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HomeMy WebLinkAbout12-22 (2) r Resolution No. 12-22 RESOLUTION AUTHORIZING EXECUTION OF A PURCHASE OF SERVICE AGREEMENT WITH KATHRYN BRUNO FOR GROUP FITNESS INSTRUCTION AND CLASSES BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9)the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT FURTHER RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS,that Sean R. Stegall,City Manager,be and is hereby authorized and directed to execute a Purchase of Service Agreement on behalf of the City of Elgin with Kathryn Bruno for group fitness instruction and classes at The Centre from January 1,2012 to December 31,2012,a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: February 8, 2012 Adopted: February 8, 2012 Omnibus Vote: Yeas: 6 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk PURCHASE OF SERVICE AGREEMENT THIS AGREEMENT is made and entered into this 8th day of February ,2012, by and between the CITY OF ELGIN,Illinois, a municipal corporation(hereinafter referred to as the "City"), and Kathryn Bruno (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 she 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"Scope of Services for 2012 Purchase of Service Agreement",attached hereto and made a part hereof as Exhibit A. In the event of any conflict between the provisions of this Agreement and the provisions of 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 City's Parks Director 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 City's Parks Director. 4. 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 ceases its services prior to December 31, 2012, 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. 5. The term of this Agreement shall commence January 1 , 2012, and continue through December 31, 2012,unless otherwise terminated as provided for herein. 6. The City shall pay the Service Provider for the Subject Services under this Agreement the amount of$30 per Group Fitness Class, 65%of service fees for Personal Training and 65%of fees for any pre-registered class or session provided by the Service Provider. Notwithstanding anything to the contrary in this Agreement, the total amount to be paid by the City to the Service Provider pursuant to this Agreement shall not exceed the total amount of$20,500. 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 one(1)year after the completion of the Subject Services to be performed pursuant to this Agreement. 7. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. 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. 8. 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, falls 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 money the City has agreed to pay the Service Provider pursuant to this Agreement, 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. The parties hereto further agree that any -2- action by the Service Provider arising out of this Agreement must be filed within one year of the date the alleged cause of action arose or the same will be time barred. The provisions of this paragraph shall survive any expiration, completion and/or termination of this Agreement. 9. 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,and reimbursable expenses actually incurred prior to termination,except that reimbursement shall not in any event exceed the total amount set forth under Paragraph 6 above. 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. 10. 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, attorneys 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 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 paragraph shall survive any expiration, completion and/or termination of this Agreement. 11. 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 obligations assumed by the Service Provider pursuant to this Agreement. Such 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. 12. 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. 13. 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 -3- 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. 14. 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, or rescission of this Agreement by the City at the City's sole discretion, without liability against the City. 15. 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. 16. 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. 17. 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. 18. 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; and -4- , g. protection against retaliation as provided by Section 6-101 of the Human Rights Act. A copy of the policies shall be provided by the Service Provider to the Department of Human Rights upon request(775 ILCS 5/2-105). 19. 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 prior to the entry and execution of this Agreement. 20. 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,plead guilty to or admitted to committing 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. 21. 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 paragraph. 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 paragraph shall survive any expiration, completion and/or termination of this Agreement. 22. 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: -5- As to the City: As to Service Provider: City of Elgin Kathryn Bruno 150 Dexter Court 184 Brittany Trail Elgin, IL 60120-5555 Elgin, IL 60120 Attention: City Parks Director With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin,IL 60120-5555 23. 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 she may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act, as amended (50 ILCS 505/1, et seq.), or the Illinois Interest Act, as amended (815 ILCS 205/1, et seq.)." 24. 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. 25. This Agreement shall be binding on the parties hereto and their respective successors and permitted assigns. This Agreement and the obligations herein may not be assigned by the Service Provider without the express written consent of the City which consent may be withheld at the sole discretion of the City. IN WITNESS WHEREOF, the undersigned have entered into executed this Agreement on the date and year first written above. CITY OF ELGIN: By: AC • ean R. Stegall, 'ty Manag Kathryn runo f:\legal dept\agreement\purchase of service agreement-kathryn bruno-parks&rec.doc -6- • r EXHIBIT A KATHRYN BRUNO SCOPE OF SERVICES FOR 2012 PURCHASE OF SERVICE AGREEMENT DESCRIPTION OF SERVICES TO BE PROVIDED BY SERVICE PROVIDER: 1. Instruct Group Fitness Classes 2. Personal Train pre-paid clients 3. Group Train pre-paid clients DATES AND TIMES OF SERVICES: January 1, 2012—December 31, 2012 Group Fitness Classes and Personal Training sessions will occur during normal business hours of operation,which are Monday through Friday from 5:00 a.m.through 9:00 pm.;Saturday,7:00 a.m. through 5:00 p.m. and Sunday from 8:00 a.m.through 5:00 p.m. The Group Fitness classes will be determined by the Health/Fitness Supervisor. LOCATION OF SERVICES: All of the above services will be rendered in The Centre Of Elgin, 100 Symphony Way, Elgin, Illinois 60120. Any outdoor Group Fitness Classes,Group Training Programs and Personal Training sessions must be authorized by the Fitness Supervisor and/or the Operations Manager. ACTIVITY PLAN Group Fitness classes, Group Training and Personal Training sessions will include any one or more of the following exercise components: warm-up, aerobic activity,anaerobic activity, cool down, stretching. -7-