HomeMy WebLinkAbout25H - AGMT DOT DRUG TESTING SVCREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
JANUARY 16, 2018
TITLE:
APPROVE PROFESSIONAL AGREEMENT
WITH GARY LINNEMANN, M.D. TO PROVIDE
DEPARTMENT OF TRANSPORTATION (DOT),
PRE-EMPLOYMENT, POST -ACCIDENT, AND
RANDOM DRUG AND ALCOHOL TESTING
SERVICES. {STRATEGIC PLAN NO. 7, 6}
Cl -*MANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1" Reading
❑ Ordinance on 2n' Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of Council to execute the attached agreement with Gary
Linnemann, M.D., subject to non -substantive changes approved by the City Manager and City
Attorney, to provide Department of Transportation (DOT) mandated testing procedures for the
period of November 16, 2017 through November 16, 2018, in the amount not to exceed $12,500.
DISCUSSION
The City of Santa Ana has approximately 1,000 full-time employees and 500 part-time employees
working in jobs ranging from public safety to heavy labor to clerical and administrative positions.
Offers of employment to prospective employees performing safety sensitive duties are conditional
upon a successful completion of a pre-employment medical exam and drug test. In addition,
periodical examinations are provided for current city employees as required by law or under
special circumstances.
Since May 18, 2015, the City has contracted with Dr. Linnemann to provide DOT mandated drug
and alcohol testing services such as Pre-employment, Pre -assignment, Random, Reasonable
Suspicion and Post Accident testing. The current agreement with Dr. Linnemann expired on June
30, 2017. Staff is recommending that the City enter into a one-year agreement with Dr.
Linnemann to continue DOT mandated testing procedures per the attached agreement. During
this time, the City will conduct a Request for Proposal (RFP) for such services.
25H-1
Professional Services Dr. Linnemann, M.D.
January 16, 2018
Page 2
STRATEGIC PLAN ALIGNMENT
Approval of item allows the City to meet Goal #7 — Team Santa Ana, Objective #6, provide a
positive workplace environment that supports the health of its employees and celebrates its
success.
FISCAL IMPACT
Funds are budgeted and available in the various departmental Contractual Services —
Professional account (no. 62300). The estimated amount of expenditures in FY 2017-2018 is
$6,250 and FY 2018-19 is $6,250.
c
Ellen Smiley
Acting Executive Dir ctor
Personnel Services
Exhibit: 1. Gary Linnemann, M.D. Agreement
APPROVED AS TO FUNDS AND ACCOUNTS:
Fr n o Gutierrez 450
Executive Director
Finance & Management Services Agency
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AGREEMENT TO PROVIDE DRUG AND ALCOHOL
TESTING OF CITY EMPLOYEES
THIS AGREEMENT is made and entered into this 16`h day of November, 2017 by and
between GaryLirgi�tnann :D% ("Consultant'), and the City of Santa Ana, a charter city and
municipal co' pOrafion organized and existing under the Constitution and laws of the State of
California ("City").
RECITALS
A. The City desires to retain a medical consultant having special skill and knowledge and
expertise in the field of health services to provide drug and alcohol testing of City
employees, both during and after regular business hours, as needed.
B. Consultant represents that Consultant is able and willing to provide such services to the
City.
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this
Agreement will be performed in compliance with such standards as may reasonably be
expected from a professional consulting firm in the field.
NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the
terms and conditions hereinafter set forth, the parties agree as follows:
1. SCOPE OF SERVICES
a. Consultant shall perform Department of Transportation (DOT) drug and alcohol
testing, following DOT -mandated testing procedures as per 49 CFR, Part 40. Such
testing shall include:
Pre-employment;
Pre -assignment;
Random;
Reasonable Suspicion; and
Post -Accident
b. Consultant shall maintain a current valid contract with a Substance Abuse and Mental
Health Services Administration (SAMSHA) certified laboratory.
c. Consultant shall perform non -DOT related reasonable suspicion and post -accident drug
and alcohol testing.
d. Turn -around time from specimen collection to obtained test results shall be two (2)
working days for a negative test, and five (5) working days for a positive test.
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e. Consultant shall be available to perform above testing during regular business hours as
well as after regular business hours, including evening and weekends.
2. COMPENSATION
i
a. The total sum to be expended under this Agreement shall not exce6_&S 2-'500, l lug
the term of this Agreement. City Agrees to pay, and Consultant agrees to accept as
total payment for its services for City, the rates and charges identified in Exhibit A,
attached hereto and incorporated by reference.
b. Payment by City shall be made within forty-five days (45) days following receipt of
proper invoice evidencing work performed, subject to City accounting procedures.
Payment need not be made for work which fails to meet the standards of performance
set forth in the Recitals which may reasonably be expected by City.
3. TERM
This Agreement shall continence on the date first written above for one (:1 );;year: unless
terminated earlier in accordance with Section 12, below.
4. INDEPENDENT CONTRACTOR
Consultant shall, during the entire term of this Agreement, be construed to be an
independent contractor and not an employee of the City. This Agreement is not intended nor shall
it be construed to create au employer-employee relationship, a joint venture relationship, or to
allow the City to exercise discretion or control over the professional manner in which Consultant
performs the services which are the subject matter of this Agreement; however, the services to be
provided by Consultant shall be provided in a manner consistent with all applicable standards and
regulations governing such services. Consultant shall pay all salaries and wages, employer's social
security taxes, unemployment insurance and similar taxes relating to employees and shall be
responsible for all applicable withholding taxes.
5. INSURANCE
Prior to undertaking performance of work under this Agreement, Consultant shall maintain
and shall require its subcontractors, if any, to obtain and maintain insurance as described below:
a. Commercial General Liability Insurance. Consultant shall maintain commercial
general liability insurance naming the City, its officers, employees, agents,
volunteers and representatives as additional insured(s) and shall include, but not be
limited to protection against claims arising from bodily and personal injury,
including death resulting therefrom and damage to property, resulting from any act
or occurrence arising out of Consultant's operations in the performance of this
Agreement, including, without limitation, acts involving vehicles. The amounts of
insurance shall be not less than the following: single limit coverage applying to
bodily and personal injury, including death resulting therefrom, and property
damage, in the total amount of $1,000,000 per occurrence, with $2,000,000 in the
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aggregate. Such insurance shall (a) name the City, its officers, employees, agents,
and representatives as additional insured(s); (b) be primary and not contributory
with respect to insurance or self-insurance programs maintained by the City; and
(c) contain standard separation of insureds provisions.
b. Business automobile liability insurance, or equivalent form, with a combined single
limit of not less than $1,000,000 per occurrence. Such insurance shall include
coverage for owned, hired and non -owned automobiles.
C. Worker's Compensation Insurance. In accordance with the provisions of Section
3700 of the Labor Code, Consultant, if Consultant has any employees, is required
to be insured against liability for worker's compensation or to undertake self-
insurance. Prior to commencing the performance of the work under this
Agreement, Consultant agrees to obtain and maintain any employer's liability
insurance with limits not less than $1,000,000 per accident.
d. Professional liability (errors and omissions) insurance, with a combined single limit
of not less than $1,000,000 per claim with $2,000,000 in the aggregate.
e. The following requirements apply to the insurance to be provided by Consultant
pursuant to this section:
i. Consultant shall maintain all insurance required above in full force and
effect for the entire period covered by this Agreement.
ii. Certificates of insurance shall be famished to the City upon execution of
this Agreement and shall be approved by the City.
iii. Certificates and policies shall state that the policies shall not be canceled or
reduced in coverage or changed in any other material aspect without thirty
(30) days prior written notice to the City.
iv. Consultant shall supply City with a fully executed additional insured
endorsement.
If Consultant fails or refuses to produce or maintain the insurance required by this
section or fails or refuses to furnish the City with required proof that insurance has
been procured and is in force and paid for, the City shall have the right, at the City's
election, to forthwith terminate this Agreement. Such termination shall not affect
Consultant's right to be paid for its time and materials expended prior to notification
of termination. Consultant waives the right to receive compensation and agrees to
indemnify the City for any work performed prior to approval of insurance by the
City.
6. INDEMNIFICATION
Consultant agrees to defend, and shall indemnify and hold harmless the City, its officers,
agents, employees, contractors, special counsel, and representatives from liability: (1) for personal
injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for
personal injury, including death, and claims for property damage, which may arise from the
negligent operations of the Consultant, its subcontractors, agents, employees, or other persons
acting on its behalf which relates to the services described in section 1 of this Agreement; and (2)
from any claim that personal injury, damages, just compensation, restitution, judicial or equitable
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relief is due by reason of the terms of or effects arising from this Agreement. This indemnity and
hold harmless agreement applies to all claims for damages, just compensation, restitution, judicial
or equitable relief suffered, or alleged to have been suffered, by reason of the events referred to in
this Section or by reason of the terms of, or effects, arising from this Agreement. The Consultant
further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including
fees and costs for special counsel to be selected by the City, regarding any action by a third party
challenging the validity of this Agreement, or asserting that personal injury, damages, just
compensation, restitution, judicial or equitable relief due to personal or property rights arises by
reason of the terms of, or effects arising from this Agreement. City may make all reasonable
decisions with respect to its representation in any legal proceeding. Notwithstanding the foregoing,
to the extent Consultant's services are subject to Civil Code Section 2782.8, the above indemnity
shall be limited, to the extent required by Civil Code Section 2782.8, to claims that arise out of,
pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant.
CONFIDENTIALITY
If Consultant receives from the City information which due to the nature of such
information is reasonably understood to be confidential and/or proprietary, Consultant agrees that
it shall not use or disclose such information except in the performance of this Agreement, and
further agrees to exercise the same degree of care it uses to protect its own information of like
importance, but in no event less than reasonable care. "Confidential Infonnation" shall include all
nonpublic information. Confidential information includes not only written information, but also
information transferred orally, visually, electronically, or by other means. Confidential
information disclosed to either party by any subsidiary and/or agent of the other party is covered
by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any
information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the
Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant
without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e)
is independently developed by the Consultant without reference to information disclosed by the
City.
8. CONFLICT OF INTEREST CLAUSE
Consultant covenants that it presently has no interests and shall not have interests, direct
or indirect, which would conflict in any mariner with performance of services specified under this
Agreement.
9. DISCRIMINATION
Consultant shall not discriminate because of race, color, creed, religion, sex, marital status,
sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by
applicable law, in the recruitment, selection, training, utilization, promotion, termination or other
employment related activities. Consultant affrnns that it is an equal opportunity employer and shall
comply with all applicable federal, state and local laws and regulations.
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10. EXCLUSIVITY AND AMENDMENT
This Agreement represents the complete and exclusive statement between the City and
Consultant, and supersedes any and all other agreements, oral or written, between the parties. In
the event of a conflict between the terms of this Agreement and any attachments hereto, the terms
of this Agreement shall prevail. This Agreement may not be modified except by written instrument
signed by the City and by an authorized representative of Consultant. The parties agree that any
terms or conditions of any purchase order or other instrument that are inconsistent with, or in
addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each
party to this Agreement acknowledges that no representations, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any
party, which is not embodied herein.
11. ASSIGNMENT
Inasmuch as this Agreement is intended to secure the specialized services of Consultant,
Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior
written consent of the City and any such assignment, transfer, delegation or subcontract without
the City's prior written consent shall be considered null and void. Nothing in this Agreement shall
be construed to limit the City's ability to have any of the services which are the subject to this
Agreement performed by City personnel or by other consultants retained by City.
12. TERMINATION
This Agreement may be terminated by the City upon thirty (30) days written notice of
termination. In such event, Consultant shall be entitled to receive and the City shall pay Consultant
compensation for all services performed by Consultant prior to receipt of such notice of
termination, subject to the following conditions:
a. As a condition of such payment, the Executive Director of the Personnel Services
Agency may require Consultant to deliver to the City all work product(s) completed
as of such date, and in such case such work product shall be the property of the City
unless prohibited by law, and Consultant consents to the City's use thereof for such
purposes as the City deems appropriate.
b. Payment need not be made for work which fails to meet the standard of
perfonnance specified in the Recitals of this Agreement.
13. WAIVER
No waiver of breach, failure of any condition, or any right or remedy contained in or
granted by the provisions of this Agreement shall be effective unless it is in writing and signed by
the party waiving the breach, failure, right or remedy. No waiver of any breach, failure or right, or
remedy shall be deemed a waiver of any other breach, failure, right or remedy, whether or not
similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies.
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14. JURISDICTION- VENUE
This Agreement has been executed and delivered in the State of California and the validity,
interpretation, performance, and enforcement of any of the clauses of this Agreement shall be
determined and governed by the laws of the State of California. Both parties further agree that
Orange County, California, shall be the venue for any action or proceeding that may be brought or
arise out of, in connection with or by reason of this Agreement.
15. PROFESSIONAL LICENSES
Consultant shall, throughout the term of this Agreement, maintain all necessary licenses,
permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder
and required by the laws and regulations of the United States, the State of California, the City of
Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and
in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and
exemptions. Said inability shall be cause for termination of this Agreement.
16. MISCELLANEOUS PROVISIONS
a. Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of
this Agreement, and shall indemnify City fully, including reasonable costs and
attorney's fees, for any injuries or damages to City in the event that such authority
or power is not, in fact, held by the signatory or is withdrawn.
b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully
set forth in the body of this Agreement.
17. NOTICE
Any notice, tender, demand, delivery, or other communication pursuant to this Agreement
shall be in writing and shall be deemed to be properly given if delivered in person or mailed by
first class or certified mail, postage prepaid, or sent by fax or other telegraphic communication in
the manner provided in this Section, to the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
Fax: 714- 647-6956
With courtesy copies to:
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And
Executive Director of the Personnel Services Department
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92701-1988
Fax: 714-647-6930
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, CA 92701-1988
Fax: 714-647-6515
To Consultant:
Dr. Gary Linnemann, M.D.
1534 East Warner Ave., Suite A
Santa Ana, CA 92705
Fax: 714-557-5005
A party may change its address by giving notice in writing to the other party. Thereafter,
any communication shall be addressed and transmitted to the new address. If sent by mail,
communication shall be effective or deemed to have been given three (3) days after it has been
deposited in the United States mail, duly registered or certified, with postage prepaid, and
addressed as set forth above. If sent by fax, communication shall be effective or deemed to have
been given twenty-four (24) hours after the time set forth on the transmission report issued by the
transmitting facsimile machine, addressed as set forth above. For purposes of calculating these
time frames, weekends, federal, state, County or City holidays shall be excluded,
[signature page to follow}
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first
above written.
ATTEST:
Maria D. Huizar
Clerk of the Council
APPROVED AS TO FORM:
SONIA R. CARVALHO
City Attorney
By: N•�
Laura Rossini
Senior Assistant City Attorney
RECOMMENDED FOR APPROVAL:
EDWARD RAYA
Executive Director
Personnel Services Department
CITY OF SANTA ANA
Raul Godinez II
City Manager
CONSULTANT:
Gary Linnemann, M.D.
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EXHIBIT W (PAGE 1OF 1)
PACIFIC MEDICAL CLINIC
MISCELLANEOUS/DOT PRICE LIST
PACIFIC MEDICAL CLINIC
TYPE OF DRUG SCREEN
COSI. PER TEST
DOT NON-DOT'REASONABLE SUSPICION' DRUG SCREEN
$fir
DOT PRE-EMPLOYMENT DRUG SCREEN
$45
NON -DOT PRE-EMPLOYMENT DRUG SCREEN
$40
DOT RANDOM DRUG SCREEN
$45
DOT RANDOM ALCOHOL SCREEN
$25
DOT POST ACCIDENT DRUG AND ALCOHOL SCREEN
$45
$35 + UDS
AFTER-HOURS DRUG SCREENS
CHARGE
November 27, 2017
25H-12
EXHIBIT "A" (PAGE 1OF 1)
PACIFIC MEDICAL CLINIC
MISCELLANEOUS/DOT PRICE LIST
PACIFIC MEDICAL CLINIC
TYPE OF DRUG SCREEN
COST PER TEST
Dar/NON-DOT 'REASONABLE SUSPICION' DRUG SCREEN
$45
DOT PRE-EMPLOYMENT DRUG SCREEN
$45
NON -DOT PRE-EMPLOYMENT DRUG SCREEN
$40
DOT RANDOM DRUG SCREEN
$45
DOT RANDOM ALCOHOL SCREEN
$25
DOT POST ACCIDENT DRUG AND ALCOHOL SCREEN
$45
AFTER-HOURS DRUG SCREENS
$35 + UDS
CHARGE
November 27, 2017
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