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R-1522 - 01/12/2016 - SPORTS CORE - Resolutions RESOLUTION 2016-B&T/P-R-1522 A RESOLUTION APPROVING AND AUTHORIZING THE AWARD OF A CONTRACT TO TO POOL GUARDS, INC. TO PROVIDE AQUATIC SERVICES WHEREAS, in 2006, the Village of Oak Brook ("Village's privatized the facility management, life guarding, pool maintenance, and chemical treatment services for the Sports Core aquatic facility (collectively, "Aquatic Services'); and WHEREAS, in 2014, the Village issued a request for proposals to provide the Village with the Aquatic Services ("RFP')for the 2014, 2015, and 2016 summer season; and WHEREAS, on March 25, 2014, the Village awarded the contract for the 2014 season to Pool Guards, Inc. of Aurora, Illinois ("Pool Guards' to provide the Village Aquatic Services; and WHEREAS, Pool Guards provided the Village satisfactory Aquatic Services in 2014 &2105; and WHEREAS, consistent with the RFP, Village staff recommends that the Village enter a new contract with Pool Guards for Pool Guards to provide the Village Aquatic Services for the 2016 season for an amount not to exceed $118,602.00 ("Agreement']; and WHEREAS, the President and Board of Trustees, being fully advised in the premises, have determined that it is in the best interests of the Village and its residents to approve the Agreement; NOW THEREFORE, BE IT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF OAK BROOK, DU PAGE AND COOK COUNTIES, ILLINOIS as follows: Section 1: Recitals. The foregoing recitals are hereby incorporated into, and made a part of, this Resolution as the findings of the President and Board of Trustees of the Village of Oak Brook. Section 2: Approval of Agreement. The President and Board of Trustees hereby approve the Agreement with Pool Guards in substantially the same form as attached as Exhibit A. Section 3: Authorization and Execution of Agreements. The Village President and Village Clerk shall be, and hereby are, authorized to execute the Agreement between the Village and Pool Guards after receipt of the final Agreement fully executed by Pool Guards. Section 4: Effective Date. This Resolution shall be in full force upon passage and approval in the manner provided by law. [SIGNATURE PAGE FOLLOWS] Resolution 2016-B&T/P-R-1522 Award of Contract to Provide Aquatic Services Page 2 of 3 APPROVED THIS 12th day of January, 2016 r Gopal G. Lalmalani Village President PASSED THIS 12th day of January, 2016 Ayes: Trustee Adler, Baar, Tiesenga, Yusuf Nays: None Absent: Trustee Moy, Trustee Manzo ATTEST: Charlotte K. Pruss Village Clerk '4 3 , Resolution 2016-B&T/P-R-1522 Award of Contract to Provide Aquatic Services Page 3 of 3 Exhibit A VILLAGE OF OAK BROOK PROFESSIONAL SERVICES AGREEMENT FOR POOL MANAGEMENT SERVICES THIS AGREEMENT is dated as of the �day of,,-� , 2016 ("Agreement') and is by and between the VILLAGE OF OAK BROOK, an Illin is municipal corporation ("Village') and the Consultant identified in Subsection 1A below. IN CONSIDERATION OF the recitals and the mutual covenants and agreements set forth in the Agreement, and pursuant to the Village's statutory powers, the parties agree as follows: SECTION 1. CONSULTANT. A. Engagement of Consultant. The Village desires to engage the Consultant identified below to perform to provide all necessary professional services to perform the work in connection with the project identified in this Agreement: Pool Guards, Inc. ("Consultant') 520 N. Oakhurst Drive Aurora, IL 60502 Telephone: (630) 692-1500 Email: ross @spmspools.com B. Project Description. The performance of professional services related to the management of the Village's aquatic center located at 700 Oak Brook Road, Oak Brook, Illinois ("Aquatic Center'), including, but not limited to, staffing, pool cleaning, pool repair, winterization and de-winterization of the Aquatic Center (collectively, "Services', which Services are more fully described in Exhibit A attached hereto and incorporate herein. C. Representations of Consultant. The Consultant will perform the Services. The Consultant represents that it is financially solvent, has the necessary financial resources, and is sufficiently experienced and competent to perform and complete the Services in a manner consistent with the standards of professional practice by recognized firms providing services of a similar nature during the Time of Performance. D. Agreement Amount. The total amount billed by the Consultant for the Services under this Agreement shall not exceed $118,602.00, including reimbursable expenses, unless this Agreement is amended pursuant to Subsection 9A of this Agreement ("Agreement Amount'). SECTION 2. SCOPE OF SERVICES. A. Retention of the Consultant. The Village retains the Consultant as an independent contractor to perform, and the Consultant agrees to perform, the Services. B. Services. The Consultant shall provide the Services pursuant to the terms and conditions of this Agreement. C. Commencement; Time of Performance. The Consultant shall commence the Services on April 15, 2016. ("Commencement Date'). The Consultant shall diligently and Approved as to Form -1- Date: continuously prosecute the Services until their completion, but in no event after October 31, 2016 ("Time of Performance'l. D. Reporting. The Consultant shall regularly report to the Village Manager, or his designee, regarding the progress of the Services during the term of this Agreement. SECTION 3. COMPENSATION AND METHOD OF PAYMENT. A. Agreement Amount. The total amount billed for the Services during the term of this Agreement shall not exceed the amount identified as the Agreement Amount in Subsection 1 D of this Agreement, without the prior express written authorization of the Village. B. Invoices and Payment. The Consultant shall submit invoices to the Village in an approved format for those portions of the Services performed and completed by the Consultant according to the following schedule: Payment Schedule Amount Invoice Date Due Date 1 $39,534 January 15, 2016 February 15, 2016 2 $39,534 April 30, 2016 June 30, 2016 3 $39,534 July 15,2016 August 15, 2016 C. Claim In Addition To Agreement Amount. If the Consultant wishes to make a claim for compensation for the Services in addition to the Agreement Amount as a result of action taken by the Village, the Consultant shall provide written notice to the Village of such claim within 7 days after occurrence of such action as provided by Subsection 9D of this Agreement, and no claim for such additional compensation shall be valid unless made in accordance with this Subsection. Any changes in the Agreement Amount shall be valid only upon written amendment pursuant to Subsection 9A of this Agreement. Regardless of the decision of the Village relative to a claim submitted by the Consultant, the Consultant shall continue to perform and complete the Services under this Agreement as determined by the Village without interruption or delay. D. Taxes, Benefits and Royalties. The Agreement Amount includes all applicable federal, state, and local taxes of every kind and nature applicable to the Services as well as all taxes, contributions, and premiums for unemployment insurance, old age or retirement benefits, pensions, annuities, or similar benefits and all costs, royalties and fees arising from the use on, or the incorporation into, the Services, of patented or copyrighted equipment, materials, supplies, tools, appliances, devices, processes, or inventions. Any claim or right to claim additional compensation by reason of the payment of any such tax, contribution, premium, costs, royalties, or fees is hereby waived and released by Consultant. E. Final Acceptance. The Services, or, if the Services are to be performed in separate phases, each phase of the Services, shall be considered complete on the date of final written acceptance by the Village of the Services or each phase of the Services, as the case may be, which acceptance shall not be unreasonably withheld or delayed. -2- SECTION 4. PERSONNEL; SUBCONTRACTORS. A. Key Project Personnel. The Key Project Personnel identified in Exhibit A, which is attached hereto and incorporated herein, shall be primarily responsible for carrying out the Services on behalf of the Consultant. The Key Project Personnel shall not be changed without the Village's prior written approval. B. Availability of Personnel. The Consultant shall provide all personnel necessary to complete the Services including, without limitation, any Key Project Personnel identified in this Agreement. The Consultant shall notify the Village as soon as practicable prior to terminating the employment of, reassigning, or receiving notice of the resignation of, any Key Project Personnel. The Consultant shall have no claim for damages and shall not bill the Village for additional time and materials charges as the result of any portion of the Services which must be duplicated or redone due to such termination or for any delay or extension of the Time of Performance as a result of any such termination, reassigning, or resignation. C. Approval and Use of Subcontractors. The Consultant shall perform the Services with its own personnel and under the management, supervision, and control of its own organization unless otherwise approved by the Village in writing. All subcontractors and subcontracts used by the Consultant shall be acceptable to, and approved in advance by, the Village. The Village's approval of any subcontractor or subcontract shall not relieve the Consultant of full responsibility and liability for the provision, performance, and completion of the Services as required by the Agreement. All Services performed under any subcontract shall be subject to all of the provisions of this Agreement in the same manner as if performed by employees of the Consultant. For purposes of this Agreement, the term "Consultant" shall be deemed also to refer to all subcontractors of the Consultant, and every subcontract shall include a provision binding the subcontractor to all provisions of this Agreement. D. Removal of Personnel and Subcontractors. If any personnel or subcontractor fails to perform the Services in a manner satisfactory to the Village, the Consultant shall immediately upon notice from the Village remove and replace such personnel or subcontractor. The Consultant shall have no claim for damages, for compensation in excess of the amount contained in this Agreement or for a delay or extension of the Time of Performance as a result of any such removal or replacement. E. Background Check. Consultant shall obtain a consumer report (as that term is defined in the Fair Credit Reporting Act) for each of Consultant's personnel assigned to provide the Services on Village property. The consumer report required in this paragraph shall consist of, at a minimum, a criminal conviction history for at least the seven year period prior to the date of this Agreement. The criminal conviction history shall consist of, at a minimum, a search of the National Sex Offender Public Registry; the sex offender registries for Illinois, Indiana, Iowa and Wisconsin; criminal conviction searches for the states of Illinois, Indiana, Iowa and Wisconsin; and criminal conviction searches for the Illinois counties of DuPage, Cook, Lake, Kane and Will. Consultant shall be solely responsible for (i) making all employment decisions based on the consumer reports it receives; (ii) complying with all applicable laws (including, without limitation, the Fair Credit Reporting Act); and (iii) the costs of obtaining the consumer reports. Notwithstanding the foregoing, Consultant shall not permit any individuals to render the Services on Village property whom are objectively unfit to work in the proximity of individuals younger than eighteen years old. Consultant shall tender to the Village the consumer report of each of Consultant's personnel assigned to provide the Services on Village property at least two business days prior to the individual commencing his/her provision of the Services, and, -3- thereafter, within two business days of being requested by the Village. Consultant shall maintain and retain all consumer reports obtained pursuant to this paragraph throughout the term of this Agreement and for the two year period following the end of the term of this Agreement. The Village shall reimburse Consultant for the costs of conducting the background checks required by this subsection provided that in no event shall the cost of the total reimbursement exceed $1,000.00. SECTION 5. CONFIDENTIAL INFORMATION. A. Confidential Information. The term "Confidential Information" shall mean information in the possession or under the control of the Village relating to: the technical, business or corporate affairs of the Village; Village property; user information, including, without limitation, any information pertaining to usage of the Village's computer system, including and without limitation, any information obtained from server logs or other records of electronic or machine readable form; and the existence of, and terms and conditions of, this Agreement. Confidential Information shall not include information that can be demonstrated: (i) to have been rightfully in the possession of the Consultant from a source other than the Village prior to the time of disclosure of said information to the Consultant under this Agreement ("Time of Disclosure'); (ii) to have been in the public domain prior to the Time of Disclosure; (iii) to have become part of the public domain after the Time of Disclosure by a publication or by any other means except an unauthorized act or omission or breach of this Agreement on the part of the Consultant or the Village; or (iv) to have been supplied to the Consultant after the Time of Disclosure without restriction by a third party who is under no obligation to the Village to maintain such information in confidence. B. No Disclosure of Confidential Information by the Consultant. The Consultant acknowledges that it may, in performing the Services for the Village under this Agreement, have access to or be directly or indirectly exposed to Confidential Information. The Consultant shall hold confidential all Confidential Information and shall not disclose or use such Confidential Information without express prior written consent of the Village. The Consultant shall use reasonable measures at least as strict as those the Consultant uses to protect its own confidential information. Such measures shall include, without limitation, requiring employees and subcontractors of the Consultant to execute a non-disclosure agreement before obtaining access to Confidential Information. SECTION 6. WARRANTY; INDEMNIFICATION; INSURANCE. A. Warranty of Services. The Consultant warrants that the Services shall be performed in accordance with the highest standards of professional practice, care, and diligence practiced by recognized consulting firms in performing services of a similar nature in existence at the Time of Performance. The warranty expressed shall be in addition to any other warranties expressed in this Agreement, or expressed or implied by law, which are hereby reserved unto the Village. B. Indemnification. The Consultant shall, without regard to the availability or unavailability of any insurance, either of the Village or the Consultant, indemnify, save harmless, and defend the Village, and its officials, employees, agents, and attorneys against any and all lawsuits, claims, demands, damages, liabilities, losses, and expenses, including attorneys' fees and administrative expenses, that arise, or may be alleged to have arisen, out of or in connection with, the Consultant's performance of, or failure to perform, the Services or any part thereof, whether or not due or claimed to be due in whole or in part to the active, passive, or -4- concurrent negligence or fault of the Consultant, except to the extent caused by the sole negligence of the Village. C. Insurance. Contemporaneous with the Consultant's execution of this Agreement, the Consultant shall provide certificates and policies of insurance, all with coverages and limits acceptable to the Village, and evidencing at least the minimum insurance coverages and limits as set forth in Exhibit D attached hereto and incorporated herein. For good cause shown, the Village Manager may extend the time for submission of the required policies of insurance upon such terms, and with such assurances of complete and prompt performance, as the Village Manager may impose in the exercise of his sole discretion. Such certificates and policies shall be in a form acceptable to the Village and from companies with a general rating of A minus, and a financial size category of Class X or better, in Best's Insurance Guide. Such insurance policies shall provide that no change, modification in, or cancellation of, any insurance shall become effective until the expiration of 30 days after written notice thereof shall have been given by the insurance company to the Village. The Consultant shall, at all times during the term -of this Agreement, maintain and keep in force, at the Consultant's expense, the insurance coverages provided above, including, without limitation, at all times while correcting any failure to meet the warranty requirements of Subsection 6A, Warranty of Services, of this Agreement. D. No Personal Liability. No elected or appointed official, or employee of the Village shall be personally liable, in law or in contract, to the Consultant as the result of the execution of this Agreement. SECTION 7. RESPONSIBILITIES OF THE VILLAGE. A. Lighting, Heating, Power, Water. The Village shall furnish, at its expense, all lighting, heating, power, hot and cold water, local telephone services (to be turned on by April 15, 2015, pest control, trash and garbage disposal to the Aquatic Center. The Village is responsible for having all utilities turned on and removing trash from curbside.. B. Keys. The Village shall provide to Consultant six sets of keys to the Aquatic Center and all locations in the Aquatic Center during the term if this Agreement. Consultant shall take all steps necessary to insure that the Village's keys are not used for any purpose other than for providing Services, copied, or provided to someone other than a manager of Consultant. Consultant shall, without regard to the availability or unavailability of any insurance, either of the Village or the Consultant, indemnify, save harmless, and defend the Village, and its officials, employees, agents, and attorneys against any and all lawsuits, claims, demands, damages, liabilities, losses, and expenses, including attorneys' fees and administrative expenses, that arise, or may be alleged to have arisen, out of or in connection with, the Village's provision of keys to Consultant pursuant to this Section 7.13, whether or not due or claimed to be due in whole or in part to the active, passive, or concurrent negligence or fault of the Consultant, except to the extent caused by the sole negligence of the Village. C. Pool Rules. The Village shall display pool rules that apply to those who use the Aquatic Center. The Village have the sole right and to adopt pool rules, which rules the Village may change at any time in its sole discretion. The Village shall include the following rule in its pool rules: "FOR PURPOSE OF SUPPORTING NON-SWIMMERS: INNER TUBES, WATER WINGS, AND ALL OTHER FLOTATION -5- DEVICES ARE NOT PERMITTED AT ANY TIME. FOR SAFETY PURPOSES, ONLY A LIFE VEST APPROVED BY THE UNITED STATES COAST GUARD IS TO BE USED. IF A NON-SWIMMER .UNDER THE AGE OF 18 USES SUCH LIFE VEST, A PARENT OR GUARDIAN MUST MAINTAIN DIRECT SUPERVISORY CONTACT WITH THE NON-SWIMMER AT ALL TIMES." SECTION 8. CONSULTANT AGREEMENT GENERAL PROVISIONS. A. Relationship of the Parties. The Consultant shall act as an independent contractor in providing and performing the Services. Nothing in, nor done pursuant to, this Agreement shall be construed (i) to create the relationship of principal and agent, employer and employee, partners, or joint venturers between the Village and Consultant; or (ii) to create any relationship between the Village and any subcontractor of the Consultant. B. Conflict of Interest. The Consultant represents and certifies that, to the best of its knowledge, (i) no Village employee or agent is interested in the business of the Consultant or this Agreement; (ii) as of the date of this Agreement neither the Consultant nor any person employed or associated with the Consultant has any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement; and (iii) neither the Consultant nor any person employed by or associated with the Consultant will at any time during the term of this Agreement obtain or acquire any interest that would conflict in any manner or degree with the performance of the obligations under this Agreement. C. No Collusion. The Consultant represents and certifies that the Consultant is not barred from contracting with a unit of state or local government as a result of (i) a delinquency in the payment of any tax administered by the Illinois Department of Revenue unless the Consultant is contesting, in accordance with the procedures established by the appropriate revenue act, its liability for the tax or the amount of the tax, as set forth in Section 11-42.1-1 et seq. of the Illinois Municipal Code, 65 ILCS 5/11-42.1-1 et seq.; or (ii) a violation of either Section 33E-3 or Section 33E-4 of Article 33E of the Criminal Code of 1961, 720 ILCS 5/33E-1 et seq. The Consultant represents that the only persons, firms, or corporations interested in this Agreement as principals are those disclosed to the Village prior to the execution of this Agreement, and that this Agreement is made without collusion with any other person, firm, or corporation. If at any time it is found that the Consultant has, in procuring this Agreement, colluded with any other person, firm, or corporation, then the Consultant shall be liable to the Village for all loss or damage that the Village may suffer, and this Agreement will, at the Village's option, be null and void. D. Sexual Harassment Policy. The Consultant certifies that is has a written sexual harassment policy in full compliance with Section 2-105(A)(4) of the Illinois Human Rights Act, 775 ILCS 5/2-105(A)(4). E. Term. The Time of Performance of this Agreement, unless terminated pursuant to the terms of this Agreement, shall expire on the date the Village Manager determines that all of the Services under this Agreement, including warranty services, are completed. A determination of completion shall not constitute a waiver of any rights or claims which the Village may have or thereafter acquire with respect to any breach hereof by the Consultant or any right of indemnification of the Village by the Consultant. -6- F. Compliance with Laws and Grants. Consultant shall give all notices, pay all fees, and take all other action that may be necessary to ensure that the Services are provided, performed, and completed in accordance with all required governmental permits, licenses, or other approvals and authorizations that may be required in connection with providing, performing, and completing the Services, and with all applicable statutes, ordinances, rules, and regulations, including without limitation: the Fair Labor Standards Act; any statutes regarding qualification to do business; any statutes prohibiting discrimination because of, or requiring affirmative action based on, race, creed, color, national origin, age, sex, or other prohibited classification, including, without limitation, the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq., and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. Consultant shall also comply with all conditions of any federal, state, or local grant received by Owner or Consultant with respect to this Contract or the Services. Consultant shall be solely liable for any fines or civil penalties that are imposed by any governmental or quasi-governmental agency or body that may arise, or be alleged to have arisen, out of or in connection with Consultant's, or its subcontractors', performance of, or failure to perform, the Services or any part thereof. Every provision of law required by law to be inserted into this Contract shall be deemed to be inserted herein. G. Default. If it should appear at any time that the Consultant has failed or refused to prosecute, or has delayed in the prosecution of, the Services with diligence at a rate that assures completion of the Services in full compliance with the requirements of this Agreement, or has otherwise failed, refused, or delayed to perform or satisfy the Services or any other requirement of this Agreement ("Event of Default'J, and fails to cure any such Event of Default within ten business days after the Consultant's receipt of written notice of such Event of Default from the Village, then the Village shall have the right, without prejudice to any other remedies provided by law or equity, to pursue any one or more of the following remedies: 1. Cure by Consultant. The Village may require the Consultant, within a reasonable time, to complete or correct all or any part of the Services that are the subject of the Event of Default; and to take any or all other action necessary to bring the Consultant and the Services into compliance with this Agreement. 2. Termination of Agreement by Village. The Village may terminate this Agreement without liability for further payment of amounts due or to become due under this Agreement. 3. Withholding of Payment by Village. The Village may withhold from any payment, whether or not previously approved, or may recover from the Consultant, any and all costs, including attorneys' fees and administrative expenses, incurred by the Village as the result of any Event of Default by the Consultant or as a result of actions taken by the Village in response to any Event of Default by the Consultant. H. No Additional Obligation. The Parties acknowledge and agree that the Village is under no obligation under this Agreement or otherwise to negotiate or enter into any other or additional contracts or agreements with the Consultant, or with any vendor solicited or recommended by the Consultant. I. Village Manager Authority. Notwithstanding any provision of this Agreement, any negotiations or agreements with, or representations by the Consultant to vendors shall be subject to the approval of the Village Manager. The Village shall not be liable to any vendor or -7- other third party for any agreements made by the Consultant, purportedly on behalf of the Village, without the knowledge and approval of the Village Manager. J. Mutual Cooperation. The Village agrees to cooperate with the Consultant in the performance of the Services, including meeting with the Consultant and providing the Consultant with such non-confidential information that the Village may have that may be relevant and helpful to the Consultant's performance of the Services. The Consultant agrees to cooperate with the Village in the performance of the Services to complete the Work and with any other consultants engaged by the Village. K. News Releases. The Consultant shall not issue any news releases or other public statements regarding the Services without prior approval from the Village Manager. L. Ownership. Designs, drawings, plans, specifications, photos, reports, information, observations, calculations, notes, and any other documents, data, or information, in any form, prepared, collected, or received by the Consultant in connection with any or all of the Services to be performed under this Agreement ("Documents'l shall be and remain the exclusive property of the Village. At the Village's request, or upon termination of this Agreement, the Consultant shall cause the Documents to be promptly delivered to the Village. SECTION 9. GENERAL PROVISIONS. A. Amendment. No amendment or modification to this Agreement shall be effective unless and until such amendment or modification is in writing, properly approved in accordance with applicable procedures, and executed. B. Assignment. This Agreement may not be assigned by the Village or by the Consultant without the prior written consent of the other party. C. Binding Effect. The terms of this Agreement shall bind and inure to the benefit of the Parties hereto and their agents, successors, and assigns. D. Notice. Any notice or communication required or permitted to be given under this Agreement shall be in writing and shall be delivered (i) personally, (ii) by a reputable overnight courier, (iii) by certified mail, return receipt requested, and deposited in the U.S. Mail, postage prepaid, (iv) by facsimile, or (v) by electronic internet mail ("e-mail"). Facsimile notices shall be deemed valid only to the extent that they are (a) actually received by the individual to whom addressed and (b) followed by delivery of actual notice in the manner described in either (i), (ii), or (iii) above within three business days thereafter at the appropriate address set forth below. E-mail notices shall be deemed valid and received by the addressee thereof when delivered by e-mail and (a) opened by the recipient on a business day at the address set forth below, and (b) followed by delivery of actual notice in the manner described in either (i), (ii) or (iii) above within three business days thereafter at the appropriate address set forth below. Unless otherwise expressly provided in this Agreement, notices shall be deemed received upon the earlier of (a) actual receipt; (b) one business day after deposit with an overnight courier as evidenced by a receipt of deposit; or (c) three business days following deposit in the U.S. mail, as evidenced by a return receipt. By notice complying with the requirements of this Subsection, each party shall have the right to change the address or the addressee, or both, for all future notices and communications to such party, but no notice of a change of addressee or address shall be effective until actually received. -8- Notices and communications to the Village shall be addressed to, and delivered at, the following address: Village of Oak Brook 1200 Oak Brook Road Oak Brook, Illinois 60523 Attention: Riccardo Ginex, Village Manager E-mail: RGinex @oak-brook.org With a copy to: Holland & Knight LLP 131 South Dearborn Street, 30th Floor Chicago, Illinois 60603 Attention: Peter Friedman E-mail: peter.friedman @hklaw.com Notices and communications to the Consultant shall be addressed to, and delivered at, the following address: Pool Guards, Inc. ("Consultant') 520 N. Oakhurst Drive Aurora, IL 60502 Telephone: (630) 692-1500 Attention: Ross Seymour Email: ross @spmspools.com E. Third Party Beneficiary. No claim as a -third party beneficiary under this Agreement by any person, firm, or corporation other than the Consultant shall be made or be valid against the Village. F. Provisions Severable. If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions shall remain in full force and effect and shall in no way be affected, impaired or invalidated. G. Time. Time is of the essence in the performance of this Agreement. H. Governing Laws. This Agreement shall be interpreted according to the internal laws, but not the conflict of laws rules, of the State of Illinois. I. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any and all previous or contemporaneous oral or written agreements and negotiations between the Village and the Consultant with respect to the Proposal and the Services. J.. Waiver. No waiver of any provision of this Agreement shall be deemed to or constitute a waiver of any other provision of this Agreement (whether or not similar) nor shall any such waiver be deemed to or constitute a continuing waiver unless otherwise expressly provided in this Agreement. -9- 1 I K. Exhibits. Exhibits A through C are attached hereto and, by this reference, } incorporated in and made a part of this Agreement. In the event of a conflict between any Exhibit and the text of this Agreement,the text of this Agreement shall control. L. Rig Hts Cumulative. Unless expressly provided to the contrary in this Agreement, each and every one of the rights, remedies, and benefits provided 'by this Agreement shall be cumulative and shall not be :exclusive of any other such rights, remedies, and benefits allowed by law. M. Couinterpart Execution. This Agreement may be executed in several counterparts, each of which, when executed, shall be deemed to be an original., but ail of which together shall constitute one and the same Instrument. ATTEST: VILLAGE F OAK BROOK k By- By. Village Clerk ge President ATTEST: POO D , INC. a ,�n'' !! Ct_ f B ,�v By: Title: RN - €P Its: i #34390611 v1 f t ( r a A 0- EXHIBIT A SCOPE OF SERVICES The Services shall include: 1. Hours of Operation. The Consultant will operate the Aquatic Center and Pool, and make the Aquatic Center and Pool available for public use, during the following hours (collectively, "Hours of Operation') between May 28 and September 5, 2016 ("Pool Season': EARLY SEASON HOURS Main Pool Diving Well Wading Pool Beach May 28-29 10:00am-8:00pm Noon—7:00pm 10:00am-8:00pm 10:00am-4:00pm May 30 10:00am-8:00pm Noon—7:00pm 10:00am-8:00pm 10:00am-7:00pm May 31- June 2 4:00pm-8:00pm 4:00pm-7:00pm 4:00pm-8:00pm 4:00pm-7:00pm June 3 4:00pm-8:00pm 4:00pm-7:00pm 4:00pm-8:00pm CLOSED June 4 - 5 10:00am-8:00pm Noon—7:00pm 10:00am-8:00pm 10:00am-4:00pm REGULAR SEASON HOURS (June 6—August 16) Main Pool Diving Well Wading Pool Beach Monday-Thursday 10:00am-8:00pm Noon—7:00pm 10:00am-8:00pm I0:00am—6:00pm Friday- Sunday 10:00am-8:00pm Noon—7:00pm 10:00am-8:00pm 10:00am-4:00pm LATE SEASON HOURS Main Pool Diving Well Wading Pool Beach August 15-18 CLOSED CLOSED CLOSED CLOSED August 19 4:00pm-8:00pm 4:00pm-7:00pm 4:00pm-8:00pm CLOSED August 20-21 10:00am-8:00pm 10:00am-7:00pm 10:00am-8:00pm 10:00am-4:00pm August 22-25 CLOSED CLOSED CLOSED CLOSED August 26 4:00pm-8:00pm 4:00pm-7:00pm 4:00pm-8:00pm CLOSED August 27-28 10:00am-8:00pm 10:00am-7:00pm 10:00am-8:00pm 10:00am-4:00pm August 29 -Sept l CLOSED CLOSED CLOSED CLOSED September 2 4:00pm-8:00pm 4:00pm-7:00pm 4:00pm-8:00pm CLOSED September 3-4 10:00am-8:00pm 10:00am-7:00pm 10:00am-8:00pm 10:00am-4:00pm September 5 10:00am-8:00pm 10:00am-7:00pm 10:00am-8:00pm 10:00am-7:00pm The Consultant may close the pool and the Aquatic Center at the reasonable discretion of the Consultant's managers only pursuant to the following conditions: a. Dangerous weather conditions. If the weather does not allow the pool to be open for use by 5:00 pm on a given day, Consultant's managers can close the pool for the remainder of that day and reopen on the following day; b. Severe and Extreme Heat Index Warnings, as defined by the National Weather Service, where adjusted temperatures reach 115 degrees Fahrenheit; c. When the temperature is below 68 degrees Fahrenheit; d. If the pool's filtration, circulation or sanitation system is not working properly so as to create an unsafe or unsanitary condition. 2. Aquatic Center Management. Consultant shall manage the Aquatic Center, which includes, without limitation, the associated deck areas, restrooms, mechanical and pump rooms, which management shall include, without limitation, managing the daily opening, closing, and maintenance of the Aquatic Center. Consultant shall assign personnel to the Aquatic Center who shall be responsible for monitoring its lifeguards and other staff, coordinating the provision of the Services, and monitoring the operation of the Aquatic Center. At least one Consultant manager shall be on duty and at the Aquatic Center: (i) during all Hours of Operation; (ii) any time a Consultant employee or subcontractor is at the Aquatic Center; and (iii) at least 1/2 hour before and after the Hours of Operation. 3. Lifeguards. Consultant shall provide 6 lifeguard to the Aquatic Center during the Hours of Operation. In the event that bather load exceeds 1 lifeguard to 50 patrons, Consultant shall provide additional lifeguards to maintain a lifeguard ratio of more than 1 lifeguard to 50 patrons. Lifeguards shall arrive at least 1/2 hour before, and remain at least 1/2 hour after the Hours of Operation to provide cleaning and maintenance to the Aquatic Center and the pool. Lifeguards shall wear distinguishing and appropriate attire at all times while on duty during the Hours of Operation. All lifeguards shall be certified by the American Red Cross or.Jeff Ellis & Associates. The Consultant shall tender to the Village proof that each lifeguard assigned to provide Services at the Aquatic Center has such certification and that the certification is up to date and current. The lifeguards shall be entitled to take breaks for 10 minutes prior to every hour during regular Hours of Operation ("Guard Breaks"). During such breaks, at least one lifeguard will remain on the pool deck to guard the pool and adult swimmers. 4. De-winterization; Opening of Pool(s). Consultant shall facilitate the opening of the Aquatic Center. Consultant will pump down pool water and then acid wash, and start-up pools in advance of May 28, 2016 and pursuant to a schedule approved of in advance by the Village Manager or his designee. Consultant will fill the pool and remain responsible for the water level and turning the water off when the pool has been filled. It is the responsibility of Consultant to inspect and clean the pool before May 28, 2016. In addition, Consultant is responsible for obtaining a pre-season inspection by the applicable county's health department and taking all steps that may be necessary to obtaining a passing inspection. Consultant shall collect any and all trash in the Aquatic Center and deposited it at the designated curbside location or in the Village's dumpster. Prior to May 28, 2016, Consultant will remove all Village deck furniture from storage and place on pool deck. Consultant will return all Village furniture to storage at the end of the Pool Season. 5. Pool Chemicals. Consultant will supply any and all necessary chemicals to the Village for the operation of the Village's pools in sufficient quantity to comply with all applicable federal, state, county, and local regulations for the duration of the Pool Season. The cost of these chemicals is included in the Agreement Amount. These chemicals do not include chemicals used for the treatment of rust or iron in the Facility's water. 6. Pool Cleaning; Restroom Cleaning. During the Pool Season, Consultant will clean the pool(s) at the Aquatic Center. Consultant employees will check on the cleanliness of the Aquatic Center's restrooms throughout each day of operation and clean or otherwise address any deficiencies as necessary. Consultant shall not be responsible for providing cleaning supplies, which shall be provided by, and at the sole cost of,. the Village. 7. Inspections. Consultant shall regularly inspect the Aquatic Center and all equipment, personal property, and fixtures therein to insure that the Aquatic Center and all of its equipment, personal property, and fixtures are in proper repair ("Inspections' . Consultant shall immediately notify the Village of any items relating to the Aquatic, including furniture and any pool equipment, which require repair or replacement. The Inspections shall include inspections of the Aquatic Center and pool by technicians certified by the Association of Pool & Spa Professionals ("APSP'), which inspections shall occur a minimum three times per week, and shall include inspection of the Facility's filtration and mechanical systems. 8. Winterization of Pool(s). Consultant shall perform the winterization of the Aquatic Center following standard operating procedures (the "Winterization'). The Winterization shall include an assessment and preventative maintenance report to the Village regarding the status of the pool(s). Winterization of the pool(s) shall not constitute a guarantee against damage by freezing or other causes. The Consultant shall not be responsible for winterizing the Aquatic Center's restrooms. 9. Safety Equipment. Consultant shall furnish any portable pool safety equipment required by applicable laws and regulations, including, but not limited to, First Aid Kits, Seal-Ez, rescue tubes, backboards, and rescue inhalers ("Safety Equipment'. Safety Equipment does not include automated electronic defibrillator(s) (AEDs), attendant raised chairs (or equivalent to maintain a safe pool), and umbrellas in sufficient quantity to comply with the applicable laws and regulations, which items will be provided by the Village. 10. Swim Lessons. Consultant will, at the request of the Village, conduct a swim lesson program for the benefit of the pool users. Any such lessons shall be provided pursuant to a separate agreement between the Village and Consultant. EXHIBIT B KEY PERSONNEL Ross Seymour Julie Hannik EXHIBIT C INSURANCE COVERAGES The insurance required in Section 6.0 to the Agreement shall include the following coverage with limits no less than those set forth below: Comprehensive General Liability, with all major divisions of coverage in an amount not less than $1,000,000 per occurrence, and not less than $5,000,000 in aggregate. The policy amount may be provided through a commercial umbrella policy. Workers Compensation (with alternate endorsement for the Village) in the statutory amount. Comprehensive Automobile Liability (owned, non-owned, hired): Bodily Injury: $1,000,000.00 each person; $3,000,000.00 each accident. Property Damage: $2,000,000.00 each occurrence. The policy amount may be provided through a commercial umbrella policy. Property insurance sufficient to cover the full replacement costs of all materials, supplies, and equipment used to provide the Services. Fidelity coverage for losses incurred as a result of dishonesty on the part of Consultant's employees, agents or subcontractors in the amount of$100,000.