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HomeMy Public PortalAbout029-2014 - Physio Control - Replaces Contract No. 170-2013AGREEMENT THIS AGREEMENT made and entered into this l day of f"1 2014, and referred to as Contract No. 29-2014, by and between the City Richmond, Indiana, a municipal corporation acting by and through its Board of Public Works and Safety (hereinafter referred to as the "City") and Physio-Control, Inc., 11811 Willows Road NE, Redmond, WA 89058 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby retains Contractor to provide technical service and inspection of defibrillators and Physio monitor repair for the City of Richmond Fire Department. A Request for Quotes dated October 22, 2014, 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 4, 2014, 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 II. 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. 29-2014 Page 1 of 6 SECTION III. COMPENSATION City shall pay Contractor a sum not to exceed Two Thousand Three Hundred Fifty Dollars and Zero Cents ($2,350.00) per year for a total amount not to exceed Seven Thousand Fifty Dollars and Zero Cents ($7,050.00) for the three (3) year term for complete and satisfactory performance of this Agreement. 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 Page 2 of 6 of the City, its officers, agents, or employees. Contractor shall as a prerequisite to this 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 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 VH. 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 program no longer exists. Prior to the performance of this Agreement, Contractor shall provide Page 3 of 6 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: 1. 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 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: Vicki Robinson, President By: J -tv-crtj_ Richard Foore, Member By: if), I — thony L. Tosr, II, ber Date: APPROVED: Sarah L. Hutton, Mayor Date: -11,Wl cl "CONTRACTOR" PHYSIO-CONTROL, INC. 11811 Willows Road NE Redmond, WA 98052 Printed:�b Title: Y c l s4 Date:' o v Page 6 of 6 EXHIBIT _� PAGE __LOF S TECHNICAL SERVICE SUPPORT AGREEMENT Contract Number: End User # 21491602 RICHMOND FD 101 S 5TH ST RICHMOND, IN 47374 Bill To # 21491602 RICHMOND FD 101 S 5TH ST RICHMOND, IN 47374 This Technical Service Support Agreement begins on 12/1/2013 and expires on 11/30/2016. The designated Covered Equipment and/or Software is listed on Schedule A. This Technical Service Agreement is subject to the Terms and Conditions on the reverse side of this document and any Schedule B, if attached. If any Data Management Support and Upgrade Service is included on Schedule A then this Technical Service Support Agreement is also subject to Physio-Control's Data Management Support and Upgrade Service Terms and Conditions, rev 7/99-1. Price of coverage specified on Schedule A is $7,050.00 per term, payable in Annual installments. Special Terms 15% DISCOUNT ON ACCESSORIES 15% DISCOUNT ON ALL ELECTRODES Accepted: Physio-Control, Inc. Customer: By: By: Title: Print: Date: Title: Date: Purchase Order Number: Territory Rep: EALL71 Customer Contact: Zachary Fluhr Tim Brown Phone: Phone: 765-983-7335 FAX: 800-772-3340 FAX: Reference Number: L71-2449 New Printed: 11/4/2013 Page 1 of 5 FXi IBIT h PAGE TECHNICAL SERVICE SUPPORT AGREEMENT TERMS AND CONDITIONS Customers signature or purchase order referencing this Technical Service Support Agreement are required prior to Physio-Control's acceptance of this Agreement. This Agreement covers only the equipment listed on Schedule A ("Covered Equipment"). These terms constitute the complete agreement between the parties and they shall govern over any other documents. These terms may not be revised in any manner without the prior written consent of Physio-Control. SERVICES. The services provided under this Agreement are set forth on Schedule A. Physio-Control strives to return service calls within two (2) hours, and strives to resolve service issues within twenty-four (24) hours. Following service, Physio-Control will provide Customer with a written report of actions taken or recommended and identification of any materials replaced or recommended for replacement. The following services are available: "Repair Only Service" means repairs, Battery Replacement Service, parts and labor necessary to restore Covered Equipment to original specifications, subject to Exclusions. "Inspection Only Service" means inspections of Covered Equipment to verify proper device calibration, mechanical operations and output measurements, electrical safety check in accordance with National Fire Protection Association (NFPA) guidelines and labor, subject to Exclusions. "Repair and Inspect Service" means repairs, Battery Replacement Service, parts and labor necessary to restore Covered Equipment to original specifications, and inspections to verify proper device calibration, mechanical operations and output measurements, electrical safety check in accordance with NFPA guidelines and Updates (as set forth below), subject to Exclusions. "Battery Replacement Service" means replacement of batteries on a one -for -one, like -for -like basis, up to the number of batteries and/or devices listed in Schedule A. Only batteries manufactured or distributed by Physio-Control are eligible for replacement. Battery replacement is available upon Customer notification to Physio-Control of the occurrence of. (i) Battery failure as determined by Customer's performance testing and evaluation in accordance with the applicable Operating Instructions; or (ii) The end of the useful life of the battery as set forth in the applicable Operating Instructions At the discretion of Physio-Control, battery replacement shall be effected by shipment to Customer and replacement by Customer, or by on -site delivery and replacement by a Physio-Control Service Technician. Upon Customer's receipt of a replacement battery, the battery being replaced shall become the property of Physio-Control, and Customer must return the battery being replaced to Physio-Control for proper disposal. In the event that Physio-Control does not receive the battery, Customer will be charged at the then -current rate for the replacement battery. "On -Site Service" means that a Physio-Control factory -trained technician will provide service at Customer's location. Services will be performed between 8:00am and 5:00pm local time, Monday through Friday, excluding holidays. Customer is to ensure Covered Equipment is available for service at scheduled times. Some service may not be completed On -Site. Physio-Control will cover travel and/or round-trip freight for Covered Equipment that must be sent to our designated service facility for repair. "24-hour On -Site Service" means that a Physio-Control factory -trained technician will provide service at Customer's location at any time, except on the holidays listed above. Customer is to ensure Covered Equipment is available for service at scheduled times. Some service may not be completed On -Site. Physio-Control will cover travel and/or round-trip freight for Covered Equipment that must be sent to our designated service facility for repair. "Ship -in Service" means that service will be performed at Physio-Control's designated service facility. Physio-Control will cover round-trip freight for Covered Equipment that is sent to our designated service facility for repair. If Covered Equipment is not available as scheduled or Customer requests services or goods not covered by this Agreement or outside of designated service frequency or hours, Physio-Control will charge Customer at Physio-Control's standard labor rates less 10% (including overtime, if appropriate) and applicable travel costs. Parts required for such repairs will be made available at 15% off the then -current list price. EXCLUSIONS. Unless otherwise specified, this Agreement does not include: • supply or repair of accessories or disposables • repair of damage caused by misuse, abuse, abnormal operating conditions, use of batteries or other products not distributed by Physio-Control, operator errors, or acts of God • case changes • repair or replacement of items not originally distributed or installed by Physio-Control • Upgrades and installation of Upgrades • battery maintenance, performance testing, evaluation, removal and recycling Reference Number: L71-2449 New Printed: 11/4/2013 Page 2 of 5 EXHIBIT PAGE _OF S LOANERS. If Covered Equipment must be removed from service to complete repairs, Physio-Control will provide Customer with a loaner device, if one is available, until the Covered Equipment is returned. Customer assumes complete responsibility for the loaner and shall return the loaner at Customer's expense to Physio-Control in the same condition as received, upon the earlier of the return of the removed Covered Equipment or Physio-Control's request. UPDATES. "Update" means a change to a device to enhance its current features, stability, or'software. If Repair and Inspect Service is designated for Covered Equipment on Schedule A, Physio-Control will install Updates at no additional cost, provided such Updates are installed at the time of regularly scheduled service. If parts must be replaced to accommodate installation of new software, such parts may be purchased at a rate of 30% less than the then -current list price. Updates installed on Covered Equipment designated as Repair Only Service, Inspect Only Service, or at a time other than regularly scheduled Repair and Inspect Service will be billed on a separate invoice at the then -current list price less 20%. UPGRADES. "Upgrade" means a major, standalone version of software or the addition of features or capabilities to a device. Upgrades must be purchased separately, and are not provided under this Agreement. Upgrades are available at a rate of 17% less than the then -current list price. PRICING. Pricing is set forth on the front page of this Agreement. Prices do not include taxes. Sales, service or use taxes will be invoiced in addition to the price of the goods and services covered by this Agreement unless Physio-Control receives a copy of a valid exemption certificate. If the number or configuration of Covered Equipment changes during the Term, pricing shall be pro -rated accordingly. For Inspection Only Service and Repair and Inspect Service, no pricing deduction will be made for removal of Covered Equipment if an inspection has already been performed during the Term. Discounts will not be combined with other special terms, discounts, and/or promotions. PAYMENT. Payment is due within thirty (30) days of invoice date. WARRANTY. Physio-Control warrants services performed under this Agreement and replacement parts provided in performing such services against defects in material and workmanship for ninety (90) days from the date a service was performed or a part was provided. Customer's sole remedy shall be reservicing the affected unit and/or replacement of any part determined to be defective, without additional charge, provided Customer notifies Physio-Control of any allegedly defective condition within ten (10) calendar days of its discovery by Customer. Physio-Control makes no other warranties, express or implied, including, without limitation, NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IN NO EVENT SHALL PHYSIO-CONTROL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR OTHER DAMAGES. TERM. The initial Term is set forth on the front page of this Agreement. This Agreement shall automatically renew unless terminated by either party with written notice thirty (30) days prior to the expiration of the then -current term. Prices are subject to change upon renewal. TERMINATION. Either party may terminate this Agreement for material breach by the other party by providing thirty (30) days' written notice to the other party, and provided such breach is not cured within the notice period. In addition, either party may terminate this Agreement at any time upon sixty (60) days' prior written notice to the other party. In the event of such early termination, Customer shall be responsible for the portion of the designated price which corresponds to the portion of the Term prior to the effective date of termination and the cost of any services rendered during the Term. DELAYS. Physio-Control will not be liable for any loss or damage of any kind due to its failure to perform or delays in its performance resulting from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes, labor shortages, the requirements of any governmental authority, war, civil unrest, delays in manufacture, obtaining any required license or permit, and Physio-Control's inability to obtain goods from its usual sources. Any such delay shall not be considered a breach of Physio-Control's obligations and the performance dates shall be extended for the length of such delay. DEVICE INSPECTION BEFORE ACCEPTANCE. All devices that are not under Physio-Control Limited Warranty or a current Technical Service Support Agreement must be inspected and repaired (if necessary) to meet original specifications at then -current list prices prior to being covered under a Technical Service Support Agreement. MISCELLANEOUS. (a) Customer agrees to not employ or offer employment to anyone performing services on Physio-Control's behalf during the Term of this Agreement or for one (1) year following its expiration without Physio-Control's prior written consent; (b) this Agreement, and any related obligation of other party, may not be assigned in whole or in part without the prior written consent of the other party; (c) this Agreement shall be governed by the laws of the State in which the service is provided; (d) all costs and expenses incurred by the prevailing party related to the enforcement of its rights under this Agreement, including reasonable attorney's fees, shall be reimbursed by the other party. Reference Number: L71-2449 New Printed: 11/4/2013 Page 3 of 5 EXHIBIT k PAGE '-A OF S I Contract Number: Servicing Rep: District: Phone: FAX: Equipment Location Scope Of Service PHYSIO-CONTROL, INC. TECBMCAL SERVICE SUPPORT AGREEMENT SCHEDULE A Zachary Fluhr, EALL71 CENTRAL 800-772-3340 RICHMOND FD, 21491602 101 S 5TH ST RICHMOND, IN 47374 On Site Repair and 1 On Site Inspection per Year:M-F/8-5 Ref. Effective Expiration Total Model Part Number Serial Number Line Date Date Inspections LIFEPAKO12 VLP12-02-005985 33883610 1 12/1M13 11/30/2D16 3 LIFEPAK® 12 VLP12-02-005985 33887662 2 12/1/2013 11/30/2016 3 " Denotes an inventory line that has changed since the last contract revision or addendum. Reference Number: L71-2449 New Printed: 11/4/2013 Page 4 of 5 EXHIBIT PAGE (�, OF PHYSIO-CONTROL, INC. TECHNICAL SERVICE SUPPORT AGREEMENT SCHEDULE B LIFEPAK® 12 Defibrillator/Monitor Repair Service includes: •0 Standard detachable hard paddle repairs. • 0 Power Adapter repair/replacement. •OReplacement of failed internal coin cell batteries. •OPreventative replacement of internal coin cell batteries up to the number of coin cell batteries listed in the Additional Items section of Schedule A according to Physio-Control service specifications. •OBattery Coverage • ❑Replacement of four (4) Physio-Control FASTPAK®, FASTPAK 2, LIFEPAK SLA, LIFEPAK NiCd Battery every two years, or upon battery failure; OR •❑Replacement of three (3) LIFEPAK Li -ion Batteries every two years, or upon battery failure. Reference Number: L71-2449 New Printed: 11/4/2013 Page 5 of 5