Biomedical and Imaging Equipment Services Agreement
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BIOMEDICAL AND IMAGING EQUIPMENT CORRECTIVE AND PREVENTATIVE MAINTENANCE SERVICES AGREEMENT
This BIOMEDICAL AND IMAGING EQUIPMENT CORRECTIVE AND PREVENTATIVE MAINTENANCE SERVICES AGREEMENT (“Agreement”) is entered into effective as of the Effective Date provided in Section II.A., by and between ______, a ______(“Contractor”), and THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT TYLER, a state agency and institution of higher education authorized by the laws of the State of Texas (“University”).
RECITALS
Contractor provides hospitals with a comprehensive program of biomedical and imaging equipment services, including maintenance, repair and parts services, and
University is a hospital that utilizes a variety of biomedical and imaging equipment that requires the services, and
University and Contractor desire to enter into this Agreement under which University will procure and Contractor will provide the services under the terms and conditions set forth herein,
University and Contractor, for good and valuable consideration, the sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, agree as follows:
I. Services.
A. Scope. Contractor will perform the scope of the work, including certain maintenance, repair and parts services (collectively, "Services”) set forth in EXHIBIT A, Scope of Services, attached and incorporated for all purposes, to the satisfaction of University and in accordance with the terms and conditions of this Agreement (including EXHIBIT D attached and incorporated for all purposes) and the schedule (“Schedule”) for the Services also set forth in EXHIBIT A.
B. Performance. Contractor will obtain, at its own cost, any and all approvals, licenses, filings, registrations and permits required by federal, state or local laws, regulations or ordinances, including Occupational Safety and Health Administration (“OSHA”) blood borne pathogens regulations and Respiratory Protection Program and other applicable safety and health regulations, (collectively, “Applicable Laws”), for the performance of the Services. Time is of the essence in connection with this Agreement. University will have no obligation to accept late performance or waive timely performance by Contractor. Upon execution of this Agreement, all services previously performed by Contractor on behalf of University and included in the description of the Services, will become a part of the Services and will be subject to the terms and conditions of this Agreement.
II. Contract Term.
A. Term; Contract Year. The term of this Agreement will commence on ______, 2015 (“Effective Date”) and will expire on ______, 2016 (“Initial Term”). University will have the option to renew this Agreement for four (4) additional one (1) year terms (each an “Extension Term”). Initial Term and Extension Term are sometimes collectively referred to as “Term.”
The term “contract year” means that period of time beginning ______, 2015, and ending ______, 2016 (“Initial Contract Year”), and each twelve (12) month period thereafter during the Term.
B. Intentionally Left Blank
Page of 31 C. Transition Period. As long as University is not in default under this Agreement, Contractor agrees that if the Agreement expires or is terminated for any reason, then at the option of University, Contractor will continue to perform the Services in accordance with the terms and conditions of this Agreement until such time as (1) University contracts with another qualified and experienced contractor to perform the Services, or (2) University is willing and prepared to selfperform the Services; provided, that, Contractor will not be required to continue performing the Services for more than four (4) months from the effective date of expiration or termination.
III. Contract Price and Payment Terms. In consideration of Contractor's performance of the Services and its other duties and obligations under this Agreement, University will make payments to Contractor as set forth below:
A. Price for Initial Contract Year. The annual consideration for the Services will be equal to ______Dollars ($______) (“Annual Contract Price”) for the Initial Contract Year.
B. Amounts Exceeding $1,000,000. This Agreement is not effective for amounts exceeding One Million Dollars ($1,000,000) in the aggregate until approved by the Board of Regents of The University of Texas System.
C. Payment Terms. The Annual Contract Price will be paid in twelve (12) monthly payments equal to ______and __/100 Dollars ($______) for the Initial Contract Year.
University will remit payments under this Agreement in accordance with the Texas Prompt Payment Act (“Act”), Chapter 2251, Texas Government Code. Pursuant to the Act, University’s payment will be deemed late on the 31st day after the later of (1) the date goods are delivered or performance of services is completed, or (2) the date University receives an invoice for the goods or services. If the payment date is not a Business Day, payment is due on the next Business Day following that date. University will pay interest on overdue payments at an annual rate of interest equal to the sum of (1) one percent, plus (2) the annual prime rate of interest as published in the Wall Street Journal on the first day of July of the preceding fiscal year (University’s fiscal year begins September 1) that does not fall on a Saturday or Sunday.
D. Intentionally Left Blank
E. Annual CPI Adjustment. At the end of each contract year, the Annual Contract Price will be increased by the lesser of (1) three percent (3%), or (2) the percentage equal to the percentage increase in the Consumer Price Index of the South Western United States Consumer Price Index (“CPI”) for the twelve (12) month period ending December 31 of the current contract year over the twelve (12) month period ending December 31 of (1) the year immediately prior to the Effective Date as to the Initial Contract Year, or (2) the immediately prior Contract Year as to all contract years other than the Initial Contract Year (“CPI Adjustment”) The calculation of the CPI Adjustment will be made by Contractor not later than thirty (30) days prior to the end of each contract year. Provided, that, if the applicable CPI Adjustment is negative, the Annual Contract Price shall not change from the previous Annual Contract Price.
F. Other Adjustments. If University requests a change in Services due to the acquisition of additional Equipment, additional Services, different Service frequencies, or any other change requested by University, and if such change in Services results in a documented increase in costs to Contractor, the Annual Contract Price will be increased by the documented annual increase in costs to Contractor. The increase in the Annual Contract Price will take effect on the date the change in Services is implemented.
G. Prompt Payment Discount. Beginning at any time during the Term, University may, at its option, pay any monthly payment by the tenth day of the following month and take a discount of ______percent (_____%) off the total monthly payment.
H. Suspension of Performance . Contractor may suspend performance to the extent permitted by and in accordance with Chapter 2251, Texas Government Code, as it may be amended from time to time
IV. University Obligations; Space License.
Page of 31 A. University Obligations. During the Term, University will: (1) permit Contractor to access common areas on University’s premises such as the cafeteria and parking areas; (2) provide Contractor with readily available equipment service manuals related to the Equipment; (3) provide Contractor access to a computer; (4) perform routine care and cleaning of the Equipment in accordance with instructions provided by the manufacturer; (5) permit Contractor to use certain space (the “Space”) more particularly described in EXHIBIT F attached and incorporated for all purposes, in accordance with the license contained in Section IV.B; (6) not permit any persons other than Contractor employees or agents to perform maintenance on the Equipment without the written approval of Contractor which approval will not be unreasonably withheld. Contractor will not be responsible for costs related to unauthorized maintenance.
B. Space License.
(1) University grants Contractor a non-exclusive license for use of the Space in its current, “as is” condition by Contractor’s employees, permitted subcontractors and agents in the performance of the Services. Contractor may use the Space for the performance of the Services and for no other purpose. Contractor will not use the Space for unlawful activities. Contractor will comply with all federal, state and local laws, regulations and ordinances applicable to the Space. Contractor will cause all of its employees, subcontractors and agents to observe and comply with all of University’s rules and regulations in connection with the use of the Space. (2) Contractor agrees that this is a non-exclusive license to use the Space and that University may enter the Space at any time for any reason. (3) Contractor will not modify, alter, or repair the Space or any other University facilities without the prior written approval of University and without project management of renovations by the University’s Facility Services Department. (4) Contractor agrees not to harm the Space or make any use of the Space that is offensive as determined by University in its sole discretion. Contractor agrees that upon expiration or termination of this Agreement for any reason, Contractor will remove any Contractor-owned equipment and effects, repair any damage caused by such removal, and peaceably deliver up the Space in clean and good order, repair and condition, ordinary wear and tear excepted. Any personal property of Contractor not removed within two (2) days following such termination shall be deemed abandoned by Contractor and University may dispose of such property in any manner it chooses, with no liability or reimbursement obligation to Contractor. (5) Contractor agrees not to suffer any mechanic's lien to be filed against the Space or the adjoining facilities by reason of any work, labor, services, or materials performed at or furnished to the Space for Contractor. Nothing in this Agreement shall be construed as consent of University to subject University’s estate in the Space or adjoining facilities to any lien. (6) Contractor agrees that the Space is sufficiently equipped for Contractor to provide the Services in accordance with the terms and conditions of this Agreement. (7) UNIVERSITY WILL NOT BE RESPONSIBLE FOR INTERRUPTIONS OR FAILURES IN TELECOMMUNICATIONS OR UTILITY SERVICE TO THE SPACE. HOWEVER, UNIVERSITY WILL EXERCISE REASONABLE DILIGENCE IN PURSUING THE RESTORATION OF INTERRUPTIONS OR FAILURES IN TELECOMMUNICATIONS OR UTILITY SERVICE. (8) UNIVERSITY WILL NOT BE LIABLE TO CONTRACTOR, OR ANY EMPLOYEE, SUBCONTRACTOR, AGENT, GUEST OR INVITEE OF CONTRACTOR (COLLECTIVELY, “CONTRACTOR PARTIES”), FOR ANY LOSS, EXPENSE OR DAMAGE EITHER TO PERSON OR PROPERTY SUSTAINED BY REASON OF ANY CONDITION OF THE SPACE, OR DUE TO ANY ACT OF ANY EMPLOYEE OR AGENT OF UNIVERSITY, OR THE ACT OF ANY OTHER PERSON WHATSOEVER. UNIVERSITY, ITS AGENTS AND EMPLOYEES WILL NOT BE LIABLE FOR AND CONTRACTOR WAIVES ALL CLAIMS FOR DAMAGE TO PERSON OR Page of 31 PROPERTY SUSTAINED BY ANY CONTRACTOR PARTIES, RESULTING FROM ANY ACCIDENT OR OCCURRENCE IN OR UPON THE SPACE OR THE ADJOINING FACILITIES AND GROUNDS. CONTRACTOR AGREES TO PAY ON DEMAND UNIVERSITY’S EXPENSES INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED IN ENFORCING ANY OBLIGATION OF CONTRACTOR UNDER THIS LICENSE.
V. Force Majeure. Neither party hereto will be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, strikes, epidemics, war, riots, flood, fire, sabotage, or any other circumstances of like character (“force majeure occurrence”). Provided, however, in the event of a force majeure occurrence, Contractor agrees to use its best efforts to mitigate the impact of the occurrence so that University may continue to perform research and provide healthcare services during the occurrence.
VI. Taxes. Notwithstanding the foregoing, Contractor acknowledges that University is not subject to certain taxes under Texas law. For example, pursuant to Section 151.309(4), Texas Tax Code, as a state agency, University is exempt from sales taxes. In addition, as set forth in Texas Comptroller Rule 3.322(c) (34 TAC 3.322), University is not required to prove its exempt status. In the event of a change in University’s tax exemption status, University will furnish Contractor all reasonably requested documentation evidencing the change in status.
VII. Certain Federal and State Provisions. A. Debarment. By signing this Agreement, Contractor confirms that neither Contractor nor its Principals are suspended, debarred, proposed for debarment, declared ineligible, or voluntarily excluded from the award of contracts from United States (“U.S.”) federal government procurement or non-procurement programs, or are listed in the List of Parties Excluded from Federal Procurement or Non-procurement Programs issued by the U.S. General Services Administration. “Principals” means officers, directors, owners, partners, and persons having primary management or supervisory responsibilities within a business entity (e.g. general manager, plant manager, head of a subsidiary, division or business segment, and similar positions). Contractor will provide immediate written notification to University if, at any time prior to award, Contractor learns that this certification was erroneous when submitted or has become erroneous by reason of changed circumstances. This certification is a material representation of fact upon which reliance will be placed when University executes this Agreement. If it is later determined that Contractor knowingly rendered an erroneous certification, in addition to the other remedies available to University, University may terminate this Agreement for default by Contractor.
B. United States Office of the Inspector General (OIG). By signing this Agreement, Contractor acknowledges that University is prohibited by federal and state regulations from allowing any employee, subcontractor, or agent of Contractor to work on site at University’s premises or facilities if that individual is not eligible to work on federal or state healthcare programs such as Medicare, Medicaid, or other similar programs. Therefore, Contractor will not assign any employee, subcontractor or agent that appears on the List of Excluded Individuals issued by the United States Office of the Inspector General ("OIG") or on the State of Texas OIG exclusion list to work on site at University’s premises or facilities. Contractor will perform OIG and State sanctions checks monthly on each of its employees, subcontractors and agents during the time such employees, subcontractors and agents are assigned to work on site at University’s premises or facilities. Contractor acknowledges that University will require immediate removal of any employee, subcontractor or agent of Contractor assigned to work at University‘s premises or facilities if such employee, subcontractor or agent is found to be on the OIG's or State’s List of Excluded Individuals. The OIG's List of Excluded Individuals may be accessed through the following internet website: http://exclusions.oig.hhs.gov/. The State of Texas’ OIG List of Excluded Individuals may be accessed through the following internet website: https://oig.hhsc.state.tx.us/exclusions/search.aspx.
C. Segregated Facilities. By signing this Agreement, Contractor certifies that, except for restrooms and wash rooms and one (1) or more lactation rooms each of which is segregated on the basis of sex: (1) it does not maintain or provide for its employees any segregated facilities at any of its establishments and that it does not permit its employees to perform their services at any location under its control where segregated facilities are maintained; (2) it will not maintain or provide for its employees any segregated facilities at any of its establishments; and (3) it will not permit its employees to perform their services at any location under its control where segregated facilities are maintained. Contractor agrees that a Page of 31 breach of this certification is a breach of this Agreement and of federal Equal Opportunity law. The term “segregated facilities” means any waiting rooms, work area, rest rooms and wash rooms, entertainment areas, transportation, or housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, or national origin, because of habit, local custom, or otherwise. Contractor further agrees that, except where it has contracts prior to the award with subcontractor s exceeding $10,000.00 which are not exempt from the provisions of federal Equal Opportunity law, Contractor will retain such certifications for each one of its subcontractors in Contractor’s files, and that it will forward the following notice to all proposed subcontractors (except where the proposed subcontractors have submitted identical certifications for specific time periods):
NOTICE TO PROSPECTIVE SUBCONTRACTORS OF REQUIREMENTS FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES - A Certification on Nonsegregated Facilities must be submitted prior to the award of any subcontract exceeding $10,000.00 which is not exempt from the provisions of federal Equal Opportunity law. The certification may be submitted either for each subcontract or for all subcontracts during a period (i.e. quarterly, semiannually, or annually). Contractor understands that the penalty for making false statements regarding the subject matters of this Section is prescribed in 18 U.S.C. 1001.
D. Affirmative Action. Contractor agrees that a written copy of Contractor’s Civil Rights "Affirmative Action Compliance Program" will be provided simultaneously with this Agreement and incorporated for all purposes as EXHIBIT G to this Agreement, or if Contractor is not required to have such a written program, the reason Contractor is not subject to such requirement will be provided in writing.
E. Assignment of Overcharge Claims. Contractor hereby assigns to University any and all claims for overcharges associated with this Agreement arising under the antitrust laws of the United States, 15 U.S.C.A., Sec. 1 et seq., or arising under the antitrust laws of the State of Texas, Texas Business and Commerce Code, Sec. 15.01, et seq.
F. Access to Documents. To the extent applicable to this Agreement, in accordance with Section 1861(v)(I)(i) of the Social Security Act (42 U.S.C. 1395x) as amended, and the provisions of 42 CFR Section 420.300, et seq., Contractor agrees to allow, during and for a period of not less than four (4) years after the term of this Agreement, access to this Agreement and its books, documents, and records; and contracts between Contractor and its subcontractor s or related organizations, including books, documents and records relating to same, by the Comptroller General of the United States, the U.S. Department of Health and Human Services and their duly authorized representatives.
G. Compliance with Law. Contractor is aware of, is fully informed about, and in full compliance with its obligations under Applicable Laws, including but not limited to Title VI of the Civil Rights Act of 1964, as amended (42 USC 2000(D)), Executive Order 11246, as amended (41 CFR 60-1 and 60-2), Vietnam Era Veterans Readjustment Act of 1974, as amended (41 CFR 60-250), Rehabilitation Act of 1973, as amended (41 CFR 60-741), Age Discrimination Act of 1975 (42 USC 6101 et seq.), Non-segregated Facilities (41 CFR 60-1), Omnibus Budget Reconciliation Provision, Section 952, Fair Labor Standards Act of 1938, Sections 6, 7, and 12, as amended, Immigration Reform and Control Act of 1986, and Utilization of Small Business Concerns and Small Business Concerns Owned and Controlled by Socially and Economically Disadvantaged Individuals (PL 96-507), the Americans with Disabilities Act of 1990 (42 USC 12101 et seq.), the Civil Rights Act of 1991 and all laws and regulations and executive orders as are applicable.
VIII. Ownership and Use of Work Material.
A. Property of University. All drawings, specifications, plans, computations, sketches, data, photographs, tapes, renderings, models, publications, statements, accounts, reports, studies, and other materials prepared by Contractor or any subcontractors in connection with the Services (collectively, "Work Material"), whether or not accepted or rejected by University, are the property of University and for its exclusive use and re-use at any time without further compensation and without any restrictions.
Page of 31 B. Rights; Cooperation. Contractor grants and assigns to University all rights and claims of whatever nature and whether now or hereafter arising in and to the Work Material and will cooperate fully with University in any steps University may take to obtain patent, copyright, trademark or like protections with respect to the Work Material.
C. Use. University will have the right to use the Work Material for the completion of the Services or otherwise. University may, at all times, retain the originals of the Work Material. The Work Material will not to be used by any person other than University on other projects unless expressly authorized by University in writing.
D. Confidentiality and Safeguarding of University Records; Press Releases; Public Information. Under this Agreement, Contractor may (1) create, (2) receive from or on behalf of University, or (3) have access to, records or record systems (collectively, “University Records”). Among other things, University Records may contain social security numbers, credit card numbers, or data protected or made confidential or sensitive by Applicable Laws. Additional mandatory confidentiality and security compliance requirements with respect to University Records subject to the Health Insurance Portability and Accountability Act and Code of Federal Regulations Title 45, Part 160 and subparts A and E of Part 164 (collectively “HIPAA”) are addressed in Section XIX Contractor represents, warrants, and agrees that it will: (1) hold University Records in strict confidence and will not use or disclose University Records except as (a) permitted or required by this Agreement, (b) required by Applicable Laws, or (c) otherwise authorized by University in writing; (2) safeguard University Records according to reasonable administrative, physical and technical standards (such as standards established by the National Institute of Standards and Technology and the Center for Internet Security, as well as the Payment Card Industry Data Security Standards) that are no less rigorous than the standards by which Contractor protects its own confidential information; (3) continually monitor its operations and take any action necessary to assure that University Records are safeguarded and the confidentiality of University Records is maintained in accordance with all Applicable Laws and the terms of this Agreement; and (4) comply with University Rules regarding access to and use of University’s computer systems, including UTS 165 at http://www.utsystem.edu/bor/procedures/policy/policies/uts165.html. At the request of University, Contractor agrees to provide University with a written summary of the procedures Contractor uses to safeguard and maintain the confidentiality of University Records.
(1) Notice of Impermissible Use. If an impermissible use or disclosure of any University Records occurs, Contractor will provide written notice to University within one (1) business day after Contractor’s discovery of that use or disclosure. Contractor will promptly provide University with all information requested by University regarding the impermissible use or disclosure.
(2) Return of University Records. Contractor agrees that within thirty (30) days after the expiration or termination of this Agreement, for any reason, all University Records created or received from or on behalf of University will be (1) returned to University, with no copies retained by Contractor; or (2) if return is not feasible, destroyed. Twenty (20) days before destruction of any University Records, Contractor will provide University with written notice of Contractor’s intent to destroy University Records. Within five (5) days after destruction, Contractor will confirm to University in writing the destruction of University Records.
(3) Disclosure. If Contractor discloses any University Records to a subcontractor or agent, Contractor will require the subcontractor or agent to comply with the same restrictions and obligations as are imposed on Contractor by this Section XIII.D.
(4) Press Releases. Except when defined as part of the Services, Contractor will not make any press releases, public statements, or advertisement referring to this Agreement or the engagement of Contractor as an independent contractor of University in connection with this Agreement, or release any information relative to this Agreement for publication, advertisement or any other purpose without the prior written approval of University.
(5) Public Information. University strictly adheres to all statutes, court decisions and the opinions of the Texas Attorney General with respect to disclosure of public information under the Texas Public Information Act (“TPIA”), Chapter 552, Texas Government Code. In accordance with Section 552.002 of TPIA and Section 2252.907, Texas Government Code, and at no additional charge to University, Contractor will make any information created or exchanged with University pursuant to Page of 31 this Agreement (and not otherwise exempt from disclosure under TPIA) available in a format reasonably requested by University that is accessible by the public.
(6) Termination. In addition to any other termination rights set forth in this Agreement and any other rights at law or equity, if University reasonably determines that Contractor has breached any of the restrictions or obligations set forth in this Section, University may immediately terminate this Agreement without notice or opportunity to cure.
(7) Duration. The restrictions and obligations under this Section will survive expiration or termination of this Agreement for any reason.
IX. Insurance. Contractor will comply with the insurance requirements more particularly described on Exhibit C attached and made a part of this Agreement for all purposes.
X. Indemnity.
A. INDEMNITY BY CONTRACTOR . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, CONTRACTOR WILL AND DOES HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS UNIVERSITY AND, THE UNIVERSITY OF TEXAS SYSTEM, AND THEIR RESPECTIVE AFFILIATED ENTERPRISES, REGENTS, OFFICERS, DIRECTORS, ATTORNEYS, EMPLOYEES, REPRESENTATIVES AND AGENTS (COLLECTIVELY “INDEMNITEES”) FROM AND AGAINST ALL DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, JUDGMENTS, EXPENSES, AND OTHER CLAIMS OF ANY NATURE, KIND, OR DESCRIPTION, INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED IN INVESTIGATING, DEFENDING OR SETTLING ANY OF THE FOREGOING (COLLECTIVELY “CLAIMS”) BY ANY PERSON OR ENTITY, ARISING OUT OF, CAUSED BY, OR RESULTING FROM CONTRACTOR’S PERFORMANCE UNDER OR BREACH OF THIS AGREEMENT AND THAT ARE CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENT ACT, NEGLIGENT OMISSION OR WILLFUL MISCONDUCT OF CONTRACTOR, ANYONE DIRECTLY EMPLOYED BY CONTRACTOR OR ANYONE FOR WHOSE ACTS CONTRACTOR MAY BE LIABLE. THE PROVISIONS OF THIS SECTION WILL NOT BE CONSTRUED TO ELIMINATE OR REDUCE ANY OTHER INDEMNIFICATION OR RIGHT WHICH ANY INDEMNITEE HAS BY LAW OR EQUITY. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.
B. INTELLECTUAL PROPERTY INDEMNITY BY CONTRACTOR . IN ADDITION, CONTRACTOR WILL AND DOES HEREBY AGREE TO INDEMNIFY, PROTECT, DEFEND WITH COUNSEL APPROVED BY UNIVERSITY, AND HOLD HARMLESS INDEMNITEES FROM AND AGAINST ALL CLAIMS ARISING FROM INFRINGEMENT OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER PROPRIETARY INTEREST ARISING BY OR OUT OF THE PERFORMANCE OF SERVICES OR THE PROVISION OF GOODS BY CONTRACTOR, OR THE USE BY INDEMNITEES, AT THE DIRECTION OF CONTRACTOR, OF ANY ARTICLE OR MATERIAL; PROVIDED , THAT , UPON BECOMING AWARE OF A SUIT OR THREAT OF SUIT FOR INFRINGEMENT, UNIVERSITY WILL PROMPTLY NOTIFY CONTRACTOR AND CONTRACTOR WILL BE GIVEN THE OPPORTUNITY TO NEGOTIATE A SETTLEMENT. IN THE EVENT OF LITIGATION, UNIVERSITY AGREES TO REASONABLY COOPERATE WITH CONTRACTOR. ALL PARTIES WILL BE ENTITLED TO BE REPRESENTED BY COUNSEL AT THEIR OWN EXPENSE.
XI. Default and Termination. A. Termination for Cause. Subject to Section II.C., in the event of a material failure by a party to this Agreement to perform in accordance with the terms of this Agreement (“default”), the other party may terminate this Agreement upon thirty (30) days’ written notice of termination setting forth the nature of the material failure; provided, that, the material failure is through no fault of the terminating party. The termination will not be effective if the material failure is fully cured prior to the end of the thirty-day period.
B. Termination without Cause. Subject to Section II.C., either party may, without cause, terminate this Agreement at any time upon giving ninety (90) days' advance written notice to Contractor. Upon termination pursuant to this Section, Contractor will be entitled to payment of an amount that will compensate Contractor for the Services satisfactorily performed from the time of the last payment date to the termination date in accordance with this Agreement; provided, that, Contractor has delivered all Work Material to University. Notwithstanding any provision in this Agreement to the contrary, University will not be required to pay or reimburse Contractor for any services performed or for expenses incurred by Contractor after the date of the termination notice that could have been avoided or mitigated by Contractor except for those Services performed at University’s request pursuant to Section II.C.
C. Continuing Liability; Survival. Termination under Sections XII.A. or XII.B. will not relieve Contractor from liability for any default or breach under this Agreement or any other act or omission of Contractor. No expiration or termination of this Agreement will relieve either party of any obligations under
Page of 31 this Agreement that by their nature survive such expiration or termination, including but not limited to Sections II.C, VIII, IX, XI, XII.B, XIII.G, XV, XVII.B, XVIII, XIX, and EXHIBIT D.
D. University’s Right to Cure. If Contractor fails to cure any default within thirty (30) days after receiving written notice of the default, University will be entitled (but will not be obligated) to cure the default and will have the right to offset against all amounts due to Contractor under this Agreement, any and all reasonable expenses incurred in connection with the University’s curative actions.
E. University’s Right to Reimbursement. In the event that this Agreement is terminated, then within thirty (30) days after termination, Contractor will reimburse University for all fees paid by University to Contractor that were (a) not earned by Contractor prior to termination, or (b) for goods or services that the University did not receive from Contractor prior to termination.
XII. Personnel. A. Standards. At all times, Contractor warrants, represents, covenants, and agrees to maintain a staff of properly trained and experienced personnel in accordance with the highest standards of Contractor’s profession or business, to ensure satisfactory performance under this Agreement. Contractor will maintain and have on duty at all Biomedical Services Locations a properly trained staff of employees sufficient for the efficient performance of the Services. Contractor will provide University with proof of current respirator fit testing for each of its employees and the employees of Contractor’s subcontractors, if applicable to the Services being performed. Contractor shall supply all required personal protective equipment for its employees and the employees of Contractor’s subcontractors.
B. Supervision. Contractor warrants, represents, covenants, and agrees to provide competent supervision of its employees in accordance with the highest standards of Contractor’s profession or business. Contractor will provide expert administrative, purchasing, and personnel supervision, for the performance of the Services. Neither University nor its employees or agents, will supervise Contractor’s employees or agents performing the Services. University will be available to Contractor to answer questions and provide necessary information.
C. Licenses; Designated Representatives. Contractor warrants, represents, covenants, and agrees that all persons connected with Contractor directly in charge of the Services are duly registered and licensed under all Applicable Laws, if required by such Applicable Laws. Contractor will assign to University a designated representative who will be responsible for the administration and coordination of the Services. Contractor represents and agrees to furnish efficient business administration and coordination and perform the Services in an expeditious and economical manner consistent with the interests of University.
D. Employee Conduct. Contractor will require all of its employees, permitted subcontractors and agents to adhere to all of University’s policies and regulations, including but not limited to all University traffic and parking rules and regulations. Contractor will perform the Services without interfering in any way with the activities of University’s faculty, students, staff, visitors or invitees.
E. Labor Unions. University will not be a party to, or be bound by, any labor union contract affecting Contractor’s employees. Any such contract will be negotiated between Contractor and the labor union.
F. Identification and Refusal of Entry. Contractor acknowledges that University has the right to (a) require identification from any person on the University’s premises, (b) refuse entry to persons having no legitimate business on the University’s premises, and (c) eject any undesirable person refusing to leave peaceably on request. Contractor will cooperate with all authorized University representatives in the exercise of University’s rights described in the preceding sentence. All employees of Contractor must, at all times while present on University’s premises at any location, wear an identification badge issued by University’s Police Department.
G. Responsibility for Employees. Contractor will be responsible for any and all injury, loss and damage to persons or property caused by Contractor’s agents or employees. Upon request by University, Contractor will promptly repair, to the satisfaction of University, any damage Contractor, its employees or agents, cause to University’s property. University, at its option, may repair such damage and Contractor will promptly reimburse University for the cost of such repair.
Page of 31 H. Limited Access. Except as provided in Section IV, Contractor, its employees, permitted subcontractors and agents, will have the right to use and access only those University facilities that are necessary to perform the Services and will have no right to use or access any other facilities of University.
I. Responsibility for Individuals Performing Services; Criminal Background Checks. Each individual who is assigned to perform the Services under this Agreement will be an employee of Contractor or an employee of a permitted subcontractor engaged by Contractor. Contractor is responsible for the performance of all individuals performing the Services under this Agreement. Prior to commencing the Services, Contractor will (1) provide University with a list ("List") of all individuals who may be assigned to perform the Services, and (2) have an appropriate criminal background screening performed on all such individuals. Contractor will determine on a case-by-case basis whether each individual assigned to perform the Services is qualified to provide such services. Contractor will not knowingly assign any individual to provide services on University’s campus who has a history of criminal conduct unacceptable for a university campus or healthcare center, including violent or sexual offenses. Contractor will update the List each time there is a change in the individuals assigned to perform the Services. As of the Effective Date, the individuals who may be assigned to perform the Services is provided in EXHIBIT J, attached and incorporated for all purposes.
Prior to commencing performance of the Services under this Agreement, Contractor will provide University a letter signed by an authorized representative certifying compliance with this Section. Contractor will provide University an updated certification letter each time there is a change in the individuals assigned to perform the Services.
J. Undocumented Workers. The Immigration and Nationality Act (8 United States Code 1324a) (“Immigration Act”) makes it unlawful for an employer to hire or continue employment of undocumented workers. The United States Immigration and Customs Enforcement Service (“ICES”) has established the Form I-9 Employment Eligibility Verification Form (“I-9 Form”) as the document to be used for employment eligibility verification (8 Code of Federal Regulations 274a). Among other things, Contractor is required to: (1) have all employees complete and sign the I-9 Form certifying that they are eligible for employment; (2) examine verification documents required by the I-9 Form to be presented by the employee and ensure the documents appear to be genuine and related to the individual; (3) record information about the documents on the I-9 Form, and complete the certification portion of the I-9 Form; and (4) retain the I-9 Form as required by law. It is illegal to discriminate against any individual (other than a citizen of another country who is not authorized to work in the United States) in hiring, discharging, or recruiting because of that individual's national origin or citizenship status. If Contractor employs unauthorized workers during performance of this Agreement in violation of the Immigration Act then, in addition to other remedies or penalties prescribed by law, University may terminate this Agreement in accordance with Section XII. Contractor represents and warrants that Contractor (1) currently uses and will continue to use the ICES E- verify Program throughout the Term of this Agreement to verify employment eligibility of its employees; (2) is in compliance with and agrees that it will remain in compliance with the provisions of the Immigration Act; and (3) will require Contractor’s subcontractor (a) use the ICES E-verify Program throughout the Term of this Agreement to verify employment eligibility of its employees and (b) comply with the provisions of the Immigration Act.
K. Hiring Restricted Employees. Neither party will actively solicit for employment any Restricted Employees during the Term of this Agreement, or for a period of one (1) year after the expiration or termination of this Agreement for any reason; provided, however, this restriction will not apply to University if Contractor’s Restricted Employees were formerly employees of University. For purposes of this prohibition, “Restricted Employees” will mean those persons who have performed services in connection with this Agreement at least six (6) months, and, in the event this Agreement has expired or terminated, performed such services during the six (6) month period prior to the expiration or termination of this Agreement. This Section will not apply to Contractor’s Restricted Employees who respond to a good faith, general, public solicitation by University for applicants in connection with an open position; provided, however, that University has not directly solicited Contractor’s Restricted Employee for the open position prior to that employee responding to University’s public solicitation. If a Contractor Restricted Employee submits an application in response to University’s public solicitation and is the most qualified applicant, University may hire that Contractor Restricted Employee and not be subject to the restrictions of this Section.
XIII. Inventory; Inventory Adjustments. Contractor will maintain accurate and comprehensive records
Page of 31 (“Inventory Records”) regarding University’s inventory in its software program “E-Bits.” Contractor will update the Inventory Records when inventory changes with additions or deletions of equipment. Contractor will provide University a current inventory listing on an annual basis, upon the expiration or termination of this Agreement, and as otherwise requested by University. University’s initial inventory listing is attached as SCHEDULE A and incorporated for all purposes.
XIV. Warranty. Contractor warrants that the Services (including any products or parts provided under this Agreement) will be free from defects in material and workmanship, under normal use and operation. Contractor will repair such defects at Contractor's expense. Defective parts replaced under this warranty will become the property of University. Parts generally considered to be expendable during normal use, including lamps, fuses, door gaskets, are not covered under this warranty.
THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED. NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WILL APPLY.
XV. Non-Discrimination. Contractor is an equal opportunity employer and it will not discriminate against any of its employees or applicants for employment on the basis of race, color, creed, sex, or national origin, nor to the extent provided by law, on the basis of age.
XVI. Miscellaneous Provisions.
A. Modification. No representation, promise, modification, waiver, or amendment will be binding upon either party to this Agreement unless in writing and signed on behalf of each party by a duly authorized representative.
B. Entire Contract; Interpretation. Each of the paragraphs in this Agreement will apply to the full extent permitted by Texas State law. The invalidity, in whole or part, of any paragraph will not affect the remainder of such paragraph or any other paragraph. This Agreement (including any specifications or other documents incorporated by reference) constitutes the entire understanding between University and Contractor concerning the subject hereof and supersedes previous agreements and addenda. Any representation, promises, course of dealing, course of conduct or trade usage not contained or referenced herein will not be binding. No waiver of any default will be construed to be or constitute a waiver of any subsequent defaults.
C. No Oral Modification. This Agreement cannot be modified orally, or by course of conduct, but only in writing signed by a duly authorized officer or agent of each party. This Agreement contains the entire understanding of the parties with respect to the subject matter hereof.
D. Authority to Execute. In executing this Agreement, the parties hereto acknowledge that they have read each of the terms and conditions of this Agreement, that they know and understand the same, and they have signed this Agreement as their own respective free act with the express authority to do so.
E. Assignment and Subcontracting. Except as specifically provided in EXHIBIT I, Historically Underutilized Business Subcontracting Plan, attached and incorporated for all purposes, Contractor's interest in this Agreement (including Contractor’s duties and obligations under this Agreement, and the fees due to Contractor under this Agreement) may not be subcontracted, assigned, delegated, or otherwise transferred to a third party, in whole or in part, and any attempt to do so will (a) not be binding on University; and (b) be a breach of this Agreement for which Contractor will be subject to all remedial actions provided by Texas law, including Chapter 2161, Texas Government Code, and 34 TAC Chapter 20,§§20.101 – 20.108. The benefits and burdens of this Agreement are assignable by University.
F. Authorized Representative. University agrees to allow Contractor to act as its duly authorized representative for the limited purpose of performing the duties and obligations of this Agreement such as obtaining service support, parts and/or other technical information from Equipment manufacturers. In the event that Contractor notifies University that a part, support or information cannot be obtained by Contractor directly from Equipment manufacturer, University will use commercially reasonable efforts to obtain such parts, support or information directly from the manufacturer or assist Contractor in doing so.
Page of 31 G. Legal Requirements. Contractor will perform the Services in compliance with (a) all Applicable Laws, and (b) the Rules and Regulations of the Board of Regents of The University of Texas System at http://www.utsystem.edu/bor/rules/ ,http://www.utsystem.edu/bor/rules.htm the policies of The University of Texas System at http://www.utsystem.edu/bor/procedures/policy/; and the institutional rules, regulations and policies of University, including policies, procedures and programs related to conflict of interest, criminal background checks, environmental health and safety, infectious disease testing and seasonal vaccination program (collectively, “University Rules”). Contractor represents and warrants that neither Contractor nor any firm, corporation or institution represented by Contractor, or anyone acting for the firm, corporation or institution, (1) has violated the antitrust laws of the State of Texas, Chapter 15, Texas Business and Commerce Code, or federal antitrust laws, or (2) has communicated directly or indirectly the content of Contractor’s response to University’s procurement solicitation to any competitor or any other person engaged in a similar line of business during the procurement process for this Agreement.
H. Independent Contractors. Each party’s relationship to the other during the Term will be that of an independent contractor. Neither party, nor its agents, or employees, are under any circumstances to be considered employees of the other party or be entitled to participate in any plans, arrangements or benefits of any kind provided by the other party to its employees
XVII. Breach of Contract Claims.
A. Claims. To the extent that Chapter 2260, Texas Government Code, as it may be amended from time to time ("Chapter 2260"), is applicable to this Agreement and is not preempted by other applicable law, the dispute resolution process provided for in Chapter 2260 will be used, as further described herein, by University and Contractor to attempt to resolve any claim for breach of contract made by Contractor:
(1) Contractor’s claims for breach of this Agreement that the parties cannot resolve pursuant to other provisions of this Agreement or in the ordinary course of business will be submitted to the negotiation process provided in subchapter B of Chapter 2260. To initiate the process, Contractor will submit written notice, as required by subchapter B of Chapter 2260, to University in accordance with the notice provisions in this Agreement. Contractor's notice will specifically state that the provisions of subchapter B of Chapter 2260 are being invoked, the date and nature of the event giving rise to the claim, the specific contract provision that University allegedly breached, the amount of damages Contractor seeks, and the method used to calculate the damages. Compliance by Contractor with subchapter B of Chapter 2260 is a required prerequisite to Contractor's filing of a contested case proceeding under subchapter C of Chapter 2260. The Chief Business Officer of University, or the other officer of University as may be designated from time to time by University by written notice thereof to Contractor in accordance with the notice provisions in this Agreement, will examine Contractor's claim and any counterclaim and negotiate with Contractor in an effort to resolve the claims. (2) If the parties are unable to resolve their disputes under Section XXIII.A.(1), the contested case process provided in subchapter C of Chapter 2260 is Contractor’s sole and exclusive process for seeking a remedy for any and all of Contractor's claims for breach of this Agreement by University. (3) Compliance with the contested case process provided in subchapter C of Chapter 2260 is a required prerequisite to seeking consent to sue from the Legislature under Chapter 107, Texas Civil Practices and Remedies Code. The parties hereto specifically agree that (i) neither the execution of this Agreement by University nor any other conduct, action or inaction of any representative of University relating to this Agreement constitutes or is intended to constitute a waiver of University's or the state's sovereign immunity to suit and (ii) University has not waived its right to seek redress in the courts.
B. Rules. The submission, processing and resolution of Contractor’s claim is governed by the published rules adopted by the Texas Attorney General pursuant to Chapter 2260, as currently effective, thereafter enacted or subsequently amended.
C. No Waiver. University and Contractor agree that any periods set forth in this Agreement for notice and cure of defaults are not waived.
Page of 31 XVIII. HIPAA Compliance. University is a HIPAA Covered Entity and some of the information Contractor receives, maintains or creates for or on behalf of University may constitute Protected Health Information (“PHI”) that is subject to HIPAA. Before Contractor may receive, maintain or create any University Records subject to HIPAA, Contractor will execute the HIPAA Business Associate Agreement (“BAA”) set forth in EXHIBIT H, HIPAA Business Associate Agreement, attached and incorporated for all purposes. To the extent that the BAA conflicts with any term contained in this Agreement, the terms of the BAA will control.
XIX. No Financial Interest. No member of the Board has a direct or indirect financial interest in the transaction that is the subject of this Agreement.
XX. Historically Underutilized Business Subcontracting Plan. Contractor agrees to use good faith efforts to subcontract the Services in accordance with the Historically Underutilized Business Subcontracting Plan (“HSP”) (ref. EXHIBIT I). Contractor agrees to maintain business records documenting its compliance with the HSP and to submit a monthly compliance report to University in the format required by the Texas Procurement and Support Services Division of the Texas Comptroller of Public Accounts or any successor agency (collectively, “TPSS”). Submission of compliance reports will be required as a condition for payment under this Agreement. If University determines that Contractor has failed to subcontract as set out in the HSP, University will notify Contractor of any deficiencies and give Contractor an opportunity to submit documentation and explain why the failure to comply with the HSP should not be attributed to a lack of good faith effort by Contractor. If University determines that Contractor failed to implement the HSP in good faith, University, in addition to any other remedies, may report nonperformance to the TPSS in accordance with applicable laws, including Chapter 2161, Texas Government Code, and 34 TAC Chapter 20,§§20.101 – 20.108. University may also revoke this Agreement for breach and make a claim against Contractor.
A. Changes to the HSP. If at any time during the term of this Agreement, Contractor desires to change the HSP, before the proposed changes become effective (a) Contractor must comply with 34 TAC Section 20.14; (b) the changes must be reviewed and approved by University; and (c) if University approves changes to the HSP, this Agreement must be amended in accordance with Section XVII.A to replace the HSP with the revised subcontracting plan.
B. Expansion of the Services. If University expands the scope of the Services through a change order or any other amendment, University will determine if the additional Services contain probable subcontracting opportunities not identified in the initial solicitation for the Services. If University determines additional probable subcontracting opportunities exist, Contractor will submit an amended subcontracting plan covering those opportunities. The amended subcontracting plan must comply with the provisions of 34 TAC Section 20.14; (b) before (a) this Agreement may be amended to include the additional Services; or (b) Contractor may perform the additional Services. If Contractor subcontracts any of the additional subcontracting opportunities identified by University without prior authorization and without complying with 34 TAC Section 20.14; (b), Contractor will be deemed to be in breach of this Agreement under Section XII and will be subject to any remedial actions provided by Texas law, including Chapter 2161, Texas Government Code, and 34 TAC Section 20.14; (b). University may report nonperformance under this Agreement to the TPSS in accordance with 34 TAC Sections 20.101 through 20.108.
XXI. Access by Individuals with Disabilities. Contractor represents and warrants (“EIR Accessibility Warranty”) that the electronic and information resources and all associated information, documentation, and support that it provides to the University under this Agreement (collectively, the “EIRs”) comply with the applicable requirements set forth in Title 1, Chapter 213 of the Texas Administrative Code and Title 1, Chapter 206, Rule §206.70 of the Texas Administrative Code (as authorized by Chapter 2054, Subchapter M of the Texas Government Code.) To the extent Contractor becomes aware that the EIRs, or any portion thereof, do not comply with the EIR Accessibility Warranty, then Contractor represents and warrants that it will, at no cost to University, either (1) perform all necessary remediation to make the EIRs satisfy the EIR Accessibility Warranty or (2) replace the EIRs with new EIRs that satisfy the EIR Accessibility Warranty. In the event that Contractor is unable to do so, then the University may terminate this Agreement and Contractor will refund to the University all amounts the University has paid under this Agreement within thirty (30) days after the termination date.
Page of 31 XXII. Quality Assurance. Contractor will (a) comply with all applicable standards of the Joint Commission ("Joint Commission"); (b) implement and monitor a quality assurance process that complies with Joint Commission standards; (c) comply with applicable Joint Commission privileging standards for licensed independent practitioners; (d) upon request, provide assurance to University of a licensed independent practitioner's privileging file; and (e) provide University with periodic reports of its quality assurance indicators and/or permit University to conduct periodic quality assurance audits of the Services.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by and through their duly authorized officers, as of the day and year first above written.
UNIVERSITY: CONTRACTOR:
THE UNIVERSITY OF TEXAS HEALTH ______SCIENCE CENTER AT TYLER
By:______By:______Signature Signature
Vernon Moore______Name Name SVP, Chief Business and Finance Officer ______Title Title
______Date Date
University’s Billing Address:
The University of Texas Health Science Center at Tyler Accounts Payable 11937 US Highway 271 Tyler, TX 75708
Exhibits: Exhibit A – Scope of Work
Exhibit B – Excluded Items Exhibit C – Insurance Requirements Exhibit D – Addendum to Agreement Exhibit E – Intentionally Left Blank Exhibit F – Space Survey Exhibit G – Contractor Equal Employment Opportunity Policy Exhibit H – Business Associate Addendum Exhibit I – Historically Underutilized Business Subcontracting Plan (HSP) Exhibit J – Contractor Staff on University Campus Exhibit K – University Owned Test Equipment List
Schedules: Schedule A – University’s Initial Equipment Inventory / Scheduled Service List Report
Page of 31 EXHIBIT A
Scope of Work
A. Equipment Covered. Contractor will provide maintenance, testing and inspection services for University’s biomedical, imaging and fire detection and alarm equipment (collectively, the “Equipment”) more particularly described in the Equipment Inventory List, SCHEDULE A, in accordance with the terms and conditions of this Agreement.
B. Excluded Items. The types of parts and the services more particularly described in EXHIBIT B attached and made a part of this Agreement for all purposes, are beyond the scope of this Agreement and are, therefore, excluded unless otherwise indicated as a specific inclusion.
C. Specific Inclusion. Glassware is specifically included as Equipment in this EXHIBIT A.
D. Excessive Repair, Old and Outdated Equipment. When the repair cost of a piece of Equipment exceeds the Expenditure Limit Factor for that piece of Equipment, University will determine whether to repair or replace the Equipment. “Expenditure Limit Factor” is equal to 50% of the cost of replacement as determined by University. If the cost to repair a piece of Equipment exceeds the Expenditure Limit Factor, at University’s request, Contractor will provide University with information that will assist University in determining the cost of replacement and deciding whether to repair or replace the Equipment. University may consider the Expenditure Limit Factor and information provided by the current American Hospital Association publication titled Estimated Useful Lives of Depreciable Hospital Assets when deciding when to replace or repair a particular piece of Equipment.
E. Tools and Test Equipment. At University’s option, Contractor will (1) maintain all tools and test equipment required to perform the Services, or (2) purchase only the tools and test equipment needed to augment University’s existing inventory of tools and test equipment.
In either event, all tools and test equipment purchased by Contractor will remain the property of Contractor. In addition, University will retain ownership of all of its tools and test equipment listed on EXHIBIT K attached and made a part of this Agreement for all purposes. Within thirty (30) days after University acquires additional tools or test equipment, the parties will update EXHIBIT K to reflect the then current list of University’s tools and test equipment, calibration dates and conditions. Repairs and calibration of all tools and test equipment will be the responsibility of the owner of the tools or test equipment.
F. Equipment Inspections.
1. Incoming Equipment. Upon University’s request, Contractor will perform an incoming inspection on any piece of Equipment being brought into the University’s academic medical center. This inspection applies to newly purchased Equipment, leased or rented Equipment, and doctor-owned Equipment. This inspection will include a performance verification test and/or an electrical safety inspection. Any Equipment that does not pass inspection will not be released for use by University. Instead, it will be tagged as "Do Not Use" and the University Representative will be notified with a request for disposition.
2. Preventive Maintenance Services and Electrical Safety Inspections. Contractor will perform scheduled preventive maintenance services and/or electrical safety inspections, where applicable, in accordance with appropriate codes, standards, regulations, manufacturer’s recommendations and Contractor’s written procedures on the Equipment. Preventive maintenance includes cleaning (but not housekeeping), adjusting, lubricating, inspecting, and testing procedures designed to prevent Equipment failure and Equipment downtime, and verify Equipment is in good operating condition. Contractor Annual Inspection stickers will be applied to all inspected Equipment. Equipment not meeting the specifications will be tagged as “Do Not Use” and removed from service until repaired. Contractor will maintain records that meet regulatory agency requirements.
3. Patient-Care Equipment Evaluation/Ranking System. Contractor will perform required monthly Preventative Maintenance (“PM”) on Critical non-redundant Life Support Equipment (as identified in the Risk Ranking below) each month with a 100% completion rate, and Page of 31 will perform required monthly on Non-critical Ancillary Equipment (as identified in the Risk Ranking below) with a minimum of a 95% completion rate. Documentation of performance will be submitted to University’s Environment of Care Committee at each regular quarterly meeting.
To insure that every piece of Equipment receives proper maintenance, Contractor will evaluate each piece based on its risk categories. Within each risk category are specific sub-categories that are assigned point values. When the device is evaluated, the total points for each device are added according to the formula:
Total = A + B + (C+D+E) 3
The categories and numerical values of each category are as follows:
Risk Category A: Equipment Function
Includes various areas in which the therapeutic, diagnostic, analytical and miscellaneous equipment are used.
Point Score Function / Description
10 THERAPEUTIC – Life Support 9 THERAPEUTIC – Surgical or Intensive Care 8 DIAGNOSTIC -- Surgical/Intensive Care Monitor 7 DIAGNOSTIC -- Other Physiological Monitoring 6 THERAPEUTIC -- Physical Therapy or Treatment 5 ANALYTICAL -- Laboratory Analytical 4 MISCELLANEOUS -- Patient Care Related 3 ANALYTICAL -- Laboratory Accessories 2 ANALYTICAL -- Computer and Related 1 MISCELLANEOUS -- Non-Patient Care Related
Risk Category B: Clinical Application
Identify the potential patient, staff or equipment risk during normal/proper operation of the device.
Point Score Description of Use Risks
5 Potential patient/staff death 4 Potential patient/staff injury 3 Inappropriate therapy/misdiagnosis 2 Equipment damage 1 No significant risk identified
Risk Category C: Maintenance Requirements
Assist with defining the base frequency of the required maintenance inspections based on manufacturer's guidelines or experience with the device. Incident and failure history of equipment will identify adjustment to the base frequency of equipment types.
Point Score Maintenance Requirements
5 Extensive 4 Above average 3 Average 2 Below average 1 Minimal
Page of 31 Equipment that requires above average to extensive maintenance will receive a scheduled inspection every six months. Other equipment in the program will receive inspections as required.
Different maintenance strategies may be used to determine frequency of inspection on selected items. These maintenance strategies can be based on criteria such as manufacturer’s recommendations, risk levels, and current experience.
Examples of types of equipment that may be considered for different maintenance strategies are, but not limited to, ventilators (metered maintenance), sterilizers (predictive maintenance), and anesthesia machines (interval based inspections).
Risk Category D: Mean Time Between Failure
Defines the expected time between failure incidents based on departmental experience or other sources of information that may be available for the device.
Point Score MTBF Periods
5 Less than 3 months 4 About every 6 months 3 About every 12 months 2 About every 36 months 1 Greater than 60 months
Risk Category E: Environmental Use of the Device
List the area where the device is primarily used within the Facility.
Point Score Primary Area Where Device is Used
5 Anesthetizing locations 4 Critical care areas 3 Wet locations 2 General patient care area 1 Non-patient care areas
After the device score is derived, any devices scoring seven (7) or less are deemed to pose no significant risk and are not included for periodic testing. These items will be included in department safety surveillance rounds. Devices may be included in the Medical Equipment Management Program and levels of service changed at the discretion of the University for reasons other than the scoring profile
Contractor and University may mutually agree to make adjustments to the criteria as necessary. Working in cooperation with University, Contractor will modify the level of required Services based on the University’s requirements and the Equipment service history. . Computerized Management System. Contractor computer-assisted management program (the “System”) will track operator errors, training issues, and Equipment failures through a series of fail codes. The System will provide University with immediate screen inquiry or printed reports on an array of maintenance information such as when maintenance is scheduled, when maintenance was last performed, and the applicable maintenance cost distribution.
In the event covered Equipment is the subject of an alert or recall by a manufacturer, distributor, or governmental entity, Contractor will insure that the required work is performed and documented. However, Contractor may only modify Equipment with the written authorization from the Page of 31 manufacturer. Contractor will coordinate hazard alerts and recalls received for biomedical Equipment through the University’s subscription service with Risk And Safety Management Alert System also known as “RASMAS,” and will provide all related monitoring and reporting to University.
5. Intent to Service on Schedule. Contractor will perform the Services for all Equipment during the month identified in the System However, Contractor will not be responsible for delays or charges incurred because of lack of access to the Equipment caused by University. Contractor will identify in their quarterly report to the Environment of Care Committee services that cannot be performed in accordance with the PM Schedule.
G. Times Available for Repairs. Contractor will maintain four (4) Contractor employees on University’s premises during normal working hours, Monday through Friday. Contractor’s employees will be on-call 24 hours per day, 7 days per week, 366 days per year, for emergencies on Critical Equipment as defined in Section F(3). During normal working hours, Contractor staff will be immediately available by directly phoning the University’s Biomedical Engineering Department, issuing a call through an in-house beeper or paging system, or through the Contractor work order computer software maintained on University’s intranet site. Biomedical Technician “on call” schedules will be provided by Contractor’s staff to the University PBX operator on the first Monday of each month. The “on-call” schedule shall provide contact information for each “on call” biomedical engineering technician, along with dates on “on call” status.
H. Service Calls
1. Service Calls. If a piece of Equipment cannot be repaired by Contractor within Twenty-four (24) hours Contractor will employ an appropriate vendor to complete the repair at Contractor's expense. These service calls may be made at the discretion of Contractor without obtaining approval from University.
2. Typical Response Times. The following response times to calls from University by Contractor (each a “Response Time”) are as follows:
a. Telephone response to emergency calls within 15 minutes if on-site. b. Physical response to emergency calls within 15 minutes if on-site. c. Telephone response to emergency calls within 15 minutes if off-site. d. Physical response to emergency calls within 30 minutes if off-site. e. Estimate of remedy time within 1 hour of physical response. f. Emergency call – call concerning critical patient care equipment OR equipment that is sole piece of equipment (no redundancy exists) and must be sued for provision of care OR call concerns any component of the Life Safety system under Contractor’s domain (i.e., fire alarm system, nurse call system, telemetry system). g. Non-emergency calls will be handled during normal business hours on the next normal business day.
3. Escalation Guidelines. It is the goal of Contractor to respond to emergency calls within the Response Time. At each step, University will be notified of the current status and will have the authority to escalate the process without penalty or fees.
4. Critical, non-redundant life support Equipment
a. If the repair cannot be accomplished within two hours of the initial call, Contractor will inform the University and arrange for additional support via telephone with Contractor specialists or an approved qualified third-party vendor. b. If the repair time exceeds 6 hours, then Contractor will arrange to have a Contractor specialist or an approved qualified third-party vendor provide an on- site service call. c. If the repair or down time exceeds 24 hours, the Original Equipment Manufacturer (“OEM”) will be called for support by Contractor.
5. Repair Parts. Contractor will pay for replacement parts needed by its technicians for maintaining or repairing Equipment, with exceptions as noted in the terms and conditions. If, after acceptance of this Agreement, Contractor or its supplier's redesign any product or parts specified in this Agreement and the redesigned product or parts are of like grade, quality and value and perform
Page of 31 the same function as the product or part specified, Contractor will have the right to substitute the redesigned product or parts.
I. Equipment Procurement Advisory Services
1. Equipment Purchasing. Upon the request of University, Contractor will provide assistance in the review of University’s Equipment Inventory / Scheduled Service List Report, attached as Schedule A and incorporated for all purposes, and furnish equipment repair histories to support asset replacement decisions. As requested by the University, Contractor will provide advice regarding equipment warranties, bid and proposal reviews and selection of new equipment purchases so long as this advice does not create a conflict of interest for Contractor or University.
2. Contractor will provide a written report specifically listing all Services provided to University with a detailed status of each Service within five (5) business days after written request by University.
J. Intentionally Left Blank
K. Regulatory Agency Inspections. Contractor will provide on-site support during all scheduled regulatory agency inspections. Contractor will be available to assist University during the medical equipment management portion of the inspection. If requested by University, Contractor will also provide a representative for any scheduled pre/mock surveys.
L. Intentionally Left Blank
M. Quality Management and Performance Improvement Program. All biomedical and imaging programs managed by Contractor will incorporate a versatile Quality Management and Performance Improvement Program designed to exceed the standards set by regulatory or accreditation agencies such as The Joint Commission, AOA, CAP, etc. Contractor will furnish University with complete customized policies and procedures manuals. A system of fail-coded work orders constantly monitors adverse trends that might affect safety and equipment operation. Equipment, technician and operator performance can be measured and analyzed, allowing trends to be identified and resolved.
1. Audits and Reports. As part of their quality program, Contractor will perform quality audits and furnish status reports as requested. Unscheduled maintenance summaries are tabulated by department, equipment types and manufacturer as needed. Individualized reports can include monthly summaries, training accomplished and maintenance problems or concerns.
2. University Satisfaction. Contractor will conduct a University Satisfaction survey on a quarterly basis to evaluate the efficacy of the Program. Surveys are distributed to appropriate managers soliciting their feedback on the Program and recommendations for improvement or expansion of the Program. Results of the surveys are shared with University Administration and used by the Contractor management team as one of the key performance indicators if the Contractor Quality Management program.
3. In-Service Education. Contractor will provide in-service education for equipment operators as requested and attend manufacturer's in-service training sessions on new equipment. Contractor will document training and provide University with copies of certificates.
4. Quarterly Joint Review Conference. Contractor regional management staff will meet at least quarterly with University’s Executive Director of Facility Operations for quality and operational review.
5. Contractor Personnel. University may request personnel re-assignment and/or transfer of personnel for justified performance and/or other Human Resource cause.
N. Existing Contracts and Warranty Expirations. At University’s request, Contractor will manage existing contracts that are kept in place by University. Contractor will call in the vendors, inspect the quality of their work, maintain repair histories and see that any charges are reasonable and in accordance with all contract provisions. As current equipment maintenance contracts reach the renewal stage or Page of 31 warranties expire, Contractor will work with University in establishing the most economical renewal contract terms. Contractor will present University with service options and their associated costs and terms. University then chooses which option would best meet its present need.
O. Committee Representation. Contractor will provide a representative for all relevant committee meetings as requested. Contractor will also supply data in support of clinical equipment issues as requested by any committee.
Page of 31 EXHIBIT B – EXCLUDED ITEMS
This list includes all excluded items that will not be serviced by Contractor.
A. Consumables and Normal Operator-Replaceable Items - i.e. batteries, patient cables & electrode wires, power cables & plugs, stylus, pens, print heads, chart paper, paper, chemicals, detergents, film, electrodes, sensors, tubing, film magazines, portable x-ray machine batteries and other expendables. B. Computer Software - Includes operating systems, restorative, enhancement software, etc. C. Non-Hospital Owned Assets - i.e. rentals, leased, loaner, demo equipment, etc., except for incoming inspections, unless otherwise noted. Service for non-hospital owned items will be managed by Contractor and tracked in our asset management system. Costs for the actual maintenance will be the responsibility of the University or the appropriate owner of the equipment. D. Fiberoptics, Optics and Accessories - i.e. hand piece, lens, telescope, light cord, adaptors, etc. (other than power supply/light source). E. Wave Guides F. Refrigeration equipment and compressors. G. Equipment Relocations - De-installation, movement, installation, or associated services. H. Accessories - An accessory to a system, is a peripheral device that may or may not be essential but is one that does not affect the operation of the system or main device. I. Equipment Overhauls, Rebuilds, Manufacturer-ordered Modifications, Manufacturer- mandated metered service events, Upgrades and Warranty Repairs - If requested, Contractor will perform the overhauls, rebuilds, modifications, upgrades, and warranty repairs. At fees mutually agreed upon by Contractor and the University. Contractor can only perform this type of repair if authorized by the University and by the manufacturer. Contractor will work with the University to insure that the best possible work will be done at a fair price. J. Pre-Existing Conditions - The equipment must be in good operating condition and installed properly prior to our assuming responsibility. Pieces that are not in good operating condition will be added to our Program as soon as they are brought up to standards. K. Obsolete Equipment - Contractor will, to the best of its ability, attempt to locate parts and ancillary service for any piece of equipment that the manufacturer has declared obsolete and no longer provides service support or parts for same. If parts and/or service support cannot be located, Contractor will no longer be responsible for the maintenance of that piece of equipment.
Page of 31 EXHIBIT C
INSURANCE REQUIREMENTS
A. Insurance to be Carried by Contractor : Contractor will procure and maintain during the term of this Agreement, at Contractor’s sole expense, the following insurance, naming University as an insured or additional insured:
1. Workers’ Compensation and Employers Liability Insurance in compliance with the laws of the state of Texas for Contractor’s employees.
2. Property Insurance covering Contractor’s personal property now or hereafter located on the Premises against “All Risk” of Loss in an amount at least equal to replacement value. “All Risk” will mean at a minimum coverage for Special Causes of Loss perils.
3. Commercial General Liability Insurance providing coverage for Contractor’s operations with minimum limits of liability as shown below:
Limits: General Aggregate $2,000,000 Products-Completed Operation Aggregate $1,000,000 Personal and Advertising Injury $1,000,000 Each Occurrence $1,000,000 Fire Damage (any one fire) $50,000 Medical Expense (any one person) $10,000
4. Umbrella Liability Insurance providing excess coverage over the underlying Commercial General Liability and Employers Liability Policies. The limit of liability will be $10,000,000 per occurrence/aggregate.
5. Employee Dishonesty Coverage for the acts of Contractor’s employees in an amount no less than $500,000.
Contractor will, at University’s request, provide a Certificate of Insurance evidencing this coverage.
B. Insurance to be Carried by University :
1. Pursuant to Chapter 503 of the Texas Labor Code, The University of Texas System (UT System) is self-insured for worker’s compensation insurance. Employees of The University of Texas System are provided Worker's Compensation coverage under a self-insuring, self-managed program as authorized by Vernon's Annotated Civil Statutes, Article 8309d.
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ADDENDUM TO AGREEMENT
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INTENTIONALLY LEFT BLANK
Page of 31 EXHIBIT F
SPACE SURVEY
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CONTRACTOR EQUAL EMPLOYMENT OPPORTUNITY POLICY
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BUSINESS ASSOCIATE ADDENDUM
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HISTORICALLY UNDERUTILIZED BUSINESS SUBCONTRACTING PLAN (HSP)
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CONTRACTOR STAFF ON UNIVERSITY CAMPUS
Page of 31 EXHIBIT K
UNIVERSITY OWNED TEST EQUIPMENT LIST
Page of 31 Page of 31 SCHEDULE A
UNIVERSITY’S INITIAL EQUIPMENT INVENTORY / SCHEDULED SERVICE LIST REPORT
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