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Home My WebLink About2011-089 . 1 RESOLUTION NO. 2011-89 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 3 ISSUANCE OF A PURCHASE ORDER TO ZOLL MEDICAL CORPORATION FOR FOUR CARDIAC MONITOR/DEFIBRILLATORS WITH ACCESSORIES. 4 5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 6 7 SECTION 1. That Zoll Medical Corporation has offered a total negotiated purchase price 8 of $93, I 00, for the required four cardiac monitorldefibrillators with accessories. Pursuant to this 9 determination and the San Bernardino Municipal Code Section 3.04.01 OB(3), the Director of Finance 10 or her designee is hereby authorized and directed to issue a Purchase Order to Zoll Medical 11 Corporation in the amount of $93, I 00 which will facilitate the procurement of the four cardiac 12 monitorldefibrillators with accessories; and ] 3 SECTION 2. The City Manager is hereby authorized and directed to execute on behalf of 14 the City, a Purchase Agreement with Zoll Medical Corporation, a copy of which is attached hereto, 15 marked Attachment" 1 ", and incorporated herein by reference as though fully set forth at length; and 16 SECTION 3. The authorization to execute the above referenced Agreement and 1 7 Purchase Order is rescinded if not fully executed/issued within thirty (30) days of the passage of 18 this resolution. 19 IIII 20 IIII 21 IIII 22 IIII 23 IIII 24 IIII 25 IIII 26 IIII 27 IIII 28 IIII 2011-89 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE EXECUTION OF AN AGREEMENT AND 2 ISSUANCE OF A PURCHASE ORDER TO ZOLL MEDICAL CORPORATION FOR FOUR CARDIAC MONITOR/DEFIBRILLA TORS WITH ACCESSORIES. 3 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and joint 5 Common Council of the City of San Bernardino at a regular meeting thereof, held on 6 the 18th day of April ,2011, by the following vote, to wit: 7 COUNCIL MEMBERS: AYES ABSTAIN ABSENT NAYS 8 x 9 MARQUEZ VACANT BRINKER 10 11 x X 12 SHORETT KELLEY JOHNSON X 13 X 14 MCCAMMACK X ()~h.~ ~I G. Clark, City Clerk City of San Bernardino 15 16 17 18 The foregoing Resolution is hereby approved this /1'/lrday of April ,2011. 19 20 'ck J. Mom, or of San Bernardino 21 Approved as to form: 22 JAMES F. PENMAN, City Attorney 23 24 ?z;-~&.r 25 26 27 28 2011-89 littachm,,-nt "1" PURCHASE AGREEMENT This Purchase Agreement is entered into this 18th day of April ,2011, by and between Zoll Medical Corporation_ ("Vendor") and the City of San Bernardino ("City" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council has determined that it is advantageous and in the best interest of the City to contract for the purchase off our (4) cardiac monitor/ defibrillators; and WHEREAS, the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of cardiac monitor/defibrillators. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide four (4) E Series ACLS Manual Defibrillators and accessories, as set forth on Exhibit "A," attached hereto and incorporated herein. 2. COMPENSATION AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of$93,100.00, including applicable sales tax and freight, as set forth on Exhibit "A." b. City shall pay additional charges for expedited delivery if requested by City. c. No other expenditures made by Vendor shall be reimbursed by City. 3. TERM; TERMINATION. This purchase shall be completed within Fiscal Year 10111. This Agreement may be terminated at any time by thirty (30) days' written notice by either party. The terms of this Agreement shall remain in force unless mutually amended. 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agreement shall conform to vendor's published specifications, drawings or other description upon which this PURCHASE is based, and shall be of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or con'ect promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defccts in or replace non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for purposes of this section shall not be deemed to 2011-89 require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 5. INDEMNITY. Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage caused by any negligent or intentional acts or omissions of Vendor, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or representatives. As part of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such negligent or intentional acts or omissions by vendor. Vendor hereby waives any and all rights to any types of express or implied indemnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to product defects or the negligent or intentional acts or omissions of vendor. 6. INSURANCE. While not restricting or limiting the foregoing, during the telm of this Agreement, Vendor shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of$I,OOO,OOO.OO combined single limit, and shall file a certificate of insurance with the City's Risk Manager prior to undertaking any work under this Agreement. 7. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, Vendor shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally required of Vendor to practice its business or profession. 9. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE City: Fire Chief of the City of San Bemardino 300 North "D" Street San Bernardino, CA 92418 Telephone: (909) 384-5286 2011-89 TO THE Vendor: ZOLL Medical Corporation Attn: Darren Dumas - Contracts Coordinator 269 Mill Road Chelmsford, MA 01824 800-242-9150 x 9319 10. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, including those ofin-house counselor City Attorney, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. 11. ASSIGNMENT. Vendor shall not voluntarily or by operation oflaw assign, transfer, sublet or encumber all or any part of the Vendor's interest in this Agreement without City's prior written consent. Any attempted assignment, h.ansfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the telmination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Vendor of Vendor's obligation to perform all other obligations to be performed by Vendor hereunder for the term of this Agreement. 12. VENUE. The pm1ies hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bernardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the pal1ies to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its proVISions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any 2011-89 other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. 18. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding between the parties, and supersedes any prior agreements and understandings relating to the subject manner of this Agreement and any conflicting provisions contained in Exhibit "A," Zoll Quotation General Terms & Conditions. This Agreement may be modified or amended only by a written instrument executed by all pm1ics to this Agreement. IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date set forth below. By: Dated: ,2011 Dated ,2011 CITY OF SAN BERNARDINO By: Charles McNeely, City Manager Approved as to Form: James F. Penman, City Attomey By: 2011-89 [",haiL ",4" ZOLL~ San Bernardino, CA 92415 ZOLL Medical CorporatiQn Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Customer Support FEDERAL ID#: 04-2711626 TO: San Bernardino City Fire Department Attn: Bernie Horak QUOTATION 74638 V:2 DATE: December 16, 2010 email: horakbe@ci.san-bernardino.ca.us TERMS: Net 30 Days FOB: Shippin9 Point FREIGHT: Prepay and Add ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE 1 50211730020124014 E Series ACLS Manual Defibrillator with See-Thru 4 $25,34500 $20,276.00 $81,10400 . CPR$, Real CPR Help!!> Advisory capability, 12-lead with 1-step patient cable, Sp02 (comes with EtC02 port), Integrated Bluetooth, NIBP with Adult-Plus cuff and hose and Noninvasive Pacing Includes: AC Power, Printer, Protocol Assist Code Markers and GPS Clock Auto Sync, TriMode Display, 3-lead ECG palient cable, universal cable, ready for one (1) SurePowerTM Rechargeable Lithium Ion Battery with built in AC Charger ordered separately, RS232 data transfer port,Expanded Carry Case and Rapid Cable Deployment System, AC power cord, 12" AC power extension cord, one package of recorder paper, two PCMCIA Card slots, Operator's Manual and standard one (1) year warranty for EMS use. 1a 8000- 1007- 02 1 Step Patient Cable for 12-lead ECG with limb leads 4 $315.00 Included Included and v leads ( 7 ft ) 2 8000-0330 Sp02 Rainbow Resuable Patient Cable: Connects to 4 $295.00 $236.00 $944.00 . lNCS Single Use and Resuable Sensors (4 ft) 3 8000-0294 Sp02 LNCS Adult Reusable Sensor (1 each) 4 $295.00 $236.00 $944.00 . 4 8000-0312 E Series Only CAPNO 5 Mainstream C02 Sensor and 4 $4,775.00 $3,581.25 $14,325.00 . Cable 5 8050-0030-01 SurePower~ Charging Station 2 $2,275.00 $1,706.25 $3,412.50 . "his quote is made subject to lOll's standard commercial terms and conditions (lOll T's + C's) which Paae 1 Subtotal $100,729.50 Iccompan this quote. Any purchase order (P.O.) issued in response to this quotation will be deemed to y ncorporate lOll r's + C's. Any modification of the ZOll T's + C's must be set forth or referenced in the :ustomer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed IY this quote and the customer's P.O unless set forth in or referenced by either document. 1. DELIVERY Will BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES Will BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 90 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEES ADDITIONAl. 6. All PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOllo 7. PURCHASE ORDERS TO BE FAXED TO ZOll CUSTOMER SERVICE AT 978-421-0015. 8. All DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 1 Bryan Pank Sr. EMS Account Executive 800-242-9150,x9218 ZOLL~, 2011-89 ZOLL Medical Corporation Worldwide Headquarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Customer Support FEDERAL ID#: 04-2711626 TO: San Bernardino City Fire Department San Bernardino, CA 92415 Attn: Bernie Horak QUOTATION 74638 V:2 email: horakbe@cLsan-bernardino.ca.us DATE: December 16, 2010 TERMS: Net 30 Days ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE 6 8019- 0535- 01 SurePower'" Rechargeable lithium Ion Battery Pack 12 $4 75.00 $356.25 $4,27500 . 7 8000- 1650 Cuff, All Purpose, Pediatric I Small Adult, 17 - 25cm 8 $32.00 $24.00 $192.00 . 8 8000- 1653 Cuff, All Purpose, Large Adult, 31 - 40cm 8 $42.00 $32.00 $256.00 . I 9 8000- 1654 Cuff, All Purpose, Thigh, 38 - 50cm 8 $42.00 $33.60 $268.80 . 10 8000-0370 CPR Connector 4 $265.00 No Charge No Charge . 11 7777- 0125 NIBP Upgrade (must have SP02) 4 $5,00000 $3,071.25 $12,28500 . 12 8778-0107 4 Year Extended Warranty (at time of equipment sale) 4 $3,55000 $3,55000 $14,20000 13 4001- 9910 ZOlL M Series Biphasic w/Pacing + 2 options Trade-In 4 ($6,883.50) ($27,534.00) .. I 14 8050-9901 All ZOll Chargers Trade-in 2 ($100.00) ($20000) .. 15 DI SC ZOLl loyalty Discount 1 ($19,906.30) ($19,906.30) Valid for an order received on or before March 1, 2011 rhis quote is made subject to ZOLL's standard commercial terms and conditions (ZOlL T's + C's) which PaDe 2 Subtotal $84,566.00 lccompany this quote. Any purchase order (P.O.) issued in response to this quotation will be deemed to FOB: Shippin9 Point FREIGHT, Prepay and Add ncorporate ZOLL T's + C's. Any modification of the ZOLL T's + C's must be set forth or referenced in the :ustomer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed IY this quote and the customer's P.O unless set forth in or referenced by either document. 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES WILL BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 90 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEES ADDITIONAL. 6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL. 7. PURCHASE ORDERS TO BE FAXED TO ZOLL CUSTOMER SERVICE AT 978-421-0015. 8. ALL DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 2 Bryan Pank Sr. EMS Account Executive 800-242-9150,x9218 ZOLL@ 2011-89 ZOLL Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Customer Support FEDERAL 10#; 04-2711626 TO: San Bernardino City Fire Department San Bernardino, CA 92415 Attn; Bernie Horak QUOTATION 74638 V:2 email: horakbeliilci.san-bernardino.ca.us DATE: December 16, 2010 TERMS: Net 30 Days FOB: Shipping Point FREIGHT, Prepay and Add ITEM MODEL NUMBER DESCRIPTION OTY. UNIT PRICE DISC PRICE TOTAL PRICE Estimated Sales Tax 9% $8,379.00 I Estimated Shipping & Handling $155.00 **Trade-In Value valid jf all units purchased are in good operational and cosmetic condition, and include all standard accessories such as paddles, cables, etc. Customer assumes responsibility for shipping trade-in equipment to ZOLL Chelmsford within 60 days of receipt of new equipment. Customer agrees to pay cash value for trade-in equipment not shipped to ZOLL on a timely basis. -Reflects Discount Pricing & CPR Promotional Items "his quote is made subject to ZOll's standard commercial terms and conditions {ZOll T's + C's} which TOTAL $93,100.00 lccompany this quote. Any purchase order (P.O.) issued in response to this quotation will be deemed to ncorporate ZOll T's + C's. Any modification of the ZOll T's + C's must be set forth or referenced in the :ustomer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed IY this quote and the customer's P.O unless set forth in or referenced by either document 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEiPT OF ACCEPTED PURCHASE ORDER. 2. PRICES WILL BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 90 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEES ADDITIONAL. 6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL. 7. PURCHASE ORDERS TO BE FAXED TO ZOLL CUSTOMER SERVICE AT 978-421-0015. 8. ALL DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COpy OF OR REFERENCE TO YOUR QUOTATION NUMBER WiTH PURCHASE Page 3 Bryan Pank Sr. EMS Account Executive 800-242-9150,x9218 ZOLL QUOTATION GENERAL TERMS & CONDITIONS 1. ACCEPTANCE. This Quotation constitutes an offer by ZOlL Medical Corporation to sell to the Customer the equipment (including a license to use certain software) listed in this Quotation and described in the specifications either attached 10 or referred 10 in this Quotation (hereinafter referred to as Equipment). Any acceptance of SUCh offer is expressly limited to the terms of this Quotation, including lhese General Terms and Conditions. Acceptance Shall be so limited to this Quotation notwithstanding (I) any conflicting written or oral representations made by ZOlL Medical Corporation or any agent or employee of lOLL Medical Corporation or (ii) receipt or acknowledgement by ZOLL Medical Corporation of any purchase order, specification, or other document issued by the Customer. Any such document shall be wholly inapplicable to any sale made pursuant to this Quotation, and shall not be binding in any way on lOll Medical Corporation. Acceptance of this Quotation by the Customer Shall create an agreement between lOll Medical Corporation and the Customer (hereinafter referred to as the 'Contract" the terms and conditions of which are expressly limited to the provisions of this Quotation including these Terms and Conditions. No waiver change or modification of any of the provisions of this Quotation or the Contract shali be binding on lOll Medical Corporation unless such waiver, change or modification (i) is made in writing (ii) expressly states that it is a waiver, change or modification of this Quotation or the Contract and (iii) is signed by an authorized representative of lOll Medical Corporation. 2. DELIVERY AND RISK OF LOSS. Unless otherwise stated, all deliveries Shall be F.O.B, lOll Medical Corporation's facility, Risk of ioss or damage to the Equipment shall pass to the Customer upon delivery of the Equipment to the carrier. 3. TERMS OF PAYMENT. Unless otherwise stated in its Quotation payment by Customer is due thirty (30) days after the ship date appearing on lOll Medical Corporation invOice. Any amounts payable hereunder which remain unpaid after the date shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid. 4. CREDIT APPROVAL. All shipments and deliveries shall at all times be subject to the approval of credit by lOll Medical Corporation. lOll Medical Corporation may at any time decline to maKe any shipment or delivery except upon receipt of payment or security or upon terms regarding credit or security satisfactory to lOll Medical Corporation. 5. TAXES & FEES. The pricing quoted in its Quotation do not include sales use, excise, or other similar taxes or any duties or customs charges, or any order processing fees. The Customer shall pay in addition for the prices quoted the amount of any present or future sales, excise or other similar tax or customs duty or charge applicable to the sale or use of the Equipment sold hereunder (except any tax based on the net income of ZOll Medical Corporation), and any order processing fees that ZOll may apply from time to time. In lieu thereof the Customer may provide lOll Medical Corporation with a tax exemption certificate acceptable to the taxing authorities 6. WARRANTY. (a) ZOll Medical Corporation warrants to the Customer that from the eariier of the date of installation or thirty (30) days after the date of shipment from ZOll Medical Corporation's faality, the Equipment (other than accessories and electrodes) will be free from defects in material and workmanship under normal use and service for the period noted on the reverse sJde. Accessories and electrodes shail be warranted for ninety (90) days from the date of shipment. During such period lOLL Medical Corporation will at no charge to the Customer either repair or replace (at ZOLL Medical Corporation's sole option) any part of the Equipment found by ZOLL Medical Corporation to be defective in material or workmanship. Jf lOLL Medical Corporation's inspection detects no defects in material or workmanship, ZOll Medical Corporation's regular service charges shall apply. (b) ZOll Medical Corporation shall not be responsible for any Equipment defect failure of the Equipment to perform any specified function, or any other nonconformance of the Equipment caused by or attributable to (i) any modification of the Equipment by the Customer, unless such modification is made with the prior written approval of lOLL Medical Corporation: (ii) the use of the Equipment with any associated or complementary equipment accessory or software not specified by lOLL Medical Corporation, or (iii) any misuse or abuse of the Equipment: (iv) exposure of the Equipment to conditions beyond the environmental, power or operating constraints specified by lOLL Medical Corporation, or (v) installation or wiring of the Equipment other than in accordance with ZOLL Medical Corporation's instructions, (c) Warranty does not cover items subject to normal wear and burnout during use, including but not limited to lamps, fuses, batteries, cables and accessones. (d) The foregoing warranty does not apply to software included as part of the Equipment (including software embodied in read-only memory known as "firmware"). (e) The foregoing warranty constitutes the exclusive remedy of the Customer and the exclusive liability of lOll Medical Corporation for any breach of any warranty related to the Equipment supplied hereunder, THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND lOLL MEDICAL CORPORATION EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTJES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE 7. SOFTWARE L.JCENSE. (a) All software (the .Software" which term shall include firmware) included as part of the Equipment is licensed to Customer pursuant to a nonexclusive limited iicense on the terms hereinafter set forth, (b) Customer may not copy, distribute, modify, translate or adapt the Software, and may not disassemble or reverse compile the Software, or seek in any manner to discover, disclose or use any proprietary algorithms, techniques or other confidential information contained therein, (c) All rights in the Software remain the product of ZOll Medical Corporation, and Customer shall have no right or interest therein except as expressly provided herein. (d) Customer's right to use the Software may be terminated by ZOll Medical Corporation in the event of any failure to comply with terms of this quotation, {e} Customer may transfer the license conferred hereby only in connection with a transfer of the Equipment and may not retain any copies of the Software following such transfer. (f) lOll Medical Corporation warrants that the read-only memory or other media on which the Software is recorded will be free from defects in materials and workmanship for the period and on terms set forth in section 6. (g) Customer understands that the Software is a complex and sophisticated software product and no assurance can be given that operation of the Software will be uninterrupted or error-free, or that the Software will meet Customer's requirements. Except as set forth in section 7(f), ZOLl MEDICAL CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE AND IN PARTICULAR DISCLAIMS ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS OF A PARTICULAR PURPOSE WITH RESPECT THERETO. Customer's exclusive remedy for any breach of warranty or defect relating to the Software Shall be the repair or replacement of any defective read-only memory or other media so that it correctly reproduces the Software. This License applies only to ZOll Medical Corporation Software. 8, DELAYS IN DELIVERY, ZOLL Medical Corporation shali not be liable for any delay in the delivery of any part of the Equipment if such delay is due to any cause beyond the control of the ZOll Medical Corporation including, but not limited to acts of God, fires, epidemics, floods, riots, wars, sabotage, labor disputes, governmental actions, inability to obtain materials, components, manufacturing facilities or transportation or any other cause beyond the control of ZOLl Medical Corporation. In addition lOLL Medical Corporation shall not be liable for any delay in delivery caused by failure of the Customer to provide any necessary information in a timely manner. In the event of any such delay, the date of shipment or performance hereunder shall be extended to the period equal to the time lost by reason of such delay. In the event of such delay ZOll Medical Corporation may allocate avaiiable Equipment among its Customers on any reasonable and equitable basis. The delivery dates set forth in this Quotation are approximate only and ZOll Medical Corporation shall not be liable for or shall the Contract be breached by. any delivery by ZOll Medical Corporation within a reasonable time after such dates. 2011-89 9. LIMITATIONS OF L1ABJLlTY. IN NO EVENT SHAll lOll MEDICAL CORPORATION BE LIABLE FOR INDIRECT SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ZOlL MEDICAL CORPORATIONS PERFORMANCE OR FAilURE TO PERFORM PURSUANT TO THIS QUOTATJON OR THE CONTRACT OR THE FURNISHING, PERFORMANCE, OR USE OF ANY EQUIPMENT OR SOFTWARE SOLD HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF ZOlL MEDICAL CORPORATION OR OTHERWISE. 10. PATENT INDEMNITY. ZOll Medical Corporation Shall at its own expense defend any suit that may be instituted against the Customer for alleged infringement of any United States patents or copyrights related to the parts of the Equipment or the Software manufactured by lOll Medical Corporation, provided that (i) such alleged infringement consists only in the use of such Equipment or the Software by itself and not as a part of or in combination with any other devices or parts, (ii) the Customer gives lOLL Medical Corporation immediate notice in writing of any such suit and permits ZOLl Medical Corporation through counsel of its choice, to answer the charge of infringement and defend such suit, and (iii) the Customer gives ZOLL Medical Corporation all requested information, assistance and authority at ZOLL Medical Corporation's expense, to enable lOLL Medical Corporation to defend such suit In the case of a final award of damages for infringement in any such suit, ZOll Medical Corporation will pay such award, but it shall not be responsible for any settlement made without its wrilten consent. Section 10 states lOLL Medical Corporation's total responsibility and liability's, and the Customer's sole remedy for any actual or alleged infringement of any patent by the Equipment or the Software or any part thereof provided hereunder. In no event Shall ZOLl Medical Corporation be liable for any indirect, special, or consequential damages resulting from any such infringement 11. CLAIMS FOR SHORTAGE. Each shipment of Equipment shali be promptly examined by the Customer upon receipt thereof. The Customer shall inform lOll Medical Corporation of any shortage in any shipment within ten (10) days of receipt of Equipment. If no such shortage is reported within ten (10) day period, the shipment shall be conclusively deemed to have been complete. 12. RETURNS AND CANCELLATION. (a) The Customer shall obtain authorization from lOll Medical Corporation prior to returning any of the Equipment. (b) The Customer receives authorization from lOll Medical Corporation to return a product for credit, the Customer shall be subject to a restocking charge of twenty percent (20%) of the original list purchase price, but not less than $50.00 per product, (c) Any such change in delivery caused by the Customer that causes a delivery date greater than six (6) months from the Customer's original order date shall constitute a new order for the affected Equipment in determining the appropriate list price. 13. APPLICABLE LAW. This Quotation and the Contract shall be governed by the substantive laws of the Commonwealth of Massachusetts without regard to any choice of law provisions thereof. 14, COMPLIANCE WITH LAWS. (a) ZOLl Medical Corporation represents that all goods and services delivered pursuant to the Contract will be produced and supplied in compliance with all applicable state and federal laws and regulations, including the requirements of the Fair Labor Standards Act of 1938, as amended. (b) The Customer shall be responsible for compliance with any federal, state and local laws and reguiations applicable to the installation or use of the Equipment furnished hereunder, and will obtain any permits required for such installation and use. 15. NON-WAIVER OF DEFAULT. In the event of any default by the Customer, lOll Medical Corporation may decline to make further shipments or render any further warranty or other services without in any way affecting its right under such order. If despite any default by Customer, lOLL Medical Corporation elects to continue to make shipments its action shall not constitute a waiver of any default by the Customer or in any way affect ZOll Medical Corporation's legal remedies regarding any such default. No claim or right arising out of a breach of the Agreement by the Customer can be discharged in whole or in part by waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by lOll Medical Corporation. 16. ASSIGNMENT. This Quotation, and the Contract, may not be assigned by the Customer without the prior written consent of ZOLl Medical Corporation, and any assignment without such consent shall be null and void. 17. TITLE TO PRODUCTS, Tille to right of possession of the products sold hereunder shall remain with lOll Medical Corporation until lOll Medical Corporation delivers the Equipment to the carrier and agrees to do all acts necessary to perfect and maintain such right and title in ZOLL Medical Corporation Failure of the Customer to pay the purchase pnce for any product when due shall give ZOll Medicai Corporation the right, without liability to repossess the Equipment, with or without notice, and to avail itself of any remedy provided by law 18. EQUAL EMPLOYMENT OPPORTUNITY I AFFJRMATlVE ACTION. VETERAN'S EMPLOYMENT - If this order is subject to Executive Order 11710 and the rules, regulations, or orders of the Secretary of Labor issued thereunder the contract clause as set forth at41 CFR 60-250.4 is hereby included as part of this order. EMPLOYMENT OF HANDICAPPED - ff' this order is subject to Section 503 of the Rehabilitation Act of 1973, as amended and the rules, regulations or orders of the Secretary of labor as issued thereunder, the contract clause at 41 CFR 60-741.7 is hereby included as part of this order. EQUAL OPPORTUNITY EMPLOYMENT - if this order is subject to the provisions of Executive Order 11246, as amended, and the rules, regulations or orders of the Secretary of labor issued thereunder, the contract clause set forth at41 CFR 60-1.4 (a) and 60-1.4 (b) are hereby included as a part of this order and Seller agrees to comply with the reporting requirements set forth at 41 CFR 60-1.7 and the affirmative action compliance program requirements set forth as 41 CFR 60-1.40. 19, VALIDITY OF QUOTATION. This Quotation shall be valid and subject to acceptance by the Customer, in accordance with the terms of Section 1 hereof for the period set forth on the face hereof. After such period, the acceptance of this Quotation shall not be binding upon lOLL Medical Corporation and shall not create a contract. unless such acceptance Is acknowledged and accepted by lOLL Medical Corporation by a writing signed by an authorized representative of ZOll Medical Corporation. 20, GENERAL. Any Contract resulting from this Quotation shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts. This constitutes the entire agreement between Buyer and Supplier with respect to the purchase and sale of the Products described in the face hereof, and only representations or statements contained herein shall be binding upon Supplier as a warranty or otherwise. Acceptance or acquiescence in the course of performance rendered pursuant hereto shall not be relevant to determine the meaning of this writing even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection, No addition to or modification of any of the terms and conditions specified herein shall be binding upon Supplier unless made in writing and signed by a duly authorized representative of Supplier. The terms and conditions specified shall prevail notwithstanding any variance from the terms and conditions of any order or other form submitted by Buyer for the Products set forth on the face of this Agreement. To the extent thai this writing may be treated as an acceptance of Buyer's prior offer, such acceptance is expressly made conditional on assent by Buyer to the terms hereof, and, without limitation, acceptance of the gOOds by Buyer to the terms hereof, and, without limitation, acceptance of the goods by Buyer shall constitute such assent All cancellations and reschedules require a minimum of thirty (30) days notice 2011-89 PURCHASE AGREEMENT This Purchase Agreement is entered into this 18th day of April ,2011, by and between Zoll Medical Corporation_ ("Vendor") and the City of San Bernardino ("City" or "San Bernardino"). WITNESSETH: WHEREAS, the Mayor and Common Council has determined that it is advantageous and in the best interest of the City to contract for the purchase of four (4) cardiac monitor/ defibrillators; and WHEREAS, the City of San Bernardino did solicit and accept quotes from available Vendors for the purchase of cardiac monitor/defibrillators. NOW, THEREFORE, the parties hereto agree as follows: 1. SCOPE OF SERVICES. For the remuneration stipulated, San Bernardino hereby engages Vendor to provide foul' (4) E Series ACLS Manual Defibrillators and accessories, as set forth on Exhibit "A," attached hereto and incorporated herein. 2. COMPENSA nON AND EXPENSES. a. For the products and/or services delineated above, the City, upon presentation of an invoice, shall pay the Vendor up to the amount of $93, 100.00, including applicable sales tax and freight, as set forth on Exhibit "A." b. City shall pay additional charges for expedited delivery if requested by City. c. No other expenditures made by Vendor shall be reimbursed by City. 3. TERM; TERMINA nON. This purchase shall be completed within Fiscal Year 10/11. This Agreement may be terminated at any time by thirty (30) days' written notice by either party. The tcrms of this Agreement shall remain in force unless mutually amended. 4. WARRANTY Vendor expressly warrants that all products and services supplied to City by Vendor under this Agrecment shall conform to vendor's published specifications, drawings or other description upon which this PURCHASE is based, and shall be of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by the City shall not affect Vendor's obligations under this walTanty, and such warranty shall survive inspection, testing, acceptance and use. Vendor agrees to replace or con'ect promptly defects of any goods or services not conforming to the foregoing warranty without expense to the City, when notified of such non-conformity by City. If Vendor fails to correct the defects in or replacc non-conforming goods or services promptly, City may, after reasonable notice to Vendor, make such corrections or effect cover, or cure, at Vendor's expense. "Reasonable notice" for purposes of this section shall not be deemed to 2011-89 require more than 60 calendars days notice before commencement of efforts by the City to effect cover or a cure except upon written agreement of the Parties. 5. INDEMNITY. Vendor agrees to and shall indemnify and hold the City, its elected officials, employees, agents or representatives, free and harmless from all claims, actions, damages and liabilities of any kind and nature arising from bodily injury, including death, or property damage caused by any negligent or intentional acts or omissions of Vendor, its employees, agents, or subcontractors, relating to or in any way connected with the accomplishment of the work or performance of services under this Agreement, unless the bodily injury or property damage was actually caused by the sole negligence of the City, its elected officials, employees, agents or represcntatives. As pa11 of the foregoing indemnity, Vendor agrees to protect and defend at its own expense, including attorney's fees, the City, its elected officials, employees, agents or representatives from any and all legal actions based upon such negligent or intentional acts or omissions by vendor. Vendor hereby waives any and all rights to any types of express or implied indcmnity against the City, its elected officials, employees, agents or representatives, with respect to third party claims against the Vendor relating to product defects or the negligent or intentional acts or omissions of vendor. 6. INSURANCE. While not restricting or limiting the foregoing, during the term of this Agreement, Vendor shall maintain in effect policies of comprehensive public, general and automobile liability insurance, in the amount of$I,OOO,OOO.OO combined single limit, and shall file a certificate of insurance with the City's Risk Manager prior to undertaking any work under this Agreement. 7. NON-DISCRIMINATION. In the performance of this Agreement and in the hiring and recruitment of employees, Vendor shall not engage in, nor permit its officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, or any other status protected by law. 8. BUSINESS REGISTRATION CERTIFICATE AND OTHER REQUIREMENTS. Vendor warrants that it possesses or shall obtain, and maintain a business registration certificate as required under Chapter 5 of the Municipal Code, and any other license, permits, qualifications, insurance and approval of whatever nature that are legally rcquired of Vendor to practice its business or profession. 9. NOTICES. Any notices to be given pursuant to this Agreement shall be deposited with the United States Postal Service, postage prepaid and addressed as follows: TO THE City: Fire Chief of the City of San Bemardino 300 North "D" Street San Bernardino, CA 924] 8 Telephone: (909) 384-5286 2011-89 TO THE Vendor: ZOLL Medical Corporation Attn: Darren Dumas - Contracts Coordinator 269 Mill Road Chelmsford, MA 01824 800-242-9150 x 9319 10. ATTORNEYS' FEES In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, including those ofin-house counselor City Attorney, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. 11. ASSIGNMENT. Vendor shall not voluntarily or by operation oflaw assign, transfer, sublet or encumber all or any palt of the Vendor's interest in this Agreement without City's prior written consent. Any attempted assignment, h'ansfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for the telmination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Vendor of Vendor's obligation to perform all other obligations to be performed by Vendor hereunder for the term of this Agreement. 12. VENUE. The patties hereto agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated either in the State courts located in the County of San Bemardino, State of California or the U.S. District Court for the Central District of California, Riverside Division. The aforementioned choice of venue is intended by the patties to be mandatory and not permissive in nature. 13. GOVERNING LAW. This Agreement shall be governed by the laws of the State of California. 14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and inure to the benefit of the parties to this Agreement and their respective heirs, representatives, successors, and assigns. 15. HEADINGS. The subject headings of the sections of this Agreement are included for the purposes of convenience only and shall not affect the construction or the interpretation of any of its provisions. 16. SEVERABILITY. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any 2011-89 other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 17. REMEDIES; WAIVER. All remedies available to either party for one or more breaches by the other party are and shall be deemed cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches, unless such waiver shall be in writing and signed by the party against whom enforcement is sought. 18. ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement and the understanding betwcen the patties, and supersedes any prior agreements and understandings relating to the subject manner of this Agreement and any conflicting provisions contained in Exhibit "A," Zoll Quotation General Terms & Conditions. This Agreement may be modified or amended only by a written instrument executed by all Plllties to this Agreement. IN WITNESS THEREOF, thc palties hereto have executed this Agreement on the day and date set forth below. By: Dated:______' 20 II Dated~,2011 By gel' Approved as to Form: Jamcs F. Penman, City Attorney R~ ""'-{ 5'-4'&..r [xhill-it "II" ZOLL" 2011-89 ZOLL Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Customer Support FEDERAL ID#: 04-2711626 TO: San Bernardino City Fire Department San Bernardino, CA 92415 Attn: Bernie Horak QUOTATION 74638 V:2 DATE: December 16, 2010 emaiJ: horak be@cLsan-bernardino.ca.us TERMS: Net 30 Days FOB: Shipping Point FREIGHT, Prepay and Add i ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE 1 50211730020124014 E Series ACLS Manual Defibrillator with See-Thru 4 $25,345.00 $20,276.00 $81,104.00 . CPR@, Real CPR Helpli) Advisory capability, 12-lead with 1-step patient cable, Sp02 (comes with EtC02 port), Integrated Bluetooth, NIBP with Adult-Plus cuff and hose and Noninvasive Pacing Includes: AC Power, Printer, Protocol Assist Code Markers and GPS Clock Auto Sync, TriMode Display, 3-lead ECG patient cable, universal cable, ready for one (1) SurePower™ Rechargeable Lithium Ion Battery with built in AC Charger ordered separately, RS232 data transfer port,Expanded Carry Case and Rapid Cable Deployment System, AC power cord, 12" AC power extension cord, one package of recorder paper, two PCMCIA Card slots, Operator's Manual and standard one (1) year warranty for EMS i use. ! 1a 8000-1007- 02 1 Step Patient Cable for 12-lead ECG with limb leads 4 $315.00 Included Included andv leads (7 ft) 2 8000-0330 Sp02 Rainbow Resuable Patient Cable: Connects to 4 $295.00 $236.00 $944.00 . LNCS Single Use and Resuable Sensors (4 ft) 3 6000-0294 Sp02 LNCS Adult Reusable Sensor (1 each) 4 $295.00 $236.00 $944.00 . 4 8000-0312 E Series Only CAPNO 5 Mainstream C02 Sensor and 4 $4,775.00 $3,581.25 $14,325.00 . Cable 5 8050- 0030- 01 SurePowerTII Charging Station 2 $2,275.00 $1,706.25 $3,412.50 . This quote is made subject to lOLL's standard commercial terms and conditions (lOll T's + C's) which Paae 1 Subtotal $100,729.50 accom an this uote. An urchase order P.O. issued in res onse to this uotation will be deemed to p y q yp () p q incorporate ZOLl T's + C's. Any modification of the lOLL T's + C's must be set forth or referenced in the customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by this quote and the customer's P.O unless set forth in or referenced by either document 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES WILL BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 90 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEES ADDITIONAL. 6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY lOLL. 7. PURCHASE ORDERS TO BE FAXED TO lOLL CUSTOMER SERVICE AT 978-421-0015. 8. ALL DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 1 Bryan Pank Sr. EMS Account Executive 800-242-9150, x9218 ZOLL" 2011-89 ZOLL Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Customer Support FEDERAL ID#: 04-2711626 TO: San Bernardino City Fire Department San Bernardino, CA 92415 Attn: Bernie Horak QUOTATION 74638 V:2 DATE: December 16, 2010 email: horakbe@ci.san-bernardino.ca.us TERMS: Net 30 Days FOB: Shipping Point FREIGHT, Prepay and Add ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE 6 8019- 0535- 01 SurePowerm Rechargeable lithium Ion Battery Pack 12 $475.00 $35625 $4,275.00 * 7 8000- 1650 Cuff, All Purpose, Pediatric I Small Adult, 17 - 25cm 8 $32.00 $24.00 $19200 * I 8 8000-1653 Cuff, All Purpose, Large Adult, 31 - 40cm 8 $42.00 $32.00 $256.00 * 9 8000- 1654 Cuff, All Purpose, Thigh, 38 - 50cm 8 $42.00 $3360 $268.80 * 10 8000-0370 CPR Connector 4 $265.00 No Charge No Charge * 11 7777-0125 NIBP Upgrade (must have SP02) 4 $5,000.00 $3,071.25 $12,285.00 * 12 8778- 0107 4 Year Extended Warranty (at time of equipment sale) 4 $3,550.00 $3,550.00 $14,200.00 13 4001- 9910 ZOlL M Series Biphasic w/Pacing + 2 options Trade-In 4 ($6,883.50) ($27,534.00) ** 14 8050-9901 All lOll Chargers Trade-in 2 ($100.00) ($20000) ** , 15 DI SC lOll loyalty Discount 1 ($19,906.30) ($19,906.30) Valid for an order received on or before March 1, 2011 This quote is made subject to ZOLL's standard commercial terms and conditions (ZOLL T's + C's) which Pane 2 Subtotal $84,566.00 accom an this uote. An urchase order P.O. issued in res onse to this uotation will be deemed to p y q yp () p q incorporate ZOLL T's + C's. Any modification of the ZOLL T's + C's must be set forth or referenced in the customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by this quote and the customer's P.O unless set forth in or referenced by either document. 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES Will BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 90 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEES ADDITIONAL. 6. All PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY lOll. 7. PURCHASE ORDERS TO BE FAXED TO lOll CUSTOMER SERVICE AT 978-421-0015. 8. All DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 2 Bryan Pank Sr. EMS Account Executive 800-242-9150, x9218 ZOLL" 2011-89 ZOll Medical Corporation Worldwide HeadQuarters 269 Mill Rd Chelmsford, Massachusetts 01824-4105 (978) 421-9655 Main (800) 348-9011 (978) 421-0015 Customer Support FEDERAL 10#: 04-2711626 TO: San Bernardino City Fire Department San Bernardino, CA 92415 Attn: Bernie Horak QUOTATION 74638 V:2 DATE: December 16, 2010 email: horakbe@ci.san-bernardino.ca.us TERMS: Net 30 Days FOB: Shipping Point FREIGHT, Prepay and Add ITEM MODEL NUMBER DESCRIPTION QTY. UNIT PRICE DISC PRICE TOTAL PRICE Estimated Sales Tax 9% $8,379.00 Estimated Shipping & Handling $155.00 I .*Trade-ln Value valid if all units purchased are in good operational and cosmetic condition, and include all standard accessories such as paddles, cables, etc. Customer assumes responsibility for shipping trade-in equipment to ZOLL Chelmsford within 60 days of receipt of new equipment. Customer agrees to pay cash value for trade-in equipment not shipped to ZOll on a timely basis. "'Reflects Discount Pricing & CPR Promotional Items This quote is made subject to ZOLL's standard commercial terms and conditions (ZOLL T's + C's) which TOTAL $93,100.00 accom an this uote. An purchase order (P.O. issued in response to this uotation will be deemed to py q y ) q incorporate ZOLL T's + C's. Any modification of the ZOLL T's + C's must be set forth or referenced in the customer's P.O. No commercial terms or conditions shall apply to the sale of goods or services governed by this quote and the customer's P.O unless set forth in or referenced by either document. 1. DELIVERY WILL BE MADE 60-90 DAYS AFTER RECEIPT OF ACCEPTED PURCHASE ORDER. 2. PRICES WILL BE F.O.B. SHIPPING POINT. 3. WARRANTY PERIOD (See above AND Attachment). 4. PRICES QUOTED ARE FIRM FOR 90 DAYS. 5. APPLICABLE TAX & FREIGHT CHARGES & ORDER PROCESSING FEES ADDITIONAL. 6. ALL PURCHASE ORDERS ARE SUBJECT TO CREDIT APPROVAL BEFORE ACCEPTANCE BY ZOLL. 7. PURCHASE ORDERS TO BE FAXED TO ZOLL CUSTOMER SERVICE AT 978-421-0015. 8. ALL DISCOUNTS OFF LIST PRICE ARE CONTINGENT UPON PAYMENT WITHIN AGREED UPON TERMS. 9. PLEASE PROVIDE A COPY OF OR REFERENCE TO YOUR QUOTATION NUMBER WITH PURCHASE Page 3 Bryan Pank Sr. EMS Account Executive 800-242-9150,x9218 ZOLLQUOTATION GENERAL TERMS & CONDITIONS 1. ACCEPTANCE. This Quotation constitutes an offer by ZOLL Medical Corporation to sell to the Customer the equipment {including a license to use certain software} listed in this Quotation and described in the specifications either attached to or referred 10 in this Quotation (hereinafter referred to as Equipment). Any acceptance of such offer is expressly limited to the terms of this Quotation, including these General Terms and Condilions. Acceptance shall be so limited to this Quotation notwithstanding (i) any conflicting wrillen or oral representations made by lOLL Medical Corporation or any agent or employee of ZOlL Medical Corporation or (ii) receipt or acknowledgement by ZOlL Medical Corporation of any purchase order, specification, or other document issued by the Customer. Any such document shall be wholly inapplicable to any sale made pursuant to this Quotation, and shall not be binding in any way on lOLL Medical Corporation. Acceptance of this Quotation by the Customer shall create an agreement between lOLL Medical Corporation and the Customer (hereinafter referred to as the "Contract" the terms and conditions of which are expressly limited to the provisions of this Quotation including these Terms and Conditions. No waiver change or modification of any of the provisions of this Quotation or the Contract shall be binding on lOLL Medical Corporation unless such waiver. change or modification (i) is made in writing (ii) expressly states that it is a waiver, change or modification of this Quotation or the Contract and (iii) is signed by an authorized representative of lOLL Medical Corporation. 2. DELIVERY AND RISK OF lOSS. Unless otherwise stated, all deliveries shall be F.O.B. lOll Medicai Corporation's facility. RiSK of loss or damage to the Equipment shall pass to the Customer upon delivery of the Equipment to the carrier 3. TERMS OF PAYMENT. Unless otherwise stated in its Quotation payment by Customer is due thirty (30) days after the ship date appearing on lOll Medical Corporation invoice. Any amounts payable hereunder which remain unpaid after the date shall be subject to a late charge equal to 1.5% per month from the due date until such amount is paid. 4. CREDIT APPROVAL. AIi shipments and deliveries shall at all times be subject to the approval of credit by lOLL Medical Corporation. lOll Medical Corporation may at any time decline to make any shipment or delivery except upon receipt of payment or security or upon terms regarding credit or security satisfactory to lOLL Medical Corporation. 5, TAXES & FEES. The pricing quoted in its Quotation do not include sales use, excise, or other similar taxes or any duties or customs charges, or any order processing fees. The Customer shall pay in addition for the prices quoted the amount of any present or future sales, excise or other similar tax or customs duty or charge applicable to the sale or use of the Equipment sold hereunder (except any tax based on the net income of lOll Medical Corporation), and any order processing fees that lOll may apply from time to time. In lieu thereof the Customer may provide lOll Medical Corporation with a tax exemption certificate acceptable to the taxing authorities. 6. WARRANTY, (a) lOLL Medical Corporation warrants to the Customer that from the earlier of the date of installation or thirty (30) days after the date of shipment from lOLL Medical Corporation's fadlity, the Equipment (other than accessories and electrodes) will be free from defects in material and workmanship under normal use and service for the period noted on the reverse side. Accessories and electrodes shall be warranted for ninety (90) days from the date of shipment Dunng such period lOll Medical Corporation Will at no charge to the Customer either repair or replace (at lOll Medical Corporation's sole option) any pari of the Equipment found by lOLL Medical Corporation to be defective in matenal or workmanship. If lOll Medical Corporation's inspection detects no defects In material or worKmanship, lOLL Medical Corporation's regular service charges shall apply. {b} lOll Medical Corporation shall not be responsible for any Equipment defect failure of the Equipment to perform any specified function, or any other nonconformance of the Equipment caused by or attributable to (i) any modification of the Equipment by the Customer, unless such modification is made with the prior written approval of lOLL Medical Corporation: (ii) the use of the Equipment with any associated or complementary equipment accessory or software not specified by lOLL Medical Corporation, or (iii) any misuse or abuse of the Equipment (iv) exposure of the Equipment to conditions beyond the environmental, power or operating constraints specified by lOLL Medical Corporation, or (v) installation or wiring of the Equipment other than in accordance With lOll Medical Corporation's instructions. (c) Warranty does not cover items subject to normal wear and bum out during use. Including but not limited to lamps, fuses, batteries, cables and accessories. (d) The foregoing warranty does not apply to software included as part of the Equipment (including software embodied in read-only memory known as "firmware"). (e) The foregoing warranty constitutes the exclusive remedy of the Customer and the exclusive liability of lOll Medical Corporation for any breach of any warranty related to the Equipment supplied hereunder. THE WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND lOLL MEDICAL CORPORATION EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHETHER WRITTEN, ORAL, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 7. SOFTWARE LICENSE. (a) All software (tile "Software" which term shall Include firmware) included as part of the Equipment is licensed to Customer pursuant to a nonexclusive limited license on the terms hereinafter set forth, (b) Customer may not copy, distribute, modify, translate or adaptlhe Software, and may not disassemble or reverse compile the Software, or seek in any manner to discover, disclose or use any proprietary algorithms, techniques or other confidential information contained therein, (c) All nghts in the Software remain the product of lOLL Medical Corporation, and Customer shall have no right or interest therein except as expressly provided herein. (d) Customer's right to use the Software may be terminated by ZOll Medical Corporation in the event of any failure to comply with terms of this quotation, (e) Customer may transfer the license conferred hereby only in connection with a transfer of the Equipment and may not retain any copies of the Software following such transfer. (f) lOll Medical Corporation warrants that the read-only memory or other media on which the Software is recorded will be free from defects in materials and workmanship for the period and on terms set forth in section 6. (g) Customer understands that the Software is a complex and sophisticated software product and no assurance can be given that operation of the Software will be uninterrupted or error-free, or that the Software will meet Customer's requirements. Except as set forth in section 7(f), lOll MEDICAL CORPORATION MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SOFTWARE AND IN PARTICULAR DISCLAIMS ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS OF A PARTICULAR PURPOSE WITH RESPECT THERETO. Customer's exclusive remedy for any breach of warranty or defect relating to the Software shall be the repair or replacement of any defective read-only memory or other media so that it correctly reproduces the Software. This License applies only to lOLL Medical Corporation Software 8, DELAYS IN DELIVERY. lOLL Medical Corporation shall not be liable for any delay In the delivery of any part of the Equipment if such delay is due to any cause beyond the control of the lOLL Medical Corporation including, but not limited to acts of God, fires. epidemics, floods, riots, wars, sabotage, labor disputes, govemmental actions, inability to obtain materials, components, manufacturing facilities or transportation or any other cause beyond the control of lOll Medical Corporation. In addition lOLL Medical Corporation shall not be liable for any delay in delivery caused by faiiure of the Customer to provide any necessary information in a timely manner. In the event of any such delay, the date of shipment or performance hereunder shall be extended to the period equal to the time lost by reason of such deiay. In the event of SuCh delay lOll Medical Corporation may allocate aVailable Equipment among its Customers on any reasonable and equitable basis. The delivery dates set forth in this Quotation are approximate only and lOLL Medical Corporation shall not be liable for or shall the Contract be breached by, any delivery by lOll Medical Corporation within a reasonable time after such dates. 2011-89 9. LIMITATIONS OF LIABILITY, IN NO EVENT SHALL ZQll MEDICAL CORPORATION BE LIABLE FOR INDIRECT SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ZQLl MEDICAL CORPORATIONS PERFORMANCE OR FAilURE TO PERFORM PURSUANT TO THIS QUOTATION OR THE CONTRACT OR THE FURNISHING, PERFORMANCE, OR USE OF ANY EQUIPMENT OR SOFTWARE SOLD HERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, THE NEGLIGENCE OF lOLL MEDICAL CORPORATION OR OTHERWISE 10. PATENT INDEMNITY. lOLL Medical Corporation shall at its own expense defend any suit that may be instituted against the Customer for alleged infringement of any United States patents or copyrights related to the parts of the Equipment or the Software manufactured by lOll Medical Corporation, provided that (i) such alleged infringement consists only in the use of such Equipment or the Software by itself and not as a part of or in combination with any other devices or parts, (ii) the Customer gives lOll Medical Corporation immediate notice in writing of any such suit and permits lOll Medical Corporation through counsel of its chOice, to answer the charge of infringement and defend such suit, and (iii) the Customer gives lOll Medical Corporation all requested information, assistance and authority at lOLL Medical Corporation's expense, to enable lOll Medical Corporation to defend such suit. In the case of a final award of damages for Infringement in any such suit, lOLL Medical Corporation will pay such award, but it shall not be responsible for any settlement made without its written consent. Section 10 states lOLL Medical Corporation's total responsibility and liability's, and the Customer's sole remedy for any actual or alleged infringement of any patent by the EqUipment or the Software or any part thereof provided hereunder. In no event shall lOLL Medical Corporation be liable for any indirect, special, or consequential damages resulting from any such infringement. 11, CLAIMS FOR SHORTAGE. Each shipment of Equipment shall be promptly examined by the Customer upon receipt thereof. The Customer shall inform lOLL Medical Corporation of any shortage in any shipment within ten (10) days of receipt of Equipment. If no such shortage is reported Within ten (10) day period, the shipment shall be conclusively deemed to have been complete. 12. RETURNS AND CANCEllATION, (a) The Customer shall obtain authorization from lOLL Medical CorporatIOn prior to returning any of the Equipment. (b) The Customer receives authorization from lOll Medical Corporation to return a product for credit. the Customer shall be subject to a restocking charge of twenty percent (20%) of the original list purchase price, but not less than $50,00 per product. (c) Any such change in delivery caused by the Customer that causes a delivery date greater than six (6) months from the Customer's original order date shall constitute a new order for the affected Equipment In determining the appropriate list price. 13. APPLICABLE LAW. This Quotation and the Contract shall be governed by the substantive laws of the Commonwealth of Massachusetts without regard to any choice of law provisions thereof. 14, COMPLIANCE WITH LAWS, (a) lOLL Medical Corporation represents that all goods and services delivered pursuant to the Contract will be produced and supplied in compiiance with all applicable state and federal laws and regulations. including the requirements of the Fair labor Standards Act of 1938, as amended. (b) The Customer shall be responsible for compliance with any federal, state and local laws and regulations applicable to the installation or use of the Equipment furnished hereunder, and will obtain any permits required for such installation and use. 15. NON.WAlVER OF DEFAULT. In the event of any default by the Customer, lOLL Medical Corporation may decline to make further shipments or render any further warranty or other services without in any way affecting its right under such order. If despite any default by Customer, lOll Medical Corporation elects to continue to make shipments Its action shall not constitute a waiver of any default by the Customer or in any way affect lOLL Medical Corporation's legal remedies regarding any such default. No claim or right arising out of a breach of the Agreement by the Customer can be discharged in whole or in part by waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by lOLL Medical Corporation 16, ASSIGNMENT. This Quotation, and the Contract. may not be assigned by the Customer without the prior written consent of lOll Medical Corporation, and any assignment without such consent shall be null and void. 17. TITLE TO PRODUCTS, Title to right of possession of the products sold hereunder shall remain with lOLL Medical Corporation until lOll Medical Corporation delivers the Equipment to the carrier and agrees to do all acts necessary to perfect and maintain such right and title in lOll Medical Corporation Faiiure of the Customer to pay the purchase price for any product when due shall give lOll Medical Corporation the right, without liability to repossess the Equipment, with or without notice, and to avail itself of any remedy provided by law 18. EQUAL EMPLOYMENT OPPORTUNITY I AFFIRMATIVE ACTION. VETERAN'S EMPLOYMENT - If this order is subject to Executive Order 11710 and the rules, regulations, or orders of the Secretary of labor issued thereunder the contract clause as set forth at 41 CFR 60-250.4 IS hereby included as part of this order. EMPLOYMENT OF HANDICAPPED - if this order is subject to Section 503 of the Rehabilitation Act of 1973, as amended and the rules, regulations or orders of the Secretary of Labor as issued thereunder, the contract clause at 41 CFR60-741.7 is hereby included as part of this order. EQUAL OPPORTUNITY EMPLOYMENT - if this order is subject to the provIsions of Executive Order 11246, as amended, and the rules, regulations or orders of the Secretary of Labor Issued thereunder, the contract clause set forth at41 CFR 60-1.4 (a) and 60-1.4 (b) are hereby Included as a part of this order and Seller agrees to comply with the reporting requirements set forth at 41 CFR 60-1.7 and the affirmative action compliance program requirements set forth as 41 CFR 60-1.40. 19. VALIDITY OF QUOTATION. This Quotation shall be valid and subject to acceptance by the Customer. In accordance with the terms of Section 1 hereof for the period set forth on the face hereof. After such period, the acceptance of this Quotation shall not be binding upon lOLL Medical Corporation and shall not create a contract, unless such acceptance is aCKnowledged and accepted by lOLL Medical Corporation by a writing signed by an authorized representative of lOll Medical Corporation. 20, GENERAL Any Contract resulting from this Quotation shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts. This constitutes the entire agreement between Buyer and Supplier with respect to the purchase and sale of the Products described in the face hereof, and only representations or statements contained herein shall be binding upon Supplier as a warranty or otherwise. Acceptance or acquiescence in the course of performance rendered pursuant hereto shall not be relevant to determine the meaning of this writing even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. No addition to or modification of any of the terms and conditions specified herein shall be binding upon Supplier unless made in writing and signed by a duly authorized representative of Supplier The terms and conditions specified shall prevail notwithstanding any variance from the terms and conditions of any order or other form submitted by Buyer for the Products set forlh on the face of this Agreement. To the extent that this writing may be treated as an acceptance of Buyer's prior offer, such acceptance is expressly made conditional on assent by Buyer to the terms hereof, and, without limitation, acceptance of the goods by Buyer to the terms hereof, and, without limitation, acceptance of the goods by Buyer shall constitute such assent All cancellations and reschedules require a minimum of thirty (30) days notice. 701 1 Mp,rlir..d ~nrnnr:ltinn