services for which the City funds provided herein are to be applied are discontinued, or the Service Provider -2- ceases its operations prior to December 31,2011,the Service Provider shall refund to the City on a prorated per diem basis the funds paid hereunder for the portion of the year remaining after any such termination or for the portion of the year the Subject Services were not conducted. 7. The City shall be recognized as a sponsor of the Service Provider and shall receive the benefits of sponsorship consistent with the level of support provided in this Agreement. At a minimum, the City's support shall be acknowledged on all print materials promoting the Service Provider's organization,press releases,radio advertising,web page information and event program(s) through the following mandatory funding identification statement: "Funding for the organization is provided in part through the City of Elgin". Three samples of this acknowledgement shall be provided to the City. A logo provided by the City to the Service Provider shall be used for this purpose. 8. In all printed materials in which a City seal or logo is deemed appropriate,approval by the Public Information Officer of the City is required prior to printing. 9. The term of this Agreement shall commence from the date of the execution hereof and continue through December 31, 2011, unless otherwise terminated as provided for herein. 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,except as specifically provided for herein. 11. If the Service Provider violates or breaches any term of this Agreement, such violation or breach shall be deemed to constitute a default,and the City shall have the right to seek administrative,contractual,legal or equitable remedies as may be suitable to the violation or breach; and, in addition, if the Service Provider by reason of any default, fails to within fifteen (15) days after notice thereof by the City to comply with the conditions of the Agreement, the City may terminate this Agreement. If the City violates or breaches any term of this Agreement,such violation or breach shall be deemed to constitute a default,and in the event the City fails to within fifteen(15) days after notice thereof by the Service Provider to comply with the conditions of this Agreement, the Service Provider as its sole and exclusive remedy may terminate this Agreement. Notwithstanding anything to the contrary in this Agreement, with the sole exception of the monies the City has agreed to pay the Service Provider pursuant to Section 4 hereof, no action shall be commenced by the Service Provider,any related persons or entities, and/or any of their successors and/or assigns,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 the Service Provider interest at the rate of nine percent (9%)per annum and reasonable attorney's fees. The -3- provisions of this section shall survive any expiration, completion and/or termination of this Agreement. 12. Notwithstanding any other provision hereof,the City may terminate this Agreement at any time upon thirty (30) days prior written notice to the Service Provider. In the event this Agreement is so terminated, the Service Provider shall be paid for services actually performed. Additionally, in the event this Agreement is so terminated, the Service Provider shall immediately cease the expenditure of any funds paid to the Service Provider by the City and shall refund to the City any unearned or unexpended funds. 13. To the fullest extent permitted by law,Service Provider shall 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 of agents of the Service Provider arising out of the performance of this Agreement and/or the Subject Services. 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 section shall survive any expiration, completion and/or termination of this Agreement. 14. The Service Provider shall provide,pay for and maintain in effect,during the term of this Agreement,comprehensive automobile liability insurance covering all owned,non-owned and hired motor vehicles used in connection with the Subject Services with limits of not less than $500,000 per occurrence for damages to persons or property. 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. At the request of the City the Service Provider shall provide to the City certificates of insurance regarding the insurance required in this paragraph. 15. 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. 16. 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. 17. 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 -4- considered a violation of a material provision of this Agreement and shall be grounds for cancellation, termination or suspension, in whole or in part,or rescission of this Agreement by the City at the City's sole discretion, without liability against the City. 18. The terms of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement are deemed to be void or otherwise unenforceable for any reason,the remainder of this Agreement shall remain in full force and effect. 19. 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. 20. 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. 21. 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. 22. As a condition precedent 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). -5- 23. As a condition precedent of this Agreement,the Service Provider shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Act at 820 ILCS 265/1, et seq. A copy of such policy shall be provided to the City's Assistant City Manager prior to the entry and execution of this Agreement. 24. Service Provider hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and any and all such rights to interest to which it may otherwise be entitled pursuant to law,including,but not limited to,the Local Government Prompt Payment Act,as amended(50ILCS 505/1,et seq.),or the Illinois Interest Act,as amended(815 ILCS 205/1,et seq.). 25. Service Provider shall not be entitled to,and hereby waives,any and all rights that it might have to file suit or bring any cause of action or claim for damages against the City of Elgin and/or its affiliates, officers, employees, agents, attorneys, boards and commissions of any nature whatsoever and in whatsoever forum after two (2) years front the date of this Agreement. 26. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement 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, the Service Provider hereby certifies,represents and warrants to the City that all of 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 pursuant to this Agreement. City shall have the right to audit any records in the possession or control of the Service Provider to determine the 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 City's relevant records at no cost to the City. Service Provider shall pay any and all costs associated with any such audit. The provisions of this section shall survive any expiration,completion and/or termination of this Agreement. 27. 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 Boys and Girls Club of Elgin 150 Dexter Court PO Box 416 Elgin, IL 60120-5555 Attention: Rose Reinert Attention: Sean Stegall Executive Director City Manager -6- With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 28. This Agreement is and shall be deemed and construed 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. 29. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. IN WITNESS WHEREOF, the undersigned have entered into executed this Agreement on the date and year first written above. CITY OF ELGIN, a municipal (SERVICE PROVIDER) corporation By: By: City Manager Attest: City Clerk f:Uegal dept\agreement\purchase of service agreement form clean.doc -7- EXHIBIT A Boys and Girls Club of Elgin—Scope of Services 2011 Purchase of Service Agreement Programming: The Boys &Girls Club of Elgin shall inspire all young people, especially those that need them most, to reach their full potential as productive, caring, responsible citizens through outreach efforts and programs targeted to provide a safe place for children to learn and grow,to provide ongoing relationships with caring, adult professionals, to offer life-enhancing programs and character development experiences, and to create hope and opportunity in our members' lives. 1. Youth development services provided under this purchase of service agreement include the following: after-school programming for children between 5- and 18-years-old(see paragraph two for core program areas);community outreach for membership purposes; and family nights focused on educational opportunities in areas identified in the community needs assessment. 2. The Boys and Girls Club of Elgin shall offer programs under the following core program areas:Education&Career Development;Health and Life Skills;Character Leadership Development; The Arts; and Sports, Fitness and Recreation. Other: The Boys and Girls Club of Elgin shall provide one table to their annual dinner/event for City officials to attend. -8-