SELF FUNDED ELECTRONIC GOVERNMENT SERVICES
TERM CONTRACT
RESULTING FROM
RFP #01-252B
NATIONAL INFORMATION CONSORTIUM USA, INC.
DOING BUSINESS IN MONTANA THROUGH THE SUBSIDIARY:
MONTANA INTERACTIVE, INC.
CONTRACT TERMS AND CONDITIONS
This contract is a result of RFP #01-252B. All references to the RFP in this
contract are references to RFP #01-252B unless otherwise specified.
1. Parties
This contract is entered into by and between the Department of
Administration of the State of Montana, (hereinafter referred to as the
"Department"), whose address and telephone number are:
Department of Administration
Information Services Division (ISD)
P.O. Box 200113
Helena, MT 59620
406-444-2700
and National Information Consortium USA, Inc. (NICUSA), whose Federal ID
Number, address and telephone number are:
National Information Consortium USA, Inc.
Doing business in Montana through the
subsidiary
Montana Interactive, Inc. (MII)
Federal ID Number: 91-207-3898
677 East 730 South, Suite 204
American Fork, Utah 84003
801-756-7095
2. Effective Date, Duration and Renewal
2.1 This contract shall take effect on January 2, 2001. This contract
shall terminate on January 1, 2006 unless terminated earlier in
accordance with the terms of this contract.
2.2 This contract may be renewed by the Department for five (5) one-year
periods or for any increments between one (1) and five (5) years as
agreed upon by both parties. In no case may this contract run longer
than ten (10) years. Reference: 18-4-313, MCA.
3. Definition of Project
For purposes of this contract, "Project" is defined as self-funded
electronic government (e-government) services and other e-government
services provided by NICUSA to the State under this contract.
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4. Work Order Procedure
4.1 For the purpose of this section, "work order" refers to both a
Transaction Fund Work Order and an Agency Funded Work Order.
4.2 All new implementations of applications under this contract where
funding is being provided by the transaction fund must have an
approved Transaction Fund Work Order (see Attachment A). Each
Transaction Fund Work Order, at a minimum, must include the
information provided in Attachment A. In some cases, work may commence
prior to final approval of the Transaction Fund Work Order. Upgrades
and enhancements to existing applications do not need to be done
through work orders.
4.3 All work conducted by NICUSA under this contract where an agency or
program is providing the funding must be done through an approved
Agency Funded Work Order (see Attachment A). Each Agency Funded Work
Order, at a minimum, must include the information provided in
Attachment A. If the agency or program is funding the project, work
can commence upon the approval of the work order.
4.4 NICUSA and the agency or program will jointly fill out the information
on the work order, sign it and submit it to the Department for
signature. The Department will review the work order for compliance
with this contract, state standards, the strategic direction of the
State, the impact on the state's infrastructure, and other logistical
matters. Work orders may be for Internet, or intranet applications, or
for the support of such applications. Work orders must fit within the
scope of this contract and the intent of the RFP. The Department
acting on its own, or acting on the advice of the Governing Board, may
disapprove any work order. If a work order is disapproved, all
associated work must immediately cease and desist.
5. Transaction Fund, Revenue, and Remittance
5.1 The transaction fund is defined as a fund containing transaction fee
revenue, as defined in Section 7 of the RFP, generated from the use of
applications put into production through this contract. Other
applicable revenue may also reside in the fund such as that defined in
NICUSA's response to Section 7.8.5 of the RFP.
5.2 The transaction fund must be established as one or more accounts
insured by the FDIC in financial institutions. The accounts shall be
established as trust accounts with the funds held for the benefit of
the State. NICUSA shall furnish the Department with the names of the
institutions, the account numbers, and the names of those persons
having signatory
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authority. The accounts must be established in financial institutions
licensed in Montana. Exceptions must be approved by both parties.
5.3 NICUSA is responsible for billing, collecting, and administering all
revenue from applications put into production under this contract
unless otherwise stated in the work order. NICUSA is responsible for
depositing revenue into the transaction fund. NICUSA is responsible
for all statutory fees owed to the State.
5.4 NICUSA is responsible for remitting the State's revenues to the
Department of Revenue as outlined in Section 4.9 of the RFP. NICUSA
shall follow any special remittance provisions in approved work
orders. At no time must revenue due to the State be held longer than
thirty-one (31) days without being remitted to the Department of
Revenue. Revenue that will be remitted to the Department of Revenue
includes, but is not limited to, statutory fees and facility charges
owed by NICUSA to the State.
5.5 NICUSA is responsible for paying associated operation expenses,
including all reasonable and required capital reinvestment in the
Project. All remaining funds are to be retained by NICUSA.
6. Governing Board
The State will establish an advisory Governing Board for the Department.
Final authority resides with the Department. The Governing Board will
advise on the following in relation to the Project:
- Policy;
- Work orders proposing a fee;
- Fee changes;
- General priorities of work orders and investments;
- Service Management Business Plan;
- Management of the transaction fund; and
- Other issues as requested by the Department
The Governing Board will use the Contractor's response to Section 7 of the
RFP as a guide in its advice regarding fees, revenue, and NICUSA's return
on investment versus reinvestment into the State.
7. Ownership of Data
The State maintains ownership of all State data provided through the
Project. Customer data collected by NICUSA may not be used for any purpose
except in furtherance of the Project. In the event this contract is
terminated, the necessary customer data collected by NICUSA will be
provided to the Department or their designee.
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8. NICUSA Employees
8.1 Employees of NICUSA may be given access to secured facilities and
data. Prior to having access to secured facilities and data, NICUSA's
employees must submit to the same level of scrutiny as state employees
and be approved by the State for access. NICUSA's employees, in
carrying out this project, must follow all applicable laws, procedures
and policies.
8.2 This contract was awarded based on NICUSA's response to the RFP. If
the key personnel outlined in the RFP response change, the Department
must be notified immediately. If any of the key personnel outlined in
the RFP leave, or are otherwise removed and are unable to fulfill this
contract, they must be replaced by equally experienced and competent
personnel. The Department may provide input into the selection process
of key personnel directly fulfilling the terms of this contract.
8.3 The Department will notify NICUSA of any concerns with key personnel
directly fulfilling the terms of this contract. NICUSA agrees to make
a good faith effort to address the Department's concerns, which may
include replacing key personnel.
9. Consideration/Payments (Outside of the Transaction Fund)
9.1 When work conducted by NICUSA is being funded by an agency or program,
outside of the transaction fund in consideration for services
provided, the ordering agency or program will pay within thirty (30)
days of receipt of a properly executed invoice. The final payment,
plus retainer (if applicable), will be made within thirty (30) days of
receipt of a properly executed invoice and upon acceptance of the
completed project.
9.2 The Department or ordering agencies may withhold payments to NICUSA
regarding the disputed portion if NICUSA has not performed in
accordance with this contract or the approved work order.
10. Political Subdivisions
This contract will be offered to all entities defined in Section 1.1 of the
RFP. However, the Governing Board as well as the Department must approve
all work orders, or other requests regarding this contract, from political
subdivisions. The Governing Board shall establish the priority of such
requests and determine the policies and procedures for providing services
to political subdivisions under this contract. At no time shall services be
provided to political subdivisions to the detriment of the State.
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11. Warranties
NICUSA warrants that products (including hardware and software) and
services offered through this contract will conform to the specifications
requested, be fit and sufficient for the intended purpose, be of good
material and workmanship and free from defect. To be fit and sufficient for
the intended purpose includes adequate system performance.
12. Scope, Amendment, and Interpretation
12.1 This contract consists of 27 numbered pages, RFP #01- 252B as amended,
NICUSA's response to the RFP including the clarification question
responses, and negotiations. In the case of dispute or ambiguity, the
order of precedence of document interpretation is in that same order.
12.2 These documents contain the entire agreement of the parties. Any
enlargement, alteration or modification requires a written amendment
signed by both parties. Mutually agreeable changes may be made to this
contract provided that the terms of this contract:
12.2.1 Do not materially change NICUSA's obligations to the State as
expressed in the contract.
12.2.2 Do not violate the Constitution, Laws, or Rules of Montana.
12.2.3 Do not impose onerous obligations or conditions that materially
change the value of the product or services to be provided to
the Department.
12.2.4 Do not contravene the mandatory requirements of the RFP.
13. Non-Exclusive Contract
The Project is intended to be the State's single comprehensive method for
e-government services. NICUSA is not the exclusive source for e-government
services for the State. State entities electing to purchase or provide
e-government services through sources other than this contract will follow
existing procurement vehicles, or go through a competitive procurement
process. However, NICUSA has exclusive rights to links on the State Portal
for the applications developed by NICUSA, but will not be given exclusive
rights to state data. The Project may, however, be the exclusive method for
electronic services and data access for state agencies at their discretion
as indicated on a work order.
NICUSA has exclusive rights to the transaction fund for application
development. However, at the Department's discretion, NICUSA may be
required to verify that
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their pricing, service and delivery on a specific application project are
competitive with other vendors who distribute a similar application. If an
application project is determined by the Department not to be competitive,
then funding from the transaction fund may be made available to the State
for the project.
14. Contract Management Liaison
This contract is managed by the Information Services Division of the
Department of Administration for the State of Montana in accordance with
2-17-501, MCA. Contract management inquiries and problems should be
addressed to:
Audrey Hinman, Chief
Internet Technology Services Bureau
Information Services Division
P.O. Box 200113
Helena, MT 59620-0113
Telephone: 406-444-2700
FAX: 406-444-2701
15. Contractor Liaison
NICUSA shall have an Account Executive in place for the duration of this
contract. The Account Executive is the liaison to the Contract Management
Liaison and will assume responsibility for the coordination of all products
and services or projects under this contract. The Account Executive will
meet with the Contract Management Liaison, agency project manager, agency
procurement manager, and others as necessary to resolve any conflicts or
disagreements under this contract. If the Account Executive changes, the
Department must be notified immediately. The Department reserves the right
to request NICUSA to change the Account Executive, or any representative
serving the State, if in the opinion of the Department the current Account
Executive, or representative, is not adequately meeting the needs of the
State.
Michael Muller, General Manager
Montana Interactive, Inc.
677 East 730 South, Suite 204
American Fork, UT 84003
Telephone: 801-756-7095
FAX: 801-756-4643
16. Audit Requirements
16.1 With the approval of the Department, NICUSA shall select an
independent auditor to audit, at its own expense, NICUSA's books and
records, including the transaction fund books and records, on an
annual basis during the term of the contract. NICUSA shall make such
books and
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records available at its principal place of business. All audit
findings including, but not limited to, the audited financial
statements, auditor opinions, reports on internal control, findings
and recommendations, and management letters are to be provided to the
Department for review within one hundred twenty (120) days after the
close of NICUSA's fiscal year. In addition, NICUSA is subject to any
further audit and review determined necessary by the Department or the
Governing Board, after furnishing reasonable notice to NICUSA. This
includes audits conducted by the Legislative Auditor.
16.2 To the extent an audit report discloses any discrepancies in charges,
billings, or financial records, and following a period for review and
verification of the amount by NICUSA, NICUSA will adjust the
discrepancy as soon as reasonably possible, but not to exceed ninety
(90) days. NICUSA shall cooperate to assure that verification is
completed in a timely manner. NICUSA also agrees to make other changes
requested by the Department, that are agreed to by NICUSA, to comply
with recommendations resulting from any audit.
17. Reporting Requirements
17.1 NICUSA must provide monthly income statements and balance sheets for
the transaction fund to the Department.
17.2 NICUSA must provide a monthly status report to the Department of all
projects or work orders in progress and an overall view of the
operation of the services provided under this contract.
17.3 NICUSA will measure and report monthly to the Department on growth
trends and usage of the services provided under this contract. The
report shall include number of hits, access, transactions and other
performance measures or metrics as mutually agreed upon by the
Department and NICUSA. NICUSA will measure and report monthly to the
Department on the performance of the servers provided under this
contract including swap rate, CPU usage, memory usage and disk usage.
17.4 NICUSA will submit a proposed three (3) year Service Management
Business Plan to the Department including activities, schedules,
deliverables, budgets, and financial forecasts. Section 7 of the RFP
is to be used as a guideline for the initial Plan. NICUSA will submit
the initial Plan to the Department within sixty (60) days of the
execution of this contract. The Plan shall be revised and submitted on
an annual basis.
17.5 The Department reserves the right to request additional reports
regarding this contract. NICUSA agrees to make a good faith effort to
provide all requested reports.
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18. Contract Performance Security
Contract Performance Security in the form of a surety bond #103332645 in
the amount of $250,000 has been received by the State Procurement Bureau
and will be returned to NICUSA after successful completion of this
contract. This security must remain in effect for the entire contract
period.
The State may collect damages from contract security if NICUSA materially
fails to perform or provide service as required. This could range from
going out of business and leaving the State with no service provider or no
finished or supported product, to completing the contract but doing so
unsatisfactorily or as required by contract.
The damages available to the State are limited to the additional costs
incurred to select a new service provider or the cost of correcting the
problem. The State may also collect from the security the overhead costs to
the State in acquiring a new service provider or the overhead time expended
to correct the problem. Reference: 18-4-312, MCA.
19. Headings
The heading or captions of the sections and subsections of this contract
are inserted for convenience only, shall not be deemed to be part of this
contract, and in no way define, limit, extend or describe the scope of
intent of any provisions hereof.
20. Access and Retention of Records
20.1 NICUSA agrees to provide the Department, the Legislative Auditor or
their authorized agents access to any records necessary to determine
contract compliance.
20.2 NICUSA agrees to create and retain all records supporting the products
and services rendered for a period of three (3) years after either the
completion date of this contract or the conclusion of any claim,
litigation or exception relating to this contract taken by the State
of Montana or a third party. Reference: 18-1-118, MCA.
21. Tax Exemption
The State of Montana is exempt from Federal Excise Taxes (#81-0302402).
22. Product Requirements
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NICUSA certifies that all applications offered through this contract are
fully compatible with the State's computing environment as specified in
Section 2 of the RFP. Should any application provided through this contract
fail to exhibit fully compatible performance; NICUSA will be responsible
for assuming all costs associated with correcting, or replacing all non-
compliant applications. The Department shall have the final authority to
determine compliance of an application.
23. Assignment, Transfer and Subcontracting
NICUSA may not assign, transfer or subcontract any portion of this contract
to any non-NIC-related entities without the express written consent of the
Department. Reference: 18-4-141, MCA. NICUSA is solely responsible for
ensuring that subcontractors comply with all terms and conditions of this
contract. All contracts NICUSA engages in with non-NICUSA entities on
behalf of the State to fulfill this contract must have the ability to be
assigned, transferred, or assumed by the Department. This specifically
includes all infrastructure solutions outlined in Section 4 of the RFP.
NICUSA must provide copies of all said contracts to the Department.
24. Choice of Law and Venue
This contract is governed by the laws of Montana. The parties agree that
any litigation concerning this contract must be brought in the First
Judicial District in and for the County of Lewis and Clark, State of
Montana. Reference: 18-1-401, MCA.
25. Compliance with Laws
25.1 NICUSA must comply with all applicable federal and state law including
the prevailing wage laws.
25.2 NICUSA must comply with the Montana Human Rights Act, the Civil Rights
Act of 1964, the Age Discrimination Act of 1975, the Americans with
Disabilities Act of 1990, and Section 504 of the Rehabilitation Act of
1973.
25.3 If one or more provisions of this contract are deemed to be unlawful
or unconstitutional or stricken by a court of law, all valid
provisions that are severable from the invalid provisions remain in
effect and are valid and binding on the parties. If any provision
hereof is in conflict with any applicable statute or rule of law, then
such provision shall be deemed inoperative to the extent that it may
conflict therewith and shall be deemed to be modified to conform to
such statute, rule of law, court order, or judgment.
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26. Indemnification
NICUSA agrees to indemnify and hold harmless the State, its officials,
agents, and employees, while acting within the scope of their duties as
such, harmless from and against all claims, demands, and causes of action
of any kind or character, including the cost of defense, arising in favor
of NICUSA's employees or third parties on account of bodily or personal
injuries, death, or damage to property arising out of services performed,
goods or rights to intellectual property provided or omissions of services
or in any way resulting from the acts or omission of NICUSA and/or its
agents, employees, subcontractors or its representatives under this
agreement, all to the extent of NICUSA's negligence.
27. Patent and Copyright Protection
27.1 In the event of any claim by any third party against the Department
that the products furnished under this contract infringe upon or
violate any patent or copyright, the Department shall promptly notify
NICUSA. NICUSA shall defend such claim, in the Department's name or
its own, as appropriate, but at NICUSA's expense. NICUSA will
indemnify the Department against all costs, damages and attorney's
fees that a Court finally awards as a result of such claim. If the
Department reasonably concludes that its interests are not being
properly protected, it may enter any action. However, any settlement
by the Department with the party alleging such infringement or
violation shall not be binding upon NICUSA and NICUSA shall be under
no obligation to pay or indemnify the Department. Further, if
principles of governmental or public law are involved, the State of
Montana may participate in the defense of any such action.
27.2 If any product furnished is likely to or does become the subject of a
claim of infringement of a patent or copyright, then NICUSA may, at
its option, procure for the Department the right to continue using the
alleged infringing product, or modify the product so that it becomes
non-infringing. If none of the above options can be accomplished, or
if the use of such product by the Department shall be prevented by
permanent injunction, the Department agrees to return the product at
NICUSA's request and NICUSA agrees to grant the Department a credit
for full cost of the product and any related product provided by
NICUSA which can no longer be used effectively without the use of the
infringing product.
27.3 This section 27 shall not apply if the infringement, or claim thereof,
is based upon the use of products supplied by NICUSA in combination
with other software not made or supplied by NICUSA (Department or
other vendor supplied), or the use of products by the Department with
apparatus, data or programs not furnished or supplied by NICUSA
(Department or other vendor supplied), or products not manufactured or
supplied by
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NICUSA (Department or other vendor supplied). This section 27 will
apply to all products offered by NICUSA.
28. Intellectual Property
28.1 All patent and other legal rights in or to inventions arising out of
activities funded in whole or in part by this contract must be
available to the Department for royalty- free and nonexclusive
licensing to the State. NICUSA shall notify the Department in writing
of any invention conceived or reduced to practice in the course of
performance of this contract.
28.2 The Department shall have a royalty-free, nonexclusive, and
irrevocable right to reproduce, publish or otherwise use and authorize
others to use for operation of the State of Montana portal only,
copyrightable property created under this contract.
28.3 All application source code and documentation together with all
updates and revisions (collectively referred to below as "The
Software") provided to the Department under this contract shall be the
intellectual and tangible property of NICUSA. However, the State and
all subsequent e- government service providers working on the State of
Montana portal, shall be granted a perpetual for-use-only license by
NICUSA to The Software only for purposes of this Project at no
additional fee. This license includes rights to modify the code and
applications, as the State deems appropriate. Designs, logos,
graphics, and trademarks related to the Project are the property of
the State and are licensed to NICUSA only for the duration of the
contract.
28.4 The Software shall be deposited with an Escrow Agent on a quarterly
basis. NICUSA and the Department shall mutually choose the Escrow
Agent. The Department will review, approve and subsequently receive
from NICUSA, an executed copy of the software escrow agreement between
NICUSA and the Escrow Agent. NICUSA will notify the Department in
writing of any amendments to such agreements, any change in Escrow
Agent, or of any replacement or successor escrow arrangements. The
Escrow Agent will provide written notification to the Contract
Management Liaison, at least semiannually, detailing all account
activity during the previous period. Over the term of the contract,
NICUSA will have the authority to remove superseded source code.
Updates to The Software shall be escrowed and owned as stated above.
The Department has full rights in verifying that this process is
properly being followed. An exclusion to this provision applies to
software or documentation created by third parties and purchased by
NICUSA.
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28.5 The Software shall be released to the Department upon termination of
this contract, for disaster recovery purposes, if NICUSA is declared
insolvent through bankruptcy proceedings, if NICUSA is unable to
perform its obligations to the State under the contract, or as
otherwise provided in the agreement with the Escrow Agent. In any of
the events listed above, The Software from the Escrow Agent, and any
updates or new applications not yet in escrow, shall be delivered to
the Department immediately.
29. Insurance Requirements (Receipt of)
29.1 General Requirements: NICUSA shall maintain for the duration of the
contract, at its cost and expense, insurance against claims for
injuries to persons or damages to property, including contractual
liability which may arise from or in connection with the performance
of the work by NICUSA, agents, employees, assigns, or subcontractors.
The insurance shall cover such claims as may be caused by any
negligent act or omission.
29.2 Specific Requirements for Commercial General Liability: NICUSA shall
purchase and maintain Occurrence coverage with combined single limits
for bodily injury, personal injury, and property damage of $1,000,000
per occurrence and $2,000,000 aggregate per year to cover such claims
as may be caused by any act, omission, or negligence of NICUSA or its
officers, agents, representatives, assigns or subcontractors.
29.3 Additional Insured Status: The State, its officers, officials,
employees, and volunteers are to be covered as additional insureds;
for liability arising out of activities performed by or on behalf of
NICUSA, including the insured's general supervision of NICUSA;
products and completed operations; premises owned, leased, occupied,
or used.
29.4 Deductibles and Self-Insured Retentions: Any deductible or
self-insured retention must be declared to and approved by the
Department. At the request of the agency either: 1) The insured shall
reduce or eliminate such deductibles or self-insured retentions as
respect to the State, its officers, officials, employees, and
volunteers, or; 2) NICUSA shall procure a bond guaranteeing payment of
losses and related investigations, claims administration, and defense
expenses.
29.5 Certificate of Insurance/Endorsements: A certificate of insurance,
indicating compliance with the required coverages, has been received
by the State Procurement Bureau. NICUSA must notify the State
immediately, of any material change in insurance coverage, such as
changes in limits, coverage, change in status of policy, etc.
29.6 Primary Insurance: NICUSA's insurance coverage shall be primary
insurance with respect to the State, its officers, officials,
employees, and
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volunteers and shall apply separately to each project or location. Any
insurance or self-insurance maintained by the State, its officers,
officials, employees or volunteers shall be excess of NICUSA's
insurance, and shall not contribute with it.
30. Workers' Compensation/Independent Contractor's Exemption
Contractors are required to maintain Workers' Compensation or an
Independent Contractor's Exemption covering NICUSA and/or employees while
performing work for the State of Montana in accordance with Section 39-
71-120/401/405, MCA. Neither NICUSA nor its employees are employees of the
State. This insurance/exemption must be valid for the entire contract
period.
31. Meetings
Each party is required to meet with the other to resolve technical or
contractual problems that may occur during the term of this contract.
Meetings will occur as problems arise and will be coordinated by the
Department. NICUSA will be given a minimum of three (3) full working days
notice of meeting date, time, and location. Face to face meetings are
desired. However, upon mutual agreement, a conference call meeting may be
substituted. Consistent failure to participate in problem resolution
meetings (two (2) consecutive missed or rescheduled meetings), or failure
to make a good faith effort to resolve problems (as determined by the
Department), may result in termination of this contract.
32. Notice
Written notice sent by certified mail, return receipt requested, shall be
deemed made when received or initially refused by the other party.
33. Termination
33.1 If NICUSA fails to perform the work in accordance with the provisions
of this contract, or breaches any contract term and does not cure or
does not correct such failure within a period of thirty (30) days
after receipt of the Department's written notice thereof, the
Department may, by written notice, terminate the whole or any part of
this contract. Such written notice shall specify the time, the
specific provision of this contract or "for cause" reason that gives
rise to the termination, and shall specify reasonable appropriate
action that can be taken by NICUSA to avoid termination of the
contract. The phrase "for cause" shall mean:
33.1.1 Any material breach or evasion by NICUSA of the terms or
conditions of this contract and its amendments, if any.
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33.1.2 Substantial cessation or material degradation of Network
services by NICUSA shall be cause for immediate termination of
this contract.
33.1.3 A conviction of fraud, misappropriation, embezzlement,
malfeasance, significant misfeasance, or illegal conduct by
NICUSA, its officers, directors or by any corporation or
shareholder owning a controlling interest in NICUSA.
33.1.4 Dissolution of NICUSA or forfeiture of its corporate existence
without assignment to a successor acceptable to the Department.
33.1.5 NICUSA's doing any of the following:
33.1.5.1 Commencing a voluntary case or other proceeding
seeking liquidation, reorganization, or other relief
with respect to itself or its debts under any
bankruptcy, insolvency, or other similar law now or
hereafter in effect; or filing an answer admitting the
material allegations of a petition filed against
NICUSA in any involuntary case or other proceeding
commenced against NICUSA seeking liquidation,
reorganization, or other relief under any bankruptcy,
insolvency, or other similar law now or hereafter in
effect with respect to NICUSA or either of their
debts; or consenting to any such relief or to the
appointment of or taking possession by any such
official in any voluntary case or other proceeding
commenced against NICUSA seeking liquidation,
reorganization, or other relief under any bankruptcy,
insolvency, or other similar law now or hereafter in
effect with respect to NICUSA or either of their
debts;
33.1.5.2 Seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of
NICUSA or any substantial part of NICUSA's 's assets;
33.1.5.3 Making an assignment for the benefit of creditors;
33.1.5.4 Failing, being unable, or admitting in writing the
inability generally to pay its debts as they become
due; or
33.1.5.5 Taking any action to authorize any of the foregoing.
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33.1.6 Intentional or negligent act or omission by NICUSA resulting in
the disclosure of any information clearly indicated as being
confidential.
33.2 The Department, at its sole discretion, may terminate or reduce the
scope of this contract or any work order if available funding is
reduced for any reason. Reference: 18- 4-313, MCA.
33.3 If NICUSA fails to perform the work in accordance with any work order,
or any contract term in the work order and does not cure or does not
correct such failure within a period of thirty (30) days after receipt
of the Department's written notice thereof, the Department may, by
written notice, terminate the whole or any part of the work order.
33.4 The Department may terminate this contract at any time and without
cause if directed to do so by statute.
33.5 NICUSA shall have the right to terminate this contract for any
material breach or evasion by the Department of the terms or
conditions of this contract and its amendments, if any, subject to
cure, by providing written notice of termination to the Department.
Such notice shall specify the time, the specific reason that gives
rise to the termination, and shall specify reasonable appropriate
action that can be taken by the Department to avoid termination of the
contract. NICUSA shall provide a specified period of time of up to
thirty (30) calendar days for the Department to cure breaches and
deficiencies of its performance obligations under this contract.
34. Infrastructure Support
NICUSA shall support agency developers (internal employees or contractors)
with the integration of separately developed agency applications into the
infrastructure provided through this contract. The Department agrees to be
an intermediary to cooperatively support these efforts, as resources allow.
35. Transition Period
35.1 If for any reason this contract is terminated other than for a
material breach by the Department, or upon expiration of this contract
without extension, or at the end of any extension of this contract, at
the option of the Department NICUSA shall continue to operate under
this contract in accordance with all its terms and conditions for a
period of up to twelve (12) months from the time of expiration or
notification of termination from the Department to NICUSA. The intent
of this provision is to insure continuation of e-government services
while a successor (which may be the State) is chosen and installed.
The Department shall notify NICUSA
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at the earliest possible opportunity, but in any event, no later than
the date of notification of termination, that it shall continue
operations and the duration of time for such continuation.
35.2 If for any reason this contract is terminated the Department has the
option of purchasing equipment acquired under this contract at fair
market value. If NICUSA engages in any lease agreements for equipment
provided under this contract, the Department must have the option to
assume the lease in case of contract termination. The Department shall
have necessary access to all equipment and software provided under
this contract in order to support the Department's work as well as
agencies.
35.3 If for any reason this contract is terminated, the remaining funds in
the transaction fund after all settlements are to be turned over to
the Department as soon as the reasonable course of business allows,
but not more than thirty (30) days.
36. Year 2000 Compliance
NICUSA warrants that all hardware, software, and/or firmware delivered,
developed, modified, or licensed, under this contract, shall be able to
accurately process date data (including, but not limited to, calculating,
comparing, and sequencing) from, into, and between the twentieth and
twenty-first centuries, including leap year calculations, when used in
accordance with the product documentation provided by NICUSA, provided that
all products (e.g. hardware, software, firmware) used in combination with
other designated products properly exchange data with it. The remedies
available to the State under this warranty shall include repair or
replacement of any product whose non-compliance is discovered and made
known to NICUSA, in writing, within this warranty period or within one year
after acceptance, whichever is longer. Nothing in this warranty shall be
construed to limit any rights or remedies the State may otherwise have
under this contract, with respect to defects, other than Year 2000
compliance performance.
16
37. Execution
The parties, through their authorized agents, have executed this contract
on the dates set out below.
CONTRACTOR - NATIONAL INFORMATION CONSORTIUM USA, INC.
----------------------------------- ------------------------------
Signature Date
HARRY HERINGTON
-----------------------------------
Name
PRESIDENT
-----------------------------------
Title
12 CORPORATE WOODS
10975 BENSON ST., SUITE 390
-----------------------------------
Address
OVERLAND PARK, KS 66210 91-207-3898
----------------------------------- ------------------------------
City, State, Zip Code Federal Employer ID #
DEPARTMENT OF ADMINISTRATION - INFORMATION SERVICES DIVISION
----------------------------------- ------------------------------
Signature Date
ANTHONY J. HERBERT
-----------------------------------
Name
ADMINISTRATOR
-----------------------------------
Title
Approved as to form and content:
-----------------------------------
Legal Counsel, Department of Administration
-----------------------------------
State Procurement Bureau
17
ATTACHMENT A
Montana Interactive, Inc. (MII) will meet with all state agencies as requested
to discuss their e-government plans. MII should involve the Department in these
meetings when applicable. The appropriate version of the work order should be
completed for all potential applications and MII must give the agency a
reasonable expectation of the priority and schedule for each application. For
large applications, to avoid delays in approval, MII should provide the
Department drafts of work orders prior to their completion. An agency may
indicate on a work order that the Project will be the exclusive method for
electronic services and data access for their data source.
TRANSACTION FUND WORK ORDER
FOR MONTANA INTERACTIVE, INC. (MII)
SELF-FUNDED ELECTRONIC GOVERNMENT SERVICES
TERM CONTRACT
DATE:
TRACKING NUMBER:
AGENCY:
DIVISION OR PROGRAM:
PROJECT NAME:
DESCRIPTION OF WORK: (Include the data sources, what fields or data will be
accessed or modified, whether production data or
replicated data will be used, how updates to data
sources will be conducted and record lock/contention
handled, what the complete business process will be from
start to finish, what the complete process will be for
the end user, access methods available to the end user,
any qualification procedures used for end users, a
description of the capabilities of the application)
DEVELOPMENT TOOLS AND (Identify whether Oracle will be used, Visual Basic,
SOFTWARE USED: etc. and any third party software necessary for the
implementation of the application, specifically state
whether any non- state standard hardware or software
will be involved)
SECURITY:
18
IMPACT ON THE (Location of application, impact on hardware, software,
INFRASTRUCTURE: the state network, and on statewide enterprise license
agreements)
SCHEDULE (INCLUDING (Must include estimated completion dates)
MILESTONES):
DELIVERABLES:
ACCEPTANCE/COMPLETION
CRITERIA:
ESTIMATED AGENCY HOURS:
FEE COLLECTED ON BEHALF
OF AGENCY:
REMITTANCE PROVISIONS:
FEE COLLECTED ON BEHALF
OF TRANSACTION FUND:
MII PROJECT MANAGER:
AGENCY PROJECT MANAGER:
END USER SUPPORT (HELP (Clearly define how problems that need to be passed
DESK): onto the State will be handled and who will be
responsible for their resolution and how the problem
will be tracked to completion.)
ADDITIONAL TERMS: (At no time can a work order term be in conflict with a
contract term.)
- ---------------------------------------- ------------------------------
Michael Muller, General Manager Date
Montana Interactive, Inc.
- ---------------------------------------- ------------------------------
(Insert Agency Authority), (Insert Title) Date
(Insert Agency, Division and/or Program)
- ---------------------------------------- ------------------------------
Audrey Hinman, Chief Date
Internet Technology Services Bureau, ISD
19
- ---------------------------------------- ------------------------------
(Insert Chair of Governing Board), Chair Date
Montana Electronic Government Advisory
Council (Needs to sign only if a fee is
proposed)
20
AGENCY FUNDED WORK ORDER
FOR MONTANA INTERACTIVE, INC. (MII)
SELF-FUNDED ELECTRONIC GOVERNMENT SERVICES
TERM CONTRACT
DATE:
TRACKING NUMBER:
AGENCY:
DIVISION OR PROGRAM:
PROJECT NAME:
DESCRIPTION OF WORK: (Include the data sources, what fields or data will be
accessed or modified, whether production data or
replicated data will be used, how updates to data
sources will be conducted and record lock/contention
handled, security, what the complete business process
will be from start to finish, what the complete process
will be for the end user, access methods available to
the end user, any qualification procedures used for end
users, a description of the capabilities of the
application)
DEVELOPMENT TOOLS AND (Identify whether Oracle will be used, Visual Basic,
SOFTWARE USED: etc. and any third party software necessary for the
implementation of the application, specifically state
whether any non- state standard hardware or software
will be involved)
SECURITY:
IMPACT ON THE (Location of application, impact on hardware, software,
INFRASTRUCTURE: the state network, and on statewide enterprise license
agreements)
SCHEDULE (INCLUDING (Must include estimated completion dates)
MILESTONES):
DELIVERABLES:
ACCEPTANCE/COMPLETION
CRITERIA:
ESTIMATED MII HOURS:
ESTIMATED AGENCY HOURS:
21
RATE(S) CHARGED: (This can be stated as an amount billable per hour, not
to exceed a certain amount, or a fixed agreed to amount;
an hourly rate without a cap is not acceptable)
PAYMENT SCHEDULE: (Outline the complete payment schedule, include any
holdbacks due to non- compliance with the approved work
order or missing scheduled milestones such as the
completion date)
REMITTANCE PROVISIONS
(IF ANY):
MII PROJECT MANAGER:
AGENCY PROJECT MANAGER:
PRODUCTION MAINTENANCE (Will MII have an ongoing responsibility to maintain
ARRANGEMENT: and support this application, or will the agency or
program take over once the application is in production?
If MII will be responsible for maintaining and
supporting the application, will the agency be providing
the funding to do so?)
END USER SUPPORT (HELP (Will MII be taking calls from the end users of the
DESK) application, or will the agency's help desk take the
calls? If MII will be responsible for supporting the
application, will the agency be providing the funding to
do so? If MII is providing the support, clearly define
how problems that need to be passed onto the State will
be handled and who will be responsible for their
resolution and how the problem will be tracked to
completion. If the agency has requirements for reporting
regarding support issues, they should be stated here.)
ADDITIONAL TERMS: (At no time can a work order term be in conflict with a
contract term.)
- ---------------------------------------- ------------------------------
Michael Muller, General Manager Date
Montana Interactive, Inc.
- ---------------------------------------- ------------------------------
(Insert Agency Authority), (Insert Title) Date
(Insert Agency, Division and/or Program)
22
- ---------------------------------------- ------------------------------
Audrey Hinman, Chief Date
Internet Technology Services
Bureau, ISD
23
ATTACHMENT B
INFRASTRUCTURE AGREEMENT
FOR MONTANA INTERACTIVE, INC. (MII)
It is the intent of the Department that the electronic government (e-government)
services infrastructure be established in the most cost effective and efficient
manner to lessen the burden on Montana's taxpayers.
The infrastructure established through this contract will be available to all
state agencies for their e-government applications and web sites (not just those
provided by NICUSA). Use of the infrastructure is subject to the Governing
Board's policies and procedures. The infrastructure must support the State's
Internet portal as well as a separate server to support the State's intranet
portal for the duration of the contract. Work orders completed through this
contract may be for both Internet and intranet applications.
This agreement is to outline the resources that will be provided by the
Department and the resources that will be provided by NICUSA as an investment in
the State. This agreement is to set the foundation for the relationship between
the Department and NICUSA; however, it is subject to change as necessary when
both parties agree.
All rates quoted below are for fiscal year 2001 and are subject to change in
future years as determined by the Legislature and/or the Department. NICUSA must
provide all equipment and do all installation necessary to connect the servers
to the network connection provided and must follow the published Mid-Tier
Standards for the State.
HARDWARE
It is required that hardware provided by NICUSA meet the State's needs on an
ongoing basis as deemed appropriate by the Governing Board. All hardware
provided must be state standard equipment (IBM RS/6000 mid-tier boxes and Dell
PowerEdge Intel boxes). The hardware housed in the State Data Center must be
stored in tower racks. The procurement of tower racks to store the hardware is
the responsibility of NICUSA. All consoles should be on a switch and NICUSA is
limited to two physical consoles. The consoles and any console switches are the
responsibility of NICUSA. Contractor employees will be authorized for physical
access to the servers provided under this contract only. Access to secured areas
will be granted on an as needed basis and is available 7 x 24. Appropriate
procedures must be followed to gain access to secured areas. Remote
administration of servers is encouraged.
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The following hardware at a minimum will be housed in the State Data Center (it
is understood that NICUSA will require additional servers than those listed
below):
INTERNET PORTAL SERVER: The State requires NICUSA provide a server for the State
Portal (as defined in Section 4 of the RFP), agency web sites, and e-government
services. This server will sit outside of the State's firewall.
INTERNET PORTAL DEVELOPMENT SERVER: The State requires NICUSA provide a
development server for the State Portal (as defined in Section 4 of the RFP),
agency web sites, and e-government services. This server will sit outside of the
State's firewall.
INTRANET PORTAL SERVER: The State requires NICUSA provide a server for the State
intranet, agency intranet web sites, and internal e-government services. This
server will sit inside of the State's firewall.
INTRANET PORTAL DEVELOPMENT SERVER: The State requires NICUSA provide a
development server for the State intranet, agency intranet web sites, and
internal e-government services. This server will sit inside of the State's
firewall.
SERVICES
SERVICES PROVIDED BY ISD:
1. Space in the State Data Center including fire protection, air
conditioning for continuously controlled temperature and humidity, and
physical security with a centrally administered personnel access
control system requiring pre-approved individual access
2. Connection of all servers to the State Data Network (SummitNet)
3. Back-up and recovery of servers using Harbor agents through the
network with off-site storage following the State's policies
4. UPS electrical protection fully isolated from utility power surges,
fluctuations, spikes, and high frequency electrical noise; provides
for controlled shutdown of computer equipment during power outages
5. Continuous monitoring is available as an option whereas Department
employees will notify NICUSA when a server is down
6. Scheduling of jobs for reliable execution of specific batch job
streams to accommodate customer's production schedule needs is an
option
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7. Notification of all scheduled maintenance and outages
8. Ability to participate in weekly problem and change management
meetings
SERVICES PROVIDED BY NICUSA:
1. The necessary hardware and software to support production
dependencies; NICUSA must provide all equipment and do all
installation necessary to connect the servers to the network
connection provided
2. Disaster recovery planning and any costs incurred with the disaster
recovery plan; the disaster recovery plan must include the procedures
NICUSA will follow when a server goes down with a hardware problem
such as a system disk crash, hard parity check in a RAM card, etc.;
the written disaster recovery plan must be submitted to the Department
for approval within sixty (60) days of contract execution and revised
annually
3. System stability, reliability, and recoverability
4. Capacity planning and ongoing analyses of changes in system
utilization to best assure adequate configuration to accommodate
ongoing production workload demands
5. Performance monitoring of system deliverables, including response
times and other time-related production deliverables
6. Hardware maintenance, upgrades, and all equipment provided under this
contract
7. All operating systems used must be state standard operating systems
(AIX, Windows NT, or Windows 2000). NICUSA is responsible for
procuring and installing all software provided under this contract.
NICUSA is responsible for all operating system installations,
upgrades, maintenance, software installations, and software changes.
NICUSA is responsible for all operating systems and software support.
RATES CHARGED BY ISD:
A Service Level Agreement will be signed by both parties for all facility
services provided by ISD. NICUSA will be charged $3,000 per year ($250 per
month) per tower rack (approximately six (6) servers) for housing in the State
Data Center. NICUSA is limited to two consoles regardless of the number of tower
racks.
26
STATE NETWORK CONNECTIVITY
LOCAL OFFICE CONNECTIVITY: NICUSA will be responsible for a monthly site rate to
connect their local office to SummitNet. The monthly site rate varies depending
on the service requested. The connection options are 56K at $250 per month or
T-1 at $650 per month. These costs do not include the circuit costs. ISD will
provide the service up to and including the router. NICUSA is responsible for
all LANs and equipment in their office to connect to the router.
INTERNET CONNECTIVITY
STATE'S CURRENT CAPACITY: At the time of contract signing, the State intends to
have a physical ATM DS3 connection to the Internet, with 9Mbps being used.
NICUSA will be responsible for paying for additional capacity required for their
use. The Department is willing to negotiate with NICUSA on the appropriate
sharing arrangement, as additional capacity is needed.
ORACLE
Under the existing State of Montana Oracle Enterprise License Agreement, the
Department will provide all required Oracle licenses. It is understood by NICUSA
that these licenses are for exclusive use by NICUSA to carry out the terms of
this contract and may not be used for any other purpose or entity. The State of
Montana Oracle Enterprise License Agreement is for State of Montana agencies
only and does not include and may not be used for political subdivisions. The
Department will provide NICUSA with access to their Oracle web server and NICUSA
is encouraged to use this web server whenever possible. If NICUSA (or an agency)
wishes to have the Department host Oracle databases or applications, they will
be charged ISD's published mid-tier rates. If NICUSA hosts their own Oracle
databases, there will be no additional charges.
The State has the right for agency and Department employees to perform technical
reviews on all Oracle databases and applications prior to implementation.
E-MAIL
It would be very beneficial for the General Manager of Montana Interactive, Inc.
(and perhaps all employees) to be on the state's e-mail system for the benefit
of meeting scheduling and access to the state's address book. The cost is $6.00
per mailbox per month.
27