REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF SAN BERNARDINO COUNTY
AND RECORD OF ACTION
June 23,2026
FROM
ANDREW GOLDFRACH, ARMC Chief Executive Officer, Arrowhead regional Medical Center
SUBJECT
Title
Agreements with Alcon Vision, LLC for the Purchase of an Argos Biometer and Argos Biometer Service Plan
End
RECOMMENDATION(S)
Recommendation
1. Approve Sales Order Agreement with Alcon Vision, LLC, including non-standard terms, for the capital improvement purchase of an Argos Biometer, in the amount not to exceed $45,000 plus applicable tax and shipping, for the contract period beginning upon execution and continuing until the purchase price is fully paid, or the Sales Order Agreement is terminated by either party.
2. Approve the non-financial Service Plan Agreement with Alcon Vision, LLC, including non-standard terms, for the Argos Biometer, for the contract period beginning upon execution and continuing for one year, thereafter automatically renewing on an annual basis until terminated by either party.
(Presenter: Andrew Goldfrach, ARMC Chief Executive Officer, 580-6150)
Body
COUNTY AND CHIEF EXECUTIVE OFFICER GOALS & OBJECTIVES
Provide for the Safety, Health and Social Service Needs of County Residents.
FINANCIAL IMPACT
Approval of this item will not result in the use of Discretionary General Funding (Net County Cost). The not-to-exceed cost of $45,000 plus applicable tax and shipping is funded by State Medi-Cal, Federal Medicare, private insurances, and other departmental revenue. Funding sources may change in the future pending any legislative activity related to the repeal and/or replacement of the Affordable Care Act. Adequate appropriation and revenue have been included in the Arrowhead Regional Medical Center (ARMC) 2025-26 budget.
BACKGROUND INFORMATION
The Agreement with Alcon Vision, LLC (Alcon) will allow ARMC to acquire the Argos Biometer and Argos Biometer service plan. The Argos Biometer integrates with Alcon equipment, products, and lenses we currently utilize throughout ARMC for cataract treatment. The Argos Biometer provides precise ocular measurements used to determine the appropriate size and power of intraocular lenses for cataract procedures. The equipment will replace and enhance existing diagnostic capabilities used by ARMC Ophthalmology services and support continuity of patient care through compatibility with ARMC’s existing Alcon cataract treatment platform.
The Alcon Sales Order Agreement (Order Agreement) is Alcon’s standard commercial contract, which includes terms that differ from the standard County contract and omits certain County standard contract terms. While the parties negotiated certain contract terms to County standards, Alcon would not agree to all County standard terms. The non-standard and missing terms include the following:
1. Governing law is the State of Delaware.
• The County standard contract requires California governing law.
• Potential Impact: The Order Agreement will be interpreted under Delaware law. Any questions, issues or claims arising under the Order Agreement will require the County to hire outside counsel competent to advise on Delaware law, which may result in fees that exceed the total Order Agreement amount.
2. The County agrees to pay Alcon’s attorneys’ fees and costs in any action by Alcon to enforce any of its rights or remedies and/or collect any amounts due under this Order Agreement. In addition, the Service Agreement is silent as to the recovery of attorneys’ fees in any other action.
• The County standard contract requires each party to bear its own costs and attorney fees, regardless of who is the prevailing party.
• Potential Impact: If Alcon institutes any legal proceedings related to the Order Agreement, Alcon will be entitled to recover reasonable attorneys’ fees, which could exceed the total Order Agreement amount. County Counsel cannot advise on, whether and to what extent, Delaware law may affect a party’s requirement to pay the prevailing party’s attorneys’ fees and costs in a legal action where no specific provision is provided in the Agreement.
3. The County is required to indemnify Alcon against third party claims to the extent arising from the County’s negligent acts or omissions and from: (a) the negligence of any person other than an employee or agent of Alcon; (b) the failure of any person other than an employee or agent of Alcon to follow any labeling, manuals and/or instructions for use of the equipment; (c) the use of any product (or any accessories) not purchased from Alcon; (d) abnormal wear and tear or damage caused by misuse or by County’s failure to ensure normal and routine maintenance is performed as set out in operating instructions provided with equipment, or as demonstrated by an authorized Alcon representative; or (e) equipment that has been modified, altered, or repaired by any person other than an employee or agent of Alcon.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: By agreeing to indemnify Alcon, the County could be contractually waiving the protection of sovereign immunity. Claims that may otherwise be barred against the County, time limited, or expense limited could be brought against Alcon without such limitations and the County could be responsible to defend and reimburse Alcon for costs, expenses, and damages, which could exceed the total Order Agreement amount. County Counsel cannot advise on, whether and to what extent, Delaware law may limit or expand this Order Agreement term.
4. The Order Agreement does not include certain standard County insurance requirements, including deductibles and self-insured retention and insurance review.
• The County standard contract requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department.
• Potential Impact: The County has no assurance that Alcon will be financially responsible for claims that may arise under the Order Agreement, which could result in expenses to the County that exceed the total Order Agreement amount.
5. Alcon’s maximum liability to the County is limited to three times the purchase price paid for the particular product involved.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Order Agreement amount leaving the County financially liable for the excess. County Counsel cannot advise on, whether and to what extent, Delaware law may limit or expand the exclusion of limits to the extent prohibited by applicable law.
6. Payment terms are Net 60 days date of invoice. However, if Alcon retains a collection agent or initiates any legal action to recover any amounts due, Alcon may assess a service charge to unpaid invoice from the date of the referral, and interest of 1.5%.
• County standard payment terms are Net 60 days with no interest or late payment penalties.
• Potential Impact: County standard processing time is 60 days or more. Failing to pay within 60 days from the date of Alcon’s invoice may result in a material breach of the Order Agreement, which could allow Alcon to terminate the Order Agreement and seek other legal remedies, including charging the County a service fee as well as interest at a rate of 1.5% monthly, which could exceed the Order Agreement amount.
7. The term of the Order Agreement is indefinite, beginning upon execution and continuing until the purchase price is fully paid, or the Order Agreement is terminated by either party.
• County Policies 11-05 and 11-06SP1 do not permit indefinite term or automatically renewing contracts except for end user license agreements, software/hardware licenses and subscriptions, and master service agreements or unless approved by the Board.
• Potential Impact: There is no end term to the Order Agreement and the County is indefinitely bound to the terms and conditions of the Order Agreement until the contract amount is fully paid or termination by either party.
8. There is no termination for convenience without penalty. The County may only terminate the Order Agreement without cause at any time after shipment of the equipment, but prior to its delivery. If the County does terminate during this window, and Alcon determines, in its sole discretion, that it has been substantially harmed by the County’s termination, Alcon may charge the County 15% of the purchase price of the equipment.
• The County standard contract gives the County the right to terminate the contract, for any reason, with a 30-day written notice of termination without any obligation other than to pay amounts for services rendered and expenses reasonably incurred prior to the effective date of termination.
• Potential Impact: Upon termination by the County, Alcon may assess a termination fee of 15% of the purchase price, which could result in payment liability where no funds are available due to lack of allocation or loss of funding.
9. There is no stated venue in the Order Agreement.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Alcon is located in Tarrant County, Texas and is incorporated in the State of Delaware. Having no express venue in the Order Agreement means that Tarrant County, Texas or Delaware venue could be applied to disputes arising under this Order Agreement, which may result in additional expenses that exceed the amount of the Order Agreement.
The Alcon Terms of Service (Service Agreement) is Alcon’s standard commercial contract pertaining to the services provided by Alcon in association with the equipment provided under the Order Agreement, which includes terms that differ from the standard County contract and omits certain County standard contract terms. While the parties negotiated certain contract terms to County standards, Alcon would not agree to all County standard terms. The non-standard and missing terms include the following:
1. Governing law is the State of Texas.
• The County standard contract requires California governing law.
• Potential Impact: The Service Agreement will be interpreted under Texas law. Any questions, issues or claims arising under this Agreement will require the County to hire outside counsel competent to advise on Texas law, which may result in fees that exceed the total Service Agreement amount.
2. Alcon may assign the Service Agreement to an affiliate without notice to the County and without the County’s approval.
• The County standard contract requires that the County must approve any assignment of the contract.
• Potential Impact: Alcon could assign the Service Agreement to a third party or business with which the County is legally prohibited from doing business due to issues of Federal debarment or suspension and conflict of interest, without the County’s knowledge. Should this occur, the County could be out of compliance with the law until it becomes aware of the assignment and terminates the Service Agreement. County Counsel cannot advise on whether and to what extent Texas law may permit or restrict a party’s right to assign without an express provision in the Agreement.
3. The County agrees to pay Alcon’s attorneys’ fees and costs in any action by Alcon to enforce any of its rights or remedies and/or collect any amounts due under the Service Agreement. In addition, the Service Agreement is silent as to the recovery of attorneys’ fees in any other action.
• The County standard contract requires each party to bear its own costs and attorney fees, regardless of who is the prevailing party.
• Potential Impact: If Alcon institutes any legal proceedings related to the Service Agreement, Alcon will be entitled to recover reasonable attorneys’ fees, which could exceed the total Service Agreement amount. County Counsel cannot advise on, whether and to what extent, Texas law may affect a party’s requirement to pay the prevailing party’s attorneys’ fees and costs in a legal action where no specific provision is provided in the Service Agreement.
4. The County is required to indemnify Alcon against third party claims to the extent arising from the County’s negligent acts or omissions and from: (a) the negligence of any person other than an employee or agent of Alcon; (b) the failure of any person other than an employee or agent of Alcon to follow any labeling, manuals and/or instructions for use of the equipment; (c) the use of any product (or any accessories) not purchased from Alcon; (d) abnormal wear and tear or damage caused by misuse or by County’s failure to ensure normal and routine maintenance is performed as set out in operating instructions provided with equipment, or as demonstrated by an authorized Alcon representative; or (e) equipment that has been modified, altered, or repaired by any person other than an employee or agent of Alcon.
• The County standard contract does not include any indemnification or defense by the County of a contractor.
• Potential Impact: By agreeing to indemnify Alcon, the County could be contractually waiving the protection of sovereign immunity. Claims that may otherwise be barred against the County, time limited, or expense limited could be brought against Alcon without such limitations and the County could be responsible to defend and reimburse Alcon for costs, expenses, and damages, which could exceed the total Agreement amount. County Counsel cannot advise on, whether and to what extent, Texas law may limit or expand this Service Agreement term.
5. The Service Agreement does not include certain standard County insurance requirements, including deductibles and self-insured retention and insurance review.
• The County standard contract requires contractors to carry appropriate insurance at limits and under conditions determined by the County’s Risk Management Department.
• Potential Impact: The County has no assurance that Alcon will be financially responsible for claims that may arise under the Service Agreement, which could result in expenses to the County that exceed the total Service Agreement amount.
6. Alcon’s maximum liability to the County is limited to the total amounts paid or payable in the 12 months prior to the event giving rise to the claim.
• The County standard contract does not include a limitation of liability.
• Potential Impact: Claims could exceed the liability cap and the Service Agreement amount leaving the County financially liable for the excess. County Counsel cannot advise on, whether and to what extent, Texas law may limit or expand the exclusion of limits to the extent prohibited by applicable law.
7. Payment terms are Net 30 days date of invoice. However, if Alcon retains a collection agent or initiates any legal action to recover any amounts due, Alcon may assess a service charge to unpaid invoice from the date of the referral, and interest of 1.5%.
• County standard payment terms are Net 60 days with no interest or late payment penalties.
• Potential Impact: County standard processing time is 60 days or more. Failing to pay within 60 days from the date of Alcon’s invoice may result in a material breach of the Agreement, which could allow Alcon to terminate the Service Agreement and seek other legal remedies, including charging the County a service fee as well as interest at a rate of 1.5% monthly, which could exceed the Service Agreement amount.
8. The term of the Agreement is perpetual, beginning upon execution and continuing for one year, thereafter automatically renewing until terminated by either party.
• County Policies 11-05 and 11-06SP1 do not permit indefinite term or automatically renewing contracts except for end user license agreements, software/hardware licenses and subscriptions, and master service agreements or unless approved by the Board.
• Potential Impact: There is no end term to the Service Agreement and the County is indefinitely bound to the terms and conditions of the Service Agreement until the contract amount is fully paid or termination by either party.
9. There is no stated venue in the Agreement.
• County Policy 11-05 requires venue for disputes in Superior Court of California, County of San Bernardino, San Bernardino District.
• Potential Impact: Alcon is located in Tarrant County, Texas and is incorporated in the State of Delaware. Having no express venue in the Service Agreement means that Tarrant County, Texas or Delaware venue could be applied to disputes arising under this Service Agreement, which may result in additional expenses that exceed the amount of the Service Agreement.
ARMC recommends approval of the Agreements with Alcon, including the non-standard terms, as it will provide for the safety, health and social service needs of County residents by ensuring continued access to specialized products necessary to perform intraocular procedures and treat patients with cataracts.
PROCUREMENT
Purchasing supports this non-competitive procurement based on equipment and system compatibility. The Alcon Argos Biometer is required for compatibility with existing Alcon ophthalmic equipment, software, and lenses used by ARMC for cataract treatment. Purchasing a different manufacturer's system would create interoperability issues, require additional training and costs, and reduce workflow efficiency. This purchase ensures seamless integration and continuity of patient care.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Bonnie Uphold, Supervising Deputy County Counsel,387-5487) on June 9, 2026; Risk Management (Arrissia Beaven, Staff Analyst II, 386-9030) on June 9, 2026; Purchasing (Veronica Pedace, Buyer III, 387-2464) on June 9, 2026; ARMC Finance (Chen Wu, Finance and Budget Officer, 580-3165) on June 11, 2026; and County Finance and Administration (Jenny Yang, Administrative Analyst, 387-4884) on June 11, 2026.