AGREEMENT
FOR EMS EMERGENCY TRANSPORTATION SERVICES
This Agreement for EMS Emergency Transportation Services (" Agreement") is made and entered into this 6`
h
day of June, 2418, by and between the CITY OF FULLERTON, a California municipal corporation located in the County of Orange (" City") and CARE AMBULANCE SERVICE, INC., a California corporation with principal offices at 1517 W.
Braden Court, Orange, CA 92868 (" Contractor").
RECITALS
WHEREAS, Contractor is a fully licensed ambulance service provider which has all of the necessary experience, qualifications, vehicles and personnel to meet City' s needs, and is otherwise qualified to perform the work required by this Agreement; and WHEREAS, City desires to utilize the services of Contractor to provide primary ambulance transportation services and other related services in accordance with applicable federal, state and local laws, and as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions herein contained, the parties hereby agree as follows:
AGREEMENT
1. Agreement and Order of Precedence
The Agreement constitutes the entire agreement between the parties. This Agreement contemplates that Contractor will do whatever is required to perform the work in accordance with the terms of the Agreement and in accordance with any applicable governmental laws and regulations, whether specifically identified in the Agreement or not.
2. Scope of Work
A. In exchange for the compensation to be provided by CITY to CONTRACTOR, CONTRACTOR will perform all of the services described in this Section for City. These services shall include the provision of all emergency transportation services, ( including but not limited to the First Tier Service and the Second Tier Mutual Aid Service ( as defined below) together with the provision of any labor, material, supplies and equipment related to the provision of those services, and any other duties, obligation or services required of CONTRACTOR in this Agreement. ( All of the services to be provided by Contractor under this Agreement shall be hereinafter collectively referred to as the " Emergency Transportation Services"). Contractor shall perform the Emergency Transportation Services in accordance with the terms and conditions contained herein.
B. All emergency transportation personnel assigned by Contractor to perform.
Emergency Transportation Services under this Agreement shall be hereinafter referred to as the Transportation Personnel."
1 C. Without limiting Contractor' s obligation to comply with all of its duties and obligations under this Agreement, the Emergency Transportation Services to be provided by Contractor shall include, but shall not be limited to, each of the following:
1. First Tier Service.
Contractor will provide with its own forces a sufficient number of fully equipped ambulances and Transportation Personnel, so as to provide, in accordance with industry standards, all of the City' s needsfor EmergencyTransportation Service, including but not limited being able to respond 24 hours a day 7 days a week to all 911 and other emergencies as required ( the " First Tier Service" or " First Tier"). The First Tier Service will be designedby Contractor so asto ensurethat there are enough of Contractor' s own ambulances and Transportation Personnel available to meet 100% of the anticipated number of calls for Emergency Transportation Service in the City. The First Tier Service shall meet the response times and all other requirements set forth herein. Each year, for the duration of the Term of this Agreement, Contractor will be required to reevaluate the level of coverage being provided, so as to ensure it is providing the required level of coverage.
a. First Tier Services will include, at a minimum, at least three fully equipped dedicated ambulances and sufficient staffing/ Transportation Personnel to provide Emergency Transportation Services exclusively for the City (" Station Based Ambulances"). The Transportation Personnel assigned by Contractor to operate the three Station Based Ambulances, will be provided housing at Fullerton stations designatedby the Fullerton Fire Chief Contractor will provide six EMTs per shift, withy at least two EMTs per vehicle. Shift scheduling shall be at the sole and absolute discretion of the Fullerton Fire Chief. The Station Based Ambulances must be able to respond 24 hours a day 7 days a week to all 911 and other emergencies as required.
b. In addition to the three Station Based Ambulances provided by the Contractor as part of this Agreement, Contractor must also provide any additional number of fully equipped ambulances and Transportation Personnelreasonablyrequired to meet the responsetimes required by City and to otherwise meet the anticipated number of calls for Emergency Transportation Service in City. Any vehicles and Transportation Personnel dedicated by Contractor to perform Emergency Transportation Services under this paragraph will be considered to be part of the First Tier Service described herein in addition to the three Station Based Ambulances.
2. Second Tier Service.
Contractor will also enter into a mutual aid agreement with a separate qualified ambulance service provider doing business in Orange County, to provide backup services in the event the First Tier Service is unable to respond to a call for Emergency Services ( hereinafter " Second Tier Mutual Aid Contract," " Second 2 Tier Mutual Aid Service," " Second Tier Service" or " Second Tier"). The company providing the Second Tier Mutual Aid Service will be hereinafter referred to as the " Second Tier Provider." In providing Emergency Transportation Services, the SecondTier Provider must meet the same requirements, including but not limited to staffing of vehicles and response times, and otherwise provide the same level of service as Contractor is required to provide under this Agreement. The Second Tier Mutual Aid Contract and the Second Tier Provider must be approved by the City and the Fire Chief prior to provision of any service by Contractor, such approval not to be unreasonably withheld. The intent of the Parties is that Contractor will provide a sufficient level of coverage under the First Tier Service, such that services under the Second Tier Mutual Aid Service will only be needed in rare circumstances, if at all. Contractor will be solely responsible for paying the Second Tier Provider for any services rendered under the Second Tier, which amount will be the Second Tier Provider' s sole compensation for services rendered under the Second Tier.
The Second Tier Mutual Aid Contract shall include language making the following clear:
a. In the event of a dispute between the Second Tier Provider and the Contractor, the SecondTier Provider' s soleremedy is against Contractor. b. The SecondTier Provider shall indemnify, hold harmless, and defend the City in against any claims or demandsmadeby Contractor or other parties related to the Emergency Transportation Services utilizing language substantially similar to the indemnification set forth in this Agreement.
D. All Transportation Personnel assigned to perform Emergency Transportation Services under this Agreement, whether under First Tier Service of Second Tier Service, will provide Basic Life Support (" BLS") services and transport patients to medical facilities when required.
Fullerton Fire Department personnel (" Fire Personnel"), in cooperation with the Transportation Personnel, will provide on - scene Advanced Life Support (" ALS") services.
E. The Agreement is subject to annual review based on the criteria specified in the Agreement and as outlined herein. The City' s intent is to contract with and hold accountable those parties working with and on behalf of the City of Fullerton in providing Emergency Transportation Service to the citizens and visitors of Fullerton.
F. Contractor will provide emergencytransport (ambulance) vehicles in good and ready to use condition at its sole cost and expense ( including all costs related to maintenance, fuel, insurance, repair costs and communication equipment) in conformity with Orange County Emergency Medical Service policies and proceduresfor all Emergency Transportation Services.
G. Upon execution of this Agreement, and prior to the commencement of Services, Contractor shall meet with City to agree upon reasonable response times which times shall thereafter be considered the maximum response time for Contractor. These response times shall be attached to this Agreement as Exhibit A. Failure to meet the agreed upon response times, shall in the City' s sole discretion, be considered a default under this Agreement. 3 H. Return of Fire Personnel. Fire Personnel provide Advanced Life Support (" ALS") services from a variety of delivery platforms, including engine and truck companies. In cases where Fire Personnel accompany patients in the ambulance en route to hospitals or to other receiving facilities, and the Fire Personnel ALS unit does not follow- up to the hospital/receiving facility, Contractor shall return those Fire Personnel to their assigned fire station( s) within thirty ( 30) minutes from the conclusion of the run. The conclusion of the run is defined as the moment when the patient has been transferred into the care of hospital/ medical staff, the ambulance crew has completed all required documentation, and the ambulance has been restocked and is ready to be placed back in service. At the conclusion of the run, the ambulance crew is to advise the accompanying Fire Personnel that they are ready to return them to their station. If while returning Fire Personnel to their station, the ambulance receives another emergencycall, the ambulancemay acceptthat call for service and take thosereturning Fire Personnel to the new call at the discretion of the Fire Personnel on board.
1. Wall time. " Wall time" refers to the time ambulances provided by Contractor wait at local hospitals while delivering patients. During the course of performance of this Agreement, ambulancesprovided by Contractor will inevitably experience "wall time" that may result in periods where no ambulanceswill be immediately available in the City. In the event that this occurs, and ambulance services are needed within the City, Contractor will provide another ambulance to satisfy the City' s need.
J. The City has retained the authority to contract for ambulance services pursuant to Government Code § 38794 and Health & Safety Code § 1797.201. The City and Contractor agreethat nothing herein is intended to waive, release, or assign the City' s rights under Health & Safety Code § 1797. 201.
3. Contract Price and Payment
A. City shall pay Contractor an annual fee of two -million two hundred thirty- three thousand eight hundred dollars ($ 2, 233, 800. 00) for furnishing the material and doing the prescribed work under this Agreement (" Contract Price").
1. Contractor' s sole compensation for providing all Emergency Transportation Services, including but not limited to the First Tier Service and the Second Tier Mutual Aid Service will be the Contract Price. Contractor will not be entitled to bill City or any of its customers any additional amount for any servicesprovided under this Contract, unless it is first approvedin writing by City.
2. The payment of the Contract Price includes the provision of Second Tier Mutual Aid Service. Contractor will be solely responsible for compensating the Second Tier Provider for any Emergency Transportation Services it may provide in the City under this Agreement. Contractor and Second Tier Provider will not have any recourse against the City to recover any Emergency Transportation Services provided, except as specifically authorized in this Agreement. Contractor' s sole compensation will be the Contract Price.
4 B. On a biweekly basis, City will electronically transmit to Contractor 1126th of Contract Price ($ 85,915.38) to cover all costs associated with providing services under this agreement.
4. Billinst
A. City will be solely responsible for the billing and collection of all amounts owed by customers/patients provided Emergency Transportation Services in the City. City, in its discretion, will be free to bill for theseservicesin whatever manner it may deemappropriate, and may combine billings for various services provided. Contractor will transmit an appropriate Electronic Patient Care Record ( ePCR) to O. C. MEDS for each patient transported to an area hospital by ambulance under this agreement. Contractor will actively cooperate with City to provide whatever information or assistanceCity may reasonably require so that it can process customer/patient billings in a timely manner. This will include, but is not limited to, Contractor providing City with a detailed list of all the Emergency Transportation Servicesprovided by both the Contractor during the preceding month. The specific information to be provided by Contractor in the monthly reports will be determined by City in its sole and absolute discretion, and may be modified by City from time to time to meet its reasonableneeds. Failure to provide accurateinformation in a timely manner will constitute amaterial breach of this Agreement.
B. The entire proceeds of all such billings and collection efforts will be the sole property of City. Neither Contractor nor the Second Tier Provider will have any right to the proceeds of any billings or collections for services provided under this Agreement, unless specifically authorized in writing by City.
5. Term
A. Effective Date. The effective date of this Agreement shall be 0700 hours on July 1, 2018 (` Effective Date"), at which time Contractor will assume full responsibility for the provision of Emergency Transportation Services within the City. At the sole discretion of the Fullerton City Manager, the Effective Date may be postponed in order to protect public health and safety, or in the event Contractor is for any reason unable to commence performance at that time.
B. Term. The term of this Agreement is two years, beginning on the Effective Date and ending twenty-four months later unless extendedby the City or earlier terminated as set forth in Section 6.
C. Extension. Upon the mutual written agreement of the parties, the term may be extended for up to three additional one ( 1) year terms ( for a possible total of 5 years), by a writing executedby the City Manager and approved to form by the City Attorney. The City' s decision to either grant or deny any term extension shall be final.
6. Termination
This Agreement may be terminated by the parties ashereinafter provided:
A. This Agreement may be terminated by either party, with or without cause, upon ninety (90) days' prior written notice to the other party. 5 B. City may terminate this Agreement for causeby providing Contractor seven (7) days' prior written notice of termination for Causeand the factors constituting Cause.
C. City may terminate this Agreement immediately if the Fullerton City Manager and Fullerton Fire Chief ( in their reasonable discretion) determine that continued operations by Contractorfollowing thebreachwould constitutea dangerto thepublic health, safetyor general welfare.
7. Breach of Agreement
A. Factors Constituting Breach and Cause. Factors constituting a breach of this Agreement and also warranting Causefor termination include but are not limited to each of the following:
1. A failure by Contractor to perform or secure performance of the covenants and requirements set forth in this Agreement in the time and manner specified, and asrequired by this Agreement.
2. Failure of Contractor to perform the Emergency Transportation Services in a manner which enables the City or Contractor to remain in compliance with the requirements of the County of Orange Emergency Medical Services OCEMS") ambulance ordinance and related rules and regulations and all applicable state and federal requirements.
3. Supplying the City with materially false or misleading information during the negotiation of this Agreement or at any time during term of this Agreement.
4. Willful falsification or unreasonable withholding of data supplied or required to be supplied to the City or to OCEMS during the term of this Agreement, including but not limited to patient care data, financial data, or omission of other data required under this Agreement.
5. Failure of Contractor' s employees or agents to conduct themselves in a professional and courteous manner, and to present a professional appearance.
6. Failure of Contractor to maintain all required vehicle maintenance schedulesand records asreasonably required by City.
7. Failure of Contractor to maintain all training and continuing education as required by the City of Fullerton and OCEMS policies and procedures and State regulations.
8. Contractor' s failure or refusal to respond to any request by City concerning the manner or means by which Contractor is providing the operation of Emergency Transportation Services in the City under this Agreement and pursuant to the Agreement.
9. Transfer or assignmentof ownership or other interest in Contractor contrarytothetermsof thisAgreement, includingbutnotlimitedto Section10of this Agreement (" Assignment").
10. Disruption of service due to failure to maintain ambulance maintenance schedule.
11. The lapseof any license, permitor approvalissuedContractorby a federal, state or local government, which license, permit or approval is/are reasonablynecessaryfor theprovisionof theEmergencyTransportationServices contemplatedby the Agreement.
12. Contractor becomesinsolvent or unable to pay its debts as they mature, or makes an assignment for the benefit of creditors, or suffers or fails to pay and dischargewithin ninety (90) days of entry any final judgment ( after exhaustion of any period of appeals) by any court in an amountof fifty thousanddollars 50, 000. 00) or more.
13. Contractor files, or there is filed against Contractor, a petition to have Contractor adjudicated in a bankruptcy, or a petition for a reorganization or arrangementunderanylaw relatingto bankruptcyor insolvency.
14. Contractor is enjoined or prohibited by any court of competentjurisdiction from performing servicesunder this Agreement.
15. The assetsof Contractor are assumedby a trustee or other person pursuant to a judicial proceeding.
16. Contractor breaches or defaults in the performance of any of Contractor' s materialdutiesor obligationsarisingunderthis Agreementinvolving thepayment of money, andafterreceivingwrittennoticethereoffromCity failswithinseven 7) daysfrom receiptof suchnoticeor havefully curedandcorrectedsuchbreach or default.
17. Lapse of insurance required under this Agreement.
18. Failure to manage and resolve citizen complaints to the satisfaction of the City.
19. The breach or default of, or a failure to comply with, any material provision of this Agreement or of any covenant specifically contained herein or incorporated by reference.
20. Failure to meet minimum vehicle deployment plan for ambulance service as described herein.
B. Right to Cure. In the event of any dispute arising under this Agreement, the injuredPartyshallnotify theinjuringPartyin writingof its contentionsby submittinga claim 7 therefore. The injured Partyshall continueperformingits obligationshereunderso long asthe injuring Party curesany default within thirty ( 30) days after serviceof the notice; provided, however, if a breach of this Agreement creates an immediate danger to the health and safety or generalwelfare to the City, in the reasonablediscretion of the City Manager, may take immediateactionto remedythebreachitself and/or terminatethis Agreement.
Notwithstandingthe preceding, if the City Managerfinds that Contractoris diligently proceedingwith all stepsnecessaryto curesuchdefault, theFullertonCity Managermay, in his sole discretion, extend the time period by which Contractormust cure such deficiencies, including the effective date of suchtermination.
C. Waiver. No waiver of any Event of Breach or Default shall be valid or effective unless in writing and signed by City. Any waiver of any one Event of Default or Breach shall not constitute, or beconstruedascreating, awaiverof anyotherEventof Defaultor Breach.
D. Action Following Termination. Shouldthis Agreementbeterminatedfor breach, Contractor agreesthat City, in its sole and absolute discretion, may take immediate possessionof anyCity materials, equipment, andsuppliesContractormayhaveusedin theperformanceof the Emergency Transportation Services. Notwithstandingthe above, should this Agreementbe terminatedfor breach, City shall have the option to take over the delivery of the Emergency Transportation Services itself, using City personnel or contractors; contract on a temporary emergency basis with other providers of emergency transport ambulance services; seek new proposals for service; or such other option as may be deemednecessaryand legally available to City.
E. No Limitation On City' s Rights. Nothing herein shall act as any limitation upon theremediesavailableto City whetherat law, or otherwise, in theeventof a breachor defaultof this Agreement.
8. Insurance
A. Prior to beginningthe provision of EmergencyTransportationServicesunderthis Agreement, Contractor must provide to the satisfaction of the City, certificates of insurance and endorsementsevidencingthe policy or policiesof insurancein the typesandamountssetforth below. Contractorshallat all timesduringtheterm of this Agreementcarry, maintain, andkeep in full force and effect, the following minimum scopeof insurance coverage:
1) Commercial General Liability Insurance in an amount not less than 10,000, 000 per occurrence, written on an occurrence form. If the policy carries an annual aggregate, such aggregate shall be in an amount not less than 10, 000, 000 per occurrence.
2) Ambulance Medical Malpractice Insurance in an amount not less than 3, 000, 000 per occurrence. If the policy carries an annual aggregate, such aggregate shall be in an amount not less than $ 6, 000, 000 per occurrence. Such insurance coverage may be combined with either the general or automobile liability coveragerequiredabove; provided, however, if theinsurancecoverageis so structured, the combined coverage shall be in an amount not less than E
5, 000, 000 per occurrence, with an annual aggregate of not less than 10, 000, 000.
3) Comprehensive Business Automobile Liability Insurance in an amount not less than $ 3,000, 000 per occurrence, covering owned, non -owned and hired vehicles, written on an occurrence form. If policy carries an annual aggregate, such aggregate shall be in an amount not less than $ 6, 000, 000 per occurrence.
Contractor understands that it must provide Business Automobile Liability coverage for all vehicles under both the First Tier Service and the Second Tier Service. This specifically includes, but is not limited to, Contractor' s obligation to provide Business Automobile Liability coverage for any vehicles provided by City/ for use by Contractor under the First Tier, as well as for any vehicles provided by Contractor directly.
4) Workers' Compensation and Employers' Liability Insurance in a statutory amount for workers' compensation and in an amount not less than $ 1,000, 000 for employers' liability. Such insurance shall contain a waiver - of - subrogation clause in favor of the City, and their respective officers, officials, employeesand agents.
B. Contractor shall also comply with the following requirements:
1) If the above - required insurance coverage does not provide for an annual aggregate which is twice the per -occurrence limit, in the alternative the insurance policy ( policies) shall be amended (by appropriate ISO endorsements) so that the policy limits apply solely to this Agreement.
2) The above -required liability insurance shall be in a form which supports coverage for the provisions of the indemnification clause required under this Agreement, including a claim brought against the City for the injury to, or death of an employee or agent of Contractor.
3) In the event of a claim ( claims) against the above-refcrenced liability policies which reasonably may deplete one-half or more of the aggregatelimits, Contractor shall immediately notify City. In the event a claim ( claims) againstthe above -referenced liability policies which are reasonably expectedto deplete 90% of the aggregate limits, Contractor shall, at Contractor' s expense, reinstate the aggregate limits at least to an amount equal to one- half of the face amount of the aggregate limits on the policies.
4) All insurancerequired pursuant to this section shall be issuedby a company authorized by the InsuranceDepartment of the Stateof California and rated A -VII or better by the latest edition of Best' s Key Rating Guide. 5) No insurance required herein shall provide for a deductible in excess of 5,000, or a self- insured retention in any amount, without prior written consent of the City; and, the granting or denying of such consent shall be at the sole and absolute discretion of the City.
X
C. Endorsements.
1) All insurance required herein shall be endorsed to state that " Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) daysprior to written noticeby certifiedmail, returnreceiptrequested, hasbeengivento theCity (exceptfor nonpaymentfor which a ten (10) daynotice is required)."
2) Theliability policiesrequiredherein, exceptfor professionalliability (if a stand - above coverage), worker' s compensation and employers' liability, shall, by endorsement, contain the following provisions:
a) " The City of Fullerton, and its officers, officials, employees, representatives, and volunteers, are hereby declared to be additional insureds as respects the operations, activities, work, errors, or omissions of the named insured arising out of or in connection with any contract or agreement with the City of Fullerton."
b) " This insurance is primary to, and shall not contribute with, any insuranceor self-insurancemaintainedby the City of Fullerton, or by any of the designated additional insureds."
c) " This insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability."
3) Worker' s Compensation and Professional Liability policies shall be endorsed to statethat the insurerwaivesall rights of subrogationagainstthe City, andits respective officers, officials, agents, employees, and volunteers for losses arising from work performed by the Contractor under this Agreement.
D. All insurance coverages shall be confirmed by execution of endorsementsand certificates of insurance. Contractor is required to file the completed policy endorsements and certificateswith City on or before the Effective Date of this Agreement, and to thereafter maintain current endorsements on file with City. The completed endorsements and certificates of insurance are subject to the approval of City.
E. Nothing in this section shall be construedas limiting in any way the Indemnification and Hold Harmless clause contained herein in this Agreement, or the extent to which Contractormaybeheldresponsiblefor paymentsof damagesto personsorproperty.
F. City shallhavetheright atanytimeto reviewthecoverage, form, andlimits of insurance required herein. If, in the sole and absolute discretion of the City, the insurance provisions in this Agreement do not provide adequateprotection for the City, the City shall have the right to requireContractorto obtain insurancesufficient in coverage, form, and limits to provide adequate protection and Contractor shall promptly comply with such requirement. The City's requirementsshallnotbeunreasonable, but shallbeadequatein thesoleopinionof the Citytoprotectagainstthekindandnatureofriskswhichexistsatthetimeachangeofinsurance 10 is required, or thereafter.
G. Alternate forms of insurance, that meet the above requirements, must be approved bytheCity'sRiskManagerpriortobeginninganyworkunderthisAgreement. 9, Indemnification
Contractor agrees to defend, indemnify, hold free and harmless the City, and its respective officers, officials, agents, employees and volunteers, at Contractor' s sole expense, fromandagainstanyandall claims, actions, suitsorotherlegalproceedingsbroughtagainstthe City, or its respectiveofficers, officials, agents, employeesor volunteers, arising out of the performance of the Contractor, or the Second Tier Provider, or their respective employees, agents and/or authorized subcontractors, of the work undertaken pursuant to this Agreement or the Second Tier Mutual Aid Contract, specifically including but not limited to the Emergency Transportation Services.
The defense obligation provided for hereunder shall apply without any advance showing of negligence or wrongdoing by the Contractor, its employees, agents and/ or authorized
subcontractors, but shallberequiredwheneveranyclaim, action, complaint, or suit assertsasits basis the negligence, errors, omissions or misconduct of the Contractor, its employees, agents and/ or authorized subcontractors, and/ or whenever any claim, action, complaint or suit asserts liability against the City, or its respective officers, officials, agents, employees or volunteers, based upon the action or inaction of the Contractor, its employees, agents and/or authorized subcontractors under this Agreement, whether or not the Contractor, its employees, agents and/or authorized subcontractors are specifically named or otherwise asserted to be liable.
Notwithstanding the foregoing,. the Contractor shall not be liable for the defense or indemnification of the City for claims, actions, complaints or suits arising out of the sole negligence or willful misconduct of the City.
14. Assignment
A. Exceptasprovidedherein, Contractormaynotdelegate, transferor assignits rightsor otherwise transfer its obligations, in whole or in part, under this Agreement to any otherpersonor entity without first obtainingthe prior written consentof the City.
Any suchassignmentortransferwithoutthepriorwrittenconsentof theCityshallbe void; the attempted assignment shall constitute a breach of this Agreement.
B. For purposes of this section, the following will be considered to be a " transfer" or assignment":
1. Any changein thebusinessstructure, includingbut notlimited to, changes from or to: ( a) a sole proprietorship; ( b) a partnership, including any change in the partners; ( c) a corporation, including any change in the shareholders, whetherby operationof law or otherwise;
2. Bankruptcy, an assignmentfor the benefit of creditors, or the appointment of a receiver; or
11 3. A transferby any of the owners, shareholdersor members (whicheveris applicable) of Contractor of greater than ten percent ( 10%) of the ownership interest, stock or membership interest (whichever is applicable) in Contractor' s business, issued as of the Effective Date by the Contractor, or the sale or transfer of over twenty-five percent (25%) of the assets of the Contractor. In the event a Contractor experiences regular stock exchanges in excess of the ten percent ( 10%) threshold, a separate agreementmaybe negotiatedto seta thresholdthat still providestheCity with the protections intended. The stock sale of a publicly traded corporation that does not constitute a change in majority ownership will not be deemeda transfer of ownership for purposesof this Section.
12. Audits and Inspections.
At any time duringnormalbusinesshours, and asoftenasmay reasonablybe deemed necessaryby the City, the City may observeand inspect Contractor's businessoffice, and Contractor must make promptly available to the City for its examination all of Contractor' s records that pertain to performance of the Agreement. The City may audit, examine, and copy anyandall Contractorrecordspertainingto theirperformanceof thisAgreement, includingbut not limited to, personnelrecords, daily logs, conditionsof employment, andall otherdata. The City' s right to inspectContractor's businessoffice andany and all recordspertainingto their performance of the Agreement will be restricted to normal business hours and reasonable notice shall be given to Contractor in advance of such inspection.
13. Independent Contractor.
A. In the performance of this Agreement, Contractor shall be acting in an independent capacityfromtheCity andnotasanagent, employee, partner, or pursuantto anykindof joint venture or partnershipwith the City. The parties understandand agreethat Contractor, its officers, agents and employees ( which term specifically includes, but is not limited to, the Transportation Personnel) are not employees of the City and are not entitled to any of the rights, benefits, or privilegesof City employeesincluding, but not limited to, medical, unemployment, or worker' s compensation insurance.
B. Neither the County, the City, or any of their respective officers, elected officials, agents, representatives, or employees, shall have any control over the conduct of Contractor' s agent's and employees except as specifically set forth in the Agreement. Under no circumstancesshall Contractoror any of its agentsor employeesrepresentthat they arein any manneragentsor employeesof the City, it being understoodthat Contractor, its agentsand employees, areasto the City wholly independentcontractorsandthatContractor's obligationsto the City are solely thoseprescribed by this Agreement.
C. City hasno responsibilitywhatsoeverfor the paymentof anywages, salary, health benefits, retirement benefits, taxes, or any other benefits that may be due to Contractor' s employeesand agentsperforming EmergencyTransportationServicesunder this Agreement, specifically including but not limited to the TransportationPersonnel. Contractor further acknowledgesand agreesthat the City has no responsibilitywhatsoeverfor the filing of any employer related documentation ( tax forms, payroll, or otherwise) with the federal, state or local governmentalauthorities, concerningthosepersonsContractorassignsto perform Emergency 12 Transportation Services under this Agreement. The preparation and filing of all employee related documentation shall be the sole responsibility of Contractor.
14. Compliance with Laws
All servicesprovidedby Contractorpursuantto the Agreementmustbe renderedin full compliance with all applicable federal, state, and local laws, rules, statutes, and regulations. It will be Contractor's soleresponsibilityto determinewhich federal, state, andlocal laws, rules, statutes, and regulations apply to the servicesto be performed pursuant to the Agreement, and to maintain compliance at all times throughout the term of this Agreement.
15. Res onsibili
Exceptasmaybespecificallystatedhereinto thecontrary, it shallbetheresponsibilityof Contractor to provide all Transportation Personnel with whatever resources and equipment are necessaryto perform the Emergency Transportation Services, and to otherwise satisfy all of the terms and conditions set forth in the Agreement at all times during the Term of this Agreement.
Exceptwhereit may be specifically permittedin the Agreement, Contractormay not useany outside ambulance service providers or other resources to satisfy its obligations to provide EmergencyTransportationServicesto the City, without first obtainingtheprior written consent of City. Notwithstandingthe grantingof anysuchapprovalby City, nothingstatedhereinshall relieve Contractor of its duties and responsibilities under the Agreement, and any additional cost incurred shall not be charged to the City.
16. Acts or Omissions of Representatives
The acts and/ or omissions of the owner( s), officers, operators, officials, employees, agents, and representatives of the Contractor in the performance of the services and obligations under the Agreement shall constitute the acts and/ or omissions of the Contractor.
17. Insolvency
Contractor shall not, without the prior written consent of the Fullerton City Manager, suffer either the appointment of a receiver to take possession of all, or substantially all of the assets of Contractor, or make a general assignment of such assets for the benefit of creditors.
Any suchactiontakenor sufferedby Contractorunderanyinsolvencyor bankruptcyproceeding constitutes a material breach of this Agreement by Contractor, and all property, equipment or materials assigned by the City to Contractor related to the provision of services under this contractshallbe automatically "released" by Contractorandreturnedbackto thepossessionand control of the City. Following the occurrenceof any such event, the Fullerton City Manager may assignsuch property, equipmentor materialsto anotherEmergencyTransportationServices provider, in the City' s sole discretion.
18. Familiarity with Work
By execution of this Agreement, Contractor warrants that:
13 A. It has thoroughly investigated and considered the Emergency Transportation Services to be performed;
B. It possessesany and all licenseswhich are required under relevant local, State, or Federal law to perform the Emergency Transportation Services contemplated by this Agreement, and shall maintain all appropriate licenses during the performance of this Agreement;
C. It has expertise in the provision of Emergency Transportation Services as that term is defined in this Agreement;
D. It carefully considered how the Emergency Transportation Services should be performed; and
E. It fully understands the difficulties and restrictions attending the performance of the Emergency Transportation Servicesunder this Agreement.
19. Validity
The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any of the other provisions of this Agreement.
20. Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Stateof California. Any legal action relating to or arising out of this Agreement shall be subject to the jurisdiction of the County of Orange, California.
21. Entire Agreement
This Agreement supersedes any and all other agreements whether oral or written, between the parties hereto with respect to the subject matter hereof, and contains all of the covenants and agreements between the parties with respect to said matter, and 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 any other agreementor modification of this Agreement shall be effective only if executedin writing and signedby both City and Contractor.
22. Attorneys' Fees
In the event any legal proceeding is instituted to enforce any term or provision of this Agreement, the prevailing party in said legal proceeding shall be entitled to recover attorneys' feesand costsfrom the opposing party in an amount determined by the Court to be reasonable.
23. Reoresentatives and Notices
The Fullerton City Manager or his designee shall be the representative of City for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of the City, called for by this Agreement, except as otherwise expressly provided in this Agreement.
Troy M. Hagen, CEO, shall be the representative of Contractor for purposes of this Agreement and may issue all consents, approvals, directives and agreements on behalf of 14 Contractor, calledfor by this Agreement, exceptas otherwiseexpresslyprovidedin this Agreement. All noticesandwritten communicationssentby oneparty to the other shall be personallydeliveredor sentby registeredor certifiedU.S. Mail, postageprepaid, return receipt requested, to the following addressesindicated below:
If to City: Attn: City Manager
City of Fullerton
303 W. Commonwealth Ave.
Fullerton, California 92832
If to Contractor: Attn: Troy M. Hagen, CEO
Care Ambulance Service, Inc.
1517 W. Braden Court, Orange, CA 92868
Theeffectivedateof anynoticeor written communicationssentby onepartyto theother shallbethedatereceivedif bypersonalservice, or forty-eight (48) hoursafterdepositin theU.S.
Mail as reflected by the official U.S. postmark. Either party may changeits addressby giving notice in writing to the other party.
24. Waiver
No waiverof any provisionof this Agreementshallbe effectiveunlessin writing and signedbyadulyauthorizedrepresentativeofthepartyagainstwhomenforcementof awaiveris sought, referringexpresslyto thisSection. Thewaiverof anyrightorremedyin respectto any occurrence or event shall not be deemeda waiver of any right or remedy in respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver.
25. Ri hts and Remedies are Cumulative
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exerciseby either Party of one or more of such rights or remedies shall not preclude the exerciseby it, at the same or differenttimes, of anyotherrightsor remediesfor thesamedefaultor anyotherdefaultby the other Party.
26. Cooperation
Contractor must cooperatewith the City and take all actions necessaryto ensurethat all terms and conditions, and required performance levels, set forth in the Agreement are satisfied at all times throughout the Term of the Agreement.
27. Legal Action
In additionto anyotherrightsorremedies, eitherPartymaytakelegalaction, in laworin equity, to cure, correct, or remedyanddefault, to recoverdamagesfor anydefault, to compel specific performance of this Agreement, to obtain injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement.
15 28. Amendment
This Agreementmay be amendedonly by the written mutual consentof City and Contractor.
29. Additional Services
Contractor shall not receive compensation for any services provided outside the scope of the Agreement unless such additional services are approved in writing by City prior to Contractor performing the additional services. It is specifically understood that oral requests or approvals of such additional services, change orders, or additional compensation, and any approvals from the City, shall bebarred and areunenforceable.
30. Counterparts
This Agreementmaybe executedin oneor morecounterpartsby the partieshereto. All counterparts shall be construed together and shall constitute one Agreement.
31. Corporate Authority
The .personsexecutingthis Agreementon behalf of the partiesheretowarrantthat they aredulyauthorizedto executethisAgreementonbehalfof saidpartiesandthatby doingsothe partiesheretoareformally boundto theprovisionsof this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be duly executedwith all formalities required by law asof the datefirst written above.
CARE AMBULANCE SERVICE, INC.
By:
Tro agen,
Date: G — 2 018
CITY OF FULLERT
By: r1n0
e A. Domer, City Manager
Date: 6 - 1-1-) 4, -
ATTEST: APPROVED AS TO FORM:
Wo
LIM
ones, Attorney