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PINELLAS SUNCOAST TRANSIT AUTHORITY3201 SCHERER DRIVE, ST. PETERSBURG, FL 33716
WWW.PSTA.NET 727.540.1800 FAX 727.540.1913
FINANCE COMMITTEE MEETINGAGENDA – JULY 19, 2017; 9:00 AM
Action: Recommend Approval of a Three Year Software Support and Maintenance Agreement with Giro for a Not to Exceed Cost of $376,009.
CONSENT OR ACTION ITEM
Staff Resource: Phil Cao, Acting Director of IT
Background:
The HASTUS suite of products has been PSTA’s robust software backbone of route scheduling and staff timekeeping software used for more than two decades. It supports:
o schedule buildingo operator run cuttingo operator biddingo daily scheduling o updating PSTA’s Real-Time data management software, Clever Works
In March 2016, the Board approved a major upgrade to the 2016 Version of the HASTUS suite of products but did not include any maintenance and support of the software after the upgrade was accepted by PSTA. PSTA expects to accept the upgrade within the next two months.
Fiscal Impact:
$376,009 for three years of maintenance and support on HASTUS suite of products. Each year includes five maintenance days that can be used for onsite visits for training if needed. This software maintenance funding is budgeted each year in the PSTA Operating Budget.
Recommendation:
Recommend approval of a three year agreement for software support and maintenance with Giro for a not to exceed cost of $376,009.
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GIRO-PSTA-CNTR_HASTUS-MAINT-20170614-446_5.DOC
HASTUS MAINTENANCE AND SUPPORT CONTRACT (Reference number: 446-5)
ENTERED INTO BETWEEN:
GIRO INC./LE GROUPE EN INFORMATIQUE ET RECHERCHE OPÉRATIONNELLE, having its principal place of business at 75, Port-Royal Street East, Suite 500, in the city of Montreal, Province of Quebec, Canada, H3L 3T1 (hereinafter referred to as "GIRO").
AND:
PINELLAS SUNCOAST TRANSIT AUTHORITY, having its principal place of business at 3201 Scherer Dr., St. Petersburg, FL, USA 33716 (hereinafter referred to as the "Client").
FOR:
The software HASTUS-Vehicle, HASTUS-Crew, CrewOpt, HASTUS-Roster, HASTOP, Geo, HASTUS-DailyCrew, and HASTUS-DailyVehicle version 2016 (hereinafter referred to as "Software") used by the Client for the operation of a maximum of one hundred and sixty (180) peak vehicles.
Starting on July 18, 2017 (the "Commencement Date") for three (3) years.
1. SERVICES PROVIDED
GIRO will provide the Client with the following services beginning on the Commencement Date of this Contract specified above and conditionally on payment of annual charges for support and maintenance as defined in Section 2.
1.1 GIRO will assign, in a maximum delay of twenty-four (24) hours, an employee to correct a Software defect, once the Client has provided GIRO with a detailed description of the said defect. For the purposes of this Contract, a defect is considered to exist when the Software does not perform according to the description given in the appropriate version of the User Guide and online help and when the said defect affects the performance of the Software. Correction of any problems due to one or several of the following causes is excluded from this Contract: an accident, a disaster, faulty use of Software, inappropriate use of the Software, additions and/or modifications (including changes to system setting files or material changes to hardware infrastructure) which are made to the Software by other than GIRO's personnel except if these additions and/or modifications have been done with prior approval by GIRO, a change to an unsupported version of the operating system or database management system, and failure to supply the necessary facilities for correct operation of the Software.
1.2 Electronic mail and telephone support are available from Monday to Friday inclusively from 9 a.m. to 5 p.m. (Eastern Standard Time) excluding Québec public holidays.
1.3 In the event of the Geo module being included in the Software, the support required to assist in one annual conversion of the geographical data is included. However, any additional services that may need to be provided by GIRO as a result of a change of geographic data supplier, product, format or coordinate system are not covered by this Contract and will be invoiced separately.
1.4 GIRO will provide the Client with a bank of five (5) person-days of GIRO staff time. This time can be used to perform tests on system operation, to make minor modifications to the Software, to train personnel on the Client's premises, and to approve additions and/or modifications made by the Client. The use of these person-days is determined by the Client. Non-used days can be accumulated and used in subsequent years as long as this Contract is renewed by the Client without interruption. The time needed by GIRO personnel to perform modifications requested by the Client under this Contract and that are not defects as defined in the present Contract will be deducted from this bank. If there are no remaining person-days available in the bank, therefore the time necessary to perform any work requested by the Client under this Contract except for work required for defects as defined in this Contract, will be charged to the Client by GIRO according to current rates for GIRO personnel.
1.5 Additions and improvements made to the Software by GIRO for other customers, excluding new modules or new products, are made available to the Client, without additional licence fees. These improvements or additions to the Software could include a new report, a new command or a new function. On request by the Client, and subject to 7
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GIRO-PSTA-CNTR_HASTUS-MAINT-20170614-446_5.DOC
GIRO and Client agreeing on an implementation timeframe, they can be adapted and/or installed by GIRO on the Client's version of the Software without any additional licence fees related to their purchase. Charges relative to services associated with the adaptation and/or installation of these additions, improvements or new version by GIRO, will be payable by the Client and invoiced separately. Any charges relative to third party software licences, if applicable, are also payable by the Client.
1.6 A 20% discount on the licence fee is accorded to the Client when a new module of HASTUS is added to HASTUS-Vehicle and HASTUS-Crew. This discount is valid only if the Client has maintained a maintenance and support contract without interruption since the initial installation of the Software.
1.7 Software upgrades: An upgrade to a newer version of the Software is available when a maintenance and support contract is in force and paid annually without interruption by the Licensee until the year corresponding to the newer version. Any services performed by GIRO pertaining to an upgrade are not included and will be invoiced separately.
2. TERMS AND CONDITIONS
2.1 For services specified in Section 1, the Client will pay GIRO the following fees:
Maintenance and support fees (including annualized upgrade licence fees) July 18, 2017 to July 17, 2018 $114,256 US July 18, 2018 to July 17, 2019 $119,060 US July 18, 2019 to July 17, 2020 $122,036 US
Bank of five (5) person-days July 18, 2017 to July 17, 2018 $6,099 US July 18, 2018 to July 17, 2019 $6,251 US July 18, 2019 to July 17, 2020 $6,407 US
These amounts are payable at the beginning of the applicable period.
2.2 The annual fee includes the following direct expenses: telephone charges, fax and courier incurred by GIRO during the provision of the services specified in this Contract. Travel and living expenses that may be incurred are not included.
2.3 All charges quoted or understood in the present Contract will be increased as necessary to reflect any applicable taxes in vigor at the time that the monies become due.
2.4 The Client will supply GIRO with a method to access the installed Software remotely for maintenance and support purposes.
2.5 GIRO undertakes not to reveal any of the Client's confidential information acquired during product instal-lation and support activities without the express authorisation of the Client.
2.6 Any HASTUS maintenance and support contract previously signed between the Client and GIRO is hereby rescinded.
The Client acknowledges that he has read this Contract, understood it, and has agreed to be bound by its terms and conditions. Further, he agrees that it is the complete and exclusive statement of the Contract between the parties and that it supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to its subject matter.
At _____________, this ____ day of _________________.
GIRO INC./LE GROUPE EN INFORMATIQUE ET RECHERCHE OPÉRATIONNELLE
Per:
Name: Caroline Perreault, CPA, CA
Title: Director, Administration
Signature: _____________________________________
Duly authorized, as she so declares.
At _____________, this ____ day of _________________.
PINELLAS SUNCOAST TRANSIT AUTHORITY
Per:
Name: _____________________________________
Title: _____________________________________
Signature: _____________________________________
Duly authorized, as he(she) so declares.
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ACTION ITEM
Bus Shelter & Shelter Installation Service Contracts
Action: A. Recommend Approval to Continue the Contract with BrascoInternational Inc., for the Purchase of Bus Shelters and Increase the Total Not to Exceed Limit to $2,148,650.
B. Recommend Approval to Continue the Contract with Certus Builders for Installation of Bus Shelters and Increase the Total Not to Exceed Limit to $1,125,000.
CONSENT OR ACTION ITEM
Staff Resource: Henry Lukasik, Director of Maintenance
Background:
Bus Shelters
PSTA currently has 5,108 bus stops throughout Pinellas County, of which approximately 690 have bus shelters.
In March 2015, the Board approved a three year contract with two one-year renewals with Brasco International, Inc., for the purchase of manufactured bus shelters at a total cost not to exceed $1,148,650. This amount was based on the amounts of capital funding for shelters PSTA had included in the adopted 5-year Capital Improvement Program (CIP).
As we begin Year 3 of the potentially 5-year agreement, since 2015, PSTA has purchased a total of 134 new shelters at a total cost of $1,100,390, leaving only $48,260 in authorized value left.
While PSTA has been installing shelters according to its own phased-in plan, PSTA has also been successful in obtaining nearly $400,000 of community support through the PSTA Shelter Match Program to obtain 50% reimbursement of PSTA’s expenditures for shelters, pads and amenities. St. Petersburg, Madeira Beach, and Dunedin are just some of the cities that have already partnered with PSTA for additional shelters.
Since these City supported shelters have also been purchased from Brasco, the planned 5-year contract value has been reached in just over two years.
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With goal to continue both the PSTA-funded phased shelter installations plus seek more community support, there is a need to increase the amount of funding to meet current and future community demand.
PSTA is recommending increasing the authorized value of the Brasco contract by $1,000,000. This would allow for approximately 120 additional shelters to be purchased over the next 3 years and bring the Brasco contract value up to $2,148,650.
Shelter Installation Services
Just like the Brasco contract, in December 2015, the Board approved a three (3) year contract with two (2) one (1) year renewals with Certus Builders for installation of newly purchased bus shelters in addition to other related services (i.e. concrete construction, maintenance of traffic, removal of existing shelters, etc.).
The Board approved a total not to exceed limit of $375,000 but since 2015, they have installed 50 shelters and spent $317,039, leaving only a balance of $57,961 remaining.
PSTA is recommending increasing the authorized value of installation work related to shelters by $750,000 brining the contract value up to $1,125,000.
The total cost for installation of the additional purchased bus shelters is approximately $750,000.
Fiscal Impact:
Both contracts are eligible, for that portion that is not reimbursed through the Shelter Match Program, to be 100% federally funded by a Federal Transit Administration (FTA) grant and is included in the approved Capital Improvement Program (CIP).
PSTA anticipates further participation in PSTA’s Shelter Match program and will continue its phased-in shelter replacements per the adopted CIP so the increases in contract values will be fully funded.
Recommendation:
A. Recommend approval to continue the contract with Brasco International, Inc., for the purchase of bus shelters and increase the total not to exceed limit to $2,148,650.
B. Recommend approval to continue the contract with Certus Builders for installation of bus shelters and increase the total not to exceed limit to $1,125,000.
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ACTION ITEM
FY 2018 Employee Health Benefits
Action: A. Recommend Approval to Contract with Cigna for Medical, Prescription and Dental Insurance for FY 2018 for PSTA Employees and Dependents Not to Exceed $8.35 Million (TOTAL)/$7.00M (PSTA Portion). The new contract will be for Five One-Year Renewals subject to Annual Board Approval.
B. Recommend Approval to Renew FY 2017 Vision Coverage throughAdvantica not to Exceed $50,000 –Decreased Cost By 7%.
C. Recommend Approval for Optional Life Insurance throughMinnesota Life – No Increased Cost not to exceed $93,000.
CONSENT OR ACTION ITEM
Staff Resource: Deborah Leous, Chief Financial OfficerLarry Longenecker, Dir. of Human ResourcesJames Bradford, Chief Operating Officer
Background:
Medical and Prescription Insurance
PSTA’s Insurance Broker, The Gehring Group, negotiated a new minimum premium contract for the medical and prescription insurance coverages with Cigna based on input from PSTA management and PSTA’s Union, SEIU. SEIU has been an integral part of the insurance and wellness discussions.
Since PSTA’s average cost of claims per employee has risen over 90% in the last two years, renewal projections were initially estimated to increase by over 40%. So PSTA requested its broker to solicit competitive quotes and price out multiple different options to lower the increase
PSTA included an assumed increase of 20% in its draft FY2018 budget.
Three carriers responded- Cigna, UnitedHealthCare and Florida Blue.
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Proposals were secured maintaining the current schedule of benefits as well as a scenario where for the first time, PSTA would offer employees three plans:
o Option 1 – The Current Plan – maintaining current benefits but at a significantly increased cost to the employees.
o Option 2 – A New Core Plan - with a slightly modified schedule of benefits,that capped employee-contributions for single coverage to $29.00 per paycheck.
o Option 3 - A high deductible health plan (HDHP) that can be partnered with a Health Savings Account (HSA) to which employees can make tax-free deductions to pay for the cost of medical care.
Based on renewal “as is”, Cigna was the lowest proposer at a 32.6% increase, UnitedHealthCare at 49.3% and Florida Blue at 85.3%. Although Cigna was the lowest cost responding firm, they were still higher than our proposed FY2018 budget assumed (20% increase assumption).
Based on final negotiations with Cigna, and transition to the new three-tiered program described above, the estimate overall cost of the Cigna increase is estimated to come within the proposed FY2018 PSTA Budget. However, PSTA’s contributions will not exceed $6,727,275 (based on current enrollment).
Union Contract
As stated in PSTA’s presentation of the FY2018 PSTA Budget, PSTA’s existing labor agreements which represent 80% of the PSTA workforce, as written, require the union employees to pay 50% of any increase in medical and prescription premiums. Historically, non-union employees have paid the exact same costs for the premiums as the Union employees.
However, PSTA recently learned that following the labor agreement cost sharing plan, not only would place the costs paid by employees ($70.25 per paycheck) into a non-competitive range compared to other organizations we compete with for new employees, it would also put PSTA at risk for non-compliance with the Affordable Health Care Act that limits what an employee may have deducted for payment of health care.
PSTA, for FY 2018 has budgeted to absorb more of the increase in order to make the health plans more affordable to our employees, remain competitive in the employment marketplace and to ensure compliance with the Affordable Health CareAct.
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Dental Insurance
Cigna Dental DMO and PPO Cores Services will remain the same with no premium increase and no change in coverage.
Total anticipated annual PPO Core Services Dental Insurance premiums are $72,700.
Total anticipated annual DMO Dental Insurance premiums $97,600.
Vision Insurance
Advantica Vision Insurance annual premiums will decrease by 7% with no change in coverage for an anticipated premium of $50,000.
Life and Accidental Death and Dismemberment (AD&D) Insurance
Minnesota Life will have no change in the premiums offered.
Fiscal Impact:
The following are included in the draft 2017 Operating Budgeto Medical, Prescription and Dental Insurance Not to Exceed $7,000,000 for the
Employer Portiono Vision Insurance not to exceed $35,000 for the Employer Portiono Minnesota life and AD&D Insurance not to exceed $93,000 for the Employer
• Free for Single Employees• Payroll deduction remains the same as today for others• Increased deductibles and increased out of pocket• For both Alternatives if an employee puts the $23.10
they pay now into a Health Savings Account the increased deductible is essentially covered
• Currently there is $6.7 million for PSTA’s share of the health insurance cost – representing a 20% increase over FY 2017.
• Our goal was to bring down the lowest proposal from CIGNA at 32.6% to 20%
• Regardless of which plan is selected we have negotiated that PSTA’s share will be capped at the $6.7 milllion
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Next Steps – Education, Education and Education!
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• Understanding the options• Health Savings Accounts • Gap Insurance• How to best utilize the benefits at the lowest cost• Using the PSTA Health Care Advocate service
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Continue Wellness Initiatives
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• They do work!• Average claims costs per month have decreased 26%
since the implementation of our Weight loss incentive program.
• Collectively PSTA lost over 1,300 pounds in the last 6 months! That is equivalent to the average weight of 8 people!
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Dental, Vision and Life Insurance
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• Recommending renewal with CIGNA on dental with no cost increase
• Recommending renewal with Advantica for vision at a 7% decrease in cost
• Recommending renewal with Minnesota Life and AD&D Insurance with no increase
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RFP # Group Insurance
Page 1 of 10
AGREEMENT FOR GROUP INSURANCE
THIS AGREEMENT is made on _______________, by and between the Pinellas Suncoast Transit
Authority (“PSTA”), an independent special district with its principal place of business located at 3201 Scherer Drive, St. Petersburg, Florida, and ______________ (“Provider”), a _____________________________ with its principal place of business located at _________________________(collectively, the “Parties”).
WHEREAS, PSTA issued Request for Proposal No. _________ for ______________________ on ______, 2017 (the “RFP”); and
WHEREAS, Provider submitted a response to the RFP on _________________, 2017 (“Provider’s
Response”); and
WHEREAS, PSTA’s Board of Directors awarded the proposal to Contractor at the Board of Director’s meeting on _______________, 2017 (the “Effective Date”).
NOW, THEREFORE, the Parties, in consideration of the mutual covenants and conditions set forth
herein, the receipt and adequacy of which is hereby acknowledged, agree as follows: 1. RECITALS. The above recitals are true and correct and incorporated herein by reference.
2. CONTRACT DOCUMENTS. The "Contract Documents" shall mean and refer to this Agreement, the RFP and
all exhibits attached thereto including all duly executed and issued addenda (attached hereto as Exhibit A), Provider's Response (attached hereto as Exhibit B), and Provider’s Insurance Policy and Certificate of Insurance (attached hereto as Exhibit C). All of the foregoing are incorporated herein by reference and are made a part of this Agreement. In interpreting this Agreement and resolving any ambiguities or conflicts between this Agreement and the exhibits, precedence will be resolved in the following order: This Agreement Provider’s Insurance Policy and Certificate of Insurance The RFP Provider's Response
3. SCOPE OF SERVICES. Provider, at the direction of PSTA, shall provide group insurance services to PSTA in accordance with the specifications and scope of work set forth in the RFP (the “Services”). Provider further agrees to extend and provide the Services to Hillsborough Area Regional Transit Authority (HART) upon written request from HART. Upon such request Provider will enter into a separate agreement with HART on the same terms set forth in this Agreement and all exhibits hereto. Nothing contained in this Agreement or any of its exhibits or attachments shall be construed as a guarantee or implication as to any minimum quantity of services that Provider will provide or for which it will be compensated. It is further understood and agreed by the Parties that while Provider is subject to the control and direction of PSTA as to the designation of tasks to be performed and the results to be accomplished for the Services, Provider is solely responsible for the means, methods, or sequence used by Provider for accomplishing such results.
4. EFFECTIVE DATE AND TERM OF AGREEMENT: This Agreement shall become effective and commence on the Effective Date and shall remain in effect for five (5) years, unless terminated sooner pursuant to the terms of this Agreement (“Contract Term”).
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RFP # Group Insurance
Page 2 of 10
5. TERMS OF PERFORMANCE.
5.01 Time for Completion. Contractor shall begin providing the Services on the Effective Date and shall continue throughout the Contract Term. Time is of the essence in performing the Services under this Agreement. 5.02 Representatives Relationship of Parties. By the Effective Date, Contractor shall designate a primary and alternate representative, who will have management responsibility for the Services and who have authority to act on technical matters and resolve problems with the Services and the Contract Documents, to PSTA in writing (“Contractor’s Representative”). Such designation shall include the contact information (including phone numbers) of Contractor’s Representative. PSTA will advise Contractor in writing of the personnel who will represent PSTA in the administration of the Contract Documents (“PSTA’s Project Manager”). Such writing from PSTA may include the specific duties of each individual and each representative’s limits of authority. The Parties acknowledge that the relationship created by this Agreement is of independent contractors and neither party shall have the ability or authority to bind the other party to any other contract or obligation. Contractor shall have no authority to and shall not pledge PSTA’s credit or in any way render PSTA a guarantor of payment or surety for any contract, debt, obligation, judgment, lien, or any form of indebtedness.
5.03 Non‐exclusive Contract. PSTA specifically reserves the right to contract with other entities for the services described in the Contract Documents or for similar services if it deems, in its sole discretion, such action to be in PSTA’s best interest.
5.04 Provider Responsibility. Contractor shall provide services of first quality in accordance with customary standards of the industries involved in the Services. The Services shall be high‐quality in all respects. No advantage will be taken by Contractor in the omission of any part or detail of the Services. Contractor hereby assumes responsibility for all processes, including electronic processes and electronic access, used in providing the Services. Contractor represents and warrants that it has no obligations or indebtedness that would impair its ability to perform the Services under this Agreement. 5.05 Compliance with Laws. Contractor shall be solely responsible for being familiar with and compliance with all federal, state, county, and local laws, rules and/or regulations, and lawful orders of public authorities including but not limited to those set forth in this Agreement, and that, in any manner, could bear on the Services including, but not limited to, environmental laws, and all rules and regulations related to safety. PSTA will communicate directly with Contractor’s Representative and shall have no authority to direct, oversee, or instruct Contractor’s employees, subcontractors, or materialmen, or any other individuals performing the Services. Omission of any applicable laws, ordinances, rules, regulations, standards or orders by PSTA in the Contract Documents shall not relieve Contractor of its obligations to comply with all laws fully and completely. Upon request, Contractor shall furnish to PSTA certificates of compliance with all such laws, orders and regulations.
6. COMPENSATION. In consideration of Provider’s faithful performance of the Contract Documents, PSTA agrees to pay Provider the fixed fee of __________________________($ ____________________) pursuant to the prices set forth in Exhibit B and which may be paid in monthly installments. Provider shall submit invoices to PSTA no later than the fifteenth (15) day of the month immediately following the month in which charges for the Services were incurred. PSTA will make payment within forty‐five days (45) days after approval of Provider’s invoice. 61
RFP # Group Insurance
Page 3 of 10
7. INVOICES. All invoices shall be submitted in accordance with the Florida Prompt Payment Act with all
details prescribed by PSTA, and delivered to the following address:
7.01 Disputed Invoices. In the event of a disputed invoice, only that portion so contested will be withheld from payment and the undisputed portion will be paid.
7.02 Tax‐exempt. PSTA does not pay sales or use tax and will provide sales tax exemption certificate at the written request of Contractor, where necessary.
8. MODIFICATION OF CONTRACT DOCUMENTS. The Contract Documents, including the scope, specification, and details of the Services may only be modified by written agreement of the Parties.
9. WARRANTIES AND COVENANTS.
9.01 Patent, Trademark, Copyright, and Trade Secret. Provider warrants that the Services , and all goods and services associated therewith do not infringe on any patent, trademark, copyright or trade secret of any third parties and agrees to defend, indemnify and hold PSTA, its officers, agents, employees, trustees and its successors and assigns, harmless from and against any and all liabilities, loss, damage or expense, including, without limitation, court costs and reasonable attorneys' fees, arising out of any infringement or claims of infringement of any patent, trade name, trademark, copyright or trade secret by reason of the sale or use of any goods or services purchased under this Agreement. PSTA shall promptly notify Provider of any such claim. PSTA makes no warranty that the production, sale or use of goods or services under this Agreement will not give rise to any such claim and PSTA shall not be liable to Provider for any such claim brought against Provider. 9.02 Covenants against Gratuities. Provider warrants that he or she has not offered or given gratuities (in the form of entertainment, gifts, or otherwise) to any official or employee of PSTA with a view toward securing favorable treatment in the awarding, amending, or evaluating performance of contract. 9.03 HIPAA/Confidentiality. Provider acknowledges and agrees that certain information it may have access to in the course of providing services to PSTA will be Personal Health Information (“PHI”) as defined in the Health Insurance Portability and Accountability Act of 1996, Public Law 104‐191 and regulations promulgated thereunder by the U.S. Department of Health and Human Services (together “HIPAA”), or other confidential medical information under applicable state law. According, Provider will comply with applicable state and federal law regarding the use and disclosure of confidential medical information and/or PHI. Additionally, Provider will sign a standard business associate agreement with any PSTA insurance carrier(s) as may be required.
10. ASSIGNABILITY AND SUBCONTRACTING. The terms and provisions of the Contract Documents shall be binding upon PSTA and Provider their respective partners, successors, heirs, executors, administrators, assigns and legal representatives. 62
RFP # Group Insurance
Page 4 of 10
10.01 Written Approval Required. The rights and obligations of Provider may not be transferred, assigned, sublet, mortgaged, pledged or otherwise disposed of or encumbered in any way without PSTA’s prior written consent. Provider may subcontract a portion of its obligations to other firms or parties but only after having first obtained the written approval of the subcontractor by PSTA. 10.02 Provider Responsibility. If Provider's assignee or subcontractor fails to perform in accordance with the terms of its assignment or subcontract, Provider shall complete or pay to have completed the work which the assignee or Subcontractor failed to complete at no additional cost to PSTA. In the event of any noncompliance by any of the subcontractors, Provider shall be directly and wholly responsible for the noncompliance and shall bear all attributable costs. 10.03 Assignment by PSTA. PSTA may assign its rights and obligations under the Contract Documents to any successor to the rights and functions of PSTA or to any governmental agency to the extent required by applicable laws or governmental regulations or to the extent PSTA deems necessary or advisable under the circumstances. 10.04 Provision For Other Agencies. Provider agrees to make available to all government agencies, departments, authorities, and municipalities the prices submitted in Provider’s Response in accordance with the RFP and this Agreement, should any said governmental entity desire to buy under the RFP. For purposes of this section, “governmental entity” shall mean all State of Florida agencies, the legislative and judicial branches, political subdivisions, counties, school boards, community colleges, municipalities, transit authorities, special districts, or other public agencies or authorities.
11. DELAY IN PERFORMANCE/FORCE MAJEURE. 11.01 Time of the Essence. The timely receipt of services and deliveries to PSTA is essential. If the Services and all deliverables are not received on time, PSTA may cancel the unfilled portion of this Agreement for cause, purchase substitute requirements elsewhere, and recover from Provider any increased costs and damages thereby incurred by PSTA.
11.02 Force Majeure. Neither party shall be liable for its non‐performance or delayed performance if caused by Force Majeure. Force Majeure shall be defined as a fire, flood, act of God, war, terrorism, riot, national emergency, sabotage, civil disturbance, governmental act, law, ordinance, rule or regulation, or events which are not the fault or are beyond the control of the party. Notwithstanding the foregoing, Force Majeure shall not include strikes or labor disputes.
11.03 Unavoidable Delay. In the event there is a delay in performance that is not reasonably expected to occur, including but not limited to delays in connection with Contractor’s suppliers or agent thereof, that are substantial enough to cause delay of the Services to PSTA, Contractor shall notify PSTA immediately and in no event more than three (3) calendar days of Contractor being made aware that such event has occurred, or when Contractor should be aware that such event has occurred, and request extended time for completion. PSTA shall review the request and determine whether it is appropriate. PSTA shall respond to Contractor in writing within three (3) business days of receipt of Contractor’s request for extension and, if granted, shall extend the time for completion for the determined number of days attributable to the unavoidable delay. Contractor shall not be entitled to any damages or compensation and shall not be reimbursed by PSTA for losses on account of delays or hindrances resulting from any cause including, but not limited to, any actions which result in change in scheduling, changes in the scope of services, or increases in the cost of performing the Services.
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RFP # Group Insurance
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12. TERMINATION OF AGREEMENT. This Agreement may be terminated with or without cause in accordance
with the provisions below. 12.01Without Cause. For and in consideration of $10.00, if PSTA determines that it is in its best interest to do so, PSTA may terminate this Agreement without cause, and without penalty or expense to PSTA, upon thirty (30) days’ written notice to Contractor. If PSTA terminates this Agreement pursuant to this subsection, Contractor shall promptly submit to PSTA its final invoice for services rendered to PSTA up to the date of termination. If Contractor has any property belonging to PSTA in its possession, Contractor shall account for the same and dispose of it as directed by PSTA. 12.02 With Cause. PSTA may terminate this Agreement with cause at any time immediately upon written notice to Contractor, if: (1) Contractor fails to fulfill or abide by any of the terms or conditions specified in the Contract Documents; (2) Contractor fails to perform in the manner called for in the Contract Documents; or (3) Contractor does not provide services in accordance with the requirements of the specifications in the Contract Documents. In its sole discretion, PSTA may allow Contractor an appropriately short period of time in which to cure a defect in performance or non‐performance. In such case, PSTA’s written notice of termination to Contractor shall state the time period in which cure is permitted and other appropriate conditions, if applicable. If Contractor fails to cure the defect in performance, or if it has received a written notice of termination to Contractor for the same issue more than two (2) times over the course of this Agreement, this Agreement may be terminated by PSTA immediately. Contractor may terminate this Agreement for cause if PSTA fails to fulfill or abide by any duties or conditions specified in the Contract Documents, provided that Contractor must first provide notice of the alleged breach to PSTA and give PSTA ninety (90) days’ written notice to cure the alleged breach. If PSTA cures the alleged breach or is making a good faith effort to cure said breach during the ninety (90) day cure period, Contractor may not terminate this Agreement. 12.03 Effect of Termination. Upon expiration or termination of this Agreement, however terminated, and final payment for the Services rendered in accordance with the Contract Documents, PSTA shall have no further obligations or responsibilities to Contractor. Contractor's acceptance of final payment shall constitute a full waiver of any and all claims by Contractor against PSTA arising out of this Agreement or otherwise relating to the Services, except those identified in writing by Contractor to PSTA prior to receipt of final payment. Neither the acceptance of the Services nor payment by PSTA shall be deemed to be a waiver of PSTA's rights or remedies, including but not limited to the right to enforce the warranties provided by Contractor in this Agreement, any obligations of Contractor under this Agreement, or to the recovery of damages for failure to provide the Services in accordance with the Contract Documents. 12.04 Reprocurement. Should this Agreement be terminated by PSTA for cause, Provider shall be liable for all expenses incurred by PSTA in reprocuring elsewhere the same or similar items or services offered by Provider.
12.05Force Majeure. If it is later determined by PSTA that Provider’s failure to perform was a result of a Force Majeure, PSTA may allow Provider to continue performance under a new time for performance or treat the termination as if terminated without cause under Section 12.01 of this Agreement.
12.06Appropriation. In the event PSTA, in its sole discretion, determines that sufficient budgeted funds are not available to appropriate for payments due to Provider under this Agreement, PSTA shall notify Provider of such occurrence and this Agreement shall terminate on the last day of the current fiscal period without any penalty or expense to PSTA. 64
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12.07 Waiver of Remedies for any Breach. In the event that PSTA elects to waive its remedies for any breach by Provider of any covenant, term or condition of this Agreement, such waiver by PSTA shall only be valid if set forth in writing and shall not limit PSTA's remedies for any succeeding breach of that or of any other term, covenant, or condition of this Agreement.
13. DISPUTES, BREACHES, DEFAULTS, OR OTHER LITIGATION.
13.01 Disputes. Disputes raised by Provider, which are not resolved by amicably by the Parties, shall be decided in writing by PSTA’s authorized representative. This decision shall be final and conclusive unless within ten (10) days from the date of receipt of its copy, Provider mails or otherwise furnishes a written appeal to PSTA’s Chief Executive Officer. In connection with any such appeal, Provider shall be afforded an opportunity to be heard and to offer evidence in support of its position. The decision of PSTA’s Chief Executive Officer shall be binding upon Provider and Provider shall abide by the decision.
13.02 Performance During Dispute. Unless otherwise directed by PSTA, Provider shall continue performance under this Agreement while matters in dispute are being resolved.
13.03 Claims for Damages: Should either party suffer injury or damage to person or property because of any act or omission of the party or of any of its employees, agents or others for whose acts it is legally liable, a claim for damages therefore shall be made in writing to such other party within a reasonable time after the first observance of such injury or damage.
13.04 Rights and Remedies: The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder shall be in addition to and not a limitation of any duties, obligations, rights and remedies otherwise imposed or available by law. No action or failure to act by PSTA or Provider shall constitute a waiver of any right or duty afforded any of them under this Agreement, nor shall any such action or failure to act constitute an approval of or acquiescence in any breach thereunder, except as may be specifically agreed in writing.
13.05 Attorneys’ Fees. In the event of legal action or other proceeding arising under this Agreement, PSTA shall be entitled to recover from Provider all its reasonable attorneys’ fees and cost incurred by PSTA in the prosecution or defense of such action, or in any post‐judgment or collection proceedings and whether incurred before suit, at the trial level or at the appellate level. This shall include any bankruptcy proceedings filed by or against Provider. PSTA also shall be entitled to recover any reasonable attorneys’ fees and costs incurred in litigating the entitlement to attorneys’ fees and costs, as well as in determining the amount of attorneys’ fees and costs due to PSTA. The reasonable costs to which PSTA will be entitled include costs that are taxable under any applicable statute, rule, or guideline, as well as costs of investigation, copying costs, electronic discovery costs, mailing and delivery charges, costs of conducting legal research, Provider and expert witness fees, travel expenses, court reporter fees and mediator fees, regardless of whether such costs are taxable under any applicable statute, rule or guideline.
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14. INDEMNIFICATION AND INSURANCE. 14.01 Indemnification. The parties recognize that Provider is an independent Provider. Provider agrees to assume liability for and indemnify, hold harmless, and defend PSTA, its board members, officers, employees, agents and attorneys of, from, and against all liability and expense, including reasonable attorneys’ fees, in connection with any and all claims, demands, damages, actions, causes of action, and suits in equity of whatever kind or nature, including claims for personal injury, property damage, equitable relief, or loss of use, arising out of the execution, performance, nonperformance, or enforcement of this Agreement, whether or not due to or caused by the negligence of PSTA, its board members, officers, employees, agents, and/or attorneys excluding only the sole negligence of PSTA, its officers, employees, agents, and attorneys. This includes claims made by the employees of Provider against PSTA, and Provider hereby waives its entitlement, if any, to immunity under Section 440.11, Florida Statutes. Provider’s liability hereunder shall include all attorneys’ fees and costs incurred by PSTA in the enforcement of this indemnification provision. Notwithstanding anything contained herein to the contrary, this indemnification provision shall not be construed as a waiver of any immunity from or limitation of liability to which PSTA is entitled to pursuant to the doctrine of sovereign immunity or Section 768.28, Florida Statutes. The obligations contained in this provision shall survive termination of this Agreement, however terminated, and shall not be limited by the amount of any insurance required to be obtained or maintained under this Agreement. 14.02 Control of Defense. Subject to the limitations set forth is this provision, Provider shall assume control of the defense of any claim asserted by a third party against PSTA arising from or in any way related to this Agreement and, in connection with such defenses, shall appoint lead counsel, in each case at Provider’s expense. Provider shall have the right, at its option, to participate in the defense of any third party claim, without relieving Provider of any of its obligations hereunder. If Provider assumes control of the defense of any third party claim in accordance with this paragraph, Provider shall obtain the prior written consent of PSTA before entering into any settlement of such claim. Notwithstanding anything to the contrary in this provision, Provider shall not assume or maintain control of the defense of any third party claim, but shall pay the fees of counsel retained by PSTA and all expenses including experts’ fees, if (i) an adverse determination with respect to the third party claim would, in the good faith judgment of PSTA, be detrimental in any material respect of PSTA’s reputation; (ii) the third party claim seeks an injunction or equitable relief against PSTA; or (iii) Provider has failed or is failing to prosecute or defend vigorously the third party claim. Each party shall cooperate, and cause its agents to cooperate, in the defense or prosecution of any third party claim and shall furnish or cause to be furnished such records and information, and attend such conferences, discovery proceedings, hearings, trials, or appeals, as may be reasonably requested in connection therewith.
15. INSURANCE. Before beginning any work under this Agreement, Contractor shall obtain insurance as specified in the RFP at Contractor’s sole expense and shall provide PSTA with proof of insurance as specified therein. Contractor shall maintain such insurance throughout the entire Contract Term.
16. MISCELLANEOUS PROVISIONS.
15.01 Venue and Jurisdiction. The Contract Documents shall be governed by, construed and interpreted in accordance with the laws of the State of Florida. Provider and PSTA consent to jurisdiction over them and agree that venue for any state action shall lie solely in the Sixth Judicial Circuit in and for Pinellas County, Florida, and for any federal actions shall lie solely in the U.S. District Court, Middle District of Florida, Tampa Division. 66
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15.02 Entire Agreement. The Contract Documents, including all exhibits, constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous written or oral negotiations, agreements, proposals and/or understandings. There are no representations or warranties unless set forth in the Contract Documents. 15.03 Public Records Requirements. Pursuant to section 119.0701, Florida Statutes, for any tasks performed by Contractor on behalf of PSTA, Contractor shall: (a) keep and maintain all public records, as that term is defined in chapter 119, Florida Statutes (“Public Records”), required by PSTA to perform the work contemplated by this Agreement; (b) upon request from PSTA’s custodian of public records, provide PSTA with a copy of the requested Public Records or allow the Public Records to be inspected or copied within a reasonable time at a cost that does not exceed the costs provided in chapter 119, Florida Statutes, or as otherwise provided by law; (c) ensure that Public Records that are exempt or confidential and exempt from Public Records disclosure requirements are not disclosed except as authorized by law for the duration of the term of this Agreement and following completion or termination of this Agreement, if Contractor does not transfer the records to PSTA in accordance with (d) below; and (d) upon completion or termination of this Agreement, (i) if PSTA, in its sole and absolute discretion, requests that all Public Records in possession of Contractor be transferred to PSTA, Contractor shall transfer, at no cost, to PSTA, all Public Records in possession of Contractor within thirty (30) days of such request or (ii) if no such request is made by PSTA, Contractor shall keep and maintain the Public Records required by PSTA to perform the work contemplated by this Agreement. If Contractor transfers all Public Records to PSTA pursuant to (d)(i) above, Contractor shall destroy any duplicate Public Records that are exempt or confidential and exempt from Public Records disclosure requirements within thirty (30) days of transferring the Public Records to PSTA and provide PSTA with written confirmation that such records have been destroyed within thirty (30) days of transferring the Public Records. If Contractor keeps and maintains Public Records pursuant to (d)(ii) above, Contractor shall meet all applicable requirements for retaining Public Records. All Public Records stored electronically must be provided to PSTA, upon request from PSTA’s custodian of public records, in a format that is compatible with the information technology of PSTA. If Contractor does not comply with a Public Records request, or does not comply with a Public Records request within a reasonable amount of time, PSTA may pursue any and all remedies available in law or equity including, but not limited to, specific performance. The provisions of this section only apply to those tasks in which Contractor is acting on behalf of PSTA.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: Telephone number: _____________ E‐mail address: __________________ Mailing address: ______________________________________________ 15.04 Interest of Members of or Delegates to Congress; conflicts of interest. Contractor represents and warrants that no public officers or procurement employees have a material ownership interest in Contractor and this Agreement is not otherwise prohibited by part III, chapter 112, Florida Statutes. Contractor further represents and warrants that its current business dealings will not conflict in any manner with Contractor’s performance of the Services. Contractor shall promptly notify PSTA’s Project Manager of any potential conflicts of interest which may arise throughout this Agreement with respect to any prospective business association, interest or other circumstance with may influence, or appear to 67
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influence, Contractor’s judgment or quality of the Services. Such written notification shall identify the prospective business association, interest or circumstance, the nature of work that the Contractor may undertake and request an opinion of PSTA as to whether the association, interest or circumstance would, in the opinion of PSTA, constitute a conflict of interest if entered into by the Contractor. PSTA agrees to notify Contractor of its decision within thirty (3) days of receipt of notification by Contractor. 15.05 Notices. All notices required or made pursuant to this Agreement shall be made in writing and sent by certified U.S. mail, return receipt requested, addressed to the following:
To PSTA: To Provider:
Pinellas Suncoast Transit Authority ______________________________ Attn: Brad Miller, CEO ______________________________
3201 Scherer Drive ______________________________ St. Petersburg, FL 33716 ______________________________
With required copy to:
Alan S. Zimmet, General Counsel Bryant Miller Olive
One Tampa City Center Suite 2700 Tampa, FL 33602
Either party may change its above noted address by giving written notice to the other party in accordance with the requirements of this Section 15.05.
15.04 Severability. If any one or more of the provisions of the Contract Documents shall be held to be invalid, illegal, or unenforceable in any respect by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby and the Contract Documents shall be treated as though that portion had never been a part thereof. 15.05 Modification. The Contract Documents may not be amended or altered without prior written approval by PSTA. Provider shall be liable for all costs resulting from and/or for satisfactorily correcting any specification change not properly ordered by written modification to the Contract Documents and signed by PSTA. 15.06 Headings and Section References. The headings and section references in this Agreement are inserted only for the purpose of convenience and shall not be construed to expand or limit the provisions contained in such sections. 15.07 Authorization. Both parties to this Agreement represent and warrant that they are authorized to enter into this Agreement without the consent and joinder of any other party and that the parties executing this Agreement have full power and authority to bind their respective parties to the terms hereof.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed on the date first above written. PROVIDER: PSTA: By: By: Duly Authorized Designee Brad Miller, CEO WITNESS: Approved as to form: By: By: