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HomeMy WebLinkAbout20-88 Resolution No. 20-88 RESOLUTION AUTHORIZING EXECUTION OF A STAFFING AGREEMENT WITH PORTER'S PUB PAYROLL PPP, LLC D/B/A JOHNNY'S SUPPER CLUB FOR TURN GRILLE AND BEVERAGE CART SERVICES FOR THE BOWES CREEK AND THE HIGHLANDS OF ELGIN GOLF COURSES 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 Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute a Staffing Agreement on behalf of the City of Elgin with Porter's Pub Payroll PPP, LLC, d/b/a Johnny's Supper Club, for turn grille and beverage cart services for the Bowes Creek and the Highlands of Elgin Golf Courses, a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: June 24, 2020 Adopted: June 24, 2020 Vote: Yeas: 9 Nays: 0 Attest: s/Kimberly Dewis Kimberly Dewis, City Clerk i STAFFING AGREEMENT This Agreement is made and entered into this 24th day of June, 2020,by and between the City of Elgin, an Illinois municipal corporation (the "City"), and Porter's Pub Payroll PPP; LLC d/b/a Johnny's Supper Club (the "Company"). WHEREAS, the City owns and operates the Bowes Creek Golf Course at 1250 Bowes Creek Boulevard, Elgin, Illinois, 60124 and the Highlands of Elgin Golf Course at 875 Sports Way, Elgin, Illinois, 60123 ("Bowes Creek" and "The Highlands" and collectively the "Golf Courses"); and WHEREAS,the Company and the City have previously entered into an agreement whereby the Company would be operating a restaurant at the Bowes Creek clubhouse facility,which would include Turn Grille and beverage cart services for the Bowes Creek golf course; and WHEREAS,due to the COVID-19 pandemic the Company has been unable to open its full service restaurant operations at the Bowes Creek clubhouse,and it is expected that it will be unable to do so for the remainder of the 2020 golf season; and WHEREAS, due to the COVID-19 pandemic, the operator of the restaurant operations at the Highlands golf course has gone out of business leaving the City without Turn Grille and beverage cart services for the Highlands golf course; and WHEREAS, the City and the Company wish to enter into this Agreement whereby_the Company will provide staffing of the Company's employees at the City's Golf Courses for the operation of the Turn Grille and the beverage cart at each of the City's Golf Courses for the 2026 golf season as further described in this Agreement. NOW, THEREFORE, for and in consideration of the mutual undertakings contained herein, and other good and valuable consideration, the receipt and sufficiently of which is hereby acknowledged, the parties hereto agree as follows: 1. The Company will: A. Recruit, screen, interview and assign its employees ("Assigned Employees") to perform the work described in Exhibit A at the City's turn stand and beverage cart operations at the City's Golf Courses under the City's supervision. B. Pay the Assigned Employees wages and provide them with the benefits that the Company offers to such employees. C. Pay, withhold and transmit payroll taxes;provide unemployment insurance and workers compensation benefits; and handle unemployment and workers compensation claims involving the Assigned Employees. D. Establish a policy for and distribute to the Assigned Employees any tips. E. Require Assigned Employees to sign agreements in the form of Exhibit B acknowledging that they are not entitled to holidays, vacations, disability benefits, insurance, pensions, or retirement plans, or any other benefits offered or provided by the City to City employees. F. Pay for and maintain in full force and effect during the term of this Agreement the various policies of insurance required under Section 14 of the Restaurant Lease and Services Agreement between the City and the Company dated December 4, 2019. 2. The City will: A. Properly supervise the Assigned Employees preforming its work and will be responsible for its business operations, products, services and property. B. Exclude the Assigned Employees from the City's benefit plans,policies,practices, and not make any offer or promise relating to the Assigned Employees compensation or benefits. C. Pay the Company for its performance of providing the Assigned Employees at the rate set forth on Exhibit A. The Company will invoice the City for services provided under this Agreement every two (2)weeks. Payment is due within seven (7) days of receipt of an invoice. invoices will be supported by the pertinent time sheets or other agreed system for documenting time worked by the Assigned Employees. The City's signature or other agreed method of approval of the work time submitted for Assigned Employees certifies that the documented hours are correct and authorizes the Company to bill the City for those hours. If a portion of any invoice is disputed, the City will pay the undisputed portion. 3. Assigned Employees are presumed to be non-exempt from laws requiring premium pay for overtime. The Company will charge the City time and a half for overtime work only when an Assigned Employee's work on an assignment to the City would legally require overtime pay and the City has authorized, directed, or allowed the Assigned Employee to work such overtime. Overtime will only be due and owing if required by law and will be paid at the rate of one hundred and fifty percent (150%)of the regular bill rate. 4. In addition to the bill rate specified in Exhibit A of this Agreement, the City will pay the Company a one-time additional fee of Fourteen Thousand Dollars ($14,000) for the various services to be provided by the Company pursuant to this Agreement. Such amount shall be paid by the City within thirty (30) days of the entry into this Agreement. 5. The term of this Agreement is for the 2020 golf season at the City's Golf Courses and shall begin on May 28, 2020, and shall end on December 1, 2020, or on such other date in 2020 the City's Director of Golf Operations determines to end the 2020 golf season at the City's Golf Courses. This Agreement may also be terminated at any time by the City upon seven (7) days written notice to the Company. 2 6. The services to be provided by the Company to the City pursuant to this Agreement also include the use of the Company's currently issued liquor license for Bowes Creek. The Company agrees to maintain such current liquor license in good standing and dram shop insurance throughout the term of this Agreement. 7. To the fullest extent permitted by law, Company 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 Company in connection herewith, including negligence or omissions or agents of the Company 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. 8. This Agreement shall not be construed so as to create a partnership,joint venture, employment or other agency relationship between the parties hereto. The Company understands and agrees that the relationship of the Company and the Assigned Employees to the City arising out of this Agreement shall be that of an independent contractor. It is expressly agreed and understood that the Company and the Company's officers, employees, Assigned Employees, and agents are not employees of the City and are not entitled to any benefits or insurance provided to employees of the City. 9. If the Company 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 Company 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 Company*to comply with the conditions of this Agreement, the Company 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 Company pursuant to Sections 2C and 4 hereof, no action shall be commenced by the Company, any related persons or entities, and/or any of their successors and/or assigns, against the City for monetary damages. Company hereby further waives any and all claims or rights to interest which it claims it may otherwise be entitled to pursuant to law,including,-but not limited to, the Local Government Prompt Payment Act (50 ILCS 501/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1 , et seq.), as amended. The parties hereto further agree that any action by the Company 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 section shall survive any expiration, completion and/or termination of this Agreement 3 10. 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. 11. 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. 12: 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. 13. This Agreement 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. 14. 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. 15. The Company 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. 16. As a condition precedent of this contract, the Company 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 Company to the Department of Human Rights upon request (775 ILCS 5/2-105). 17. Notwithstanding any other provision in this Agreement, it is expressly agreed and understood that in connection with the performance of this Agreement the Company 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 Company hereby certifies, represents and warrants to the City that all of Company'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. Company 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 Company to determine the Company's compliance with the provisions of this section. in the event the City proceeds with such an audit, the Company shall make available to the City the City's relevant records at no cost to the City. Company 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. 13. 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 the Company: City of Elgin Porter's Pub Payroll PPP, LLC 150 Dexter Court c/o Joe Carlucci, President Elgin, IL 60120-5555 Carlucci Hospitality Attention: Mike Lehman 1250 Bowes Creek Boulevard Director of Golf Operations Elgin, Illinois 60124 With a copy to: William A. Cogley, Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120-5555 19. This Agreement is and shall be deemed and construed to be a joint and collective work product of the City and the Company 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. 5 20. 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 Company without the express written consent of the City which consent may be withheld at the sole discretion of the City. 21. This Agreement may be executed in counterparts,each of which shall be an original and all of which shall constitute one and the same Agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature.of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this Agreement shall be re-executed by the parties in an original form. No party to this Agreement shall raise the use of fax machine or e-mail as a defense to this Agreement and shall forever waive such defense. IN WITNESS WHEREOF, the undersigned have entered into executed this Agreement on the date and year first written above. CITY OF ELGIN: PORTER'S PUB PAYROLL PPP, LLC D/B/A JOHN 'S SUPP UB y: By: Name/pant:. Vb,5aA 4-ie4-cc City Manager Title: O U/X P-4— Attes City Clerk Staffing Agr-Porters Pub-Johnnys Supper Club-6-8-20.docx 6 EXHIBIT A The Assigned Employees will be assigned to perform the duties of an administrative manager, Turn Grille attendant and a beverage cart attendant at the City's Bowes Creek and the Highlands golf courses. The City's golf course operations are seven (7) days a week. The Assigned Employees will _work part=time hours. There is expected to be a part-time schedule for an administrative manager. There is expected to be two (2) part-time shifts each day for Turn Grille attendants at each of the golf courses and one (1) part-time shift per day for a beverage cart attendant at each of the golf courses. The weekly schedule for each of the Assigned Employees will be determined by the City. Job Title or Description Location Hourly Bill Rate Administrative Manager Bowes Creek and The Highlands $15.00 Turn Grille Attendant Bowes Creek $10.00(includes$2.00 from tip pool) Beverage Cart Attendant Bowes Creek $10.00(includes$2.00 from tip pool) Turn Grille Attendant The Highlands $10.00 (includes $2.00 from tip pool) Beverage Cart Attendant The Highlands $10.00(includes $2.00 from tip pool) 7 EXHIBIT B WAIVER FOR ASSIGNED EMPLOYEES Agreement and Waiver In consideration of my assignment to the City of Elgin (the "City") by Porter's Pub Payroll PPP, LLC d/b/a Johnny's Supper Club (the "Company"), I agree that I am solely an employee of the Company for benefits plan purposes and that I am eligible only for such benefits as the Company may offer to me as its employee. I further understand and agree that I am not eligible for or entitled to participate in or make any claim upon any benefit plan, policy, or practice offered by the City, its parents,affiliates, subsidiaries, or successors to any of their direct employees,regardless of the length of my assignment to the City by the Company and regardless of whether I am held to be a common-law employee of the City for any purpose; and therefore, with full knowledge and understanding, I hereby expressly waive any claim or right that I may have, now or in the future, to such benefits and agree not to make any claim for such benefits. EMPLOYEE WITNESS Signature Signature Printed Name Printed Name Date Date 8