HomeMy WebLinkAbout20121052.tiff RESOLUTION
RE: APPROVE ASSET PURCHASE AND TRANSFER AGREEMENT AND AUTHORIZE
CHAIR TO SIGN - BANNER HEALTH, DBA NORTH COLORADO MEDICAL CENTER
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Asset Purchase and Transfer
Agreement between the County of Weld, State of Colorado, by and through the Board of County
Commissioners of Weld County, and Banner Health, dba North Colorado Medical Center,
commencing May 7, 2012, with further terms and conditions being as stated in said agreement,
and
WHEREAS, after review, the Board deems it advisable to approve said agreement, a
copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Asset Purchase and Transfer Agreement between the County
of Weld, State of Colorado, by and through the Board of County Commissioners of Weld
County, and Banner Health, dba North Colorado Medical Center, be, and hereby is, approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 23rd day of April, A.D., 2012.
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
ATTEST:
Sean P. C y, Chair r
Weld County Clerk to the Board /
^ I # Cilli.m F. Garcia, Pro-T=
BY: clr1u
Deputy CI-t to the Boar 186+ kV'�-/�.� �-
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APP AS ORM: �, 4 c�
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t � David E. Long r
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Date of signature: 5 as-ia
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aU I 5 aQ-/Q 2012-1052
BC0043
ASSET PURCHASE AND TRANSFER AGREEMENT
THIS ASSET PURCHASE AND TRANSFER AGREEMENT (this "Agreement") is made
and entered into as of the signature dates set forth below, to be effective as of the 7th day of
May, 2012 (the "Closing Date"), by and between the COUNTY OF WELD a political subdivision
of the State of Colorado ("Seller"), and BANNER HEALTH, an Arizona nonprofit corporation,
d/b/a NORTH COLORADO MEDICAL CENTER ("Buyer").
RECITALS
WHEREAS, Seller operates the Weld County Paramedic Service ("WCPS") which
provides emergency medical services throughout Weld County ("EMS Services");
WHEREAS, Seller desires to sell certain of its disposable assets and transfer its EMS
Services to Buyer;
WHEREAS Buyer desires to assume the operation of the EMS Services, by purchasing
certain assets, employing certain county personnel and gaining use of the Seller's equipment
and other tangible assets of Seller by and through Buyer's operating agreement with NCMC,
Inc.; and
WHEREAS, in connection with this Agreement, Seller and NCMC Inc., will enter into that
certain Asset Purchase and Sale Agreement, on a date even herewith, where in Seller shall
transfer all right title and interest in Seller's equipment and other tangible assets to NCMC, Inc.,
(the "NCMC Inc., Asset Purchase and Sale Agreement");
NOW, THEREFORE, in reliance on the representations and warranties, and in
consideration of the mutual promises and agreements contained in this Agreement, the receipt
and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. SALE, PURCHASE AND TRANSFER OF ASSETS.
As of the Closing Date, Seller agrees to sell, assign, transfer and/or deliver to Buyer,
and Buyer agrees to purchase, assume and/or receive from Seller, all of Seller's right,
title and interest in the following assets of Seller (the " Assets"):
1.1 The rights of Seller under the specific contracts identified on Schedule 1
attached hereto and made a part hereof (hereinafter, the "Contracts").
1.2 All right, title and interest (including copyright interests) in and to all computer
programs (including computer modeling programs, design and operational and
applications software and computer source and object codes), firmware,
computer data bases, and related documentation, developed or used in
connection with the operation of the EMS Services, exclusive of any such
computer programs, firmware, computer data bases, or related documentation
that is being transferred to NCMC, Inc. pursuant to the NCMC, Inc. Asset
Purchase and Sale Agreement.
1.3 All non-emergency telephone numbers (including fax and modems) associated
with the EMS Services.
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2. BUYER'S ASSUMED LIABILITIES
Buyer hereby assumes and agrees to discharge the following liabilities (the "Assumed
Liabilities"):
2.1 Any liability arising after the Closing under any of the Assumed Contracts listed
on Schedule 1, or any of the other Assets in Section 1, but excluding any liability
arising under the Assumed Contracts or any Asset in Section 1 or listed on
Schedule 1, based upon the action or omission of Seller or its agents prior to the
Closing Date.
2.2 Assignment of Contracts and Rights. Anything to the contrary notwithstanding, at
Buyer's election, this Agreement shall not operate to assign any Asset or any
claim, right or benefit arising thereunder or resulting therefrom if an attempted
assignment thereof, without the consent of a third party thereto (including a
Governmental Authority), would constitute a breach, default or other
contravention thereof or in any way adversely affect the rights of Seller or Buyer
thereunder. Seller will use its best efforts to obtain the consent of any such third
parties for the assignment thereof to Buyer prior to Closing, and if such consent
is not obtained by Closing or if such attempted assignment thereof would not
assign all of Seller's rights thereunder at Closing, Seller shall continue to use its
best efforts in order that Buyer would obtain all of such rights thereunder. To the
extent that the consents and waivers referred to herein are not obtained by
Seller, or until the impediments to the, assignment are resolved, Seller shall use
its best efforts, at Seller's expense, to (i) provide to Buyer, at the request of
Buyer, the benefits of any of the Assumed Contracts referred to herein, (ii)
cooperate in any lawful arrangement prescribed by Buyer to provide such
benefits to Buyer, and (iii) enforce, at the request of and for the account of
Buyer, any rights of Seller arising from any Assumed Contract referred to herein
against any third person (including a Governmental Authority) including the right
to elect to terminate in accordance with the terms thereof upon the advice of
Buyer.
2.3 The paid time off (PTO) of any employee, of Seller listed on Schedule 2
("Transferring Employee(s)), who elects to transfer their PTO as provided for in
Section 6.6.
3. SELLER'S RETAINED LIABILITIES
Seller shall retain all liabilities not expressly assumed by Buyer in Section 1 and Section
2 above, including but not limited to, any claims, liabilities or losses arising from, under
or with respect to:
(a) Any illegal conduct on the part of the Seller, or any of its officers, directors,
shareholders, agents or employees which occurred before the Closing Date;
(b) The obligation to satisfy any claims and litigation against Seller or any of its
officers, directors, shareholders, employees or agents based upon acts or
omissions occurring prior to the Closing Date (including, without limitation, any
acts of negligence and professional negligence);
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(d) Any regulatory deficiencies, criminal or civil violations of any statute, regulation
or ordinance (including, without limitation, the false claims, false representations,
anti-kickback, and other provisions of the Medicare/Medicaid fraud and abuse
laws and the physician self-referral provisions of the 42 U.S.C. §1395nn (the
"Stark Law") and any state or local counterparts or corollaries to the foregoing,
overpayments (and retention of overpayments) and any penalties associated
therewith, based upon actions, failures to act or relationships occurring or in
existence prior to the Closing Date;
(e) Any outstanding accounts payable, obligations or liabilities of Seller, or any claim
against Seller, of any kind, whether known or unknown, contingent or vested.
(f) All Contracts not assumed by Buyer;
(g) The obligation to satisfy any refund or recoupment requests from any third party
or governmental payor for services prior to the Closing Date;
(h) Any Employee Plans (i.e. 401(k) plans or other retirement benefits) and all
activities associated with the Employee Plans prior to the Closing Date;
(i) General liability and workers' compensation liabilities based upon acts or
omissions occurring prior to the Closing Date.
Buyer shall not assume, and shall not be liable or responsible for, any outstanding
accounts payable, obligations or liabilities of Seller, or any claim against Seller, of any
kind, whether known or unknown, contingent or vested. There are no additional liabilities
or obligations being assumed by Buyer.
4. PURCHASE PRICE AND PAYMENT FOR ASSETS.
4.1 Purchase Price. Subject to the conditions in Section 6, Buyer shall pay Seller
the amount of One Hundred Fifty Dollars ($150.00), (the "Purchase Price")
payable at the Closing as provided for in Section 5, by check or wire transfer,
and shall provide to Seller other good and valuable consideration, including,
without limitation, the agreement of Buyer to employ the Transferring
Employees, the receipt and sufficiency of such other consideration are hereby
acknowledged.
5. CLOSING AND TRANSFER OF ASSETS.
5.1 Closing. The closing of the sale and the transfer of the Assets (the "Closing")
shall occur as of 12:01 a.m. on the Closing Date.
5.2 Deliveries by Buyer. Buyer shall deliver the following to Seller:
(a) Within four (4) business days of the Closing, the Purchase Price; and
(b) At the Closing, all endorsements, instruments or documents as may be
required, necessary or appropriate to carry out this Agreement.
5.1 Deliveries by Seller. At the Closing, Seller shall deliver the following to Buyer:
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(a) A Bill of Sale, substantially in the form of Exhibit "A" attached hereto and
made a part hereof; and
(b) An Assignment and Assumption Agreement, in the form of Exhibit "C"
attached hereto; and
(c) All endorsements, instruments or documents as may be necessary or
appropriate to give Buyer good title to and rights under the Assets.
6. BUYER'S CONDITIONS TO CLOSING.
The following are conditions precedent to Buyer's obligation to purchase and/or accept
the transfer of the Assets or undertake any other obligation provided for herein as of the
Closing Date:
6.1 No litigation, written threat or investigation that challenges directly or concerns the
legality of the transactions contemplated by this Agreement or that affects in any
material way the Assets, the EMS Services or any Transferring Employee shall
have been instituted or threatened in writing, unless such threat or investigation
shall have been finally resolved to the satisfaction of Buyer, in its sole discretion.
6.2 At the Closing, there shall not be in effect any agreements with respect to the,
the Assets, the EMS Services or the Transferring Employees, that have not been
disclosed in writing to Buyer.
6.3 Seller shall have satisfied and cleared any and all liens, pledges, charges, security
interests, encumbrances or claims of any kind against the Assets or the EMS
Services.
6.4 Seller shall have obtained all consents, approvals and waivers necessary or
required to vest in Buyer all of Seller's rights and title to, and interest in, the
Assets in conformity with the representations and warranties of Seller herein,
including, without limitation, all consents necessary or required to assign the
Contracts to Buyer.
6.5 Seller shall have terminated the employment of all of its Transferring Employees
as of the Closing Date (through the Seller's Reduction in Force procedures) and
shall have provided to Buyer appropriate documentation of such termination.
6.6 Seller acknowledges and agrees that it is responsible for paying to the
Transferring Employees all compensation and benefits accrued up to the Closing
Date, including without limitation Paid Time Off (PTO.) With respect to each
Transferring Employee, the parties agree that Seller may transfer (if the
Transferring Employee so elects) and Buyer shall assume (where the
Transferring Employee has elected to transfer PTO) up to eighty (80) hours of
PTO per Transferring Employee as of the Closing Date (the "Assumed PTO"),
and the payment of Purchase Price shall be reduced by the aggregate value of
such Assumed PTO. Any PTO in excess of Assumed PTO existing as of the
Closing Date shall be paid by Seller to each Transferring Employee in the next
Seller payroll disbursed, whether at or following the Closing Date, but in any
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event no more than fourteen (14) business days following the Closing Date.
Schedule 2 sets forth with respect to each of Seller Employees such person's
position, date of hire, current salary, accrued PTO and amount of any other
accrued benefits to which such person may be entitled or for which such person
has made either a written or oral claim to Seller. Seller shall provide an updated
Schedule 2 at Closing. All Transferring Employees shall be employees at will,
subject to Buyer's direction and control, and employment policies. Nothing herein
shall obligate Buyer to employ the Transferring Employees for any specific time
period. Nothing in this Section shall be construed to grant any employee any
rights as a third party beneficiary. Seller shall retain all liabilities with respect to
any and all Seller Employees who are not Transferring Employees and, unless
specifically assumed herein, all liabilities associated with the Transferring
Employees which may have accrued prior to the Closing Date.
6.7 Seller shall have entered into an asset purchase agreement with NCMC, Inc.
(the "NCMC Inc. Asset Purchase and Sale Agreement"), to be effective as of the
Closing Date, pursuant to which Seller agrees to sell, transfer and assign to
NCMC, Inc. all of their respective right, title and interest in and to equipment and
other tangible assets of County as more fully described in that certain NCMC.
Inc. Asset Purchase and Sale Agreement, and such sale, transfer and
assignment shall have actually occurred.
6.8 Seller shall have removed from Seller's website, any information that would be
inconsistent with the sale and transfer of the Assets or EMS Services to Buyer.
6.9 All of Seller's representations and warranties contained in or made pursuant to
this Agreement shall have been true and correct when made and shall be true
and correct as of the Closing Date.
6.10 Delivery by Seller of the documents and items set forth in Section 5.3 above.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
7.1 Buyer is a nonprofit corporation, duly organized, validly existing, and in good
standing under the laws of the State of Arizona.
7.2 This Agreement and all documents executed by Buyer that are to be delivered to
Seller at the Closing are, or at the time of the Closing shall be, duly authorized,
executed, and delivered by Buyer, and are, or at the Closing shall be, legal,
valid, and binding obligations of Buyer, and do not, and at the time of the Closing
shall not, violate any provisions of any agreement or judicial order to which Buyer
is a party or to which Buyer is subject.
7.3. There are no claims, disputes, actions, suits, investigations or proceedings
pending or, after due and diligent inquiry, to the best of Buyer's knowledge,
threatened, against Buyer or any of its shareholders, members, employees or
agents, or any basis therefore, that might adversely affect the ability of Buyer to
perform its obligations under this Agreement.
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7.4 Buyer shall continue the employment, on an at-will basis commencing as of the
Closing Date, of those employees of Seller listed on Schedule 2 in a position
and at a rate of pay as determined by Banner and as accepted by the individuals
listed on Schedule 2; provided the Transferring Employee agrees: (i) to the
release of his or her employment files to Buyer prior to Closing, (ii) passes a pre-
employment drug test and background check, (iii) has the unrestricted ability to
provide federally reimbursed services, and (iv) is not listed on any List of
Excluded Individuals/Entities of the Office of Inspector General of the U.S.
Department of Health and Human Services. Seller will terminate the
employment of the Transferring Employees effective as of the Closing Date
through its Reduction in Force process. Buyer will, on behalf of all of the
employees listed on Schedule 2 endeavor to conclude all of the screening and
testing listed above prior to the Closing Date.
7.5 All Transferring Employees shall be eligible for insurance under all of Buyer's
employee group insurance plans (with all options offered to similarly-situated
employees of Buyer), including but not limited to its health, dental, vision, and
short term and long term disability plans, and shall be eligible to participate in
Buyer's employee retirement plans, in accordance with the same terms as are
applicable to Buyer employees holding similar positions.
8. SELLER'S CONDITIONS TO CLOSING
8.1 Seller and Buyer shall have entered into a separate dispatch services
agreement, wherein County agrees to dispatch paramedic services owned and
operated by Banner to all locations within Weld County in the same manner as is
occurring for the WCPS as of the Transfer Date.
8.2 Buyer shall have applied for a license to operate paramedic services within Weld
County, pursuant to the requirements of Chapter 7 of the Code.
9. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER.
9.1 Seller is a political subdivision of the State of Colorado, duly organized, validly
existing, and in good standing under the laws of the State of Colorado.
9.2 This Agreement and all documents executed by Seller that are to be delivered to
Buyer at the Closing are, or at the time of the Closing shall be, duly authorized,
executed, and delivered by Seller, and are, or at the Closing shall be, legal, valid,
and binding obligations of Seller, and do not, and at the time of the Closing shall
not, violate any provisions of any agreement or judicial order to which Seller is a
party or to which Seller is subject.
9.3 Except as set forth on Exhibit "B", there are no claims, disputes, actions, suits,
investigations or proceedings pending or, after due and diligent inquiry, to the
best of Seller's knowledge, threatened, against Seller or any of its shareholders,
employees or agents, or any basis therefor, that arises out of the EMS Services
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or that might adversely affect the Assets, or the ability of Seller to perform its
obligations under this Agreement.
9.4 There are not, and as of the Closing Date shall not be, in effect any agreements
with respect to the Assets, the Transferring Employees or the EMS Services
which have not been disclosed in writing to Buyer.
9.5 Seller has good and marketable title to the Assets, free and clear of all mortgages,
liens, pledges, charges, security interests, encumbrances or claims of any kind.
9.6 To the best of Seller's knowledge, there are no tax liens on any of the Assets and
no basis for the imposition of any such liens.
9.7 Seller has at no time in its business engaged in the retail sale of tangible personal
property so as to create or give rise to any liability or duty to report, collect or remit
any transaction privilege or use tax to the State of Colorado or to any other state or
local taxing body.
9.8 All amounts due to any third party in connection with the Assets or the operation
of the EMS Services have been paid in full by Seller, or arrangements have been
made by Seller for such third party to be paid. Buyer shall forward to Seller any
requests for payment received by Buyer that are related to obligations incurred
by Seller prior to the Closing Date.
9.9 The Assets, as applicable, are in good working condition and shall continue to be
so on the date of the Closing.
9.10 There are no liabilities of Seller under ERISA or similar laws with respect to any
employee pension, welfare, or benefit plans of any kind whatsoever relating to
Seller. There are no labor disputes pending between Seller and any of its
Transferring Employees. Seller has complied in all material respects with all laws
relating to the employment of labor, including any provisions thereof relating to
wages, hours, collective bargaining and the payment of social security and other
taxes, and is not liable for any arrearages of wages or any taxes or penalties for
failure to comply with any of the foregoing.
9.11 All of the information provided by Seller to Buyer in connection with Buyer's
investigation of the purchase of the Assets and of the Transferring Employees
was true and correct when provided and unless disclosed in writing to Buyer prior
to the Closing, shall be true and correct on the date of the Closing.
9.12 Seller is not in default under nor in violation of any, and Seller has complied with
all, statutes, ordinances, regulations, orders, judgments and decrees of any
governmental authority applicable to Seller, the Assets, or the EMS Services (the
"Applicable Laws") as to which a default or failure to comply might result in any
material adverse affect on the Assets, or the EMS Services, including, without
limitation, any Applicable Laws governing participation in or eligibility to
participate in a Federal health care program or a State health care program or a
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State health care program, as such terms are defined or referenced in 42 U.S.C.
Section 1320a-7b(f). Seller has no knowledge of any basis for assertion of any
violation of the foregoing or for any claim for compensation or damages or
otherwise arising out of any violation of the foregoing.
9.13 The employment of all Transferring Employees of Seller's will be terminated by
Seller as of the Closing Date through its Reduction in Force procedure. Seller
shall be solely liable for payment of all wages, salaries, accrued paid time off,
hours, severance, benefits, COBRA notices and benefits, and all other amounts
payable or to become payable with respect to such termination.
9.14 Seller has, or will have obtained, all necessary third party consents (including
government consents, if applicable) for purposes of transferring the EMS
operations to Buyer.
10. PRORATIONS AND ADJUSTMENTS.
10.1 The following shall be prorated and adjusted between Seller and Buyer as of the
Closing Date except as otherwise specified:
(a) All rents and other sums payable by Seller pursuant to any lease
agreement or any equipment lease described herein shall be prorated as
of the Closing Date; and
(b) Such other items that are customarily prorated in transactions of this
nature shall be ratably prorated at the Closing.
11. EMS OPERATIONS
11.1 Banner may, in Banner's sole discretion, after Transfer Date to and until such
time as determined by County, have its ambulance vehicles maintained by and
through Seller's contract for fleet maintenance services with G4S Integrated
Fleet Management Services, LLC ("G4S"), dated February 1, 2006 at the rates
set forth therein, as assigned to that company from Tecom, Inc., on October 1,
2008, as amended, and by notice of change of name dated October 7, 2011.
Additional ambulances may be included in the fleet maintenance performed by
G4S. The total cost for providing such fleet maintenance services shall be
reimbursed to County by Banner, based upon the standard contract rate per
vehicle for the year which is charged County by G4S. Banner shall be invoiced
by County monthly for such services, with all invoices paid by Banner within thirty
(30) days of receipt thereof.
11.2 Banner may, in Banner's sole discretion have all computer equipment and
software sold and transferred by County to Banner and or NCMC, Inc., via the
NCMC Inc., Asset Purchase and Sale Agreement, after Transfer Date and until
such time as determined by County, be maintained and supported by and
through County's contract for computer support services with ACS Government
Systems, Inc. ("ACS"), dated January 1, 2008, as amended. Additional
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computer equipment, computer systems, and software purchased by NCMC,
Inc., for use by Banner with the paramedic service may be included in the
computer maintenance and support performed by ACS. The total cost for
providing such computer maintenance and support services shall be reimbursed
to County by Banner, based upon the standard contract rate for the year which is
charged County by ACS. Banner shall be invoiced by County monthly for such
services, with all invoices paid by Banner within thirty (30) days of receipt
thereof. All communications and T1 lines accessing the Greeley and Evans
buildings shall continue to be owned by County. Access to County's computer
systems shall be limited to those functions or areas necessary for administration
of paramedic services.
11.3 Banner may, in Banner's sole discretion have all DTR radios sold and transferred
by County to NCMC, Inc., pursuant to the NCMC Inc. Asset Purchase and Sale
Agreement, after Transfer Date to and until such time as determined by County,
maintained and supported by and through County's contract for DTR radio
maintenance services with Motorola Solutions ("Motorola"), dated January 1,
2012. Additional DTR radios purchased by NCMC, Inc., for use by Banner with
the paramedic service may be included in the computer maintenance and
support performed by Motorola. The total cost for providing such DTR radio
maintenance services shall be reimbursed to County by Banner, based upon the
standard contract rate for the year which is charged County by Motorola. Banner
shall be invoiced by County monthly for such services, with all invoices paid by
Banner within thirty (30) days of receipt thereof.
12. INDEMNIFICATION.
12.1 To the extent allowed by law, each party hereby agrees to indemnify the other
party and hold it harmless from and against any and all claims, demands,
liabilities, costs, expenses, penalties, damages, and losses, including, without
limitation, reasonable attorneys' fees, resulting from any misrepresentations or
breach of warranty or breach of covenant made by such party in this Agreement
or in any document, certificate, or exhibit given or delivered to the other party
pursuant to or in connection with this Agreement.
12.2 Buyer shall defend, indemnify and hold Seller harmless from and against all
liability (statutory or otherwise), claims, suits, demands, damages, judgments,
costs, interests and expenses (including, without limitation, reasonable attorneys'
fees and disbursements incurred in the defense thereof) to which Seller may
(except and so far as it arises out of the willful misconduct or gross negligence of
Seller) be subject or suffer, as a result of any events that occur on or after the
Closing Date, arising out of or connected with the Assets. In case any action, suit
or proceeding is brought against Seller by reason of any occurrence herein
described, Buyer shall, at its sole cost and expense, defend such action, suit or
proceeding with counsel reasonably satisfactory to Seller. The provisions of this
Section 12.2, which expressly provide for the nature and scope of Buyer's
indemnification of Seller with respect to the Assets, shall survive the expiration or
termination of this Agreement.
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12.3 To the extent allowed by law Seller shall defend, indemnify and hold Buyer
harmless from and against all liability (statutory or otherwise), claims, suits,
demands, damages, judgments, costs, interests and expenses (including,
without limitation, reasonable attorneys' fees and disbursements incurred in the
defense thereof) to which Buyer may (except and so far as it arises out of the
willful misconduct or gross negligence of Buyer) be subject or suffer, as a result
of any events that occur prior to the Closing Date, arising out of or connected
with the Assets, or the EMS Services and/or the Transferring Employees. In
case any action, suit or proceeding is brought against Buyer by reason of any
occurrence herein described, Seller shall, at its sole cost and expense, defend
such action, suit or proceeding with counsel reasonably satisfactory to Buyer.
The provisions of this Section 12.3, which expressly provide for the nature and
scope of Seller's indemnification of Buyer with respect to the Assets, the EMS
Services and/or the Transferring Employees, shall survive the expiration or
termination of this Agreement.
12.4 Seller hereby states that it is party to an Intergovernmental Agreement with the
City of Greeley, Colorado ("the City"), dated September 23, 1996 ("City IGA"),
wherein Seller agreed to refrain from contracting for "any ambulance service to
be provided by a private third party" during the term of the City IGA. Because
Seller, by and through this Agreement, is selling its Service assets to Buyer, a
Colorado nonprofit corporation that leases hospital property in Greeley,
Colorado, from Weld County through the Colorado Health Facilities Authority and
the Weld County Hospital Board of Trustees for the purpose of a hospital being
operated thereon, Seller believes it is not hereby contracting for "any ambulance
service to be provided by a private third party." Therefore, Seller assures Buyer
that, by entering into this Agreement, Seller is not in violation of the City IGA.
Nevertheless, Seller shall defend, indemnify and hold Buyer harmless from and
against all liability (statutory or otherwise), claims, suits, demands, damages,
judgments, costs, interests and expenses (including, without limitation,
reasonable attorneys' fees and disbursements incurred in the defense thereof) to
which Buyer may (except and so far as it arises out of the willful misconduct or
gross negligence of Buyer) be subject or suffer, as a result of any action brought
by the City wherein the City claims that Seller's entering into this Agreement
violates the City IGA. In case any action, suit or proceeding is brought against
Buyer by reason of any occurrence herein described, Seller shall, at its sole cost
and expense, defend such action, suit or proceeding with counsel reasonably
satisfactory to Buyer. The provisions of this Section 12.4, which expressly
provide for the nature and scope of Seller's indemnification of Buyer with respect
to the City IGA, shall survive the Closing.
12.5 In the event that any claim is asserted against a party which it is entitled to
indemnification hereunder (the "Indemnified Party"), the Indemnified Party shall
promptly after learning of such claim notify the other party (the "Indemnifying
Party") thereof in writing; provided, however, that the failure of the Indemnified
Party to give prompt notice of such claim as aforesaid shall not relieve the
obligation of the Indemnifying Party with respect to such claim.
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13. MISCELLANEOUS PROVISIONS.
13.1 Continuation and Survival of Representations and Warranties. All
representations, warranties, covenants and agreements by the respective parties
contained herein or made in writing pursuant to this Agreement are intended to,
and shall remain, true and correct as of the time of the Closing, shall be deemed
to be material and to have been relied upon, and shall survive the execution and
delivery of this Agreement and the delivery of the Bill of Sale.
13.2 Confidentiality. Upon consideration and approval by Seller, this Agreement and
its contents shall be considered a pubic document and therefore subject to the
provisions of the Colorado Open Records Act, C.R.S. §§ 24-10-101, et seq.
13.3 Governing Law. This Agreement shall be governed by the internal substantive
laws of the State of Colorado, without regard for conflicts of laws.
13.4 No Waiver of Immunities. No portion of this Agreement shall be deemed to
constitute a waiver of any immunities which the parties hereto or their officers or
employees may possess, nor shall any portion of this Agreement be deemed to
have created a duty of care on the part of either part to any person not a party to
this Agreement.
13.5 No Continued Funding Obligation. No portion of this Agreement shall be
deemed to create an obligation on the part of County to expend funds not
otherwise appropriated in each succeeding year.
13.6 No Third Party Beneficiary. It is specifically understood and agreed that any
third-party which is not a named party herein accrues no rights or benefits to any
of the terms, covenants, or conditions of this Agreement. It is expressly
understood and agreed that enforcement of the terms and conditions of this
Agreement, and all rights of action relating to such enforcement, shall be strictly
reserved to the undersigned parties, and nothing contained in this Agreement
shall give or allow any claim or right of action whatsoever by any other person
not included in this Agreement.
13.7 No Referral. Buyer unconditionally warrants that the consideration provided by
Buyer herein does not require, and is not contingent upon, any Physician
admitting any patient to any hospital or facility owned or operated by Buyer or
making any recommendation, or referral, of any patient, directly or indirectly, to
any hospital or facility owned or operated by Buyer.
13.8 No Federal Exclusion. Seller hereby represents and warrants to Buyer that
neither Seller nor any of Seller's other equity owners, members or employees is,
or at any time has been, excluded from participation in any federally funded
health care program, including Medicare and Medicaid, and that no such action
is pending.
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13.9 Conflict of Interest Disclosure. Seller represents and warrants that, prior to the
Closing Date, none of Seller, any affiliate of Seller, or any officers, directors,
employees, partners, members, owners or shareholders of Seller or any affiliate
of Seller, is related to, affiliated in any way with, or employs (or otherwise has a
compensation interest with), any officer, director or employee of Buyer.
13.10 Notices. Any notice required to be given pursuant to the terms and provisions of
this Agreement shall be in writing and may be either personally delivered or sent
by registered or certified mail in the United States Postal Service, return receipt
requested, postage prepaid, addressed to each party at the addresses that
follow or to such other addresses as the parties may hereinafter designate in
writing:
If to Seller: Board of County Commissioners of Weld County
P.O. Box 758
1150 O Street
Greeley, CO 80632
Attn: Board Chair
With a copy to:County Attorney of Weld County
1150 O Street
Greeley, CO 80632
Attn: Bruce Barker, Esq.
If to Buyer: Banner Health
d/b/a North Colorado Medical Center
1801 16th Street
Greeley, Colorado 80631
Attn: Chief Executive Officer
With a copy: Banner Health
1801 16th Street
Greeley, Colorado 80631
Attn: Legal Department
Any such notice shall be deemed to have been given when personally delivered
or, if sent by registered or certified mail, three (3) days after the same is sent as
provided herein.
13.11 Integration and Amendment. This Agreement, including any attachments and
documents specifically incorporated herein by reference, contains the entire
agreement between the parties with respect to the subject matter hereof. All prior
negotiations between the parties are merged in this Agreement, and there are no
understandings or agreements other than those incorporated into this
Agreement, including any attachments and documents specifically incorporated
herein by reference. This Agreement may not be modified except by written
instrument signed by both parties.
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13.12 Waiver and Breach. No waiver of the enforcement or breach of any agreement
or provision herein contained, including any attachments or documents
specifically incorporated herein by reference, shall be deemed a waiver of any
preceding or succeeding breach thereof or of the enforcement of any other
agreement or provision herein contained, including any attachments or
documents specifically incorporated herein by reference. No extension of time
for performance of any obligations or acts shall be deemed an extension of the
time for performance of any other obligations or acts.
13.13 Assignment. This Agreement shall not be assignable by either party without the
prior written consent of the other party, which consent shall be in the sole
discretion of such other party to grant or withhold. Consent to one assignment
shall not be construed as consent to any subsequent assignment.
13.14 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the heirs, successors and permitted assigns of each party hereto.
13.15 Further Assurances. Both parties shall execute and deliver all documents,
papers and instruments necessary or convenient to carry out the terms of this
Agreement. The parties shall, upon request at any time after the Closing Date,
execute, deliver and/or furnish all such documents and instruments, and do, or
cause to be done, all such acts and things as may be reasonable to effectuate
the purpose and intent of this Agreement.
13.16 Mutual Contribution. The parties to this Agreement and their respective counsel
have had the opportunity to review this Agreement and to contribute to its
drafting. Consequently, no provision of this Agreement shall be construed
against either party on the grounds that (a) such party drafted the provision or
caused it to be drafted, or (b) the provision contains a covenant of such party.
13.17 Cost of Litigation. In the event that either party to this Agreement takes legal
action to enforce any of the terms of this Agreement, the court or other presiding
body shall have the power to, and the parties shall direct the court or other
presiding body to, award reimbursement for the prevailing party's reasonable
expenses, including, but not limited to, reasonable attorneys' fees, incurred in
connection with such action.
13.18 Captions. The captions contained in this Agreement are for convenience or
reference for Buyer and Seller and are not intended in any manner whatsoever
to construe, define or limit the scope or intent of this Agreement or any provision
hereof.
13.19 Counterparts. This Agreement may be executed in one or more copies or
counterparts, each of which when signed shall be an original, but all of which
together shall constitute one instrument.
13.20 Severability. If any term or condition of this Agreement shall be held to be
invalid, illegal, or unenforceable, this Agreement shall be construed and enforced
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without such a provision, to the extent this Agreement is then capable of
execution within the original intent of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
signature dates set forth below, to be effective as of the Closing Date.
BUYER: SELLER:
BANNER HEALTH County of Weld, a political subdivision of the
D/B/A NO DO MEDICAL CENTER State of Colorado by and through the Board
By: of County Commissioners of the County of
Weld
AMES V. FERANDO,
PRESIDENT-WESTERN REGION By:
Sean . onway, Chairman
DATE:
Attest:
Clerk to the Board 4 f a
1/42
/ �rr
By:
Deputy Clerk to, e Board 1 ��
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dt2ra -/O5��
EXHIBIT "A"
BILL OF SALE
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, COUNTY OF WELD a political subdivision of the State of Colorado (referred to
herein as the "Seller"), does hereby grant, sell, assign and transfer to BANNER HEALTH, an
Arizona nonprofit corporation, d/b/a NORTH COLORADO MEDICAL CENTER ("Buyer"), the
Assets (as defined in that certain Asset Purchase and Transfer Agreement dated to be effective
as of May 7th, 2012 (the "Agreement"), by and between Buyer and Seller), which Assets include
the following:
(a) The rights of Seller under the specific contracts identified on Schedule 1
attached hereto and made a part hereof.
(b) All right, title and interest (including copyright interests) in and to all computer
programs (including computer modeling programs, design and operational and
applications software and computer source and object codes), firmware,
computer data bases, and related documentation, developed or used in
connection with the operation of the EMS Services, exclusive of any such
computer programs, firmware, computer data bases, or related documentation
that is being transferred to NCMC, Inc. pursuant to the NCMC, Inc. Asset
Purchase Agreement.
(c) All telephone numbers (including fax and modems) of the EMS Services.
Seller does hereby covenant with Buyer that Seller is the sole and exclusive lawful
owner of all right, title and interest in and has good and marketable title to all of the Assets, that
the Assets are free and clear of all liens, claims and encumbrances and that Seller has good
right to sell, assign and transfer the same as aforesaid and shall warrant and defend the title
thereto unto Buyer, its successors and assigns, against the claims and demands of all persons
whomsoever.
All capitalized terms used in this Bill of Sale and not otherwise defined herein shall have
the meaning ascribed to such terms in the Agreement.
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DATED to be effective as of the 7th day of May, 2012
SELLER:
COUNTY OF WELD, a body politic and corporate
of the STATE OF COLORADO, by and through the
Board of County Commissioners of the COUNTY
OF WELD
By:
Sean P. Conway, Chairman
ATTEST:
Clerk to the Board
By:
Deputy Clerk to the Board
STATE OF COLORADO )
SS
COUNTY OF WELD
On this the 23rd Day of April, 2012, before me, the undersigned Notary Public,
personally appeared Sean P. Conway, Chairman, Board of county Commissioners of the
COUNTY OF WELD, and that he, as such and being authorized so to do, executed the
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
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EXHIBIT "B"
PENDING CLAIMS
None.
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EXHIBIT "C"
ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT is dated to be effective on May 7, 2012,
between COUNTY OF WELD a political subdivision of the State of Colorado ("Assignor"), and
BANNER HEALTH, an Arizona nonprofit corporation ("Assignee").
Pursuant to that certain Asset Purchase and Transfer Agreement, of event date herewith (the
"Asset Purchase Agreement"), between Assignor and Assignee, Assignor hereby assigns, transfers
and conveys to Assignee all of Assignor's right, title and interest in and to the Assumed Liabilities (as
defined in the Asset Purchase Agreement), and Assignee hereby assumes, and agrees to be
responsible for the Assumed Liabilities. Notwithstanding anything set forth herein, and except as
otherwise expressly provided in the Asset Purchase Agreement, Assignee does not assume, and shall
not be held responsible for any obligations, duties or liabilities of, pertaining to or arising with respect to
Assignor for periods prior to the Closing Date (as defined in the Asset Purchase Agreement).
DATED: As of April 23, 2012, to be effective on May 7, 2012
ASSIGNOR:
COUTNY OF WELD
By:
Shawn P. Conway, Chairman
Attest:
Clerk to the Board
By:
Deputy Clerk to the Board
Date:
ASSIGNEE:
BANNER HEALTH
By:
James V. Ferando
President—Western Region
Date:
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SCHEDULE 1
ASSUMED CONTRACTS
1. Agreement for Transportation Services by and between Weld County Ambulance Services and
Hospice of Northern Colorado effective December 14, 1998.
2. Agreement for Ambulance and Emergency Medical Services by and between Cornell
Corrections Management and Weld County Paramedic Services effective November 13, 2009.
3. Zoll Data Systems Inc., Master Software License and Maintenance Agreement as amended, by
and between Weld County Paramedic Services and Zoll Data Systems, Inc., dated effective
April 11, 2007.
4. Agreement for Ambulance Services between AccentCare Home Health of Mountain Valley,
LLC, d/b/a AccentCare of Colorado and the Weld County Board of Commissioners dated
effective October 1, 2011.
5. Agreements with Verizon Wireless for wireless communication services and mobile telephone
services, including thirteen (13) Air cards, twenty-two (22) mobile telephones and the phone
numbers associated with the mobile telephones, and fifteen (15) Mifi's and the numbers
associated with those Mifi's.
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SCHEDULE 2
Transferring Employees of County of Weld
Name of Employee Current Position
1) Rick Weber EMT Paramedic
2) William Onken EMT Paramedic
3) Mitch Wagy Paramedic Operations Manager
4) Sam Gusea EMT Paramedic
5) Robert Schleich EMT-Paramedic
6) David Jacoby Medical Operations Supervisor
7) Michelle Busch EMT Paramedic-24
8) Dwayne Montoya EMT-Paramedic
9) Angela Mitchell EMT-Paramedic
10)Matthew Kenney Medical Operations Supervisor
11)Paul LaFleur Medical Operations Supervisor
12)Darin Dalton EMT-Paramedic
13)Robert Troy Osborne Medical Operations Supervisor
14)June Paris EMT-Paramedic
15)Slade Davis EMT-Paramedic
16) David Main EMT-Paramedic
17)Stevie Roth EMT-Paramedic
18)Stacey Chase EMT-Basic
19) Kimberly Wheelock EMT-Paramedic
20)Travis Morrow EMT-Paramedic
21)Davis Tomi Robirds EMT-Paramedic
22)Ryan Plate EMT-Paramedic
23)Autumn Kenney EMT-Paramedic
24)Jennifer Hogestad EMT-Paramedic
25)Sheena Bledsoe EMT-Paramedic
26)Gary Homyak EMT-Paramedic
27)Zachery Crocker EMT-Basic
28)Steve Timko Ill EMT Basic-24
29)Daniel Moseman EMT-Paramedic
30)Vanessa Fitz James EMT Basic-24
31)Luke Baysinger EMT-Basic
32)Patrick Grout EMT-Paramedic
33) Nathan Spruce EMT-Paramedic
34)Mikel Hogestad EMT-Paramedic
35)Tamara Clark EMT-Basic
36)Angela Seaburg EMT-Paramedic
37)Craig Nelson EMT-Basic
38)Michael Schreiner EMT-Basic
39)Alissa Ackerman EMT-Basic
40)Sara Boyle EMT-Basic
41)Blair Howe EMT-Basic
42)Andrea Sandoval EMT-Basic
43)Tyrell Anderson EMT-Basic
44)Amanda Norton EMT Basic-24
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45)Thomas O'Halloran EMT-Paramedic
46)Barry Schaefer EMT-Paramedic
47)Julie Bower EMT-Paramedic
48)Michael Blackwill EMT-Paramedic
49)Chrisann Reese EMT-Paramedic
50)David Wiles EMT-Paramedic
51)Shawn Sorrow EMT-Paramedic
52) Kendra Currey EMT-Paramedic
53)Ted Beckman EMT-Paramedic
54)Kenneth Plate EMT-Basic
55)Lance Homann EMT-Intermediate
56)Vincent O'Farrell EMT-Intermediate
57)Gregory Graves EMT-Paramedic
58) Pamela Rice EMT-Paramedic
59)Larry King EMT-Paramedic
60)Wendy Quick EMT-Paramedic
61)Philip Heier EMT-Paramedic
62)Neil Sheets EMT-Paramedic
63)Jaclene Toelle EMT-Basic
64)Jose Cardiel EMT-Paramedic
65)Jeffrey Arens EMT-Basic
66)Christopher Callaway EMT-Basic
67)Lindsey Berger EMT-Basic
68)Kenneth Milette III EMT-Paramedic
69)Edward Ferretti EMT-Paramedic
70)Valerie Niesen EMT-Paramedic
71)Holly Shipps EMT-Basic
72)Christy Hoover EMT-Paramedic
73)Daniel Beckle EMT-Paramedic
74)Cody Howell EMT-Basic
75)Massey Warren EMT-Basic
76)Jennifer Ferretti EMT-Paramedic
77)Samantha Colbert EMT-Basic
78)Christopher Shannon EMT-Paramedic
79)Adam Peabody EMT-Basic
80) Brady Gilson EMT-Basic
81)April Tatman EMT-Basic
82)Jeremiah Overcash EMT-Basic
83)William Tiefenbrun EMT-Paramedic
84) Demetrius Larez EMT-Paramedic
85)Brian Benedict EMT-Paramedic
86)Matthew Hahn EMT-Paramedic
87)Shaunna King EMT-Paramedic
88)Kayla Reece Apprentice EMT-B
89)Addie Land EMT-Basic
90)Tamara Scott EMT-Paramedic
91)Bryana Starck EMT-Paramedic
92)Jason Kalahar EMT-Paramedic
93)Ricky Busch EMT-Paramedic
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94) Jerrod Schneider EMT-Paramedic
95) Marcia E. Sheets Paramedic Office Tech IV
96) Wendy Sena Paramedic Office Tech III
97) Ellen Meinking Paramedic Office Tech III
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