Department of Administration
State Procurement Bureau
165 Mitchell Building
PO Box 200135
Helena, MT 59620-0135
Phone: (406) 444-2575 Fax: (406) 444-2529
TTY Users-Dial 711
http://gsd.mt.gov/ /
T.C. #: SPB10-1923D
Title: Transaction Funded Electronic Government Services
This is aann exclusive contract. /
CONTRACT TERM / FROM / January 1, 2011 / CONTRACT
STATUS / NEW (XX) /
TO / December 31, 2015 / RENEW () /
VENDOR
ADDRESS / Montana Interactive
828 Great Northern Blvd Ste 2A
Helena, MT 59601 / ORDER
ADDRESS /
ATTN: / Jill Willhoite / ATTN: /
PHONE: / (406) 449-3468 / PHONE: /
FAX: / (406) 495-0464 / FAX: /
E-MAIL: / / E-MAIL: /
PRICES: Per Contract
DELIVERY: Per Contract
F.O.B.: Per Contract
TERMS: Per Contract /
REMARKS: This contract is for the convenience of state agencies and is a “Non-exclusive” use contract for the development of eGovernment services. (See Section 3 for details).
This contract is exclusive for the State Electronic Payment Processing Portal and ePass Montana. For these two items, this contract is an “Exclusive” use contract. (See Section 3 for details). /
IFB/RFP No.: RFP10-1923D /
RICK DORVALL, CONTRACTS OFFICER DATE: 05/29/2013 /
AUTHORIZED SIGNATURE /
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Transaction Funded Electronic Government Services Contract
CONTRACT #10-1923D
1. PARTIES
THIS CONTRACT is entered into by and between the State of Montana, Department of Administration, (hereinafter referred to as "the State"), whose address and phone number are Information Technology Services Division, PO Box 200113, Helena, MT, 59620, 406-444-2700, and Montana Interactive, (hereinafter referred to as the "Contractor"), whose address and phone number are 828 Great Northern Blvd, Ste 2A, Helena, MT 59601 and 406-449-3468 ext. 227.
THE PARTIES AGREE AS FOLLOWS:
2. EFFECTIVE DATE, DURATION, AND RENEWAL
2.1 Contract Term. This contract shall take effect on January 1, 2011, and terminate on December 31, 2015, unless terminated earlier in accordance with the terms of this contract.
2.2 Contract Renewal. This contract may, upon mutual agreement between the parties at least 90 days prior to the end of the initial term or any renewal term and according to the terms of the contract be renewed in one-year intervals, or any interval between one and five years that is advantageous to the State. This contract, including any renewals, may not exceed a total of 10 years, at the option of the State.
3. EXCLUSIVITY
3.1 Non-Exclusivity. This contract is for the convenience of state agencies and is a “Non-exclusive” use contract for the development of eGovernment services. Therefore, agencies may obtain development of eGovernment services from sources other than the Contractor as long as they comply with Title 18, MCA, and their delegation agreement.
3.2 Exclusivity. This contract is exclusive for the State Electronic Payment Processing Portal and ePass Montana. For these two items, this contract is an “Exclusive” use contract and state agencies must obtain the specified product/service from Contractor. It is the individual agency’s responsibility to comply with the terms of the contract. Exceptions may only be granted by the State Chief Information Officer.
4. WORK ORDER PROCEDURE
4.1 Requirements. All new eGovernment service projects and application development work conducted by Contractor under this contract must be done based on approved work orders. Work orders are also required for using existing statewide services. Major enhancements for existing eGovernment services must first have an amended work order. Any change that affects fees must first have an amended work order. The work order may be transaction funded (self-funded) or agency funded (time and materials); the majority of work orders shall be transaction funded. Work cannot commence until the work order is signed by all parties.
4.2 Contents. The work order at a minimum includes the description of work, development schedule, deliverables, fees (if applicable), payment schedule (if applicable), project managers for each organization, and approval signatures from all parties.
4.3 Existing Work Orders. All existing work orders will automatically be transferred to Contractor and remain in effect. Work orders can be amended with new terms at any time upon approval of all parties. This contract prevails in the case there is any conflicting terms in existing work orders.
4.4 Termination. The Department of Administration may disapprove, or terminate, any work order. If a work order is disapproved or terminated, all associated work must immediately cease and desist. The State acknowledges that the services (including revenue-generating, low-revenue generating, and non-revenue generating) provided by the Contractor under the transaction-funded model contemplated under this Contract are directly tied to the level of financial resources available. The termination of any work order pursuant to this Section 4.4, except for Contractor’s breach of a work order, will not be deemed a termination For Cause for purposes of the license granted in Section 13.
5. CONSIDERATION/PAYMENT
5.1 Payment Schedule. When work conducted by Contractor 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 30 days of receipt of a properly executed invoice. The final payment, plus retainer (if applicable), will be made within 30 days of receipt of a properly executed invoice and upon acceptance of the completed project.
5.2 Withholding of Payment. The State may withhold disputed payments to the Contractor for a work order if the Contractor is in material breach of such work order. Such withholding cannot be greater than, in the aggregate, 15% of the total value of the work order. With respect to payments subject to milestone acceptance criteria, the State may withhold payment only for such specific milestone if and until the subject milestone criteria are met. The Contractor is not relieved of its performance obligation in the event such payment is withheld.
6. TRANSACTION FUND, REVENUE, REMITTANCE
6.1 Transaction Fund Defined. The transaction fund is a contractor account(s) that revenues from the eGovernment services are deposited.
6.2 Requirements. 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. Contractor shall furnish the Department of Administration with the names of the institutions, the account numbers, and the names of those persons having signatory authority. The accounts must be established in financial institutions licensed in Montana. Exceptions must be approved by both parties. The Contractor is responsible for collecting and administering all revenue from the eGovernment services unless otherwise stated in the work order.
6.3 Remittance. The Contractor must follow all of the State’s laws and accounting policies as published in the Montana Operations Manual (MOM) for remitting State funds and interfacing with SABHRS (or its successor). Deposits must be made timely and on a one bank deposit to one and only one SABHRS entry basis. Montana government entities are to be provided the necessary reports to perform reconciliations from the data to the SABHRS transactions. The Contractor collects all funds in the transaction fund and remits the State’s funds to the State Treasury. The Contractor is responsible for all funds owed to the State to the extent the same are collected funds. All remaining funds are to be retained by the Contractor.
6.4 Reconciliation The Contractor shall submit monthly income statements and balance sheets for the transaction fund to the Department of Administration on a quarterly basis.
6.5 Transaction Fund Balance. If for any reason this contract is terminated or not renewed at the end of its term, the Contractor shall remit to the State that portion of the transaction fund owed to the State as soon as the reasonable course of business allows, but not more than 60 days.
7. ACCESS AND RETENTION OF RECORDS
7.1 Access to Records. The Contractor agrees to provide the State, Legislative Auditor, or their authorized agents access to any records required to be made available by 18-1-118 MCA, in order to determine contract compliance.
7.2 Retention Period. The Contractor shall retain Project operating records otherwise required to be retained under this contract for a period of three years after either: (i) the termination date of this contract; or (ii) with regard to those records related to any claim, litigation, or exception relating to this contract taken by the State of Montana or a third party about which the Contractor has actual knowledge, the conclusion or final resolution of any such claim, litigation or exception.
8. ASSIGNMENT, TRANSFER, AND SUBCONTRACTING
The Contractor shall not assign, transfer, or subcontract any portion of this contract without the express written consent of the State. (Section 18-4-141, MCA)
9. LIMITATION OF LIABILITY
The Contractor's liability for contract damages is limited to direct damages and further to no more than twice the contract amount. The Contractor shall not be liable for special, incidental, consequential, punitive, or indirect damages. Damages caused by injury to persons or tangible property, or related to intellectual property indemnification, are not subject to a cap on the amount of damages.
10. REQUIRED INSURANCE
10.1 General Requirements. The Contractor shall maintain for the duration of this 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 the Contractor, agents, employees, representatives, assigns, or subcontractors. This insurance shall cover such claims as may be caused by any negligent act or omission.
10.2 Primary Insurance. The Contractor's Commercial General Liability insurance coverage with respect to the Contractor's negligence shall be primary insurance with respect to the State, its officers, officials and employees and shall apply separately to each project or location. Any insurance or self-insurance maintained by the State, its officers, officials, or employees shall be excess of the Contractor's insurance and shall not contribute with it.”
10.3 Specific Requirements for Commercial General Liability. The Contractor 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 the Contractor or its officers, agents, representatives, assigns, or subcontractors.
The State, its officers, officials, and employees are to be covered and listed as additional insureds; for liability arising out of activities performed by or on behalf of the Contractor, including the insured's general supervision of the Contractor; products and completed operations; premises owned, leased, occupied, or used.
10.4 Deductibles and Self-Insured Retentions. Any deductible or self-insured retention for the specific insurance coverages mentioned in Section 10.3 must be declared to the state agency. At the request of the agency, the Contractor will elect to either: (1) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the State, its officers, officials, or employees; or (2) at the expense of the Contractor, the Contractor shall procure a bond guaranteeing payment of losses and related investigations, claims administration, and defense expenses.”
10.5 Certificate of Insurance/Endorsements. A certificate of insurance from an insurer with a Best's rating of no less than B++ indicating compliance with the required coverages, has been received by the Department of Administration. The State reserves the right to require certificates of insurance policies at all times, and such certificates of insurance shall include a provision that coverage may not be cancelled without providing the State with thirty (30) days’ prior notice, unless such termination is the result of a nonpayment of premiums, in which case the coverage may be cancelled upon providing the State with ten days’ prior notice.
11. COMPLIANCE WITH WORKERS' COMPENSATION ACT
Contractors are required to comply with the provisions of the Montana Workers' Compensation Act while performing work for the State of Montana in accordance sections 39-71-401, 39-71-405, and 39-71-417, MCA. Proof of compliance must be in the form of workers' compensation insurance, an independent contractor's exemption, or documentation of corporate officer status. Neither the Contractor nor its employees are employees of the State. This insurance/exemption must be valid for the entire term of this contract. A renewal document must be sent to the Department of Administration, upon expiration.
12. COMPLIANCE WITH LAWS
The Contractor must, in performance of work under this contract, fully comply with all applicable federal, state, or local laws, rules, and regulations, including 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. Any subletting or subcontracting by the Contractor subjects subcontractors to the same provision. In accordance with section 49-3-207, MCA, the Contractor agrees that the hiring of persons to perform this contract will be made on the basis of merit and qualifications and there will be no discrimination based upon race, color, religion, creed, political ideas, sex, age, marital status, physical or mental disability, or national origin by the persons performing this contract.
13. INTELLECTUAL PROPERTY/OWNERSHIP
13.1 Definitions. For purposes of this Section 13 only, the following terms will have the meanings set forth below:
a. "Affiliates" mean any corporation or other entity controlled by, controlling, or under common control with Contractor.
b. “Authorized Contractors” means contractors engaged by or on behalf of the State to assist the State in the Permitted Use of the Source Code and Project Software, who have executed a confidentiality agreement that at least includes a confidentiality clause equally protective as Section 13.6, in a form acceptable to Contractor, and that otherwise protects the Source and object code from unauthorized use or disclosure.
c. “Contract” means this agreement, commencing on January 1, 2011, and terminating on or before 12:00 a.m., January 1, 2016, unless renewed in accordance with the terms of the Contract.
d. “Electronic Services” means commercial, readily available services provided through hardware, software and network infrastructure hosted by NIC Inc. (“NIC”) or another of its subsidiaries, including hardware, software and network infrastructure that enable applications developed by Contractor or any of its affiliates, to authorize and capture credit and debit cards for payments; to process all other forms of electronic funds transfer, process billing and collection of funds, to manage the registration of Users for Project Users of fee services, and manage the online transaction logging data. It includes such other online services as may be from time to time developed by NIC, or another of its subsidiaries, outside of this Contract and made available to the State through Contractor.