AGREEMENT
Final 2/23/09This Agreement between Missoula Emergency Services (hereafter referred to as the Contractor), 1200 Burlington Ave., Missoula, Montana and the City of Missoula (hereafter referred to as the City), 435 Ryman St, Missoula, Montana, shall be for 911 emergency ambulance services within the incorporated limits of the City of Missoula.
I. Term of Agreement
The term of this Agreement shall be for a period of five (5) years commencing {month/day}, 2009 and ending at midnight on {month/day}, 2014. This agreement shall be renewed by the city council every five years for a consecutive five (5) year term unless either party provides the other with written notice of their intent to renegotiate or discontinue the Agreement at least one hundred eighty (180) days prior to expiration.
If either party chooses to renegotiate the Agreement and the Contractor has met or exceeded the minimum requirements of the current Agreement without being in a Major Breach as defined in Section XII of this Agreement, the parties agree to negotiate in good faith and enter into subsequent agreements as mutually agreed upon by both parties. If no agreement has been reached between the parties upon the expiration of the current agreement, the city council, after the status of negotiations has been reviewed in committee, will determine if negotiations should continue or if other options for the provision of ambulance services will be pursued.
II. Contract Administration
Pursuant to the statutory duties of the mayor to administer the affairs of city government, supervise the discharge of official duty by city employees and carry out the policies established by the city council, the mayor shall be responsible for administering the performance contract, except for those policy function determinations expressly reserved to the city council within the provisions of the performance contract.
III. Medical Direction
The Contractor’s Medical Director has the exclusive authority to develop medical standards, protocols, and guidelines to assure that an effective level of emergency medical care is maintained and shall provide medical control over the Contractor’s EMS personnel pursuant to their EMS licensures, certifications, and endorsements in accordance with rules and policies promulgated by the State Board of Medical Examiners and in compliance with applicable federal and state laws.
IV. Incident Command & Authority
With exception of patient medical care issues within the scope and authority of the Contractor’s Medical Director, the Contractor shall operate within the Incident Command System (ICS) and under the direction of the Authority Having Jurisdiction (AHJ) on all emergency incidents. The Contractor shall respond when requested, perform functions as assigned, and operate as directed by the Incident Commander (IC) or designee within the command structure.
V. Cooperation
In order to promote cooperation, communication, and effective conflict resolution, both parties agree to maintain on-going dialog and to meet and confer in a timely manner upon request by either party.
The Contractor and Contract Administrator agree to work together to resolve any conflicts related to this contract at the lowest level possible. However, this does not waive Contractor’s right to appeal any unresolved issues to the city council.
VI. Conditions and Performance Requirements
A. General
The Contractor shall possess a current city business license and be licensed by the State of Montana to provide emergency medical services at the advanced life support (ALS) level.
The Contractor shall comply with all rules and regulations governing emergency medical services and emergency medical technicians as promulgated by the State of Montana and the Board of Medical Examiners as contained in the Administrative Rules of Montana.
The Contractor shall not deny such services to any patient due to their financial status or ability to pay.
The Contractor shall, after receiving a direct call for emergent ambulance transport, notify the fire department to advise them of the private request call and the Contractor shall request fire department dispatch via the Missoula County 911 Center if needed. The Contractor shall respond Code 3 in the city only when the nature of the call warrants such response.
B. Staffing & Deployment
The Contractor shall staff and deploy within the city a minimum of two ambulancesat the advanced life support level (ALS) twenty-four (24) hours per day, seven (7) days per week, three hundred sixty five (365) days per year. The Contractor will also deploy a third ALS ambulance Sunday through Thursday 6am to 10pm, and Friday and Saturday 24 hours per day, 52 weeks per year. Contractor will also provide at least one (1) on call ambulance twelve (12) hours per day, Sunday through Saturday. Contractors staffing and deployment, as described above, is for all ambulance services that they provide in the city, county and the surrounding area.
By 0900 hours each day, the Contractor shall provide a daily staffing and deployment report to the fire department listing the staffed ambulance units, the hours of day that each unit is scheduled to be staffed, the base location of each unit, along with the names and EMT endorsement level of personnel assigned to each unit.
The Contractor shall keep the City informed of any planned or anticipated changes in staffing and deployment resulting in a reduction of on-duty personnel and/or staffed ambulance units available.
The Contractor shall have a policy and procedure in place for the emergency recall of off-duty personnel.
C. Employee Training
The Contractor shall have a policy addressing employee driving standards. At a minimum, this policy shall include acceptable driving record criteria, initial and annual driver’s license check, employee responsibility to report all changes to driving record, requirements to achieve and maintain driving privileges, and emergency and non-emergency vehicle operation standards and training.
All of the Contractor’s field employees shall have awareness level Hazardous Materials and Incident Command System (ICS) or National Incident Management System (NIMS) training within one year of entering into this Agreement or within one year of hire.
All of the contractor’s motor vehicle operators shall possess a valid Montana driver’s license.
D. Equipment and Supplies
All ambulances used under this Agreement shall be in good working order and meet or exceed the equipment standards of the State of Montana.
The Contractor shall furnish, operate, maintain and replace, as necessary, any and all items of equipment, apparatus and supplies, whether real, personal, or otherwise, necessary to fulfill its obligations under the Agreement. The Contractor shall furnish, maintain, and provide medical equipment and supplies on board all ambulances according to EMS State Service Licensure.
The Contractor shall maintain, and provide to the Contract Administrator, a complete listing of all ambulances (including reserve ambulances) to be used in the performance of this Agreement, including their license and vehicle identification numbers, and the name and address of the lien holder, if any. Changes in the lien holder, as well as the transfer of ownership, purchase, or sale of ambulances used under this agreement shall be reported to the Contract Administrator.
E. Provision and Replacement of Fire Department Medical Supplies
The Contractor shall provide the fire department oxygen and replace fire department medical supplies used on EMS responses where both the fire department and Contractor respond. Supplies should be replaced in the field at the time of service whenever
possible. For items not replaced in the field, the fire department shall periodically submit to the Contractor a list of the items to be replaced by the Contractor.
F. Communications Equipment
The Contractor shall ensure that each ambulance is equipped with appropriate
emergency communication and alerting devices in accordance with State requirements. Every ambulance shall include the ability to communicate with 911, area Hospitals, the fire department, and other public safety agencies. Contractor shall ensure that each ambulance utilized in the performance of this Agreement is equipped with:
ď‚· Emergency alerting devices capable of being used to notify ambulance personnel of response needs.
ď‚· Radio communications equipment compatible with 911 communications equipment sufficient to meet or exceed the requirements of City or Missoula County 911 Center policies and procedures.
G. Response Time
The Contractor shall provide adequate personnel, vehicles, equipment and facilities to maintain a Code 3 response time of nine (9) minutes or less on at least ninety percent (90%) of calls within the corporate limits of the city. Ambulance response time shall be assessed on a monthly basis and calculated as the actual elapsed time in minutes and seconds from the time the call is received by the Contractor to the moment the first capable Contractor’s unit arrives at the scene of the incident. Where multiple
ambulances are dispatched to the same emergency incident, only the response time of the first ambulance to arrive at the scene shall be considered.
The Contractor must not fail to comply with the response time performance requirements for three consecutive months or for any four months in a calendar year.
The Contractor shall not exceed the posted speed limit by more than ten (10) miles per hour.
The Contractor shall not reduce the level of service in areas served by the Contractor outside the corporate limits of the city in order to meet the response time performance requirement.
The Contractor shall be exempted from the response time performance requirements in the following circumstances;
1. Failure by the 911 dispatcher to give accurate location information (including address or cross street) to responding units;
2. Weather conditions which impair visibility or create unsafe driving conditions; 3. Call in which the response code is reduced from Code 3 by dispatch or first
responder during the time the ambulance unit is en-route to the dispatched location;
4. Wrong address provided by the requesting party;
5. Unavoidable delay caused by unreported road construction;
6. Material change in dispatch location after the initial dispatch is recorded as dispatched.
7. No time recorded by dispatch.
8. Responses to areas where there is limited or no access by road.
Exceptions shall be for good cause only, as determined by the Contract Administrator.
The burden of proof that there is good cause for an exemption shall rest with the Contractor, and the Contractor must have acted in good faith. The alleged good cause must have been a substantial factor in producing the excessive response time.
Exemptions shall be considered on a case-by-case basis.
The Contractor shall provide the Contract Administrator a monthly report by the last day of the following month, listing code 3 responses, response times, exceptions to response times, and response time percentile.
H. Reports, Records and Right to Inspect
The Contractor shall complete appropriate documentation and pre-hospital care reports according to State and local EMS policies.
The Contractor shall provide to the Contract Administrator all records and information required under this Agreement, as listed below:
1) Daily staffing and deployment reports (Section VI B)
2) Annual employee Driving, Hazmat, and ICS/NIMS training reports (Section VI C)
3) Annual ambulance fleet list including lien holders, if any (Section VI D) 4) Annual Contractor’s ambulance equipment inventory (Section VI D) 5) Monthly response time report (Section VI G)
6) Annually provide an agreed upon procedures engagement letter from an independent certified public accounting firm complying with GAAP standards (Section VI H)
7) Performance security (Section VII A)
9) Insurance certificate (Section XI)
The Contractor shall retain records pertinent to this Agreement for a period of not less than three (3) years after termination of this Agreement. All accounting records shall be kept in accordance with general accepted accounting practices. Annually the Contractor shall submit to the Contract Administrator an “Agreed upon Procedures Engagement” Letter from an independent certified public accounting firm complying with GAAP standards.
With reasonable notice, the Contract Administrator may directly observe and inspect the Contractor’s facilities, ambulances, and operation including riding along as “third person” on any of the Contractor’s ambulance units.
VII. Performance Security and Fees
A. Performance Security
Prior to the commencement of operations under the terms and conditions of this Agreement, Contractor shall obtain and maintain throughout the term of the Agreement a “performance security” in the amount of $250,000.00. Only in the event that the Contractor terminates the Agreement during the term of the Agreement or commits a Major Breach, as defined in section XII of this Agreement, and the contractor has been given written notice and reasonable
opportunity to correct such deficiency, as defined in Sections XIII and XV of this agreement, shall the contractor be required to pay the performance security to the City. The contractor shall be able to obtain and maintain Performance Securities in one of the following methods reasonably acceptable to the City.
Such performance security shall be in the form of: 1. Cash; or
2. An irrevocable letter of credit issued by a financial institution rated at least “A” by Moody’s or Standard and Poor’s in a form reasonably acceptable to the City; or 3. An irrevocable guaranty issued by an entity rated at least “A” by Moody’s or
Standard and Poor’s in a form reasonably acceptable to the City; or
4. A surety bond issued by an insurance company rated at least ”A” by Moody’s, Standard and Poor’s or A.M. Best in a form reasonably acceptable to City; or 5. Such other forms of security, or a combination of the above methods, that is
reasonably acceptable to the City.
6. The irrevocable letter of credit, irrevocable guaranty, or surety bond furnished by the Contractor in fulfillment of this requirement shall provide that such letter of credit, guaranty, or bond shall not be cancelled for any reason except upon thirty (30) calendar days written notice to the City of the intention to cancel said letter of credit, guarantee or bond. The Contractor shall, not later than twenty (20) days following the commencement of the thirty-day notice period, provide the City with replacement security in a form acceptable to the City. In the event that the guarantor/surety is placed into liquidation or conservatorship proceedings, Contractor shall provide replacement security reasonably acceptable to the City within twenty (20) days of such occurrence.
VIII. Amendments
The City or the Contractor may request amendment of the provisions of this agreement. To be valid all such amendments must be made in writing and signed by both parties. This written Agreement is the entire Agreement between the parties. Verbal understandings or practices, which may arise during the course of this Agreement, shall not be binding upon either party unless defined in a signed, written supplement to this Agreement.
IX. Non-discrimination and Affirmative Action
The Contractor agrees that any and all hiring, contracting and bid letting by them related to this Agreement shall be on the basis of merit and qualifications and there shall be no discrimination on the basis of race, color, creed, religion, political ideas, gender, age, marital or familial status, sexual preference, physical and mental handicap, national origin or ancestry by persons
performing this contract. Qualifications mean such abilities as are genuinely related to competent performance of the particular task.
Contractors, subcontractors, sub-grantees and other firms doing business with the City or any agency connected with the City must be in compliance with the City’s Affirmative Action Plan and Title 49, M.C.A., or forfeit the right to continue such business dealings.
X. Evidence of Worker’s Compensation Coverage
The Contractor hereby certifies that the Contractor is covered by a Workers Compensation insurance program with the State of Montana, a private insurance carrier, or an approved self-insurance plan in accordance with Montana State law and that the City of Missoula is not liable for the Contractor’s workers compensation insurance or claims. The Contractor shall provide evidence of such coverage to the City prior to the City’s validation of the Agreement.
XI. Liability
The Contractor and the City hereby agree to indemnify and hold harmless each other, their respective subsidiaries and affiliates, their respective directors, officers, employees, and agents from and against third party claims, including costs and attorney’s fees and disbursements, caused by negligence, willful act or omission of or breach of this Agreement in proportion to their respective degree of fault in respect of such claims.
The Contractor hereby certifies that it has and shall maintain during the time period of the Agreement, commercial general liability insurance policy, including automobile coverage, in a form acceptable to the City, of not less than $2,000,000 per occurrence for bodily injury or death, and $2,000,000 per occurrence for loss or damage to property; and $4,000,000 aggregate and Professional Liability insurance policy of not less than $2,000,000 per occurrence and $4,000,000 aggregate.
All policies of insurance required in this Agreement shall be issued by insurance companies licensed to do business in the State of Montana. Proof of coverage shall be evidenced by submitting an insurance certificate, or certificates, to the City, which names the City as an additional insured and indicates that the City will be notified no less than thirty (30) days prior to alteration, cancellation, termination, or non-renewal of coverage.
XII. Termination During Term of Agreement
The city council may terminate this Agreement for cause for Major Breach consistent with the provisions herein. Contractor shall have at least thirty (30) days or as otherwise mutually agreed from receipt of written notice of breach to cure such failure.
“Major Breach” shall include,
2. Exclusion of the Contractor from Medicare and/or Medicaid program; 3. Filing of bankruptcy by the Contractor;
4. Cessation of emergency ambulance services by the Contractor within the city during term of the Agreement or if the Contractor fails to provide written notice to the city, at least one hundred eighty (180) days prior to expiration of the Agreement, that Contractor will be discontinuing ambulance services in the city; 5. Failure to maintain in force throughout the term of this Agreement, including any
extensions thereof, the insurance coverage or performance security required herein;
6. Chronic or persistent failure to comply with conditions stipulated by the City to correct any “Minor Breach” conditions as determined by the city council. “Minor Breaches” shall be defined as failure to fulfill any of the terms and conditions of this Agreement for which failures are not already provided for and which failures do not amount to a Major Breach of this Agreement, as that term is defined above. Before such Minor Breaches are imposed, Contractor shall be given notice by certified mail or hand delivery, of the alleged breach and at least thirty (30) calendar days, or as otherwise mutually agreed, to cure the breach.
XIII Declaration of Major Breach and Takeover or Replacement Service
If the city council determines that a Major Breach has occurred and the Contractor has failed to correct the deficiency after being given written notice and at least thirty (30) calendar days to correct such deficiency, the Contractor shall cooperate completely and immediately with the City to effect a prompt and orderly takeover or replacement of Contractor’s operations within the city. In the event of takeover/replacement of services and if requested by the City, the Contractor shall lease up to three fully equipped ambulances to the City, for a term not to exceed 180 days at fair market value. However, during the City’s takeover of the ambulances and equipment, the City and the Contractor will be considered lessee and owner, respectively.
Takeover shall not be construed as acceptance by Contractor of the finding of Major Breach, and shall not in any way jeopardize Contractor’s right to recover any and all damages, including reimbursement of the performance security and any other costs or other expenses incurred as a result of the takeover or replacement should a court later determine that the declaration of Major Breach was in error.
XIV. Force Majeure
Contractor shall not be liable to the City for delays in performing the services contemplated under this agreement or for the indirect cost resulting from such delays that may result from riots, war, strike, extraordinary weather conditions or other natural catastrophe, or any other cause beyond the reasonable control or contemplation of either party.
XV. Hearing Required
The city council shall not terminate the Agreement without:
First having given the Contractor reasonable opportunity to correct any breach or deficiency as provided for in this Agreement.
Delivery to the Contractor a written statement of the grounds for termination and the charge involved.
An opportunity for the Contractor to answer questions before the city council in a public meeting and demonstrate why they think the agreement should not be terminated.
XVI. Notices
Any and all notices to the City shall be sent to: Mayor John Engen
435 Ryman Street
Missoula, Montana 59802
Any and all notices to the Contractor shall be sent to: Don Whalen, Manager
Missoula Emergency Services 1200 Burlington Avenue Missoula, Montana 59801 &
David Kuhn, President
Missoula Emergency Services 2880 North 55 West
Idaho Falls, Idaho 83402 Severability
In the event that any one or more of the provisions contained in this Agreement shall for any reason be deemed illegal or otherwise unenforceable by any Federal or State statute or regulation or held by any court or by the Office of Inspector General (OIG) of the United States Department of Health and Human Services to be invalid, illegal, or unenforceability in any respect, such invalidity, illegality, or unenforceable shall not affect any other provisions and the Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the day and year in this certificate first herein above written
_________________________________ ________________________________ David Kuhn, President John Engen, Mayor
APPROVED AS TO FORM: Jim Nugent, City Attorney
STATE OF MONTANA ) ) SS County of Missoula )
On this ____________day of_________________, 2009, before me the undersigned, a Notary Public for the State of Montana, personally appeared Mayor John Engen of City of Missoula known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal, the day and year first above written.
Notary Public for the State of Montana
(NOTARIAL SEAL) Residing at Missoula, Montana
My Commission Expires __________ STATE OF MONTANA )
) SS County of Missoula )
On this ____________day of_________________, 2009, before me the undersigned, a Notary Public for the State of _______________, personally appeared Dave Kuhn, known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my Notarial Seal, the day and year first above written.
Notary Public for the State of Montana
(NOTARIAL SEAL) Residing at Missoula, Montana
My Commission Expires __________
STATE OF MONTANA ) )SS County of Missoula
