Kane County Health Department Paul Kuehnert, MS, RN Executive Director www.kanehealth.com Public Health Center 1240 N. Highland Avenue Aurora, Illinois 60506 630.208.3801 Public Health Center 1330 N. Highland Avenue Aurora, Illinois 60506 630.264.7 652 Public Health Center 113 S. Grove Avenue Elgin, Illinois 60120 847.608.2850 TO: FROM: Jane Tallitsch MEMO Paul Kuehnert, ijealth Department DATE: October 20, 2009 SUBJECT: Documents needing legal evaluation TITLE: Public Health Emergency Response - Phase III CONTACT: X X Paul Kuehnert X43021 or Claire Dobbins X85152 REVIEW AND COMMENT ONLY. Contract/Grant/Agreement requlrlng Karen McConnaughay's signature. X In order to meet the needs of the HlNl clinics this needs to be returned by October 21, 2009.
l<ane County Health Department DOCUMENT VET SHEET for Karen McConnaughay Chairman, Kane County Board Name of Document: Service Agreement between Excel.Inc. and Kane County Health Department Submitted by: Paul Kuehnert x43021 Date Submitted: Examined by: (Date) Comments: Excel will provide storage of the H1N1 vaccine at the Kraft Foods Global Inc located at 2303 West Indian Trail, Aurora for the Kane County Health Department at no charge to Kane County Health Department for the warehousing of the vaccine. Term: 10/23/09 to 12/31/09 Chairman signed: Return document to Yes_L. No Date: _...;;_?_O_ :<J_._:z_-_cJ_9 Diane Roop, KCHD-1240 N. Highland Ave., Ste. 21, Aurora Rev 08/09
Services Agreement This Agreement dated October 23, 2009 is between Exel Inc. ("Exel") and Kane County Health Department ("Kane County"). In September 2009, Kane County requested that Exel provide storage space for the H1 N1 vaccine ("Vaccine") at the Kraft facility where Exel provides warehousing services for Kraft and Exel has agreed to do so at no charge to Kane County for the warehousing services. Exel conditioned on the written consent of Kraft Foods Global, Inc. ("Kraft"} below has agreed to allow the Vaccine to be stored at the Kraft owned facility as an accommodation to Kane County pursuant to the following terms and conditions: 1. Services. a. Conditioned on the written consent of Kraft, Exel shall provide Kane County the services detailed in Exhibit A ("Services") in accordance with the requirements and specifications for the storage of the Vaccine set forth in Exhibit A. The Services will be provided at the Kraft owned facility where Exel provides warehousing services to Kraft which is located at 2303 West Indian Trail, Aurora, Illinois 60506 ("Facility"). b. Kane County represents and warrants that the Vaccine delivered to Exel at the Facility shall be packaged in accordance with applicable laws and in a way so as to prevent any harm to persons or property at the Facility. c. Exel shall receive and store the Vaccine in accordance with Exhibit A and all Vaccine to be received and stored by Exel shall be delivered to the Facility during the Facility's normal business hours, properly segregated, marked and packaged for handling and storage and a manifest for the same shall be furnished to Exel identifying the Vaccine. d. Exel may at any time refuse, without liability of any kind, to accept any Vaccine if in its sole discretion it determines that to allow the Vaccine to be stored in the Facility would cause any personal injury or property damage; provided, however, there is no obligation on the part of Exel to inspect or examine the Vaccines stored in the Facility. In any such event, Exel shall promptly notify Kane County of its refusal to accept any such Vaccine and the reasons for its refusal and shall return the same to its originating point. Exel has no responsibility to inspect or examine the Vaccine or its packaging. e. Exel shall not be liable for charges or costs of any kind related to the provision of Services, including without limitation, shipping, receiving, demurrage or detention charges ("Charges"). Kane County shall pay and shall indemnify and hold Exel harmless from any and all such Charges. The provisions of this Section shall survive the termination of this Agreement. f. Exel and Customer agree that in the provision of Services, each party shall comply with all applicable laws, rules and regulations of governmental authorities ("Laws") in connection therewith. Kane County shall assist Exel in identifying those Laws that may be necessary because of the nature of the Vaccine. If any such compliance, because of the nature of the Vaccine, requires that the Facility be altered or modified in any way or Exel is required to obtain any special governmental permits or licenses or to provide special training to its employees, Kane County shall pay for the costs of the same including the state license required to store the Vaccine. g. Kane County will provide Exel with information concerning the Vaccine which is accurate, complete and sufficient to allow Exel to comply with all Laws concerning the storage, handling and transporting of the Vaccine including, but not limited to Material Safety Data She.ets, safety and health data, toxicological information, applicable environmental data, Kane County's hazard communication program procedures used to comply with labeling and transportation requirements and OSHA regulations, any governmental (federal, state or local) regulations and such other information concerning the special characteristics of the Vaccine. Kane County will indemnify and
hold Exel harmless from all loss, cost, penalty and expense (including reasonable attorneys' fees) which Exel pays or incurs as a result of Kane County failing to fully discharge this obligation. The provisions of this Section shall survive the termination of this Agreement. h. Damaged or unsalable Vaccine are to be removed from the Facility within a reasonable time after occurrence or notification of the existence of such damaged or unsalable Vaccine as may be provided for in Exhibit A. If no such procedures exist in Exhibit A, Exel reserves the right, absent instructions by Kane County to the contrary, to remove the damaged or unsalable Vaccine after a reasonable period, upon two (2) days' prior written notice to Kane County, by shipping to the originating point at Kane County's cost and without any liability to Exel. i. If non-hazardous waste is generated from the Vaccine, Exel shall dispose of the same. Exel and Kane County shall confer, if deemed necessary by Exel, to determine if any waste generated is hazardous. For any hazardous waste that is generated from the Vaccine during Exel's performance of the Services, Kane County shall be considered the waste generator and waste transporter. Exel's obligations with respect to such hazardous waste shall be limited to preparing such waste for pickup at the Facility in accordance with Kane County's procedures for pickup and disposal by a Kane County-approved and licensed carrier or transporter, under contract with Kane County, for disposal at a permitted and licensed disposal site. Exel shall riot be liable or responsible for the actual disposal of such hazardous waste. 2. Indemnity. Kane County will defend and indemnify Exel and Kraft and their affiliates ("Indemnified Parties") from any claim, liability, damage, fine, penalty, loss, costs and expense including reasonable attorney's fees ("Loss") arising from or concerning the storage of the Vaccine at the Facility, the provision of the Services or the use, consumption, sale or manufacture of the Vaccine. The provisions of this Section shall survive the termination of this Agreement. 3. Ownership. Kane County represents and warrants that it is the owner of the Vaccine while the Vaccine are in the care, custody and control of Exel and Kane County shall indemnify and defend Exel for any claims, liabilities, damages, costs and expenses including reasonable attorneys' fees arising from the violation of this representation. The provisions of this Section shall survive the termination of this Agreement. 4. Term and Termination. a. This Agreement is not effective and the Services cannot commence until and unless Kraft has executed the Consent and Acknowledgement as set out below. This Agreement shall terminate on December 31, 2009 if not earlier terminated as permitted under the terms of this Agreement. The parties may renew this Agreement upon mutually agreeable terms and conditions. b. Either party may terminate this Agreement for its convenience upon ten (10) days prior written notice except that Exel may terminate this Agreement immediately upon notice if Kraft has instructed Exel to do so. Either party may terminate this Agreement upon breach of the Agreement by the other party if the other party is not able to cure any such breach within five (5) days notice thereof. c. Termination shall not relieve any party of obligations that have accrued prior to the effective date of termination. The expiration or termination of this Agreement shall not affect the provisions, and the rights and obligations set forth therein which either: (a) by their terms state or evidence the intent of the parties that the provisions survive the expiration or termination thereof, or (b) must survive to give effect to the provisions thereof. d. On or before the effective date of termination of this Agreement, Kane County must have all Vaccine removed from the Facility and if Kane County does not comply with this provision, then Exel shall arrange for the removal of the Vaccine from the Facility at the expense of Kane County. 5. Limitations of Liability. a. Kane County acknowledges and agrees that: i. Exel is providing these Services without cost to Kane County at Kane County's request for emergency storage space for the Vaccines; and ii. it is
not Exel's responsibility to keep any records or counts of the Vaccines. Therefore, Exel shall not be liable for any loss or injury to the Vaccines however caused unless such loss or injury resulted from Exel's gross negligence or willful misconduct while storing the Vaccines, and in such case Exel's liability is limited to the lesser of the Replacement Cost of the Vaccine lost or damaged or $50.00 per pallet. "Replacement Cost" means Kane County's shippers invoice cost for the Vaccine less salvage value, if any. All claims for lost or damaged Vaccine must be made in writing no later than (i) thirty (30) days after Kane County has become aware of any such loss or damage or (ii) thirty (30) days after Exel provides Services under this Agreement, whichever first occurs. No action may be maintained by Customer for loss of or damage to the Vaccine unless a timely written claim has been given as provided for above and unless such action is commenced within twelve (12) months from the date of such written claim. b. Kane County acknowledges that Exel does not have back-up power generation at the Facility. Therefore, in the event of a power failure, Exel will promptly notify Kane County, and Kane County will be required to pick up the Vaccines within 24 hours of notification. Exel will have no responsibility to Kane County for any damage to the Vaccines as a result of a power outage. c. NEITHER PARTY IN THE PERFORMANCE OF THEIR OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS, BUT NOT LIMITED TO: LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL OR PUNITIVE OR EXEMPLARY DAMAGES OR THE COSTS AND EXPENSES IN PROVIDING OR SECURING SUBSTITUTE REVENUES OR SUBSTITUTE SERVICE PROVIDERS) EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME, AND WITHOUT REGARD TO THE NATURE OF THE CLAIM OR THE UNDERLYING THEORY OR CAUSE OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE). d. Exel's total liability to Kane County for any and all liabilities, claims or damages arising out of or relating to this Agreement, howsoever caused and regardless of the legal theory asserted, including breach of contract or warranty, tort, strict liability, statutory liability or otherwise, shall not, in the aggregate, exceed $1,000. 6. Kane County agrees to maintain Commercial General Liability and Automobile Liability Coverages (written on an "occurrence" basis), both with combined single limits for bodily injury and property damage in an amount of no less than $5,000,000 naming both Exel and Kraft as additional insureds. 7. Miscellaneous Provisions. a. Notice may be delivered personally or by overnight mail to the following addresses: For Exel: Exellnc. 570 Polaris Parkway Westerville, Ohio 43082 Attention: President- Consumer/Life Sciences Facsimile: 614.865.8865 With a copy to: Exellnc. 570 Polaris Parkway Westerville, Ohio 43082 Attention: Vice President, Commercial Contract Management Facsimile: 614.865.8879 For Kane County: [PLEASE ENTER NOTICE INFORMATION]
Kane County Health Department 1240 N. Highland Ave., Ste. 26 Aurora, IL 60506 Attention: Paul Kuehnert, RN, MS Facsimile: 630-208-5147 With a copy to: Attention: Facsimile: b. This Agreement shall be governed by and construed under the laws of the State of Illinois and each party agrees that venue and jurisdiction will rest solely in such State and the Federal or State courts located therein. c. The rights of Exel under the Agreement are also for the benefit of Kraft and its affiliates which are third-party beneficiaries under this Agreement. d. Exel's failure to require strict compliance with any provision of this Agreement shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision(s) of this Agreement. e. Except for any payment obligations by Kane County under this Agreement, neither party will be liable for delays in any of its performance hereunder due, directly or indirectly, to an act of God or causes (whether or not foreseeable) beyond its reasonable control including but not limited to strikes, fire, flood, explosion, civil disturbance, acts of terrorism, pandemic events, interference by civil or military authority, accident, labor disputes or shortages, or because the continuation of the Services at the Facility would be in violation of any future governmental laws, rules Qr regulations or would cause or create any material safety, health or environmental concerns. f: This Agreement, together with the attached Exhibits (which are incorporated herein as part of this Agreement), embodies the entire understanding between Kane' County and Exel with respect to the subject matters addressed herein and therein and there are no agreements, understandings, conditions, warranties or representations, oral or written, expressed or implied, with reference to the subject matter hereof which are not merged herein. This Agreement shall take the place of and entirely supersedes any oral or written contracts or agreements that deal with the same subject matter as referenced herein. Except as otherwise specifically stated, no modification hereto shall be of any force or effect unless reduced to writing and signed by_ both parties and expressly referred to as being modifications of this Agreement. g. Kane County may not assign this Agreement without the prior written consent of Exel.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. EXEL INC. By: Name: Title: Date:
Consent and Acknowledgement Kraft Foods Global, Inc., on behalf of itself and its affiliates ("Kraft") acknowledges and agrees to the following: 1. Kraft has made an independent evaluation of whether it is safe to allow for the storage of the H1 N1 Vaccine ("Vaccine") at the Kraft owned facility located at 2303 West Indian Trail, Aurora, Illinois 60506 ("Facility") and in proximity to the Kraft products and Kraft has concluded that it will be safe to so allow. 2. Kraft consents to the storage of the Vaccine at the Facility by Exel Inc. ("Exel") under the Services Agreement between Exel and Kane County dated October 23, 2009. 3. Exel shall not have any liability to Kraft for any loss, damage, liability, claims, costs and expenses of any kind including loss or damage to Kraft property or products arising from the storage of the Vaccine at the Facility, the provision by Exel of the services to Kane County for the Vaccine or the use, consumption, sale or manufacture of the Vaccine. 4. The terms and conditions of the North American Regional Logistics Services Agreement ("NAM Regional Agreement") dated January 1, 2008 between Exel and Kraft Foods Global, Inc., and the Additional Purchase Document for Aurora Refrigerated dated January 1, 2008 ("Aurora APD"), do not apply to the storage of the Vaccine by Kane County at the Facility. 5. Kraft agrees that, notwithstanding Section 4 above, all costs of Exel associated with providing services to Kane County under the Services Agreement will be invoiced to Kraft under Exel's normal monthly invoicing under the Aurora APD. Kraft Foods Global, Inc. By: Name: Title: Date:
Exhibit A Assumptions and conditions for handling H1 N1 vaccine for Kane County Department of Health: Storage Site: Exel I Kraft Refrigerated Warehouse 2303 W. New Indian Trail Rd, Aurora, IL 60506 Building Temperature: 35 to 40 Maximum number of pallets to be stored at any one time: 25 pallets no larger than 48" x 48" x 60" high Exel will be responsible for pallet movement from storage to an area Kane County may access. Kane County (and not Exel) will handle individual cases, when finished, Exel will move pallet back to a secure area. Hours of Operation: Monday through Friday 8:00 am to 5:00 PM Kane County will notify Exel in advance of need to access the Vaccine. Exel will provide contact information. Kane County will provide Exel a list of authorized employees that may retrieve product. Exel will require authorized employees to show Kane County Health Department ID. Exel is responsible for pallet only inventory count. Exel is not responsible for case count or contents.