Loading...
HomeMy WebLinkAboutPhysio-Control - 2012 Agreement - Technical Service SupportAGREEMENT FOR SERVICES (For contracts over $5,000) This AGREEMENT made this 17th day of January, 2013, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: Physio- Control, Inc., having a principal place of business at 11811 Willows Road NE, Redmond, WA 98052, with a registered agent at CT Corporation System, 818 W Seventh St, Los Angeles, CA 90017. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on 11/18/2012 and will continue in effect through 8/2/2017 unless terminated in accordance with the provisions of Article 7 of this Agreement. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT A. Specific Services CONSULTANT agrees to: Perform the services as outlined in Exhibit "A" ( "Specific Provisions ") and Exhibit "B" ( "Scope of Services "), within the time periods described in Exhibit "C" ( "Milestone Schedule "). B. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT'S services. \TMORELL \1142608.2 -1- 021413- 04706002 C. Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. D. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT'S services. ARTICLE 4. COMPENSATION A. Consideration In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT the amounts set forth in Exhibit "D" ( "Payment Schedule "). In no event however shall the total compensation paid to CONSULTANT exceed $34,950.44. B. Invoices CONSULTANT shall submit invoices for all services rendered. C. Payment Payment shall be due according to the payment schedule set forth in Exhibit "D ". No payment will be made unless CONSULTANT has first provided City with a written receipt of invoice describing the work performed and any approved direct expenses (as provided for in Exhibit "A ", Section IV) incurred during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, and give reasons for the objection. D. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing services for CITY, except for those expenses constituting "direct expenses" referenced on Exhibit "A." \TMORELL \1142608.2 -2- 021413- 04706002 ARTICLE 5. OBLIGATIONS OF CONSULTANT A. Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. B. Workers' Compensation CONSULTANT agrees to provide workers' compensation insurance for CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation reasonable attorneys' fees, arising out of any injury, disability, or death of any of CONSULTANT'S employees. C. Indemnification of Liability, Duty to Defend CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees ( "Claims "), arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. D. Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof. As a condition precedent to CITY'S obligations under this Agreement, CONSULTANT shall furnish evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above) and requiring cancel notice in accordance to customary policy terms. E. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. \TMORELL \1142608.2 -3- 021413- 04706002 F. State and Federal Taxes As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: • CITY will not withhold FICA (Social Security) from CONSULTANT'S payments; • CITY will not make state or federal unemployment insurance contributions on CONSULTANT'S behalf; • CITY will not withhold state or federal income tax from payment to CONSULTANT; • CITY will not make disability insurance contributions on behalf of CONSULTANT; • CITY will not obtain workers' compensation insurance on behalf of CONSULTANT. ARTICLE 6. OBLIGATIONS OF CITY A. Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT'S duties under this Agreement. B. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement. ARTICLE 7. TERMINATION OF AGREEMENT A. Sale of Consultant's Business/ Death of Consultant. CONSULTANT shall notify CITY of the proposed sale of CONSULTANT's business no later than thirty (30) days prior to any such sale. CITY shall have the option of terminating this Agreement within thirty (30) days after receiving such notice of sale. Any such CITY termination pursuant to this Article 7.A shall be in writing and sent to the address for notices to CONSULTANT set forth in Exhibit A, Subsection V.H., no later than thirty (30) days after CITY' receipt of such notice of sale. If CONSULTANT is an individual, this Agreement shall be deemed automatically terminated upon death of CONSULTANT. \TMORELL \1142608.2 -4- 021413- 04706002 B. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: 1. CONSULTANT'S failure to professionally and /or timely perform any of the services contemplated by this Agreement. 2. CONSULTANT'S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work completed in accordance with the terms of this Agreement through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit C" which have been fully, competently and timely rendered by CONSULTANT. C. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. D. Transition after Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of the services required hereunder, and shall act in such a manner as to facilitate any the assumption of CONSULTANT's duties by any new consultant hired by the CITY to complete such services. ARTICLE 8. GENERAL PROVISIONS A. Amendment & Modification No amendments, modifications, alterations or changes to the terms of this Agreement shall be effective unless and until made in a writing signed by both parties hereto. B. Americans with Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans with Disabilities Act of 1990 ( "the Act ") in its current \TMORELL \1142608.2 -5- 021413- 04706002 form and as it may be amended from time to time. CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation reasonable attorneys' fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. C. Attorneys' Fees If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. D. Captions The captions and headings of the various sections, paragraphs and subparagraphs of the Agreement are for convenience only and shall not be considered nor referred to for resolving questions of interpretation. E. Compliance with Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin, ancestry of any employee, applicant for employment, or any potential subcontractor. F. Conflict of Interest CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. G. Entire Agreement This Agreement supersedes any and all prior agreements, whether oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and \TMORELL \1142608.2 -6- 021413- 04706002 contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. No other agreements or conversation with any officer, agent or employee of CITY prior to execution of this Agreement shall affect or modify any of the terms or obligations contained in any documents comprising this Agreement. Such other agreements or conversations shall be considered as unofficial information and in no way binding upon CITY. H. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of law provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. I. Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to the parties at the addresses appearing in Exhibit "A ", Section V.H. but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. J. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. K. Waiver CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: CITY: Physio -Contr, ; I CITY O GILROY By: By: Name: Mark Watson Name: Tom Ha2luw \TMORELL \1142608.2 -%- 021413- 04706002 Title: Contract Analyst Title: City Administrator Social Security or Taxpayer Identification Number 91- 0697691 Approved as to Form City Attorney \TMORELL \1142608.2 -8- 021413- 04706002 Title: Contract Analyst Social Security or Taxpayer Identification Number 91- 0697691 Approved as to Form Cit ttorney 1TMOREW1142608.2 -8- 021413- 04706002 Title: City Administrator ATTgST: ` i City �rk Q _ EXHIBIT "A' SPECIFIC PROVISIONS I. PROJECT MANAGER CONSULTANT shall provide the services indicated on the attached Exhibit `B ", Scope of Services ( "Services "). (All exhibits referenced are incorporated herein by reference.) To accomplish that end, CONSULTANT agrees to assign a Technical Service Representative who will act in the capacity of Project Manager, and who will personally direct such Services. Except as may be specified elsewhere in this Agreement, CONSULTANT shall furnish all technical and professional services including labor, material, equipment, transportation, supervision and expertise to perform all operations necessary and required to complete the Services in accordance with the terms of this Agreement. II. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence the Services upon delivery to CONSULTANT of a written "Notice to Proceed ", which Notice to Proceed shall be in the form of a written communication from designated City contact person(s). Notice to Proceed may be in the form of e -mail, fax or letter authorizing commencement of the Services. For purposes of this Agreement, Fire Division Chief Phil King shall be the designated City contact person(s). Notice to Proceed shall be deemed to have been delivered upon actual receipt by CONSULTANT or if otherwise delivered as provided in the Section V.H. ( "Notices ") of this Exhibit "A ". B. COMPLETION OF SERVICES When CITY determines that CONSULTANT has completed all of the Services in accordance with the terms of this Agreement, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has completed all of the Services as required by the terms of this Agreement and, if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not completed all of such Services as required by this Agreement, CITY shall so inform CONSULTANT within this two (2) week period. III. PROGRESS SCHEDULE The schedule for performance and completion of the Services will be as set forth in the attached Exhibit "C ". \TMORELL \1142608.2 -1- 021413- 04706002 IV. PAYMENT OF FEES AND DIRECT EXPENSES Payments shall be made to CONSULTANT as provided for in Article 4 of this Agreement. Direct expenses are charges and fees not included in Exhibit `B ". CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. V. OTHER PROVISIONS A. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the Services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT'S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such Services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Any plans, designs, specifications, estimates, calculations, reports and other documents furnished under this Agreement shall be of a quality acceptable to CITY. The minimum criteria for acceptance shall be a product of neat appearance, well- organized, technically and grammatically correct, checked and having the maker and checker identified. The minimum standard of appearance, organization and content of the drawings shall be that used by CITY for similar purposes. B. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the Services furnished by it under this Agreement. CONSULTANT shall not be responsible for the accuracy of any project or technical information provided by the CITY. The CITY'S review, acceptance or payment for any of the Services shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT'S negligent performance of any of the services furnished under this Agreement. C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to \TMORELL \1142608.2 -2- 021413- 04706002 CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard California accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY's request. D. CONFIDENTIALITY OF MATERIAL All ideas, memoranda, specifications, plans, manufacturing procedures, data (including, but not limited to, computer data and source code), drawings, descriptions, documents, discussions or other information developed or received by or for CONSULTANT and all other written and oral information developed or received by or for CONSULTANT and all other written and oral information submitted to CONSULTANT in connection with the performance of this Agreement shall be held confidential by CONSULTANT and shall not, without the prior written consent of CITY, be used for any purposes other than the performance of the Services, nor be disclosed to an entity not connected with the performance of the such Services. Nothing furnished to CONSULTANT which is otherwise known to CONSULTANT or is or becomes generally known to the related industry (other than that which becomes generally known as the result of CONSULTANT'S disclosure thereof) shall be deemed confidential. CONSULTANT shall not use CITY'S name or insignia, or distribute publicity pertaining to the services rendered under this Agreement in any magazine, trade paper, newspaper or other medium without the express written consent of CITY. E. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. F. OWNERSHIP OF MATERIAL. All material including, but not limited to, computer information, data and source code, sketches, tracings, drawings, plans, diagrams, quantities, estimates, specifications, proposals, tests, maps, calculations, photographs, reports and other material developed, collected, prepared (or caused to be prepared) under this Agreement shall be the property of CITY, but CONSULTANT may retain and use copies thereof subject to Section V.D of this Exhibit "A ". CITY shall not be limited in any way in its use of said material at any time for any work, whether or not associated with the City project for which the Services are performed. However, CONSULTANT shall not be responsible for, and City shall indemnify CONSULTANT from, damages resulting from the use of said material for work other than PROJECT, including, but not limited to, the release of this material to third parties for work other than on PROJECT. G. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. \TMORELL \1142608.2 -3- 021413- 04706002 H. NOTICES. Notices are to be sent as follows: CITY: City of Gilroy Fire Department/ EMS Div. 7351 Rosanna Street Gilroy, CA 95020 CONSULTANT: Physio - Control, Inc. Attn: Pricing and Contracts M/S 4S 1181 I Willows Rd NE Redmond, WA 98052 Copy to: Physio - Control, Inc. Attn: Legal 11811 Willows Rd NE Redmond, WA 98052 I. FEDERAL FUNDING REQUIREMENTS. ❑ If the box to the left of this sentence is checked, this Agreement involves federal funding and the requirements of this Section V.J. apply. ® If the box to the left of this sentence is checked, this Agreement does not involve federal funding and the requirements of this Section V.J. do not apply. 1. DBE Program CONSULTANT shall comply with the requirements of Title 49, Part 26, Code of Federal Regulations (49 CFR 26) and the City- adopted Disadvantaged Business Enterprise programs. 2. Cost Principles Federal Acquisition Regulations in Title 48, CFR 31, shall be used to determine the allowable cost for individual items. 3. Covenant against Contingent Fees The CONSULTANT warrants that he /she has not employed or retained any company or person, other than a bona fide employee working for the CONSULTANT, to solicit or secure this Agreement, and that he /she has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift or any other consideration, contingent upon or resulting from the award or formation of this Agreement. For \TMORELL \1142608.2 -4- 021413- 04706002 breach or violation of this warranty, the Local Agency shall have the right to annul this Agreement without liability or, at its discretion, to deduct from the agreement price or consideration, or otherwise recover, the full amount of such fee, commission, percentage, brokerage fee, gift or contingent fee. \TMORELL \1142608.2 -5- 021413- 04706002 EXHIBIT "B" SCOPE OF SERVICES PHYSIO TECHNICAL SERVICE SUPPORT AGREEMENT \TMORELL \1142608.2 -1- 021413- 04706002 EXHIBIT B TECHNICAL SERVICE SUPPORT AGREEMENT Contract Number: End User # 15815901 GILROY FD 7070 CHESTNUT ST GILROY, CA 95020 Bill To # 15815901 GILROY FD 7070 CHESTNUT ST GILROY, CA 95020 This Technical Service Support Agreement begins on 11/18/2012 and expires on 8/2/2017. The designated Covered Equipment and/or Software is listed on Schedule A. This Technical Service Agreement is subject to the Terms and Conditions on the reverse side of this document and any Schedule B, if attached. If any Data Management Support and Upgrade Service is included on Schedule A then this Technical Service Support Agreement is also subject to Physio - Control's Data Management Support and Upgrade Service Terms and Conditions, rev 7/99 -1. Price of coverage specified on Schedule A is $34,950.44 per term, payable in a One Time installment. Special Terms 15% DISCOUNT ON ACCESSORIES Accepted: o -Co rol tourer: o f— (p Ifs By: - By: Title: Print: mlkS � � t cm d D Date: Title: C� FT(A /hll {1(S �( Date: 3 1S'I ( -�3 Purchase Order Number: Territory Rep: WENN66 Customer Contact: Jim Price Sam MacDonald Phone: Phone: 408 - 846 -0370 FAX: 800 - 772 -3340 FAX: 408 - 848 -0379 Reference Number: N66 -1722 New Printed: 3/4/2013 Page 1 of 5 PHYSIO- CONTROL, INC. TECHNICAL SERVICE SUPPORT AGREEMENT TERMS AND CONDITIONS Customer's signature or purchase order referencing this Technical Service Support Agreement are required prior to Physio - Control's acceptance of this Agreement. This Agreement covers only the equipment listed on Schedule A ( "Covered Equipment "). These terms constitute the complete agreement between the parties and they shall govern over any other documents. These terms may not be revised in any manner without the prior written consent of Physio - Control. SERVICES. The services provided under this Agreement are set forth on Schedule A. Physio- Control strives to return service calls within two (2) hours, and strives to resolve service issues within twenty -four (24) hours. Following service, Physio - Control will provide Customer with a written report of actions taken or recommended and identification of any materials replaced or recommended for replacement. The following services are available: "Repair Only Service" means repairs, Battery Replacement Service, parts and labor necessary to restore Covered Equipment to original specifications, subject to Exclusions. "Inspection Only Service" means inspections of Covered Equipment to verify proper device calibration, mechanical operations and output measurements, electrical safety check in accordance with National Fire Protection Association (NFPA) guidelines and labor, subject to Exclusions. "Repair and Inspect Service" means repairs, Battery Replacement Service, parts and labor necessary to restore Covered Equipment to original specifications, and inspections to verify proper device calibration, mechanical operations and output measurements, electrical safety check in accordance with NFPA guidelines and Updates (as set forth below), subject to Exclusions. "Battery Replacement Service" means replacement of batteries on a one - for -one, like- for -like basis, up to the number of batteries and /or devices listed in Schedule A. Only batteries manufactured or distributed by Physio - Control are eligible for replacement. Battery replacement is available upon Customer notification to Physio - Control of the occurrence of: (i) Battery failure as determined by Customer's performance testing and evaluation in accordance with the applicable Operating Instructions; or (ii) The end of the useful life of the battery as set forth in the applicable Operating Instructions At the discretion of Physio - Control, battery replacement shall be effected by shipment to Customer and replacement by Customer, or by on -site delivery and replacement by a Physio - Control Service Technician. Upon Customer's receipt of a replacement battery, the battery being replaced shall become the property of Physio - Control, and Customer must return the battery being replaced to Physio - Control for proper disposal. In the event that Physio - Control does not receive the battery, Customer will be charged at the then - current rate for the replacement battery. "On -Site Service" means that a Physio - Control factory- trained technician will provide service at Customer's location. Services will be performed between 8:00am and 5:00pm local time, Monday through Friday, excluding holidays. Customer is to ensure Covered Equipment is available for service at scheduled times. Some service may not be completed On -Site. Physio - Control will cover travel and /or round -trip freight for Covered Equipment that must be sent to our designated service facility for repair. "24 -hour On -Site Service" means that a Physio - Control factory- trained technician will provide service at Customer's location at any time, except on the holidays listed above. Customer is to ensure Covered Equipment is available for service at scheduled times. Some service may not be completed On -Site. Physio - Control will cover travel and /or round -trip freight for Covered Equipment that must be sent to our designated service facility for repair. "Ship -In Service" means that service will be performed at Physio - Control's designated service facility. Physio - Control will cover round -trip freight for Covered Equipment that is sent to our designated service facility for repair. If Covered Equipment is not available as scheduled or Customer requests services or goods not covered by this Agreement or outside of designated service frequency or hours, Physio - Control will charge Customer at Physio - Control's standard labor rates less 10% (including overtime, if appropriate) and applicable travel costs. Parts required for such repairs will be made available at 15% off the then - current list price. EXCLUSIONS. Unless otherwise specified, this Agreement does not include: • supply or repair of accessories or disposables • repair of damage caused by misuse, abuse, abnormal operating conditions, use of batteries or other products not distributed by Physio - Control, operator errors, or acts of God • case changes • repair or replacement of items not originally distributed or installed by Physio - Control • Upgrades and installation of Upgrades • battery maintenance, performance testing, evaluation, removal and recycling Reference Number: N66 -1722 New Printed: 3/4/2013 Page 2 of 5 LOANERS. If Covered Equipment must be removed from service to complete repairs, Physio - Control will provide Customer with a loaner device, if one is available, until the Covered Equipment is returned. Customer assumes complete responsibility for the loaner and shall return the loaner at Customer's expense to Physio - Control in the same condition as received, upon the earlier of the return of the removed Covered Equipment or Physio - Control's request. UPDATES. "Update" means a change to a device to enhance its current features, stability, or software. If Repair and Inspect Service is designated for Covered Equipment on Schedule A, Physio - Control will install Updates at no additional cost, provided such Updates are installed at the time of regularly scheduled service. If parts must be replaced to accommodate installation of new software, such parts may be purchased at a rate of 30% less than the then - current list price. Updates installed on Covered Equipment designated as Repair Only Service, Inspect Only Service, or at a time other than regularly scheduled Repair and Inspect Service will be billed on a separate invoice at the then - current list price less 20 %. UPGRADES. "Upgrade" means a major, standalone version of software or the addition of features or capabilities to a device. Upgrades must be purchased separately, and are not provided under this Agreement. Upgrades are available at a rate of 17% less than the then - current list price. PRICING. Pricing is set forth on the front page of this Agreement. Prices do not include taxes. Sales, service or use taxes will be invoiced in addition to the price of the goods and services covered by this Agreement unless Physio - Control receives a copy of a valid exemption certificate. If the number or configuration of Covered Equipment changes during the Term, pricing shall be pro -rated accordingly. For Inspection Only Service and Repair and Inspect Service, no pricing deduction will be made for removal of Covered Equipment if an inspection has already been performed during the Term. Discounts will not be combined with other special terms, discounts, and /or promotions. PAYMENT. Payment is due within thirty (30) days of invoice date WARRANTY. Physio - Control warrants services performed under this Agreement and replacement parts provided in performing such services against defects in material and workmanship for ninety (90) days from the date a service was performed or a part was provided. Customer's sole remedy shall be reservicing the affected unit and /or replacement of any part determined to be defective, without additional charge, provided Customer notifies Physio - Control of any allegedly defective condition within ten (10) calendar days of its discovery by Customer. Physio - Control makes no other warranties, express or implied, including, without limitation, NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND IN NO EVENT SHALL PHYSIO- CONTROL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR OTHER DAMAGES. TERM. The initial Term is set forth on the front page of this Agreement. This Agreement shall automatically renew unless terminated by either party with written notice thirty (30) days prior to the expiration of the then - current term. Prices are subject to change upon renewal. TERMINATION. Either party may terminate this Agreement for material breach by the other party by providing thirty (30) days' written notice to the other party, and provided such breach is not cured within the notice period. In addition, either party may terminate this Agreement at any time upon sixty (60) days' prior written notice to the other party. In the event of such early termination, Customer shall be responsible for the portion of the designated price which corresponds to the portion of the Term prior to the effective date of termination and the cost of any services rendered during the Term. DELAYS. Physio - Control will not be liable for any loss or damage of any kind due to its failure to perform or delays in its performance resulting from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes, labor shortages, the requirements of any governmental authority, war, civil unrest, delays in manufacture, obtaining any required license or permit, and Physio - Control's inability to obtain goods from its usual sources. Any such delay shall not be considered a breach of Physio - Control's obligations and the performance dates shall be extended for the length of such delay. DEVICE INSPECTION BEFORE ACCEPTANCE. All devices that are not under Physio - Control Limited Warranty or a current Technical Service Support Agreement must be inspected and repaired (if necessary) to meet original specifications at then - current list prices prior to being covered under a Technical Service Support Agreement. MISCELLANEOUS. (a) Customer agrees to not employ or offer employment to anyone performing services on Physio - Control's behalf during the Term of this Agreement or for one (1) year following its expiration without Physio - Control's prior written consent; (b) this Agreement, and any related obligation of other party, may not be assigned in whole or in part without the prior written consent of the other party; (c) this Agreement shall be governed by the laws of the State in which the service is provided; (d) all costs and expenses incurred by the prevailing party related to the enforcement of its rights under this Agreement, including reasonable attorney's fees, shall be reimbursed by the other party. Reference Number: N66 -1722 New Printed: 3/4/2013 Page 3 of 5 PHYSIO- CONTROL, INC. TECHNICAL SERVICE SUPPORT AGREEMENT SCHEDULE A Contract Number: Servicing Rep: Jim Price, WENN66 District: WEST Phone: FAX: 800 - 772 -3340 Equipment Location: GILROY FD, 15815901 7070 CHESTNUT ST GILROY, CA 95020 Scope Of Service POS LP 15 On Site Repair and 1 Insp per Year:M -F/8 -5 ** Denotes an inventory line that has changed since the last contract revision or addendum. Reference Number: N66 -1722 New Printed: 3/4/2013 Page 4 of 5 Ref. Effective Expiration Total Model Part Number Serial Number Line Date Date Inspections LIFEPAK® 15 V15 -2- 001565 40871523 1 11/18/2012 8/2/2017 4 LIFEPAK® 15 V15 -2- 001565 40871524 2 11/18/2012 8/2/2017 4 LIFEPAK® 15 V15- 2- 001565 40871525 3 11/18/2012 8/2/2017 4 LIFEPAK® 15 V15- 2- 001565 40871784 4 11/18/2012 8/2/2017 4 LIFEPAK® 15 V15- 2- 001565 40871785 5 11/18/2012 8/2/2017 4 LIFEPAK® 15 V15 -2- 001565 40872536 6 11/18/2012 8/2/2017 4 LIFEPAK® 15 V15- 2- 001565 40871522 7 11/18/2012 8/2/2017 4 ** Denotes an inventory line that has changed since the last contract revision or addendum. Reference Number: N66 -1722 New Printed: 3/4/2013 Page 4 of 5 PHYSIO- CONTROL, INC. TECHNICAL SERVICE SUPPORT AGREEMENT SCHEDULE B LIFEPAK® 15 Monitor /Defibrillator Repair Service includes: • Standard detachable hard paddle repairs. • Replacement or repair of Physio- Control battery charging systems on a one- for -one basis with the total number of LP15 Defibrillator /Monitors listed in Schedule A, and as determined necessary by Physio - Control • Power Adapter repair /replacement. • Battery Coverage • Replacement of three (3) LIFEPAK Li -ion Batteries every two (2) years, or upon battery failure Reference Number: N66 -1722 New Printed: 3/4/2013 Page 5 of 5 EXHIBIT "C" MILESTONE SCHEDULE Refer to EXHIBIT `B" SCOPE OF SERVICES / PHYSIO TECHNICAL SERVICE SUPPORT AGREEMENT \TMORELL \1142608.2 - I - 021413- 04706002 EXHIBIT "D" PAYMENT SCHEDULE Payment in full shall be due following execution of this agreement in the amount of $34,950.44, or within thirty (30) days of CONTRACTOR providing City with a written receipt of invoice to be as specified on page 1 of Exhibit `B" SCOPE OF SERVICES / PHYSIO TECHNICAL SERVICE SUPPORT AGREEMENT." \TMORELL \1142608.2 021413 - 04706002 A� °® CERTIFICATE OF LIABILITY INSURANCE DATE /2013 /YYYY) 02/27/2013 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Marsh USA, Inc. 1301 5th Avenue, Suite 1900 CONTACT NAME: PA/C, No. X A/C No): E -MAIL ADDRESS: Seattle, WA 98101 Attn: Seattle.CegRequest @marsh.com f F: 212 - 948 -4326 01/30/2012 05/01/2013 EACH OCCURRENCE INSURER (S) AFFORDING COVERAGE NAIC # INSURER A: National Fire Insurance Co Of Hartford 20478 184424 -IS5- CAS -12 -13 INSURED Physio- Control International, Inc.. INSURER B: N/A N/A GENERAL AGGREGATE Physio - Control, Inc. INSURER C : PRODUCTS - COMP /OP AGG INSURER D: 11811 Willows Road NE Redmond, WA 98052 A A AUTOMOBILE LIABILITY X ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS HIRED AUTOS NON -OWNED AUTOS INSURER E: 4029265138 (AOS) 4029265172 (MA) INSURER F: 05/01/2013 05/01/2013 COMBINED SINGLE LIMIT Ea accident COVERAGES CERTIFICATE NUMBER: SEA- 002373887 -01 REVISION NUMBER: 17 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE INSR SUER POLICY NUMBER MM/DDYIYYYY MMIDDY /YYYY LIMITS A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE � OCCUR 4030507381 01/30/2012 05/01/2013 EACH OCCURRENCE $ 1,000,000 DAMAGE TO RENTED PREMISES Ea occurrence $ 1,000,000 MED EXP (Any one person) $ 5,000 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: JECT X POLICY PRO- LOC PRODUCTS - COMP /OP AGG $ EXCLUDED $ A A AUTOMOBILE LIABILITY X ANY AUTO ALL OWNED SCHEDULED AUTOS AUTOS HIRED AUTOS NON -OWNED AUTOS 4029265138 (AOS) 4029265172 (MA) 01/30/2012 01/30/2012 05/01/2013 05/01/2013 COMBINED SINGLE LIMIT Ea accident 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ COMP / COLL DED. $ 1,000 A X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE 4030507395 Products- Completed Ops Excluded 01/30/2012 05/01/2013 EACH OCCURRENCE $ 25,000,000 AGGREGATE $ 25,000,000 MDED I I RETENTION $ $ A A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE YIN OFFICER/MEMBER EXCLUDED? (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below NIA 4030507378 (AOS) 4030507364 (CA) 01/30/2012 01/30/2012 05/01/2013 05/01/2013 X I WC STATU- OTH- S FP TORY LIMIT E.L. EACH ACCIDENT 1,000,000 $ E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS /VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) Additional Insured status applies only if it is reflected in your written contract. Governmental Entity (Form CG2026 /LD- 22318) City of Gilroy, its officers, officials and employees are included as additional insured under general liability as required by written contract. CERTIFICATE HOLDER rAMrFl I ATIOn1 City of Gilroy Attu: Phil King 7351 Rosanna St. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. Gilroy, CA 95020 AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Cheryl Bermudez cJL_ .W_ ftp�� ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD s POLICY NUMBER` COMMERCIAL GENERAL LIABILITY CG 20 26 07 04 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement rnodi5eq trv5urance provided under the following: COMMERCIAL GENERAL LIABILI fY COVERAGE PART SCHEDULE Name Of Additional Insured Person is) Or Or anizatiartis�� fl -FT .R T O Information required to complete this Schedule if not�shown above will be ,haws in the Declarations. Section 11 — Who Is An Insured is amended to include as, n additional insured the person(s) or organization(s) shown in the . Schedule, but only with rPsppct to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your CG 20 26 07 04 acts or omissions or the acts or omissions of those acting on your behatf- A. In the performance of your ongoing operations; or S. In connection with your premises owned by or rented to you. Copyright, ISO Properties, Inc., 2004 Page 1 of 1 POLICY NUMBER INSURED NAME AND ADDRESS A 4030507381 PHYSIO - CONTROL INTERNATIONAL, INC. "SEE ENDT" P.O. BOX 97006 REDMOND, WA 98073 -9706 FORMS AND ENDORSEMENTS SCHEDULE These following forms have been added to your policy Form Number Form Title G56015B 1111991 CG2010 - ADDITIONAL INSURED - OWNERS, LESSEES OR C G56015B 1111991 ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZA G56015B 1111991 ENDORSEMENT EFFECTIVE 01/30/2012 �",p A;Z�- Chairman of the Board P- 55170 -A (Ed. 01/86) Countersignature 4—)L,-- Secretary INSURED Page 2 of 2 POLICY NM48ER INSURED XMM AND ADDRESS A 40305C7381 INTEPTIATIONA-L, INCA S 2 E ENnT P'0. BOX 9,7006 POLICY ORANGES ADDITIUMAL 1NSUEzED - DESIONAT9D PERSON OR ORGANIZATION This Change Endorsement changes the Policy. Please read it carefully. This Change Endorsement is a part of your Policy and takes effect on the effective date of your Policy, unless another effective date is shown. 111P p7l-'-170111-Ifl OR elp'*3ANIZATION WROM Yo[, -LAVE AGREED TO INCL�,')E AS AN T,J)DITIOTNIAL INSURM T.ZMER A WRJ.'."T4' 4-J41 Chairman of the Board G-56015-B (ED. 11/91) POLICY NCTMB9R INSURED NAME ANt? ADDRESS A 4030507391 F?IFIz TO-<.ONTROL "'':FE N21-T" F . BOX 990016- r liF�lvldy� r WA 9P,073-9106 POLICY CHANGES ENDORSEMENT EFFECTIVE 01/30/2012 This Change Endorsement changes the Policy. Please read it carefully. This Change Endorsement is a part of your Policy and takes effect on the effective date of your Policy, unless another effective date is shown. It is agreed .hat the tollowit' ; {a tclrmi'ss) W:1.11 have blanker. %tTO:C:tiing € d Form # : C 62010 'Ti Ie : ADDITIONAL INWPZED Ori'I EP113, GF.f „'F,F S OR CONTRACTORS Form CS2026 Ti t,::le : A.::DDITIONAL INSLIR.ED - DESIGNATED PERSON OR ORGANIZATION iairla Chairman of the Board G- 56015 -B (ED. 11/91) V Seereta