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Home My WebLink About1997-166 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 97-166 RESOLUTION 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 SENIOR 4 NUTRITION PROGRAM. 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Director of Parks, Recreation and Community Services is hereby authorized and directed to execute on behalf of said City an agreement with the Center of Health Resources Purchase Connection, Group Purchasing, Dietary Program relating to the reduced purchasing price of 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 the City Clerk within 60 days following the effective date of the resolution. I HEREBY CERTIFY that the foregoing resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a joint regular meeting thereof, held on the 2nd June , 1997 by the following vote, to day of wit: II II II 5/14/97 -1- 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 .97-166 RE: RESOLUTION REGARDING AN AGREEMENT WITH CENTER OF HEALTH RESOURCES PURCHASING CONNECTION, GROUP PURCHASING, DIETARY PROGRAM FOR THE CITY'S SENIOR NUTRITION PROGRAM. COUNCIL MEMBERS AYES NAYS ABSTAIN ABSENT NEGRETE x CURLIN X ARIAS X OBERHELMAN X DEVLIN X ANDERSON X MILLER X The foregoing resolution is ~~~- a el Clark, City CleJk hereby approved this 1# day of June , 1997. ~~'X{{4rurl T6m Minor, Mayor City of San Bernardino Approved as to form and legal content: James City F. Penman ttorney JJ A 7--f~ By: /11/ I II II purchase connection grp-u 5/14/971 -2- 97-166 ('_.,),,,..... ",.,., ..~.., ,;.. COHR CC!! _.1_ _. [ 199/ DateJsf7 By . 1t:.~ CORR Inc. PURCHASE CONNECTION PARTICIPATION AGREEMENT AND W AR.RANTY OF RESPONSIBIT.ITY (LONG TERM CARE) THIS AGREEMENT made on 5-;;'0 - ,199i?is between COHR Inc. (hereinafter "COHR" or "COHR Inc. "), a Delaware Corporation, having its principal place of business at 201 Nonh Figueroa Slree[, 4thFloor,LosAngeles,Califomia.900l2-2623,and C// :Jf -5:" -13<v"'4t'~(ir1:;; (hereinafter "Participating Member" or "Member") whose p . al place of business is located at WHEREBY the Participating Member desires to emer into this Agreement for the purpose of participating in COlIR- Inc. negotiated group purchasing agreemems involving the purchase of health care supplies and equipmem solely for its . own use.. WHEREFORE the Participating Member specifically agrees [0 abide by and be obligated under the following terms and conditions set fonh below: l. ACCESS TO GROUP PURCHASING AGREEMENTS Provided there has been no exp,ration, termination or other violation or bre3cb of this Agreemem, the Panicipating Member shall be entitled to purchase bealth care supplies and equipmem under the explicit [eons and conditions (omamed in the various COHR-lnc. negnnaled group purchasing agreemems. Such purchases sball include prnduct under ~lESIC:d..:SURC:It2:..L, PII:...ll.lt.CY, DIETARY _ CA~..nrr.\h r{~rJWl.(r:HT Product lines. ./f/j1fr'- Slr'l? n. PROGRAM PARTICIPATION FEES As consideration for access tn COHR negotiated group purchasing agreemems, the Participating Member agrees to pay to COHR a program paniclpauon fee as sel forrh m the attached schedule. ill. SUPPORT OF PROGRA.\IS The Panictpanng Member understands. acknowledges and specifically agrees to use its very best effons to exclusively suppon all COHR.lnc. negonated group purchasing agreemems offered to member facilities at the eSLlblished compliance factor of 60 ~. The sole allowable exceplion being in product are3S wbere COHR-Inc. does nOl currently possess a negouated group purchasmg agreemeDl. r u r l" It cl S ~ COli II r: ~. [ i oj It ' 2 ~ i -l..' P I II m ll\ \.' r :' I r..:..: r. C h .1 l .. \\ " r I h. C.-\ Y I '; I I - -I I 0 J ('['I ~~).~f'';~ ,'<,'1 '-1)~.:t)47 \~l,';') 141.9S2\.' 1,1'( :\.-\SD.-\Q:CHRI 97-166 IV. VENDOR COMMlnlE~1 LETIERS By virtue of section 1JI above, the Panicipating Member. as a condition of membership, shall agree to exeCUte any appropnate 'vendor commnmeDlletters/agreemeDls' as may be required by certain individual vendors. suppliers or wholesalers that have negotiated group purchasing agreemeDlS with COHR-Inc. It is funher understood that in delivering any such commianeDl letters or agreements. COHR is simply providing a service for the nwrual benefit of the Participating Member and the respective vendor, wholesaler or supplier to facilitate the utilization of the group purchasing ag:reemeDl(s). AJJy such "vendor commianeDl leners/agreemeDlS" so executed shall be subject to all other terIDS and conditions of this AgreemeDl. Y. POLICY CHANGES Tbe Panicipating Member acknowledges that policies goyerning COHR's opemion of the programs that the Panicipating Member has access to may change from time 10 time. Th< Panicipating Member therefore agrees to be bound by and will adopt and conform to any such policy modifications after notice of same has heen delivered to the Member by COHR. VI. TERM The term of this agreemem shall enend from the date that the Participating Member is granted membership to the COHR-Inc. programs of negotiated group purchasing agreementS, to the end of COlIR's IiscaJ year. This Agreement will be automatically renewed for a twelve (12) month period unless earlier terminated by either pany pursuant to section YlJI below. YD. PUBLICATION COHR will supply, free of charge. one (I) complete set of Agreemem binders (microfiche or paper media versions). POWER CONNECTION is available with the necessary formats and hardware information descnbed in the supplemerual agreemeDl altlched. If replacemeDl 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 dOClll11Pn..rion requires replacement. Said fee can be itemized upon request. Yrn. CANCELLATION AND TERr-nNATION COHR-Inc. reserves the right to cancel and terminate the rights of a Participating Member under this Agreemem as follows: A) ImfTV'l1i.tely 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 XXll confideotialil)l provisions; or 0) For failure to ;idhere 10 seenon XXV provisions. E) For failure to adhere 10 comphance agreemeDl. The Panicipating Member may cancel and terminate its rights under this AgreemeDl upon thirty (30) days wrinen nouee to COHR.lnc. In the eveDl the ParuClpalLDg Member eleers to lerminate as provided for above. no monies prevlOusl, p3Jd 10 COHR will be refumed If the AgreemeDllerm bas three (3) momhs or less remaining and all curreDlly OutstandLDg LDvOlces due COHR-Inc. wlll1IDIDedialely become due and payable. 2 I I I I 97-166 IX. INDEMNIFICATION By IlS continued participauon in the COHR-Inc. programs, the Pamciparing Member hereby expressly agrees to rndemnify and hold-harmless COHR-Inc. ag:unst any and all claims, judgments, costs. expenses or other losses arising out of any conduct relaung 10 the use of or under the authoril}' of COHR.Inc. negotiated group purchasing agreements. where conduct of the Participaung Member fails to expressly conform to and comply with outlined COHR-Inc. rules, policies andIor directives. X. "OWN USE" POLICY The Panicipating Member expressly and unequivocalJy understands and agrees that each and evelJ/ purchase made through ~ COHR-Inc. negotiated f.Toup purchasing agreements for health care supplies and equipment are for !hat Participating Members' ultImate consumption or 'own use." "Own use" being defined by any of the foUowing: A) Those relevant sections of the Prescription Drug Marketing Act of 1987 and any amendment thereto, andIor B) Those relevant sections Robinson-Paanan Act of 1932 and any 'IIlI'rvlRV'nt' thereto. andIor C) The United States Supreme Coon decision in Abbott bhoratorie, et al v Ponlorvl Retail Dn'ffi<t Associatioo Inc Etc (1976) 425 US I. THIS AGREEMENT SHOULD NOT BE ENTERED INTO IF THE PARTICIPATING MEMBER IS NOT ABSOLUrELY CLEAR AS TO WHAT IS MEANT BY "OWN USE" AS IT RELATK<; TO PRODUCT PURCHASED PURSUANT TO THIS AGREEMENT. Additionally, the Participating Member underswids, acknowledges and consents to baving its membership immediately and unconditionally terminated foUowing CaRR-inc. 's discovery that the Panicipating Member has violated or acted in an inconsistent manner to ~ provision 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 COHR-Inc. Any attempted assignment of this agreement or delegation of any duties under it without express prior written authorization of COHR-Inc. is void. XU. DISPUfE RESOLUIlON Any dispute arising between the Participating Member and CORR.Inc. under this agreement will be settled in the following manner: A) Any dispute regardmg a c1aun for damages within the jUrisdictional limits of small claims division of the Murucipal Conn. Los Angeles Judicial District. will be resolved by that coun. -l:l1- v-t- 0'\ ~ ') ,~ /' \.-- l! C?-~'i ,,~ , J ,/ \.\ ~ j / ~.:7ll\' \ J\ \, Any dispute berween the Panlcipaung Member COHR.Inc. arising 0 t of this Agreement be submitted to b g arbitrauon if the in dispute exceeds )urisdictionallimits 0 small claims , but does not exceed of fifty thousand d ($50,000) in a e clalln(s). y and all disputes amIl and decided under section shall be cons' flliAI. uon will be coIXlucted ' s Angeles. Califo m strict ac e With the Comme Ru!es of The Ameri iuation Association losing pany ill bo4r the anorney's rees and COSlS of the prevai1in pony. 3 .- .. 97-166 C) Any claun or clauns by either pany against the other that sbould exceed an aggregate total of fifty thousand dollars ($50.000). will nor be eligible for arbllr.ltion as nored above. In such an event, the panies agree to retalD their respective legal rights and section Xli below will become binding and enforceable. Xli. ATIORNEY'S FEES Pursuant to section XII above, if eilber pany 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 bave the right to recover from the other pany 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 lbe City shall be considered as "attorney fees" for the purposes of this paragraph. " XlV. GOVERNING LAW (/ ^L\ r't\\ 11,1 II II.. "'\\" '.l\r This agreement shall be construed, interpreted and goyemed according 10 the laws of the State of California. xv. MODIF1CATION This agreement may be modified only by written amendment duly signed and executed by ~ 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 10 be a waiver nf, any subsequent breach thereof. XVIl. NOTICES Any malerial nOlice. consent, request, claim or other communication sball be in writing and sball be deemed 10 bave been gi"en If delivered or mailed by regisrered or cenified mail. rerum receipt requested, to the address sho"n for [he respective pany at the beginning of this Agreement. Such addresses may be changed by any pany through notice gIven in the manner provided above. XVli. COUNTERPARTS This agreement may be executed simultaneously in two or more cowuerpans. each of which shall be deemed an onginal. however, all of which sball constirule but one and the same instlument. XIX. SEVERABll..ITY Sbould a coun of competent jurisdicuon hold any of the sections contained in this agreement not to be Yalid or to be otherwise unentorceable. that section sball be excised from this Agreement and the remaining sections shall be given full legal force and effect. 4 97-166 xx. WARRANTIES The Paniclpating Member undefSlands and acknowledges that COHR-Inc. through ilS negotiated group purchasing agreemerns IS perfonmng a service and IS nOl effecting a sale between the Panicipating Member and any vendor, manufacturer or supplier with which COHR has a negotiated group purchasing agreemern. Accordingly. COHR mal<es no representations or warranties. either expressed or implied. as to any maner whatsoever. including. wilhout limitation to, the condition. merchaoubiliry. or fimess for purpose, with respect to the goods. prodnclS or services provided pursuant to this Agreemern. Additionally. COHR shall have 00 liabiliry whalSoever for personal injuIy, propeny damage or lost prnfits caused by or related to the above mentioned products or services. XXI. PARTICIPATING ME!\ffiER'S OBLIGATION FOR PAYMENT Panicipating Member sball pay the manufacturer, dismbutor or wholesaler directly for any and all equipment, supplies or nther purchases purchased by the Panicipating Member under the authoriry of and pursuant to this Agreement. xxn. WARRANlY OF CONFIDENTIALITY Panicipating Member recognizes, understands and specifically acknowledges that the malerial being provided 10 it is for that member', 11<0 only. Panicipating.member absolutely agrees not to divulge, furnish or make accessible to anyone, other !ban necessary employees of the Panicipating Member, any knowledge or information with respect to pricing, pr.gc;u5!S' .7.?JW1f! te~".,Il';.qtJ;e,V~IV,j~.o~red by COHR-Ioc. programs wbicbis not otherwise generally known or aYaila6le to ~ Ji1GSuyY't1le monil'aooo provIded pursuant 10 this AgreemeDllS CONFIDENTIAl. Failure to exercise reasonable precautions to prolect the confidentiality of this information would be grounds for termination of this AgreemeDl and could result in substantial civil peoalties tn the Panicipating Member. ~ XXill. MEMBERSHIP INITIATION . .A4 0 7~/i7 When accepted, membership to the COHR programs of negotialed group purchasing agreements will not com""'~ earlier !ban thiny (30) calendar days from receipt in COHR's offices of the properly executed panicipation agreemeDl and completed Home Health Infonnation Sheet. X}(IV. UPDATING INFORMATION SHEET The Panicipating Member understands. acknowle<lges and agrees that it is the faciliry's dury and obligation 10 update the Information Sheet on an annual basis or sooner if there is a malerial change in the Panicipating Member's business or operations. "Material Change" sball be interpreled 10 include, bul sball DOt be limited 10, such cbanges as ownership. expintion or revocation of licenses and the like. Failure 10 update the information form as provided for above could result in termination pursuanr to section vrn. XXV. ADI\UNlSTRA TIVE ITES The Paruclpating Member is aware and uodersL1lllls thaI Administrative Fees may be collected by COHR-Ioc. from vendors. suppl1ers andJor wholesalers base<l on sales 10 the Panicipating Members. Collection of any such fees is 10 "'5151 the fwxltng of the COHR.lnc. programs and shall be ill full compliance WIth curreDl applicable federal law andJor regulations. 5 97-166 XXVI. ENTIRE AGREEMENT This Agreemem constitutes the entire understanding and agreemem between the panies with respect to lhe subject matter described herein and supersedes any prior understanding or statemem of conditions or iment. [n affixing their signature thereto, no party is relying on anything not set fonh herein above. IN WITNESS THEREOF this Agreemem is executed in duplicate by authorized agems of the parties. FA9lrITY . ~J~ Signature ~ C Annie F. Ramos Printed Name Director of Parks, Recreation & Community Services Dept. Title/Position ~J'c d 1/ ;oll1 Dat CORR Inc. c-y~~ Signature Edward L Gravell Primed Name Senior Vice President TitlelPosition JJt 10) 1'117 6