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HomeMy WebLinkAbout2000-212 J , ' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2000-212 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE MAYOR OF THE CITY OF SAN BERNARDINO OR HER DESIGNEE TO EXECUTE AN AGREEMENT WITH INSOURCE HEALTH SERVICES GROUP, FORMERI.Y KNOWN AS PURCHASE CONNECTION DIETARY PROGRAM, FOR RAW FOOD PRODUCTS FOR THE CITY'S SENIOR NUTRITION PROGRAM. BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino or her designee is hereby authorized and directed to execute on behalf of said City an agreement with Insource Health Services Group, formerly known as Purchase Connection Dietary Program, relating to raw food products for the City's Senior Nutrition Program. A copy of said agreement is attached hereto, marked Exhibit "A" and incorporated herein by reference as fully as though set forth at length. SECTION 2. The authorization granted hereunder shall expire and be void and of no further effect if the agreement is not executed by both parties and returned to the office of City Clerk within 60 days following effective date of the resolution. III III III III III III III III III III III III III III ,---~-- ~ -- , 2000-212 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE CITY OF SAN BERNARDINO AUTHORIZING THE. MAYOR OF THE CITY OF SAN BERNARDINO OR HER DESIGNEE TO EXECUTE AN AGREEMENT WITH IN SOURCE HEALTH SERVICES GROUP, FORMERLY KNOWN AS PURCHASE CONNECTION DIETARY PROGRAM, FOR RAW FOOD PRODUCTS FOR THE CITY'S SENIOR NUTRITION PROGRAM. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor Joint and Common Council of the City of San Bemardino at aRegular meeting thereof, held on the 24t~ay of July , 2000, by the following vote, to wit: Council Members: AYES NAYS ABSTAIN ABSENT ESTRADA x LIEN x McGINNIS x SCHNETZ x SUAREZ x DEAN-ANDERSON .....lL..- McCAMMACK x ~L J:J.~ Clt lerk The foregoing resolution is hereby approved this ;)!.. ,/ day of July ,2000, Approved as to Form and legal content: /( u...-. JAMES F. PENMAN, City Attorney 2000-212 MedAssets InSource Health Services ) , . II~~ ('( I PARTICIPATION AGREEMENT THIS PARTICIPATION AGREEME~l ("Agreement") is made and entered into effective as of the Effective Date (as defined in Section 24 hereoO, by and between MedAssets.com, Inc" a Delaware corporation, and its subsidiary InSource Health Services, having its principal place of business at 21540 Plummer Street, Chatsworth, California, 91311- 4103 (hereinafter "InSource"), and Member (as defmed in Section 24 hereof). Facility Name: City Of San Bernardino. Parks and Recreation Department WHEREAS, the Member desires to participate in InSource's group purchasing program (the "Program") in order to have access to those InSource-negotiated group purchasing agreements in effect from time to time relating to the purchase of supplies, equipment, and other items involving such product lines as dietary, pharmacy, and medical/surgical (including capital equipment, radiology and laboratory) (collectively the "Purchasing Agreements"), WHEREAS, in consideration of the covenants of the Member, and subject to applicable law and the terms and conditions set forth herein, InSource desires to provide the Member with access to the Purchasing Agreements. NOW THEREFORE, InSource and the Member agree as follows: 1. ACCESS TO PURCHASING AGREEMENTS; PAYMENT So long as this Agreement remains in effect and the Member is in compliance with all of the terms and conditions set forth in this Agreement, the Member shall be entitled to purchase supplies, equipment and other items made available to Program members in accordance with and subject to the applicable terms and conditions of the Purchasing Agreements. The Member shall pay the applicable vendor, manufacturer, supplier or wholesaler (hereafter collectively referred to as a "Seller" or "Sellers ") directly for any and all equipment, supplies or other items purchased by the Member pursuant to any of the Purchasing Agreements. 2. PROGRAM PARTICIPATION FEE As consideration for access to the Purchasing Agreements, the Member agrees to pay to InSource the Annual Program Participation Fee (as defined in Section 24 hereoO, payable in equal quarterly installments beginning on the Effective Date and thereafter within ten (10) days of the beginning of each subsequent calendar quarter. 2000-212 3, SUPPORT OF PROGRAM; VENDOR COMMITMENT LETTERS The Member acknowledges and agrees that in order for the Program to be successful and provide the intended benefits to the Member, the Member and other Program members must utilize the Purchasing Agreements to the greatest extent possible. Therefore, the Member agrees that, to the extent possible taking into consideration other agreements by which the Member is bound as of the Effective Date, it shall make best efforts to utilize the Program as the Member's exclusive purchasing source for all items available through the Purchasing Agreements. In connection with the foregoing, the Member agrees to execute any appropriate "vendor commitment" letters or agreements as may be required by certain individual Sellers in connection with a Purchasing Agreement. The Member acknowledges and agrees that in connection with any such letters or agreements, InSource is simply providing a service for the mutual benefit of the Member and the respective Seller to facilitate the utilization of the Purchasing Agreements. Any such commitment letters or agreements shall be subject to all of the terms and conditions of this Agreement. 4. "OWN USE" RESTRICTIONS The Member acknowledges and agrees that the Purchasing Agreements are being made available to the Member solely for the purpose of allowing the Member to purchase items for its own use or consumption in connection with its primary business purpose. The Member agrees that it shall not make any purchases pursuant to any of the Purchasing Agreements, which are not for the Member's consumption or "own use" as more particularly defined by any of the following: a. Those relevant sections of the Prescription Drug Marketing Act of 1987 and any amendment thereto, andlor b. Those relevant sections Robinson-Pat an Act of 1932 and any amendments thereto, and/or c. The United States Supreme Court decision in Abbott Laboratories et al. v. Portland Retail Druggist Association. lnc.. Etc. (1976) 425 US 1. 5. PROGRAM POLICIES AND PROCEDURES The Member agrees to abide by those policies and procedures, which are now in effect or as hereafter, may be adopted or amended by InSource in connection with the operation of the Program. 2 2000-212 6. TERM AND TERMINATION a, Term. The term of this Agreement shall commence on the Effective Date and continue for an initial term of one (1) year, and thereafter shall automatically renew for a additional successive one (1) year terms unless otherwise terminated as provided herein. b. Termination. The Agreement may be terminated as follows: 1. Termination bv InSource. InSource may terminate this Agreement immediately upon notice to the Member stating the effective date of termination in the event any of the following events occur: (a) the Member attempts to purchase any item in violation of Section 4 of this Agreement; (b) the Member breaches the confidentiality provisions set forth in Section 10 of this Agreement; (c) the Member fails to abide by the reporting obligations set forth in Section 11 of this Agreement; or (d) the Member becomes the subject of a voluntary or involuntary bankruptcy proceeding or assignment of assets for the benefit of creditors. ii. Termination bv the Member. The Member may terminate this Agreement immediately upon notice to InSource stating the effective date of termination in the event the Member becomes the subject of a voluntary or involuntary bankruptcy proceeding or assignment of assets for the benefit of creditors. iii. Termination on Notice of Default. Either party may terminate this Agreement immediately upon notice to the other party stating the effective date of termination if the other party breaches this Agreement and such breach continues for a period of fifteen (15) days following notice by the non-breaching party to the breaching party stating the nature of such breach. iv. Ootional Termination. Notwithstanding any other provision of this Agreement. either party may terminate this Agreement, with or without cause, at any time upon giving the other party at least thirty (30) days prior written notice stating the effective date of termination. 3 2000-212 c. Effect of Termination, Upon the expiration or termination of this Agreement for any reason (i) InSource shall be entitled to receive the compensation earned but unpaid as of the effective date of termination, (ii) no monies previously paid to InSource will be refunded, and (iii) all currently outstanding invoices due InSource will immediately become due and payable. 7, PROGRAM INFORMATION InSource will supply, free of charge; one (1) set of the Program information describing the items and services available through the Program and the terms and conditions applicable to the Program and the respective Purchasing Agreements. Monthly updates and revised program indexes will be provided. If replacement of the above information media becomes necessary, there may be a catalog production fee charged. The amount of this fee will be dependent upon what documentation requires replacement. Said fee can be itemized upon request. Additional sets of program information can be provided at a predetermined cost to the Member. If the Member desires to access the Program via computer link, InSource and the Member shall negotiate and enter into an Addendum to this Agreement pursuant to which InSource will agree to make InSource Medical/Surgical Catalog andlor the Pharmacy Catalog in a electronic media available to Member in a regularly updated version. 8. ABSENCE OF WARRANTIES The Member acknowledges and agrees that InSource's operation of the Program is performing a service and is not effecting a sale between the Member and any Seller with which InSource has a Purchasing Agreement. InSource MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION REPRESENTATIONS OR WARRANTIES RELATING TO THE CONDITION, MERCHANTABIUTY, OR FITNESS FOR PARTICULAR PURPOSES, OF ANY ITEM AVAILABLE FOR PURCHASE BY THE MEMBER PURSUANT TO ANY OF THE PURCHASING AGREEMENTS. InSource shall have no liability whatsoever for any damages sustained by the Member or any other person, including without limitation damages relating to personal injury, property damage or lost profits, in connection with any such item. 9, INDEMNIFICATION AND HOLD HARMLESS The Member agrees to indemnify and hold harmless InSource from and against any and all claims, judgments, costs, expenses (including reasonable attorney's fees) or other losses arising out of or in cormection with (i) any item purchased by the Member through any of the Purchasing Contracts, (ii) any action or failure to act on the part of any party to the Purchasing Agreements other than InSource, or (iii) any failure by the Member to conform to and comply with the terms of this Agreement and the policies and procedures of InSource applicable to the Program, or (iv) any failure to fully and properly comply with all reporting obligations with respect to payments or obligations under this Agreement, including but not limited to applicable MedicarelMedicaid cost 4 2000-212 reports.. This Section 9 shall survive the expiration or termination of this Agreement for any reason, 10. CONFIDENTIAUTY Information provided by InSource to the Member in connection with the Program or otherwise pursuant to this Agreement is CONFIDENTIAL. The Member agrees to cause its employees and agents to take necessary steps to protect the confidential nature of such information. Without limiting the generality of the foregoing, the Member specifically agrees not to divulge, furnish or make accessible to anyone, other than necessary employees of the Member, any knowledge or information with respect to pricing, products, contract terms or services offered by InSource, whether or not in connection with the Program, which is not otherwise generally known or publicly available. Upon the expiration or termination of this Agreement for any reason, the Member shall return to InSource any confidential documents, computer disks or tapes, or other information in its possession. This Section 10 shall survive the expiration or termination of this Agreement for any reason. 11. UPDATING INFORMATION SHEET Prior to the Effective Date the Member shall have completed an information sheet setting forth- such information as InSource deems appropriate in connection with the Member's participation in the Program (the "Information Sheet"). The Member shall update the Information Sheet (i) within ten (10) days of any material change in the Member's business or operations, and (ii) on an annual basis within thirty (30) days following each annual anniversary date of the Effective Date. "Material change" shall include, without limitation, changes in ownership or management of the Member, expiration or revocation of licenses, registrations or certifications required by law in connection with the ongoing operation of the Member, and other matters which could reasonably be construed to have a material impact on the Member's ongoing operations. 12. DISPUTE RESOLUTION Any dispute controversy or claim arising out of this Agreement with an amount in controversy of less than $150,000 shall be settled by arbitration in accordance with this Section. Any arbitration under this Section shall be conducted in accordance with the procedures and commercial arbitration rules of the Los Angeles, California office of the American Arbitration Association. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. If the parties are unable to agree upon a single arbitrator, each party shall appoint one arbitrator and the two arbitrators shall appoint a third arbitrator. The place of arbitration shall be Los Angeles County, California. The arbitrators shall decide legal issues pertaining to the dispute, controversy or claim pursuant to the laws of the State of California, Subject to the control of the arbitrators, or as the parties may otherwise mutually agree, the parties shall have the right to conduct reasonable discovery pursuant to the California Rules of Civil 5 2000-212 Procedure. The parties hereto shall share equally in the cost of any arbitration pursuant to this Section 12. 13. ATTORNEY'S FEES; INTEREST If either party to this Agreement shall initiate arbitration or legal action to protect its rights under this Agreement or to enforce any term or provision of this Agreement, the party prevailing in any such legal action shall have the right to recover from the other party all of its reasonable attorney's fees, costs and expenses incurred in relation to such action. This Section 13 shall survive the expiration or termination of this Agreement for any reason. All awards in arbitration or litigation in connection with this Agreement shall bear interest, from the date the dispute arose, J at the rate of twelve percent (12 %) per annum or the maximum rate permissible by applicable law, r ~~ whichever is less. All amounts due pursuant to the terms of this Agreement or any Addenda ~':f;\j hereto shall bear interest, from the date the date due, at the rate of twelve percent (12%) per ~ 'il'i annum or the maximum rate permissible by applicable law, whichever is less. The costs. salary and expenses of the C~ty Attorney &aembers of his off~ce in enforcing th~s contract on behalf 14. GOVERNING LAW of the C~ty shall be considered as "attorney fees" for tbe purposes of thi.s paragraph. This agreement shall be construed, interpreted and governed according to the laws of the State of California. 15. ASSIGNMENT AND DELEGATION This Agreement shall not be transferred or assigned by the Member, and the Member, without the express written consent of InSource may delegate no obligations under it. 16. AMENDMENT This Agreement may be amended only by written agreement executed by duly authorized representatives of the Member and InSource. 17. WAIVER OF BREACH Any waiver by InSource of a breach or violation of any provision of this Agreement shall be explicit and in writing, and unless otherwise stated shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof. 18. NOTICES Any material notice, consent, request, claim or other communication in connection with this Agreement shall be in writing and shall be deemed to have been given if delivered or mailed by pre-paid registered or certified mail, return receipt requested. to the address shown for the respective party at the beginning of this Agreement. Such addresses may be changed by either party through notice given to the other party in the manner provided herein. 6 2000-212 19. SEVERABILITY Should a court of competent jurisdiction hold any of the sections contained in this Agreement not to be valid or to be otherwise unenforceable, that section shall be excised from this Agreement and the remaining sections shall be given full legal force and effect and interpreted in accordance with the parties intentions as set forth herein. 20. ADMINISTRATIVE FEES The Member is aware and understands that administrative fees of not greater than three percent (3 %) of the purchase price, may be collected by InSource from Sellers based on sales to the Member and other members of the Program in order to assist InSource in funding the operation of the Programs. InSource shall provide the Member with a report on an annual basis stating the amount received by InSource from each Seller in connection with purchases made by the Member. 21. ACCESS TO RECORDS InSource agrees to retain, and for four years after services are furnished pursuant to this Agreement agrees to allow the Comptroller General of the United States, the U.S. Department of Health and Human Services, and their duly authorized representatives access to this Agreement and to such of InSource's books, documents and records as are reasonably necessary to verify the nature and extent of the costs of the services supplied under this Agreement. Further, ifInSource provides any of its services under this Agreement pursuant to a subcontract and if (i) the services provided pursuant to said subcontract have a value or cost of $10,000.00 or more over a twelve (12) month period and (ii) said subcontract is with a related organization, then InSource agrees that said subcontract shall contain a clause requiring the subcontractor to retain and allow access to their records on the same terms and conditions as required of InSource by this Section. This provision shall be null and void should it be determined that 42 U.S.C. 1395x(v)(I)(I) is not applicable to this Agreement. 22. LIMITED RELATIONSHIP The parties expressly acknowledge hereto that the Member and InSource are independent contractors and nothing in this Agreement is intended nor shall be construed to create an employerlemployee relationship, or a joint venture or partnership relationship. Neither party shall be authorized to obligate the other, except as expressly provided in this Agreement. 7 2000-212 23. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the Member and InSource with respect to the subject matter hereof, and there is no understandings, agreements or representations, verbal or written, with respect to the subject matter hereof other than those set forth in this Agreement. This Agreement supersedes any prior negotiations, understandings or agreements between the Member and InSource with respect to the subject matter hereof and all such agreements are of no further force and effect. This Agreement shall be binding on the heirs, successors in interest and permitted assigns of the parties. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 8 2000-212 24. DEFINITIONS In addition to the other terms defined elsewhere in this Agreement, for purposes of this Agreement the following terms shall have the respective meanings as ascribed thereto: a. "Effective Date" shaII mean the'.::z~ h day of July 2000. b. "Member" shall mean City of San Bernardino ,a CA (state) Long Tnm Carp Agpnry (class of trade) which has its principal place of business at 547 N. Sierra Way, San Bernardino, CA 92410 c. "Annual Program Participation Fcc" shall mean $ 1.000.00 IN WITNESS WHEREOF. the parties have executed this Agreement as of the date first above written. MEMBER!J Signao/e InSource Health Services: ~~~/ SignatuIe . ame Edward L. Gravell Printed Name Ju Mayor TitleJPosition \ \ ,. '--)'-\. '-'I, President TitlelPosition Ct.. (' ('..._~,( 5:t+~ If, LoOV Da ' Date Acct Representative: Print Signature 9