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HomeMy WebLinkAbout1998-268 ( RESOLUTION NO. 98-268 2 RESOLUTION AUTHORIZING THE DIRECTOR OF PARKS, RECREATION AND COMMUNITY SERVICES DEPARTMENT TO EXECUTE AN AGREEMENT WITH THE 3 CENTER OF HEALTH RESOURCES PURCHASE CONNECTION, GROUP PURCHASING, DIETARY PROGRAM FOR RAW FOOD PRODUCTS FOR THE CITY'S 4 SENIOR NUTRITION PROGRAM. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 7 SECTION I. The Director of Parks, Recreation and Community Services is hereby 8 authorized and directed to execute on behalf of said City a one-year extension of the COHRlPurchase 9 Connection Participation Agreement for 1977 to cover the fiscal year of 1998-99 with the Center of 10 Health Resources Purchase Connection, Group Purchasing, Dietary Program relating to the reduced II purchasing price of raw food products for the City's Senior Nutrition Program. A copy of said 12 Extension Agreement is attached hereto, marked Exhibit "A" and incorporated herein by reference 13 as fully as though set forth at length. 14 SECTION 2. The authorization granted hereunder shall expire and be void and of no further 15 effect if the agreement is not executed by both parties and returned to the office of the City Clerk 16 within 60 days following the effective date of the resolution. 17 1 HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and 18 Common Council of the City of San Bernardino at a regular meeting thereof, held on the21s 19 day of September , 1998 by the following vote to wit: 20 II 21 II 22 II 23 II 24 II 25 II 26 II 27 II 28 II 1 September 17, ] 998 ........ . 98-268 , RESOLUTION AUTHORIZING THE DIRECTOR OF PARKS, RECREATION AND COMMUNITY SERVICES DEPARTMENT TO EXECUTE AN AGREEMENT WITH THE 2 CENTER OF HEALTH RESOURCES PURCHASE CONNECTION, GROUP PURCHASING, DIETARY PROGRAM FOR RAW FOOD PRODUCTS FOR THE CITY'S 3 SENIOR NUTRITION PROGRAM, 4 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT 5 ESTRADA x 6 LIEN x 7 ARIAS x 8 SCHNETZ x - 9 DEVLIN x - 10 DEAN-ANDERSON x - II MILLER x - 12 ~~ 13 14 15 The foregoing resolution is hereby approved thiS>l.~~ ofSeptemb~ ] 998. UA-- ud' h Valles, Mayor Cit of San Bernardino 16 17 September 17, 1998 , I" 98-2'6"8 , . ... L,. . COHR CC!! Date 7f? By , 1t:.:s. CORR Inc. PURCHASE CONNECTION PARTICIPATION AGREEMENT AND WARRANTY OF RESPONSffiILITY (LONG TERM CARE) THIS AGREEMENT made on 5-';;0 - . t99i.0s between COHR Inc. (hereinafter "CORR" or "COHR Inc. "), a Delaware Corporation, having its principal place of business at 201 North Figueroa Street. /"../ r / 'T) 4th Floor. Los Angeles, California, 90012-2623, and c.~ ::;.+ ~C<11 ..J:)<.v,-,a r~11 /1;:: (hereinafter "Participating Member" or "Member") whose p' pal place of business is located at WHEREBY the Participating Member desires to emer into this Agreemem for the purpose of participating in CORR- Inc. negotiated group purchasing agreemems involving the purchase of health care supplies and equipmem solely for its "own use." WHEREFORE the Panicipating Member specifically agrees to abide by and be obligated under the following terms and conditions set forth below: I. ACCESS TO GROUP PURCHASING AGREEMENTS Provided there has been no expiration. termination or other violation or breach of this Agreemem, the Panicipating Member shall be entitled to purchase health care supplies and equipment under the explicit terms and conditions cont<tined in the various COHR-Inc. negotiated group purchasing agreements. Such purchases shall inetude prnducl under rllEBIC,\1~..:~n~JntSlfa}l, PII.~.....e1.1't~CY. DIETARY ami CA...nITA-L. B~YIP!.t[UT Product lines. 0/J'lih<<- s/r<J7 .d. ~l.o '=Vlr,/q,~ n. PROGRAM PARTICIPATION FEES As consideration for access to COHR negotiated group purchasing agreements. the ParticIpating Member agrees to pay to COHR a program participation fee as set forth in the attached schedule. ill. SUPPORT OF PROGRAMS The Panicipating Member understands, acknowledges and specifically agrees to use its very best efrons to exclusively suppon all COHR-Inc. negotiated group purchasing agreements offered to member facilities at the established compIiance factor of 60 %. The sole allowable exception being in product areas where COHR-Inc. does not currently possess a negotiated group purchasing agreement. Pu.rchase Connection~ ~154:: Plummt'f Srrt'<.'t, Chdtcj\\,'rth, C:\ 91311-4103 (."i[.',) li)-~tdi ~~I.'C) 950-2641 (:-lIS) 141-9820 (,]X N:\SDAQ:CHRl 98-J68 . . IV. VENOOR COMMITMENT LETTERS By virtue of section ill above, the Participating Member. as a condition of membership, shall agree to execute any appropriate "vendor commitment letters/agreements" as may be required by cenain individual vendors, suppliers or wholesalers that have negotiated group purchasing agreements with COHR-Inc. It is funher understood that in delivering any such commitment letters or agreements, COHR is simply providing a service for the mutual benefit of the Participating Member and the respective vendor, wholesaler or supplier to facilitate the utilization of the group purchasing agreernent(s). Any such "vendor commitment letters/agreements" so executed shall be subject to all other terms and conditions of this Agreement. V. POLICY CHANGES The Participating Member acknowledges that policies governing COHR's operation of the programs that the Participating Member has access to may change from time to time. The Participating Member therefore agrees to be bound by and will adopt and conform to any such policy modifications after notice of same has been delivered to the Member by COHR. VI. TERM The term of this agreement shall extend from the date that the Participating Member is granted membership to the COHR-lnc. programs of negotiated group purchasing agreements, to the end of COHR's fiscal year. This Agreement will be automatically renewed for a twetve (t2) month period unless earlier terminated by either party pursuant to section Vill below. VIT. PUBLICATION COHR will supply, free of charge, one (t) complete set of Agreement binders (microfiche or paper media versions). POWER CONNECTION is available with the necessary formats and hardware information described in the supplemental agreement attached. If replacement of the above information media becomes necessary, there will be a catalogue production fee charged. The amount of this fee will be dependent upon what documentation requires replacement. Said fee can be itemized upon request. Vill. CANCELLATION AND TERMINATION COHR-Inc. reserves the right to cancel and terminate the rights of a Participating Member under this Agreement as follows: A) Immediately upon notice pursuant to section X below; or B) Within thirty (30) days written notice to the Participating Member; or C) For violations of section XXII confidentiality provisions; or D) For failure to adhere to section XXV provisions. E) For failure to adhere to compliance agreement. The Participating Member may cancel and terminate its rights under this Agreement upon thirty (30) days written notice to COHR-Inc. In the event the Participating Member elects to terminate as provided for above. no monies previously paid to COHR will be refunded if the Agreement tenn has three (3) months or less remaining and all currently outstanding invoices due COHR-Inc. will immediately become due and payable. 2 98-268 . . IX. INDEMNIFlCATION By its continued participation in the COHR-tnc. programs, the Participating Member hereby expressly agrees to indeIllllilY and hold-harmless COHR-tnc. against any and all claims, judgmelllS, costs, expenses or other losses ari,ing out of any conduct relating to the use of or under the authority of CORR-tnc. negotiated group purchasing agreemelllS, where conduct of the Panicipating Member fails to expressly conform to and comply with outlined CORR-tnc. rules. policies and/or directives. X. "OWN USE" POLICY The Participating Member expressly and unequivocally understands and agrees that each and every purchase made through ~ CORR-Inc. negotiated group purchasing agreemelllS for health care supplies and equipment are for that Participating Members' ultimate consumption or "own use." "Own use" being defined by any of the following: A) Those relevant sections of the Prescription Drug Marketing Act of 1987 and any amendment thereto, andIor B) Those relevant sections Robinson-Pannan Act of 1932 and any amendmelllS thereto, and/or C) The United States Supreme Court decision in Abbott Laboralories el al v Portland Retail Dru~~ist Association Inc Elc (1976) 425 US 1. THIS AGREEMENT SHOlJI_D NOT BE ENTERED INTO IF THE PARTICIPATING MEMBER IS NOT ABSOUJTELY CLEAR AS TO WHAT IS MEANT BY "OWN USE" AS IT REI_ATES TO PRODUCT PURCHASED PURSUANT TO THIS AGREEMENT. Additionally. the Participating Member understands, acknowledges and consents to having its membership immediately and unconditionally terminated following CORR-Inc. 's discovery that the Participating Member has violated or acted in an inconsistent manner to ~ provisioll of this subsection. Xl. ASSIGNMENT AND DELEGATION This agreement and any addenda to it shall not be transferable. assignable or delegable without the express written consent of CORR-tnc. Any attempted assignment of this agreement or delegation of any duties under it without express prior written authorization of CORR-tnc. is void. XII. DISPUfE RESOLUI'ION Any dispute arising between the Participating Member and COHR-tnc. under this agreement will be settled in the following manner: A) Any dispute regarding a claim for damages within the jurisdictional limits of small claims division of the Municipal Court, Los Angeles Judiciat District, will be resolved by that coun. -Bt- Any dispute between the Panicipating Member COHR-tnc. arising 0 I of this Agreement (. be submitted to b' g arbitration if the am in dispute exceeds jurisdictional limits 0 r.i\~,\ small claims n, but does not exceed tal of fifty thousand d ($50,000) in aggr te OJ LV) claim(s). Y and all disputes arbit and decided under section shall be consi ed.EIHAL / /' V tion will be conducted' s Angeles, Ca1ifo ill strict D ~iN' ac ce with the Comme Rules of The Ameri itration Association he losing pany Iu\~r\ ~ ill bear the attorney's fees and costs of the prevailin pany. r 6f(\~ 3 98'-268 '. . -, C) Any claim or claims by either party against the other that should exceed an aggregate total of fifty thousand doUars ($50,000), will not be eligible for arbitration as noted above. In such an event, the panies agree to retain their respective legal rights and section Xli below will become binding and enforceable. Xli. ATIORNEY'S FEES Pursuant to section XII above, if either party to this Agreement shall employ legal counsel 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. "The costs, salary and expenses of the City Attorney and members of his office in enforcing this contract on behalf of the City shall be considered as "attorney fees" for the purposes of this paragraph. " XN. GOVERNING LAW ~ry n~\(0 6\}'\ TJilli agreemellt shall be construed, interpreted and governed according to the laws of the State of California. XV. MODIFICATION This agreement may be modified only by written amendment duly signed and executed by each of the panies. XVI. WAIVER OF BREACH The waiver by COHR-Inc. of breach or violation of any provision of this Agreement must be explicit and in writing, and shall not operate as, or be construed to be a waiver of. any subsequent breach thereof. XVII. NOTICES Any material notice, consent, request, claim or other communication shall be in writing and shall be deemed to have been given if delivered or mailed by registered or cenified mail. return receipt requested, to the address shown for the respective party at the beginning of this Agreement. Such addresses may be changed by any party through notice given in the manner provided above. XVIll. COUNTERPARTS This agreement may be executed simultaneously in two or more cOUnterpans, each of which shall be deerned an original, however, all of which shall constitute but one and the same instrument. XIX. SEVERABILITY Should a coun 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 fulllegat force and effect. 4 ~ 98-268 . . ". XX. WARRANTIES The Participating Member understands and acknowledges that COHR-Inc. through its negotiated group purchasing agreements is performing a service and is not effecting a sale between the Panicipating Member and any vendor, manufacturer or supplier with which COHR has a negotiated group purchasing agreement. Accordingly, CORR makes no representations or warranties, either expressed or implied, as to any matter whatsoever. including, without limitation to, the condition, mercbant4bility, or fimess for pwpose, with respect to the goods. products or services provided pursuant to this Agreement. Additionally, CORR shall have no liability whatsoever for personal injury, propeny damage or lost profits caused by or related to the above mentioned products or services. XXI. PARTICIPATING MEMBER'S OBLIGATION FOR PAYMENT Participating Member shall pay the manufacturer, distributor or wholesaler directly for any and all equipment, supplies or other purchases purchased by the Panicipating Member under the authority of and pursuant to this Agreement. XXII. WARRANTY OF CONFIDENTIALITY Participating Member recognizes, understands and specifically acknowledges that the material being provided to it is for that member's use only. Panicipating member absolutely agrees not to divulge, furnish or make accessible to anyone. other than necessary employees of the Panicipating Member. any knowledge or infonnation with respect to pricing. prodUl;~, 50lW:a,t te~.J'r..qrJ!~<s.rrv,jce~ otJi'red by CORR-Inc. programs which is not otherwise generally known or ,;;;'ailii6le to ~e ffii'iustry~e inforirl'i1ll6n provided pursuant to this Agreement is CONFIDENTIAL. Failure to exercise reasonable precautions to protect the confidentiality of this infonnation would be grounds for termination of this Agreement and could result in substantial civil penalties to the Participating Member. ~ XXli. MEMBERSHIP INITIATION .A1 0 ";S(cr '7 When accepted, membership to the CORR programs of negotiated group purchasing agreements will not commence earlier than thirty (30) calendar days from receipt in CORR's offices of the properly executed panicipation agreement and completed Rome Health Infonnation Sheet. XXN. UPDATING INFORMATION SHEET The Participating Member understands, acknowledges and agrees that it is the facility's duty and obligation to update the Infonnation Sheet on an annual basis or sooner if there is a material change in the Panicipating Member's business or operations. "Material Change" shall be interpreted to include, but shall not be limited to, such changes as ownership. expiration or revocation of licenses and the like. Failure to update the infonnation form as provided for above could result in termination pursu'lnt to section vrn. XXV. ADMINISTRATIVE FEES The Panicipating Member is aware and understands that Administrative Fees may be coUected by COHR-Inc. from vendors, suppliers and/or wholesalers based on sales to the Panicipating Members. Cotlection of any such fees is to assist the funding of the COHR-Inc. programs and shatl be in futl compliance with current applicable federal law andlor regulations. 5 r. ~. ~ -98-'-,268 . '. . . XXVI. ENTIRE AGREEMENT '.. . This Agreement constitutes the entire understanding and agreement between the panies with respect to the subject matter described herein and supersedes any prior understanding or statement of conditions or intent. In affixing their signature thereto, no party is relying on anything not set forth herein above. IN WITNESS TIIEREOF this Agreement is executed in duplicate by authorized agents of the parties. FAC~Y _ ((/)v'WAA 1 Signature ~ CORR Inc, ~~~~ Signature . . Edward L Gravell Primed l';ame Annie F. Ramos Printed Name Director of Parks, Recreation & Community Services Dept. Title/Position 9~,/-3 'ff Date Senior Vice President Title/Position /Ij,./~ Z. / 7'1 ~ Date ' 6