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Agenda 04/24/2012 Item #16A 94/24/2012 Item 16.A.9. EXECUTIVE SUMMARY Recommendation to approve and accept the assessment of liquidated damages to Tectrans/Keolis Transit America in the amount of $5,500 for noncompliance of the Drug and Alcohol program as required by Collier County and the United States Department of Transportation (US DOT) and Federal Transit Administration (FTA) regulations, as defined in Title 49 Code of Federal Regulations (CFR), Parts 40 and 655. OBJECTIVE: To approve and accept the assessment of liquidated damages to Tectrans /Keolis Transit America in the amount of $5,500.00 for noncompliance of the Drug and Alcohol program as required by Collier County and the United States Department of Transportation (US DOT) and Federal Transit Administration (FTA) regulations, as defined in Title 49 Code of Federal Regulations (CFR), Parts 40 and 655. CONSIDERATION: As part of the contract oversight function, the Alternative Transportation Modes staff conducts a quarterly review on CAT operations. The review includes, but is not limited to, an assessment of the Drug and Alcohol (D &A) testing program to ensure compliance with the program as required by Collier County and the United States Department of Transportation (US DOT) and Federal Transit Administration (FTA) regulations, as defined in Title 49 Code of Federal Regulations (CFR), Parts 40 and 655. Although Tectrans complied with the monthly D &A testing of its employees and submitted all required monthly compliance letters to the County for its employees as required by Tectrans' contract with the County, the company falied to supervise and ensure that one of its subcontractors complied with the Drug and Alcohol program. On March 14, 2012, during the County's quarterly Drug & Alcohol oversight review, it was discovered that one of the Tectrans' subcontractors, E -Z Journey, did not perform any drug and alcohol test on its operator for a period of eleven months (April 2011 to March 2012). Tectrans' failure to submit the required reports as to the results of the D &A tests to the County constitutes a breach of its contract with the County. It is important to recognize that Tectrans has been a good vendor to Collier County, providing high - quality customer service to our riders since 2010. Notwithstanding Tectrans' overall good performance, a violation of this kind is considered significant and puts the County at a risk of noncompliance with a federally mandated program. Contract Number 10 -5455, Exhibit I, page A -11 to A -12, subsection 6, provides for the imposition of a "Late Report Charge" of $500.00 per day after the fifteenth (15) day of each month. While the failure to test and document under the D &A program is recognized as a material breach under the contract, staff views this incident as a serious oversight that needs to be immediately remedied but that it should be subject to a lesser assessment of liquidated damages; taking into consideration the isolated nature of this incident and the fact that all monthly D &A reports were submitted except for this one subcontractor. Staff has discussed this incident with the vendor and understands that Tectrans takes this required component of operating the county's transit program seriously and it agrees with the imposition of liquidated damages for this incident in the amount of $500.00 for each month Tectrans did not strictly comply with the D &A program, for a total amount of $5,500. Packet Page -608- 4/24/2012 Item 16.A.9. FISCAL IMPACT: The fiscal impact associated to this item is the imposition of liquidated damages in the total amount of $5,500 and should be reflected as a credit on the next month's Tectrans' invoice for Paratransit. LEGAL CONSIDERATIONS: This item has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval —SRT. GROWTH MANAGEMENT IMPACT: Consistent with Objective 12 of the Transportation Element of the Growth Management Plan. RECOMMENDATION: That the Board approves and accept the assessment of liquidated damages to Tectrans/Keolis Transit America in the amount of $5,500.00 for noncompliance of the Drug and Alcohol program and that the $5,500.00 amount be reflected as a credit on the next month's Tectrans' invoice for Paratransit. Prepared by: Glama Carter, Public Transit Manager- CAT Attachment(s): 1) Notification letter to Tectrans. Packet Page -609- COLLIER COUNTY Board of County Commissioners Item Number: 16.A.9. 4/24/2012 Item 16.A.9. Item Summary: Recommendation to approve and accept the assessment of liquidated damages to Tectrans /Keolis Transit America in the amount of $5,500 for noncompliance of the Drug and Alcohol program as required by Collier County and the United States Department of Transportation (US DOT) and Federal Transit Administration (FTA) regulations, as defined in Title 49 Code of Federal Regulations (CFR), Parts 40 and 655. Meeting Date: 4/24/2012 Prepared By Name: CarterGlama Title: Manager - Public Transit,Alternative Transportation Modes 3/28/2012 3:47:33 PM Submitted by Title: Manager - Public Transit,Alternative Transportation Modes Name: CarterGlama 3/28/2012 3:47:34 PM Approved By Name: SotoCaroline Title: Management /Budget Analyst,Transportation Administr Date: 3/29/2012 12:00:22 PM Name: BrilhartBrenda Title: Purchasing Agent,Purchasing & General Services Date: 3/29/2012 12:12:20 PM Name: ArnoldMichelle Title: Director - Alt Transportation Modes,Alternative Tr Date: 3/30/2012 5:31:39 PM Name: BetancurNatali Title: Executive Secretary,Transportation Engineering & C Packet Page -610- Date: 4/2/2012 12:28:10 PM Name: BrilhartBrenda Title: Purchasing Agent,Purchasing & General Services Date: 4/3/2012 12 :03:14 PM Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasing & Gene Date: 4/4/2012 7:28:30 AM Name: TeachScott Title: Deputy County Attomey,County Attorney Date: 4/5/2012 8:23:32 AM Name: MarcellaJeanne Title: Executive Secretary,Transportation Planning Date: 4/9/2012 8:24:57 AM Name: StanleyTherese Title: Management /Budget Analyst, Senior,Office of Management & Budget Date: 4/10/2012 12:00:16 PM Name: KlatzkowJeff Title: County Attorney Date: 4/12/2012 9:02:48 AM Name: OchsLeo Title: County Manager Date: 4/15/2012 2:46:42 PM Packet Page -611- 4/24/2012 Item 16.A.9. 4/24/2012 Item 16.A.9. CZ�off4evr (Z,ountY µ w Thomas Stringer Tectrans /Keolis Transit America 6053 W. Century Blvd. 9t" Floor Los Angeles, CA 90045 March 28, 2012 Re: Contract 910 -5455 Management Contract for the CAT Fixed Route and Paratransit Program: Noncompliance of the Drug & Alcohol Program Dear Mr. Stringer: As part of the contract oversight function, the Alternative Transportation Modes staff conducts a quarterly review on CAT operations. The review includes, but is not limited to, an assessment of the Drug and Alcohol (D &A) testing program to ensure compliance with the program as required by Collier County, the United State Department of Transportation (US DOT) and Federal Transit Administration (FTA) regulations, as defined in Title 49 Code of Federal Regulations (CFR), Parts 40 and 655. 1 am writing to discuss Tectrans' compliance with the D &A testing program both under the terms and conditions of the contract and the requirements of law. Although Tectrans complied with the monthly D &A testing of its employees and submitted all required monthly compliance letters to the County for its employees as required by the contract, the company failed to supervise and ensure that its subcontractor complied with the Drug and Alcohol program. On March 14, 2012, during the County's quarterly Drug & Alcohol oversight review, it was discovered that one of your subcontractor, E -Z Journey, did not perform any drug and alcohol test on its operator for a period of eleven months (April 2011 to March 2012). By failing to submit the required reports as to the results of the D &A tests to the County Tectrans is in breach of contract with the County. It is important to recognize that Tectrans has been a good vendor to Collier County, providing high - quality customer service to our riders since 201.0. Notwithstanding Tectrans' overall performance, a violation of this kind is considered significant and puts the County at risk of noncompliance with a federally mandated program. Contract Number 10 -5455, Exhibit I, page A -11 to A -12, subsection 6, provides for the imposition of a "Late Report Charge" of $500.00 per day after the fifteenth (l 5) day of each month. While the failure to test and document under the D &A program is recognized as a material breach under the contract, staff views this incident as a serious oversight that needs to be immediately remedied but that it should be subject to a lesser assessment of liquidated damages; taking into consideration the isolated nature of this incident and the fact that D &A reports were submitted, just not for this one subcontractor. Packet Page -612- 4/24/2012 Item 16.A.9. Based on our recent discussion, staff understands that Tectrans takes seriously this required component of operating the county's transit program and Tectrans agrees to the imposition of liquidated damages for this incident in the amount of $500.00 for each month Tectrans did not strictly comply with the D &A program, for a total amount of $5,500. Accordingly, staff is recommending that the Board approve and accept the assessment of liquidated damages in the amount of $5,500.00 to address this noncompliance. We will be presenting this recommendation to the Board of County Commissioners during the April 24, 2012 meeting. Upon the Board's anticipated approval, the agreed upon sum should be reflected as a credit on the next Tectrans' invoice. As discussed, starting in the month of April 2012 we will require that Tectrans provides a monthly subcontractor's compliance D &A report to the County together with the Tectrans' monthly compliance D &A report. In addition, receipt of this report on a monthly basis will be made a condition of payment. We look forward to the immediate correction and compliance by Tectrans with this and all programs and conditions required by our contract. Sincerely; Giama. Carter Public Transit Manager Cc: Nick Casalanguida, GMD Division Administrator Michelle Arnold, ATM Director Packet Page -613- 4/24/2012 Item 16.A.9. March 29, 2012 Glama Carter, Public Transit Manager, ATM Growth Management Division/Collier County Government 2885 South Horseshoe Drive Naples, Florida 34104 Re: Contract #10 -5455 Management Contract Non - compliance Notification Letter of the Drug and Alcohol Program Dear Ms. Carter: I am in receipt of your letter dated March 28, 2012 regarding non compliance with the Drug and Alcohol testing program requirements as required by Collier County and the United States Department of Transportation (USDOT) and Federal Transit Administration (FTA) regulations as defined in Title 49 Code of Federal Regulations (CFR), Parts 40 and 655. Keolis Transit America recognizes the seriousness of this oversight and the importance of complying with this program and all aspects of the contract. As a valued partner with Collier County, we are committed to fulfilling the requirements of the contract, and complying with the federally mandated drug and alcohol program as specified. Once this noncompliance item was discovered, I immediately directed that all subcontractors be placed in a consortium in which their random testing pool will be maintained by a third party testor with direct oversight by my office. I also required that all subcontractors provide us with an immediate update of their employee lists in order to establish the consortium. This was done on March 15, 2012. Furthermore, as agreed, you will receive two monthly drug and alcohol program compliance notification update letters to include the Keolis Transit America employees' random tests and one for the consortium of subcontracted operators. The program is in effect now, and the first random test under the pooled consortium of subcontracted operators occurred on March 29, 2012. I understand fully the seriousness of this requirement of the County's transit program and provide my commitment that this will not occur again. I further understand that as a result of the noncompliance, you are assigning liquidated damages in the amount of $5500.00 in accordance with the contract. Sincerely; 4'.0, jt,itlfe, Thomas Stringer General Manager, Collier Area Transit Cc: Vasti Amaro, Senior Vice President, Keolis Transit America 6053 W. Century Blvd, 9th Floor, Los Angeles, CA 90045 Phone: 310.981.950C Packet Page -614- im.keolistransit.com