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HomeMy WebLinkAbout2022-491-E-Emergency Svc-Stryker Sales Corporation-Service agreementFINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 1 [Departmental Use Only] TITLE Stryker Medical - ProCare Services FY 22/23 NORTH CAROLINA MASTER SERVICES AGREEMENT ORANGE COUNTY This Services Agreement (hereinafter “Agreement”), made and entered into this 1st day of September, 2022, (“Effective Date”) by and between Orange County, North Carolina a political subdivision of the State of North Carolina (hereinafter, the "County") and Stryker Sales Corporation, through its Medical Division (hereinafter, the "Provider"). WITNESSETH: That the County and Provider, for the consideration herein named, do hereby agree as follows: 1. Services a. Scope of Work. i) This Agreement is for services to be rendered by Provider to County with respect to Provider’s Quote #220803100440 attached hereto as Exhibit A for: Preventative maintenance for Thirteen (13) Stairchairs, Ten (10) Powerload Systems, Nine (9) 6500 Powercots, Seven (7) 6506 Powercots ii) By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof and Provider’s Exhibit A. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein and in Provider’s Exhibit A. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 and Exhibit A, to satisfactorily complete the Project within the time limitations set forth herein and therein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with all applicable federal, state and local laws DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 FINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 2 and regulations applicable to the performance of these services. Provider is solely responsible for the professional quality, accuracy and timely completion and submission of all work related to the Basic Services. ii) Provider shall be responsible for all errors or omissions of its agents, contractors, employees, or assigns in the performance of the Agreement. Provider shall correct any and all errors, omissions, as well as any mutually agreed upon discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided for in this Agreement, subcontract the performance of any work under this Agreement without prior written permission of the County. No permission for subcontracting shall create, between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. vi) In determining the Basic Services to be provided, should any documents be referenced in this Agreement and Provider’s Exhibit A, the terms of this Agreement shall have priority in any conflict between the terms of referenced documents and the terms of this Agreement. 3. Basic Services a. Basic Services. The Services to be rendered pursuant to this Agreement are set forth in Exhibit A as follows: Thirteen (13) Stairchairs, Ten (10) Powerload Systems, Nine (9) 6500 Powercots, Seven (7) 6506 Powercots as provided in Exhibit A, which is attached to this Agreement and incorporated into this Agreement as if set out herein. 4. Duration of Services a. Term. The term of this Agreement shall be from September 1,2022 to August 30, 2023. b. Scheduling of Services. i) The Provider shall schedule and perform its activities in a timely manner. ii) Should the County reasonably determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate its efforts, including providing DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 FINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 3 additional resources and working overtime, as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County. iii) The Commencement Date for the Provider's Basic Services shall be October 1, 2022. 5. Compensation a. Compensation for Basic Services. Compensation for Basic Services shall include all compensation due the Provider from the County for all services satisfactorily (as determined by the County) performed pursuant to this Agreement and Exhibit A, being Quote #220803100440. The maximum amount payable for Basic Services shall not exceed Thirty five thousand, four hundred ninety five Dollars ($35,495.00), payment shall be made after one year warranty period ends in one lump sum payment of $35,495.00. Payment for satisfactorily performed Basic Services shall become due and payable within thirty (30) days of Provider properly invoicing County. Payment shall be subject to provisions of Section 5(b). b. Disputes. In the event the amount stated on an invoice is reasonably disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Should Provider fail to perform its duties under the terms of this Agreement, County may, without fault or penalty, withhold any payment associated with the work to be performed until such time as said work is completed. c. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated (ES Director, Kirby Saunders) to act as the County's representative with respect to the Project who shall have the authority to render decisions within guidelines established by the County Manager or the County Board of Commissioners and who shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers’ Compensation Insurance as outlined in Exhibit B-Insurance Requirements. If County’s Risk Manager determines additional insurance coverage is required such additional insurance shall consist of N/A (if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the County's Risk Manager. 8. Indemnity DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 FINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 4 a. Indemnity. Provider shall indemnify and hold harmless County from any loss or damage brought by a third party which County may suffer directly as a result of the negligence or willful misconduct of Provider or its employees or agents in the course of providing the services. The foregoing indemnification will not apply to any liability arising from: (i) an injury or damage due to the negligence of any person other than Provider’s employee or agent; (ii) the failure of any person other than Provider’s employee or agent to follow any instructions outlined in the labeling, manual, and/or instructions for use of the equipment; (iii) the use of any equipment or part not purchased from Provider or any equipment or any part thereof that has been modified, altered or repaired by any person other than Provider’s employee or agent; or (iv) any actions taken or omissions made by any Provider employee while under the direction or control of County’s staff. To the extent permitted by North Carolina or local laws or regulations, County agrees to hold Provider harmless from and indemnify Provider for any claims or losses or injuries arising from (i)-(iv) above resulting from County’s or its employees’ or agents’ actions. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 10. Termination a. Termination for Convenience of the County. This Agreement may be terminated without cause by the County and for its convenience upon sixty (60) days’ prior written notice to the Provider. b. Other Termination. The Provider may terminate this Agreement based upon the County's material breach of this Agreement; provided, the County has not cured the breach within thirty (30) days after the Provider has provided the County with written notice thereof, which describes the nature of the breach in reasonable detail. The Provider shall give the County seven (7) days' prior written notice of its intent to terminate this Agreement for cause. Either party may terminate this Agreement upon notice to the other party that obligations pursuant to this Agreement are made impractical due to declarations of emergency by Orange County or by North Carolina due to events directly impacting Orange County. Both parties shall remain responsible for all payment and performance due up to the receipt of such notice, but shall have no further obligation or responsibility beyond that date provided the terminating party has taken all reasonable steps to complete the performance of its obligations. c. Compensation After Termination. i) In the event of termination, during or before the expiration date of the Agreement, County will owe for the months covered up to the cancellation date of the Agreement and for any parts, labor, and travel charges, required to maintain equipment, exceeding that already paid during the Agreement. In the event County has pre-paid DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 FINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 5 for the services hereunder, any unused amount as of the date of cancellation shall be returned to the County on a pro-rata basis. ii) Should this Agreement be terminated, the Provider shall deliver to the County within seven (7) days, at no additional cost, all deliverables including, if applicable, any electronic data or files relating to the Project. d. Waiver. The payment of any sums by the County under this Agreement or the failure of either party to require compliance by the other with any provisions of this Agreement or the waiver by either party of any breach of this Agreement shall not constitute a waiver of any claim for damages by such party for any breach of this Agreement or a waiver of any other required compliance with this Agreement. e. Suspension. County may suspend the Basic Services and this Agreement at any time for County’s convenience and without penalty to County upon three (3) days’ notice to Provider. Upon any suspension by County, Provider shall discontinue work on the Basic Services and shall not resume the Basic Services until notified to proceed by County. 11. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. By executing this Agreement Provider affirms that Provider and any subcontractors of Provider are and shall remain in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.58. By executing this Agreement Provider certifies that Provider has not been identified, and has not utilized the services of any agent or subcontractor identified, on the list created by the State Treasurer pursuant to G.S. 147-86.81. c. Non-Discrimination. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all state and federal non-discrimination laws, policies, rules, and regulations and the Orange County Non-Discrimination Policy and Orange County Living Wage Policy (each policy is incorporated herein by reference and may be viewed at http://www.orangecountync.gov/departments/purchasing_division/contracts.php.) Any violation of the Orange County Non-Discrimination Policy is a breach of this Agreement and County may immediately terminate this Agreement without further obligation on the part of the County. This paragraph is not intended to limit and does not limit the definition of breach to discrimination. d. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or non-performance of, this Agreement DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 FINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 6 shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. Binding arbitration may not be initiated by either Party, however, the Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. e. Entire Agreement. This Agreement represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. f. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Parties. g. Ownership of Work Product. Should Provider’s performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project without additional compensation to the Provider. The use of the documents, items or things by the County or by any person or entity for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. h. Non-Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County’s obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non-appropriation of public funds. It is expressly agreed that County shall not activate this non-appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County’s statutory authority, mandate or mandated functions, by state or federal legislative or regulatory action, which adversely affects County’s authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County’s legal authority. i. Signatures. This Agreement together with any amendments or modifications may be executed electronically. All electronic signatures affixed hereto evidence the consent of the Parties to utilize electronic signatures and the intent of the Parties to comply with Article 11A and Article 40 of North Carolina General Statute Chapter 66. j. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 FINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 7 Orange County Provider’s Name Attention: Emergency Services Stryker Sales Corporation, P.O. Box 8181 through its Medical Division Hillsborough, NC 27278 3800 E. Centre Ave. Portage, MI 49002 k. Additional Service Terms. See ADDENDUM to Master Services Agreement attached to Exhibit A, being Quote #220803100440. IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set their hands and seal, all as of the day and year first above written. ORANGE COUNTY: PROVIDER: STRYKER SALES CORPORATION, through its Medical Division By: _________________________________ Bonnie Hammersley, County Manager By: __________________________________ Tom Tackabury, Sr. Sales Manager, ProCare DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 FINAL-SYK (Med) Orange County (NC) Srvc Agmt (10-9-2020) 8 ORANGE COUNTY—DEPARTMENT USE ONLY ______________________________________________________________________________ Party/Vendor Name: Stryker Sales Corporation, through its Medical Division Party/Vendor Contact Person: Pat Vereb Contact Phone: 412.651.5210 Party/Vendor Address: 3800 E. Centre Avenue City Portage State: MI Zip: 49002 Department: ES Amount: $35,495.00 Purpose: Service Agreement Budget Code(s): 10757520-571000 Vendor # (N/A if new vendor) Vendor is a BOCC consultant? Yes No Contract Type: (Check one) New Renewal Amendment Effective Date October , 2020 Approved by Board Yes No Agenda Date: This agreement is approved as to technical form and content and I as Department Director affirmatively state work on this project has not been initiated prior to execution of the agreement: Department Director’s Signature ________________________________________ Date: ________ Agreements for emergency services or repair are not subject to the above affirmation. If services related to this agreement have already begun or been completed please briefly describe the nature of the emergency condition that was addressed: Information Technologies (Applicable only to hardware/software purchases or related services) This agreement has been reviewed and is approved as to information technology content and specifications: Office of the Chief Information Officer___________________________________ Date: ________ Risk Management This agreement is approved for sufficiency of insurance standards, specifications, and requirements: Office of the Risk Management Officer___________________________________ Date: _________ Financial Services This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal Control Act: Office of the Chief Financial Officer ____________________________________ Date: _________ Legal Services This agreement is approved as to legal form and sufficiency: Office of the County Attorney __________________________________________Date: ________ Clerk to the Board Received for record retention: All Docusign contracts must be copied to the Clerk upon completion: occlerkdocs@orangecountync.gov The following signature block is for hard copies only and is not required for Docusign contracts: Office of the Clerk to the Board __________________________________________Date:_________ DocuSign Envelope ID: A6CB051C-AEB9-4C23-947E-DCBD8F1F02B8 9/21/2022 9/21/2022 9/21/2022 9/23/2022