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HomeMy WebLinkAboutRes 2016-12-258 Fire Recovery USA Agreement (2)CITY OF ANNA, TEXAS RESOLUTION NO. &IL - a, - A RESOLUTION OF THE CITY OF ANNA, TEXAS APPROVING AND AUTHORIZING THE CITY MANAGER TO ACT ON THE CITY'S BEHALF IN EXECUTING A SERVICES AGREEMENT WITH FIRE RECOVERY USA, LLC. FOR THE BILLING FOR COST RECOVERY FEES FOR SERVICES PROVIDED BY THE ANNA FIRE DEPARTMENT. WHEREAS; Fire Recovery USA, LLC. engages in the business of performing billing services for United States Fire Departments in connection with the motor vehicle incidents and other emergency incidents at which the fire departments provide emergency services: and WHEREAS; Anna Fire Department seeks the services of Fire Recovery USA, LLC. to assist with the billing for cost recovery for services that the Anna Fire Department provides in connection with motor vehicle incidents and other emergency incidents; and NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS, THAT: Section 1. Recitals Incorporated. The recitals above are incorporated herein as if set forth in full for all purposes. Section 2. Approval and Authorization of Services Agreement. The City Council hereby approves the Services Agreement with Fire Recovery USA, LLC., attached hereto as Exhibit 1, and ratifies and approves the City Manager's execution of the same. The City Manager is hereby authorized to execute all documents and to take all other actions necessary to finalize and enforce the amended Interlocal Agreement. PASSED AND APPROVED by the City Council of the City of Anna, Texas, on this 13 th day of December, 2016. ATTEST- APPROVED: OF t*i Secretary Carriet. S'mith 7,Mayor Mike Crist .0 X P� RESOLUTION 2016-12-258 EXHIBIT 1 SERVICES AGREEMENT This Services Agreement ("Agreement") is made effective as of December 13 , 2016 ("Effective Date"), by and between FIRE RECOVERY USA, LLC, a California limited liability company ("Company"), and City of Anna, ("Fire Department"). The Company and Fire Department are referred to herein individually as a "party" and collectively as the "parties." R E C I T A L S WHEREAS, Company engages in the business of performing billing services ("Company Services") for United States Fire Departments in connection with the motor vehicle incidents and other emergency incidents at which the fire departments provide emergency services: and WHEREAS, Fire Department seeks the services of Company to assist with the billing for services that Fire Department provides in connection with motor vehicle incidents and other emergency incidents; and WHEREAS, Company and Fire Department desire to enter into this Agreement to memorialize their agreements regarding the Company Services to be provided to Fire Department. NOW, THEREFORE, in consideration of the mutual representations, warranties and covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Fire Department agree as follows: ARTICLE 1 ENGAGEMENT 1. 1. Engagement: Fire Department hereby engages Company to provide the Company Services described in Article 4 herein, and Fire Department hereby accepts such engagement, all on the terms and conditions set forth herein. Company will determine the method, detail and means of performing the services detailed below. ARTICLE 2 REPRESENTATIONS AND WARRANTIES 2.1. Representations and Warranties of Compan : Company hereby represents and warrants to Fire Department that, at all times during the term of this Agreement, Company is a limited liability company duly organized, validly existing and in good standing under the laws of the State of California. 2.2. Representations and Warranties of Fire Department: Fire Department hereby represents and warrants to Company that, at all times during the term of this Agreement, Fire Department is a organized fire department established pursuant to the laws and ordinances of the state in which Fire Department is located. ARTICLE 3 COMPANY STATUS AND QUALIFICATIONS 3.1. Independent Contractor: Company enters into this Agreement, and will remain throughout the term of the Agreement, as an independent contractor. Company agrees that it will not become an employee, partner, agent or principal of Fire Department while this Agreement is in effect. 3.2. Payment of Income Taxes: Company is responsible for paying when due all income taxes, including estimated taxes, incurred as a result of the compensation paid by Fire Department to Company for services rendered under this Agreement. On request, Company will provide Fire Department with proof of timely payment. Company agrees to indemnify fire Department for any claims, costs, losses, fees, penalties, interest, or damages suffered by Fire Department resulting from Company's failure to comply with this provision. 3.3. Use of Employees or Subcontractors: Company may, at Company's own expense, use any employees or subcontractors as Company deems necessary to perform the services required of Company by this Agreement. Fire Department may not control, direct, or supervise Company's employees or subcontractors in the performance of those services. 3.4. Qualifications: Company represents that it is qualified and has the skills necessary to perform the services under this Agreement in a competent and professional manner, without the advice or direction of Fire Department. 3.5. Ownership Interest: Company will have no ownership interest in Fire Department. 3.6. No Benefit Contributions: Company shall have no obligation under this Agreement to compensate or pay applicable taxes or provide employee benefits of any kind to any person employed or retained by Fire Department. 3.7. Attorney -in -Fact: Fire Department appoints Company as Fire Department's attorney -in -fact for the following purposes: (a) Billing and Collections: To bill and collect ("Collections") all revenue earned by and due to Fire Department, in connection with Fire Department's provision of emergency services provided/rendered at the sites of motor vehicle incidents and other emergency incidents, and to receive all Collections on Fire Department's behalf and to sue for and give satisfaction for monies due on account and to withdraw any claims, suits, or proceedings pertaining to or arising out of Company's or Fire Department's right to collect such amounts; and (b) Endorsement: To take possession of and endorse in Fire Department's name any notes, checks, money orders, and any other instruments received as Collections. ARTICLE 4 GENERAL RESPONSIBILITIES OF COMPANY 4.1. Minimum Amount of Service: Company agrees to devote as much time and attention to the performance of the Company Services under this Agreement as may be, in 0) Company's sole discretion, required to accomplish the tasks described herein to accomplish the results for which the Company is responsible under this Agreement. 4.2. CompanV Services: Company agrees to perform the Company Services as set forth in the "List of Company Services" attached hereto as Schedule "A" and incorporated herein by reference; including those additional services requested by Fire Department and accepted in writing by the Company during the term of this Agreement. 4.3. Non -Exclusive Relationship: Company may represent, perform services for, and contract with as many additional clients, persons, or companies as Company, in Company's sole discretion, sees fit. 4.4. Time and Place of Performing Work: Company may perform the services under this Agreement at any suitable time and location Company chooses. 4.5. Materials and Equipmen : Company will supply all materials and equipment required to perform the services under this Agreement. 4.6. Workers' Compensation: Company agrees to provide workers' compensation insurance for Company and Company's employees and agents and agrees to hold harmless and indemnify Fire Department for any and all claims arising out of any injury, disability, or death of any of Company's employees or agents. 4.7� Assignmen : Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Company without the prior written consent of Fire Department, which consent shall not be unreasonably withheld. ARTICLE 5 COMPENSATION OF COMPANY 5.1. Compensation for Company Services: All Company Services provided pursuant to this Agreement will be provided in accordance with the terms, including compensation amounts and schedule of remittance, set forth in the "List of Company Services," attached hereto as Schedule A. 5.2. The provisions of Article I I of this Agreement will govern any dispute associated with compensation. ARTICLE 6 OBLIGATIONS OF FIRE DEPARTMENT 6.1. Cooperation of Fire Department: The Fire Department agrees to comply with all reasonable requests of Company and provide access to all documents reasonably necessary to the performance of Company's duties under this Agreement. The Fire Department shall be responsible for initially insuring, and continuing to review, local and state laws in the Fire Department's jurisdiction to assure adequate legal authority for Company to engage in the Services described herein on behalf of Fire Department. 6.2. Assignment: Neither this Agreement nor any duties or obligations under this Agreement may be assigned by Fire Department without the prior written consent of Company, which consent shall not be unreasonably withheld. ARTICLE 7 FIRE DEPARTMENT AUTHORIZATION 7.1. Authorization: Notwithstanding other provisions of this Agreement, Company shall obtain authorization from Fire Department prior to performing any of the following: (a) The sale conveyance, transfer, pledge exchange, assignment, hypothecation, or encumbrance of Fire Department's interest in any sums owed to Fire Department; and (b) All other limitations as stated by the terms of this Agreement. ARTICLE 8 TERMINATION OF AGREEMENT 8.1. Termination on Notice: Notwithstanding any other provision of this Agreement, either party may terminate this Agreement at any time by giving thirty days (30) written notice to the other party. Unless earlier terminated as set forth below, this Agreement shall be effective as of the date first set out above and shall continue for a period of one (1) year thereafter. This Agreement shall automatically renew for successive one (1) year periods, unless either party provides written notification to the other party of its decision not to renew this Agreement. 8.2. Termination an Occurrence of Stated Events: This Agreement will terminate automatically on the occurrence of any of the following events; (a) Bankruptcy or insolvency of either party; (b) The assignment of this Agreement by either party without the consent of the other party; the parties agree that neither party will unreasonably withhold consent to such an assignment. 8.3. Termination for Default: If either party defaults in the performance of this Agreement or materially breaches any of its provisions, the non -breaching party may terminate this Agreement by giving written notification to the breaching party. Termination will take effect immediately on receipt of notice by the breaching party or five days (5) after mailing of notice, whichever occurs first. For the purposes of this paragraph, material breach of this Agreement includes but is not limited to, the following: (a) Company's failure to complete the services specified in the Description of Services; (b) Fire Department's material breach of any representation, warranty or agreement contained in this Agreement; (c) Company's material breach of any representation, warranty or agreement contained in this Agreement; 4 (d) Fire Department's yearly billable run volume is at or below six runs (6). ARTICLE 9 PROPRIETARY RIGHTS 9.1. Confidential Information: Any written, printed, graphic, or electronically or magnetically recorded information furnished by Fire Department for Company's use are the sole property of Fire Department. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning the Fire Department's employees, products, services, prices, operations, and subsidiaries. Company will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with the Fire Department's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to Company's employees, agents, and subcontractors. On termination of this Agreement, Company will return any confidential information in Company's possession to fire Department. 9.2 Confidential Information: Any written, printed, graphic, electronically or magnetically recorded information, computer -based hardware, software, applications, software scripts, or software links furnished by Company for Fire Department's use are the sole property of Company. This proprietary information includes, but is not limited to, customer requirements, customer lists, marketing information, and information concerning the Company's employees, products, services, prices, operations, and subsidiaries. Fire Department will keep this confidential information in the strictest confidence, and will not disclose it by any means to any person except with the Company's approval, and only to the extent necessary to perform the services under this Agreement. This prohibition also applies to Fire Department's employees, agents, and subcontractors. On termination of this Agreement, Fire Department will return any confidential information in Fire Department's possession to Company. ARTICLE 10 INDEMNIFICATION 10.1. Indemnification: To the extent permitted by applicable law, the Company will, defend, indemnify and hold the Fire Department harmless from and against any and all loss, damage, liability, claims and/or injury resulting from all negligent actions performed by the Company, or its agents on the Company's behalf, in connection with this Agreement. However, this indemnification shall not apply with respect to any legal cause, action or consequential liability or losses as a result from inaccurate or incomplete information or unfounded or unreasonable submissions furnished to the Company by the Fire Department nor shall it apply to any act, omission or negligence of the Fire Department. ARTICLE 11 GENERAL PROVISIONS 11.1. Governing Law: This Agreement shall be governed in all respects by the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction that would cause the application of the laws of any jurisdiction other that the State of Texas). 11.2. Entire Agreement: This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understanding of the parties. 11.3. Successors and Assigns: Except as otherwise provided herein, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs, executors and administrators of the parties hereto. No party may assign any of its rights or obligations hereunder without the express written consent of the other party hereto, which consent may not be unreasonably withheld; provided, however, any party may assign any and all of its rights and interests hereunder to one or more of its affiliates and designate one or more of its affiliates to perform its obligations hereunder; provided, however, that such party remains liable for full and total performance of its obligations hereunder. 11.4. Notices: Any notices authorized to be given hereunder shall be in writing and deemed given, if delivered personally or by overnight courier, on the date of delivery, if a Business Day, or if not a business day, on the first Business Day following delivery, or if mailed, three days after mailing by registered or certified mail, return receipt requested, and in each case, addressed, as follows: If to the Company to: Fire Recovery USA, LLC 2271 Lava Ridge Court, Suite 120 Roseville CA 95661 Attention: Craig Nagler If to Fire Department to: City of Anna I 11 N. Powell Pkwy Anna, TX 75409 Attention: City Manager with a copy to: The Watkins Firm, APC 4275 Executive Square, Suite 1020 La Jolla, CA 92037 Attention: Chris Popov, Esq. with a copy to: Wolfe Tidwell & McCoy, LLP 2591 Dallas Pkwy, STE 300 Frisco, TX 75034 Attention: Clark McCoy 11.5. Waiver; Amendments: This Agreement, and the Transaction Documents, (i) set forth the entire agreement of the parties respecting the subject matter hereof, (ii) supersede any prior and contemporaneous understandings, agreements, or representations by or among the parties, written or oral, to the extent they related in any way to the subject matter hereof, and (iii) may not be amended orally, and no right or obligation of any party may be altered, except as expressly set forth in a writing signed by such party. 11.6. Counterparts: This Agreement may be signed in several counterparts. 11.7. Expenses: Each party shall bear its own expenses incurred with respect to the preparation of this Agreement and the consummation of the transactions contemplated hereby. 11.8 Cooperative Purchases: This Agreement may be used by other government agencies. Company has agreed to offer similar serves to other agencies under the same or similar terms and conditions as stated herein except that the revenue share percentage (Compensation) may be negotiated between the Company and other agencies based on the specific revenue expectations, agency reimbursed costs, and other agency requirements. The City/County/or Fire Department/Protection District will in no way whatsoever incur any liability in relation to specifications, delivery, payment, or any other aspect of purchase by other agencies. Signatures on following page: IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above. COMPANY: FIRE RECOVERY USA, LLC. a California limited liability company By: Name: M. Craig Nagler Title: Manager FIRE DEPARTMENT: City of Anna Name: Kenneth Jenks Title, Assistant City Manager Name: M. Craig Nagler Title: Manager FIRE DEPARTMENT: City of Anna Name: Kenneth Jenks Title, Assistant City Manager SCHEDULE A LIST OF COMPANY SERVICES Fire Recovery USA agrees to bill the responsible party on the Fire Department's behalf for services provided/rendered during motor vehicle incidents and other emergency incidents. The billing rates (mitigation fees) are listed as EXHIBIT A, but may change over time. Fire Department will provide notice to Fire Recovery USA of changes in billing rates. 2. Fire Recovery USA will provide, as a normal matter of business; entry of claims and submission to the responsible party, collections of monies deemed due to the Fire Department, payments of the agreed upon percentage of said monies to Fire Department, and reporting of progress. 3. Fire Recovery agrees to bill to the best of its ability all claims provided to Fire Recovery USA by the Fire Department. 4. Fire Recovery USA will not begin litigation against a person, entity, or insurance carrier without prior written approval by the Fire Department. 5. Fire Recovery USA agrees to reimburse Fire Department a portion of the monies collected at a rate of 80 percent of the total monies collected on the Fire Department's claims. 6. Fire Recovery USA agrees to pay these monies collected to the Fire Department on a monthly basis, within seven (7) working days after the close and accounting of the monthly billing cycle. 7. Fire Recovery USA agrees to make available reports via a password protected website to the Fire Department which detail billable claims outstanding (which are claims submitted, but not yet completed) and claims completed in the prior billing cycle. 8. Fire Recovery USA will not be responsible for, nor accept any liability for, any erroneous, invalid, or illegal procedure codes or claims submitted to Fire Recovery USA by the Fire Department on the Run Sheets. Exhibit A The following fees shall be assessed and collected for the use of apparatus, tools, equipment, and materials: ITEMS TO BE BILLED PER HOUR: "The minimum usage charge for any item on this list is one hour, and for any additional hours or portion thereof, the charge will be prorated accordingly. Unit of Measure Apparatus Price per Hour Per Engine Class A Engine $500.00 Per Aerial Aerial $500.00 Per Rescue Unit Rescue $400.00 Per Brush Truck Brush Truck $400.00 Per Command unit Command Car /Truck $200.00 Per Support Vehicle Utility /Support $100.00 Per P.P.V. fan P.P.V. fan $55.00 Per Generator Generator - portable $55.00 Per Saw Chain saw $45.00 Per Pump Portable Pump $95.00 Per Pump Floating $65.00 FIRE EQUIPMENT: Tool Price unit of measure Foam Nozzle $55.00 Per Incident Foam Eductor $50.00 Per Incident AFFF Foam $40.00 Per Gallon Class A Foam $25.00 Per Gallon Piercing Nozzle $40.00 Per Incident M/S Fog Nozzle $55.00 Per Incident M/S Straight Bore Nozzle $30.00 Per Incident Salvage Cover $28.00 Each Used SCBA Pack $85.00 Each Used Hall Runner $18.00 Per Incident Portable Tank $75.00 Per Incident Water Extinguisher $22.00 Per Incident Dry Chemical Extinguisher $45.00 Per Incident CO2 Extinguisher $45.00 Per Incident Scene Lights $22.00 Each Used Water Vest $30.00 Each Used Thermal Imaging Camera $75.00 Per Incident Heat Detection Gun $75.00 Per Incident Sawzall $55.00 Per Incident RESCUE EQUIPMENT Tool Price Unit of Measurement Spreaders $250.00 Per Incident Cutters $250.00 Per Incident Rams ��N 2 Per Incident Air Bags $�5NOO Per Incident Rescue Jacks $250.00 Per Incident K-12 Saw $55.00 Per Incident Target Saw $55.00 Per Incident Ajax Tool Per Incident K-Tool $25.00 Per Incident Windshie To $15.00 Per Incident Rescue Blaonkeot' $32.00 Each Used Rope $25.00 Each Used HAZARDOUS MATERIAL EQUIPMENT: Supplies / Service Price Unit of Measurement Absorbent $17.00 PerBag Absorbent Booms $40.00 Each Used Top Sol $35.00 Each Used Disposal Coveralls $30.00 Each Used Neoprene Gloves $20.00 Each pair Used Latex Gloves $6.00 Each pair Used Over Boots $25.00 Each Used Disposable Goggles $15.00 Each Used Gas Plug Kit $50.00 Each Used Pig & Dike $65.00 Each Used Drum Liners $10.00 Each Used Barricade Tape $22.00 Each Used Poly Sheeting $55.00 Each Used Removal of Hazardous Material $150.00 Per Incident Disposal of Hazardous Material $150.00 Per Incident Multi Gas Detector $65.00 Per Incident CO2 Meter $65.00 Per Incident Terrazyme $70.00 Each Used Micro blaze $10.00 Per Quart Micro Blaze $150.00 Per 5 gallons Collision Investigation Fee of two hundred seventy -f lve dollars ($275.00) to be charged in responses where no mitigation services, debris removal, or rescue services are performed.