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HomeMy WebLinkAbout2018-169EXHIBIT A VENDOR SERVICES AGREEMENT BETWEEN FOX OCCUPATIONAL MEDICAL CENTER AND THE CITY OF SAN BERNARDINO This Vendor Services Agreement (the "Agreement") is entered into this 1St day of July 2018, (Effective Date) by and between Fox Occupational Medical Center ("Vendor") and the City of San Bernardino ("City")(Vendor and the City may be collectively referred to as the "Parties.") WITNESSETH: A. WHEREAS, The City of San Bernardino is in need of a vendor to provide pre- employment physicals and Fitness for Duty Evaluations, and B. WHEREAS, it has been determined by the Director of Human Resources that Vendor represents that it has that degree of specialized expertise contemplated within, inter alia, California Government Code, Section 37103, and holds all necessary licenses to practice and perform the services herein contemplated; and C. WHEREAS, Vendor is competent, experienced and able to perform said services; and D. WHEREAS, Vendor will provide the most advantageous and responsible services. NOW, THEREFORE, the parties hereto agree as follows: 1.0. SERVICES PROVIDED BY VENDOR 1.1. Scope of Services. For the remuneration stipulated, Vendor shall provide the professional services described in this section and the Scope of Services attached hereto as Exhibits "A-1" "A-2" and "A-3" and incorporated herein by this reference. (a) Class I Physicals Without DOT Exam: $245 per each person that CITY refers for a pre-employment physical examination and evaluation. Said examination shall specifically include, but not be limited to, the items listed in Exhibit "A-2." (b) Class I Physical With DOT Exam: $255.00 per each person that CITY refers for a pre-employment physical examination and evaluation. Said examination shall specifically include, but not be limited to, the items listed in Exhibit "A-2." (c) Class III — Classified: $125.00 per each person that CITY refers for a pre- employment physical examination and evaluation. Said examination shall specifically include, but not be limited to, the items listed in Exhibit "A-2." (d) Class III — Recreation: $65.00 per each person that CITY refers for a pre- employment physical examination and evaluation. Said examination shall specifically include, but not be limited to, the items listed in Exhibit "A-2." (e) Fitness for Duty Evaluation: $55.00 per each person that CITY refers for a Fitness For Duty evaluation. 1 (f) Ancillary Services. Any service not covered in items "(a) -(f)" above, shall be in accordance with the fee schedule attached herein as Exhibit "A-3." 1.2. Professional Practices. All professional services to be provided by Vendor pursuant to this Agreement shall be provided in a manner consistent with the standards of care, diligence and skill ordinarily exercised by professional vendors in similar fields and circumstances in accordance with sound professional practices. Vendor also warrants that it is familiar with all laws that may affect its performance of this Agreement and shall advise City of any changes in any laws that may affect Vendor's performance of this Agreement. 1.3. Warranty. Vendor warrants that it shall perform the services required by this Agreement in compliance with all applicable Federal and California employment laws including, but not limited to, those laws related to minimum hours and wages; occupational health and safety; fair employment and employment practices; workers' compensation insurance and safety in employment; and all other Federal, State and local laws and ordinances applicable to the services required under this agreement. Vendor shall indemnify and hold harmless City from and against all claims, demands, payments, suits, actions, proceedings, and judgements of every nature and description including reasonable attorney's fees and costs, presented, brought, or recovered against City for, or on account of any liability under any of the above- mentioned laws, arising from or related to Vendor's performance under this Agreement. 1.4. Non-discrimination. In performing this Agreement, Vendor shall not engage in, nor permit their officers, employees or agents to engage in, discrimination in employment of persons because of their race, religion, color, national origin, ancestry, age, mental or physical disability, medical condition, marital status, sexual gender or sexual orientation, genetic information, except as permitted by law. Violation of this provision may result in the imposition of penalties. 1.5. Delegation and Assignment. This is a personal service contract, and the duties set forth herein shall not be delegated or assigned to any person or entity without the prior written consent of City. Vendor may engage a subcontractor(s) as permitted by law and may employ other personnel to perform services contemplated by this Agreement at Vendor's sole cost and expense. 1.6. Conflicts of Interest. During the term of this Agreement, Vendor shall at all times maintain a duty of loyalty and a fiduciary duty as to the City and shall not accept payment from or employment with any person or entity which will constitute a conflict of interest with the City. 1.7 City Business Certificate. Vendor shall obtain and maintain during the term of this Agreement, a valid City Business Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any and all other licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required of Vendor to practice their profession, skill or business. 2.0. COMPENSATION AND BILLING 2.1. Compensation. Except as provided herein, for each year that this contract is in effect, including all option years, Vendor shall be paid an amount not to exceed $24,500.00 per fiscal year. This amount is inclusive of all professional fees and expenses. 2 2.2. Additional Services. Vendor shall not receive compensation for any services provided outside the Scope of Services unless the City, prior to Vendor's performing the additional services, approves such additional services in writing. It is specifically understood that oral requests and/or approvals of such additional services or additional compensation shall be barred and are unenforceable. 2.3. Method of Billing. Vendor may submit invoices to City for approval. Said invoice shall be based on the total of all Vendor's services which have been completed to City's sole satisfaction. City shall pay Vendor's invoice within forty-five (45) days from the date City receives said invoice. The invoice shall include the names of the person examined the dates of said examinations. City will accept charges only for those services first requested by the City. 2.4. Confidentiality of Reports. Vendor shall keep confidential all reports, information and data received, prepared, or assembled pursuant to performance under this Agreement. Such information shall not be made available to any person, news release, firm, corporation, or entity without prior written consent of the City or as otherwise required by law. 3.0. TERM AND NOTIFICATION 3.1. Term. This Agreement shall commence on the Effective Date and continue through June 30, 2019, with the option of three (3) one (1) year extensions, exercisable at the City's sole discretion. 3.2. Termination. City or Vendor may terminate the services provided under Section 1.1 of this Agreement upon thirty (30) days' written notice to the other party. In the event of termination, Vendor shall be paid the reasonable value of services rendered to the date of termination. 3.3. Documents. In the event of termination of this Agreement, all documents prepared by Vendor in their performance of this Agreement shall be delivered to the City within ten (10) days of delivery of termination notice to Vendor, at no cost to City. Any use of uncompleted documents without specific written authorization from Vendor shall be at City's sole risk and without liability or legal expense to Vendor. 4.0. INSURANCE 4.1. Minimum Scope and Limits of Insurance. Vendor shall obtain and maintain during the term of this Agreement all of the following insurance coverages: (a) Commercial general liability, including premises -operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (b) Automobile liability for owned vehicles, hired, and non -owned vehicles, with a policy limit of not less than One Million Dollars ($1,000,000.00), combined single limits, per occurrence and aggregate. (c) Workers' compensation insurance as required by the State of California. 3 (d) Professional Liability coverage with limits of at least One Million Dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000.00) aggregate, covering the risk of errors and omissions, negligent acts and costs of claims/litigation, including investigation and court costs. If the coverage is written on a "claims -made" form, Vendor must ensure that the policy retroactive date is before the date of the Agreement is awarded, that coverage is maintained during the duration of performance of the Agreement or the Agreement period (whichever is longer) and the policy has a reporting period or run-off provision of at least three (3) years following completion or termination of the performance of professional services under this Agreement. 4.2. Endorsements. The commercial general liability insurance policy shall contain or be endorsed to contain the following provisions: (a) Additional insureds: "The City of San Bernardino and its elected and appointed boards, officers, agents, and employees are additional insureds with respect to this contract with City." (b) Notice: "Said policy shall not terminate, nor shall it be materially changed or cancelled, nor the coverage reduced, until thirty (30) days after written notice is given to City." (c) Other insurance: "Any other insurance maintained by the City of San Bernardino shall be excess and not contributing with the insurance provided by this policy." 4.3. Certificate of Insurance. Vendor shall provide to City certificates of insurance showing the insurance coverages and required endorsements described above, in a form and content approved by City, prior to performing any services under this Agreement. 4.4. Non -limiting. Nothing in this Section shall be construed as limiting in any way, the indemnification provision contained in this Agreement, or the extent to which Vendor may be held responsible for payments of damages to persons or property. 5.0. GENERAL PROVISIONS 5.1. Entire Agreement. This Agreement constitutes the entire Agreement between the parties with respect to any matter referenced herein and supersedes any and all other prior writings and oral negotiations. This Agreement may be modified only in writing and signed by the parties in interest at the time of such modification. The terms of this Agreement shall prevail over any inconsistent provision in any other contract document appurtenant hereto, including exhibits to this Agreement. 5.2. Notices. Any notices, documents, correspondence or other communications concerning this Agreement or the work hereunder may be provided by personal delivery facsimile or mail and shall be addressed as set forth below. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United states mail. 4 IF TO VENDOR: Dr. Roger Fox, Owner Owner Occupational Medical Center 1375 Camino Real, Suite 130 San Bernardino, CA 92418 Phone: (909) 884-1500 IF TO CITY: Helen Tran Director of Human Resources City of San Bernardino 290 North D Street San Bernardino, CA 92401 Phone: (909) 384-5161 5.3. Attorneys' Fees. In the event that litigation is brought by any party in connection with this Agreement, the prevailing party shall be entitled to recover from the opposing party all costs and expenses, including reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or remedies hereunder or the enforcement of any of the terms, conditions, or provisions hereof. The costs, salary and expenses of the City Attorney and member of his office in enforcing this contract on behalf of the City shall be considered as "attorneys' fees" for the purposes of this Agreement. 5.4. Governing Law. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to that body of laws pertaining to conflict of laws. In the event of any legal action to enforce or interpret this Agreement, the parties hereto agree that the sole and exclusive venue shall be a court of competent jurisdiction located in San Bernardino County, California. 5.5. Assignment. Vendor shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or any part of Vendor's interest in this Agreement without City's prior written consent. Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a breach of this Agreement and cause for termination of this Agreement. Regardless of City's consent, no subletting or assignment shall release Vendor or Vendor's obligation to perform all other obligations to be performed by Vendor hereunder for the term of this Agreement. 5.6. Indemnification and Hold Harmless. Vendor shall protect, defend, indemnify and hold harmless City and its elected and appointed officials, boards, commissions, officers, attorneys, agents and employees from any and all claims, losses, demands, suits, administrative actions, penalties, liabilities and expenses, including reasonable attorney fees, damage to property or injuries to or death of any person or persons or damages of any nature including, but not limited to, all civil claims or workers' compensation claims arising from or in any way related to Vendor's performance under this Agreement, except when caused solely by the City's negligence. 5.7. Independent Contractor. Vendor, at all times while performing under this Agreement, is and shall be acting at all times as an independent contractor and not as an agent or employee of City. Vendor shall secure, at its own expense, and be responsible for any and all payment of wages, benefits and taxes including, but not limited to, Income Tax, Social Security, State Disability Insurance Compensation, Unemployment Compensation, and other payroll deductions for Vendor and its officers, agents, and employees, and all business licenses, if any are required, in connection with the services to be performed hereunder. Neither Vendor nor its officers, agents and employees shall be entitled to receive any benefits which employees of City are entitled to receive and shall not be entitled to workers' compensation insurance, 5 unemployment compensation, medical insurance, life insurance, paid vacations, paid holidays, pension, profit sharing or social security on account of Vendor and its officers', agents' and employees' work for the City. This Agreement does not create the relationship of agent, servant, employee partnership or joint venture between the City and Vendor. Vendor shall be deemed the agent of the City, for the sole and limited purpose of providing the services provided for herein and to the extent of the authority granted herein, subject to the City of San Bernardino Charter. 5.8. Conflict of Interest Disclosure. Vendor or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose financial interest that may be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making or participation in making decisions that will have a foreseeable financial effect on such interest. Vendor shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of the Agreement by City. 5.9. Responsibility for Errors. Vendor shall be responsible for its work and results under this Agreement. Vendor, when requested, shall furnish clarification and/or explanation as may be required by the City's representative, regarding any services rendered under this Agreement at no additional cost to City. In the event that an error or omission attributable to Vendor occurs, then Vendor shall, at no cost to City, provide all other Vendor's professional services necessary to rectify and correct the matter to the sole satisfaction of City and to participate in any meeting required with regard to the correction. 5.10. Prohibited Employment. Vendor shall not employ any current employee of City to perform the work under this Agreement while this Agreement is in effect. 5.11. Costs. Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein. 5.12. No Third Party Beneficiary Rights. This Agreement is entered into for the sole benefit of City and Vendor and no other parties are intended to be direct or incidental beneficiaries of this Agreement and not third party shall have any right in, under or to this Agreement. 5.13. Headings. Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement. 5.14. Amendments. Only a writing executed by all of the parties hereto or their respective successors and assigns may amend this Agreement. 5.15. Waiver. The delay or failure of either party at any time to require performance or compliance by the other of any of its obligations or agreements shall in no way be deemed a waiver of those rights to require such performance or compliance. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the party against whom endorsement of a waiver is sought. The waiver of any right or remedy with respect to any occurrence or event shall not be deemed a waiver of any F right or remedy with respect to any other occurrence or event, nor shall any waiver constitute a continuing waiver. 5.16. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable for any reason, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance, and the remaining provisions of this Agreement shall remain in full force and effect. 5.17. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. All counterparts shall be construed together and shall constitute one agreement. 5.18. Corporate Authority. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so, the parties hereto are formally bound to the provisions of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their respective authorized officers, as of the date first above written. ATTEST: CITY OF SAN BERNARDINO By: Georges Hanna, Cit Jerk Dated: 7��/�� Approved as to Form: �*r 1 By: Gary D. Saenz, City Attorney Dated: 7/,2-//S VA By: ,4V PTAA l r I Andrea M. Miller Dated: VENDOR By:.. Dr. Roger Dated: ity Manager -20 / k' EXHIBIT A-1 Pr 1. Providing central coordination for medical data and information related to pre-employment services related to pre-employment physicals and evaluations for City; 2. Obtaining the medical history of and personally examining and reviewing all medical tests pertaining to persons referred by City in accordance with the specifics set forth in Exhibit "B," attached hereto and incorporated herein by reference; 3. Upon specific request of City, taking x-rays and conducting other medical tests and providing City an evaluation thereof; and 4. Providing City a summary and evaluation in regards to exams conducted hereunder. Any such summary or evaluation shall be in a form as permitted under California Civil Code Section 56.10 unless a document signed by the examinee is received by Vendor which authorizes the release to the City of more extensive medical information. 5. Following each completed Class I, II and III examination, a summary and evaluation shall be prepared by Vendor in the form set forth at No. 4 above and shall be forwarded to City within seven (7) days of completion of the examination. When the report reflects "normal" in an area of examination, the statement shall mean that all applicable items to be reviewed or examined have been so reviewed or examined and that no significant adverse findings or limitations were discovered. Additional Duties and Responsibilities Vendor shall specifically assume the following additional duties and responsibilities at a price to be agreed upon in advance of such services by parties: 1. Appeals: In the event an unsuccessful applicant appeals his or her rejection to the Civil Service Board, Vendor shall re-examine and re-evaluate the appellant and provide information, in person or by comprehensive narrative report, to the Civil Service Board about the appellant's present medical limitations. 2. Modifying Guidelines: City may require expert medical advice and consultation (including research results and recommendations) on occasion for determining new, or revising existing, medical or changes in medical procedures and examinations for further specific needs. Equipment and Personnel Vendor hereby agrees to have equipment and personnel for back up and emergencies to assure prompt scheduling of medical examinations. Vendor shall conduct any examinations or testing within five (5) working days of City's request for scheduling the exams or test. Vendor shall designate a competent physician or group of physicians to perform all obligations pursuant to and in accordance with the terms of this Agreement in the event Vendor is temporarily unavailable to render services required. Vendor hereby covenants that any such physicians or group of physicians shall be competent with respect to the specific task performed. E-3 EXHIBIT A-2 MEDICAL EXAMINATIONS CLASS I: Employees in the classification of Police sworn employees. 1. Personal and family health history questionnaire review. 2. Complete physical examination including: a) Height b) Weight C) Blood Pressure d) Pulse (before and after exercise) e) Eyes (field of vision, extra ocular movements, pupils, fundi). Appropriate examination for visual acuity and color recognition ability using Titmus II tester or its equivalent f) Ears (tympanic membrane, wax and audio testing using an audiometer and sound proof booth) g) Nose, mouth, throat, dental hygiene h) Neck i) Chest j) Heart k) Lungs 1) Abdomen & Viscera — liver, kidneys, spleen m) External genitalia (men) and hernia check (all) n) Skin o) Spine P) Extremities q) Lymph nodes r) Nervous system 3. Laboratory studies: a) Urinalysis: sugar and Albumin b) Hematology: Lipid Panel 4. Radiological Studies: a) Lumbar Spine x-rays (5 views) b) Chest x-rays 5. Pre-employment Drug Screening - GCMS confirmation on all positive screens. 6. Mobility and Flexibility test (to include Jarmar grip test) 7. Standing EKG (optional -subject to other test results) 8. Pulmonary function/Spirometer 9. Pre-employment TB testing 10. Written report of findings by physician within seven (7) days from day of the examination. CLASS II: Employees for heavy labor skilled trades, equipment operation, integrated waste management, and ground maintenance classifications. These jobs require one or more of the E following: lifting and/or carrying weights of more than 50 pounds; repetitive awkward motions of the back; frequent bending, squatting, climbing or prolonged standing. 1. Personal and family health history questionnaire review. 2. Complete physical examination including - a) Height b) Weight c) Blood Pressure d) Pulse (before and after exercise) e) Eyes (field of vision, extra ocular movements, pupils, fundi). f) Ears (tympanic membrane, wax) g) Nose, mouth, throat, dental hygiene h) Neck i) Chest j) Heart k) Lungs 1) Abdomen & Viscera — liver, kidneys, spleen m) External genitalia (men) and hernia check (all) n) Ski o) Spine p) Extremities q) Lymph nodes r) Nervous system NOTE: Physician must note any abnormalities, i.e., umbilical hernia, surgical scars, etc.) 3. Eye test: (Corrected and Uncorrected) Near and distant Vision, Peripheral and Color Vision. (Use of Titmus II testing equipment or its equivalent is required.) 4. Hearing Test: Audiometric testing using a PureTone Audiometer and sound proof booth. Testing levels of 500, 1000, 2000, 3000, 4000, 6000 Hz. 5. Radiological studies: Two view lumbar spine x-ray 6. Laboratory studies a) Urinalysis: Sugar and Albumin 7. Mobility and Flexibility test (to include Jarmar grip test) 8. Pre-employment Drug and Alcohol Screening — A screening test for evidence of the use of the following drugs: Marijuana, Cocaine, Opiates, Amphetamines and Phencyclidine. The following positions shall undergo pre-employment substance screening: a) Equipment Service Worker b) Equipment Mechanic I (Flex) c) Equipment Mechanic II d) Equipment Maintenance Supervisor e) Equipment Maintenance Manager f) Heavy Equipment Operator g) Motor Sweeper Operator h) Maintenance Worker II i) Lead Maintenance Worker 10 j) Maintenance Supervisor k) Tree Trimmer Assistant 1) Tree Trimmer I m) Tree Trimmer II n) Electrician I o) Traffic Signal Technician II p) HAZMAT Technician q) Parks Maintenance Worker III 9. DMV Exam: conducted using the specific instructions provided by DMV Form DL -51 for each category and any deviation will be reported by the physician to the Director of Human Resources. 10. Written report of findings by physician within seven (7) days from day of the examination. CLASS III: CLASSIFIED — Light to moderate physical demands upon employees. 1. Personal and family health history questionnaire review. 2. Complete physical examination by physician including: a) Height b) Weight c) Blood Pressure d) Pulse (before and after exercise) e) Eyes (field of vision, extra ocular movements, pupils, fundi). f) Ears (tympanic membrane, wax) g) Nose, mouth, throat dental hygiene h) Neck i) Chest j) Heart k) Lungs 1) Abdomen & Viscera — liver, kidneys, spleen m) External genitalia (men) and hernia check (all) n) Skin o) Spine p) Extremities q) Lymph nodes r) Nervous system NOTE: Physician must note any abnormalities, i.e., umbilical hernia, surgical scars, etc.) 3. Eye test: (Corrected and Uncorrected) Near and distant Vision, Peripheral and Color Vision. (Use of Titmus II testing equipment or its equivalent is required.) 4. Hearing Test: Audiometric testing using a PureTone Audiometer and sound proof booth. Testing levels of 500, 1000, 2000, 3000, 4000, 6000 Hz. 5. Laboratory studies: a) Urinalysis: Sugar and Albumin b) Urinalysis: Alcohol 6. Non -DOT drug screen — GCMS confirmation on all positive screens. 11 7. Written report of findings by physician within seven (7) days form day of the examination CLASS III: Recreation — Positions in this category are Recreation series and Lifeguard series. 1. Personal and family health history questionnaire review. 2. TB testing for employees involved in work in the close proximity of children 3. Non -DOT drug screen — GCMS confirmation on all positive screens. 4. Laboratory studies: a. Urinalysis: Alcohol b. Written report of findings by physician within seven (7) days from day of the examination. 12 EXHIBIT A-3 CITY OF SAN BERNARDINO FEE SCHEDULE FOR SERVICES PROVIDED Group I Police Exam $245.00 Group I w/DOT Police Exam $255.00 Group III Classified $125.00 Group III Recreation $65.00 Fitness For Duty Exam $55.00 Hepatitis B Series Vaccine Series (each) $60.00 Hepatitis B Titer Blood Test $50.00 TB Quantiferon Blood Test $75.00 DOT Exam $25.00 Drug Screen, Non -DOT & DOT $30.00 Breath Alcohol Test $25.00 Breath Alcohol Confirmation $10.00 13