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HomeMy WebLinkAboutResolution - 2011-R0123 - Contract - Roche Diagnostics Corporation - Laboratory Equipment - 03_22_2011Resolution No. 2011-RO123 March 22, 2011 Item No. 5.22 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, Contract No. 10093 for sole source purchase order for laboratory equipment with service agreement, by and between the City of Lubbock and Roche Diagnostics Corporation of Indianapolis, Indiana, and related documents. Said Contract is attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. Passed by the City Council on March 22, 2011 TO MARTIN, MAYOR ATTEST: Rebc&ca Garza, City Secretary APPROVED AS TO C '5mf S�" Scott Snider, Assistant City Community Services APPROVED AS TO FORM: John vw:ccdocs/RES.Roche Diagnostics Corp-PurchaseOrd March 3, 2011 Resolution No. 2011—RO123 RPS-FS.3.1-FM-RAS (Revision: 1.0) Roche Diagnostics Confidential ROCHE APPLIED SCIENCE FIELD SERVICE AGREEMENT Roche Diagnostics (RD) Applied Science agrees to maintain the equipment purchased or leased by: Customer Name Account Number Address City and State ZIP Code City of Lubbock BT Response Lab 79423 Payer Number Payer Name Payer Address Payer City and State Payer ZIP Code City of Lubbock 1902 Texas Ave Lubbock, TX 79423 Model # MagNa Pure Compact Serial Number COMMENCEMENT DATE: One year from date of insttallRon Contract #10093 Roche The Term of this Service Agreement shall be 60 months from the Commencement Date stated above. Purchase Order ** A copy of your purchase order must accompany your signed Service Number: Agreement" Service Agreement Coverage' Price Please Select One Please Enter Price Classic (Silver) 46 Unlimited on -site emergency service Monday through Friday, 8:00 a.m. to 5:00 p,m. (local time) $ •:• On -Site response within 48 hours 16,500.00 ra Technical Support Center -technical telephone support is 8:00 AM - 6:00 PM Business Days $16,500.00 .• Maximum of one (1) preventive maintenance visits by Roche Diagnostics representative Necessary warranted parts Coverage excludes any device used with or associated with the Instrument which was not part of the instrument as originally manufactured, e.g., extemal computers, external water supplies, external un-interruptible power supplies (UPSs) and external power conditioners. Please provide a blanket P.O.# to cover oavment of calls outside vour selected coverage period: Payment Method Administrative Fee Please Select One Please Enter Price Annual payment in advance No Additional Fee $16,500.00 :• Quarterly Payments $75 per Year ❑ $ •:• Monthly Payments $300 per Year ❑ $ Please Total your selections: $__Ji .9WAW _ The terms and conditions attached hereto are a part of this Agreement and shall be binding upon RDC and Customer. The prices stated herein, which are subject to applicable state and local taxes, may be regarded as a quote and are valid through 3130/2011. Any purchase order referenced herein or attached hereto is for reference purposes only; the Terms and conditions of this Agreement shall be the only terms and conditions that apply. RETURN TO: Roche Diagnostics c/o CCC RAS Contract Management Department 9115 Hague Road, Bldg. H Inrlinnannlic IN 4R75R • 1-800-845-7355 • 1-317-521-4270 Fax n.^,CHE DIAGNOSTICS City of Lubbock CUSTOMER NAME I accept the term and conditions presented on this page and the attached five pages. By: By: — t rized In -House Signature) (Authorized Customer Signature) ATTEST: Printed Na Printed Name m - a er Manager, March 22, 2011 806.775.2312 QiStnMarCOPAractill CE g Title a e Title Date Teleph Number "Roche signature on Agreement is contingent upon the signature of the City of Lubbock signing th greement in its current f m:' n a `s to the Agreement after Roche signature shall render Roche's signature void. ED ASTO CON'l NT; APP _ 42S Cott Snkder, Assistant Ci Manager si t Atto Contract: 10093 Resolution No. 2011-RO123 MagNA PureTM Compact Proposal for Sale City of Lubbock Pricing Information: Effective dates of pro osal Description Cat. No. List Price Price 01/22/2010 through MagNA PureI" Cornpact 03731146001 $39,000.00 $30,000.00 03/30/2010 f reight Charges (approximate) $ 500.00 MP Cornpact NA Kit I 03730964001 No Charge 5 Year extended Service 04356730001 S3100.00 yr. $16,500.00 MP Compact SILAR Service $18.500.00 Total $47,000.00 MagNA Pure'' Compact Instrument components and specifications - Exhibit A (attached) MagNA Purer" Compact Instrument reagents and accessories - Exhibit 6 (attached) MagNA Pure"' Compact Instrument extended warranty/service schedule - Exhibit C (attached) MagNA Pure'" Compact Instrurnent unique specifications and features, sole source letter - Exhibit 0 (attached) MagNA Pure'" Cornpact Instrurnent Instrumgnt Warranty: Complete coverage for parts and labor for one year. Technical assistance hotline for hardware, software and application chernistry. 24-hour response time for scheduling of on -site repair/replacement, Available Extended WarranV-ServiceL Agreement: For coverage beyond the initial warranty period: Service of MagNA Pure Compact will be managed by the Roche Diagnostics Field Service organization. Please see Exhibit C for details. Jenkins n.SI IS I t1Ulwck l ah WC I11221 ;Am, RPS-FS.3.1-FM-RAS (Revision: 1.0) Roche Diagnostics Confidential Page: 2 of 5 Service Agreement Terms and Conditions I. PURPOSE The purpose of this Agreement is to set forth the understandings of the parties of the terms and conditions applicable to the servicing of the "Instrument and Software" identified on the front of this agreement. II. APPLICATION This Agreement shall be applicable only to the Instruments and Software distributed by Us that have been subject to an RD warranty or maintenance agreement immediately prior to this Agreement, or any instrument which has been subject to prior reconditioning by Us and accepted in writing under the terms of this Agreement. In the event there has been a lapse in Instrument or Software coverage, the cost of all necessary Instrument reconditioning and all necessary Software upgrades, dial -up validation and verification of Software performance shall be borne solely by You, prior to the implementation of this Agreement_ III. RD OBLIGATIONS A. We shall service and provide maintenance of the Instrument, and support for the Software, for a period as defined on this Agreement. For the purposes of this Agreement the terms "service", "repair" and "maintenance" shall include labor time, travel time, repairs and all necessary warranted parts, except as noted on the front of this Agreement; the term "support" shall include technical support via telephone and/or modem connection, necessary software updates, diskettes, manuals, and other required documentation. B. We shall provide preventive maintenance inspections, limited to the number shown on the front of this agreement during each twelve (12) month term of this Agreement. The date of the inspections during such twelve month periods, shall be at Our discretion. The services to be performed under the maintenance inspection are set forth in the RD protocol, a copy of which is on file at the principal office of RD. Such preventive maintenance calls may be scheduled by Our Service Department to occur concurrently with any emergency service call. We shall make emergency service calls for the instrument, limited to the number shown on the front of this Agreement, in response to Your calls with respect to any total or partial non-performance of the Instrument or any repairs and/or servicing necessary to ensure the instrument's proper care and working order. If we ship You any repair parts, We will pay the cost of freight each way. C. In the case of a total stoppage of all or part of the Instrument, We shall endeavor to provide emergency service within forty eight (413) hours of Your call. D. The following provisions shall apply to any repairs, servicing, and/or Software support by Us. 1. All repairs, servicing, and/or Software support shall be performed during normal working hours, i.e. Monday through Friday from 8:00 a.m. to 5:00 p.m. (local time), excluding Roche Diagnostics holidays. If You make a demand for Instrument service or repair outside of the normal service hours, You will be charged at our normal hourly rates, and You will provide Us with a purchase order for such repairs. Any terms and conditions of Your purchase order that conflict with the terms of this Agreement are hereby rejected and the terms of this Agreement shall control. 2. Upon each instance of repair, servicing, or Software support, as the case may be, We shall make a report indicating Our representative's name, the date, the hour of arrival and of departure, the duration of the visit, the purpose of the visit, a description of the work performed, any improvements to be made or that are planned and any other observations and/or suggestions. We shall leave a copy of each report with You. 3. When it is deemed necessary by Us, We shall make a documented report to You including any fact that appears to have an impact on the proper functioning of the Instrument or Software and any particular measures required to maintain the Instrument and Software in good working order. We shall specifically note operating errors, faulty Customer maintenance and desired modifications. 4. Software support rendered under this agreement shall be performed via telephone and/or modem connection, or, in the case of updates, via best delivery method. You will be responsible for the installation of updates within 30 days of receipt. 5. We shall provide computer hardware troubleshooting for RD provided computer hardware only, and said computers are under the original manufacturer warranty or service agreement, and, if We deem necessary, We shall dispatch a manufacturer service representative. E. Our obligations shall not include the following: 1. Provision of reagents, accessories or consumable items, such as printer paper, fuses, photometric lamps, probes, cuvettes, etc., or any other items identified in the Operator Manual as consumable supplies, which are consumed or required to make the required repair or perform a preventive maintenance. 2. Services such as the painting of the Instrument and integration of the Instrument or Software with equipment not provided or installed by RD, e.g. computer equipment not sold or distributed by RD. 3. Peripheral devices (washers, computers used to link more than one (1) analyzer, etc.) which are not an incorporated part of the analyzer, which are sold by Roche Diagnostics are not covered by service agreements. 4. Water equipment, external computers, un-interruptible power supplies, power conditioners and other accessories external to the Instrument are not covered by service agreements. 3 b,) 1, Customer Initials & Date RPS-FS.3.1-FM-RAS (Revision: 1.0) Roche Diagnostics Confidential Page: 3 of 5 Service Agreement Terms and Conditions IV. CUSTOMER OBLIGATIONS A. You agree to use the Instrument and Software in strict accordance with Our operating instructions and software license agreement, to permit servicing, repair, and software support work by Our personnel only, and to obtain Our written consent prior to connecting the Instrument to any other equipment or using non-RD equipment and/or accessories with the Instrument, or utilizing the Software with any other equipment. You further agree not to install any software not provide by Us. B. You agree You will not install non -Roche supplied software. C. You agree to use the Instrument and Software in an appropriate location and with electrical connections that correspond to the electrical supply specifications of the hardware manufacturer. You will protect the Instrument and associated Hardware from all adverse elements, such as dirt, dust and liquids of any kind. D. You will allow Our personnel free access to operating locations of any Instrument and Software to be serviced, repaired, maintained or supported. You agree to provide adequate space around the Instrument and adequate modem connection or network to the Software. In turn, We will respect all Your internal operating procedures of which You advise Us as well as general security instructions. V. EXCLUSIONS FROM COVERAGE Your payments under this Agreement do not cover repairs or Software support which may not be imputed to the manufacturer or to RD, including in particular, and without limiting the generality of the foregoing: A. Repairs or Software support required to remedy breakdown or damage which results from operator errors, abnormal or unapproved uses, unauthorized installed software or software updates, acts of third parties, viruses, faulty electrical connections, fluctuations or failures in air conditioning, heating or cooling systems and electrical power failures. B. Repairs or Software support required to remedy breakdown or damage which results from force majeure, including natural disasters such as fire, flood, earthquake, wind damage, tornadoes and lightening, and/or acts of violence, such as strikes, riots, sabotage, demonstrations, acts of terrorism, war, civil war, acts of public authorities and all other acts beyond Our reasonable control or the reasonable control of the equipment manufacturer. C. Repairs or Software support required to remedy breakdown or damage caused by unauthorized installed software or updates. D. Repairs or Software support required to remedy breakdown or damage caused by defects or malfunctions of any external computer hardware or connections to RD equipment, or any external water supply equipment, un-interruptible power supplies, power conditioners, or any other external connections to RD equipment E. Normal daily, weekly, monthly, quarterly and semi-annual maintenance services to be provided by You such as the replacement of fuses, lamps, tubes, reagents and probes, as defined in the Operator Manual or Customer Bulletins. F. Repairs required to remedy problems due to improper completion of, or the lack of normal operator daily, weekly, monthly, quarterly and semi-annual maintenance service as identified in the Instrument Operator Manual. G. Repairs required to remedy problems due to use of accessories, products, and/or software or software updates not supplied or approved by Us. H. In the event We are called upon to perform repairs such as those listed in A, B, C. D, E, F and/or G above, the following provisions shall apply: 1. We shall compile detailed cost estimates describing the work to be performed, the number and cost of supplies and parts to be provided, the expected time to completion, the hourly rate and other details and conditions of the repairs. 2. You will provide Us with a purchase order for such repairs and/or Software support. Any terms and conditions of Your purchase order that conflict with the terms of this Agreement are hereby rejected and the terms of this Agreement shall control. Repairs and Software Support described in this section shall be billed separately. VI. SPECIAL SERVICE A. Service work of a special nature involving calls to move equipment or hardware, modify units for special applications and accessories, have on -site software support, etc., will be quoted on an individual basis. This quote may include air fares, preparatory time (e.g., time required to develop/modify customer software parameters/code at a location remote from the customer site), and associated travel expenses from outside the immediate area if required. B. The selection, acquisition, and service of external devices is Your responsibility. We will only be responsible for servicing Our instruments and software up to the communications port for linking to a computer. Any hardware, cables, switches, or peripheral devices which are connected externally are not Our responsibility. Damage to the Instrument or Software as a result of hardware failure or connection to external devices shall invalidate this Agreement. In the event of a communications failure between an Instrument or Software and a host or related computer, You may contact the Technical Support Center for help isolating the cause. If the cause cannot be identified, Our Field Service Representative may be dispatched at Your request. If the source of failure is determined to be with hardware or software that is external to the instrument, the service call shall be invoiced at Our then prevailing rates regardless of Agreement. On -Site support for Software or Hardware shall be invoiced at Our then prevailing rates. C. The following provisions shall apply to any special service of an Instrument, Software or Hardware pursuant to this section. 1. You shall give Us at least one (1) month advance notice of any request for special service. It shall be Your responsibility to provide transportation and personnel assistance necessary to properly relocate the Instrument and/or Hardware if applicable. 2. A detailed cost estimate shall be submitted by Us for any special service, including the details of the service, the cost of the special service and any other pertinent information. 4 IP Cus omer fnitials & Date RPS-FS.3.1-FM-RAS (Revision: 1.0) Roche Diagnostics Confidential Page: 4 of 5 Service Agreement Terms and Conditions 3. Upon receiving an agreement regarding the special service, You shall forward a purchase order to Us for the special service to be performed. Any terms and conditions of Your purchase order that conflict with the terms of this Agreement are hereby rejected and the terms of this Agreement shall control. All special service requests are subject to final approval by Us. VII SOFTWARE UPDATES We may be required to update the Software in order to improve its use and reliability. Such updates shall be covered by this Agreement. Updated Software shall be subject to this Agreement in all respects. Updates shall not extend the defined Agreement coverage period. Vill. INSTRUMENT MODIFICATIONS We may be required to modify the Instrument in order to improve its use and reliability. All such modifications shall be the subject of a detailed cost estimate by Us and shall be assented to by You by submitting a purchase order to Us. Any terms and conditions of Your purchase order that conflict with the terms of this Agreement are hereby rejected and the terms of this Agreement shall control. All modification work shall be billed separately except for modifications required to improve use or reliability which occur during the one (1) year warranty period, which shall be free. Modified instruments shall be subject to this Agreement in all respects. Modifications shall not extend the normal warranty period. IX. DEFAULT Each of the following is a "Default" under this Agreement: (a) You fail to provide payment of any sum to be paid hereunder within 10 calendar days of its due date; (b) You do not perform any of Your other obligations under this Agreement or in any other agreement with Us and this failure continues for 15 calendar days after We have notified You of Your non-performance; (c) You become insolvent, You dissolve or are dissolved, or You assign Your assets for the benefit of Your creditors, or enter (voluntarily or involuntarily) any bankruptcy or reorganization proceeding; (d) any guarantor of this Agreement dies, does not perform its obligations under the guaranty, or becomes subject to one of the events listed in clause (c) above; or (e) You offer products purchased or received under this Agreement or any other agreement with Us for resale. A. Abusive and repetitive requests by You for service, repair, support, or parts shall entitle Us to terminate this Agreement via the following procedure. 1. We shall inform You of the nature of such abuse and corroborate the same with incidences of unnecessary trips or request for Software support, etc. 2. In addition to such corroboration, We shall provide You with thirty (30) days written notice of Our intent to terminate the Agreement and the Agreement shall so terminate at the end of said thirty -day period. B. REMEDIES If a Default occurs, We may do one or more of the following: (a) We may cancel or terminate this Agreement or any or all other agreements that We have entered into with You; (b) We may require You to immediately pay Us, as compensation for loss of Our bargain and not as a penalty, a sum equal to (i) the Service Agreement Payments, and any other amounts owing under this Agreement at the time of default, (ii) the present value of all unpaid Service Agreement Payments for the remainder of the term discounted at 5% per year, compounded monthly, plus (iii) all other amounts due or that become due under this Agreement; (c) We may cease providing Service under this Agreement or any other Agreements We have entered into with You; (d) We may exercise any other right or remedy available at law or in equity. YOU AGREE TO PAY ALL OF OUR COSTS OF ENFORCING OUR RIGHTS AGAINST YOU, INCLUDING REASONABLE ATTORNEYS' FEES. X. INDEMNITY To the extent permitted by law, each Party will indemnify the other Party from all liabilities arising from the indemnifying Party's negligence or willful misconduct or failure to perform its duties or obligations as set forth in this Agreement, except to the extent caused by the negligence or willful misconduct of the Parry seeking indemnification. XI. PRICE/PAYMENT TERMS A. After the first 24 months from the commencement of this Agreement, We may adjust each selected service price once annually. This price includes the cost of traveling, labor and providing of necessary warranted parts except as noted on the front of this document; it further includes the cost of software support and RD required software updates except as noted on the front of this Agreement. You are responsible for any state and local sales taxes that may apply to this Agreement and agree to pay when due, either directly or by reimbursing us, such taxes. B. The payment required hereunder shall be payable at the beginning of each service period upon receipt of an invoice. All payments are due net thirty (30) days from Our invoice date. You agree that all payments not received by Us on or before the due date will be subject to 1.5% per month late charges or the maximum permitted by law, whichever is less. C. The prices for special services shall be determined from detailed and descriptive estimates. Such estimates shall include all essential elements in the calculation of the price and shall include in particular the estimated number of work hours required, the hourly billing rates and a list of supplies as well as prices or any other factors usually mentioned in regard to such services. XII TERM AND TERMINATION The term of this Agreement shall be for the term set forth on the front of this Agreement, beginning on the Commencement Date. In the event of a material breach of this Agreement by Us, You may terminate this Agreement upon ninety (90) days written notice to Us; provided, however, that such notice shall be ineffective if We cure such breach within the ninety (90) day notice period. In addition, You may terminate this Agreement at any time by giving Us at least ninety (90) days advance written notice and paying Us 1/6th of the pro -rated value of the remaining term (from the effective date of termination) of this Agreement. All of Your obligatio s st be current to terminate this Agreement prior to completion of the Initial Term. )< Customer Initials & Date RPS-FS.3.1-FM-RAS (Revision: 1.0) Roche Diagnostics Confidential Page: 5 of 5 Service Agreement Terms and Conditions XIII RENEWAL Upon termination of this Agreement, We may, in Our discretion, renew this Agreement, decide not to renew this Agreement, or offer alternative coverage and/or pricing. XIV. WARRANTY/LIMITATION OR REMEDYANDEMNITY A. We warrant that the services provided under this Agreement will be free from defects of workmanship for a period of thirty (30) days from the date of service. B. WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE INSTRUMENT, SOFTWARE, SOFTWARE SUPPORT, SOFTWARE UPDATES, PARTS AND SERVICES PROVIDED, EXCEPT THE LIMITED WARRANTY SET FORTH ABOVE. WE ARE NOT LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, LOSS OF THE USE OF THE CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES AND DOWN -TIME COSTS, RESULTING FROM OR ARISING IN CONNECTION WITH THE PERFORMANCE, DELAY IN PERFORMANCE OR NONPERFORMANCE OF ANY TERMS OR CONDITIONS OF A ROCHE DIAGNOSTICS WARRANTY OR SERVICE AGREEMENT OR FROM THE USE OR MISUSE OF THE INSTRUMENT OR SOFTWARE (OR ANY SUBSTITUTE THEREFORE) OR ANY MATERIAL OR WORKMANSHIP DELIVERED HEREUNDER, EVEN IF WE HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. YOUR EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY SHALL BE RE -PERFORMANCE OF ANY SERVICE WHICH PROVES TO BE DEFECTIVE. XV. MISCELLANEOUS You agree that the laws of the State of Texas shall govern this Agreement and You consent to the exclusive jurisdiction of and venue in any court located within the State of Texas . You expressly waive Your rights to trial by jury. Should any provision of this Agreement be held invalid, ineffective or unenforceable, the remaining terms shall remain in full force and effect. Our obligations under this Agreement shall be suspended in the event that We are hindered or prevented from complying with Our obligations because of labor disturbances, wars, fires, storms, accidents, interferences or any other cause beyond Our reasonable control, as described in section V above. You agree that the terms and conditions in this Agreement with all Roche Diagnostics addenda, make up the entire agreement between You and Us with respect to the subject matter hereof. No waiver of or modification to any term of this Agreement is valid unless it is in writing and signed by Us and You. You agree that We are authorized to supply missing information or correct obvious errors in this Agreement. If We delay or fail to enforce any of Our rights under this Agreement, We will be able to enforce Our rights at a later time. All notices shall be given in writing by the party sending the notice and shall be effective when deposited in the U.S. Mail, certified with return receipt requested, addressed to the party receiving the notice at its address shown on the front of this Agreement. All of Our rights shall survive the term of this Agreement. The titles and headings used in this Agreement are for convenience only and shall not be used to interpret the term and conditions of this Agreement. 3ia-3l ll Cus mer Initials & Date Contract: 10093 Resolution No. 2011—RO123 MagNA Pure"' Compact proposal for Sale City of Lubbock Pricing Information: Effective dates of proposal Description Cat. No. List Price Price 01/22/2010 through MagNA Pure", Compact 03731146001 $35,000.00 $30,000.00 03/30/2010 Freight Charges (appraxmiate) $ 500.00 MP Compact NA Kit 1 03730964001 No Charge 5 Year extended Service 04356730D01 53,700.00 yr. $16,500.00 MP Compact SILVER Service $18,500.00 Total $47,000.00 MagNA Pure" Compact Instrument components and specifications - Exhibit A (attached) MagNA Pure"I Compact Instrument reagents and accessories - Exhibit 8 (attached) MagNA Pure- Compact Instrument extended warranty/service schedule - Exhibit C (attached) MagNA Pure',' Compact Instrument unique specifications and features, sole source letter - Exhibit D (attached) MagNA Pure'" Compact Instrument Instrument Warranty: • Complete coverage for parts and labor for one year. • Technical assistance hotline for hardware, software and application chemistry. • 24-hour response time for scheduling of on -site repair/replacement Available Extended Warran Service A rg eement; For coverage beyond the initial warranty period: Service of MagNA Pure Compact will be managed by the Roche Diagnostics Field Service organization. Please see Exhibit C for details. Jenkins IP kibbock I ib MPC 0122I1.tInc