HomeMy WebLinkAboutCC Resolution 8297 (Drug Testing)RESOLUTION NO. 8297
RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF SAN RAFAEL AUTHORIZING
AN AGREEMENT WITH PHARMCHEM
LABORATORIES, INC. TO PROVIDE LABORATORY DRUG
TESTING SERVICES FOR THE CITY
WHEREAS, the City of San Rafael has need for a chemical laboratory provider
to provide laboratory drug testing services for candidates applying for employment
in the Police and Fire Departments; and in special circumstances as part of a fitness
for duty medical examination; and
WHEREAS, a proposal from PHARMCHEH Laboratories, Inc. has been thoroughly
reviewed by the City staff and the City's Occupational Health provider.
NOW, THEREFORE, BE IT RESOLVED by the San Rafael City Council that the
following action be taken:
The MAYOR and CITY CLERK are authorized to execute, on behalf of the City
of San Rafael, a contract agreement between the City of San Rafael and
PHARMCHEM Laboratories, Inc. designating PHARMCHEM Laboratories, Inc. as the City's
primary provider of laboratory drug testing services. Said contract is for a period
of twenty-four months unless terminated earlier according to the terms of the contract
agreement.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that
the foregoing Resolution was duly and regularly introduced and adopted at a Regular
meeting of the City Council of the City of San Rafael on Monday
the 19th day of November 1990, by the following vote to -wit:
AYES: Councilmembers: Boro, Breiner, Shippey, Thayer & Mayor Mulryan
NOES: Councilmembers: None
ABSENT: Councilmembers: None
JEANNLEONCINI, Cty Clerk
LABORATORIES, INC.
SERVICE AGREEMENT
Date: October 4„ 1990
Contractor: PharmChem Laboratories, Inc.
1505A O'Brien Drive
Menlo Park, California 94025
Telephone: (415) 328-6200
This Agreement is made on the above date in Menlo Park,
California, by and between PharmChem Laboratories, Inc., a
California corporation ("PharmChem") and the client specified
above ("Client").
1. SCOPE OF SERVICES.
The parties hereby agree that PharmChem will provide Client
with the drug detection and related services described below
and in the attached exhibits ("the Services"), subject to the terms
and conditions set forth in this Agreement.
2. FEES AND CHARGES.
Client agrees to pay PharmChem its fees and charges for the
Services as specified in Section 9 below and Exhibit A.
2.1 No -Charge Items. The fees and charges specified in
Exhibit A include, at no extra cost, the following: (a) consulta-
tion regarding the selection of drugs for analysis and appropriate
testing procedures; (b) establishment of a secure chain -of -
custody procedure; (c) assistance in interpreting test results (up
to one man-hour per specimen submitted); (d) supplies for col-
lecting and submitting specimens for testing, including (as
agreed by the parties) urine vials and caps, labels, protective
seals, plastic bags, mailing materials, and chain -of -custody or
other transmittal forms; (e) written reports on analyses per-
formed; (f) storage of samples and records for the periods
specified herein; (g) periodic newsletters and technical bulletins;
and (h) access to a telephone hotline for technical inquiries.
2.2 Travel Expenses. if any travel beyond a radius of twenty-
five (25) miles from PharmChem's offices is authorized by Client
under this Agreement. Client shall pay all reasonable, ordinary
and necessary expenses incurred by PharmChem, including,
without limitation, transportation, hotels, and the like.
Contract/Client No.:
Client: Citv_ of San Rafael
Name
P.O. Box 1575 0
Address
San Rafael, CA 84915-75Ff1
( 415 485-3061
Telephone
3. SUBMISSION OF SPECIMENS.
Client shall submit specimens for testing only in accordance
with the procedures prescribed by PharmChem as specified in
Exhibit B.
3.1 Untestable Specimens. If PharmChem receives an
unidentified specimen, an improperly sealed or labeled
specimen, a specimen containing less urine than reasonably
required by PharmChem, or a specimen which for any other
reason cannot by tested in accordance with Exhibit C. which-
ever is applicable, PharmChem shall dispose of the specimen
without conducting any of the tests and shall promptly notifv
Client of the action taken, subject to the handling charge
therefor specified in Exhibit A.
4. REPORTING.
PharmChem shall furnish to Client an analytical report of the
drug analysis performed on each specimen tested under this
Agreement as specified in Exhibit D.
4.1 Written Reports. Each report of an analysis performed
by PharmChem under this Agreement shall be subject to the
express technical definitions, qualifications. and comments set
forth in the official written report furnished to Client for such
analysis.
4.2 Disclaimer. Upon Client's prior written request and
authorization. PharmChem shall be permitted to send Client
any test results by telephone, telecopier. or other facsimile
service. Client hereby acknowledges that, in such event, various
persons beyond PharmChem's employ or control (or the employ
or control of Client) may thereby participate in such result trans-
mission and gain access thereto. Accordingly. Client further
acknowledges that PharmChem cannot be responsible for any
consequential mistransmission, misunderstanding. or breach of
confidentiality due to such th� fiicipatign or access.
4.3 Testing Criteria. PharmChem's testing procedures require
initial screening of a specimen by one methodology and con-
firmation of any positive initial screening test by at least one
additional independent methodology. If the initial screening test
is negative, there is no confirmation test performed, and the
report shall be negative. If the initial screening test is positive
but the confirmation test is negative, the report shall be nega-
tive. PharmChem shall generate a positive report if and only
if both the initial screening test and at least one confirmation
test on a specimen are positive. A "negative" test means
the test(s) applied did not find the particular drug or drug
metabolites at or above the detection levels specified in Exhibit
C, and, conversely, a "positive' test means that the tests applied
did find the particular drug or drug metabolites at or above the
detection levels specified in Exhibit C. Neither a positive nor
a negative test, unless expressly stated by PharmChem to the
contrary, is an indication of whether the person whose bodily
fluid was tested was functionally impaired at the time the
specimen was given, because of such variables as tolerance,
body mass, time of consumption versus time of testing, excre-
tion rates, and the like.
5. STORAGE OF SPECIMEN.
5.1 Negative Specimen. Specimens which are determined to
be negative shall be retained by PharmChem at room
temperature for two (2) weeks after the completion of testing.
5.2 Positive Specimen. Specimens which are determined to
be positive shall be retained by PharmChem for the time
specified in Exhibit D after the completion of testing. If frozen,
such specimens shall be stored at or below —5°C. Client hereby
acknowledges that freezing retards bacterial decomposition but
may not halt all chemical processes in a specimen, and freez-
ing may itself affect some metabolites found in urine.
5.3 Additional Testing. Stored specimens will be subject to
further testing or retesting only on Client's written request and
payment of the then prevailing fees and charges. Client hereby
acknowledges that a frozen specimen retrieved from storage
may not produce exactly the same test results due to chemical
or other changes which cannot be stopped by freezing.
5.4 Disposal of Specimens. Upon Client's written request and
payment of PharmChem's then prevailing storage charges,
PharmChem shall store a specimen for periods beyond those
specified in Exhibit D. If no such request is received prior to the
termination of the specified periods, PharmChem shall be enti-
tled to dispose of any stored specimen without notice to Client.
6. RETENTION OF TEST RECORDS AND
REPORTS.
PharmChem shall retain the relevant laboratory records for each
tested specimen for seven (7) years from the date thereof. Upon
Client's written request and payment of PharmChem's then
prevailing records retention fees, PharmChem shall store such
records for an additional time. If no such request is received
prior to the end of such seven (7}year period, PharmChem shall
be entitled to dispose of such records without notice to Client.
7. TERM
7.1 Term. This Agreement shall commence on the date first
written above and shall continue until terminated by either party
(a) for convenience on thirty (30) days' written notice to the other
party or (b) as specified in Section 7.2 or 7.3 below.
7.2 Termination by Client. Client shall, without further
notice, have the immediate right to terminate this Agreement
if any of the following events or conditions occur: (a) Pharm-
Chem petitions for reorganization under the Bankruptcy Code
or is adjudged a bankrupt; (b) PharmChem becomes insolvent,
or a receiver is appointed due to the insolvency of PharmChem;
(c) PharmChem makes a general assignment of the assets and
business of PharmChem for the benefit of PharmChem's
creditors; (d) PharmChem defaults in the performance of any
of its material obligations under the terms of this Agreement
and has not cured such default within thirty (30) days of written
notice of such default by Client; or (e) without limiting the
foregoing, PharmChem, its employees, agents, or representa-
tives violate the confidentiality and nondisclosure provisions
of this Agreement.
7.3 Termination by PharmChem. PharmChem shall, without
further notice, have the immediate right to terminate this
Agreement if any of the following events occur: (a) Client
petitions for reorganization under the Bankruptcy Code or is
adjudged a bankrupt; (b) Client becomes insolvent, or a receiver
is appointed due to the insolvency of Client; (c) Client makes
a general assignment of the assets and business of Client for
the benefit of Client's creditors; or (d) Client defaults in the
performance of any of its material obligations or payments of
any indebtedness under this Agreement and has not cured such
default within thirty (30) days of written notice of such default
by PharmChem.
S. CONFIDENTIALITY.
8.1 Reasonable Efforts. PharmChem shall take all reasonable
steps to preserve the confidentiality of test reports and any
related laboratory records within the custody, control or pos-
session of PharmChem.
8.2 Reliance on Designated Representative. PharmChem
shall be entitled to rely on Client's designation of authorized
representative(s) set forth in Exhibit E or any written amend-
ment thereof and the oral assurance of any person who identifies
himself or herself as such authorized representative and gives
the above identification number assigned to Client in furnishing
reports, assistance or other information under this Agreement.
9. BILLING AND PAYMENT.
9.1 Monthly Invoices. PharmChem shall send itemized
monthly invoices to Client at the above address or such other
address(es) as Client may designate for Services rendered during
the preceding month. Items of reimbursement shall be separate-
ly described and itemized, and copies of expense reports or
receipts shall be included.
9.2 Payment. All invoices shall be due and payable in full
within thirty (30) days after the date thereof. Client agrees to
pay interest on amounts past due at the prime rate of Sanwa
Bank, San Jose, California, in effect on the date such amounts
first become past due. Payment shall be made in Menlo Park,
California, in U.S. currency.
9.3 PharmChem's Remedies. Notwithstanding anything to
the contrary elsewhere in this Agreement, if Client breaches
its obligations under this Section 9, PharmChem shall be
entitled to withhold test reports until all amounts owing are
paid in full and, in addition, to terminate this Agreement.
9.4 Audit Rights. PharmChem shall maintain, preserve, and
make available for inspection, audit and reproduction, up to
twenty-four (24) months Poll, wing the submission of the final
invoice under this Agreer, -r he books, records, agreements
and other documents used in determining any fees or charges
to Client during the performance of this Contract. In addition,
PharmChem shall, to the maximum extent feasible, include
similar audit right provisions for PharmChem and Client in
all PharmChem contracts with subcontractors, if any.
10. WARRANTIES AND COVENANTS.
10.1 License. PharmChem warrants to Client that it is duly
licensed by all California and federal agencies as required by
law to perform the Services.
10.2 Performance of Services. PharmChem warrants to
Client that the Services shall be performed with the degree
of skill and care that is required by current, good and sound
professional procedures and practices and in conformity with
generally accepted professional standards prevailing in the
field of forensic toxicology at the time the Services are
performed.
10.3 Law. PharmChem warrants to Client that, in perform-
ing the Services, it will comply with all applicable local, state
and federal laws, regulations, and rules, including, without
limitation, those pertaining to equal employment oppor-
tunity and the confidentality of medical information (if
applicable).
10.4 General Disclaimers. EXCEPT AS SPECIFICALLY
PROVIDED IN SECTIONS 10.1. 10.2 AND 10.3 ABOVE.
PHARMCHEM DISCLAIMS ALL OTHER WARRANTIES.
EXPRESSED OR IMPLIED. INCLUDING THE IMPLIED WAR-
RANTIES OF MERCHANTABILITY AND FITNESS FOR A PAR-
TICULAR PURPOSE. IN NO EVENT SHALL PHARMCHEM BE
LIABLE FOR ANY INDIRECT. SPECIAL OR CONSEQUENTIAL
DAMAGES IN CONNECTION WITH OR ARISING OUT OF
CLIENT'S RELIANCE ON SERVICES RENDERED UNDER
THIS AGREEMENT. EVEN IF PHARMCHEM HAS BEEN IN-
FORMED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, PHARMCHEM
ASSUMES NO LIABILITY FOR ANY LOSS, COSTS, DAMAGES,
ATTORNEYS' FEES OR OTHER EXPENSES WHICH CLIENT
MAY SUSTAIN OR INCUR BECAUSE CLIENT HAS ACTED OR
FAILED TO ACT BASED SOLELY ON ANY TELEPHONE
REPORTS PROVIDED BY PHARMCHEM.
10.5 Insurance. PharmChem covenants to maintain
appropriate insurance policies with suitable insurance com-
panies authorized to do business in California covering
worker's compensation, professional liability, comprehensive
general liability and comprehensive automobile liability risks.
PharmChem shall provide Client with certificates of insurance
for each of the foregoing policies and any renewals thereof.
10.6 No Representations by Client. Client covenants that
it shall not make any representation, warranty, or claim with
respect to any of the Services which is not expressly set forth
in the specifications, documentation, other technical literature
or written reports prepared and distributed by PharmChem.
10.7 Notice and Cooperation. Client covenants to give
prompt written notice of any legal proceeding, including,
without limitation, any civil action, administrative hearing,
or arbitration, in which the Services or any portion thereof
are to be a material issue in dispute, and Client further
covenants that, in regard to any such legal proceeding, it shall
use its best efforts to follow the technical and scientific advice
of PharmChem with regard to the presentation and defense
of such Services or portion thereof, including, without
limitation, the use of such expert testimony or legal arguments
as PharmChem may reasonably recommend.
11. INDEMNIFICATION.
11.1 By PharmChem. PharmChem shall defend, indemnify
and hold harmless Client from and against any and all liabil-
ity, loss, costs, damages, attorneys' fees, and other expenses
which Client may sustain or incur by reason of or in conse-
quence of PharmChem's sole negligence in performing its
obligations under this Agreement. including, but not limited
to, sums paid or liabilities incurred in settlement of, and ex-
penses paid or incurred in connection with claims, suits. or
judgments arising from PharmChem's sole negligence (in-
cluding expert witness fees paid by Client to PharmChem in
defense of such action against Client).
11.2 By Client. Client shall defend, indemnify and hold
harmless PharmChem from and against any and all liability.
loss, costs, damages, attorneys' fees, and other expenses which
PharmChem may sustain or incur by reason of or in conse-
quence of Client's sole negligence of4aZ. t — , ' . L,�u�l, J1iLS �
c , including, but not @F11
limited to, sums paid or liabilities incurred in settlement of.
and expenses paid or incurred in connection with claims.
suits, or judgments arising from Client's sole negligence or
anv such breaches.
11.3 Survival. The indemnification under Sections 11.1 and
11.2 above shall survive termination of this .agreement.
12. INDEPENDENT CONTRACTOR.
PharmChem is an independent contractor and shall not be
deemed an employee. agent. partner, or co -venturer of Client.
:Neither party shall have the authority to make anv binding
representation or agreement on behalf of the other.
13. MISCELLANEOUS.
13.1 Entire Agreement; Amendment. This instrument (in-
cluding the exhibits) contains the entire contract between the
parties, and any agreement or representation respecting the
services or the duties of either party in relation thereto not
expressly set forth in this instrument is null and void. Any
amendment or modification of this instrument shall be in
writing and duly executed by the parties.
13.2 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of
California (excluding its choice of law rules).
13.3 Section Headings. The section headings contained in
this Agreement are for reference purposes only and shall not
affect in any way the meaning or interpretation of this
Agreement.
13.4 Attorney's Fees. Should any liliga,on be commenced
between the parties hereto concerning this Agreement or file
rights and duties in relation Iherelo, in addition to such other
relief as may be granted the party prevailing in such litigation
Shall he entitled to its reasonable attorneys fees and rods
f hercm. Such fees and rusts shall he determined by the court in
such litigation or in a separate action broighl for that purpose.
13.5 Notices. Any and ntl notices or rather ronununications
recluired or permitted by I leis Atonement or by law to he served
on or given to either part\ Hereto by file other party shall be
in writing and .,hall he deemed dLlly served and given W11CII
personally delivered to either of the parties to whom it is
directed, or in lieu of sue h personal service three (a) days after
being deposited in the United Stales mail, first class postage
prepaid, addressed to the party to whom it is directed at the
address sct forth above uHICSS notice of anofhe address is
duly given
13.6 Binding on Successors. ']'his Agreement shall he
binding upon null shill; iom-e to the benefit of file parties
hereto and their respective representatives, heirs, admini-
strators, successors and assigns except as olherwise provided
herein.
13.7 Publicity. t:xcept as noy be re(luhrd by applicable law
or regulation, neither party shall use 'ill advertising, publicity.
or otherwise, any infornatwn concerning this Agreement or
disclose the terins and conditions of IN.,; Agreement v. ithout
the prior Consent of the other party.
PharmChem Laboratories, Inc.
13.8 Savings. L• ach provision or part is severable from
the Agreement, and if one or more provisions or parts are
declared invalid by a court of competent jurisdiction, the
remaining provisions shall nevertheless remain in full force
and effect.
13.9 Non -Waiver. The waiver by either party of any breach
of any term, covenant or condition contained in this Agree-
ment, or of any default in the performance of any obligations
under this Agreement, shall not be deemed to be a waiver
of any other breach or default of the same or any other
term, covenant or condition, nor shall any waiver of any inci-
dent of breach or default constitute a continuing waiver of
the same.
13.10 Force Majeure. Neither Client nor PharmChem shall
be considered in default in the performance of its obligations
under this Agreement, except obligations to make payments
hereunder for work previously performed, to the extent that
the performance of any such obligation is prevented or
delayed by any cause, existing or future, which is beyond the
reasonable control of the affected party. In the event either
party claims that performance of its obligations are prevented
or delayed by any such cause, that party shall promptly notify
the other party of such fact and of the circumstances pre-
venting or delaying performance -
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
Client
C' of San Rafael
N,1171e_ Reith W. Patten Name. LAWRENCE E. MULRYAN
Title: Vice President Marketing Title; Mayor
ATTEST:
JU nne- M. Leoncini\,i y ler
EXHIBIT A
l=ees and Charges
EXHIBIT B
Specimen tiubrnkSion Procedures
EXHIBIT 13-1
Chain -of -Custody Farm
EXHIBIT C
Drug Panel and Analytical Methods
EXHIBIT D
Reporting and Storage Requirements
EXHIBIT E
Client's Authorized Representatives
Approved 23t form:
ASST. CITY ATTORNEY