HomeMy WebLinkAboutC2008-489 - 10/14/2008 - Approved2008-489
10/14/08
M2008-258
The Doctors' Center
THE DOCTORS' CENTER
DRUG AND ALCOHOL
TESTING SERVICES AGREEMENT
CITY OF CORPUS CHRISTI
FOR THE
DOT, NON-DOT, CDL EMPLOYEES, AND
PRE-EMPLOYMENT SCREENING TEST
DRUG AND ALCOHOL TESTING SERVICES AGREEMENT
CITY ~OiF~C/~ORPUSC~]HRISTI
!'~iTV~~~ 1LL` I P1I~~ILTV7.iI~ryCFi
FOR THE
DOT, NON-DOT, CDL EMPLOYEES, AND
PRE-EMPLOYMENT SCREENING TEST
ALCOHOL AND DRUG TESTING POLICY
THLS DRUG AND ALCOHOL TESTING SERVICES AGREEMENT
("AGREEMENT") is entered by and between the City of Corpus Christi. a Texas
municipal wrporation ("City"), and The Doctors' Center ("Contractor/Service
Provider") effective for all purposes the twentieth day of October 2008 and continuing
through the nineteenth day of October 2011, with an option to extend for up to two
additional twelve month periods.
Incorporated into this Agreement aze 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 current
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 HI 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, Fu•e 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 Paragraph 40.81 of 49 C.F.R. 40,
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
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-IY.
Such services include, but aze 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-lit 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-IV 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 Department employees and applicants
(Donors) covered by all City of Corpus Christi, Fue Department, 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 Duector, Fire Chief,
Police Chief, or designee(s). Contactor/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.
3. Contractor/Service Provider's collector must be specifically trained to carry
out DOT and NON-DOT drug 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 requrements 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 Department 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 Collector; 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.
7. Contractor/Service Provider shall provide competent and knowledgeable
staff who strictly follow DOT, NON-DOT, CDL and Facility prepazation
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 IV and incorporated
attachments; to provide facts regazding 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 Drector, 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 IaboratorV.
] 1. 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,
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
applicable regulatory procedures.
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. Confumed 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.
Holidays and weekend work schedules may alter the availability of
results as described above.
(c) Results (Delivery)
ne or o specumens mus a co using cus y-an -con- trol--
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, dvectly 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 of 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 Duector, in writing. Contractor/Service Provider must maintain
Donor test records in confidence as requved 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 supp]y 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
e e rc 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 Imowledge of dmg 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-toduty 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, azbitrations, 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 approved by the Human Resources Duector, Fire
Chief, Police Chief, or designee, within 30 days of receipt of a valid invoice. City will
not pay for 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 temtination by written notice, a final accounting will be made of the fees payable to
Contractor/Service Provider. The Human Resources Director, Fire Chief, Police Chiefs
good faith determination of the amount due in this regard is final and binding between the
parties. As the City's right to cancel and terminate this Agreement is expressly retained,
Contractor/Service Provider is not entitled fo 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 regazding this
mus a vec o e uman esources uector, 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 teen with an option to extend for up
- - --- -- to two additional twelve month periods. By submission of its proposal, the Proposer
. agees that the cost and price information quoted in its proposal is fixed and fum 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
to the extent of changes in the cost of material to the Contractor/Service Provider, as
reflected in written documentation provided to the City by the Contractor/Service
Provider. 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
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 banlavptcy by either party; or the making by either
party of an assignment for the benefit of creditors; or if any involuntary petition in
bankruptcy or petition for an arrangement 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, 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
temtination 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, 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
City. Contractor/Service Provider is the designated custodian of these Records, with
certain Records in the custody of Contractor/Service Provider's IVIRO. 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, Fve Chief, or Police Chief, when requested.
4.2 NO DOCTOR-PATIENT RELATIONSHIP
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 CONFH)ENTIAL
All Records wmpiled 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 belong to the city. Ij
ContraMOr/Service Provider or it's Agent believes that information provWed by a
Donor is confidential and chooses to redac7 that Information, or conversely falls to
redact confulentud information, then Contractor/Service Provider agrees to indemnify
City for all damages incurred by City due to Contractor/Servke Provider or it's Agent's
redaction of or failure to redact confidential tnlormat rn a ttecord~- _
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 Resourees 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 temrination or
expiration of this Agreement, or, if a lawsuit or azbitration 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 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
(1) The Conhactor/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
Ditector, 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, recertification 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
ova er or t s Agent ~s 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 urinePolood 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 preparation 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 temtinate 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 standazd community rates for Attorneys
of comparable experience; ditto secretarial and paralegal time; ditto copies made for
exhibits prepared for the Proceeding) and costs, all Human Resources staff time and
costs, all staff time and costs for the department 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 appeaz 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 Drector,
(which by defmition includes designees), about possible dates for Testimony within one
City of Corpus Christi business day and confum 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
Curly 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 all 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 construed 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
Duector 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: The Doctors' Center
Name of Individual: J. Keith Rose, M.D.
Title: President
Address: 4637 South Padre Island Drive
City: Corpus Christi
State: Texas
Telephone Number: 361-852-6824
E-mail Address: keithr@doctors-center.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, fn•e, strike, inevitable accident, war or any cause outside the
reasonable control of the parry 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.
f. Severability
h` 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 similaz 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 thne 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 prohibition, restriction, or limitation; otherwise, this
Agreement remains in full force and effect.
With respect to any other prohibition, restriction, or change that causes this
gent to be impermissible or materially different in its effect than
contemplated herein, the parties hereto will, in good faith, negotiate and amend
this Ageement to cause their relationship to be as consistent as possible with that
which is created herein; if this Ageement is not so amended in writing prior to
the effective date of said prohibition, restriction, or change, this Ageement
terminates on that date or as ageed in writing by the parties.
h. Sectiom Headings
Section headings contained in this Ageement are for reference purposes only
and do not affect, in any way, the meaning and interpretation of this Ageement.
i. Confidentiality
Contractor/Service Provider acknowledges that in the course of providing
services under this Ageement, it may be privy 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 agees 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 Ageement.
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 ojany 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
- Orman icotiol-~ rug es mg
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 Lease; (4) the exercise of rights
under this Agreement; or (S) 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
Agreemeni, regardless of whether the injury, damage, loss,
violation, exercise of rights, act, or omission is caused or is
claimed to be caused by the sole, contributing, or concurrent
negligence of Indemnitees, or any of them, and including all
expenses of litigation, court costs, and attorneys' fees, which
arise out of , or are claimed to arise out of, or in connection
with, the asserted or recovered incident 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
aU 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,
oyees, agen an representatives wr prove a 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 fscal 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 Ageement.
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.
CT CENTER
J. K ith Rose, .D.
President
~' OOUIYCII.....ld,`,~~ og
--.._......~.A-,
sECRCTABr {okl
APPROVED AS TO FORM THIS ~'~F'DAY OF 008
Mary ay F~is'chler, C TY ATT R3QEY
BY: ~V ~""
Veronica OcaHas,
Assistant City Attorney
Incorporated by reference:
Exhibit A• RFP No RT-0071.08 -
Exhibit B: Proposer's Proposal