HomeMy Public PortalAbout169-2013 - Fire - Life Gas - filling tanksAGREEMENT
THIS AGREEMENT made and entered into this f % — day of 2013, and
referred to as Contract No. 169-2013, by and between the City of Richmond, Indiana, a
municipal corporation acting by and through its Board of Public Works and Safety (hereinafter
referred to as the "City") and LifeGas, 5720 Kopetsky Drive Suite N, IndianapoIis, Indiana
46217 (hereinafter referred to as the "Contractor").
SECTION I. STATEMENT AND SUBJECT OF WORK
City hereby retains Contractor to refill both D-size oxygen cylinders and M-size oxygen
cylinders and provide tank rental for the City of Richmond Fire Department.
A Request for Quotes dated October 30, 2013, has been made available for inspection by
Contractor, is on file in the office of the Fire Department, and is hereby incorporated by
reference and made a part of this Agreement. Contractor agrees to abide by the same.
The response of Contractor to said Request for Quotes is attached hereto as Exhibit A, which
Exhibit is dated November 24, 2013, consisting of five (5) pages, and is hereby incorporated by
reference and made a part of this Agreement. Contractor shall provide all equipment and
services listed on "Exhibit A."
Should any provisions, terms, or conditions contained in any of the documents attached hereto as
Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the
provisions, terms, or conditions of this Agreement, this Agreement shall be controlling.
The Contractor shall furnish all labor, material, equipment, and services necessary for the proper
completion of all work specified.
No performance of services shall commence until the following has been met:
1. The City is in receipt of any required certificates of insurance and/or
warranties;
2. The City is in receipt of any required affidavit signed by Contractor in
accordance with Indiana Code 22-5-1.7-11(a)(2);and
3. A purchase order has been issued by the Purchasing Department.
SECTION 11. STATUS OF CONTRACTOR
Contractor shall be deemed to be an independent contractor and is not an employee or agent of
the City of Richmond. The Contractor shall provide, at its own expense, competent supervision
of the work.
Contract No. 169-2013
Page 1 of 6
SECTION III. COMPENSATION
City shall pay Contractor a sum not to exceed Six Dollars and Seventy-five Cents ($6.75) per
cylinder for D-size cylinders. City shall pay Contractor a sum not to exceed Ten Dollars and
Seventy-five Cents ($10.75) per cylinder for M-size cylinders.
SECTION IV. TERM OF AGREEMENT
This Agreement shall become effective when signed by all parties and shall continue in effect for
a period of three (3) years commencing January 1, 2014 and ending December 31, 2017.
Notwithstanding the term of this Agreement, City may terminate this Agreement in whole or in
part, for cause, at any time by giving at least five (5) working days written notice specifying the
effective date and the reasons for termination which shall include but not be limited to the
following:
a. failure, for any reason of the Contractor to fulfill in a timely manner
its obligations under this Agreement;
b. submission of a report, other work product, or advice, whether oral or written, by the
Contractor to the City that is incorrect, incomplete, or does not meet reasonable
professional standards in any material respect;
c. ineffective or improper use of funds provided under this Agreement;
d. suspension or termination of the grant funding to the City under which this Agreement
is made; or
e. unavailability of sufficient funds to make payment on this Agreement.
In the event of such termination, the City shall be required to make payment for all work
performed prior to the date this Agreement is terminated, but shall be relieved of any other
responsibility herein.
This Agreement may also be terminated, in whole or in part, by mutual Agreement of the parties
by setting forth the reasons for such termination, the effective date, and in the case of partial
termination, the portion to be terminated.
SECTION V. INDEMNIFICATION AND INSURANCE
Contractor agrees to obtain insurance and to indemnify the City for any damage or injury to
person or property or any other claims which may arise from the Contractor's conduct or
performance of this Agreement, either intentionally or negligently; provided, however, that
nothing contained in this Agreement shall be construed as rendering the Contractor liable for acts
of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this
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Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set
forth below which may arise out of or result from the Contractor's operations under this
Agreement, whether such operations by the Contractor or by any sub -contractors or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts the Contractor may
be held responsible.
Coverage
A. Worker's Compensation &
Disability Requirements
B. Employer's Liability
C. Comprehensive General Liability
Section 1. Bodily Injury
Section 2. Property Damage
D. Comprehensive Auto Liability
Section 1. Bodily Injury
Section 2. Property Damage
Limits
Statutory
$100,000
$1,000,000 each occurrence
$2,000,000 aggregate
$1,000,000 each occurrence
$1,000,000 each person
$1,000,000 each occurrence
$1,000,000 each occurrence
E. Comprehensive Umbrella Liability $1,000,000 each occurrence
$1,000,000 each aggregate
SECTION VI. COMPLIANCE WITH WORKER'S COMPENSATION LAW
Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and
shall, before commencing work under this Agreement, provide the City a certificate of insurance,
or a certificate from the industrial board showing that the Contractor has complied with Indiana
Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and
therefore subject to another state's worker's compensation law, Contractor may choose to
comply with all provisions of its home state's worker's compensation law and provide the City
proof of such compliance in lieu of complying with the provisions of the Indiana Worker's
Compensation Law.
SECTION VII. COMPLIANCE WITH INDIANA E-VERIFY PROGRAM REQUIREMENTS
Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work
eligibility status of all newly hired employees of the contractor through the Indiana E-Verify
program. Contractor is not required to verify the work eligibility status of all newly hired
employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify
Page 3 of 6 1
program no longer exists. Prior to the performance of this Agreement, Contractor shall provide
to the City its signed Affidavit affirming that Contractor does not knowingly employ an
unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC
22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days
after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation
within the thirty (30) day period provided above, the City shall consider the Contractor to be in
breach of this Agreement and this Agreement will be terminated. If the City determines that
terminating this Agreement would be detrimental to the public interest or public property, the
City may allow this Agreement to remain in effect until the City procures a new contractor. If
this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the
Contractor will remain liable to the City for actual damages.
SECTION VIII. IRAN INVESTMENT ACTIVITIES
Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in
investment activities in Iran. In the event City determines during the course of this Agreement
that this certification is no longer valid, City shall notify Contractor in writing of said
determination and shall give contractor ninety (90) days within which to respond to the written
notice. In the event Contractor fails to demonstrate to the City that the Contractor has ceased
investment activities in Iran within ninety (90) days after the written notice is given to the
Contractor, the City may proceed with any remedies it may have pursuant to IC 5-22-16.5. In
the event the City determines during the course of this Agreement that this certification is no
longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5-
22-16.5, the City reserves the right to consider the Contractor to be in breach of this Agreement
and terminate the agreement upon the expiration of the ninety (90) day period set forth above.
SECTION IX. PROHIBITION AGAINST DISCRIMINATION
A. Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting
on behalf of Contractor or any sub -contractor shall not discriminate against any employee
or applicant for employment to be employed in the performance of this Agreement, with
respect to hire, tenure, terms, conditions or privileges of employment or any matter
directly or indirectly related to employment, because of race, religion, color, sex,
disability, national origin, or ancestry.
B. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees:
That in the hiring of employees for the performance of work under this
Agreement of any subcontract hereunder, Contractor, any subcontractor, or any
person acting on behalf of Contractor or any sub -contractor, shall not discriminate
by reason of race, religion, color, sex, national origin or ancestry against any
citizen of the State of Indiana who is qualified and available to perform the work
to which the employment relates;
2. That Contractor, any sub -contractor, or any person action on behalf of Contractor
or any sub -contractor shall in no manner discriminate against or intimidate any
Page 4 of 6
employee hired for the performance of work under this Agreement on account of
race, religion, color, sex, national origin or ancestry;
3. That there may be deducted from the amount payable to Contractor by the City
under this Agreement, a penalty of five dollars ($5.00) for each person for each
calendar day during which such person was discriminated against or intimidated
in violation of the provisions of the Agreement; and
4. That this Agreement may be canceled or terminated by the City and all money
due or to become due hereunder may be forfeited, for a second or any subsequent
violation of the terms or conditions of this section of the Agreement.
C. Violation of the terms or conditions of this Agreement relating to discrimination or
intimidation shall be considered a material breach of this Agreement.
SECTION X. RELEASE OF LIABILITY
Contractor hereby agrees to release and hold harmless the City and all officers, employees, or
agents of the same from all liability which may arise in the course of Contractor's performance
of its obligations pursuant to this Agreement.
SECTION XI. MISCELLANEOUS
This Agreement is personal to the parties hereto and neither party may assign or delegate any of
its rights or obligations hereunder without the prior written consent of the other party. Any such
delegation or assignment, without the prior written consent of the other party, shall be null and
void. This Agreement shall be controlled by and interpreted according to Indiana law and shall
be binding upon the parties, their successors and assigns. This document constitutes the entire
Agreement between the parties, although it may be altered or amended in whole or in part at any
time by filing with the Agreement a written instrument setting forth such changes signed by both
parties. By executing this Agreement the parties agree that this document supersedes any
previous discussion, negotiation, or conversation relating to the subject matter contained herein.
This Agreement may be simultaneously executed in several counterparts, each of which shall be
an original and all of which shall constitute but one and the same instrument.
The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit
arising out of this Contract must be filed in said courts. The parties specifically agree that no
arbitration or mediation shall be required prior to the commencement of legal proceedings in said
Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other
action in any alternative forum, venue, or in front of any other tribunal, court, or administrative
body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right
Contractor may have to bring such suit in front of other tribunals or in other venues.
Any person executing this Contract in a representative capacity hereby warrants that he/she has
been duly authorized by his or her principal to execute this Contract.
Page 5 of 6 1
In the event of any breach of this Agreement by Contractor, and in addition to any other damages
or remedies, Contractor shall be liable for all costs incurred by City in its efforts to enforce this
Agreement, including but not limited to, City's reasonable attorney's fees.
In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement
arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
of the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of
the day and year first written above, although signatures may be affixed on different dates.
"CITY"
THE CITY OF RICHMOND,
INDIANA by and through its
Board of Public Works and Safety
By: )�4
&��-
Vicki Robinson, President
S
By. A&4
Dian Lawson, ember
Anthony V. roster, II1Me-mber
Date:
APPROVED: /6/�
Sarah L. Hutton, Mayor
Dater �3
"CONTRACTOR"
LIFEGAS
5720 Kopetsky Drive Suite N
Indianapolis, Indiana 46217
Un
Printed: �(G ��15�/0 6TZ
Title: 'Jab ;,00*eoAz �G
Date: 1
Page 6 of 6
RICHMOND FIRE DEPARTMENT
101 S 5TH ST
RICHMOND IN 47374-4222
Dear BRENDA,
Date:
11 /24/2013
Proposal No:
133077
Validity Period:
11/24/2013 - 03/24/2014
Customer No:
2534854
Kindly direct your correspondence to
FELEPE HOLIDAY
6782252940-6469
felepe.holiday @linde.com
Thank you for the opportunity to discuss your business needs. Enclosed you will find the proposed pricing for our products and services.
The Linde Group is a world -leading gases and engineering company with around 62,000 employees in more than 100 countries
worldwide. In North America, Linde sustains a leading position through its major businesses:
Healthcare
Linde is dedicated to the medical sector. We supply hospital, homecare, long term care and clinical practitioners with medical gas
products, services and patient care programs. Our deep understanding of the issues and pressures within healthcare enable us to help
healthcare professionals raise and maintain standards of patient care through patient -focused services that are both clinically -and
cost-effective.
Industrial and Specialty Gases
Linde is a leading supplier of industrial and specialty gases, engineering products and services in North America and worldwide.We offer
an extensive range of process and applications know-how, and engineering excellence. We serve more than 100,000 customers through
400+ sales, retail and production locations, supported by 4,000 expert and motivated employees, and a fleet of over 1,600 delivery
vehicles.
We look forward to providing your organization with the gas, engineering, applications, or therapy solutions you need to excel.
Furthermore, we look forward to working with you as a business partner and exceeding your service expectations. If you have any other
questions regarding our products and services, please don't hesitate to call.
Thank you for giving us an opportunity to earn your business!
Yours Truly
Indianapolis - LG
5720 Kopetsky Drive Suite N
INDIANAPOLIS IN 46217
USA
Tel , Fax
Linde Gas North America LLC lindeus.com linde-healthcare.us
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EXHIBIT - RAGE 1 0
RICHMOND FIRE DEPARTMENT
101 S 5TH ST
RICHMOND IN 47374-4222
Product:
Date:
12/04/2013
Proposal No:
133874
Validity Period:
12/04/2013 - 04/03/2014
Customer No:
2534854
Product
Material
I UOM
VollC I**
I Rate
OXYGEN USP ALUMINUM D
P109822
CYL
16.000 FT3
1 6.7
OXYGEN USP M
P109815 I
CYL
125.000 FT3
1 10.7
**Vol/Cyl is the nominal volume.
The following miscellaneous charges apply:
Other Chartres:
Description
Rate
DELIVERY CHARGE
35.00
PRODUCT COMPLIANCE CHARGE
8.95
RENTAL COMPLIANCE
8.95
FUEL/ENERGY SURCHARGE
5.81
Linde Gas North America LLC (#Linde#) has provided this document to you in response to your request for a non -binding
quotation. This document contains Linde#s proprietary and confidential information. In consideration for Linde providing this
document to you at your request, and: (t) by signing this document below, or (2) by disclosing this document to any person or
entity other than an employee of your company with a need to know, your company agrees (a) not to disclose this document or
any information in this document to any third party, (b) to take appropriate measures to restrict the disclosure of this document
within your organization to only your employees who have a need to know the information in this document for the purposes of
evaluating that information and the proposed transaction, and (c) not to use this document or the information in this document for
any purpose other than to evaluate the information in this document and the proposed transaction.
To be clear, Linde is not obligated to fill orders until Linde and you sign a formal product supply agreement.
Customer Signature:
Linde Gas North America LLC
Date:
lindeus.com Iinde-healthcare.us
2 of 2
EXHIBIT 8 PAGE �P
Medical Cylinder Service Agreement
LifeGas, a division of Linde Gas North America LLC, a Delaware limited liability company ("LifeGas"), whose primary office is located at
6600 Peachtree Dunwoody Road, Embassy Row 400, Suite 300, Atlanta, GA 30328 ("LifeGas "), and RICHMOND FIRE DEPARTMENT
formed in the state of INDIANA, whose primary office is located at 101 S 5T" ST RICHMOND, INDIANA 47374-4222 ("Customer"), agree
on this 25TH day of NOVEMBER. 2013 ("Effective Date") as follows:
1. Requirements. LifeGas shall sell to Customer, and Customer shall buy exclusively from LifeGas all of Customers requirements
for the Products for use: (1) at 101 S 5T" ST RICHMOND, INDIANA 47374-4222 (the "Designated Location'); and (2) at LifeGas' option, at
such new or expanded location where the operations of the Designated Location are conducted. LifeGas shall rent to Customer and
Customer shall rent exclusively from LifeGas all Rented Cylinders required for the storage of the gas Products. Customer shall not resell,
distribute, or otherwise transfer any Products purchased by Customer to any person or entity.
2. Products, Rented Cylinders, and Prices.
Product Cod
Cylinder Size
Product Description
Product price per Cylinder
Rental per Cylinder per
Month
P109822
D
OXYGEN USP
ALUMINUM D
$6.75
P109815
M
OXYGEN USP M
$10,75
Compliance
Product delivery charge $35.00 Charge $ 8.95 Energy/Fuel Surcharge $ 5.81
3. Term. The initial term of this agreement is 3 years, starting on the Effective Date (the "Initial Term"). After the end of the Initial
Term, the term of this agreement will automatically extend for successive terms of 12 months each. Either party may elect to terminate this
agreement, effective only on the last day of a term, by giving the other party a notice of termination at least 12 months before that last day.
4. Rented Cylinders. With respect to the Rented Cylinders:
(a) Upon the termination of this agreement: (1) LifeGas may remove the Rented Cylinders without any liability for damages
caused by such removal, except damages that are caused by LifeGas' gross negligence, and (2) Customer shall surrender to LifeGas the
Rented Cylinders, in good condition, ordinary wear and tear excepted.
(b) Customer shall not use any Rented Cylinder unless it is marked with a legible label identifying its contents, and shall
return to LifeGas any unmarked Rented Cylinder for credit. Customer shall not cause or permit: (1) any foreign material to enter any Rented
Cylinder; (2) any change, defacement, or removal of any "D.O.T.," "Linde," "LifeGas" or other markings, symbols, or warnings from any
Rented Cylinder, and shall not apply a label (or marking intended to show ownership) to any Rented Cylinder that is not pre -approved by
LifeGas; (3) the use of oil, grease, or other lubricants on any part of a Cylinder; or (4) the conversion of any Rented Cylinder from one gas
service to another. LifeGas is responsible for, and shall pay for or bear the cost of, all "normal" maintenance costs and repairs resulting
from normal wear and tear to the Rented Cylinders. If the repair or replacement is caused by or results from anything other than normal
wear and tear or LifeGas' negligence (e.g., the negligence, abuse, misuse, or breach of this agreement by Customer, its employees, agents,
contractors, or customers), then Customer shall reimburse LifeGas for the cost of any repair or replacement. Customer may not permit or
cause any person or entity: (1) other than LifeGas or its authorized distributors to fill or repair any Rented Cylinders; or (2) to use or possess
any Rented Cylinders. If any Rented Cylinder is not returned to LifeGas within 15 days after the termination or expiration of this agreement,
then it shall be deemed to have been lost or destroyed and Customer shall reimburse LifeGas for the cost of that Rented Cylinder.
5. Filling of Customer -Owned Cylinders. If Customer presents any Cylinder to LifeGas for filling that is not owned by LifeGas (a
"Customer Cylinder"), then the following applies.
(a) Customer warrants to LifeGas that Customer either owns or leases all Customer Cylinders.
(b) LifeGas is not required to fill any Customer Cylinder that LifeGas determines is unsafe to fill, or is not owned or leased
by Customer. If LifeGas determines that a Customer Cylinder is not owned or leased by Customer then LifeGas may either: (1) return the
Cylinder to Customer; or (2) return the Cylinder to the apparent owner.
(c) If a Customer Cylinder requires repairs or hydrostatic testing, then LifeGas will perform the required repairs or
hydrostatic testing services, and will charge Customer for such services in accordance with LifeGas' standard rates.
(d) LifeGas will use commercially reasonable efforts to inspect, fill, clean, label, and return the Customer Cylinders as soon
as practicable. LifeGas will apply to the Customer Cylinders any suitable labels that are supplied by Customer.
(e) Customer will indemnify LifeGas from any loss or cost incurred, or damage suffered, by LifeGas, and will defend LifeGas
from any claim, in either case resulting from the Customer Cylinders, unless the loss, cost, or damage, or the claim arises from LifeGas' sole
negligence.
6. Product Prices, Cylinder Rental, and Revision.
(a) Prices and Rent. Customer shall pay to LifeGas the prices for the Products and the rent for the Rented Cylinders that
are listed above in Section 2.
(b) Prices and Rent Revision. LifeGas may revise the Product prices or the Rented Cylinders rent by giving Customer a
notice ("Revision Notice") that states the terms of the revision, at least 15 days before the effective date of the revision. If a Revision Notice
specifies an increase to the Product prices or Rented Cylinders rent, then Customer may terminate this agreement, only as to those
Products affected by the increase ("Affected Products"), and only if: (1) Customer received a bona fide, current written offer from another
supplier to sell to Customer the Affected Products in like quantity, in like delivery, and under like conditions, or to rent to Customer
equipment for the Affected Products that is equivalent to the Rented Cylinders, at a price or at a rent, respectively, lower than that
established by the Revision Notice ("Offer'); (2) Customer gives LifeGas a notice ("Termination !Notice") that states Customer's intent to
Page I of 3
EXHIBIT PAGE �r1'_S_';
terminate this agreement and includes a copy of the Offer within the 15-day period starting on the date of the Revision Notice; and (3)
LifeGas does not agree to either meet the price or rent terms and related revision terms specified in the Offer (collectively, "Offer Price
Terms"), or revert to its previous price or rent within the 30-day period starting on the date that LifeGas receives the Termination Notice. If
LifeGas agrees to meet the Offer Price Terms, or to revert to its previous price or rent, then LifeGas may extend the Term until the greater of
the end of the contract term provided for in the Offer, or by a period that is equal to the Initial Term, which begins on the date that LifeGas
agrees to meet the Offer Price Terms or to revert to its previous price or rent.
7. Incidental Charges. The Incidental Charges are as follows:
• Customer delivery restriction less than 40 hours per week, or a customer predetermined delivery schedule - $35 per delivery
• Customer request for copy of invoice or delivery ticket - $15 per invoice
• Emergency Deliveries (e.g., less than 48 hrs. notice, weekends, evenings, holidays) or averted deliveries - $150 per
occurrence
8. Taxes and Other Charges. LifeGas may charge the following in addition to the price or rent.
(a) Taxes. Customer shall pay or reimburse LifeGas for all taxes and other impositions (e.g., fees, permits, and other charges)
that are charged by any government (except LifeGas' income taxes), which relate to the Products or the Rental Equipment, including their
presence, use, operation, or maintenance.
(b) Other Charges. LifeGas may charge to Customer a regulatory compliance cost charge ("Compliance Charge"), initially in the
amount noted in Section 2. The Compliance Charge results from the costs incurred by LifeGas in order to comply with federal, state, and
local laws. However, those costs are difficult to calculate and apportion with precision. Therefore, the amount of the Compliance Charge is
not related to actual compliance costs incurred by LifeGas, which may vary by the type of Product, service, geographic location, or time. The
Compliance Charge is not a federal, state, or local tax, and LifeGas need not collect and pay the Compliance Charge to any federal, state, or
local government. LifeGas may charge to Customer a commercially reasonable surcharge based upon an increase in distribution or
production costs during the Term (e.g., energy, fuel, feedstock, and other raw material costs) ("Surcharge"), and applied in accordance with
LifeGas' then current cost recovery program. LifeGas may charge to Customer any other charges that are noted in Section 7.
(c) Revision to Other Charges. LifeGas may revise the Compliance Charge, Surcharge, and any other charges that are
identified in Section 7 by giving Customer a notice that states the terms of the revision. In any case, the foregoing items in this sub-
paragraph 8(c) do not constitute a price increase as contemplated in sub-paragraph6(bb).
9. Invoices and Payment Terms.
(a) Payment. Customer shall pay all LifeGas invoices within 30 days after the invoice date. Starting on the invoice date,
LifeGas may charge interest on past due invoices at the lower of: (1) 1'/z% per month, or (2) the highest rate permitted by law.
(b) Invoice Claims. Customer waives any claim or defense that Customer has regarding any LifeGas invoice unless
Customer delivers to LifeGas a notice, which describes the basis of the claim or defense, within the 30-day period starting on the invoice
date.
10. Payment Obligations. If Customer fails to pay when due any payment required under this agreement, or if Customer enters
into a bankruptcy, insolvency, receivership, liquidation, or similar proceeding, or makes an assignment for the benefit of creditors, then
LifeGas may take any one or more of the following actions in addition to any other right or remedy authorized by law or this agreement: (1)
refuse to make further deliveries of Product to Customer; (2) place Customer on a C.O.D. basis; (3) terminate this agreement; or (4)
repossess any of the Rented Cylinders in Customer's possession.
11. Delivery of Products.
(a) Delivery Points. Delivery of Products is: (1) F.O.B. the Designated Location if delivered by LifeGas; or (2) F.O.B. the
pick up location or LifeGas' shipping point if picked up by Customer or delivered by commercial carrier.
(b) Shortage Claims. Customer waives any claim or defense for shortage of Product unless Customer delivers to LifeGas a
notice, which describes the claimed shortage within the five-day period starting on the delivery date of the Product.
12. Legal, Health, and Safety Concerns.
(a) Acknowledgement and Warning of Hazards. Customer acknowledges that the Products and the Rented Cylinders are
hazardous; and that Customer understands those hazards. Customer shall use Material Safety Data Sheets for the gas Products (which are
available from LifeGas upon request) to warn its employees and others who are exposed to the Products or Rented Cylinders of their
associated hazards. Customer represents to LifeGas that, based upon past experience, it is fully capable of safely using, storing, or
handling the Rented Cylinders, without any training or instruction from LifeGas.
(b) Responsibility for Use. Customer is solely responsible for determining the suitability, compatibility, and use of the
Products and Rented Cylinders.
(c) EPCRA. Customer shall comply with all relevant reporting requirements under the Emergency Planning and Community
Right -To -Know Act of 1986, 42 U.S.C. Sections 11001-11049, resulting from the presence of the gas Products supplied under this
agreement.
(d) Right to Refuse Delivery. If LifeGas determines that the delivery of Product to the Designated Location would be unsafe
or in violation of: (1) any applicable laws (including FDA regulations); (2) the National Fire Protection Association standards; and (3) LifeGas'
specifications and safety requirements (collectively the "Compliance Requirements") due to a condition present at the Designated Location,
and LifeGas gives Customer a notice describing the condition, then LifeGas may refuse to make further deliveries of Product at the
Designated Location until Customer removes or remedies the condition.
(e) Legal Compliance. Customer warrants that it has obtained and will maintain all necessary licenses and approvals
required to store, use, and furnish to patients the Products, including as applicable. (1) Medicare regulations; (2) all state licensure
requirements applicable to the Designated Location; and (3) federal and state privacy laws. To the extent applicable to the performance of
duties under this agreement, each party shall conduct its business and use and disclose protected health information in compliance with the
privacy and security regulations promulgated under the Health Insurance Portability and Accountability Act of 1996, as amended.
(f) Fraud and Abuse Laws. Nothing in this agreement, or the performance or termination of it and no part of any
consideration between the parties is a prohibited payment for the recommending or arranging for the referral of business or the ordering of
items or services; nor is any remuneration intended to induce or encourage the referral of patients, or the purchase or rental of products, in
violation of applicable laws. The parties intend for this arrangement to comply with the fraud and abuse laws pertaining to healthcare (e.g.
federal and state anti -kickback laws, Stark laws, and False Claims Act), and to conform as closely as possible to the personal services and
equipment safe harbors under the federal anti -kickback laws.
(g) Effect_ of Future Law Changes. If. (1) any applicable licensing, administrative or governmental agency, authority, or
office investigates, questions, or challenges the legality of any aspect of this agreement; or (2) LifeGas reasonably concludes that the terms
of this agreement do not comply with the requirements of any law or regulation, as they are applicable to this agreement, then the parties, in
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EXHIBIT PAGE C3F 5
good faith, shall renegotiate to reform this agreement as is reasonably necessary to comply with such legal requirements. If, after good faith
negotiation, the parties are unable to reform or renegotiate this agreement to comply with such legal requirements, then LifeGas may
terminate this agreement by delivery of a 30-day notice to Customer. However, either Party may extend this 30-day period if necessary to
comply with any applicable patient transition provisions as set forth either: (1) by Medicare regulations; or (2) by other payors (e.g., Blue
Cross/Blue Shield, United Healthcare, etc.) for whom LifeGas has agreed to extend the transition period.
13. Warranty, Sole Remedies, and Limitation of Damages.
(a) Express Warranty and Sole Remedy. LifeGas warrants to Customer that gas Products delivered to Customer conform
to the specifications described above in Section 2. LifeGas does not make any other express warranty regarding the gas Products.
Customer's sole remedy, and the sole obligation of LifeGas for a breach of LifeGas' warranty is for LifeGas to replace, free of charge, any
gas Product that does not conform to LifeGas' warranty, if, and only if, Customer gives LifeGas notice of the breach of warranty within the
30-day period starting on the date of delivery of the gas Product.
(b) Disclaimer of all Implied Warranties. LIFEGAS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES FOR THE
PRODUCTS AND THE RENTED CYLINDERS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
ANY PARTICULAR PURPOSE.
(C) Sole Remedy for Delivery,Breach. Customer's sole remedy, and LifeGas' sole obligation, if LifeGas breaches its
obligation to deliver Product as required under this agreement is for LifeGas to deliver to Customer, free of charge, the quantity of Product
that LifeGas failed to deliver as required under this agreement, if, and only if, Customer gives LifeGas notice of the breach within the 15-day
period starting on the scheduled date of delivery of the Product.
(d) Limitation on Damages. In all events, regardless of the legal theory (e.g., breach of contract or warranty, negligence,
strict liability, etc.): (1) LIFEGAS IS NOT LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL DAMAGES,
OR ECONOMIC LOSS, INCLUDING ANY LOSS OF BUSINESS, PRODUCTION, OR PROFITS; and (2) the total amount of damages that
Customer may recover from LifeGas resulting from any occurrence arising in connection with their relationship contemplated by this
agreement is limited to an amount equal to the payments made by Customer to LifeGas under this agreement during the 12-month period
ending on the date of the occurrence.
(e) Statute of Limitations. A party must commence an action for a breach of contract within one year after the action has
accrued.
14. Force Majeure. Neither party is liable to the other party for any damages resulting from any failure or delay in the performance of
any of its obligations under this agreement that result from a cause beyond such party's reasonable control, including any occurrence that
makes the delivery of Product commercially impracticable ("Force Majeure"). If an event of a Force Majeure occurs affecting the Product,
then LifeGas will use commercially reasonable efforts to continue to deliver Product, and Customer wilt reimburse LifeGas for any additional
costs relating to production or distribution, including the costs of electricity or other type of energy that are required. If LifeGas is unable to
deliver Product, then Customer may purchase replacement Product from another supplier, for the duration of such Force Majeure, upon
written notification to LifeGas and LifeGas' written approval, not to be unreasonably withheld.
15. Nitrous Oxide. If LifeGas sells and delivers Nitrous Oxide to Customer, then Customer shall exercise extreme caution with
respect to the storage and use of the Nitrous Oxide, primarily to prevent theft, misappropriation, or misuse. Customer acknowledges that the
misuse of Nitrous Oxide can result in serious bodily injury or death. Customer shall: (1) indemnify LifeGas for any loss or damage suffered
by LifeGas resulting from the use or misuse of the Nitrous Oxide that was delivered to Customer; and (2) defend LifeGas against any third -
party claims that are based upon the Nitrous Oxide, unless the injury or death results from LifeGas' negligence.
16, Miscellaneous. This agreement constitutes all of the terms of the contract between the parties, with respect to its subject matter,
and supersedes and terminates all previous and similar agreements between the parties. Any term contained in any purchase order,
confirmation, or acknowledgment of Customer, and any delivery documents used by LifeGas, that conflicts with, is different from, or is
additional to, the terms of this agreement are not part of this agreement. This agreement: (1) may not be amended except by a written
instrument signed by an authorized representative of each of the parties; (2) is governed by the laws of the State of New Jersey, without
giving effect to any principles or rules of conflict of laws that apply the laws of another jurisdiction; and (3) inures to the benefit of and is
binding upon the successors and assigns. Customer warrants that it is authorized to enter into this agreement and that this agreement is
binding upon Customer. Customer represents that Product purchased under this agreement is for use in Customer's business. Customer
shall not: (1) sell, distribute, or otherwise transfer to any third person or entity any Product purchased from LifeGas; or (2) permit any other
person or entity to possess or use any Rented Cylinders. The waiver of any breach of this agreement does not constitute a waiver of any
succeeding or other breach. If any provision of this agreement is held invalid, illegal, or void, then the remainder of the agreement shall
continue in full force and effect, with such invalid, illegal, or void portion being deleted. The parties shall deliver all notices by United States
certified mail, postage prepaid, return receipt requested, at the addresses specified in the opening paragraph of this agreement, or at such
other address that a party specifies by notice to the other party, except that LifeGas may use regular United States mail for the delivery of a
Price Revision Notice.
RICHMOND FIRE DEPARTMENT LIFEGAS, a division of Linde Gas North America LLC
By:
AUTHORIZED SIGNATURE
NAME
TITLE
DATE
By:
AUTHORIZED SIGNATURE
NAME
TITLE
20� 20.
ACCEPTANCE DATE
Submitted by: FELEPE HOLIDAY
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