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HomeMy WebLinkAboutR-2004-111 Central Washington Occupational Medicine Agreement (Yakima Regional Hospital)RESOLUTION NO. R-2004- 111 A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute the Yakima Transit Agreement for Drug and Alcohol Testing with Central Washington Occupational Medicine (Yakima Regional Hospital) WHEREAS, the City is required by the Federal Transit Administration to randomly screen it's Transit employees for drug and alcohol use and that the current provider (Choice Point/Memphis, Tennessee) did not respond to the requests for proposals and, WHEREAS, the City's Purchasing Department sought out area and regional providers of this service through the RFP process, and that after a subsequent comparison review of each vendor submissions, Central Washington Occupational Medicine was selected as best meeting the criteria established for providing this drug and alcohol screening; and WHEREAS, after contract review, the Council Transit Committee recommends that the City Council adopt the resolution authorizing execution of the Yakima Transit Agreement for Drug and Alcohol Testing services with Central Washington Occupational Medicine; and WHEREAS, it is in the best interest of the City to meet the requirements set by the Federal Transit Administration and have a program in place to randomly screen Transit employees for drug and alcohol compliance; now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the Yakima Transit Agreement with Central Washington Occupational Medicine and all necessary documentation to establish a service provider for drug and alcohol screening as required by the Federal Transit Administration for Transit employees. ADOPTED BY THE CITY COUNCIL this 20th of July 2004. (17'aul P. George, Mayor ATTEST: City Clerk Drug Alcohol Resolution - July 6 2004 ms Yakima Transit AGREEMENT FOR DRUG AND ALCOHOL TESTING RFP 10409 1.1 AGREEMENT THIS AGREEMENT is made between the CITY OF YAKIMA, a public municipal corporation of the State of Washington, as "OWNER," and Central Washington Occupational Medicine, whose address is 206 South 11t Avenue, Suite 48, Yakima, WA 98902 as "CONTRACTOR." In consideration of these mutual terms and conditions, the parties covenant and agree as follows: This requirements -based Agreement shall become effective August 1, 2004, and shall remain in full force and effect for three (3) years. Upon thirty (30) days written notice by the City of Yakima, this Agreement may be extended for up to two (2) additional one (1) year periods. A. Performance 1. The Contractor agrees, with the execution of this Agreement, to perform all work, furnish all labor, necessary supplies, supervision, organization, and other items of work and cost necessary for the proper execution of the services described in the specification criteria entitled, "Request for Proposals to Provide Alcohol and Drug Testing Services and Occupational Health Services" dated May, 2004. 2. All performance must be completed in strict accord with the Contract Documents, as defined below. 1.2 DEFINITIONS/INTERPRETATION For the purposes of this Agreement and any additional instruments that may become a part of this Agreement, the terms "contractor", "supplier", "seller", and "vendor" shall be interchangeable. The terms "buyer", "purchaser", "owner", "grantee", "procuring agency", "City of Yakima", and "Yakima Transit" shall be interchangeable. 1.3 CONTRACT DOCUMENTS This Agreement, the Request For Proposals, Scope of Work, conditions, addenda and modifications and the Contractor's proposal (to the extent consistent with Yakima Transit's documents) constitute the Contract Documents and are complementary. Specific federal and State laws and the terms of this Agreement, in that order respectively, supersede other inconsistent provisions. These Contract Documents are on file in the Office of the Purchasing Manager, 129 No. 2nd St., Yakima, Washington, 98901, and are hereby incorporated by reference into this Agreement. 1.4 MODIFICATIONS Yakima Transit may modify this Agreement and order changes in the work to be performed under this Agreement whenever it shall be deemed necessary or advisable to do so. The Contractor shall accept such modifications when ordered in writing by the Purchasing Manager. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the work under this Agreement, an equitable adjustment shall be made in the price, delivery schedule, or other terms, and this Agreement shall be modified in writing accordingly. Any claim by the Contractor for adjustment under this clause must be asserted within thirty (30) days from the date of receipt by the Contractor of the notification of change. 1 Notwithstanding, the Purchasing Manager may receive and act upon any such claim asserted at any time prior to final payment under this Agreement, if the facts justify such action. Failure to agree to any adjustment shall be a dispute concerning a question of fact within the meaning of the clause of this Agreement entitled "Resolution of Disputes or Breaches." However, nothing in this clause shall excuse the Contractor from proceeding with the Agreement as changed. 1.5 FEDERAL REQUIREMENTS AND CHANGES The Contractor shall at all times comply with all applicable Federal Transit Administration (FTA) regulations, policies, procedures and directives, including without limitation those listed directly or by reference in the Master Agreement (Form FTA MA (6) dated October 1, 2001) between Yakima Transit and FTA, as they may be amended or promulgated from time to time during the term of this Agreement. The Contractor's failure to so comply shall constitute a material breach of this Agreement. 1.6 TERMINATION A. Termination for Convenience. Yakima Transit may terminate this Agreement, in whole or in part, at any time by written notice to the Contractor. The Contractor shall be paid its costs, in accordance with the terms of this Agreement, up to the time of termination. The Contractor shall promptly submit its termination claim to the City of Yakima Purchasing Manager for final payment to the Contractor. If the Contractor has any property in its possession belonging to Yakima Transit, the Contractor will account for the same, and return it to Yakima Transit or dispose of it in the manner Yakima Transit directs. B. Termination for Default, Breach or Cause. If the Contractor fails to perform in the manner called for in this Agreement, or if the Contractor fails to comply with any other provisions of this Agreement, Yakima Transit may terminate this Agreement for default. Termination shall be effected by serving a notice of termination on the Contractor setting forth the manner in which the Contractor is in default. The Contractor will only be paid the Agreement price for goods delivered and accepted, or services performed in accordance with the manner of performance set forth in this Agreement subject to setoff for damages caused to Yakima Transit. If it is later determined by Yakima Transit that the Contractor had an excusable reason for not performing, such as a strike, fire, flood, or events which are not the fault of or are beyond the control of the Contractor, Yakima Transit, after setting up a new performance or delivery schedule, may allow the Contractor to continue work, or treat the termination as a termination for convenience. C. Opportunity to Cure. Yakima Transit in its sole discretion may, in the case of termination for breach or default, allow the Contractor an appropriate period of time, as determined by Yakima Transit, in which to cure the defect of goods or service. In such case, the notice of termination will state the nature of the breach or default, the time period in which cure is permitted and other appropriate conditions. If the Contractor fails to remedy to Yakima Transit's satisfaction the breach or default of any of the terms, covenants, or conditions of this Agreement within the stated period of time for remedy, Yakima Transit shall have the right to terminate this Agreement without any further obligation to the Contractor. Any such termination for default shall not in any way operate to preclude Yakima Transit from also pursuing all available legal remedies against the Contractor and its sureties for said breach or default. D. Waiver of Remedies for any Breach. In the event that Yakima Transit elects to waive its remedies for any breach by the Contractor of any covenant, term or condition of this Agreement, such waiver by Yakima Transit shall not limit Yakima Transit's legal remedies for any succeeding breach of that or of any other term, covenant, or condition of this Agreement. 2 1.7 TIME OF PERFORMANCE The Contractor shall commence work under this Agreement effective August 1, 2004, and shall continue in good faith and effort until expiration on July 31, 2007. Yakima Transit reserves the right to extend this Agreement for two (2) additional one (1) year periods. 1.8 DELIVERY EXTENSION AND DELAYS Yakima Transit reserves the right, in its sole discretion, to extend the time for performance of the services contemplated by this Agreement. No delay shall be granted in connection with the acts, omissions, negligence, or mistakes of the Contractor, the Contractor's suppliers, or their agents. 1.9 RESOLUTION OF DISPUTES OR BREACHES Disputes arising in the performance of this Agreement that are not resolved by agreement of the parties shall be decided in writing by the Purchasing Manager. This decision shall be final and conclusive unless within ten (10) calendar days from the date of receipt of its copy, the Contractor mails or otherwise furnishes a written appeal to the City Manager. In connection with said appeal, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its position. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of this Agreement while matters in dispute are being resolved. The final decision of the City Manager shall be binding upon the Contractor and the Contractor shall abide by the decision. 1.10 STATUS, INDEMNIFICATION AND HOLD HARMLESS In performing work and services hereunder, the Contractor, its employees, agents, and representatives, shall be acting as independent contractors, and shall not be deemed or construed to be employees or agents of Yakima Transit in any manner whatsoever. The Contractor shall not hold itself out as, nor claim to be, an officer or employee of Yakima Transit by reason hereof, and will not make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of Yakima Transit. The Contractor shall be solely responsible for any claims for wages or compensation by the Contractor's employees, agents, and representatives, and shall save and hold Yakima Transit harmless there from. To the maximum extent permitted by law, the Contractor shall indemnify and hold harmless Yakima Transit and all of Yakima Transit's officers, employees, and agents from and against all claims, demands, suits, and liability of any kind, including injuries to persons or damages to property, which arise out of or are due to any acts, errors, or omissions of the Contractor, or the Contractor's employees, agents, and representatives in performing work and services under this Agreement, or persons engaged in game or play to which the Contractor is assigned. In the event that any claims, demands, suits, actions, and lawsuits arise out of any of the aforesaid acts, errors, or omissions, the Contractor shall assume all costs of defending such claims, suits, actions, or lawsuits, including legal fees incurred by Yakima Transit, and all judgments that may be obtained against Yakima Transit, or any of its officers, agents, or employees in such suits. Further, the Contractor waives immunity under the Industrial Insurance Act and assumes all liability for actions brought by him or his employees against Yakima Transit for injuries in the performance of this Agreement. The Contractor represents this provision has been negotiated with Yakima Transit. 1.11 " COMPENSATION Yakima Transit will pay in accordance with the price proposal form, Attachment A of the RFP, and clarification letter dated June 11, 2004, including delivery charges and sales tax, if applicable as full compensation for all work performed under this Agreement, subject to allowable additions and deductions as provided. Payment will be made in accordance with the provision for payment. 3 1.12 PAYMENT The Contractor shall be paid, upon the submission of proper invoices or vouchers, the price(s) stipulated herein for services rendered and accepted, less deductions, if any, as herein provided. The Contractor will send their application for payment to: City of Yakima, Accounts Payable, 129 North 2°d St., Yakima, WA. 98901 Payment will be made within thirty (30) calendar days after approval of the Contractor's application, unless other terms are agreed upon as a part of this Agreement. Interest on payments made after thirty (30) calendar days shall be at a rate of one half percent per month. A. Covenant Against Contingent Fees The Contractor warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the Contractor for the purpose of securing business. For breach or violation of this warranty, Yakima Transit shall have the right to annul this Agreement without liability or at its discretion, to deduct from the Agreement price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. B. Payment Does Not Imply Acceptance of Work The granting of any progress payment or payments by Yakima Transit, or the receipt thereof by the Contractor, shall not constitute in any sense acceptance of the work or of any portion thereof, and shall in no way lessen the liability of the Contractor to replace work or material which does not conform to the Contract Documents, though the character of such work or material may not have been apparent or detected at the time such payment was made. Materials, components, or workmanship which do not conform to the instructions or requirements and specifications, or are not equal to the samples submitted to and approved by Yakima Transit, will be rejected and shall be replaced by the Contractor without delay. C. Prompt Payment of Subcontractors The contractor is required to make payment to subcontractors within thirty days from the receipt of each payment the prime contractor receives from Yakima Transit for satisfactorily completed subcontractor work from Yakima Transit, whether such payment is a progress or final payment. The prime contractor agrees further to return retainage payments to each subcontractor within thirty days after the subcontractor's work is satisfactorily completed. If payment disputes arise between the prime contractor and subcontractors, such disputes shall be resolved promptly through mediation or arbitration in order to prevent injury to small business subcontractors. The prime contractor shall specify in its subcontract agreement what dispute resolution method will be used. In addition, prime contractors will not be paid for subcontractors' work unless the prime contractor can show that a prompt payment method for subcontractors is in place. Prime contractors shall be required to provide copies of the subcontracts to Yakima Transit showing inclusion of these provisions. Yakima Transit may withhold the applicable sum due a subcontractor for non-compliance with this section. 1.13 INSURANCE AND/OR BOND A. The Vendor shall purchase•from and maintain in a company or companies lawfully authorized and admitted to do business in the State of Washington possessing a Best's policyholder's rating of A - or better and a financial rating of no less than VII, and reasonably acceptable to Yakima Transit, an occurrence -based Commercial General Liability Insurance Policy which shall provide bodily injury and property damage liability on its own operations and vehicles on Work the Vendor may 4 • subcontract or sublet to others, in no less than the amounts specified below. This insurance will name the City of Yakima, its elected officials, officers, agents, and employees; the Vendor, its consultants and employees; and any required governmental agencies as additional insureds for Work performed under this Agreement; the Vendor's policy shall be designated primary coverage for both defense and indemnity, and any Yakima Transit policies or self insurance funds shall be excess. (1) Comprehensive General Liability, Bodily Injury and Property Damage Liability, including Premise and Operations, Independent Contractors, Protective Liability, Completed Operations and Products, Contractual, Combined Single Limit of at least $1,000,000.00 per occurrence, with a per project aggregate limit of at least $2,000,000.00. (2) Comprehensive Automobile Liability, Bodily Injury and Property Damage Combined Single Limit of at least $1,000,000.00. Automobile liability will apply to "Any Auto" and be shown on the certificate. (3) In addition, the Vendor shall maintain a true umbrella policy which provides excess limits over the primary layer, in an amount not less than $2,000,000.00. (4) If services covered under this Agreement include any professional services, i.e. consultants, computer technical services, etc., professional liability (errors and omissions) coverage of at least $1,000,000.00 shall be maintained. B. The insurance required by Subparagraph 1.13 A (1) shall be written for not Less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater. Coverages, written on an occurrence basis, shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment. Completed operations coverage shall remain in force for three years after Final Acceptance. C. In addition, the Vendor shall purchase and maintain insurance for claims under workers' compensation (industrial insurance), disability benefit and other similar employee benefit acts in the State statutory amount and Stop Gap Liability Insurance (Employer's' Contingent Liability Insurance) with coverage of at least $500,000.00 each occurrence/each accident. D. Before commencing Work or exposure to loss can occur, and, in any event, as a condition of Yakima Transit executing this Agreement, the Vendor shall furnish Yakima Transit with a copy of the applicable insurance required by the Contract Documents. If the Agreement is executed, no Progress Payment will be due until all such Certificates are furnished. All policies and certificates must be signed copies and shall contain a provision that coverages afforded under the policies cannot be materially altered (i.e., the coverages reduced, the limits decreased, or the additional insureds removed), allowed to expire, or canceled without first giving at least thirty (30) days' prior written notice by certified mail to Yakima Transit (any language in the clause to the effect of "but failure to mail such notice shall impose no obligation or liability of any kind upon the company" shall be crossed out and initialed by the insurance agent). The Vendor shall furnish to Yakima Transit copies of any subsequently issued endorsements amending, modifying, altering, or restricting coverage of limits. Furthermore, such policies or certificates shall contain a clause verifying that the policy contains coverage for blanket contractual liability including both oral and written contracts and that the indemnification provisions of Paragraph 1.10 are acknowledged. E. Yakima Transit's specification or approval of the insurance in this Agreement or of its amount shall not relieve or decrease the liability of the Vendor. Coverages are the minimum to be provided and are not limitations of liability under this Agreement, indemnification, or applicable law provisions. The Vendor may, at its expense, purchase larger coverage amounts. F. The Vendor shall ensure and require that Subcontractors of any tier have insurance coverage to cover bodily injury and property damage on all operations and all vehicles owned or operated by Subcontractors of any tier. 5 G. If Yakima Transit is damaged by the failure of the Vendor to maintain any of the above insurance or to so notify Yakima Transit, then the Vendor shall bear all costs attributable thereto. Yakima Transit may withhold payment pending receipt of all certificates of insurance. Failure to withhold payment shall not constitute a waiver. 1.14 LIQUIDATED DAMAGES The Contractor agrees to pay to Yakima Transit liquidated damages in the amount of $100.00 for each day the Contractor fails to provide services or respond to a Yakima Transit request for services hereinafter provided. These liquidated damages are for the purpose of any delay or impact caused to Yakima Transit by virtue of the Contractor's acts or omissions. Yakima Transit and the Contractor agree that such damage cannot be reasonably determined at this time. Such damages are very difficult to accurately estimate because of numerous factors, including, but not limited to inconvenience to Yakima Transit. Further, the parties agree this is a reasonable forecast of all factors now known and available for consideration relating to the delay caused by failure to perform. The Contractor authorizes Yakima Transit, any time after liquidated damages accrue and from time to time thereafter to the fullest extent permitted by law, to set off and apply any and all sums due and owing to the Contractor at any time held by Yakima Transit and/or accrued under this Agreement, irrespective of whether or not Yakima Transit has made any demand under this Agreement. Yakima Transit agrees to advise the Contractor of any set off and application made by such Owner, provided that the failure to give such notification shall not affect the validity of such set off and application. The rights of Yakima Transit under this paragraph are in addition to other rights and remedies, which Yakima Transit may have. 1.15 TAXES If applicable, sales tax on this Agreement as determined by the Washington State Department of Revenue will be added to the amounts due and the Contractor will be responsible for making payment of the tax to the State of Washington. All other taxes are the sole responsibility of the Contractor. 1.16 TITLE VI CIVIL RIGHTS REQUIREMENTS A. Nondiscrimination. In accordance with Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. #2000d, Section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. #6102, Section 202 of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. #12132, and Federal transit law at 49 U.S.C. #5332, the Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, national origin, sex, marital status, age, or disability. In addition, the Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. B. Equal Employment Opportunity. The following equal employment opportunity requirements apply to this Agreement: (1) Race, Color, Creed, National Origin, Sex. In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. #2000e, and Federal transit laws at 49 U.S.C. #5332, the Contractor agrees to comply with all applicable equal employment opportunity requirements of U.S. Dept. of Labor regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor, 41 CFR, Parts 60 et seq., and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of this project. The Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, marital status, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation; and selection for training, including apprenticeship. 6 (2) Age. In accordance with Section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. #623 and Federal transit law at 49 U.S.C. #5332, the Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. (3) Disabilities. In accordance with Section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. #12112, the Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 CFR, Part 1630, pertaining to employment of persons with disabilities. C. The Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. 1.17 LABOR PROVISIONS - NONCONSTRUCTION CONTRACTS A. Overtime Requirements. No Contractor or subcontractor contracting for any part of the work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any work week in which they are employed on such work to work in excess of eight hours in any calendar day or in excess of forty hours in such work week unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of eight hours in any calendar day or in excess of forty hours in such work week, whichever is greater. B. Liability for Unpaid Wages and Liquidated Damages. In the event of any violation of the clause set forth in subparagraph (b)(1) of 29 CFR Section 5.5, the Contractor and any subcontractor responsible therefore shall be liable for the unpaid wages and applicable liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in subparagraph (b)(1) of 29 CFR Section 5.5 in the sum of $10 each for each calendar day on which such individual was required or permitted to work in excess of eight hours or in excess of the standard work week of forty hours without payment of the overtime wages required by the clause set forth in subparagraph (b)(1) of 29 CFR Section 5.5. C. Withholding for Unpaid Wages and . Liquidated Damages. The U.S. Department of Transportation (DOT) or Yakima Transit shall, upon its own action or upon written request of an authorized representative of the DOT, withhold or cause to be withheld, from any monies payable on account of work performed by the Contractor or subcontractor under this Agreement or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (b)(2) of 29 CFR Section 5.5. D. Nonconstruction Grants. The Contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of this Agreement for all laborers and mechanics, including guards and watchmen, working on this Agreement. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages'paid. E. Subcontracts. The Contractor or subcontractor shall insert in any subcontract the clauses set forth in subparagraphs A through E of this section, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in subparagraphs A through E of this section. 7 1.18 RECYCLED PRODUCTS/RECOVERED MATERIALS The Contractor agrees to comply with all the requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. 1.19 ENERGY CONSERVATION The Contractor shall comply with mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 USC Section 6321 et seq.). 1.20 CLEAN AIR AND WATER REQUIREMENTS The Contractor agrees to comply with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 USC 1857 (h)), Section 508 of the. Clean Water Act (33 USC 1368), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR, Part 15) which prohibit the use of nonexempt federal contracts, grants or loans, of facilities included on the EPA List for Violating Facilities. The Contractor agrees to report each violation to Yakima Transit and understands and agrees that Yakima Transit will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. The Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. 1.21 DISADVANTAGED BUSINESS ENTERPRISE (DBE) A. Policy: It is the policy of the Department of Transportation and Yakima Transit that Disadvantaged Business Enterprises, as defined in 49 CFR, Part 26, shall have equal access to participation in the performance of contracts financed in whole or part with Federal funds under this Agreement. B. DBE Obligations: The Contractor and its subcontractors agree to make good faith efforts to ensure that disadvantaged businesses have an equal opportunity to participate in the performance of contracts and subcontracts financed in whole, or in part, with Federal funds provided under this Agreement. In this regard, the Contractor shall make a good faith effort to ensure that disadvantaged businesses have an equal opportunity to compete for and perform contracts. C. The Contractor or subcontractor shall not discriminate on the basis of race, color, national origin, or sex in the performance of this Agreement. The Contractor shall carry out applicable requirements of 49 CFR Part 26 in the award and administration of DOT assisted contracts. Failure by the Contractor to carry out these requirements and the requirements of this section (paragraph 1.21) is a material breach of this Agreement, which may result in the termination of this Agreement or such other remedy as the recipient deems appropriate. D. DBE Liaison: Yakima Transit has designated a DBE Liaison to assist disadvantaged business enterprises and has the authority to administer Yakima Transit's DBE program and to certify small business concerns as eligible to participate in Yakima Transit projects as a DBE. Inquiries and requests concerning Yakima Transit's DBE program and information for certification by the Yakima Transit shall be directed to: Sue Ownby, DBE Liaison City of Yakima 129 No. 2nd St. Yakima, WA 98901 (509) 576-6695 sownby@ci.yakima.wa.us. 8 E. DBE Delegation and Assignment: If a DBE subcontractor is unable to perform the work contracted for, the prime contractor must either replace the subcontractor with another DBE or show Yakima Transit that good faith efforts to do so have been made. Failure by the prime contractor to comply may result in monetary penalties and partial or total termination for default with resolicitation costs to the prime contractor or its bond. F. Contractor Reporting Requirements: Yakima Transit shall use the Prime contractor's commitment to DBE. subcontractor participation submitted with its bids as the prime contractor's goal for this Agreement. However, the prime contractor shall not be credited with DBE participation until actual payment has been made to the DBE subcontractors involved. Therefore, contractors shall be required to submit with each payment request the amounts earned by DBE subcontractors and to be paid to DBE subcontractors upon Yakima Transit's progress payment. In addition, prime contractors shall be required to submit verification of receipt of previous payments by DBE subcontractors. Upon receipt of payment verification, . prime contractors shall receive credit against their goal. Yakima Transit will require prime contractors to maintain records and documents of payments to DBE's for three years following the performance of this Agreement. These records will be made available for inspection upon request by any authorized representative of Yakima Transit or DOT. This reporting requirement also extends to any certified DBE subcontractor. Yakima Transit will keep a record of payments to DBE firms for work committed to them at the time of the award of this Agreement. Yakima Transit may also perform audits of payments to DBEs for work performed pursuant to this Agreement. The audit will review payments to DBE subcontractors to ensure that the actual amount paid to DBE subcontractors equals or exceeds the dollar amounts stated in the schedule of DBE participation. The Contractor agrees to use his/her best efforts to carry out a policy in the award of subcontracts, agent agreements, and procurement contracts that will, to the fullest extent, utilize disadvantaged business enterprises consistent with the efficient performance of this Agreement. 1.22 DELEGATION AND ASSIGNMENT Neither party to this Agreement may delegate the performance of any obligation to a third party unless mutually agreed in writing. This Agreement cannot be assigned without the written consent of the other party, but all claims for overcharges of goods or other anti-trust violations in connection with this Agreement are assigned to the Yakima Transit. The Contractor warrants that its suppliers will also assign any such claims. 1.23 REGULATIONS PURSUANT TO THE COPELAND "ANTI -KICKBACK ACT" The Contractor shall comply with the applicable regulations of the Secretary of Labor, U.S. Department of Labor, made pursuant to the so-called "Anti -Kickback Act" of June. 13, 1934; Title 18 U.S.C. Section 874; and Title 40 U.S.C. Section 276c), and any amendments or modifications thereof, shall cause appropriate provisions to be inserted in subcontracts to ensure compliance therewith by all subcontractors subject thereto, and shall be responsible for the submission of affidavits required by subcontractors thereunder, except as said Secretary of Labor may specifically provide for reasonable limitations, variations, tolerances, and exemptions from the requirements thereof. 1.24 ACCESS TO RECORDS The Contractor agrees to provide Yakima Transit, the FTA Administrator, the Secretary of Transportation, the Comptroller General of the United States or any of their duly authorized representatives access to any books, documents, papers, and records of the Contractor that are directly pertinent to this Agreement for the purposes of making audits, examinations, excerpts and transcriptions. The Contractor agrees, pursuant to 49 CFR 633.17 to provide the FTA Administrator or his/her authorized representatives including any PMO Contractor access to Contractor's records and construction sites pertaining to a major capital project, defined in 49 U.S.C. 5302 (a)1, which is 9 receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309, or 5311. -The Contractor also agrees to permit any of the foregoing parties (at their costs) to reproduce by any means whatsoever any excerpts and transcriptions as reasonably needed, and to permit said parties to interview Contractor's employees during work hours on the job. The Contractor agrees to maintain all books, records, accounts and reports required under this Agreement for a period of not less than three (3) years after the date of termination or expiration of this Agreement, except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case the Contractor agrees to maintain same until Yakima Transit, the FTA Administrator, the Secretary of Transportation, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. 1.25 COMMUNICATIONS In cases where communication is required between the Contractor and Yakima Transit, such as further information, furnishing of specifications, or obtaining approval of proposed work, such communications from the Contractor shall be forwarded directly to: Sue Ownby, CPPB Purchasing Manager 129 No. 2nd St. Yakima, WA 98901 Email: sownby@ci.yakima.wa.us Communications from Yakima Transit to the Contractor shall be forwarded directly to: Joe Cozzetto Corporate Account Representative Central Washington Occupational Medicine 206 So. 11th Ave, Suite 48 Yakima, WA 98902 1.26 CONFLICT OF INTEREST No employee, officer, or agent of Yakima Transit shall participate in selection, or in the award or administration of an Agreement if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: A. the employee, officer, or agent; B. any member of his immediate family; C. his or her partner or D. an organization which employs, or is about to employ, has a financial or other interest in the firm selected for award. 1.27 MERGER This Agreement represents the entire Agreement among the parties hereto with respect to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, changed, waived, discharged or terminated orally, but such may be accomplished only by an instrument in writing signed by the party against whom enforcement of the amendment, modification, change, waiver, discharge or termination is sought. 1.28 JURISDICTION LAWS - VENUE This Agreement shall be governed by the laws of the State of Washington and any action to enforce the Agreement shall be brought in Yakima County, Washington. 10 1.29 RIGHTS IN DATA AND COPYRIGHTS/PATENTS The Contractor, without exception, shall indemnify and save harmless Yakima Transit and its employees from liability of any kind, including cost and expenses for or on account of any copyrighted, patented, or unpatented invention, process, or article manufactured or used in the performance of this Agreement, including its use by Yakima Transit. If the Contractor uses any design, device, or materials covered by letters, patents, or copyright, it is mutually agreed and understood without exception that the proposal prices shall include all royalties or cost arising from the use of such design, device, or materials in any way involved in the work. 1.30 NO GOVERNMENT OBLIGATION TO THIRD PARTIES Yakima Transit and the Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of this Agreement, absent the express written consent by the Federal Government, the Federal Government is not a party to this Agreement and shall not be subject to any obligations or liabilities to Yakima Transit, the Contractor, or any other party (whether or not a party to this Agreement) pertaining to any matter resulting from this Agreement. The Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. 1.31 PROGRAM FRAUD AND FALSE OR FRAUDULENT STATEMENTS AND RELATED ACTS A. The Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. #3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 CFR Part 31, apply to its actions pertaining to this procurement. Upon execution of this Agreement, the Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to this Agreement or the FTA assisted project for which this Agreement is being performed. In addition to other penalties that may be applicable, the Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, Yakima Transit tement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. B. The Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, Yakima Transit tement, submission, or certification to the Federal Government under a contract connected with a project that is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. #5307, the Government reserves the right to impose the penalties of 18 U.S.C. #1001 and 49 U.S.C. #5307 (n)(1) on the Contractor, to the extent the Federal Government deems appropriate. C. The Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. 1.32 FEDERAL PRIVACY ACT REQUIREMENTS The Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of. 1974, 5 U.S.C. #552(a). The Contractor agrees to obtain the express consent of the Federal Government before the Contractor or its employees operate a system of records on behalf of the Federal Government. The Contractor understands that the requirements of the Privacy Act, including the civil and criminal 11 penalties for violation of that Act, apply to those individuals involved, and that failure to comply with the terms of the Privacy Act may result in termination of this Agreement. The Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. 1.33 SEVERABILITY If any provision of this Agreement is held invalid, the remainder of this Agreement shall not be affected thereby, if such remainder would then continue to conform to the terms and requirements of applicable law. 1.34 INCORPORATION OF FTA TERMS The preceding provisions include, in part, certain standard Terms and Conditions required by DOT. All the contractual provisions required by DOT, as set forth in FTA Circular 4220.1E, dated June 19, 2003, as amended, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. The Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Yakima Transit requests, which would cause Yakima Transit to be in violation of the FTA terms and conditions. 1.35 FINAL ACCEPTANCE Final payment by Yakima Transit shall constitute notification to the Contractor of the commencement of the warranty period. 1.36 BUY AMERICA REOUIREMENTS If applicable, the Offeror and (if selected) Contractor shall complete and submit a declaration certifying either compliance or noncompliance with Buy America. If the Offeror/Contractor certifies compliance with Buy America, it shall submit documentation which lists 1) component and subcomponent parts .of the rolling stock to be purchased identified by manufacturer of the parts, their country of origin and costs; and 2) the location of the final assembly point for the rolling stock, including a description of the activities that will take place at the final assembly point and the cost of final assembly. 1.37 COUNTERPARTS This Agreement may be executed in one or more counterparts, each of which shall constitute an original Agreement but all of which together shall constitute one and the same instrument. 1.38 INTERPRETATION As a further condition of this Agreement, Yakima Transit and the Contractor acknowledge that this Agreement shall be deemed and construed to have been prepared mutually by each party and it shall be expressly agreed that any uncertainty or ambiguity existing therein shall not be construed against any party. 1.39 EMPLOYEE SOLICITATION Vendor, without the consent of Yakima Transit, shall not directly or indirectly solicit, influence, entice or hire or attempt to solicit, influence, entice or hire any employee of Yakima Transit to: (a) cease employment with Yakima Transit; or (b) do business related to a business connected with the Vendor's business during this Agreement and for a period of three (3) years from the date on which this Agreement terminates, or the work is accepted by Yakima Transit, whichever is earlier. Yakima Transit 's employee shall be deemed to be related to or connected with a Vendor if such Yakima 12 Transit employee becomes (a) a partner in a general or limited partnership or employee of a partnership, (b) a shareholder, officer, employee or director of a corporation, member, consultant or agent for the Vendor or any of Vendor's affiliates, subsidiaries or connected business. This subparagraph shall survive the termination of this Agreement. This Agreement is not restricted to any geographical area. Vendor recognizes and acknowledges that Yakima Transit's employees may receive training and other benefits from the contractual relationship with Yakima Transit because of Yakima Transit 's assignment of employees to work in connection with Vendor's Agreement. Vendor agrees the restrictions on soliciting, influencing, enticing or hiring Yakima Transit employees are reasonable. 1.40 SURVIVAL Any provision of this Agreement that imposes an obligation after termination or expiration of this Agreement shall survive the term or expiration of this Agreement and shall be binding on the parties to this Agreement. 1.41 CONTRACT EXECUTION SIGNED by the City Manager SIGNED by the Contractor COMPANY NAME: By: By: Tom, I a)— (date) ,20 0y. Richard A. ais, City Manager c27 b /1 , %l2 -7/d f Title: ATTEST: Karen Roberts City Clerk 13 CITY CONTRACT NO' RESOLUTION NO: BUSINESS OF THE CITY COUNCIL •YAIQMA, WASHINGTON AGENDA STATEMENT Item NoT ) Cj For Meeting of: July 20, 2004 ITEM TITLE: A Resolution authorizing a Drug and Alcohol Testing Agreement with Central Washington Occupational Medicine (Yakima Regional Hospital) SUBMI II hD BY: Chris Waarvick, Director of Public Works Ken Mehin, Transit Manager CONTACT PERSON/TELEPHONE: Ken Mehin / 576-6415 SUMMARY EXPLANATION: Submitted for Council consideration is a resolution authorizing execution of the Yakima Transit Agreement for Drug and Alcohol Testing for random drug and alcohol screening services to meet the requirements set by the Federal Transit Administration. The purpose of this agreement is to establish a service provider for drug and alcohol screening for Transit employees. This comes as the result of the City's Request for Proposal (RFP#10409) and subsequent review of the submitted bid proposals. Based upon the scored rating assigned to each proposal, staff respectfully recommends awarding the bid to Central Washington Occupational Medicine, a local provider. After completion of a two-year extension of the previously awarded agreement that expired back in 2002, the existing provider - Choice Point Services from Memphis, Tennessee - did not submit a bid proposal and will be terminated on July 31, 2004. Resolution X Ordinance _ Other (Specify Contract Contract Mail to (name and address): Toe Cozzetto, Central Washington Occupational Medicine, 206 S. 11th Ave., Yakima, WA 98902 Phone: 454-7787 Funding Source: Yakima Transi erating Fund APPROVED FOR SUBMITTAL: _ � City Manager STAFF RECOMMENDATION: Staff respectfully requests Council to adopt the resolution authorizing execution of the Yakima Transit Agreement for Drug and Alcohol Testing with Central Washington Occupational Medicine. BOARD/COMMISSION RECOMMENDATION: The . Council Transit Committee recommends that the City Council adopt the resolution authorizing execution of the Yakima Transit Agreement for Drug and Alcohol Testing with Central Washington Occupational Medicirie. COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2004-111