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HomeMy WebLinkAboutC2008-196 - 5/20/2008 - ApprovedDRUG AND ALCOHOL TESTING SERVICES AGREEMENT CITY OF CORPUS CHRISTI CITY-WIDE/FIRE AND POLICE FOR THE DOT, NON-DOT, CDL EMPLOYEES, AND PRE-EMPLOYMENT SCREENING TEST ALCOHOL AND DRUG TESTING POLICY THIS DRUG AND ALCOHOL TESTING SERVICES AGREEMENT ("AGREEMENT") is entered by and between the City of Corpus Christi, a Texas municipal corporation ("City"), and Concentra Health Services d.b.a. Concentra Medical Centers, ("Contractor/Service Provider") effective for all purposes the first day of July 2008. Incorporated into this Agreement are Attachments, attached and incorporated, as follows: Attachment I contains DOT specimen collection procedures for drug testing and DOT alcohol testing procedures required by Department of Transportation (DOT) Transportation Workplace Drug and Alcohol Testing Programs, (49 CFR 40), for cun•ent employees and applicants assigned to the Gas Division, Marina, and covered under DOT, 49 CFR 199, Research and Special Program Administration, and DOT 49 CFR 382, et. al., Federal Highway Department, for covered employees required to have a Commercial Driver's License (CDL) to perform the essential functions of their jobs. Attachment II covers non-DOT drug specimen collection procedures for drug testing of employees and applicants covered under City-Wide Alcohol and Drug Policy. Attachment III covers NON DOT Specimen Collection Procedures for Drug Testing and NON DOT Alcohol Testing Procedures for Corpus Christi Fire Department Collection Procedure. Attachment IV NON DOT Specimen Collection Procedures for Drug Testing and NON DOT Alcohol Testing Procedures for Police Department Collection Procedure. Attachment V covers DOT and NON DOT Laboratory Drug Testing Protocol. Attachment VI covers Medical Review Officer (MRO) service procedures. Attachment VII is the Fee Schedule. 1.1 SERVICES A. COLLECTION SERVICES Contractor/Service Provider hereby agrees to perform drug and alcohol testing services for City's employees and applicants, Fire Department employees and applicants, Police Department employees and applicants (collectively Donor) as an independent contractor for the City in accordance with procedures for Department of Transportation (DOT) drug and alcohol testing for applicable Donors which are in compliance with DOT regulations under Paraeraoh 40.81 of 49 C.F.R. 40, Federal Procedures for Transportation Workplace Drug and Alcohol Testing Programs, attached and incorporated as Attachment I, and in accordance with drug testing procedures for all other Donors consistent with and with the level of 2008-196 M2008-124 05/20/08 Concentra Health Svcs. precision required for the federally approved DOT and NON DOT testing procedures, attached and incorporated as Attachment II, and in accordance with Fire and Police Department procedures, attached and incorporated as Attachments III and IV. Such services include, but are not limited to, the following: A minimum of two collection sites (Facility) provided as described in Attachments I through IV, which meet the Facility requirements of Federal DOT and NON-DOT regulations as cited above, and are clean, well-]it and secured as provided for in these Attachments. A collection site (Facility), complete with locker, lock, and key which meets all requirements of Attachment I-N incorporated herein is required for Fire and Police Department requirements. 2. Contractor/Service Provider must provide full collection services to City- Wide, Fire Department, and Police Deparhnent employees and applicants (Donors) covered by all City of Corpus Christi, Fire Deparhnent, and Police Department Alcohol and Drug Policies from Monday through Friday, 8 a.m, to 5 p.m., at Contractor/Service Provider's Facilities and for testing after hours (7 days a week including holidays) within one (1) hour after notification by pager by the Human Resources Director, Fire Chief, Police Chief, or designee(s). Contractor/Service Provider must make a designated Facility and a Collector of appropriate gender available for collection services. For DOT, NON-DOT, CDL City-Wide employees and applicants, Contractor/Service Provider shall provide full collection services to meet seasonal needs for full collection services, as required, by staying open until 6 p.m. each day and/or being open on Saturdays. Contractor/Service Provider's collector must be specifically trained to carry out DOT and NON-DOT drag and alcohol collections successfully, or must be a licensed medical professional, or technician, who is provided instructions for collection, which comply with federal regulations, cited above, and the Collective Bargaining Agreement between City and the Police and Fire Associations. Contractor/Service Provider's collector performing evidentiary breath tests (EBT) must use EBT equipment 1) approved by the National Highway Traffic Safety Administration (NHTSA) for evidentiary testing of breath and 2) included on NHTSA's "Conforming Products List of Evidential Breath Measurement Devices" (CPL) and 3) that meets the requirements of Paragraph 40.229 of 49 CFR 40. The breath alcohol technician (BAT) must be trained to proficiency in the operation of the EBT to be used and in the alcohol testing procedures required by Paragraph 40.51 of 49 CFR 40. 4. The Contractor/Service Provider must conduct background investigations on laboratory and collection personnel involved in the collection of samples or handling of unsealed samples collected from City of Corpus Christi Police Officers. The Contractor/Service Provider must not use employees to perform services under this Agreement who have been arrested by members of the City of Corpus Christi Police Deparhnent or who have been convicted of a felony or misdemeanor crime involving dishonest conduct or the possession of illegal drugs. 5. Contractor/Service Provider's Collectors must be specifically trained, or be licensed medical professionals or licensed technicians, who have received specific training from Contractor/Service Provider to carry out drug and alcohol collections following the protocols as specifically set out in the Agreement and incorporated attachments and must perform these requirements accurately and consistently. 6. Contractor/Service Provider must provide sufficient staffing to allow monitored and direct observation drug specimen collections (as stated in Attachment III) by Collectors of the same gender as the Donor for drug tests and to obtain specimens by direct observation if pre-approved by the Human Resources Director, Fire Chief, Police Chief, or designee. Contractor/Service Provider shall provide competent and knowledgeable staff who strictly follow DOT, NON-DOT, CDL and Facility preparation requirements as established in Attachments I - IV prior to collection and who can consistently follow strict Custody and Control procedures for ALL drug testing collections to ensure the integrity of each specimen collection and transfer of the specimen to the laboratory while maintaining the Donor's privacy and the confidentiality of the collection process. 8. Contractor/Service Provider must provide a qualified supervisor for the Facility to ensure total compliance with established protocols and procedures set out in the Attachment I through N and incorporated attachments; to provide facts regarding suspected adulteration of specimens; to coordinate with the Human Resources Director, Fire Chief, Police Chief or designee, and Contractor/Service Provider's personnel in resolving problems arising from any phase of the collection process; to supervise all aspects of the collection procedures including, but not limited to, maintaining collected specimens in a secured area prior to pick up by the courier; to oversee shipping of collected specimens to the drug testing laboratory following strict Custody and Control procedures and to ensure that every effort is made to minimize the number of persons handling specimens. 9. Contractor/Service Provider must provide Human Resources Director, or designee, with Contractor/Service Provider's courier's written procedure for the transportation of specimens to the laboratory which ensures confidentiality and integrity of the specimen. 10. Contractor/Service Provider must make collections of urine blood specimens and breath samples, following procedures in the applicable Attachment, using a CCF to ensure the integrity of the specimen from collection to receipt by the laboratory, and maintaining collected specimens in a secured area prior to being picked up by the courier and transported to the laboratory. 11. Contractor/Service Provider must make its collection, laboratory, and MRO personnel available to the Human Resources Director, Fire Chief, Police Chief, or designee, for legal depositions, courtroom testimony, evaluation of chain-of custody procedures followed, and other related matters in relation to drug and alcohol testing in connection with claims, administrative hearings, arbitrations, lawsuits, or other proceedings arising from the City's reliance on such specimen collections. This testimony and availability is of the essence of this Agreement and failure of Contractor/Service Provider's personnel to be available fora "Proceeding" is grounds for termination. B. LABORATORY SERVICES (a) Specimen Storage and Transportation Collected specimens must be maintained in a secured area prior to pick up by the courier. applicable regulatory procedures. The Contractor/Service Provider must ship the Specimen (both primary and split) to the Contractor/Service Provider's laboratory. Both parts of the Split Specimen (primary and split) must be placed in a single shipping container designed to minimize the possibility of damage during shipment together with copies 1, and 2, and the Split Specimen copy of the chain-of-custody form. The shipping container must be securely sealed to eliminate the possibility of undetected tampering. The Collector must ensure that the CCF documentation is enclosed in each container sealed for shipment to the drug testing laboratory. The Contractor/Service Provider will contact the specimen Collector and direct transport of the Specimens to the appropriate testing site in compliance with Attachment V, Laboratory Requirements, must be followed. (b) Results (Availability) 1. Negative results on initial screen will usually be released to the Contractor/Service Provider's Medical Review Officer ("MRO") within forty-eight (48) hours after receipt of the specimen at Proposer's facility. 2. Confirmed positive test results shall be released to Contractor/Service Provider's MRO within seventy-two (72) hours after receipt of the specimen at Proposer's facility. 3 . Holidays and weekend work schedules may alter the availability of results as described above. (c) Results (Delivery) Urine or blood specimens must be collected using custody-and-control procedures as provided in the applicable Attachment and tested by a laboratory certified by the Substance Abuse and Mental Health Services Administration (S.A.M.H.S.A.) and accredited by the College of American Pathologists - Forensic Drug Testing program. The testing laboratory must transmit all test results, in writing, directly to the Medical Review Officer (MRO). The Fire Department will pick up all results in person and by hand. Results for the Police Department shall be transmitted via electronic mail and Express Mail to the designated Police Department point-of-contact. Contractor/Service Provider must not communicate results verbally. Results from the laboratory may be transmitted verbally or by fax for DOT and NON-DOT City Employees, or pre- employment screening to the Human Resources Director, or designee. Contractor/Service Provider must discuss or provide additional information on results to the MRO and other personnel who may be designated by the Human Resources Director, in writing. Contractor/Service Provider must maintain Donor test records in confidence as required by applicable laws and regulations. (d) Supplies The Contractor/Service Provider must provide all supplies essential to the split- specimen collection (primary and split specimen portions), identification, packaging and transportation of specimens to the laboratory testing site or of a split specimen to a second laboratory which meets the required certification/accreditation requirements. (e) Chain-of-Custody Form CCF approved by the Human Resources Director, Fire Chief, Police Chief, or designee, must be used by Contractor/Service Provider to account for the integrity of each urine and blood specimen or breath sample by tracking its handling and storage from point of collection to final disposition. Collection Procedures incorporated in Attachment V are designed to disclose evidence of specimen tampering. Specimens arriving at the testing site showing signs of tampering or damage will be considered void and unqualified for testing. Contractor/Service Provider will notify the Human Resources Director, Fire Chief, Police Chief, or designee, in writing of any specimen it receives which shows any evidence of tampering or damage. (f) Coordination of Activities All drug testing services will be coordinated by Contractor/Service Provider's personnel, who will be responsible for setting up the Facility to ensure proper implementation of supply distribution, specimen transportation, results delivery, invoicing, and collection orientation. The Contractor/Service Provider will provide periodic training on custody-and-control collection procedures for the collection site personnel if requested by the Human Resources Director, Fire Chief, Police Chief, or designee. C. MEDICAL REVIEW OFFICER SERVICES The Medical Review Officer (MRO) for the City of Corpus Christi City-Wide, Fire Department, and Police Department's Alcohol And Drug Policies is required to be a licensed physician with lmowledge of drug abuse disorders and certified as an MRO by the American Association of Medical Review Officers. Contractor/Service Provider must provide a physician to perform Medical Review Officer Services as an independent contractor for the City in accordance with the medical services and procedures set out in the attached Attachment VI including but not limited to the following: 1.. medical review of drug and alcohol laboratory test results, 2. maintenance of medical records for the drug testing program; 3. provide statistical data reports to the Human Resources Director, Fire Chief, Police Chief, or designee, based on program test results; 4. assessing fitness of employees for return-to-duty or applicants' fitness for hire based on drug test results; 5. providing services, such as legal depositions, courtroom testimony, evaluation of test results and advice about medical matters in relation to drug and alcohol testing, as required by the City Attorney in connection with grievances, arbitrations, claims and lawsuits or other proceedings arising from the City's reliance on such test results. 2.1 FEES City will pay Contractor/Service Provider for services rendered by Contractor/Service Provider at the rate for each service quoted by Contractor/Service Provider in Attachment VII, attached and incorporated. Contractor/Service Provider will invoice City monthly. City will pay invoices as reasonably approved by the Human Resources Director, Fire Chief, Police Chief, or designee, within 30 days of receipt of a valid invoice. Contractor/Service Provider will re-perform, at no cost to the City, services that are unsatisfactory or that have not been approved by the Human Resources Director, Fire Chief, Police Chief, or their respective designees. 2.2 FEES UPON TERMINATION Upon termination by written notice, the City will pay all fees for all services provided by the Contractor/Service Provider within thirty (30) days of the date of termination. As the City's right to cancel and terminate this Agreement is expressly retained, Contractor/Service Provider is not entitled to lost or anticipated profits if the City of Corpus Christi, exercises such right. 2.3 CITY'S REPRESENTATIVE The City's representative is the Human Resources Director, Fire Chief, Police Chief or their respective designees, who is authorized to direct Contractor/Service Provider to provide professional services related to testing of drug and alcohol specimens, and breath samples. All invoices, requests for payment, notices, or communications regarding this Agreement must be directed to the Human Resources Director, Fire Chief, Police Chief, or designee in accordance with the specified testing method. 3.1 TERM (a) This Agreement shall be for athirty-six-month term with an option to extend for up to two additional twelve month periods. By submission of its proposal, the Proposer agrees that the price information quoted in its proposal is fixed and firm for the duration of the term of this Agreement, provided that upon extension of the Agreement for an additional twelve-months period(s), the prices for the services to be delivered during the ensuing twelve-month period(s) may be increased or decreased as may be agreed upon by the parties. At the end of the original Agreement period or any extension period, if the City has not completed the procurement process and awarded a new Agreement, the City Manager, or his designee, may extend this Agreement on a month-to-month basis, not to exceed six months, and at the pricing in place upon expiration of the original Agreement or most recent extension. (b) This Agreement automatically terminates on and as of the date any of the following occur: The filing of a petition in bankruptcy by either party; or the making by either party of an assignment for the benefit of creditors; or if any involuntary petition in bankmptcy or petition for an an•angement pursuant to the Bankruptcy Act is filed against either of the parties; or if a receiver is appointed for the business of either party, or any part thereof, or if either party by law, or otherwise, discontinues its operations for any reason whatsoever. (c) If either party fails to comply with any material term of this Agreement, the other party may, at its discretion, declare a default and terminate this Agreement upon thirty (30) days written notice of its intention to so terminate, unless if within the notice period, the defaulting party has cured the default. (d) Following expiration or termination of this Agreement by either party, Contractor/Service Provider must continue to make available to City, upon reasonable prior written request and to the extent permissible under applicable law, copies of documents and records relating to tests performed by Contractor/Service Provider under this Agreement and must provide specimen retention services, consultation by Contractor/Service Provider's scientific and medical personnel, and litigation assistance relating to tests performed prior to termination of this Agreement, at the fees set out in Attachment VII. Any such services for which a fee is not specified in Attachment VII will be billed at Contractor/Service Provider's reasonable and customary fees for such services. 3.2 RIGHT TO TERMINATE The City Manager, or his designee, may terminate this Agreement for Contractor's failure to perform the services specified in Request for Proposal No. BI-0071-08. Failure to keep all insurance policies in force for the entire term of this Agreement is grounds for termination. The City's Contract Administrator must give Contractor 5 work-days written notice of the breach and set out a reasonable opportunity to cure. If the Contractor has not cured within the cure period, the City Manager, or his designee, may terminate this Agreement immediately thereafter. Alternatively, City may terminate this Agreement, with or without cause, upon 90 days written notice to Contractor. However, City may terminate this Agreement on 24-hours written notice to Contractor for failure to pay or provide proof of payment of taxes as set out herein. If the City terminates its Contract under the foregoing paragraph, the City shall pay the Contractor for services actually performed prior to such termination, less such payments as have been previously made. Contractor shall not be entitled to any further compensation for work performed by the Contractor or anyone under its control or direction from the date of receipt of notice of cancellation including any and all costs related to the transferring of any files to another Contractor or any costs related to the electronic transfer of any information including, but not limited to, tape transfers, downloads, uploads, CD, etc. Within thirty (30) days of the date of termination of the Contract and at the Contractor's expense and to the extent permissible under applicable law, the Contractor shall provide the City reproducible copies of all work completed or partially completed documents prepared under the Contract -all such documents thereinafter being the sole property of the City. 4.1 RECORDS BELONG TO CITY All Records compiled by Contractor/Service Provider, it's employees, contractors, and agents, including without limitation Contractor/Service Provider's MRO, (collectively called Contractor/Service Provider's Agent) are compiled for the City to use in determining whether a Donor uses or has used drugs or alcohol. All records belong, to the extent permissible under applicable law, to the City. Contractor/Service Provider is the designated custodian of these Records, with certain Records in the custody of Contractor/Service Provider's MRO. All Records are compiled pursuant to a waiver signed by the Donor that authorizes Contractor/Service Provider to provide the Records to the Human Resources Director, Fire Chief, or Police Chief. It is the essence of this Agreement that Contractor/Service Provider provide all Records to the Human Resources Director, Fire Chief, or Police Chief, when requested. 4.2 NO DOCTOR-PATIENT RELATIONSIIIP Contractor/Service Provider and it's Agent (specifically including Contractor/Service Provider's MRO) have no Doctor-Patient relationship with any Donor who provides a urine or blood specimen, or breath sample for drug or alcohol testing, or information during personal interviews between a Donor and Contractor/Service Provider's Agent with regard to drug and alcohol testing only. Contractor/Service Provider does have a relationship with City, which is purchasing it's Services. 4.3 RECORDS NOT CONFIDENTIAL All Records compiled by Contractor/Service Provider and Contractor/Service Provider's Agent (specifically including Contractor/Service Provider's MRO) from information and samples provided by a Donor are compiled for the City and, to the extent permissible under applicable law, belong to the city. If Contractor/Service Provider or it's Agent believes that information provided by a Donor is confidential and chooses to redact that information, or conversely fails to redact confidential information, then Contractor/Service Provider agrees to indemnify City for all damages incurred by City due to Contractor/Service Provider or it's Agent's redaction of, or failure to redact, confidential information from the Records. 4.4 RECORDS UPON TERMINATION Upon termination by either party, Contractor/Service Provider must within sixty (60) days deliver to the Human Resources Director all records, and files, as requested by the Human Resources Director. Books, Records, and other evidence pertaining to the drug and alcohol testing services performed under this Agreement which are retained by the Contractor/Service Provider must be maintained for five (5) years after termination or expiration of this Agreement, or, if a lawsuit or arbitration of this Agreement, or if a lawsuit or arbitration is pending, until a final decision is reached. All such Records and files and such other material maintained by the Contractor/Service Provider after termination of the Agreement must, to the extent permissible under applicable law, be made available to the Human Resources Director or designee at all reasonable times during the term of this Agreement for inspection or audit by the City Manager. 5.0 INSURANCE Before activities can begin under this Agreement, a Certificate of Insurance as proof of the required insurance coverage must be delivered to the Human Resources Director or designee, which provides, at a minimum, the amounts of coverage as detailed in Section 2.39 "Insurance Provisions" of the RFP. 6.0 CERTIFICATIONS (I) The Contractor/Service Provider must use a laboratory, for initial and confirmation drug testing and for breath or blood alcohol testing services performed under this Agreement, which is certified by the Substance Abuse and Mental Health Services Administration (S.A.M.H.S.A.) and accredited by the College of American Pathologists -Forensic Drug Testing program and must provide documentation of this certification as required in the RFP. Any changes in laboratory certification status or in the specific S.A.M.H.S.A. and C.A.P. laboratory used by Contractor/Service Provider must be reported to the Human Resources Director, or designee prior to such change. Any re-certification/re- accreditation by Laboratory must be reported to the City's Human Resources Director, in writing, within thirty (30) days after such re- certification/re-accreditation. (2) A copy of the Physician's Medical Review Officer Certification from the American Association of Medical Review Officers must be provided to the City prior to commencement of services. The Human Resources Director, or designee, must be notified within thirty (30) days of any change in the MRO's certification status, re-certification or renewal of certification obtained by the Contractor/Service Provider's designated physician performing MRO services under this Agreement. 7.0 TESTIMONY It's Agent's testimony (specifically including MRO's testimony) both in preparation for any "Proceeding" and at the actual "Proceeding" itself, which concerns any drug and alcohol collection, test, evaluation, or MRO services provided by Contractor/Service Provider or It's Agent is the essence of this Agreement "Testimony". Testimony from Contractor/Service Provider's Agent is absolutely essential for the City to defend any grievance, arbitration, or lawsuit that results from any donor challenging City's actions based on the results of that Donor's drug or alcohol urine/blood specimen or breath sample that was collected, tested, or evaluated by Contractor/Service Provider or It's Agent or reviewed by Contractor/Service Provider's MRO. Said grievance, arbitration, or lawsuit and prepazation for same is collectively called "Proceeding". The failure of Contractor/Service Provider or It's Agent to appear in person to provide Testimony for any Proceeding is grounds for the City Manager to terminate this Agreement, or, alternatively, require Contractor/Service Provider to pay all of City's costs in preparing for and defending said Proceeding. At a minimum, the costs of a Proceeding include all Legal Staff time (Attorney's time will be billed at standard community rates for Attorneys of comparable experience; ditto secretarial and paralegal time; ditto copies made for exhibits prepared for the Proceeding) and costs, al] Human Resources staff time and costs, all staff time and costs for the deparhnent whose employee or applicant (i.e. Donor) caused the Proceeding to occur [NOTE: in the case of Police and Fire Departments this may include overtime costs], and all expert witness fees, including the cost of Contractor/Service Provider's MRO's fees and any Arbitrator's Fees. The failure of Contractor/Service Provider's Agent (specifically including Contractor/Service Provider's MRO) to appear in person and give live Testimony at a Proceeding is presumed to be the reason that City lost the Proceeding. City's costs in an arbitration Proceeding that is decided against the City include all the azbitration costs. 7.1 CONTACT PERSON Contractor/Service Provider must provide the name, address, phone number, and fax number of a single person who has the authority to schedule times for Contractor/Service Provider's Agents (specifically including Contractor/Service Provider's MRO) to provide live, in person Testimony for Proceedings, (this person with authority to schedule is the "Contact Person"). The Contact Person must talk to the Human Resources Director, (which by definition includes designees), about possible dates for Testimony within one City of Corpus Christi business day and confirm dates that Contractor/Service Provider's Agent (including Contractor/Service Provider's MRO) are available for live, in person Testimony for a Proceeding within eight (8) business days. 7.2 WAIVER OF LIVE TESTIMONY Only the Hearing Examiner in a Proceeding (e.g. chairperson of the Civil Service Board or Commission, Judge, Arbitrator collectively called "Hearing Examiner" herein) has the authority to provide a prior written waiver that any Contractor/Service Provider's Agent (specifically including Contractor/Service Provider's MRO) does not have to appear in person and give live Testimony. It is the obligation of any Contractor/Service Provider's Agent who wishes to not appear in person and give live Testimony to make prior written arrangements with the Hearing Examiner and copy the Human Resources Director, and the City Attorney at (361) 880-3239 with all correspondence between Contractor/Service Provider's Agent and the Hearing Examiner. Simply because aContractor/Service Provider's Agent obtained the Hearing Examiner's prior written approval to not appear in person and give live Testimony does not rebut the presumption that the failure to give live Testimony is why the City lost the Proceeding. 8.0 MISCELLANEOUS a. Applicable laws and venue Contractor/Service Provider must comply with all applicable federal and state laws and al] applicable rules and regulations promulgated by local, state and federal agencies. This Agreement must be enforced in Nueces County, Texas, and must be governed and constmed in accordance with the laws of the State of Texas. b. Notices All notices required under this Agreement must be in writing, personally delivered or sent by certified mail, return receipt requested, addressed to the other party as follows. IF TO CITY: City of Corpus Christi 1201 Leopard 78401 P.O. Box 9277 78469 Corpus Christi, Texas Phone #(361) 880-3315 Fax #(361)880-3322 Attention: Cynthia C. Garcia Director of Human Resources AND Richard Hooks, Fire Chief Fire Department, City of Corpus Christi 2406 Leopard Street Corpus Christi, Texas 78408 Phone # (361) 880-3900; Fax # (361) 887-8053. AND Bryan Smith, Chief of Police Police Department City of Corpus Christi P.O. Box 9277 Corpus Christi, Texas 78469 IF TO CONTRACTOR/SERVICE PROVIDER: Name of Organization: Concentra Health Services d.b.a. Concentra Medical Centers Name of Individual: Patrick O'Toole Title: Regional Sales Manager Address: 10200 Broadway, Suite 201 City: San Antonio State: Texas Telephone Number: 210-654-3192 Facsimile Number: 210-654-3731 E-mail Address: patrick_o'toole@concentra.com Either party may change its address to which written notice must be sent as provided in this section. c. Force Majeure Neither party will be liable for failure to perform any duty or obligation that either may have under this Agreement where such failure has been caused by any act of God, fire, strike, inevitable accident, war or any cause outside the reasonable control of the party who had the duty to perform. d. Waiver The failure of either party to exercise or enforce any right conferred upon it hereunder will not waive any such right nor bar the exercise of performance thereof at any time or times thereafter; nor is City's waiver of any right hereunder at any time, including rights to any payment, a waiver thereof for any other time. e. Non-assignment This Agreement must not be assigned or transferred by Contractor/Service Provider without the prior written consent of the City Manager, or designee. Contractor/Service Provider is at all times solely responsible for the provision of the drug and alcohol specimen collection, testing, laboratory and MRO services and the competency of services provided hereunder, whether accomplished through its officers and employees or through its agents or subcontractors. Severability If any provision of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, the parties will, if possible, agree on a legal, valid and enforceable substitute provision which is as similar in effect to the deleted provision as possible. The remaining portion of the Agreement not declared illegal, invalid or unenforceable remains valid and effective for the term remaining unless the provision found illegal, invalid or unenforceable goes to the essence of this Agreement. g. Legislative Modification Notwithstanding any other provision to the contrary, if any federal, state, or local law, rule, regulation, or interpretation thereof at any time during the term of this Agreement prohibits, restricts, or in any way materially changes the type of services rendered under this Agreement, then this Agreement may, in good faith, be amended by the parties to provide for payment of compensation in a manner consistent with any such prohibifion, restriction, or limitation; otherwise, this Agreement remains in full force and effect. With respect to any other prohibition, restriction, or change that causes this Agreement to be impermissible or materially different in its effect than contemplated herein, the parties hereto will, in good faith, negotiate and amend this Agreement to cause their relationship to be as consistent as possible with that which is created herein; if this Agreement is not so amended in writing prior to the effective date of said prohibition, restriction, or change, this Agreement terminates on that date or as agreed in writing by the parties. h. Section Headings Section headings contained in this Agreement are for reference purposes only and do not affect, in any way, the meaning and interpretation of this Agreement. i. Confidentiality Contractor/Service Provider acknowledges that in the course of providing services under this Agreement, it maybe priry to certain confidential information of the City and Donors, including but not limited to laboratory testing results, Donor medical records, and other confidential documents or information. Contractor/Service Provider agrees and directs all of Contractor/Service Provider's Agents that it, its employees and agents, must not directly or indirectly divulge or disclose to third persons any of such confidential information, except as specifically authorized or directed in writing by the Human Resources Director, Fire Chief, Police Chief, or designee. Contractor/Service Provider must advise Contractor/Service Provider's employees and agents having access to such information of the confidential nature of such information and must take reasonable steps to inform each Contractor/Service Provider's employees and agent's to preserve the confidentiality of such information and materials. Contractor/Service Provider and Contractor/Service Provider's employee's and agent's obligation under this provision must survive the expiration and/or termination of this Agreement. j. Indemnification In consideration of allowing Contractor to provide drug testing services to the City of Corpus Christi, contractor ("Indemnitor") covenants to fully indemnify, save and hold harmless the City, its officers, agents, representatives, and employees (collectively, "Indemnitees") from and against any and all liability, loss, damages, claims, demands, suits, and causes of action of any nature whatsoever asserted against or recovered from City on account of injury or damage to person including, without limitation on the foregoing, premises defects, workers' compensation and death claims, or property loss or damage of any other kind whatsoever, to the extent any injury, damage, or loss may be incident to, arise out of, be caused by, or be in any way connected with, either proximately or remotely, wholly or in part: (1) Contractor's performance pursuant to this Alcohol and Drug Testing Services Agreement (the "Agreement'); (2) Contractor's use of any premises and any and all activities associated therewith pursuant to this Agreement; (3) the violation by Contractor, its officers, employees, agents, or representatives or by Indemnitees, or any of them, of any law, rule, regulation, ordinance, or government order of any kind pertaining, directly or indirectly, to this Agreement; or (4) an act or omission on the part of Contractor, its officers, employees, agents, or representatives or of Indemnitees, or any of them, pertaining to this Agreement. Contractor covenants and agrees that, if City is made a party to any litigation against Contractor or in any litigation commenced by any party, Contractor shall, upon receipt of reasonable notice regarding commencement of litigation or claim, at its own expense, investigate all claims and demands, attend to their settlement or other disposition, defend City in all actions based thereon with legal counsel satisfactory to City, and pay all reasonable charges of attorneys and all other costs and expenses of any kind whatsoever arising from any said liability, injury, damage, loss, demand, claim, or action. This indemnity expressly includes claims brought by Contractor's own employees. k. Notice of Claim The Human Resources Director, will promptly notify Contractor/Service Provider of any claim asserted against it for which such indemnification is sought, and will promptly deliver to Contractor/Service Provider a true copy of any such claim including, but not limited to, a true copy of any summons or other process, pleading or notice issued in any lawsuit or other proceeding to assert or enforce such claim. The City Manager may participate in such investigation, trial and defense of such lawsuit or action and any appeal arising therefrom. The City, its officers, employees, agents, and representatives will provide full cooperation to the Contractor/Service Provider at all times during the pendency of the claim or lawsuit, including, without limitation, providing Contractor/Service Provider with all available information concerning the claims. 1. Non-Appropriations The continuation of this Agreement after the close of any fiscal year of the CiTy, which fiscal year ends on July 31 of each year, will be subject to appropriations and budget approval covering this Agreement as an expenditure in said budget; however, it is within the sole discretion of City Council to determine whether to fund this Agreement. m. Whole Agreement This Agreement and its Attachments contain all commitments and agreements of the parties hereto, superseding any previous agreements between the parties, and no modification of this Agreement may be made except by written amendment executed by the duly authorized representatives of the parties hereto. SIGNED this ~ ~ day of ~ ^~` ,2008. CONT. CTOR: ~' Name: G-r~~ w~, Ca,.1e~r 1r Title: S • ~ •p, ATT T: I Y ORPUS CHRISTI a~b P Mic 1 arrera Assistant Director of Financial Services ~ Qvo` ~„ IIUTHORI1tn 1T (lOtlN01l.... ~.~~.~. ~~.P.lB/!~ ~~ SECfiE~RY /Qh~• ATTEST. ARMANpp CHAPA ~'~-~~~ CITY SECgETAR" APPROVED AS TO FORM THIS ~ DAY OF %1008 Mary Kay Fischer, CITY TO Y BY: Veronica Ocanas, Assistant City Attorney Incorporated by reference: Exhibit A: RFP No. BI-0071-08 Exhibit B: Proposer's Proposal Exhibit C: Revised Insurance Provisions 2 39'=Insurance Provisions Prior to the commencement of any work under this RFP, Proposer shall furnish an original completed Certificate(s) of Insurance to the City which shall be completed by an agent authorized to bind the named underwriter(s) and their company to the coverage, limits, and termination provisions shown thereon, and which shall furnish and contain all required information referenced or indicated thereon. The original certificate(s) must have the agent's original signature, including the signer's company affiliation, title and phone number, and be mailed directly from the agent to the City. The City shall have no duty to pay or perform under this RFP until such certificate shall have been delivered to the City, and no officer or employee, other than the City's Risk Manager, shall have authority to waive this requirement. The City reserves the right to review the insurance requirements of this section during the effective period of any Contract(s) resulting from this RFP and any extension or renewal thereof and to modify insurance coverage and their limits when deemed necessary and prudent by the Risk Manager based upon changes in statutory law, court decisions, or circumstances surrounding this RFP, but in no instance will the City allow modification whereupon the City may incur increased risk. A Proposer's financial integrity is of interest to the City, therefore, subject to Proposer's right to maintain reasonable deductibles in such amounts as are approved by the Risk Manager, Proposer shall obtain and maintain in full force and effect for the duration of this proposal, and any extension hereof, at Proposer's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and rated A- or better by A.M. Best Company and/or otherwise acceptable to the City, in the following types and amounts: TYPE AMOUNT Workers' Compensation Statutory Employers Liability $500,000/$500,000/$500,000 2. Commercial General Liability Insurance a. Premises operations Combined Single Limit for Bodily Injury and Property Damage of $1,000,000 per occurrence or its equivalent b. Independent Contractors c. Products/completed operations d. Personal Injury e. Contractual Liability 3. Professional Liability Errors and Omissions To include Medical Malpractice $1,000,000 per medical incident to pay on behalf of the insured all sums which insured shall become legally obligated to pay as damages by reason of any act, malpractice, error or omission in professional services; if written on a "Claims Made" form, must provide for an extended reporting period of twenty-four (24) months after the date of PROPOSAL termination. The City shall be entitled, upon request and without expense, to receive copies of the policies and all endorsements thereto as they apply to the limits required by the City, and may make a reasonable request for deletion, revision, or modification of particular policy terms, conditions, limitations or exclusions (except where policy provisions are established by law or regulation binding upon either of the parties hereto or the underwriter of any such policies). Upon such request by the City, the Proposer shall exercise reasonable efforts to accomplish such changes in policy coverage, and shall pay the cost thereof. Proposer agrees that with respect to the above required insurance, all insurance proposals and Certificate(s) of Insurance will contain the following required provisions. • Name the City and its elected officials, officers, directors, employees, agents, volunteers and representatives as additional insureds (as the interests of each insured may appear), as to all applicable coverages respects operations and activities of, or on behalf of, the named insured performed under proposal with the City, with the exception of professional liability and workers' compensation policies; • The Proposer's insurance shall be deemed primary with respect to any insurance or self insurance carved by the City for liability arising out of operations under the proposal with the City; and • Workers' compensation and employers' liability policy will provide a waiver of subrogation in favor of the City only on those acts deemed to be at Proposer's negligence. • Proposer shall notify the City in writing in the event of any notice of cancellation, non-renewal or material change in coverage and shall give such notices not less than thirty (30) days prior to the change, or ten (10) days notice for cancellation due to non-payment of premiums, which notice must be accompanied by a replacement Certificate of Insurance. All notices shall be given to the City at the following address: City of Corpus Christi Attn: Risk Manager P. O. Box 9277 Corpus Christi, TX 78469-9277 If Proposer fails to maintain the aforementioned insurance, or fails to secure and maintain the aforementioned endorsements, the City may obtain such insurance, and deduct and retain the amount of the premiums for such insurance from any sums due under the agreement; however, procuring of said insurance by the City is an alternative to other remedies the City may have, and is not the exclusive remedy for failure of Proposer to maintain said insurance or secure such endorsement. In addition to any other remedies the City may have upon Proposer to stop work hereunder, and/or withhold any payment(s) which become due, to Proposer hereunder until Proposer demonstrates compliance with the requirements hereof. Nothing herein contained shall be construed as limiting in any way the extent to which Proposer may be held responsible for payments of damages to persons or property resulting from Proposer's or its subcontractors' performance of the work covered under this agreement.