20161003_5087.pdf

DECISION MEMORANDUM
TO:COMMISSIONER KJELLANDER
COMMISSIONER RAPER
COMMISSIONER ANDERSON
COMMISSION SECRETARY
COMMISSION STAFF
FROM:SEAN COSTELLO
DEPUTY ATTORNEY GENERAL
DATE:SEPTEMBER 30,2016
SUBJECT:THE TRS ADMINISTRATOR’S CONTRACT
The existing contract between the Commission and its Telecommunications Relay
Services (TRS)Administrator,Bob Dunbar,expires on October 17,2016.Idaho Code §61-
1303(1)states that the Commission “shall contract with a qualified person to administer”the
TRS program.The TRS program allows citizens who are hearing or speech-impaired to engage
in telephone communications “in a manner functionally equivalent to that of individuals without
hearing or speech impairments.”Idaho Code §6 1-1301.
BACKGROUND
Pursuant to the TRS Act,the Commission has contracted with Mr.Dunbar to
administer the TRS program since its inception in 1993.Under the general terms of the TRS
contract,Mr.Dunbar performs the duties of the TRS Administrator including,but not limited to:
filing annual and quarterly TRS reports;meeting with stakeholders;contracting with a service
provider to actually perform the relay services;issuing RFPs for relay services;evaluating relay
bids in response to RFPs;and performing other duties as required by the Commission.
Under the current contract,the Administrator is compensated at a rate of $60.00 per
hour.The Administrator’s compensation is not to exceed a total amount of $39,000 in any given
year without the express written permission of the Commission.Contract §4.1.The contract
also provides that the TRS fund must be audited by a neutral third-party at least once every three
years or upon termination of the contract.Id.at §2.7.Either party may terminate the contract
by giving 90 days’notice.Id.at §4.4.
DECISION MEMORANDUM 1
STAFF RECOMMENDATION
Staff believes that Mr.Dunbar has admirably performed his duties as TRS
Administrator.He has been the TRS Administrator since 1993,and has efficiently discharged
his duties during his tenure.Although the current contract allows the parties to extend the
contract by two one-year extensions (4.3),Staff recommends that the Commission enter into a
new contract for another three-year period to expire October 17,2019.
COMMISSION DECISION
Does the Commission wish to contract with Mr.Dunbar as the TRS Administrator for
a three-year period starting October 17,2016,pursuant to Idaho Code §61-1303(1)(a)?
Sean Costello
Deputy Attorney General
M:TRS Contract 2016_sc
DECISION MEMORANDUM 2
CONTRACT FOR TRS ADMINISTRATOR
1.Identification of Parties and Purpose of Contract
1.1 Parties.This contract is entered into by and between the IDAHO PUBLIC
UTILITIES COMMISSION (Commission)whose principal office is located at 472 West
Washington Street,P0 Box 83720,Boise,Idaho 83720-0074,[phone],and Robert D.
Dunbar (the TRS Administrator),with offices 2545 N.Waggle Place,Meridian,ID 83646,(208)
846-8371.
1.2 Statutory Authority.Idaho Code §61-1301 et seq.requires the establishment
and operation of a State telecommunications relay services (TRS)program to provide
telecommunications relay services to hearing-impaired and speech-impaired persons.This
program will be carried out through a TRS Administrator and a TRS provider.Idaho Code §61-
1303(1)(a)provides that the Commission shall contract with a qualified person to administer the
program (the TRS Administrator).
2.Responsibilities of the TRS Administrator
2.1 General Obligations.The TRS Administrator’s obligations under this contract are
to be responsible for administration,collection and distribution of monies for the
Telecommunications Relay Services Fund (TRS Fund);provide the necessary liaison among the
TRS provider and its representatives;administer the bidding process for the TRS provider;and
perform other duties as may from time to time arise in the administration of this program and the
TRS fund.
2.2 Incorporation by Reference.The TRS Administrator shall fulfill the duties and
obligations imposed by Idaho Code §61-1301 et seq.;the Commission’s TRS Rules (IDAPA
31.46.02.000 et seq.);orders of the Commission,and this contract.The legal requirements of all
such statutes,rules and orders,as currently in effect or amended in the future,are incorporated by
reference into this contract.
2.3 Availability of TRS Administrator.The TRS Administrator shall meet with the
Telephone Industry Advisory Committee (or its representatives)appointed by the Commission,
the Idaho State Council for the Deaf and Hard of Hearing (or its representatives),the Idaho State
Council on Developmental Disabilities (or its representatives),and with the Commission Staff and
the Commissioners as necessary to perform the Administrator’s duties under this contract.
TRS CONTRACT I
2.4 Confidential Information.Some data provided for the TRS Administrator’s use
may be deemed confidential by entities from which or about which the information has been
provided.When information claimed to be confidential has been provided to the TRS
Administrator,he will not disclose the information received from any entity to any person (other
than the Commission,its Staff or consultants hired by the TRS Administrator)without the prior
written consent of the provider of the information or the entities about which the information has
been provided.
2.5 Specific Duties.The TRS Administrator shall:
a.Establish a dual signature checking account,with the other signer to be
designated by the Commission,for receipt and distribution of funds paid into and out of
the TRS fund,respectively.The dual signatures shall be used in lieu of a bond.The
bonding requirement for the administrator is set at zero so long as the dual signature
checking account is continued in use (Idaho Code §61-1303(l)(b)(ii));
b.Timely pay all ordinary and necessary expenses ofthe TRS Administrator under
this contract;
c.Enter into andJor administer a contract with the provider of the TRS program,
which contract and provider have been approved by the Commission (Idaho Code §61-
1 303(l)(b)(vi));
d.Hire necessary sign language interpreters when meeting with members of the
hearing-impaired and speech-impaired communities;
e.Conduct meetings with the Telephone Industry Advisory Committee (or its
representatives)appointed by the Commission,the Idaho State Council for the Deaf and
Hard of Hearing (or its representatives)as necessary to discuss the TRS program and the
TRS fund and matters of interest related to TRS (Idaho Code §61-1303(1)(b)(i)and (vii));
and
f.Perform other services concerning the TRS program as found reasonable or
necessary by the Commission in the course ofthis contract,including offering appropriate
advice and recommendations to the Commission.
2.6 Office Expenses.In addition to the Administrator’s hourly fee (as approved by the
Commission),the TRS Administrator may charge the TRS fund for the cost of reasonable and
ordinary office expenses,including secretarial,clerical,telephone,mailing and copying costs,and
TRS CONTRACT 2
may call upon the Commission to provide secretarial,clerical,telephone,mailing and copying
services without charge.
2.7 Outside Third Party Audit.The Administrator shall contract with a neutral third
party to audit the TRS Fund at least once every three (3)years,or upon termination ofthis contract.
3.Responsibilities of the Commission
3.1 Commission Assistance.The Commission may provide the TRS Administrator
with secretarial,clerical,telephone,mailing and copying assistance upon written request by the
Administrator.The Commission may provide the Administrator advice and other technical
assistance concerning the legal requirements of the TRS program,and will be generally available
to assist the TRS Administrator in the performance of the Administrator’s duties.Any assistance
provided the Administrator by the Commission shall be strictly voluntary and will not relieve the
Administrator of the Administrator’s obligations to perform the services as an independent
contractor.
4.Compensation —Term of Contract
4.1 The TRS Administrator’s Compensation.The TRS Administrator shall be
compensated for duties performed in the administration of the TRS fund at sixty dollars ($60)per
hour.The Administrator’s compensation shall not exceed a total annual amount of thirty-nine
thousand dollars ($39,000)without the expressed written permission of the Commission.
4.2 Additional Compensable Expenses.The TRS Administrator is authorized to
incur expenses for sign language interpreters,for legal services,for necessary travel and other
reasonable expenses of administration of the TRS fund including,but not limited to,reasonable
office expenses and the costs of insuring the TRS Administrator against liability for errors or
omissions arising out of the performance of his duties as administrator.Travel expenses shall be
billed at the mileage,lodging and per diem rates not to exceed those amounts authorized for claims
by State employees.Expenses authorized by this paragraph shall be submitted once monthly to
the Commission for approval before reimbursement from the TRS Fund.The TRS Administrator
shall maintain vouchers supporting the amount ofreimbursement received.The Commission may
inspect these vouchers at any time.Upon approval,expenses submitted by the first of the month
shall be paid by the fifteenth of the month.
4.3 Term of the Contract.This contract shall be effective from October 17,2016,
upon the signatures of the Commission President and the TRS Administrator.This contract shall
TRS CONTRACT 3
continue in effect until terminated by either party or until October 17,2019.The Parties may
extend this contract from its October 2019 termination by two (2)one-year extensions,pursuant
to Section 5.2.The TRS Administrator shall be due any unpaid compensation andlor expenses
under this Section 4 of the contract for duties performed pursuant to this contract up to the time of
termination.
4.4 Termination.
a.Mutual Termination.This contract may be terminated by mutual consent of
both parties,or by either party by giving ninety (90)calendar days’notice,in writing and
delivered by certified mail or in person to the other party.
b.Termination by Commission.Commission may terminate this contract if:
1.TRS Administrator fails to provide services or perform the work called for
by this contract within the time specified or any extension thereof,or
2.TRS Administrator fails to perform any of the other provisions of this
contract,or so fails to pursue the work as to endanger performance ofthis contract
in accordance with its terms,and after receipt of written notice from the
Commission,fails to correct such failures within a reasonable period as the
Commission may authorize.
c.TRS Administrator’s Obligation Upon Termination.Upon termination of this
contract,the TRS Administrator shall provide the Commission with a final accounting of
funds received and expenses incurred up to and including the date of termination.The
TRS Administrator shall submit to the Commission all records,contracts,bids,
spreadsheets,accounts and other documents created or received by the Administrator in
the performance of his TRS duties.
5.Miscellaneous Provisions
5.1 No Assignment of Contract.This contract shall not be assigned by either party
without the prior written consent of the other party.
5.2 Amendment to Contract.Any changes to this contract must be in writing and
signed by the Commission and the Administrator.
5.3 Best Efforts —Hold Harmless.The TRS Administrator’s work will be on a best
effort basis.The TRS Administrator trusts the results will meet the objectives sought.The TRS
Administrator’s liability to the Commission,if any,for any damages direct or consequential
TRS CONTRACT 4
resulting from breach of this contract will be limited to the amount paid the TRS Administrator
under this contract provided.The TRS Administrator shall indemnifS’,defend and save harmless
the State of Idaho,its officers,agents and employees from and against any and all liability,claims,
damages,losses,expenses,actions,attorneys’fees and suits whatsoever caused by or arising out
of Vendor’s negligent or wrongftul performance,acts or omissions under this contract or failure to
comply with any state or federal statute,law,regulation or rule.Nothing contains in this contract
shall be deemed to constitute a waiver of the State ofIdaho’s sovereign immunity,which immunity
is hereby expressly reserved.
5.4 Not an Employment Contract.This contract is not an employment contract.The
TRS Administrator at all times remains an independent contractor,and this contract does not create
an employee/employer relationship.Idaho Code §61-1303(1)(a).The TRS Administrator shall
be responsible for paying all employment-related taxes and benefits,such as federal,state and local
income tax withholding,social security contributions,and employment insurance premiums,
health and life insurance premiums,pension contributions,and similar items.
5.5 Worker’s Compensation.Before this contract takes effect,the TRS
Administrator must submit evidence of worker’s compensation insurance coverage or provide a
statement that he is the owner of a sole proprietorship,a working member of a partnership,or an
officer of a corporation owning more than 10%of the issued and outstanding voting stock of the
corporation.See Idaho Code §72-212.A certificate of proof of coverage from the TRS
Administrator’s insurance carrier will satisfy the requirement of submission of proof of worker’s
compensation coverage.
5.6 Compliance with Law.In performing this contract,the TRS Administrator shall
comply with all applicable laws,rules and determinations of government agencies.
5.7 Tax ID.The TRS Administrator’s tax identification number is 495-52-5 776.
5.8 Contact and Notice.
a.All contact and direction,relating to this contract shall be with Grace Seaman
and reports and other work performed under this contract shall be forwarded to the
Commission Secretary at the address set out below.
b.Notice to either party shall be made in writing and delivered by first class mail,
postage prepaid,by personal delivery or facsimile copy at the following address:
TRS CON’l’RACT 5
TRS Administrator Commission
Robert D.Dunbar Commission Secretary
2545 N.Waggle Place Idaho Public Utilities Commission
Meridian,ID 83642 P0 Box 83720
Boise,ID 83720-0074
5.9 Waiver.The failure of the Commission to enforce any provision of this contract
shall not constitute a waiver by the Commission of that or any other provision.
5.10 Governing Law.Both parties agree that this contract shall be governed by and
construed in accordance with the laws of the state of Idaho.Parties hereby consent to the
jurisdiction of the courts of Ada County in the State of Idaho in the event of any dispute with
respect to this contract.
5.11.Entire Agreement.The contract constitutes the entire agreement between the
parties.This contract supersedes all prior agreements or understandings between the
Administrator and the Commission.
5.12.Execution in Counterparts.This contract may be executed in counterparts,each
of which shall be deemed an original and all of which together shall be considered one and the
same contract.
5.13.Mediation.Should any dispute arise between the parties to this contract,it is
agreed that the dispute will be submitted to a mediator,agreed to and compensated equally by both
parties,prior to commencement of any litigation.Mediation will be conducted in Boise,Idaho.
Both parties agree to exercise their best efforts in good faith to resolve all disputes in mediation.
5.14.Attorneys’Fees.In the event a legal proceeding of any kind is instituted under
this contract or to obtain performance of any kind under this contract,the prevailing party shall be
awarded such additional sums as the court may adjudge for reasonable attorneys’fees and to pay
all costs and disbursements incurred in such proceeding.
5.15.Fiscal Necessity and Non-Appropriation.The Commission is a governmental
entity the Legislature of the State of Idaho is under no legal obligation to make appropriations to
fulfill this contract.This contract shall in no way or manner be construed so as to bind or obligate
the State of Idaho beyond the term of any particular appropriation of funds by the State’s
Legislature as may exist from time to time.The State reserves the right to terminate this contract
in whole or in part (or any order placed under it)if,in its sole judgment,the Legislature of the
TRS CONTRACT 6
State of Idaho fails,neglects,or refuses to appropriate sufficient funds as may be required to
continue such payments,or requires any return or “give-back”of funds required to continue
payments,or if the Executive Branch mandates any cuts or holdbacks in spending,or if funds are
not budgeted or otherwise available,or if the State discontinues or makes a material alteration of
the program under which funds were provided.The State shall not be required to transfer funds
between accounts in the event that funds are reduced or unavailable.All affected future rights and
liabilities of the parties shall thereupon cease within ten (10)calendar days after notice to the
Contractor.Further,in the event of non-appropriation,the State shall not be liable for any penalty,
expense,or liability,or for general,special,incidental,consequential or other damages resulting
therefrom.
5.11.Severability.The parties agree that if any term or provision of this contract is
declared by a court of competent jurisdiction to be illegal or in conflict with any law,the validity
of the remaining terms and provisions shall be construed and enforced as if the contract did not
contain the particular term or provision held to be invalid.
The parties by the signature below of their authorized representatives,hereby acknowledge
that they have read this contract,understand it and agree to be bound by its terms and conditions.
DATED at Boise,Idaho,this day of September 2016.
IDAHO PUBLIC UTILITIES COMMISSION
By:
PAUL KJELLAThJDER,PRESIDENT
TRS ADMINISTRATOR
By:
ROBERT D.DUNBAR
TRS CONTRACT 7
Reviewed and Approved:
Joe Leckie:
________________
M:ContractsDunbarshc_2016
TRS CONTRACT 8
Pursuant to Paragraph 5.5 (Worker’s Compensation)of the contract,I certifr that:
I am a sole proprietor contracting with the Idaho Public Utilities Commission and I am therefore
exempt from provisions of the worker’s compensation law.See Idaho Code §72-2 12.
ROBERT D.DTJNBAR DATE
TRS CONTRACT 9