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.