Loading...
HomeMy WebLinkAboutC-3570 - Emergency Information Demonstration Project - medical information and family notification program for use by fire agenciesACULERT EMERGENCY INFORMATION AND SAFETY NETWORK AGREEMENT . THIS Aculert Emergency Information and Safety Network Agreement ( "Agreement "), entered into this o ?YbL day of 2002, by and between CITY OF NEWPORT BEACH, a Municipal Corporation ,( "City"), and, ACULERT INTERNATIONAL CORPORATION (a corporation) whose address is 5150 E Pacific Coast Highway, #200, Long Beach, CA 90804, ( "Aculert"), is made with reference to the following: RECITALS WHEREAS, Aculert realizes and appreciates the importance of Newport Beach Fire Department ( "Department") and the services it provides to the community. Aculert has provided to City a proposal to improve the abilities of the Department and enhance the quality of the Department's emergency information systems operated by paramedic personnel employed by the Department. Under the terms of the proposal, Aculert has offered to provide an emergency information and safety network for the. Department in exchange for participating in a revenue sharing agreement where certain start-up and operational costs are discounted or waived ( "the Proposal "). WHEREAS, the emergency information and safety system, which is the subject of this Proposal; has been represented to have a total value of forty-nine thousand four - hundred twenty-six dollars ($49,426.00), of which a portion is to be derived from Aculert's 20% share of new Fire Medics revenue, and is comprised of three (3) hand -held wireless medical data terminals, three (3) wireless network licenses, establishment of Aculert accounts for existing Fire Medics subscribers, and the addition of 1,060 new Fire Medics individual subscribers. WHEREAS, the Proposal provides for the following value -added benefits to the Department: Child identification designed to provide information regarding missing or lost children; Patient contact information designed to allow firefighters to contact designated family members during emergency events; A digital treatment authorization release form designed to permit emergency medical personnel, to treat minor children during a parent's absence; 2 • Pre- registration of Fire Medic household members medical information designed to allow paramedics to provide fast and accurate treatment during routine and mass casualty events; • Implementation of these value -added services is designed to increase Fire Medics membership participation. WHEREAS, City is authorized under Article II, Section 200 of the City Charter to accept the Proposal and to enter into this Agreement. WHEREAS, the City of Newport Beach City Council "City Council' is required to approve the use of City seal for commercial purposes or for any purpose other than for City purposes. WHEREAS, City Council finds that the Proposal will be beneficial to the Department and the residents who use City emergency medical services. WHEREAS, City Council finds that the rights to be granted under the Proposal are appropriate and, due to benefits received, beneficial to City. IT IS THEREFORE AGREED, by and between the Parties as follows: 1. Approval. City hereby accepts the Proposal and makes it part of this Agreement. 2. Definitions. The following definitions shall apply general to the provisions of this Agreement: a. "Commencement date" shall mean the date this Agreement is approved by City Council. b. "Paramedic units" shall mean Newport Beach Medic 62 ( "NM62 "), Newport Beach Medic 63 ( "NM63 "), and Newport. Beach Medic 65 ( "NM65 "). C. "City, seal' shall mean official seal, colors and name of City and Department. d. "Aculert Products" shall mean preparation and delivery of direct mail marketing materials to Newport Beach residents, three (3) hand -held computer devices, three (3) Aculert network licenses, three (3) Bar -code Scanning devices, and membership Identification materials including membership cards and key tags for participating Fire Medics members. 3 0 3. Grant of Entitlements: Subject to the conditions set forth below, and as sole consideration for the Aculert Network, the City hereby grants to Aculert the following entitlements: a. The right to use the City seal in Aculert's promotional and publicity materials, including paid advertisements, but not limited to, news and editorial releases, subject to prior content, and design approval by the City Manager. b. The right to take photographs of the Department's rescue vehicles and to use those photographs in Aculert's promotional and publicity materials in paid advertisements, promotional materials, and news and editorial releases. c. City endorsement of the Aculert Network by the Department as approved at the discretion of the City Manager. d. The participation by the Departments personnel in interviews by trade and other publications concerning their experience with the. Aculert Network, upon request by Aculert and approval by the Fire Department's Chief. e. Availability of Department rescue units, when not in use, for media publicity. f. The right to use the City's seal under, the terms and conditions of this Agreement, provided, however, the use of the City s seal is limited to use in connection. with Aculert's products and does not .extend to any other products, goods or services. Use of the City's seal cannot be made without the written .approval of the City Manager. All such approvals requested. by Aculert shall not be unreasonably withheld by City. 4, Aculert's Obligations: a. Aculert agrees to submit to City all advertising, promotional television and radio commercials, or other display material to be used by Aculert. in connection with this Agreement which contains City's seal, mentions the Fire Department in any way, or depicts Fire Department personnel or equipment. Such material shall be submitted not less than fifteen (15) business days prior to their proposed release to the public. If Aculert does not receive written notice within fifteen (15) business days after City's receipt of said materials, said materials are deemed approved. . b. Aculert agrees that it will not cause City's seal or the name of the Department to be. used or exploited in any . manner contrary. to 5. public morals, or in any manner which violates prevailing standards of good taste or reflects unfavorably upon the good names, good will, good reputation, and wholesome image of City and Fire Department. c. This Agreement does not authorize the manufacture or sale by Aculert of any product not mentioned in this Agreement which bears, uses, or contains City's seal or name of the Department. If Aculert desires to manufacture or sell any such product bearing, using, or containing the City's seal or the name of City's Department, such use must first be negotiated by and between City and Aculert, and approved under a separate licensing agreement. Consideration: a. For the rights and benefits granted to Aculert herein, Aculert.agrees to deliver to City the following products, referred to collectively in this Agreement as the "Aculert Network ", within the following time periods: Phase 1: Aculert Products shall be delivered within thirty (30) days after the commencement date. ii. Phase 2: Establishment of Aculert accounts for all city employees, including part-time, full -time, and seasonal workers, and training of fire department personnel within forty -five (45) days after the commencement date. iii. Phase 3: Direct mail to all residential addresses provided to Aculert by City within the City of Newport Beach to inform citizens of the benefits of the Fire Medic Program. This phase will include separate mailings.to Newport Beach Fire Medic member and non - member households and will include activation of a maximum of 15,000 individual member accounts. Phase 3 will be initiated within ninety (90) days after the commencement date Aculert will deliver each system component in separate delivery phases as- provided above. If Aculert fails to install the Aculert Network as provided above, or the Aculert Network fails to perform satisfactorily, this Agreement may be terminated as provided in this Agreement. C. Set -up, direct mail, operational, and second year costs are delineated in Attachment 1 of this agreement. Thirty -nine thousand 5 two hundred and fifty dollars ($39,250) is required to establish services as described above. d. City agrees to pay Aculert, on a monthly basis, 20% of new Fire Medics revenue collected by the City twelve months from the Commencement date of this agreement. Payment shall be issued for each month by the fifteenth (15th) business day of the following month. Arrearages shall be subject to interest at a rate of 7% per annum. e. Aculert and City anticipate that the Aculert Network will assist the Department in its emergency operations. If the Aculert Network or any piece of the equipment within the Aculert Network interferes with Department operations or the operation of a fire department rescue unit and cannot be repaired and /or the interference stopped within twenty -four (24) hours of notification by City and /or Department, the equipment must be promptly removed by Aculert and replaced or repaired. f. City understands that this installation is intended to test the Aculert Network in actual use and to demonstrate its capabilities. Aculert will, at its sole cost and expense, for the term of this Agreement, repair or replace any and all parts of the Aculert Network found to be defective in manufacture or design. Aculert's obligation to repair or replace does not cover any loss or, damage to the Aculert Network or any of its components caused by City's employees which is caused by factors otherwise outside.of Aculert's control. g. The Aculert medical data terminals are the property of City, and may be returned during the initial term in good condition to Aculert at any time during the term of this Agreement for a full and complete refund. h. Aculert understands and agrees to protect, keep and maintain as confidential the medical information received from third parties. 6. Term and Extension of Rights: a. This Agreement shall have an initial term of two (2) years from the Commencement date, unless terminated earlier as provided in this Agreement. City shall have the option to extend the term of this Agreement for an additional one (1) year immediately following the initial term, by giving written notice to Aculert of City's intention to extend the Agreement at least sixty (60) days prior to the expiration of the initial term. 6 • 7. Indemnification: 0 a. Aculert agrees to indemnify, defend, and hold harmless City, its officers, employees, agents and representatives from and against any, and all claims, demands, obligations, causes of actions and liens, liabilities, fines, judgment costs (including settlement costs), and expenses associated therewith, arising out of, or related to (1) Aculert's use of City's seal or the name of Fire Department authorized by this Agreement; (2) any claim of false or deceptive advertising resulting from, arising out of or related to Aculerrs use of City's seal in advertising or promotional materials. b. Aculert shall indemnify, defend and hold City, its officers, agents and employees, harmless against all liability for illegal competition and /or illegal trade practices, and/or patent infringement, which is based on the rights granted by City to .Aculert pursuant to this Agreement. G. Aculert shall indemnify, defend and hold City, it officers, agents and employees harmless from and against any and all claims,, demands, obligations, causes of action and lien, liabilities, fines, judgment costs and expenses associated'therewith, arising out of, connected to or with or related to the collection and input of medical information from participating members,. and for the maintenance, repair, upkeep and or service of all hardware and software used to provide or transmit medical information to City. d. City agrees to indemnify,, defend and hold harmless Aculert, its divisions and subsidiaries, and its officers, directors, agents and employees, from and against any and all claims, demands, obligations, causes of action, liens, liabilities, fines, judgments, costs (including settlement costs) and expenses associated therewith arising out of City s and /or Department's negligent (or alleged negligent) provision or non - provision of services in connection with this Agreement. Except for provisions of this paragraph 7 to the contrary, City assumes all liability and risks of loss or damage to the rescue vehicles and equipment and for all other risks and liabilities arising from the negligent (or alleged negligent) use, operation maintenance, possession or storage of the rescue vehicles. 8. Default and Termination: a. The Parties agree that, without prejudice to any other rights available to them at law or pursuant to this Agreement, a party shall be deemed to be in default ( "breaching party"), and the other party 7 0 0 ( "non- breaching party ") shall have the right to terminate this Agreement if: i. Breaching party shall fail to perform its obligations under this Agreement after thirty (30) days written notice, except if such failure to perform is due to fire, earthquake, labor dispute, or other events beyond the reasonable control of the breaching party, in which cases the non - breaching party shall extend the time in which the breaching party may meet its obligations, the length of time for such extensions to be determined solely by the non - breaching party; or ii. A party shall become bankrupt or insolvent, or enters into liquidation, or has a receiver appointed, and is prevented . from fulfilling its obligations in full as a result thereof.. b. In the event of temnination or upon expiration of this Agreement, Aculert shall immediately cease all use of the City's seal and the name of Department, unless City's seal and /or the name. of Department have been placed in media but in no event longer than one hundred twenty (120) days. 9. Waiver: Failure by either party at any time to require immediate performance by the other party of any provision under this Agreement shall in no way, affect the right to require full performance any time thereafter; nor shall the waiver by either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision, nor shall such constitute a waiver of any portion the provision itself. 10. Notices: Any notice required or permitted to be given by either party under or in connection with this Agreement shall be in writing and shall be deemed duly given when personally delivered, sent by registered or certified mail return receipt requested, postage prepaid, or properly transmitted by facsimile. Aculert shall designate an agent and maintain an address within California as the address to which such notice shall be given. The addresses for such notice are: 11 12. 13 • CITY /DEPARTMENT: Fire Chief Fire Department 3300 Newport Blvd. Newport Beach, CA, 92663 (949) 644 -3101 FAX (949) 644 -3388 ACULERT: President 5150 E Pacific Coast Highway, 200 Long Beach, CA 90804 (562)432 -9833. FAX (888) 726 -564 Asslanment• A Aculert shall not.transfer or assign its rights nor delegate its obligations under this Agreement to a third party without the prior written approval of City. Any unauthorized transferor assignment shall be null and void. Compliance with Law: Each party will perform its obligations under this Agreement in compliance with all applicable laws, orders, and regulations of all appropriate jurisdictions. Severability of Provisions: Should any provision(s) of this Agreement be declared void,`the validity, of the remainder of this Agreement will not be affected and will remain in full force and effect. 14. Insurance: Without limiting Aculert's indemnification of City, and prior to commencement of the system, Aculert shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and .must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies shall add City, its elected officials, officers, agents, representatives, employees and authorized volunteers as additional insured for all liability arising from Aculert's services as described herein. 0 0 Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned ,Best's A -VII or better rating: A. Commercial general liability insurance, including additional insured and primary and non - contributory wording, covering third party liability . risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. B. Commercial auto liability and property insurance covering any owned and rented vehicles of Aculert in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. C. Worker's compensation insurance, including "Waiver of Subrogation" clause; covering all employees and principals of Aculert, per the laws of the State of California. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Aculert shall give City prompt and timely notice of claim made or suit instituted arising out of Aculert's operation hereunder. Aculert shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, whlch in its own judgment may be necessary for its proper protection and prosecution of the work. Aculert agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general liability insurance, which Aculert shall look solely to its insurance for recovery. Aculert hereby grants to City, on behalf of any insurer providing comprehensive general insurance to either Aculert or City with respect to the services of Aculert herein, a waiver of any right of subrogation, which any such insurer of Aculert may acquire against City by virtue of the payment of any loss under such insurance. 10 • • 15. No Joint Venture: Nothing herein contained shall be deemed to constitute or create joint venture, partnership or agency relationship between the Parties, and no party shall be responsible for any obligations of any other party except as specifically provided in this Agreement. 16. Entire Agreement: This Agreement 'constitutes the entire Agreement between the Parties relating to the subject matter covered herein and cancels and supersedes all previous agreements between the Parties relating to the subject matter covered herein. Any modification of.this Agreement must be in writing and signed by all of the Parties. 17. Choice of Law: This Agreement shall be construed and interpreted under the, laws of the State of California. 11 0 WHEREFORE, the Parties hereto have entered into this Agreement as of the date set forth below opposite the name of each signatory hereto. "ACULERT" ACULERT INTERNATIONAL CORPORATION By: Dated: Richard Kam , Presid nt "CITY" CITY OF NEWPORT BEACH, a municipal corporation By: x Dated: //$ rj Z Homer Bluda City Manager APPROVED AS TO FORM: By: 404�'— Robin L. Clauson, Assistant City Attorney ATTEST: By: 6 krL, a) . "&V LaVonne Harkless, City Clerk Dated: Dated: l (F I C7 • ITEM 12_ TO: Members of the Newport Beach City Council FROM: Tim Riley, Fire Chief SUBJECT: ACULERT Emergency Information Demonstration Project and -;r Agreement fib ✓ RECOMMENDATION Approve the Fire Department's partnership with Aculert that provides both medical information and a family notification program for use by fire agencies. Added to the City's Fire Medics Program, this project would enhance subscriber benefits, improve patient care, and create new incentives for residents to join the program. BACKGROUND Aculert, in a demonstration project under evaluation by the International Association of Fire Chiefs (IAFC), is implementing the nation's first advanced wireless emergency medical information network designed for fire agencies. Once implemented, the network would provide Newport Beach firefighters and paramedics with access to patient- provided medical information instantly and securely during emergency medical events. Due to the size and design of our emergency medical services delivery system and our history of innovation, we are considered a perfect partner for Aculert. How Does Aculert Work? Participating Fire Medics subscribers will pre - register their information before an emergency occurs. Utilizing the Aculert network, the Fire Medics program would; 1) collect a participating members' medical information summary via a medical history and child safety enrollment form; 2) submit the collected information to Aculert for processing; and 3) assign each member a bar -coded Fire Medics/ Aculert identification card and key -tag. When arriving on scene, fire personnel would scan the members bar -coded ID card, key -tag, or driver's license with a wireless, hand -held computer device. The bar -coded identification unlocks the member's secure medical information and allows firefighters and paramedics immediate access to the patient's medical information. In the case of a • i minor child, they would be provided a bar -coded bracelet or necklace that would unlock our access to their parent contact information or a pre - authorized release for medical treatment. Aculert utilizes current, 128 bit encryption technologies that meet the same electronic transaction security standards used in the banking industry. What are the Benefits for Newport Beach? • Value -added Benefit for Existing Members By logging on to the Internet over a secure network, or by contacting one of our department assistants, Fire Medics members can immediately update all of their personal medical information so that it is always kept current and is instantly available to responding Fire personnel during an emergency. This value -added benefit is included in the current $48.00 per household annual membership fee. • Child Safety - Missing, Lost, and Found Children Aculert can be used to assist in the identification of lost or missing children. Firefighters and eventually Police can access child identification records quickly. Immediate access to the physical description and a digital image of the child's face will quickly aide safety personnel in reuniting a child with his /her parents. • Release to treat minors One of the major concerns of parents is ensuring their child will be treated promptly should the child become ill or injured during a parent's absence. A treatment authorization form is utilized by most hospitals across the country and can be adopted for use by the Fire Medics program. It is anticipated that the actual form can be downloaded and printed at the hospital to expedite a child's treatment. • Enhanced Revenues Make This a No -cost Item It is anticipated that the value -added benefits will bring enough new members to pay to support this program for all members. Financial Impacts ► Expected Revenues Adoption and promotion of the new Fire Medics value -added benefit will result in increased membership and revenue. For example, a 4% response (1,060 new households) to the direct mail campaign would generate sufficient funds ($50,880). It is expected the overall response rate to the new program will be higher, 7 % -10 %. Once achieved, the City would generate an additional $89,000 - $127,000 annually. 0 0 ► First Year Start up Costs In order to minimize the City's start -up and operational costs, Aculert has expressed interest in limiting and /or deferring its first year licensing, set -up, fulfillment and maintenance fees of $51,550. In exchange, for a period not to exceed 1 year, Aculert would receive 20% (estimated $10,176 or more) of NEW Fire Medics membership revenues (estimated $50,880 or more) generated by the implementation of the Aculert network. This concept is similar to a method utilized to collect fees generated by the City's paramedic and ambulance programs where a percentage of the fees collected are used to offset billing costs paid to an outside agency. Certain other costs, such as direct mail advertising, membership cards, and device costs would be charged directly to the Fire Medics program by Aculert at a reduced rate. These amounts total $39,250. Sufficient funds have been appropriated in the FY 2002/03 Fire Department budget normally used for advertising and membership retention to implement and market the Fire Medics and Aculert project. ► Ongoing Costs of Operation After the 1st year of implementation, the ongoing costs are projected to be $45,675, as follows: Annual License Fee - City New Subscriber Set -up - One Time Cost per individual Existing Subscriber Maintenance Fee - Annual Cost per individual Network Access - Per hand held device Additional Medical Data Terminal Wireless device /each Attachments: Agreement Internal Memorandum 10,000 3.75 1.20 600 1,800 - 2,200 1 0 • ACULERT EMERGENCY INFORMATION AND SAFETY NETWORK AGREEMENT THIS Aculert Emergency Information and Safety Network Agreement ( "Agreement "), entered into this day of 2002, by and between CITY OF NEWPORT BEACH, a Municipal Corporation ( "City'), and ACULERT INTERNATIONAL CORPORATION (a corporation) whose address is 5150 E Pacific Coast Highway, #200, Long Beach, CA 90804, ( "Aculert"), is made with reference to the following: RECITALS WHEREAS, Aculert realizes and appreciates the importance of Newport Beach Fire Department ( "Department ") and the services it provides to the community. Aculert has provided to City a proposal to improve the abilities of the Department and enhance the quality of the Department's emergency information systems operated by paramedic personnel employed by the Department. Under the terms of the proposal, Aculert has offered to provide an emergency information and safety network for the Department in exchange for participating in a revenue sharing agreement where certain start-up and operational costs are discounted or waived ( "the Proposal "). WHEREAS, the emergency information and safety system, which is the subject of this Proposal; has been represented to have a total value of forty -nine thousand four - hundred twenty -six dollars ($49,426.00), of which a portion is to be derived from Aculert's 20% share of new Fire Medics revenue, and is comprised of three (3) hand -held wireless medical data terminals, three (3) wireless network licenses, establishment of Aculert accounts for existing Fire Medics subscribers, and the addition of 1,060 new Fire Medics individual subscribers. WHEREAS, the Proposal provides for the following value -added benefits to the Department: • Child identification designed to provide information regarding missing or lost children; • Patient contact information designed to allow firefighters to contact designated family members during emergency events; • A digital treatment authorization release form designed to permit emergency medical personnel to treat minor children during a parent's absence; 2 0 • Pre - registration of Fire Medic household members medical information designed to allow paramedics to provide fast and accurate treatment during routine and mass casualty events; • Implementation of these value -added services is designed to increase Fire Medics membership participation. WHEREAS, City is authorized under Article II, Section 200 of the City Charter to accept the Proposal and to enter into this Agreement. WHEREAS, the City of Newport Beach City Council "City Council" is required to approve the use of City seal for commercial purposes or for any purpose other than for City purposes. WHEREAS, City Council finds that the Proposal will be beneficial to the Department and the residents who use City emergency medical services. WHEREAS, City Council finds that the rights to be granted under the Proposal are appropriate and, due to benefits received, beneficial to City. IT IS THEREFORE AGREED, by and between the Parties as follows: 1. Approval. City hereby accepts the Proposal and makes it part of this Agreement. 2. Definitions. The following definitions shall apply general to the provisions of this Agreement: a. "Commencement date" shall mean the date this Agreement is approved by City Council. b. "Paramedic units" shall mean Newport Beach Medic 62 ( "NM62 "), Newport Beach Medic 63 ( "NM63 "), and Newport Beach Medic 65 ( "NM65 "). C. "City seal' shall mean official seal, colors and name of City and Department. d. "Aculert Products" shall mean preparation and delivery of direct mail marketing materials to Newport Beach residents, three (3) hand -held computer devices, three (3) Aculert network licenses, three (3) Bar -code Scanning devices, and membership Identification materials including membership cards and key tags for participating Fire Medics members. 3 0 0 3. Grant of Entitlements: Subject to the conditions set forth below, and as sole consideration for the Aculert Network, the City hereby grants to Aculert the following entitlements: a. The right to use the City seal in Aculert's promotional and publicity materials, including paid advertisements, but not limited to, news and editorial releases, subject to prior content, and design approval by the City Manager. b. The right to take photographs of the Department's rescue vehicles and to use those photographs in Aculert's promotional and publicity materials in paid advertisements, promotional materials, and news and editorial releases. C. City endorsement of the Aculert Network by the Department as approved at the discretion of the City Manager. d. The participation by the Department's personnel in interviews by trade and other publications concerning their experience with the Aculert Network, upon request by Aculert and approval by the Fire Department's Chief. e. Availability of Department rescue units, when not in use, for media publicity. f. The right to use the City's seal under the terms and conditions of this Agreement, provided, however, the use of the City's seal is limited to use in connection with Aculert's products and does not extend to any other products, goods or services. Use of the City's seal cannot be made without the written .approval of the City Manager. All such approvals requested by Aculert shall not be unreasonably withheld by City. 4. Aculert's Obligations: a. Aculert agrees to submit to City all advertising, promotional television and radio commercials, or other display material to be used by Aculert in connection with this Agreement which contains City's seal, mentions the Fire Department in any way, or depicts Fire Department personnel or equipment. Such material shall be submitted not less than fifteen (15) business days prior to their proposed release to the public. If Aculert does not receive written notice within fifteen (15) business days after City's receipt of said materials, said materials are deemed approved. b. Aculert agrees that it will not cause City's seal or the name of the Department to be used or exploited in any manner contrary to 4 0 public morals, or in any manner which violates prevailing standards of good taste or reflects unfavorably upon the good names, good will, good reputation, and wholesome image of City and Fire Department. C. This Agreement does not authorize the manufacture or sale by Aculert of any product not mentioned in this Agreement which bears, uses, or contains City's seal or name of the Department. If Aculert desires to manufacture or sell any such product bearing, using, or containing the City's seal or the name of City's Department, such use must first be negotiated by and between City and Aculert, and approved under a separate licensing agreement. 5. Consideration: a. For the rights and benefits granted to Aculert herein, Aculert agrees to deliver to City the following products, referred to collectively in this Agreement as the "Aculert Network ", within the following time periods: Phase 1: Aculert Products shall be delivered within thirty (30) days after the commencement date. ii. Phase 2: Establishment of Aculert accounts for all city employees, including part-time, full -time, and seasonal workers, and training of fire department personnel within forty -five (45) days after the commencement date. iii. Phase 3: Direct mail to all residential addresses provided to Aculert by City within the City of Newport Beach to inform citizens of the benefits of the Fire Medic Program. This phase will include separate mailings to Newport Beach Fire Medic member and non - member households and will include activation of a maximum of 15,000 individual member accounts. Phase 3 will be initiated within ninety (90) days after the commencement date b. Aculert will deliver each system component in separate delivery phases as provided above. If Aculert fails to install the Aculert Network as provided above, or the Aculert Network fails to perform satisfactorily, this Agreement may be terminated as provided in this Agreement. C. Set -up, direct mail, operational, and second year costs are delineated in Attachment 1 of this agreement. Thirty-nine thousand 5 0 0 two hundred and fifty dollars ($39,250) is required to establish services as described above. d. City agrees to pay Aculert, on a monthly basis, 20% of new Fire Medics revenue collected by the City twelve months from the Commencement date of this agreement. Payment shall be issued for each month by the fifteenth (15th) business day of the following month. Arrearages shall be subject to interest at a rate of 7% per annum. e. Aculert and City anticipate that the Aculert Network will assist the Department in its emergency operations. If the Aculert Network or any piece of the equipment within the Aculert Network interferes with Department operations or the operation of a fire department rescue unit and cannot be repaired and/or the interference stopped within twenty -four (24) hours of notification by City and /or Department, the equipment must be promptly removed by Aculert and replaced or repaired. f. City understands that this installation is intended to test the Aculert Network in actual use and to demonstrate its capabilities. Aculert will, at its sole cost and expense, for the term of this Agreement, repair or replace any and all parts of the Aculert Network found to be defective in manufacture or design. Aculerfs obligation to repair or replace does not cover any loss or damage to the Aculert Network or any of its components caused by City's employees which is caused by factors otherwise outside of Aculert's control. g. The Aculert medical data terminals are the property of City, and may be returned during the initial term in good condition to Aculert at any time during the term of this Agreement for a full and complete refund. h. Aculert understands and agrees to protect, keep and maintain as confidential the medical information received from third parties. 6. Term and Extension of Rights: a. This Agreement shall have an initial term of two (2) years from the Commencement date, unless terminated earlier as provided in this Agreement. City shall have the option to extend the term of this Agreement for an additional one (1) year immediately following the initial term, by giving written notice to Aculert of City's intention to extend the Agreement at least sixty (60) days prior to the expiration of the initial term. 6 0 0 7. Indemnification: a. Aculert agrees to indemnify, defend, and hold harmless City, its officers, employees, agents and representatives from and against any and all claims, demands, obligations, causes of actions and liens, liabilities, fines, judgment costs (including settlement costs), and expenses associated therewith, arising out of, or related to (1) Aculert's use of City's seal or the name of Fire Department authorized by this Agreement; (2) any claim of false or deceptive advertising resulting from, arising out of or related to Aculert's use of City's seal in advertising or promotional materials. b. Aculert shall indemnify, defend and hold City, its officers, agents and employees, harmless against all liability for illegal competition and /or illegal trade practices, and /or patent infringement, which is based on the rights granted by City to Aculert pursuant to this Agreement. C. Aculert shall indemnify, defend and hold City, it officers, agents and employees harmless from and against any and all claims, demands, obligations, causes of action and lien, liabilities, fines, judgment costs and expenses associated therewith, arising out of, connected to or with or related to the collection and input of medical information from participating members, and for the maintenance, repair, upkeep and or service of all hardware and software used to provide or transmit medical information to City. d. City agrees to indemnify, defend and hold harmless Aculert, its divisions and subsidiaries, and its officers, directors, agents and employees, from and against any and all claims, demands, obligations, causes of action, liens, liabilities, fines, judgments, costs (including settlement costs) and expenses associated therewith arising out of City's and /or Department's negligent (or alleged negligent) provision or non - provision of services in connection with this Agreement. Except for provisions of this paragraph 7 to the contrary, City assumes all liability and risks of loss or damage to the rescue vehicles and equipment and for all other risks and liabilities arising from the negligent (or alleged negligent) use, operation maintenance, possession or storage of the rescue vehicles. 8. Default and Termination: a. The Parties agree that, without prejudice to any other rights available to them at law or pursuant to this Agreement, a party shall be deemed to be in default ( "breaching party"), and the other party 7 0 0 ( "non- breaching party ") shall have the right to terminate this Agreement if: L Breaching party shall fail to perform its obligations under this Agreement after thirty (30) days written notice, except if such failure to perform is due to fire, earthquake, labor dispute, or other events beyond the reasonable control of the breaching party, in which cases the non - breaching party shall extend the time in which the breaching party may meet its obligations, the length of time for such extensions to be determined solely by the non - breaching party; or ii. A party shall become bankrupt or insolvent, or enters into liquidation, or has a receiver appointed, and is prevented from fulfilling its obligations in full as a result thereof. b. In the event of termination or upon expiration of this Agreement, Aculert shall immediately cease all use of the City's seal and the name of Department, unless City's seal and/or the name of Department have been placed in media but in no event longer than one hundred twenty (120) days. 9. Waiver: Failure by either party at any time to require immediate performance by the other party of any provision under this Agreement shall in no way affect the right to require full performance any time thereafter, nor shall the waiver by either party of a breach of any provision of this Agreement constitute a waiver of any succeeding breach of the same or any other provision, nor shall such constitute a waiver of any portion the provision itself. 10. Notices: Any notice required or permitted to be given by either party under or in connection with this Agreement shall be in writing and shall be deemed duly given when personally delivered, sent by registered or certified mail return receipt requested, postage prepaid, or properly transmitted by facsimile. Aculert shall designate an agent and maintain an address within California as the address to which such notice shall be given. The addresses for such notice are: 11 12 13. 0 0 CITYIDEPARTMENT: Fire Chief Fire Department 3300 Newport Blvd. Newport Beach, CA, 92663 (949) 644 -3101 FAX (949) 644 -3388 ACULERT: President 5150 E Pacific Coast Highway, 200 Long Beach, CA 90804 (562) 432 -9833 FAX (888) 726 -5644 Assignment: Aculert shall not transfer or assign its rights nor delegate its obligations under this Agreement to a third party without the prior written approval of City. Any unauthorized transfer or assignment shall be null and void. Compliance with Law: Each party will perform its obligations with all applicable laws, orders, ; jurisdictions. , 5everability of Provisions: under this Agreement in compliance nd regulations of all appropriate Should any provision(s) of this Agreement be declared void, the validity of the remainder of this Agreement will not be affected and will remain in full force and effect. 14. Insurance: Without limiting Aculert's indemnification of City, and prior to commencement of the system, Aculert shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies shall add City, its elected officials, officers, agents, representatives, employees and authorized volunteers as additional insured for all liability arising from Aculert's services as described herein. 9 0 0 Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A -VII or better rating: A. Commercial general liability insurance, including additional insured and primary and non - contributory wording, covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. B. Commercial auto liability and property insurance covering any owned and rented vehicles of Aculert in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. C. Worker's compensation insurance, including "Waiver of Subrogation" clause, covering all employees and principals of Aculert, per the laws of the State of California. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Aculert shall give City prompt and timely notice of claim made or suit instituted arising out of Aculert's operation hereunder. Aculert shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Aculert agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general liability insurance, which Aculert shall look solely to its insurance for recovery. Aculert hereby grants to City, on behalf of any insurer providing comprehensive general insurance to either Aculert or City with respect to the services of Aculert herein, a waiver of any right of subrogation, which any such insurer of Aculert may acquire against City by virtue of the payment of any loss under such insurance. 10 0 15. No Joint Venture: Nothing herein contained shall be deemed to constitute or create joint venture, partnership or agency relationship between the Parties, and no party shall be responsible for any obligations of any other party except as specifically provided in this Agreement. 16. Entire Agreement: This Agreement constitutes the entire Agreement between the Parties relating to the subject matter covered herein and cancels and supersedes all previous agreements between the Parties relating to the subject matter covered herein. Any modification of this Agreement must be in writing and signed by all of the Parties. 17. Choice of Law: This Agreement shall be construed and interpreted under the laws of the State of California. 11 • 0 WHEREFORE, the Parties hereto have entered into this Agreement as of the date set forth below opposite the name of each signatory hereto. "ACULERT" ACULERT INTERNATIONAL CORPORATION M Richard Kaump, President Dated: "CITY" CITY OF NEWPORT BEACH, a municipal corporation M Homer Bludau, City Manager APPROVED AS TO FORM: Dated: By: Dated: Robin L. Clauson, Assistant City Attorney ATTEST: By: Dated: LaVonne Harkless, City Clerk NEWPORT BEACH FIRE DEPARTMOT EMS SECTION July 8, 2002 TO: Timothy Riley, Fire Chief FROM: Vickie Cleary, RN, EMS Manager SUBJECT: FireMedics Emergency Medical Information and Family Notification Program To participate in a demonstration project under evaluation by the International Association of Fire Chiefs (IAFC) that provides both medical information and a family notification program for use by fire agencies. Added to the City's Fire Medics Program, this project would enhance subscriber benefits, improve patient care, and create new incentives for residents to join the program. Aculert is implementing the nations first advanced wireless emergency medical information network designed for fire agencies. On August 22, 2001, the International Association of Fire Chiefs (IAFC) established a working relationship with Aculert International Corporation to begin oversight, testing, and review of Aculert's community based emergency medical information and family notification network. Once implemented, the network would provide Newport Beach firefighters and paramedics with access to patient provided medical information instantly and securely during emergency medical events. The Aculert network will enable Fire Medics members to provide information about their individual medical conditions, medications, allergies, and emergency contact information to the Fire Department before an emergency occurs. The Fire Department wishes to use this opportunity to add special child safety and parent notification capabilities as an enhancement to the City's Fire Medics program. Subscribers would have complete control of the information managed by Aculert. The demonstration project's primary goal is to improve the quality of emergency care provided to the community by achieving the following objectives: • Family Notification - Address concerns of parents and families regarding child treatment, safety, and emergency notification issues. • Medical Preparedness -- Provide public safety personnel and patients with methods to become "medically prepared" for routine and mass casualty incidents. • Increased Revenues - Generate new revenues by creating opportunities for community entrepreneurship and increased subscriber participation. The Fire Medics program provides an organizational and revenue structure to facilitate the proposed project's goal. Page 1 of 8 0 0 ► How Does Aculert Work? Emergency medical events require firefighters, paramedics, and emergency room physicians to obtain medical information from the patient in order to provide safe and effective treatment. During these events, patients are often confused, frightened, or unconscious. Lack of clarity by the patient may lead to the collection of inaccurate or incomplete medical information. Family members, who may have knowledge of the patient's condition, may not be available on scene to provide timely information. Participating Fire Medics subscribers will utilize a centralized source to pre - register their information before an emergency occurs. This could significantly improve overall patient care provided to the residents of Newport Beach. Utilizing the Aculert network, the Fire Medics program would; 1) collect participating members' medical information summary via a medical history enrollment form; 2) submit the collected information to Aculert for processing; and 3) assign each member a bar -coded Fire Medics / Aculert identification card and key -tag. When arriving on scene, fire personnel would scan the member's bar -coded ID card, key -tag, or driver's license with the wireless, hand -held Pocket PC terminal. The bar -coded key identification unlocks the member's secure medical information and provides firefighters and paramedics immediate access to the patient's medical information. The information would then be added to the patient scene record and relayed to emergency physicians at the receiving hospital. ► Security Aculert utilizes current encryption technologies that meets the same standards (128 bit) expected by today's consumers. The Aculert database is physically secure using biometric identification for access; fully encrypted; monitored 24/7; uses multiple power supplies and back -up systems; and requires user ID, password, and device specific address for access. The wireless network used to distribute patient information to the firefighter's hand -held device uses the AT &T wireless CDPD network. The network is NCIC compliant and utilizes the latest in encryption and authentication technologies to provide the highest levels of end -to-end Airlink security. Benefits ► Child Safety - Missing, Lost, and Found Children Increased concerns of child safety are driving expectations for community leaders to provide methods for safeguarding minor children. One of the advantages of the proposed Aculert network is its feature to provide identification of lost or missing children. Firefighters and Police can access child identification records quickly. Immediate access to the physical description of the child (and in later oak mw o w i mss software versions, a digital image of the child's face) will quickly aid :c�� adO..*: 5P. safety personnel in the search and discovery of the child. Rescued rij , children, wearing Fire Medics identification, can be promptly w F reunited with their parents by scanning the identification barcode and j Off�� viewing emergency contact phone numbers directly from the hand- maw ate: ri+slsxzce a Ad&m held terminal. �°`„``"° o. The image to the right is from the wireless hand -held device used by ,r,;;" firefighters. It displays a sample of a patient record showing several emergency contact individuals pre- registered for this patient. n u ► Release to treat minors One of the major concerns of parents is ensuring their child will be treated promptly should the child become ill or injured during a parent's absence. A treatment authorization form is utilized by most hospitals across the country and can be adopted for use by the Fire Medics program. It is anticipated that the actual form can be downloaded and printed at the hospital to expedite a child's treatment. The American Academy of Pediatrics (AAP) endorses the adoption of medical information preparedness for children. "Children with special health care needs have very unique medical histories and require very special medical treatment. If an emergency physician does not have access to this important information, these children are in danger of delayed treatment unnecessary tests, and even serious errors. It is extremely important, then, that parents and physicians work together to give emergency physicians access to the special information they need to properly care for children with very special health care needs." Discussions with the representative from Aculert indicate that the adoption of the data set contained in the Emergency Information Form (EIF) used by the AAP is an achievable goal. These and other options for family and child safety can be incorporated into system enhancements of the demonstration project. Emergency Notification The system will provide emergency notification information (work phone, cell, and pager numbers) to rescuers when a family member becomes injured or ill. This information permits firefighters and police to immediately contact a parent or family members from the scene, and in most cases, allows the family member to speak directly to the child. This permits a lessening of the anxiety to both the patient and the family member, expedites the gathering of additional medical information, and provides transportation options to facilitate better patient care. ► Medical Preparedness Each year in the United States, fire agencies respond to over 11 million medical aid incidents. Last year (2001), the Newport Beach Fire Department responded to over 4,000 medical incidents. It is during these events that firefighters and paramedics are responsible for obtaining medical history, recording treatment, and delivering this information to hospital emergency physicians. Obtaining accurate information from patients is crucial. Medical errors are reported to be the leading cause of accidental death. Current estimates show 120,000 patients die in the United States each year due to errors based on lack of information or miscommunication between patients and other healthcare providers. As demonstrated by the International Association of Fire Chiefs (IAFC) working relationship with Aculert, fire departments can perform a crucial role in assisting healthcare providers in reducing these errors. ► First Responder Safety Discussions regarding new guidelines for responding to weapons of mass destruction incidents outline critical requirements for the care and treatment of injured first responders. The importance of obtaining a current medical history for first responders is not lessened by the fact that he or she is a rescuer. Implementing a system where our City's public safety personnel have a method to provide information for their treatment is a priority. 0 0 ► Mass Casualty and Weapons of Mass Destruction Events A major incident significantly impacts resources of department personnel. Identification of the patient, level of injury, treatment, transportation, and notification to family are all components of good patient care during mass casualty events. Developing a system in concert with a national organization provides an added level of security to citizens and further prepares our community for the potential of a critical incident. Increased Revenues Currently, the Fire Medics participation rate is in excess of 17% of the City's households. To gain additional members, new benefits must be created to meet the needs of the community. Participating as the leading agency in the national deployment of the Aculert network provides additional revenue opportunities via expanded benefits to entice additional subscribers. To achieve new subscriber revenues, the Fire Medics program uses the following five strategies: 1. Market Segmentation - Different members have different needs 2. Utilize existing credibility - the public's trust of firefighters and paramedics 3. Understand change - Social change is in process 4. Build Value - Improved benefits expand revenue opportunities 5. Learn why members join - Feedback from members indicate new needs ► Marketing Strategy Adoption of the marketing campaign to introduce the community to the Aculert network involves mailing customized marketing brochures, including a letter from the fire chief, directly to individual households in the community. The brochures are tailored to address the needs expressed above and indicate the membership fee will go directly to the local fire department to be used for fire and EMS improvements. ► Expanded Market Reaching out to families will provide new reasons for joining Fire Medics. Previously, many families who were adequately insured have not seen the need to subscribe. With the value -added benefits of a "family safetyr' package, the expanded program addresses many of the concerns of today's family environment. ► Membership Fee Adding the Aculert benefit will validate the proposed membership fee increase by addressing community safety concerns. The expanded program will indicate the Fire Department is proactive in taking steps to safeguard Newport Beach residents. ► Future Opportunities It is anticipated that future value added features will generate additional income. As these programs expand regionally, other forms of advertising may be used to lower costs and increase membership participation. • • Future value added and expanded revenue sources include: Health Maintenance Organization (HMO) wishing to specify a patient's hospital to 911 caregivers can "pre- direct" patients to contract hospitals. This reduces the HMO's costs and provides cities with a method to participate in solutions that generate revenues to fire agencies. Pharmacy updates can automatically provide recent prescription information to the member's file, improving future treatment and reducing life threatening drug interactions. Aculert Member Network can provide existing medical information systems with a method to "standardize" access to their patient's records; similar in concept to ATM networks. At the national level, the databases will be linked so members could receive services when traveling outside their home community. ► Value Comparison Most medical reporting services do not utilize technology that provides instant access to medical history information Many use identification methods that rely on an identification card, bracelet, or other jewelry tag. These items provide static and limited information. Many providers of these cards and tags rely on medical personnel to physically call or fax information to a call center, which must then verify the caregiver and send the information by return call or fax. The following table details the comparison of emergency medical information companies. Company ID Method Access Method Cost to Participant MedicAlert Emblem Phone $35/$20 Each Personal MD Card Internet / FAX $29.95 Each $79.95 Each Global MedNet Card / Sticker Phone $99.00 Family MetroNet None 911 Call Center* Member Based Aculert Drivers License Instant - Hand -held Membership Card / Key -tag wireless device *MetroNet medical history is location (residence) based only - currently not operational Financial Impacts ► Expected Revenues Adoption and promotion of the new Fire Medics value -added benefit will result in increased membership and revenue. Attachment 1 demonstrates the potential return on the City's investment in this new program For example, a 4% response to the direct mail campaign would generate sufficient funds ($50,880) to recover the proposed expenditure ($39,250) and return 20% ($10,176) back to Aculert to offset a portion of their implementation costs. It is expected the overall response rate to the new program will be higher, 7 % -10 %. Once achieved, the City would generate an additional $89,000 - $127,000 annually. • • ► First Year Start up Costs In order to minimize the City's start-up and operational costs, Aculert has expressed interest in limiting and /or deferring its first year licensing, set -up, fulfillment and maintenance fees of $51,550. In exchange, for a period not to exceed 1 year, Aculert would receive 20% (estimated $10,176 or more) of NEW Fire Medics membership revenues (estimated $50,880 or more) generated by the implementation of the Aculert network. This concept is similar to a method utilized to collect fees generated by the City's paramedic and ambulance programs where a percentage of the fees collected are used to offset billing costs paid to an outside agency. Certain other costs, such as direct mail advertising, membership cards, and device costs would be charged directly to the Fire Medics program by Aculert at a reduced rate. These amounts total $39,250. See Attachment 2 for a detail of projected costs. Sufficient funds have been appropriated in the FY 2002/03 Fire Department budget normally used for advertising and membership retention to implement and market the Fire Medics and Aculert project. ► Ongoing Costs of Operation After the 1st year of implementation, the ongoing costs are projected to be $45,675, as follows: Annual License Fee - City 10,000 New Subscriber Set-up - One Time Cost per individual 3.75 Existing Subscriber Maintenance Fee - Annual Cost per individual 1.20 Network Access - Per hand held device 600 Medical Data Terminal Wireless device /each (to purchase additional devices) 1,800 - 2,200 Implementation Once approval is granted, Aculert indicates that a 4 -week time frame is required to begin the implementation of the system within Newport Beach. Several milestones are required before full operation and include the following requirements: • Adoption of the data set required for medical data by the Newport Beach Fire Department • Medical summary form design and printing • Approval of the FireMedics /Aculert ID cards and tags • Acquisition of the hand -held wireless scanning devices • Training of paramedic personnel by Aculert staff A staged or phased -in implementation schedule is desirable for both early testing and training. The following is a tentative schedule based on weeks from approval date: Week 4 - Offer to City employees on a voluntary basis Week 5 - Present and promote at Junior Lifeguard graduation (over 800 families present) Week 6 - Receive responses and send to Aculert to process data Weeks 7 & 8 - Continue tests of the system Week 12 - Send marketing materials to city residents, 0 Membership Analysis 0 Newport Beach Households 33,000 Member Households (estimated) 18% 5,850 Non - Member Households 26,500 Projected net revenue to City of Newport Beach Response Rate New Member Projected Aculert Project Net Amount to Households New Revenue Revenue Share Newport Beach 1 % 265 $12,720 $2,544 $10,176 2% 530 $25,440 $5,088 $20,352 3% 795 $38,160 $7,632 $30,528 4% 1,060 $50,880 $10,176 $40,704 5% 1,325 $63,600 $12,720 $50,880 6% 1,590 $76,320 $15,264 $61,056 7% 1,855 $89,040 $17,808 $71,232 8% 2,120 $101,760 $20,352 $81,408 9% 2,385 $114,480 $22,896 $91,584 10% 2,650 $127,200 $25,440 $101,760 11% 2,915 $139,920 $27,984 $111,936 12% 3,180 $152,640 $30,528 $122,112 The City would recover all marketing and start-up costs with a 4% minimum response from City C Proposed Aculert System Set -up / 1St Year Marketing/ Operational Costs C� Description Quantity Cost Each Start-up Cost Year Two 20% of NEW membership 1st Year License 1 revenue generated during See Below N/A 1St contract year Annual License Fee 1 $10,000 after 1st year $0 $10,000 Enrollment Mailing to Existing Member 6,500 $0.80 $5,200 $0 Households Direct Mail Marketing to Non- Members 28,000 $0.75 $21,000 $25,000 Households City Employee 750 No Charge $0 $0 Enrollment Membership 15,000 $0.51 $7,650 $0 Cards/Tags Member Set -Up 5,000 - (Each individual 7,500 $3.75 (Waived 1St Year) $0 $1875 member Annual Maintenance fee (Each individual 5,000 - 7,500 $1.20 (Waived 1st Year) $0 $7,000 member Medical Data 3 $1,800.00 $5,400 N/A Terminal Network Access 3 $600.00 (Waived 161 Year) $0 $1,800 Total $39,250 $45,675 In lieu of up -front costs (i.e. initial licensing, set -up, maintenance, and network access), Aculert will charge 20% of new Fire Medics revenue received during the first year of the demonstration project. Other services, such as direct mail marketing, membership cards, and data terminals, are provided at a discounted price.