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16-0101 Aquatic Safety CONSULTING AGREEMENT FOR PROFESSIONAL AQUATIC SAFETY AND RISK MANAGEMENT SERVICES THIS CONSULTING AGREEMENT FOR PROFESSIONAL AQUATIC SAFETY AND RISK MANAGEMENT SERVICES("Agreement")is hereby made and entered into this 1st day of January,2016,by and between the City of Elgin, Illinois,a municipal corporation[and the client named in the Client Status Notification,located at the address stated on the Client Status Notification(hereinafter referred to as"Client")],and JEFF ELLIS& ASSOCIATES,INC.,a Texas corporation,with corporate offices located at 3506 Spruce Park Circle Kingwood,Harris County,Texas 77345-3033 (hereinafter referred to as"Consultant"). RECITALS: A. WHEREAS,Client owns and operates facilities that provide,amongst other things,aquatic activities;and B. WHEREAS, Consultant is in the business of providing a Lifeguard Training Program, Comprehensive Aquatic Safety Program and Services related to aquatic activities;and C. WHEREAS,Client desires Consultant to provide the aforementioned services to Client. NOW, THEREFORE, for and in consideration of the mutual promises and covenants provided for herein, the sufficiency of which is hereby acknowledged,the parties hereto,each intending to be legally bound,do hereby represent,warrant,covenant and agree as follows: 1. RECITALS: The foregoing recitals and Client Status Notification, attached hereto and made a part hereof as Attachment A, are reaffirmed and made an integral part of this Agreement. 2. CONSULTANT SERVICES: The following services shall be performed by Consultant: (A) INTERNATIONAL LIFEGUARD TRAINING PROGRAM•"". Consultant shall provide authorization to Client for purposes of training lifeguards in the International Lifeguard Training Program TM'on an"as needed"basis,which shall include the following: (i) Aquatic rescue technology; (ii) Victim identification training; (iii) Spinal injury management and extrication training for aquatic environments; (iv) Prevention/Scanning technology training; (v) Professional Lifeguard Development training; (vi) Consultant/Nationally Recognized Professional Rescuer CPR Training; (vii) Consultant/Nationally Recognized Lifeguard First Aid Training;and (viii) ILTPT"lifeguard licensing to be provided upon successful completion of training course for lifeguards employed at Client's facility. (B) INTERNATIONAL LIFEGUARD TRAINING PROGRAM III INSTRUCTOR.Consultant shall provide Instructor level training programs for the International Lifeguard Instructor Training Program on an"as needed"basis for Client's employees,which shall include the following: (i) Teaching methodology,which includes communication and presentation techniques; (ii) Rescue skills enhancement training to develop"Instructor level"quality for ILTP M course demonstrations; (iii) ILTPT"course philosophy; (iv) Course management and administrative procedures;and (v) Testing and evaluation procedures. (C) CONSULTANT AQUATIC SAFETY OPERATIONAL AUDITS. Consultant shall perform its aquatic safety operational audits regarding each of the aquatic facilities operated by Client. Each year Consultant shall perform the number of audits stated in the Client Status Notification for the fees specified in the Client Status Notification. These audits shall include videotape and written documentation in support of evaluations rendered to Client regarding aquatic risk management issues and same shall be delivered to Client upon completion of the grading process. (D) ACCIDENT INVESTIGATION AND LITIGATION SUPPORT. In the event of the occurrence of a fatal or catastrophic accident or any other legal proceeding regarding aquatic safety issues arising involving Client,Consultant shall make its records and documentation of the safety and training standards available to Client. Consultant shall cooperate and assist Client with any investigation of any aquatic event involving Client and shall provide accident investigation assistance, if requested and to the extent designated by Client,to Client at no additional fee in the event that Consultant determines, in Consultant's reasonable judgment, that Client followed all of the Consultant and/or International Lifeguard Training program aquatic safety protocols. In the event Consultant determines that Client has not followed all of the Consultant's and/or International Lifeguard Training program aquatic safety protocols, Client shall pay an Additional Consulting Fee at the following rate: $ 175.00 for such accident investigation and/or litigation support services. Notwithstanding anything to the contrary provided in this agreement, Client shall be liable to Consultant for any additional costs and expenses relating to any accident investigation and/or litigation support including, but not limited to, travel, couriers, document reproduction,and telephone services,except as expressly provided for herein." (E) CONSULTANT'S INSURANCE. Consultant shall carry professional liability insurance coverage in the amount of at least two million dollars($2,000,000.00)and Workers Compensation coverage in the amount of one million dollars($1,000,000). 3. CLIENT'S RESPONSIBILITIES: Client's duties and responsibilities under this Agreement are as follows: (A) Adhere to and comply with the International Lifeguard Training Program."'" standard of care for lifeguarding, CPR, safety and emergency procedures; (B) Adhere to and comply with the aquatic risk management guidelines provided in the Comprehensive Aquatic Risk Management Handbook to Client; (C) Respond in writing and implement auditor recommendations in accordance with the aquatic risk management protocols provided by Consultant; (D) Make available all emergency action plans and staff certification and training records to Consultant's auditors within ten (10)days of Client's receipt of a written request for same from Consultant; (E) Adhere to and comply with all aspects of the Comprehensive Aquatic Risk Management Program Handbook provided by Consultant. Client hereby agrees that failure to comply with the aquatic risk management requirements of Consultant as stated in the Comprehensive Aquatic Risk Management Program Handbook shall, in the reasonable judgment of Consultant result in an Event of Default under this Agreement. Client must submit, in writing, any variance request to Consultant to be exempt from any requirements set forth in the Comprehensive Aquatic Risk Management Program Handbook; (F) Consultant's Fees. Client shall pay Consultant the fees set forth in the Client Status Notification in addition to the out-of- pocket costs and expenses stated in this Agreement. Client shall pay the Annual Retainer Fee,Audit Fees, Facility Inspection Fee,all remaining billed hourly fees, lifeguard/lifeguard instructor fees, other fees and/or costs and expenses on a NET 30 basis from date of invoice in accordance with Attachment A. All amounts owed and unpaid 30 days past due beginning will be assessed a$100.00 late fee per invoice per month until paid in full. 4. TERM: The Term of this Agreement shall be as stated in the Client Status Notification,attached hereto and made a part hereof as Attachment A. 5. DEFAULT AND TERMINATION: (A) Events of Default. Each of the following shall be an event of default("Event of Default")under this Agreement for which the defaulting party shall be liable to the non-defaulting party for damages directly arising out of the default(the defaulting party shall not be liable for consequential or incidental damages of any kind whatsoever): (i) if Client fails to make any payment due under this Agreement within thirty(30)days from the date said payment is due; (ii) if either party shall default in the substantial performance of any term,covenant or condition of this Agreement (other than those relating to the payment of monies by Client) and the defaulting party fails to remedy such default within twenty-one (21) days after receipt of written notice from the non-defaulting party of such default, or if such default is of such nature that it cannot be reasonably remedied within said twenty-one(21)days(but is otherwise susceptible to cure),the defaulting party shall not within said twenty-one(21)days advise the non-defaulting party of its intention to institute all steps necessary to remedy such default and thereafter diligently pursue to completion all such steps necessary to remedy such default; (iii) if, in the reasonable judgment of Consultant, Client fails to adhere to and comply with the aquatic risk management requirements identified in the Comprehensive Aquatic Risk Management Program Handbook; (iv) to the extent permitted by law,if either party admits,in writing,that it is generally unable to pay its debts as such become due; (v) to the extent permitted by law,if either party makes an assignment for the benefit of creditors;and (vi) to the extent permitted by law, if either party files a voluntary petition in bankruptcy, voluntarily or involuntarily goes into a liquidation,or a receiver is appointed with respect to substantially all of its assets,and the foregoing are not stayed or dismissed within one hundred and fifty(150)days after such filing or other action. (B) NOTICE OF EVENT OF DEFAULT. The foregoing events of default shall not become effective and actionable (i.e., become an"Event of Default")until the non-defaulting party first sends written notice of same with sufficient detail regarding the nature of the default to the defaulting party and the defaulting party fails to cure said default within twenty-one(21)days from its receipt of said notice subject to the provisions of subparagraph 5(A)(ii)herein. (C) TERMINATION. (i) In the event this Agreement is terminated by operation of law or otherwise prior to the expiration of its Term(as defined in the Client Status Notification), then, in that event, all finished documents, manuals, data, studies, surveys, drawings, maps, models and aquatic safety auditing reports prepared by Consultant under this Agreement shall remain the property of Client and Consultant shall be entitled to receive equitable compensation for any such finished and/or unfinished work and services actually provided up to the date of termination. (ii) At the end of the Term of this Agreement,this Agreement shall terminate and all ILTPTM lifeguard licenses shall remain the property of Consultant and shall be immediately returned by Client to Consultant. 6. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION: (A) CONFIDENTIAL INFORMATION. For purposes of this Agreement, "Confidential Information" shall include all information or material that has or could have commercial value or other utility in the business or prospective business of Consultant. Confidential Information also includes all information of which unauthorized disclosure could be detrimental to the interest of Consultant whether or not such information is identified as Confidential Information by Consultant. By example and without limitation,Confidential Information includes,but is not limited to, any and all information of the following or similar nature,whether or not reduced to writing:the Comprehensive Aquatic Risk Management Program Handbook and documents, client memos, newsletters, manuals, data, studies,surveys, drawings, maps, models, ILTPTM lifeguard licenses and aquatic safety auditing reports prepared by Consultant under this Agreement, and any other information or procedures that are treated as or designated secret or confidential by Consultant. (B) EXCLUSIONS. Confidential Information does not include information that Client can demonstrate: (i) is now, or hereafter becomes, through no act on the part of Client, generally known to the public; (ii) is rightfully obtained by Client from a third party, without breach of any obligation to Consultant;or(iii)is independently developed by Client without use of or reference to the Confidential Information. (C) CONFIDENTIALITY. Client and Client's representatives shall use their best efforts to prevent the disclosure of any of the Confidential Information in any manner whatsoever, except as provided in paragraphs 6(D)and 6(E)of this Agreement, and shall use their best efforts to hold and maintain the Confidential Information in strictest confidence. (D) PERMITTED DISCLOSURES. Client may disclose Consultant's Confidential Information to Client's responsible representatives and employees with a bona fide need to know such Confidential Information to the extent necessary to perform their employment responsibilities. (E) REQUIRED DISCLOSURES. Client may disclose Consultant's Confidential Information if and to the extent that such disclosure furthers the Client's legal defense,or is subject to disclosure under the Illinois Freedom of Information Act,the Illinois Code of Civil Procedure or the Rules of the Illinois Supreme Court(or similar federal statutes and rules), or is required by court order. Where practicable, Client will provide Consultant with notice within 10 days of receipt of request and a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure. (F) USE. Client and Client's representatives shall use the Confidential Information solely for the purpose of operating under this Agreement as it applies to the operation of Client's business and shall use their best efforts to avoid the use of the Confidential Information to the detriment of Consultant. Nothing in this Agreement shall be construed as granting any rights to Client, by license or otherwise,to any of Consultant's Confidential Information. 7. MISCELLANEOUS: (A) GOVERNING LAW AND VENUE. This Agreement shall be governed by, and construed in accordance with, the laws of the State of ILLINOIS, both substantive and remedial, without regard to principals of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Circuit Court of Kane County, Illinois. Consultant hereby consents to the jurisdiction of the Circuit Court of Kane County, Illinois for the resolution of any disputes or the enforcement of any rights arising out of or in connection with this agreement. Consultant agrees that service of process for all jurisdictional purposes shall be effective if delivered pursuant to the notice provisions contained in Section 7(F)provided herein. (B) CAPTIONS AND PARAGRAPHS. Captions and paragraph headings in this Agreement are for convenience and reference only and in no way define,describe,extend or limit the scope or intent of this Agreement nor the intent of any provision hereof. (C) ENTIRE AGREEMENT;AMENDMENT;WAIVER. This Agreement, any documents specifically referenced herein, and any attachments hereto, if any, contain the entire agreement between the parties. There are no promises, agreements, conditions, undertakings, warranties,or representations,oral or written, express or implied, between the parties other than as herein set forth. No amendment or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto. No waiver of any provision of this Agreement shall be effective unless it is in writing, signed by the party against whom it is asserted and any such written waiver shall only be applicable to the specific instance to which it related and shall not be deemed to be a continuing or future waiver. (D) SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable,but that by limiting such provision it would become valid and enforceable,then such provision shall be deemed to be written and enforced as so limited. (E) WAIVER OF JURY TRIAL. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER REGARDING ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF THE PARTIES CREATED HEREBY, AND/OR A CLAIM FOR INJURY OR DAMAGE. CLIENT ACKNOWLEDGES AND AGREES THAT CONSULTANT HAS BEEN MATERIALLY INDUCED TO ENTER INTO THIS AGREEMENT BY THE INCLUSION OF THE PROVISIONS OF THIS PARAGRAPH IN THIS AGREEMENT. (F) NOTICES. All notices,requests,demands,or other communications hereunder shall be in writing and deemed to have been given only if and when hand delivered or sent by nationally recognized overnight courier service(e.g., Federal Express, UPS)to the parties hereto at their respective addresses set forth at the outset of this Agreement or such other address as either party shall designate by notice pursuant to this paragraph. Copies of all notices, requests,demands or other communications hereunder to Consultant shall also be sent to Consultant's counsel: Joel N.Minsker,Esq.,Bloom&Minsker,P.L., 1110 Brickell Avenue,Suite 700,Miami,Florida 33131-3107. (G) CLIENT. The term "Client" shall mean the entity named in this Agreement and shall also include its officers, directors, employees,agents,representatives and the like. (H) INDEPENDENT CONTRACTOR. Consultant, in performing its functions, duties and obligations herein, shall at all times be and act as an independent contractor. Nothing in this Agreement shall be construed as creating a partnership or joint venture between Client and Consultant, or as constituting Consultant as an agent or employee of Client. Client shall have no authority to direct the means or manner by which Consultant performs its obligations pursuant to this agreement. (I) Notwithstanding any other provision of this agreement, it is expressly agreed and understood that in connection with the performance of this Agreement,Consultant 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, Consultant hereby certifies, presents and warrants to the Client that all of the Consultant'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.Consultant 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 this Agreement.The Client shall have the right to audit any records in the possession or control of Consultant to determine Consultant's compliance with the provisions of this section. In the event the Client proceeds with such an audit, Consultant shall make available to the Client Consultant's relevant records at no cost to the Client. IN WITNESS WHEREOF,the parties hereto have duly executed this Agreement as of the day and year last written herein below. CLIENT-City of Elgin CONSULTANT _ C..y of g JEFF ELLIS&ASSOCIATES,INC., a IA T I(i h o S corporation a Texas corporation By: • By: Se tegall,City Manager RICHARD A.CARROLL,Senior Vice President/COO Z�o Date: �J r 2016 Date:January 1,2016 EXECUTION 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.