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HomeMy WebLinkAboutItem #05 Approval of Licensing and Rebate Agreements with Bound Tree Medical for Operative IQ Inventory Management ocoee florida AGENDA ITEM COVER SHEET Meeting Date: August 7, 2018 Item # 5 Reviewed By: 01° Contact Name: Fire Chief John Miller Department Director: ,,r j/Ar Contact Number: 407-905-3140 City Manager: /74( Subject: Approval of Licensing and Rebate Agreements with Bound Tree M dical for Operative IQ Inventory Management System Background Summary: The Ocoee Fire Department (OFD) utilizes Bound Tree Medical (BTM) to purchase the EMS supplies which are stocked on all rescue and engine units, and used by Department personnel on medical calls. Operative IQ is a service provided by BTM which works in tandem with UCaplt Cap 5 vending machines for advanced electronic inventory management and tracking of EMS supplies, pharmaceuticals, and narcotics. OFD currently utilizes an outdated inventory control system; but was recently awarded a 75%/25% matching grant from the Florida Department of Health to purchase three of the Cap 5 vending machines. This will afford the most up-to-date inventory control system, which will save the City by reducing pharmaceutical inventory loss. BTM has extended a rebate offer to OFD to cover the cost of 2-day onsite setup and training on the system, plus three years of licensing fees, with an annual supply purchase of at least $75,000, a threshold which OFD already meets. Operative IQ will replace the City's existing inventory management system, with improved pharmaceutical, narcotics, and supply tracking; as well as biometric security, which is not available with the current system and is required by the state. By accepting the rebate agreement, the City will save $14,695 over the next three years. Issue: Should the Honorable Mayor and City Commission approve entrance into Licensing and Rebate Agreements with Bound Tree Medical, for the use of the Operative IQ inventory management system, and to be granted rebates to cover the cost of its initial setup and training plus three years' of licensing fees? Recommendations: Staff recommends approval of the two Agreements with Bound Tree Medical for Operative IQ. Attachments: - BTM Operative IQ Licensing Agreement - BTM Operative IQ Rebate Agreement - Operative IQ Exhibit A ' Financial Impact: OFD currently meets the minimum purchase threshold with BTM on an annual basis; therefore there is no additional financial impact. Type of Item: (please mark with an `x') Public Hearing For Clerk's Dept Use: Ordinance First Reading X Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda X Commission Approval Discussion& Direction X Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. V N/A Reviewed by 0 N/A 2 Bound Tree Operative IQ Licensing Agreement Customer Company Name: City of Ocoee Bound Tree Medical, LLC Address: 563 South Bluford Ave 5000 Tuttle Crossing Blvd. Ocoee, FL 34761 Dublin,OH 43016 Attention: Corey Bowles Mark Dougherty E-mail:Cbowles@ocoee.org Mark.Dougherty@sarnova.com This Licensing Agreement(the"Agreement")is hereby entered this_ CONSEQUENTIAL, OR EXEMPLARY DAMAGES. IN NO EVENT 19th day of June, 2018 (the "Effective Date") by and between WILL COMPANY BE LIABLE FOR ANY DAMAGES OR Company and Customer (referred to herein as the "Parties" or NONCONFORMITY OF THE SOFTWARE AND SOFTWARE "Party"). ACCESSORIES. 1. Scope. The terms and conditions below represent the 9. Force Majeure. In the event that either Party is prevented terms and conditions under which Company will grant a from performing or is unable to perform any of its license to Customer for the Operative IQ Mobile Inventory obligations under this Agreement (other than payment of Management System for Emergency Medical Services (the amounts due hereunder)due to any Act of God,fire,casualty, "Software"). flood, war, strike, lockout, epidemic, destruction of facilities, 2. Term. The term of this Agreement shall become effective as riot, insurrection, or any other cause beyond the of the Effective Date and shall remain in full force and reasonable control of the Party invoking this Section, such effective for 3 year(s) after the Effective Date unless party's performance shall be excused and the time for the otherwise terminated in accordance with the provisions set performance shall be extended for the period of the delay forth herein. or inability to perform due to such occurrences. 3. Grant of Non-Exclusive License. Subject to the terms and 10. Confidentiality. Neither Party may disclose the terms and conditions of this Agreement, Company hereby grants to conditions of this Agreement to a third party without the Customer a non-exclusive irrevocable license to the Software prior written consent of the other, except as required by law during the Term(the"License"). or as necessary to perform its obligations under this 4. Licensing Fee. The fee for each License shall be as specified Agreement.Notwithstanding the foregoing,Company may use on Exhibit A, per Contract Year, payable as of the respective certain Customer information as input data in a database Contract Year. For this purpose a "Contract Year" is the where Customer's identity shall be kept anonymous. Neither twelve (12) consecutive month period beginning on the party will make any press release nor other public Effective Date, and each succeeding Twelve (12) month announcement regarding this Agreement without the other consecutive 12 month period during the Term. if this party's prior written consent except as required under Agreement ends prior to the end of a Contract Year, the applicable law or by any governmental agency. annual License fee will be pro-rated to reflect the number of 11. Termination. Each Party reserves the right to terminate the months in the final Contract Year. The number of Licenses Agreement if: (a) the other Party ceases to function as a issued under this Agreement is as specified in Exhibit A. going concern in the normal course of business;(b)the other 5. Software Accessories. Customer may purchase Software Party commits or suffers any act of bankruptcy or insolvency; Accessories needed to operate the software at the prices (c)upon notice of termination after notice of a material breach specified on Exhibit A and shall be payable at the time of has been given and such breach is not cured within thirty(30) purchase. days following the notice of breach. Company may terminate 6. Set Up and Training. Set up of the Software shall be this agreement at any time upon written notice to the performed by the software developer at the price specified on Customer. Exhibit A. 12. Relationship of Parties. Each Party is an independent 7. Warranties. The Software and Software Accessories carry contractor of the other. Neither Party shall be the legal only those warranties made for them by their manufacturers. agent of the other for any purpose whatsoever and therefore The duration of the warranty shall extend for the length of has no right or authority to make or underwrite any promise, time set by the manufacturer. THERE ARE NO OTHER warranty, or representation, to execute any Agreement, or EXPRESSED OR IMPLIED WARRANTIES, INCLUDING ANY otherwise to assume any obligation or responsibility in the WARRANTY OF MERCHANTABILITY OR FITNESS FOR A name of or on behalf of the other party, except to the extent PARTICULAR PURPOSE. specifically authorized in writing by the other Party. 8. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR 13. Assignment. This Agreement and the rights and obligations PUNITIVE, SPECIAL, PROXIMATE, INCIDENTAL, hereunder shall be binding upon and inure to the benefit of Page 1 of 3 V20180207 Bound Tree Operative IQ Licensing the Parties hereto and their respective successors and assigns; jurisdiction. Each party irrevocably agrees that any legal provided that no Assignment,sale or other assignment of this action,suit or proceeding brought by it in any way arising out Agreement can occur unless either (a) the transfer occurs by of this Agreement must be brought solely and exclusively in, way of merger, reorganization, consolidation, amalgamation, and will be subject to the service of process and other or as part of a transfer of all or substantially all of the applicable procedural rules of, the state or federal courts in assigning party's assets, or (b) then non-transferring Party Columbus,Ohio. consents to the transfer. In the event of such a transfer, the 17. Severability. If any provision of this Agreement is held to transferring Party agrees to secure consent from the be illegal, invalid or unenforceable under any present or transferee that it will assume and perform all obligations of future law, and if the rights or obligations of either Party the transferring Party under this Agreement. Supplier or under this Agreement will not be materially and adversely Company shall give the other written notice of any anticipated affected thereby such provision shall be fully severable and assignment of the Agreement as soon as administratively the remaining provisions of this Agreement shall remain in practicable after such information may first be made full force and effect to the fullest extent permitted by public. applicable law, each Party hereby waives any provision of 14. Notices. All notices or other communications that are law that would render any provision prohibited or required or permitted hereunder shall be in writing and unenforceable in any respect. delivered personally, sent by facsimile (and such facsimile 18. Waiver of Jury Trial. CUSTOMER AGREES TO WAIVE ANY must be promptly confirmed by personal delivery, registered RIGHT TO HAVE A JURY PARTICIPATE IN THE RESOLUTION or certified mail or overnight courier as provided herein),sent OF THE DISPUTE OR CLAIM, WHETHER SOUNDING IN by nationally-recognized overnight courier or sent by CONTRACT, TORT OR OTHERWISE, BETWEEN ANY OF THE registered or certified mail, postage prepaid, return receipt PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES ARISING requested,to the addresses first specified hereinabove, or to OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL such other address as the Party to whom notice is to be TO THIS AGREEMENT. given may have furnished to the other Party in writing in 19.Miscellaneous. Both Parties shall comply with all laws, accordance herewith,to the attention of the Chief Executive rules, and regulations applicable to this Agreement. All Officer. In addition, a copy of any notice to Company must purchases under this Agreement are for Customer's be sent to General Counsel, Bound Tree Medical, LLC, 5000 "own use" as such term is defined in judicial or legislative Tuttle Crossing Blvd., Dublin, OH 43016 (such copy shall not interpretation. This Agreement is the entire agreement constitute legal notice). between the parties with regard to the subject matter of this 15. Headings. The headings of this Agreement are for Agreement. No amendment of the terms of this Agreement convenience only and shall not affect the meaning of the will be binding on either party unless reduced to writing and terms of this Agreement. signed by an authorized employee of the party to be bound. 16. Governing Law/Venue. This Agreement shall be governed by 20. Counterparts. This Agreement may be executed in two or and construed in accordance with the laws of the State of more counterparts, each of which shall be deemed an Ohio,excluding any conflicts or choice of law rule or principle original,but all of which together shall constitute one and the that might otherwise refer construction or interpretation of same instrument. this Agreement to the substantive law of another IN WITNESS WHEREOF,the parties hereto have executed this Company Agreement as of this 17th day of July,2018 Bound Tree Medical,LLC By: Name: Mark.).Dougherty Title: Secretary &Treasurer Page 2 of 3 V20180207 Bound Tree Operative IQ Licensing Customer CITY OF OCOEE, a Florida municipal corporation By: RUSTY JOHNSON Mayor Attest: Melanie Sibbitt,City Clerk FOR USE AND RELIANCE ONLY BY THE APPROVED BY THE OCOEE CITY CITY OF OCOEE, FLORIDA; APPROVED AS COMMISSION AT A MEETING HELD ON TO FORM AND LEGALITY this _ day of , 2018 UNDER AGENDA ,2018. ITEM NO. SHUFFIELD LOWMAN&WILSON,P.A. By: City Attorney *To the extent any item is provided at no charge,it is deemed to be provided at a discount on the full price of such item. These discounts are governed by the terms of a separate rebate agreement between the Parties. The parties acknowledge that the rebate provided under the terms of this Agreement constitutes a "discounts or other reductions in price"under section 1128 B(b)(3)(A)of the Social Security Act 42 U.S.C.1320a-7b(b)(3)(A). Accordingly,Customer shall disclose the discount to any state or federal program that provides cost or charge-based reimbursement to the extent required by law. W. Bound Tree Customer Rebate Agreement Customer Company Name:City of Ocoee Bound Tree Medical,LLC Address:563 South Bluford Ave 5000 Tuttle Crossing Blvd. Ocoee,FL 34761 Dublin,OH 43016 Attention:Corey Bowles Attention: Mark Dougherty Telephone:407-202-8189 Telephone:614.760.5018 Email:cbowles@ocoee.org E-mail:Mark.Dougherty@sarnova.com This Rebate Agreement(the"Agreement") is hereby entered this 19`h day of June,2018 (the"Effective Date") by and between Customer and Company(referred to herein as the"Parties" or"Party"). 1. Scope. The terms and conditions below represent the terms and conditions under which Company will pay a rebate to Customer. The terms and conditions of any supply or similar contract executed,between the Parties shall apply to and govem this Agreement,to the extent the terms of that agreement do not conflict with the terms set forth herein. This Agreement shall indude Exhibit A hereto,which is incorporated herein by reference. 2. Eligibility for Rebate. If the volume of products purchased by Customer from Company during the period of time set forth in Exhibit A (the "Rebate Period")satisfies or exceeds the minimum purchase targets specified in Exhibit A, Customer shall be eligible for a rebate in the amount specified in Exhibit A. 3. Payment of Rebate. The rebate is payable(as soon as practicable after the close of the Rebate Period)by credit memo upon calculation and approval of the rebate by Company. 4. Compliance with Safe Harbor Requirements.The Parties acknowledge that the rebate provided under the terms of this Agreement constitutes a "discounts or other reductions in price" under section 1128 B(b)(3)(A) of the Social Security Act 42 U.S.C. 1320a- 7b(b)(3)(A). Accordingly, Customer shall disclose the discount to any state or federal program that provides cost or charge-based reimbursement to the extent required by law. 5. Term. This Agreement shall commence on the Effective Date and continue for a period of three years unless otherwise terminated in accordance with the provisions set forth herein. 6. Confidentiality. Neither Party may disclose the terms and conditions of this Agreement to a third Party without the prior written consent of the other, except as required by law or as necessary to perform its obligations under this Agreement.Notwithstanding the foregoing, Company may use certain Customer information as input data in a database where Customer's identity shall be kept anonymous. 7. Warranties. THERE ARE NO OTHER EXPRESSED OR IMPLIED WARRANTIES,INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FORA PARTICULAR PURPOSE REGARDING PRODUCTS PURCHASED FROM COMPANY AND/OR THE REBATE.. 8. Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR PUNITIVE, SPECIAL, PROXIMATE, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY DAMAGES OR NONCONFORMITY OF THE SOFTWARE AND SOFTWARE ACCESSORIES. 9. Force Majeure. In the event that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement(other than payment of amounts due hereunder)due to any Act of God,fire, casualty,flood,war,strike, lockout, epidemic, destruction of facilities, riot, insurrection, or any other cause beyond the reasonable control of the Party invoking this Section, such party's performance shall be excused and the time for the performance shall be extended for the period of the delay or inability to perform due to such occurrences. 10. Termination. Each Party reserves the right to terminate the Agreement if:(a)the other Party ceases to function as a going concern in the normal course of business;(b)the other Party commits or suffers any act of bankruptcy or insolvency;(c)upon notice of termination after notice of a material breach has been given and such breach is not cured within thirty(30)days following the notice of breach.Company may terminate this agreement at any time upon written notice to the Customer. 11. Assignment. This Agreement and the rights and obligations hereunder shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns; provided that no Assignment, sale or other assignment of this Agreement can occur unless either(a)the transfer occurs by way of merger,reorganization,consolidation,amalgamation,or as part of a transfer of all or substantially all of the assigning party's assets,or(b)then non-transferring Party consents to the transfer. In the event of such a transfer, the transferring Party agrees to secure consent from the transferee that it will assume and perform all obligations of the transferring Party under this Agreement. Supplier or Company shall give the other written notice of any anticipated assignment of the Agreement as soon as administratively practicable after such information may first be made public. Page 1of2 V20180207 12. Governing Law.This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio,excluding any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. Each party irrevocably agrees that any legal action,suit or proceeding brought by it in any way arising out of this Agreement must be brought solely and exclusively in,and will be subject to the service of process and other applicable procedural rules of,the state or federal courts in Columbus,Ohio 13. Waiver of Jury Trial. CUSTOMER AGREES TO WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN THE RESOLUTION OF THE DISPUTE OR CLAIM, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN ANY OF THE PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES ARISING OUT OF,CONNECTED WITH,RELATED TO OR INCIDENTAL TO THIS AGREEMENT. 14. Miscellaneous. Both Parties shall comply with all laws, rules,and regulations applicable to this Agreement. All purchases under this Agreement are for Customer's"own use"as such term is defined in judicial or legislative interpretation. This Agreement is the entire agreement between the parties with regard to the subject matter of this Agreement. No amendment of the terms of this Agreement will be binding on either party unless reduced to writing and signed by an authorized employee of the party to be bound. 15. Counterparts. Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of this 17`h day of July,2018. Customer CITY OF OCOEE,a Florida municipal corporation By: RUSTY JOHNSON Mayor Attest: Melanie Sibbitt,City Clerk FOR USE AND RELIANCE ONLY BY THE APPROVED BY THE OCOEE CITY CITY OF OCOEE, FLORIDA; APPROVED AS COMMISSION AT A MEETING HELD ON TO FORM AND LEGALITY this day of , 2018 UNDER AGENDA ,2018. ITEM NO. SHUFFIELD LOWMAN&WILSON,P.A. By: City Attorney Bound Tree Medical,LLC By: Mark Dougherty,Treasurer&Secretary BoundTree "ialtiora,...... ..medi' 800-533-0523 I www.boundtree.com Exhibit A* Customer Name: Ocoee Fire Department BTM Customer Number: 563 BTM Account Manager: Shawn Murphy Number of Inventory Management Licenses: 10 Number of Narcotics Safes: 1 Rebate Period: 3 Years Bound Tree Pricing Summary Year 1 Year 2 Year 3 TOTAL Inventory Management Licenses $3,600 $3,600 $3,600 $10,800 2 Day on Site Set Up Fee&Training $3,800 $0 $0 $3,800 Zebra Barcode Label Printer $0 $0 $0 $0 Datalogic Barcode Reader $0 $0 $0 $0 Narcotics Flag Label Kit-Hot Pink $0 $0 $0 $0 Biometric Reader $95 $0 $0 $95 Zebra Barcode Label Kit $0 $0 $0 $0 Total Fees Before Rebate $7,495 $3,600 $3,600 $14,695 Bound Tree Discount Pricing Summary Year 1 Year 2 Year 3 TOTAL Rebate Percentage for Licenses 100% 100% 100% Inventory Management Licenses $0 $0 $0 $0 Inventory Management Set Up Fee $3,800 $0 $0 $3,800 Zebra Barcode Label Printer $0 $0 $0 $0 Datalogic Barcode Reader $0 $0 $0 $0 Narcotics Flag Label Kit-Hot Pink $0 $0 $0 $0 Zebra Barcode Label Kit $0 $0 $0 $0 Total Fees After Rebate $3,800 $0 $0 $3,800 Rebate Calculation Year 1 Year 2 Year 3 TOTAL Rebate Percentage 100% 100% 100% SAVINGS Minimum Purchase Commitment for Rebate $75,000 $75,000 $75,000 Rebate Amount $7,495 $3,600 $3,600 $14,695 *To the extent any item is provided at no charge,it is deemed to be provided at a discount on the full price of such item. These discounts are governed by the terms of a separate rebate agreement between the Parties. The parties acknowledge that the rebate provided under the terms of this Agreement constitutes a"discounts or other reductions in price"under section 1128 B(b)(3)(A)of the Social Security Act 42 U.S.C.1320a-7b(b)(3)(A). Accordingly,Customer shall disclose the discount to any state or federal program that provides cost or charge-based reimbursement to the extent required by law.