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HomeMy WebLinkAboutC10-298 Sipa Agreement Regarding the Transmission of Electronic Info S i p a ELIGIBLE GOVERNMENTAL ENTITY AGREEMENT BETWEEN THE STATEWIDE INTERNET PORTAL AUTHORITY OF THE STATE OF COLORADO AND EAGLE COUNTY, COLORADO REGARDING THE TRANSMISSION OF ELECTRONIC INFORMATION This Eligible Governmental Entity Agreement (this "EGE ") by and between The Statewide Internet Portal Authority of the State of Colorado ( "SIPA "), and Eagle County, Colorado (the "County "), is made and entered into on this i2- day of L7_,, j( X' , 2010. Capitalized terms used but not defined in this EGE shall have the meanings ascribed to them in the Master Agreement (as defined below). RECITALS WHEREAS, SIPA and the County wish to enter into a cooperative agreement as to the transmission of electronic information; and WHEREAS, pursuant to § 24 -37.7 -105 C.R.S., SIPA operates to provide electronic access for members of the public to electronic information; and WHEREAS, pursuant to § 24- 37.7 -104 C.RS., SIPA operates as a political subdivision of the State of Colorado; and WHEREAS, § 29 -1 -203, C.R.S., authorizes local governments to cooperate or contract with each other to provide any function or service lawfully authorized to each other; and WHEREAS, § 24- 37.7 -104 (1)(q) authorizes SIPA and the County, to make and execute agreements, contracts, or instruments necessary or convenient to the exercise of the powers and function of SIPA with the County, as an Eligible Governmental Entity, as set forth in § 24 -37.7- 101 through 113; WHEREAS, all Eligible Governmental Entities under § 24- 37.7- 104(1)(q) who enter into an Eligible Governmental Entity Agreement are intended beneficiaries under the Master Agreement dated May 2, 2005 between NIC, Inc., and SIPA, as amended by a First Amendment to the Master Agreement dated January 31, 2006 (both attached as Exhibit A and incorporated herein by reference) (the "Master Agreement "); WHEREAS, NIC, Inc., does business in Colorado through its wholly owned subsidiary, Colorado Interactive LLC (hereinafter "Portal Contractor "); WHEREAS, SIPA by this EGE will provide applications and services to the County pursuant to Task Orders and work orders; and WHEREAS, a work order will be prepared for each application involving Portal Services. Page 1 of 7 633 17` Street, Ste 1610 ■ Denver, CO 80202 ■ Ph: 303 - 866 -4211 • Fx: 303 - 866 -3995 • sipa @www.colorado.gov 0---2 Naux:d. iweraa. �1. \u.boei.y NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, SIPA and the County agree as follows: 1. The County shall make available to SIPA electronic information maintained in the general conduct of the County's business. As mutually agreed upon in subsequent work orders, Task Orders, or corresponding statements of work, the County will provide reasonable levels of support in placing online with SIPA certain County -owned electronic information, as mutually agreed by the County and SIPA, with due regard to the workload and priorities of the County, SIPA and its Portal Contractor. 2. SIPA shall make such information available to the general public through the officially recognized statewide internet portal created pursuant to §24 -37.7 -105, C.R.S. and as set forth in the Master Agreement. 3. As established by future scope of work or Task Order executed between the parties SIPA shall charge Transaction Fees and Statutory Fees in its normal course of business. SIPA shall make timely distribution of Statutory Fees received (and, if called for in a given situation, the County's portion of any Transaction Fee received), to the County Treasurer in a manner mutually agreed by the parties. 4. SIPA and the County may enter into work orders and Task Orders under this EGE. Work orders shall describe specific Portal Services to be provided to the County, and the County acknowledges that such Portal Services shall be provided to the County pursuant to the terms of Article 1.B. of the Master Agreement. Task Orders shall cover the purchase of goods and services from SIPA through the use of County funds. All work orders and Task Orders may be approved by the Board of County Commissioners or County Manager in accordance with County policy. Task Orders shall contain specific time or performance milestones for the Portal Contractor, timelines for completion of relevant Task Orders, statements of work, design specifications and other criteria relevant to the completion of an applicable Task Order, criteria and procedures for acceptance by the County and remedying incomplete or inaccurate work for each phase of a relevant Task Order. Notwithstanding Article 30(b) of the Master Agreement, as amended, the County shall be a principal beneficiary of, and entitled to enforce all covenants, representations and warranties set forth in, a Task Order when the County purchases goods and services from SIPA through the use of County funds. 5. SIPA shall be responsible for the operation of, and all costs and expenses associated with, establishing and maintaining electronic access to County databases or other software applications, including but without limitation, the cost of purchasing, developing and maintaining programs used to interface with County software applications that provide access to County -owned data. The County's maximum financial obligation shall be limited to the amount set forth and appropriated pursuant to each individual work order or Task Order. Page 2 of 7 633 17 Street, Ste 1610 • Denver, CO 80202 • Ph: 303 - 866 -4211 ■ Fx: 303 -866 -3995 • sipa@www.colorado.gov c ,,...„, ip a Aw \mr, 6. Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to the County nor shall any payment be made to SIPA in excess of the amount for any work done in respect of any period after December 31s of the calendar year for the term of this Agreement, without the written approval in accordance with a budget adopted by the Board of County Commissioners in compliance with the provisions of Article 25, Title 30 of the Colorado revised Statutes, the Local Government Budget Law (C.R.S. § 29 -1 -101 et. seq.) and the TABOR Amendment (Colorado Constitution, Article X, Sec. 20). 7. Subject to Section 14 below, each party shall have the right to terminate this EGE and any scope of work or task order by giving the other party 60 days' written notice. Unless otherwise specified in such notice, this EGE will terminate at the end of such 60 -day period, and the liabilities of the parties hereunder for further performance of the terms of this EGE shall thereupon cease, but the parties shall not be released from any duty to perform up to the date of termination. 8. None of the terms or conditions of this EGE gives or allows any claim, benefit, or right of action by any third person not a party hereto. Nothing in this EGE shall be deemed as any waiver of immunity or liability limits granted to the County or SIPA by the Colorado Governmental Immunity Act or any similar statutory provision. 9. This EGE constitutes the entire agreement of the parties hereto and supersedes all prior negotiations, representations or agreements, either written or oral. This EGE may be amended, modified, or changed, in whole or part, only by written agreement approved by each party. 10. Neither SIPA nor Portal Contractor have responsibility for the accuracy or completeness of the data contained within the County databases. SIPA and Portal Contractor shall be responsible only for the accurate and complete transmission of data to and from such County databases, in accordance with the specifications of any County -owned software. 11. This EGE and any written amendments thereto may be executed in counterpart, each of which shall constitute an original and together, which shall constitute one and the same agreement. Delivery of an executed signature page of this EGE by facsimile or email transmission will constitute effective and binding execution and delivery of this EGE. 12. The books and records accounting for all Transaction Fees and Statutory Fees due the County shall be made available to the County for it to audit, inspect and copy during reasonable business hours, at its own expense, upon reasonable prior notice to SIPA. 13. Confidential information for the purpose of this EGE is information relating to SIPA's, the County's or the Portal Contractor's research, development, trade secrets, business affairs, internal operations, management procedures, and information not disclosable to the public under the Colorado Open Records Act. Confidential information does not include Page 3 of 7 633 17 Street, Ste 1610 ■ Denver, CO 80202 ■ Ph: 303 - 866 -4211 • Fx: 303 -866 -3995 ■ sipa@www.colorado.gov 1 ip a information lawfully obtained through third parties, which is in the public domain, or which is developed independently without reference to a party's confidential information. Neither party shall use or disclose, directly or indirectly, without prior written authorization, any confidential information of the other or confidential information of the Portal Contractor. SIPA shall use its reasonable best efforts to ensure that the Portal Contractor protects County confidential information from unauthorized disclosure. Notwithstanding anything to the contrary herein, each party acknowledges that given the subject matter of this EGE, such party shall not disclose confidential information of the other (whether in written or electronic form) to any third party, except as required by law or as necessary to carry out the specific purpose of this EGE; provided, however, that if such disclosure is necessary, any third party who receives such confidential information shall also be bound by the nondisclosure provisions of this Section 13. Upon termination of this EGE, the parties shall return or destroy (at the other party's request) all confidential information of the other and if such information is destroyed, each party shall demonstrate evidence of such destruction to the other. 14. Upon termination of this EGE, all rights and obligations of the parties shall terminate except that the obligations set forth in Sections 3 (concerning payment of fees due the County), 4 (last sentence), 5, 8, 9, 11, 12 (but survival of this provision is limited to 12 months after termination), 12 (except if records or information is readily available after 12 months SIPA shall make them available upon request), 15.A and 15.D., shall survive any such expiration or termination. In addition, if the Master Agreement is terminated, the provisions of Article 8 and Section 1 of the Special Provisions of the Master Agreement shall also survive for one year, except this one -year limitation shall not apply as to intentional fraud with respect to County matters by Portal Contractor or any of its employees in the course of their employment. 15. Miscellaneous Provisions A. Independent Authority. SIPA SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT AUTHORITY AND NOT AS AN EMPLOYEE OF THE COUNTY. NEITHER SIPA NOR ANY AGENT OR EMPLOYEE OF SIPA SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE COUNTY. SIPA AND ITS AGENTS SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE COUNTY PURSUANT TO THIS EGE. SIPA ACKNOWLEDGES THAT SIPA AND ITS EMPLOYEES OR AGENTS ARE NOT ENTITLED TO COUNTY EMPLOYMENT OR UNEMPLOYMENT BENEFITS UNLESS SIPA OR A THIRD PARTY PROVIDES SUCH BENEFITS AND THAT THE COUNTY DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH BENEFITS. SIPA SHALL HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE COUNTY TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY AUTHORIZED BY THE COUNTY. SIPA AND ITS AGENTS SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN Page 4 of 7 633 17 Street, Ste 1610 • Denver, CO 80202 ■ Ph: 303 - 866 -4211 • Fx: 303 -866 -3995 • sipa@www.colorado.gov s c,..„... k ... ip a REQUESTED BY THE COUNTY) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF SIPA, ITS EMPLOYEES AND AGENTS. B. Non - discrimination. SIPA agrees to comply with the letter and the spirit of all applicable state and federal laws respecting illegal discrimination and unfair employment practices. C. Illegal Aliens. SIPA shall not, and by signing this EGE certifies that it does not, knowingly employ or contract with an illegal alien to perform work under this EGE. SIPA shall not enter into a subcontract with a subcontractor that fails to certify to SIPA that the subcontractor shall not knowingly employ or contract with an illegal alien to perform work under this EGE. SIPA affirms that it has verified or attempted to verify through participation in the Basic Pilot Employment Verification Program administered by the United States Department of Homeland Security that SIPA does not employ illegal aliens. In the event SIPA is not accepted into the Basic Pilot Program prior to entering into this EGE, unless the Basic Pilot Program is discontinued by the federal government, SIPA shall apply to the participate in the Basic Pilot Program every three months until SIPA is accepted or this EGE has terminated, whichever is earlier. SIPA is prohibited from using the Basic Pilot Program procedures to undertake pre- employment screening of job applicants while this EGE is in effect. In the event that SIPA obtains actual knowledge that a subcontractor performing work under this EGE knowingly employs or contracts with an illegal alien, SIPA shall be required to: (i) Notify the subcontractor and the County within three days that SIPA has actual knowledge that the subcontractor is employing or contracting with an illegal alien; AND (ii) Terminate the subcontract with the subcontractor if, within three days of receiving such notice, the subcontractor does not stop employing or contracting with the illegal alien; except that SIPA shall not terminate the contract with the subcontractor if during such three days the subcontractor provides information to establish that the subcontractor has not knowingly employed or contracted with an illegal alien. SIPA is required under this EGE to comply with any reasonable request by the County made in the course of an investigation the County is undertaking pursuant to its legal authority. Violation of this Section 15.C. of this EGE shall constitute a breach of this EGE and may result in termination by the County. SIPA shall be liable to the County for actual and consequential damages resulting from such breach pursuant to §8- 17.5- 101(3) C.RS. The County shall also report any such breach to the Office of the Secretary of State. Page 5 of 7 633 17 Street, Ste 1610 • Denver, CO 80202 • Ph: 303 - 866 -4211 • Fx: 303 -866 -3995 • sipa@www.colorado.gov ip a SIPA acknowledges that the County may investigate whether SIPA is complying with this Section 15.C. This may include on -site inspections and the review of documentation that proves the citizenship of any person performing work under this EGE and any other reasonable steps necessary to determine compliance with the provisions of this Section. D. Choice of Law. The laws of the State of Colorado (except Colorado laws related to choice of law or conflict of law) and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this EGE. Any provision, whether or not incorporated herein by reference, which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with this EGE shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision, in whole or in part, shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this EGE to the extent that this EGE is capable of being performed. At all times during the performance of this EGE, SIPA shall strictly adhere to all applicable federal and state laws, rules, and regulations that have been or may hereafter be established. E. Software Piracy Prohibition. No State or other public funds payable under this EGE shall knowingly be used for the acquisition, operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. SIPA hereby certifies that, for the term of this EGE and any extensions, SIPA has in place appropriate systems and controls to prevent such improper use of public funds. If the County determines that SIPA is in violation of this paragraph, the County may exercise any remedy available at law or equity or under this EGE, including, without limitation, immediate termination of the EGE and any remedy consistent with United States copyright laws or applicable licensing restrictions. F. Notices. All notices required or permitted under this EGE shall be in writing and delivered personally, by facsimile, by email or by first class certified mail, return receipt. If delivered personally, notice shall be deemed given when actually received. If delivered by facsimile or email, notice shall be deemed given upon full transmission of such notice and confirmation of receipt during regular business hours. If delivered by mail, notice shall be deemed given at the date and time indicated on the return receipt. Notices shall be delivered to: If to SIPA: Statewide Internet Portal Authority Page 6 of 7 633 17 Street, Ste 1610 ■ Denver, CO 80202 • Ph: 303 - 866 -4211 • Fx: 303 -866 -3995 • sipa @www.colorado.gov S 1PL Attn: John D. Conley, Executive Director 633 17` Street, Suite 1610 Denver, CO 80202 Phone: (303) 866 -4211 Fax: (303) 866 -3995 Email: sipa @www.colorado.gov If to the County: Eagle County Name: Scott Lingle Title: IT Director Address: 500 Broadway, PO Box 850 Phone: 970 - 328 -3581 Email: Scott.Lingle @eaglecounty.us And to other address or addresses as the parties may designate in writing. G. Employee Financial Interest. The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. This EGE is entered into as of the day and year set forth above. 7Z i . Date: /i'�lLG� iO ohn D. Conley, Executive Dire or Statewide Internet Portal A is . • y COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: U OLA.GL-- &: Date: 1°11 Z( (,O Sara Fisher, Chair an Attest: 0* 1144 Co c,7 • ...1 * . ' , Date: t ti I I . 10 Clerk to the Board of Count 611 issioner N. 16 '. ii I ,. Page 7 of 7 633 17 Street, Ste 1610 ■ Denver, CO 80202 ■ Ph: 303 - 866 -4211 ■ Fx: 303 -866 -3995 • sipa@www.colorado.gov FROM (TUE)SEP 5 2008 15 j/ST.15:34/No.7380010287 P 1 State of Colorado Statewide Internet Portal Authority Master Contract with Integration Contractor To :Design, Build, Operate, Maintain and Enhance A Statewide Internet Web Portal Version 3.0 May 2, 2405 Preamble This is a contract ( "the Contract ") between NIC (hereinafter referred to as the "Contractor'), a company organized and existing under the laves of Kansas, with its registered office at Olathe, Kansas and the Statewide Internet Portal Authority (hereinafter referred to as "SIPA ") established pursuant to G.R.S. Sections 24- 37.7 - 101 -113, with its office at Denver, Colorado 80202. In this Contract unless the context requires otherwise or the Contract specifically states, SIPA shall act through its Executive Director. The Executive' Director and Board shall have the same definitions as provided in the Statute. As related to the Contract, the Board shall approve: A. Portal policy; 1 FROM (TUE)SEP 5 2006 1 L/ST.15:34/No.7380010287 P 2 B. Wine fees and fee changes; C. EGE Agreements; and D. Annual Business Plans. Definitions: "Authorized Contractor" means a contractor who is engaged by SIPA following termination of this contract to assist in State Portal maintenance, and who has signed a confidentiality agreement in form satisfactory to the Contractor. " Contractor Confidential Information" means the confidential, proprietary, or trade secret information of Contractor or its corporate patent, affiliates, and subsidiaries, which includes, without limitation, Contractor Reew s which are non-public, Source Mode and Contractor Software. The disclosure of such information under transition assistance to a successor contractor selected by SIPA shall not affect the confidential nature of Contractor Confidential Information. "Contractor Records" means all books, records, documents, and electronic files that pertain to Contractor's business or operation or to that of its corporate parent, affiliate, or subsidiary (as contrasted to Contractor's operation of the State Portal). "Contractor Software" means the latest versions of software applications originally developed by Contractor or the NICUSA affiliated companies which are in use with the State Portal, together with any new applications, software updates or upgrades made by Contractor or the NICUSA affiliated companies and used.on the State Portal, as of the date of termination of the Contract, but excludes Third Party Software. "Eligible Government Entity Agreement" means the agreement among SIPA and a particular state agency or other Eligible Government Entity, in consultation with Contractor for the delivery of e- government services and transactions through the State Portal. "Eligible Government Entity" means departments, agencies and political subdivisions within the State which enter into agreement with SIPA and Contractor with respect to the State Portal in accordance with the Statute. "Not Revenue" means Total Fees less Statutory Fees and merchant fees required to process credit cards and Automated Clearing House (ACH) transactions. . "Portal Records" means all books, records, documents and electronic files related to the operation of the State Portal (excluding Contractor Records). "Portal Resources" means the resources, including, without limitation, staffing and capital assets, available to the Contractor for application development, deployment, management, marketing and operation of the Portal, together with associated costs, expenses, reserves and margin, funded through the Contractor's N FROM (TUE)SEP 5 2008 41,.j/ST.15:34/Ho.738OO1O287 P 3 portion of the Transaction Fees collected. The Portal Resources will be projected annually in the Portal Business Plan and updated in monthly reports. "Portal Services" are intended to be continuous services including those pursuant to an EGE Agreement, fimded with Total Fees, and are contrasted with Task Order services throughout the Contract in Paragraphs that contain A and B (defined in Scope of Work below), where Article 1.B represents Portal Services work- "Source Cow, means the source code for the Contractor Software. "Statute" means C.R.S. 24 -37.7- 101 -113. "'Statutory Fees" are, those fees, taxes and assessments established by statute, ordinance, resolution, or other law or regulation (excluding Transaction Fees), charged by a relevant EGE to obtain a copy of a record, obtain a license or permit, or otherwise to engage in a transw ion with an agency. "State Portal" means Internet based, electronic gateway owned by the S1P'A that permits online access to certain government information and services presently located at www.Colorado.gov. The State Portal is developed and managed by Colorado Interactive pursuant to the authority granted to SIPA according to its Statute and the terms of this Contract. "Task Order" meats tasks or projects intended to be funded with State- appropriated funds or federal funds, not Total Fees generated by portal services and are contrasted with portal Services throughout the Contract in Paragraph that contain A (as defined in Portal Services above) and B, where Article I (as defined in Scope- of Work below) represents the Task Order work. "Third Party", for ,purposes of Software definition, means any person or entity other that Contractor and its affiliated subsidiaries. "Transaction Foes" include transaction, electronic access, or electronic delivery charges associated with .- electronic delivery of a record, or electronic Sling of a. transaction, through the State Portal, which are established in connection with the State Portal or otherwise specifically identified in an EOE Agreement as a Transaction Fee. "Total Fees" equal, for any Partictilar electronic record delivery or electronic trarmotion filing, Statutory Fees plus Transaction Fees. " USW' means end users of Portal Services, Users = mean those who use online services for a fee or use flee services depending on the context. Article 1: Scope of Work This contract contemplates two types of work to be perforated by the Contractor, ConftwWr will perform the services and provide the hardware and sow associated. with 3 FROM (TUE)SEP 5 2006 1alST.15 :341No.7360010287 P 4 the following areas of work: communication and collaboration toolset (email, calendar, etc.), content management, identity management and enterprise directory and such other matters in the fixture as the parties mutually agree should be covered by Task Orders and as detailed in the Cost Proposal updated by the Contractor as is authorized by SIPA pursuant to Task Orders prepared by Contractor and approved by SIPA. The Contractor shall perform the services and provide the hardware and software required for Portal Services relating to set up, operation and improvement of the State Portal based upon the revenues generated by the State Portal operations, as more particularly specified below. A. Task Orders The Contractor shall progress all activities, including reports and all related services, m accordance with all the requirements of this Contract, the Statement of Work negotiated, agreed upon, and attached herewith at Attachment A, and the respective authorized Task Orders issued by SIPA and negotiated as provided below. Each Task Order shall specify the Work to be perfrm ed, objectives, level of effort, third party activities, appropriate State - related IT policies, standards and guidelines, costs, business case, funding source, Ivey personnel, deliverables, acceptance criteria and performance schedule. Additionally, if mutually agreed to, the Task Orders issued under this Section 1A may include pmvisions under which the Contractor may be liable for liquidated damages as a result of failure to meet specified milestones; provided, however, in no event will such liquidated damages be assessed for delays or failures used by a force maje ue event, (as defined in Section 12(B)) or delays bmfond the reasonable control of Contractor, including, without limitation, those resulting from acts or omissions of the State. If the State .elects to receive liquidated damages under a Task Order, such remedy shall be in lieu of recovery of actual damages. Tasks included within Task Orders will -be defined, negotiated, and ordered by agrcement of the parties based on the rates established in Attachment B and are subject to the same terms and conditions established in this Contract. The Contractor understands 9W there is no guaranteed minimum commitment by SIPA to issue Task Orders pursuant to this Contract. Changes to term., conditions, and prices specified, or other provisions of the contract shall be completed by formal amendment and signed by SIPA and the Contractor. Task orders processed in accordance with -this paragraph shall occur, as follows: If SIPA has need of services, and the Contractor agrees to provide those services, $IPA shall provide a definition of the requirements to the Contractor.. The Contractor will propose a price for the task using the rates agreed to and identified as Attachment E to the Contract and attached to the Contractor's proposal. The proposal shall include the estimated number of hours, material costs, and amount of other elements of cast priced by the parties in the crates established in Attachment B. as well as the proposed time of performance, in a form acceptable to SIPA. 'Upon negotiation and agreement of the parties concerning the Statement of Work, the price, and the time of performance, the Task Order attached as Exhibit I to the Contract shall be prepared and signed by both parties. Performance of the work and payment for 4 FROM (TUE)SEP 5 2006 15 : d, /ST. 15:34INo.7360010287 P 5 that work shall be governed by the standards and procedures set forth in this Contract. Upon negotiation and acceptance of the Task Order, the Contractor warrants that performance will be successfully completed within the time frame and price stated in the Task Order. SIPA's fimancial commitment stated in the respective Task Order shall not be considered valid until SIPA executes the Task Order. This Contract will be offered to political subdivisions. SIPA, Article 33 below, must approve all Task Orders or other requests regarding this Contract from political subdivisions. B. Portal. Services 1. Portal Services. Contractor will provide hardware and provide' or develop software as enumerated and described in Contractor's Proposal and the Annual Business Plan (as described below), and such other bardware and software necessary to make the State Portal fully operational in accordance with this Contract and EGE Agreements between •S1PA and Eligible Government Entities to the extent of Portal Resources. Contractor shall provide services relating to the following areas for the State Portal ( the "Portal Services ") including; a. Provide support for the operation and enhano=ent of the State Portal; b. Provide Portal applications for government transactions in which Total. Fees are . to. be collected to be integrated within the State Portal; 0. provide for the design, construction, implementation, operation, maintenance, and enhamcement of selected new State Portal applications as agreed to between SIPA and the Contractor, and, as applicable, Eligible Government Entities; d. Participate in a governance structure for the 'State Portal activities that fosters high - quality content, orgatuZation and structure, State Portal management prra asses, user interface, and opportunities for improvement; G. Provide support for the management, implementation and main of Contractor's applications; f. Market with assistance of SIPA the State Portal's capabilities and Services to Eligible Government Entities and Users of portal services; g. Negedate EGE Agreements with Eligible Government Entities for FROM (TUE)SEP 5 2008 1 Le/ST.15 :34/No.7380010287 P 8 the provision of Portal Services subject to the approval of SIPA. 2. Annual Business__Plan . for. Portal Services. Contractor will prepare an Annual Business Plan for approval by the Board.. The initial Annual Business Plan will be presented for approval within 120 days of signing of the Contract. Any material change in the Annual Business Plan requires Board approval. Between .Board approvals, the Contractor shall execute the Annual Business Plan and obtain any required approvals from the ]Executive Director. The Annual Business Plan reflects the vision and goals for the Portal for the upcoming year, including: staffing plans for the Portal; expectations and assumptions relating to the Portal; a proposed work plan for content and applications development and implementation, as well as Portal redesign; Portal Improvement Plan including a Disaster Recovery Plan, portal applications infrastructure planning; Marketing Plan; .and the proposed Portal Resources budget based upon anticipated Net Revenue, An outline of the topics and organization of the Annual Business Plan is attached as Exhibit IL It is agreed by the parties that such plan is a goad faith estimate with respect to the Project and is subject to such modifications or amendments as the parties may from time to time agree. The Annual Business Plan will be subject to the Portal Resources available for development, deployment, managememt and marketing of the Portal. Such resources are provided through Net Revenue generated through the Portal. Portal Resources will be projected by Contractor in its Annual Business Plan. Contractor will provide SIPA with monthly reports regarding the progress with respect to the Annual Business Plan and Net Revenue. 3. Eligible Government Entities. Contractor sbati offer applications from a library of existing, or newly developed applications that will allow Eligible Government Entities to conduct business with Users through the State Portal. Such applications may be previously created or may be developed by Contractor or its affiliates. No application developed for the State Portal will be deployed without a signed and approved EGE Agreement. 4. hnRJqma#gfion of A licati for . Contractor will work with EGEs to identify and create a queue of applications for implementation. Contractor will work with SIPA or Executive Director to establish Portal priorities for application implementation. SIPA has final approval of the priorities. The implementation schedule for applications will be based on approved portal priorities and available Portal Resources. An application may or may not be subject to a Transaction Fee. Contractor, in consultation with the. EGE, will make recommendations to $IPA as to the need for a Transaction Fee during the evaluation of each application. Any allocation of Net Revenue for an application carrying a Transaction Fee shall be agreed in an addendum to the EGE Agreement. S. The 'Portal Services will not be subject to the provisions of Article 1.A. 2 FROM (TUE)SEP 5 2008 1t1/ST.15:34/No.7380010287 P 7 6. Oaring the decision making proem for any material decision regarding this Contract or the project, the Hoard or the Executive Director as the can may be shad consult the Contractor. Article 2: Dwmtiou, litenewal, and Non- Exclu&e Contract A. The effective date of this contract shad be the date signed by the Chairperson of the $IPA or his or her designee, or May 02, 2005, whichever is later. Subject to the rights of either of the parties to terminate this Contract as ebewhere set forth herein, this Contract shall expire five years from the date of execution of" Contract unless rawwod by SIPA as provided heroin. This Contract may be renewed. by SIPA for two (2) two -year additional periods as agreed by the parties. $IPA agrees to give not • less than six month's notice prior to the end of the then curremt tern of its decision to exercise such renewal. B. The Portal Project, under the Statute, is intended to be the state's single comprehensive delivery channel for "overnment services. Article 3: Task Order Consideration and Portal Funding A. Task Orders FU 6 1. In consideration for the respective Contractor, the Contractor shall stipulated in the 'Task Order. . Task Order wont camed out by the receive the agreed compensation as 2. SIPA shall establish billing procedures in accordance with the agreed Task Orders, and requirements for invoicing and payment dine the Couftetor in providing performance pursuant to Task Orders issued under this Contract, The Contractor shall comply with the established billing procedures and requirements for submission of billing statements. Portal Services Fees and Charges 1. Collwcn, of__Fees., .ar�d.,T.mmadon Char M Contractor, shall collect Statutory Fees and Transaction Fees from Users of services approved for assessment of a Transwtion Fee (e.g., fees for electronic record delivery or electronic transaction filing); such fees shall be recommended by Contractor in consultation with EGE, but are subject to the approval of SIPA. Contractor shall establish an accounting capability for Total Fee collection and distribution functions. This accoua tiug capability shall include a numbered chart of accounts, books of original entry of all ttansactions, appropriate subsidiary ledgers, a general ledger that includes to-date postings, and an audit trail through financial statements. 2. EQMt Accounts. FROM (TUE)SEP 5 2006 1 .-.o!lST.15 :34/No.7360010287 P 8 IL Contractor shall • establish and maintain one or more accounts ( "Portal. Accounts") in federally insured banks or thrifts having one or more offices in Colorado, for the collection and deposit of Total Fees. Contractor shall be responsible for the timely billing and collection of Statutory Fees and for the billing and collection efforts for Transaction Fees associated with the Portal Services. Contractor shall make all disbursements from the Portal Account(s) in accordance with the following. b. Contractor shall pay, from Total Fees collected fbr electronic access to records and for transactions through the State Portal: i. All Statutory Fees as provided in the respective agreements with Eligible Government Entities. Where there is no Statutory Fee, the amount of the fee to be charged for electronic access to the record or to conduct the Umisaction will vary according to (a) the needs of the State Portal and (b) the recommendation, based on market research, of Contractor. ii. Contract administration charge to SWA shall be a percentage of Net revenue to be determined by the first Annual Business Plan process.... iii. All operating and administrative expenses for the State Portal. iv. Contractor will be entitled to retain any sums rem after payment of the amounts identified above, as its fee for services... - 3. Audit of Portal Accounts. Booms and records of the Portal Accounts, accounts receivable, and proceeds therefrom (whether or not &bursed.by the Contractor), which are generated from Portal Services operations conducted by Contractor., shall be made available to SIPA for it to audit, inspecrt and copy 'during reasonable business hours and upon reasonable prior notice to Contractor. 4. .. Factors for Determination_ ._„ of _ Trans on acti _ Fe_ M in establUing or recommending Wr1DVa1 of Transaction Fees, the parties shall consider the following factors. _ a. The entrepreneurial and startup nature of the business and attendant risk of capital for Contractor. b. The need to invest in the reasonable expansion of and improvement in network and information services. C. The need of Contractor to earn a reasonable fee for its services. 8 FROM (TUE) SEP 5 2006 15 -e /ST. 15; 34 /No. 7360010287 P 8 d. A commitment to the publie policy requirement to provide electronic access to public records and electronic transactions at the most reasonable rate possible. C. That the rates to be charged may be adjusted to permit funding of special projects and enhancement of public service. f. Any other reasonable factor that in the opinion of SYPA should be considered. In the event the Statutory Fees or taxes on services are reduced or increased as result of revisions to Colorado law or regulation, such reductions or increases shall be passed on directly to Users. S. Pgy=ent GQicle. Total Fees generated by Portal Services operations through transactions involving monthly billing accounts (including batch or bulk services) and other Portal. Services transactions shall be deposited in the Portal Account(s). The Contractor shall pay and deliver all Statutory Fees received through transactions involving monthly billing accounts (including batch and bulk services) due not later than within the next following thirty (30) day payment period or cycle (established by the EGE Agreement) immediately after actual receipt of said fees by the .Contractor (and in any event, within sixty (60) calendar days from the usage or sale date). Where Statutory Fees are paid through transactions involving the haunt payment of fees at the time of the transa don, by credit card, debit card, or ACH transaction, Contractor shall pay and deliver all such Statutory Pees due within the timeframe prescribed by each individual EGE Agreement. Under no shall the timeframe for remitting received Statutory Fees exceed sixty (60) calendar days from the usage or sale date. Any fiords in the Portal Account(s) deemed by Contractor to be "idle" or "excess" funds (defined as those funds not required to meet immediate needs) may be deposited or invested by Contractor in such money market accounts, treasury bills, or other suitable investment vehicles as may be permitted under the State of Colorado's Short Term Investment Guidelines, until such funds are needed. Interest earned will be reported separately in portal Financials and devoted to portal operations in the same manner as other portal proceeds. Article 4: • Aemptmcm A. Task Orders. 1. The Contractor shall submit a Notice of Completion and an invoice to SIPA when the cony sponding Task Order or part thereof has been completed. Each invoice shall contain or be accompanied by a written notification from the Contrwtor that the Task Order or part thereof has been completed. 0 FROM (TUE)SEP 5 2008 15. :�I/ST.15:34/No.738OO1O287 P 10 2. SIPA shall, within thirty (30) stays from the date of receipt of the notice of Completion, notify the Contractor in writing of those particulars, if any, in which the Work does not meet the requirements of the relevant Task Order(s), Failure of SIPA to so notify the Contractor shall be deemed acceptance of the* Work. 3. If any work does not conform with Contract requirements ("Defects'), SIPA may require the Contractor to perform the services again in conformity with contract requirements, with no additional payment. When Defects in the service cannot be corrected by re- performance, SIPA may (1) require the Contractor to take necessary action to ensure that the future performance conforms to Contract requirements and (2) equitably reduce the agreed consideration due the Contractor to reflect the reduced value of the work. 'these remedies in no way limit the remedies available to SIPA in the termination prevision of the Contract, or remedies otherwise available at law. B. Portal Services shall be subject to a continuous or rolling process of acceptance as portal work proceeds. Article S: Taxes and Duties A. SIPA, as purchaser, is exempt from all federal excise taxes under Chapter 32 of the internal Revenue Code [No. 84- 730123K) and from all state and local government use taxes [C.R.S. 39- 26- 114(a) and 203, as amended). The Contractor is hereby notified that when materials are purchased for the benefit of SIPA, such exemptions apply except that •in certain political subdivisions the vendor may be required to pay sales or use taxes even though the ultimate product or service is provided to WA. These sales or use taxes will not be reimbursed by SIPA. 1 . The Contractor shall be responsible for, and shall hold SIPA harmless ftrn, all taxes, duties, and similar liabilities of Contractor arising under the Contraetces national, federal, state, or local laws, and which become due by reason of the perfor n± me of the work under this Contract or any subcontract hereunder, and shall comply with any requirements of such laws as may be necessary to effectuate this C,owra,ct. Article 6: Warranty The Contractor warrants that site work to be performed he UIK1er shall be carried out with reasonable Ad% care and diligence. This warranty is without prejudice to, or forfeiture of any other rights and remedies SIPA may have under this Contract or at law or equity. Contractor, mmsents and wannuo to SWA that (i) Contractor is a Colorado limited liability company; (ii) Contractor has the power and authority to enter into this Agreement and to perform frilly its obligations hereunder, ( iii) Contractor is under no conhwtual or other legal obligation which shall in any way interfere with its prompt and complete performance 10 FROM '' (TUE)SEP 5 2008 15 ,iST.15:34/Ho.7380010287 P 11 .hereunder; and (iv) the performance under this Contract will not violate the rights of any third party. Article 7: Rights in Data, Documents and Computer Software or Other Intellectual Property A. License itift Following the Termination for Cafe o; ENpiggon. of the Con . Upon the • termination of the Conbuct by SIPA for cause or upon expiration of the full term of the Contract, Contractor "I grant 'to SIPA or any successor State entity a perpetual, personal, cost -frce, fully paid -up, non - exclusive, non-transferable license, without the right to grant sublicenses, to host (in object code only), copy, modify, enhance, use, and execute the Contractor Software and Source Code as necessary to provide government services and information through the State Portal, including access to or completion of e- government transactions, such as license applications and renewals, with Licensee or Eligible Government Entities by users of the State Portal C'Permitted Uses"). Specifically, under such license SWA_.and its Authorized Contractor, if appropriate under the circumstances will have the right to: (1) make copies of the Contractor Software and Source Code, for back-up purposes, and for development of modifications for the Permitted Uses; (2) modify the Contractor Software or Source Code as may be required or desirable for the maintenance or enhancement of the Contractor Software or the State Portal; (3) load the Contractor Software on any State servers for the Permitted Uses; (4) use State employees or Authorized Contractors to maintain, repair, modify or enhance the Contractor Software, Source Code or the State Portal for the Permitted Uses; (S) allow Eligible Government Entities to access and use the Contractor Software for the Permitted Uses; and (6) allow end user access to the functions of the Contractor Software (but not the Source Code) through the State Portal solely far Permitted Uses. B. Qoon of SIPA after Other Forms of Termination. Upon the termination by either party of the Contract pursuant to the terms thereof (other than termination by SIPA pursuant to Section 7.A.. above), SIPA gray, at its sale option, purchase a license to the Contract& Software upon the payment of the applicable license fee. Ibis fee shall be calculated consmknft with fees charged other similerl ►�ituaated des with which Contractor does business. Such license shall be a perpetual, personal, fully paid-up, non - exclusive, non - transferable license, without the right to grant subliaenses, to host (in object code only), copy, modify, enhance, use, and execute the Contractor Software and Source Code for the Permitted Uses, subject to the limitations of this Agreement. Specifically, under such license, if purchased by SIPA, SIPA and its Authorized Contractor, if appropriate under the circumstances will have the right to: (1) make copies of the Contractor Software and Source Code, for brick -up purposes, and for development of modifications for the Permitted Uses; (2) modify the Contractor Software or Source Code as may be required or desirable for the maintenance or enimm eLnent of the Contractor Software or the Stuff Portal; (3) load the Contractor Software on any State servers for the Permitted Usm; (4) use State employees or Authorized Contractors to 11 FROM (TUE)SEP 5 2008 15:x.: AT. 15:34/No. 7380010287 P 12 maintain, repair, modify or enhance the Contractor Software, Source Code or the State Portal for the Permitted Uses; (5) allow Eligible Government Entities to access and use the Contractor Software for the Permitted Uses; and (6) allow Users access to the functions of the Contractor Software (but not the Source Code) through the State Portal solely for Permitted Uses. The grant of the perpetual license pursuant to this Section 7(B) and accesi to the Source Code under such grant shall become effective upon payment of the license fee by SIPA. C. Reservation of Ry;" 1. All intellectual property rights contained in the Contractor Software, and Source Code, including all concepts, ideas, methods, methodologies, procedures, processes, know -how shall be the sole property of Contractor. Contractor reserves all rights not expressly licensed to SIPA under this Agreement. Any and all copies of the Contractor Software or the Source Code made by SIPA shall bear Contractor's notice of copyright, and other restrictive legends contained on the Contractor Software and Source Code provided by Contractor. 2. All State Portal Content and all properly, data and information furnished by or on behalf of SIPA, or an Eligible Government Entity to Contractor to facilitate Contractor's performance under the Contract or this Agreement shall be and remain the sole property of SIPA or such Eligible Government Entity. D. &fate W&AdM. The Parries agree that if SIPA or any Authorized Contractor makes any modifications or enhancements to the Contractor Software, SIPA's right to use such modifications or enhancements developed by it or its Authorized Contractors shall be the same as the rights and limitations to use the Contractor Software for the Permitted Uses. E. Deense rights to 'Third Party Software used to operate the State Portal shall be transferred to SWA by Contractor to the extent permissible under the applicable license terms. Software that is Third Party Software and, winch is not transferable to SIPA shall be identified and described by Contractor on a list aged as an Exhibit to this Contract or fi+om time to time within 30 days of the utilization of any such new Third Party Software in connection with the State Portal. SIPA will take any such Third Party software subject to the terms and conditions of the Third Party lice= agreement Contractor shall. provide an updated inventory of programs and versions of Third Party Software currently being used in the State Portal as part of the Annual Business Plan. F, Following the teunination or expiration of this Contract, Contractor has no respansr"bihty or liability for the ice, updates or modifications to the Contractor Software, and shall not be responsible for any changes to the Contractor Software or the environment upon which it is run made by SIPA or by its Authorized Conhwtoors. 12 FROM ' (TUE)SEP 5 2006 15 `/ST.15:34/Ho.7360010287 P 13 C. The- Contractor shall cooperate -in all ways necessary to ensue that SIPA. may obtain, exercise, or protect its rights under this Article 7. The Contractor shall ensure that any and all of its subcontractors or suppliers of any tier are obligated to do what is necessary in order to fulfill SIPA's rights granted under this Article 7. The Contracwr warrants that it has or will obtain full power and authority to carry out the provisions of this Article 7 from all persons and other entities who perform any work under this Contract or any subcontract related hereto, H. Contractor shall deposit on a quartedy basis the source code for the most recent version of all Cofactor Software (excluding Third Party Software) together with the available program documentation and programmer's notes used in the State Portal_,-in, in escrow with a neutral third party to be mutually chosen by Contractor and SIPA (the "Source Cade") under the terms of an escrow agreement satisfactW to SIPA, Contractor and the escrow agent. Over the Term of the Contract Contractor will have the authority to remove superseded source code. The source code shall be delivered to SIPA by the Escrow Agent in the event (1) Contractor is declared bankrupt or is the subject of any liquidation or insolvency proceeding whick is not dismissed within vinLty (90) days; or (2) Contractor is required to deliver Source Code as provided in Article 7 above; or (3) as otherwise provided in the agreement with the Escrow Agent. Contractor acknowledges that it will deliver a copy of the softvv= escrow agreement between Contractor and its Escrow Agent to SIPA. Contractor shall obtain the consent of MPA in writing to any amendments to .,such agreement, any change in Escrow Agent, or of any replacement or successor escrow arrangements. 113 --=A of the Source Code escrow shall be borne by Conhnctor, and paid out of the Net Revenues as an operating expense. In dm event there are no Net Revenues, Contractor shall bear the expense of the Source Code escrow: The Contractor shall have the authority to terminate the escrow within a reasonable time after the Contractor terminates. SIPA agrees that the Source Code shall be treated as tho Confidential Information of Contractor notwitbstaading immaination or expiration of the Contract. Article 8: Intellectual Property Indemniffmation A. Contractor shall defend, at its sole expense, any claim(s) or suit(s) brought against SIPA alleging that the use by SIPA of any Contractor Software constitutes infringement of any patent, copyr*K - trademark, or other proprietary rights, provided that SIPA gives Contractor written notice within twenty (20) days of receipt by SIPA of such notice of such claim or suit, provides assistance and cooperation to Contractor in connection with such action, and Contractor has sole authority to defend or settle the claim. Contractor shall consult SIPA regarding such..defea4e and WA may,, at its dismv ion and expense, participate in any 13 FROM Iz (TUE)SEP 5 2008 1e /ST. 15; 34INo. 7380010287 P 14 defense. Should SIPA not choose to participate, Contractor shall keep SIPA advised of any settlement or defense. 13. Contractor shall have liability for all such claims or . suits, except as expressly provided herein, and shall indemnify SIPA for all liability incurred by SIPA as a result of such infringement. Contractor shall pay all reasonable out -of- pocket costs and expenses, and damages finally awarded by a court of competent jurisdiction, awarded or agreed to by Contractor regarding such claims or suits. C. If the Contractor Software, or any part thereof, becomes the subject of lay claim, suit or proeeeding for infringement of any patent, trademark or copyright, or in the event of any adjudication that the Contractor Software, or any part thereof, infringes any patent, trademark or copyright, or if the use of the Contractor Software, or any part thereof, is enjoined, Contractor, after consultation with SIPA, shall do one of the following at Contractor's expense in a commercially reasonable time and in a commercially reasonable manner. (a) produce for SIPA the right under such patent, trademark or copyright to use the Contractor Softvvw-or such part thereof; or (b) replace the Contractor Software, or part themoia with other suitable products or parts conforming to the original liege and SIPA specifications; or (c) suitably modify the,. Contractor Software, or parts thereof. Except as otherwise expressly provided herein, Contractor shall not be liable for any casts or expenses incurred without its prior written authorization. D. Contractor shall have no obligation to defend against or to pay any costs, damages or attorney's fees with respecf to any claim based upon. (a) the use of any altered release if Contractor had not consented to the -alteration, or (b) the combination, operation or use of the Contractor. Software with programs or data which were not furnished by Contractor, if such infringement would have been avoided if the programs or data furnished by persons or entities other than Contractor had not been combined, operated or used with the Contractor Software, or (c) the use of Contractor Software on or in connection with equipment or software not permitted under the Contract if such infringement would have been avoided by not using the Contractor Software on or in connection with such other equipment or software. Article 9: SIDPA4Fumbbed Documents, F.yryrmimation and Owna*Wp. A. With respect to any documents that SIPA is required to provide or dues provide to the Conhwtor pursuant to this Contract, the Contractor shall exercise due care to ensure that such documents am sufficient for the performance of this Contract, and that they contain no manifest arms; however, nothing in this provision shall make the Contractor liable for errors in the materials of SIPA. The Contractor shall give SIPA written notice within fifteen (15) days of the event that it discovers any error, omission or anomaly in any such document at any time. B. Any reports, studies, photographs, negatives or other documents or drawings prepared by Contractor exclusively for SIPA in the performance of its obligations 14 FROM (TUE)SEP 5 2008 1E ,j/ST.15:34 #No.7380010287 P 15 under this Contract (but excluding Contractor Software, and Contractor Records) shall be the exclusive property of SIPA. The Contractor within thirty (30) days of termination or cancellation of this contract shall deliver a copy of the Portal Records to SIPA. Contractor shall be entitled to retain and use copies of the same. Similarly, within thirty (30) days- of termination, SIPA shall return all Confidential or Proprietary Information to Contractor that has been disclosed, delivered or otherwise furnished to it, unless SIPA is receiving a license to Contractor Software as provided in Section 7 above. Article 10: Confidentiality A. Confidential information for the purpose of this contract is information relating to a party's research, development, trade secrets, business affairs, internal operations and management procedures and those of its customers, clients or affiliates, but does not include information lawfully obtained tbrough third parties, Which is in the public domain, or which is developed independently. Neither party shall use or disclose directly or indirectly without prior written authorization any confidential information concerning the other party obtained as a result of this contract. Any confidential information removed from SIPA's site by the Contractor in the course of providing services under this contract will be accorded at least the same precautions as are employed by the Contractor for similar information in the course of its own business. H. The Contractor shall have the following obligations with respect to the confidential information contained in this Coata=4 including any work packago(s); all confidential data of -SIPA; and any information supplied to the Contractor by or on behalf of SIPA in connection with this Contract that is identified as confidential at the time it is so supplied, Such identification shall be made or confirmed in writing. 1. The Contractor shall Ww all reasonable measures to protect the confidentiality of such informadon_ 2. The Contractor agrees that it shall use such information solely in connection with this Contract, unless alternative uses are explicitly authorized by SIPA with aspect to specifically designated information. 3. , The Contractor shall not disclose such information to third parties, or have it disclosed, in any manner or form, so long as it remains confidential, without the explicit arrthorization of SIPA. Subject always to any rights in or license to the same granted to SIPA herein, SIPA shall have obligations reciprocal to those in this Article above with respect to any Contractor Confidential Infomoation that is supplied to SIPA by or on behalf of the Contractor within the scope of this Contract that is identified as confidential under this Contract or at the time it is so supplied SIPA acknowledges. that Contractor 15 FROM ;1' (TUE)SEP 5 2006 15 1ST.15:34/Ho.7360010287 P 16 considers such information to be trade secrets and commercial and financial information of Contractor which is not a public record and is not subject to public access. The confidentiality provisions of this contract shall be included in WE Agreements. C. Paragraphs A and B of this Article shall continue to apply, irrespective of any expiration or termination of this Contract, unless and until such time as such information comes into the receiving parry's lawful possession independent of disclosure in connection with this Contract, or otherwise lawfully to the general public. D. Notwithstanding the fact that the State infornation described in pamgraph A above may now or in the future become embodied in a product 00L'1W for sale, lease or license, by SWA (1) due to the fact that the Contractot's work hereunder puts the Contactor in a superior position to understand such products, the ContracW agrees that it will not, undertake to reverse engineer such products and it will not participate or assist in any effort to do -so; (2) this shall not be considered a disclosure to the general public. E. Contractor 'shall restrict disclosure of confidential information to the minimum number of persons required to enable the Contractor to carry out the Work in an effective and timely manner. The Contractor may discuss with relevant members of staff of the Contractor having special knowledge of finance, administration and the like, only the information in broad outline not involving any unnecessary disclosure of technical details not essential to the proper. conduct of the discussion. F. Both parties shall treat all State Tortal User information that contains separately identifiable financial and personal information as conftdenW information. Article 11: Public Release of Information The Contractor shall obtain the written approval of SIPA conoermng the con tew and timing - of news releases, articles, brochures, advertisements, prepared speeches, and ofihsr infon=don releases to be made by the Contractor or any of its subcontractors eoneertuing this Contract or the work performed or to be performed hereunder. Provided however, SIPA's approval shall not be required for remarks made in the course of routine marketing activities to Eligible Govt Entities or 1.Tsers. SIPA shall be given a reasonable time to review the proposed text prior to the date scheduled for its release. SIPA shall establish an expedited procedure among its membership for review of materials and comments under this section Notwithstanding fire foregoing, the Contractor may make such public disclosures and filings under applicable securities regulations as recon uuumded by ConUvztm's securities law counsel, or as otherwise required by law. Subject to the requiremmu of the Colorado Open Records Act, SIPA agrees not to disclose, publicly relemw, produce for any purpose. including in response to a subpoena or other court or governmental order, without giving Contractor or its succtsors, assigns, 16 FROM C (TUE )SEP 5 2006 1.` _ /ST.15,34/No.7360010287 P 17 parents, or subsidiaries as much written notice as is reasonably practicable, and an opportunity to object to the disclosure or production of any of the Contractor Confidential Information. At the request of SIPA, Contractor shall provide such reasonable assistance as may be requested by SIPA to comply with this pravislorL Article 12: Consequences of Force Majeure A. The purpose of this Article is to establish the consequences of force majeure events preventing either party from complying with any of its obligations under this Contract. B. As used in this Article, the term "force majeure" refers to events extrinsic to this Contract that are beyond the reasonable control of, and not attributable to negligence or other fault of, the party relying on such events to excuse its failure to perform. The term does not include strWes or other events caused by labor disputes, unless such strikes or other events are part of national or regional disputes. C. Any party whose ability to perfornn is affected by a force majeure event shall take all reasonable steps to mitigate the impact of such event. D. If the affect of a force majeure event is temporary, subject to PanoVh E of this Article, the party so affected shall not be responsible for any consequent delay, and the relevant schedule or time period shall be extended accordingly, and the party shat] provide notice of the event is given to the other party within seven (7) -days after the event has occurred. At the time of the initial notice of the occurrence of the event, or as soon thereafter as possible, the party affected shall inform the other party of the extent of the delay experiexl as a result of the event E. In the case of one or more force majeure events having a temporary effect on the Ability of the Contractor to comply with the schedule in any Task Order, if the affect is, or will be, to delay such schedule by more than ninety (90) days, or in the case of force majeure events pertly preventing the Contractor from complying with said schedule, and provided that the event has not been caused by SIPA, SIPA may declare this Contract to be tetminated, in whole or in part. In such event SIPA shall pay the Contractor for work carried out under the Task Order up to the date of termination, including work carried out under any uncompleted Task Order, and make any other payments required under this Contract. Article 13: Conformance with IAw and Governmental Authorizations The Contractor and its agent(s) shall at all times during the term of this contract strictly adhere to all applicable federal laws and state laws and implementing regulations as they currently exist and may hereafter be amended. The Contractor shall be responsible for obtaining all governmental. authorizations necessary for the performance of the Contractor's obligations hereunder. In the event that the Contractor fails to obtain any such 17 FROM (TUE)SEP 5 2008 15.C- IST. 15.34/No.7380010287 P 18 authorization as may be t essary to complete any work following notice and a reasonable cure period, SIPA way terminate the Contract or such element of work. Article 14: Termination A. 1grWjnation by SIPA for Cause: SIPA may terminate the contract for cause, by following the procedures set forth herein. If SIPA desires to terminate the contract for cause, it will first give thirty (30) days prior written notice to the Contractor, stating the problems constituting cause, procedures to ,correct such problems, and the date the contract will be terminated in the event problems have not been, corrected, which date shall be at least thirty days from the date of the notice. if such problems have not been corrected in such time, then upon notice, $TPA may terminate this contract for •cause. In the event this contract is terminated for cause, SIPA will only reimburse the Contractor for accepted work or deliverables received up to the date of termination. In the event this contract is terminated for cause, final payment to the Contractor may be withheld at the discretion of SIPA until completion of final audit. Notwithstanding the above, the Contractor may be liable to SIPA for SIPA's damages, but shall not be liable for incidental or consequential damages. B. Termination for Convenience: SIPA shall have the right to terminate any Task Orden under this contract by giving the Contractor at least twenty (20) days prior written notice. If notice is so given, the Task Order wxIa this contract shall teinate on the expiration of the specified time period, and the liability of the patties hereunder for. further performance of the terms of the Task Order shall thereupon cease, but the parties shall not be released from the duty to perform their obligations up to the•date, of tetmixtation. C. Immediate Termination: Any Task Order is subject to immediate termination by SEPA in the event that SIPA determines that the health, safety, or welfare of persons receiving services may be in jeopardy due to the acts of the Contractor. Additionally, SIPA may immediately suspend this contract upon verifying that the Contractor has Knowingly engaged in or is knowingly about to participate in fraudulent or other illegal acts. D. Termination for Financial Exigency_: SIPA shall have the right to terminate portions of this contract for fiinancial exigency by giving the Contractor at least thirty (30) days prior written notice. For the purposes of this provision, a financial exigency shall be a determination made by the Colorado legislature or its Joint Budget Committee that appropriated funds or federal funding is not available to continue to support the affected Task Orders, but then such termination shall only be to the services supported by such state appropriated or federal funding. if notice of such tetnAmdon is so given, the applicable portions of this contract shall terminate on the expiration of the time period specified in the notice, and the liability of the parties hereunder for further performance of such portion of this 19 FROM --f` (TUE)SEP 5 2008 1L.'i /ST. 15: 34 /No. 7380010287 P 18 contract shall thereupon cease, but the parties shall not be released from the duty to perform their obligations up to the date of termination. E. In the event that SIPA terminates Task Orders under this contract under the Termination for Convenience or Termination for Financial Exigency provisions, the Contractor is entitled to submit a termination claim within ten (10) days of the effective date of termination. The termination claim shall address and SIPA shall pay the fallowing costs: 1. The agreed Task Order price fur performance of worl€, which is accepted by SIPA, if applicable, up to the effective date of the termination. 2. Reasonable and necessary costs incurred in preparing to perform the tenninated portion of the contract. 3. Reasonable profit on the completed but undelivered work 4. The costs of settling claims arising out of-the termination of subcontracts or orders, 5. Reasonable accounting, legal, clerical, and other costs arising out of the terrattination settlement. In no event shall reimbursement under this clause exceed the contract amount for the terminated Task Orders, reduced by amounts previously paid by SIPA. to the Contractor. F. Tgrm"on by SIPA with Immediate SIPA shall have the right to terminate this Contract, in whole or in part, at any time and with immediate effect, in any of the following events: 1. If the Contractor becomes insolvent or is declared banrlcru *, or any involuntary proceeding in ba2kruptcy is filed against it and not dismissed within ninety (90) days, or the Contractor tiles for won under the bankruptcy code. 2. If the Coo tew resorts to fraudulent practices in connection with the Contract, including, but not limited to: a. Deceit concerning the na u v, quality, or quantity of goods and services required to be rendered under this Contract; or b. The giving or offering of gifts or remuneration for the purposes of bribery to any person in the employ of SIPA or any other 1GE, or acting on behalf of any of them, imespechve of whedw such bn'bes 191 FROM C., (TUE)SEP 5 2008 15: %ST.15:341No.7380010287 P 20 or remuneration are made on the initiative of the Contractor or otherwise. 3. Jn the event of such termination, SIPNs remedies shall be the satne as in the case of discharge for breach of contract by the Contractor. C. "Termination pj+, .Contractor. Contractor shall have the right to tenminaie this Contract for cause, subject to care, by providing written notice of termination to SIPA. Such 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 SIPA to avoid termination of the Contract. Contractor shall provide a specified period of time of up to sixty (60) calendar days, unless otherwise specified in this Contract, for SIPA to cure breaches and deficiencies of its performance obligations under this Contract. For purposes of this section, the phrase °'for cause" shall mean: 1. Any material breach or evasion by SrnA of the terms or conditions of this Contract and its amendments, if any. 2. The financial base upon which Contractor relies for solvent Portal operations and its fee does not materialize after execution of this Contract or is removed in the future. Article 14A: Continuity of Services Contractor recognizes that the services under this Contract are very important to the citizens and • businesses of the State - of Colorado and must be continued without intamption and that, upon contract expirstion, a successor, whether a governmental agency, or another private entity, may continue there. Contractor agrees that in connection with the termination or expiration of the Contract, Conuutor shall continue to perform, subject to Portal Resources, or at an agreed amount acceptable to the parties during the transition period, and receive payment for Portal Services in accordw= with rho terms aid conditions of this Agreement for a transition period up to twelve (12) months from the- time of notification of termination by either party or expiratioi4 whichever occurs earlier. Any such notifications from the State will idann* whether it requests transition assistance. As part of SIPA's request, SIPA shall notify the Contractor of the number of months during which the Contractor shall continue to perform transition services under this provision. The Contractor shall use its best efforts to make an orderly transition of its services to SIPA or to any successor selected by SIPA and shall perform any and all tasks contemplated in this Contract in good faith that am necessary to assist in preson4rig the integrity of Portal operations. Contractor agrees that it shall perform any such transition in a professional, and businesslike manner to accomplish a successful transfer of Portal Services. Article 15: . Applicable Law KII FROM (TUE)SEP 5 2006 15:4 'rST. 15:34/No. 7360010287 P 21 This contract shall be governed by the laws of and adjudicated in, the State of Colorado. The Contractor agrees to comply with all applicable Federal, State and local laws, rules and regulations in its performance hereunder. The parties agree that venue for any action related to performance of this Contract shall be in the City and County of Denver, Colorado. Article 16: Dispuft Resolution Except as herein specifically provided otherwise, disputes concerning the performance of this Contract which cannot be resolved by the designated Contract Representatives shall be rcfenzed in writing to a senior departmental management staff designated by SIPA and a senior manager designated by the Contractor. Failing resolution at that level, disputes shall be mediated within a reasonable time lasing a reputable Alternate Dispute Resolution mediator selected by mutual agreement of the Parties. The expense of the mediator shelf be borne equally by both Parties. This process is not intended to supersede any other process for the resolution of controversies provided by law. Article 17: Key Personnel A. The Contractor agrees that the individual(s) nominated in each Task Order, if any, are necessary for the successful completion of the Work to be performed under this Contract C%ey Personnel'). B. Such Key Personnel shall not be removed by Contractor from the performance of the Work under this Contract unless replaced with permmeI of substantially equal qualifications and ability. SIPA shall have the right to review the qualifications of any proposed replacements and, if for good and sufficient reasons SIPA deems such personnel to be unsuitable, SIPA may require the Contractor to offer alternative candidates where such are available. C. Notwithstanding its role in approving Key Personnel and their replacements, SIPA shall have no supervisory control over their work, and nothing in this Article shall relieve tie ' Contractor of any of its obligations Um*w this Contract, or of its y regmasibility for any acts or omissions of its personnel. Article 18: Changes To Task Orders A. At arty time during the period of this Contrract, SIPA may request changes in the work under any Task Order, so long as such changes are within the general. scope of the C,onrract. The Contractor may also propose changes for consideration by SIPA,. E. A change request from SIPA must be identified as such, must be made or confirmed in writing, and must be signed by the Responsible Officer identified in Paragraph A of Article 20 hereof, entitled Responsible Officers. If any other conduct by the responsible of or any other representative of SIPA is construed by the Contractor as possibly coanstitudgg a change request or an interpration of the 21 FROM ' (TUE)SEP 5 2008 15 �'lST.15:341No.7360010287 P 22 Contract requirements inconsistent with the Contractor's understanding of those requirements, the Contractor shall promptly notify S1PA and request clarification. C. Within fourteen (14) days after receiving a change request from SEPA, tltc Contractor shall submit to SIPA a contract change notice in accordance with the requirements of Paragraph D of this Article. The Contractor may request a longer period to prepare the contract change notice, but the Contracmr shall make any request for such a longer period within seven (7) days after the Contractor receives the change request. SIPA shall not unreasonably withhold its consent to a request for such a longer period, taking into ac cm= the nature of the change request, but SIPA. may also take into account the impact of such an extension on the performance schedule. D. Whether submitted in response to a change request initiated by SIPA, or initiated by the Contractor, the contract change notice shall itemize, in a format specified by SWA, any affect that the change would have on the technical requiremens ,.price, performance schedule, or other terrns and ' conditions of this Contract. Where apparopriate, the contract change notice shall also suggest any mAs ed language for the Contract, including any of its Arames that would be necessary to implement the change. E. if the cost of any materials that would be made obsolete as a result of a change is included in the Contractor's claim for adjustment: I. To the extent that such materials have resale, reuse, or salvage value to the, Contractor or its subcontractors or suppliers, SIPA shall be entitled to a .....credit. 2. If such materials have no such resale, reuse, or salvage value, SIPA shall have the right to prescribe their manner of disposition. F. After SIPA receives a sufficiently detailed Task Order change notice, and aft' any negotiations with respect to the adjustments claimed by the Contractor, the following outcomes are possible: SIPA may decide not to proceed with implementation of the change. 2. SIPA may decide to implement the change, in which case: a. If the parties have reached agreement about the adjustaxeyxts to be made in the Contrast, the Contractor shall proceed with implementation as agreed. b. if the parties are unable to march such an agce=cnt, the provisions of Article 16 hereof; entitled Dispute Resolution, shall apply- . 22 FROM (TUE)SEP 5 2006 15:4T.15:34INo.7360010287 P 23 C. bending any negotiation, SIPA may direct the Conractor to proceed with implementation of the change, subject to any adjustments subsequently agreed or awarded. {. SIPA may also direct the Contractor to proceed with implementation of a change to a Task Order prior-to preparation of a complete contract change notice, subject to any adjustments subsequently agreed or awarded. H. SIM a right to direct the Contractor to proceed with implementation of a change to a. Task Order pursuant to Paragraph 0 of this Article shall be subject to the ContractWs ability to do so, taking into account the resources, facilities, supplies, and services available to it, and may also be subject to a stipulated financial limit. Article-19. Assignment of Contract A. The Contractor shall not assign or delegate, either in whole or in part, this Contract or any of the Contractor's rights, duties, or obligations hereunder to any person or entity without the prior express written approval of SMA, which shall be at SIPA's sole discretion. SIPA acknowledges and consents to use of the subcontracted services of affiliated N'ICUSA entities to assist in the performance of Contractor's duties hereunder, provided the fees for such services shall be reasonable and comparable to fees that would be paid to unaffiliated third porkies for similar services and farther provided that any SIPA- approved non NICUSA subcontractors acknowledge and agree in writing to perform such services consistent with any applicable terms of this Contract, including without limitation those provisions relating to State ownership and confidentiality of Stale records. In order to have a portal management entity dedicated solely to performance of the contract between the parties, Contractor shall be entitled to form a wholly.. owned subsidiary (e.g., Colorado Interactive LLQ aml to assign without recourse its obligations, duties, privileges and rights haeunder to that entity. Article 20: Responsible Officers A. The responsible officers of the parties may be changed from time to time by notice to the other party. Until further notice, the responsible Officer for SIPA shall be its Executive Director, and for the Contractor President of the limited liability company. B. For the purpose of adzninistcalion of this Conftwc , any communications between SIPA and the Contractor shall be enforceable and binding upon the patties only if signed by the appropriate Responsible Officers. C. The Contract is subject to such modifications as may be required by changes in Federal or Static law, or dark implementing regulations. Any such required modification shall automatically be incorporated into and be part of the contract on the etive date of such change as if fully set forth herein. Except as 23 FROM - (TUE)SEP 5 2006 1 ;/ST.15:34/No.7360010287 P 24 provided above, no modification of the Contract shall be effective unless agreed to in writing by both parties in an amendment to the Contract that is properly executed and approved in accordance with applicable law. Article 21: Communications A. All notices, reports, invoices and other correspondence to be provided to SIPA or the Contractor pursuant to this Contract shall be sent for the attention of the responsible officers mftred to in Paragraph A of Article 20 hereof , entitled Responsible Officers, at the following addresses: SIPA: Contractor. [Name] Rich Olsen Executive Director President, Colorado Interactive, L.L.0 (Address, City, State) [Address, City, State] [Phone] (phone] [Fax) [Fax] Copy to: Copy to: Richard Westfal . William Bradley 14gal Counsel General Counsel SIPA NIC Inc. [Address, City, State] 10540 S. Ridgeview Road Olathe, KS 66061 [phone] Phone: 913 -754 -7000 [Fax] Fax:' 913 - 498 -3472 B. All Communications pertinent to this Contract shall be made or confirmed in writing„ including telegram, telex, or facsimile. C. All documentation and communications required under this Contract shall be in the English language. - Article 22: Thne limits Any time limits to which this Contract binds the Contractor or SIPA shall be cmuited in calendar days from the day following that of the event marking the start of the time limit, and shall and on the last day of the period laid down. When the last day of a time limit is a Saturday or Sunday, or a legal holiday in the country in which the particular contractual performance is required., such time limit shall be extended to the first working day following. Article 23: Coni iet of "terest 24 FROM (TUE)SEP 5 2008 1 =-.3/ST.15:34/Ho.73SO010287 P 25 During the term of this contract, the Contractor shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the Contractor fully performing his/her obligations under this contract Additionally, the Contractor acknowledges that, in governmental contracting, even the appearance of a conflict of interest is harmful to the interests of SIPA.. Thus, the Contractor agrees to refrain from any practices, activities or relationships that could reasonably be considered to be in conflict with the Contractor's fully performing its obligations. to SIPA under the terms of this contract, without the prior written approval of SIPA. in the event that the Contractor is uncertain whether the appearance of a conflict of interest may reasonably exist, the Contractor shall submit to SIPA a frill disclosure statement setting forth the relevant details for STPA's consideration and direction. Failure to promptly submit a disclosure statement or to follow SIPA's direction in regard to the apparent conflict shall be grounds for termination of the contract. Further, the Contractor shall maintain a written code of standards governing the performance of its agent(s) engaged in the award and administration of contracts. Neither the Contractor nor its agent(s) shall participate in the selection, or in the award or administration of a contract or subcontract supported by State or Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: 1. The employee, officer or agent participating in the selection, award or administration bag a financial or other interest in the firm selected for award. 2. Any member of the employee's immediate family participating in the selection, award or administration has a financial or other interest in the firm selected for award. 3. The employee's pwtm participating in the selection, award or administration has a financial or other interest in the Sim selected for award. - 4. An organization which employs, or is about to employ, any of the above participating in the selection, award or administration has a financial or other interest in the firm selected for award. Neither the Contractor not its agent(s) will solicit nor accept gratuities, favors, or anything of monetary value from Contractor's potential contractors, or subcotors. Article 24: Insurance - Contractor During the term of this contract, and any extension(s) thereof, Contractor agrees that it will keep in force any insurance policy or policies, issued by a company authorized to do business in Colorado, in the kinds and minimum amounts specified below. 25 FROM (TUE)SEP 5 2006 15: iST.15:34/No.7360010287 P 26 1. Standard Worker's Compensation and Employers' Liability as required by state statute, including c"upadonal disease; covering all employees on or off the work site, acting within the course and Scope of their employment. 2. General, Personal Injury, Professional (where applicable), Liability (including bodily ,injury, personal injury and property damage) with minimum coverage of a. Occurrence basis policy: combined single limit of $600,000 or Claims -Made policy: combined single limit of $600,000; plus an endorsement, certificate, or other evidence that extends coverage two years beyond the performance period of the contract. b. Annual Aggregate Limit policy: Not less than $1,000,000 Plus'agmmt that the Contractor will purchase additional insurance to replenish the limit to $1,000,000 if claims reduce the annual aggregate below $600,000. i. The State of Colorado shall be named as a lost payee on all liability policies (except for Professional liability coverage). 2. The insurance shall include provisions preventing cancellation without thirty (30) calendar days prior written notice to SIPA by certified mail. 3. Upon execution of this contract, the Contractor shall provide to SIPA additional insured endorsements and certificates of the required insurance coverage. 4. The Contractor shall provide such other insurance as may be required by law, or in a specific solicitation. 5, if the Contractor is a "public entity" within the meaning of the Colorado Governmental Immunity Act, C.R.S. 24 -10 401, et se�,,,q, , as amended ( "Act "); the Contractor shall maintain such insurance, by commercial policy or self- insurance, as is necessary to meet the Contractor's liabilities under the Act. Upon request by SIPA, proof of such insurance shall be provided. . Article 25: 14I intenonce, Monitoring, Audit and Iuspection of Records A. The Contractor shall maintain a complete file of all records, documents, cotl3pr►Wnitions, and other written materials which pertain to the operation of Portal Services and Task Order work under the Contract, and shall maintain such records for a period of three (3) years after the daze of termination of the Contract or final payment hereunder, whichever is later, or for such further period as may be necessary to resolve any matters which may be pending. - B. The Contractor shall permit the Federal Government (with respect to Task Orders), $IPA or any other duly authorized agent of SIPA or a State governmental agency to audit, inspect, examine, excerpt, copy and/or transcribe the Portal Services or Task Order Records during the term of the Contract and for a period of three (3) years following tannin ion of the Contract or final p ayMent hereunder, whichever is later, to assure compliance with the terms hereof, or to evaluate the Contractor's performance hereunder. The Contractor shall also permit these same described entities to monitor all activities conducted by the Contractor pursuant to the terms of the Contract, subject to restrictions under applicable law, and the privacy provisions of the State Portal. As the monitoring agency may in its sole discretion deem necessary or appropriate, such monitoring may consist of internal evaluation procedures, examination of program data, 26 FROM (TUE)SEP 5 2008 15L/ST.15:34 }No.7380010287 P 27 special analyses, on -site checks, or any other treasonable procedure. If a material inaccurate accounting (greater than 5% discrepancy) is uncovered in an audit, the Contractor in addition to correcting such error shall reimburse SIPA for such costs incurred in conducting that audit, provided, however, that such costs shall not exceed the lesser of the cost of such audit and twenty five percent (25%) of the amount of the error. Article 26: [Reaerved] Article 27: Severability To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative far any reason, such invalidity or failure shall not affect the validity of any other term or provision hereof. The waiver of any breach of a term hereof shall not be construed as waiver of any other term. Article 28: Permits and Licenses The Contractor shall procure all permits and licenses, pay all charges, fees and takes and incidentals that may be required for the lawful prosecution of the work. Any software licenses required will be procured by the Contractor, unless otherwise agc' c& Article 29: Waiver Any waiver by any party hereto with • rege d to any of its rights het"inder shall be in writing and shall not constitute or act as a waiver to any fixture rights, which such party' might have hereunder. Article 30: Third Party BenefieiltHes It is expressly understood and agreed that the enforcement of the terms and conditions of the Contract and all right of action relating to such enforcement, shall be strictly reserved to SIPA and the Contractor or their permitted assigns. Nothing contained in this Contract shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of SIPA and the Contractor that any such person or entity, other than SIPA or the Contractor or their permitted assigns, receiving services or benefits under this agreement shall be deemed an inddental beneficiary only Article 31: Governmental Immunity Notwithstanding any other provision of the Contract to the contrary, no team or condition of the Contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, right, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, C.R.S. 24-10 -101, et.sey., as now or hereafter amended. 27 FROM C11 =11 (TUE)SEP 5 2008 15.4o/ST.15:341No.7380010287 P 28 The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the State of Colorado, its department, institutions, agencies, boards, officials and employees is controlled and limited by the provisions of C.R.S. 2410 -101, et seq., as now or hereafter amended and the risk management statues, C.R.S. 2430 -1501, aseq., as now or hereafter amended. Article 32: Hardware Ownership A. At the conclusion of each 'T'ask Order, whether under Article 2, Dmtm and Renewal of Contract, or Article 14, Termination, SIPA shalt own all hardware acquired with the use of State funds or federal funds. Contractor shall furnish an inventory of the hardware acquired pursuant to a Task Order, at the conclusion of the Task Order. B. At the conclusion of the contract, whether under Article 2, Duration and Renewal of Contract, or Article 14, SIPA may elect to acquire all hardware being used at such time in portal, operations and purchased with Net Revenue for net book value (original cost less depreciation pursuant to GAAP). C. The Contractor shall use best efforts to transfer to STPA any manufacturer's warranties for the hardware transferred hereunder. Otherwise, Contractor transfers such hardware "as is." Article 33: Entire Agreement This Contract constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior orcontempommus conespondemce, rtpmesentations, psoposalN negotiations, understandings, or agreements of the parties, whether oral or written. The parties also hereby w1mowledge that there are no collateral contracts between therm with respect to the subject matter hereof. In the event of conflicts or inconsistencies between the contract and its exhibits, the RFl ; or the Proposal, such conflicts shall be resolved by reference to the documents in the fallowing order ofpriority, unless otherwiac indicated in the contm a. 1. Colorado Special Provisions 2. Contract 3. Stakment of Work 4. Annual Business Plan 5. Request for Proposal 6. Contractor's Proposal SPECIAL PROVISIONS 1. INDRIMINMCATION. 28 FROM (TUE)SEP 5 2006 15:4L/ST. 15:34/Ho. 7360010287 P 29 The Contractor shall indemnify, save, and hold harmless SIPA, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. 2. INDEPENDENT CONTRACTOR. 4 CCR 8012 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE. NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF SIPA. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY SIPA PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS. UNLESS THE CONTRACTOR OR TURD RD PARTY PROVIDES SUCH COVERAGE AND THAT SIPA DOES NOT PAY FOR OR OTHERWISE. PROVIDE SUCH COVERAGE. CONTRACTOR SHALL, HAVE NO AUTHORIZATION, EXPRESS OR 17VII"LIED, TO BIND SIPA TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDINO EXCEPT AS EXPRESSLY SET FORTH HEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY SIPA) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR. ITS EMPLOYEES AND AGENTS. ' 3. NON- DISCRI MMIATION. The Contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting disc ritni;nation and unfair employment practises. 4. CHOICE OF LAW. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any Provision of #his contract, whether' or not incorporated herein by reference, which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with said laws, rul -aand regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this. contract, the Contractor shall strictly adhere to all 709 FROM (TUE)SEP 5 2006 1 j/ST.15:34/No.7360010287 P 30 applicable fedeW and State laws, rubes, and regulations that have been or may hereafter be established. 5. EMPLOYEE ]FINANCIAL INTEREST. CRS 24 -1 &201 & CRS 24 -WS07 The signatories aver that to their knowledge, no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or prop" described herein. Effective Date: July 1, 2003 IN WITNESS WOOF, the parties ltre-to have signed this Contract in duplicate. NiCUSA, Inc. Typed Name: Harry Herington Title: .r_4 —•t't 7` • -� Date:�f -- r-t" - -- r II Typed Name: _ - Title: Bate: r - -- -d CT FROM (TUE)SEP 5 2008 15.,.,i/ST.15:34/No. 7380010287 P 31 Eahibit I LE ORI1 R Ditto: Task Order No. In accordance with' Paragraph of the. Portal Integrator Contract between the State Internet Portal Authority (SIPA) and <,contractor's name> (Contractor) covering the period of (contract start date) through (contract end date) the parties agree to the supplies/services affected by this Task Order as follows: Task Order. ,tyUlraintion The Contractor shall perform the task in accordance with (the following s, pecications/.statement of work) described in the Contractor's task order proposal dated as arnended by attended task order proposal dated , both of which are hereby incorporated by reference, The agreed firm, fixed price consideration for the development activities described herein (but not including any portion of The Total Fees generated from the State Portal) is $ . The maximum amount of consideration for the operational activities described herein. (but not including any portion of the Total Fees generated from the State Portal) is ($ ) . The total Contract value to include all previous amendments, task orders,. etc., (but not including any. portion of the Total Fees generated from the State Portal) is ($ ___). The amount of consideration to be paid hereunder is intended to be funded by state appropriated fiords or federal funds. Performance Period The Conbaetor will complete the performance in this task order by This task order is executed pursuant to Paragraph of the original Contract. The parties agree that all work shall be performed according to the standards, procedures, and terms set forth in the original contract. In the event of any conflict or inconsistency between this amendment and the original contract, such conflict or inconsistency shall be resolved by reference to these documents in the following order: origbW Contract, attachments/exhibits to the original Contract, this-Task Order, attachments/exhibits to this Task Order. The effective date of this Task Order is upon approval of SIPA or (date), , whichever is later. Please sign, date, and return all copies of this letter on or before 31 FROM (TUE)SEP 5 2008 15 .alST.15;341Na.736001028? P 32 Contractor Name: State IuVmet Portal mthority: By: BY: . Name: Name:_ _ Title: Title: Date: Daze :_- 32 FROM (TUE)SEP 5 2006 15 o/ST.15:34/No.7360010287 P 33 SAMPLE PORTAL BUSINESS PLAN DRAFT OUTLINE FOR COLORADO.GOV 1 Executive Summary 2 The Benefits and Challenges of eGovernment Today 2.1. Key Drivers for eGovemmeat 2.2. Making the Business Case: Efficiency Gains and Cost Savings 3 Colorado.gov Priorities, Goals, and Objectives 3.1. ResponsiWities of the Portal Manager (Colorado Interactive, LLC) 3.2. Responsibilities of the Departments and Agencies 3.3. Duties of SIPA 4 Portal Improvement Plan (Technical. Plan) 4.1. Web Site Redesign. 4.1.1. Design Goals 4.1.2. Heuristic Criteria 4.1.3. Initial Evaluation of Colorado.gov and Recommendations 4.1.4. Site b*astructure kwovements (Search Engine, etc.) - 4.1.5. Hosting Recommendation 4.1.6....Finallnfiastrvcturc ... 4.1.6.1. Network Topology 4.1.6.2. Internet CoAnectivity 4.1.6.3. Security Features 4.1.7. Recommended Hardware for Portal 4.1.8. Recom=ended Software for Portal 4.1.9. Disaster Recovery 43.10,•Performance Metrics fax.Portal and Reporting 5 Portal Marketing Plan 33 FROM - (TUE)SEP 5 2006 15:46lST.15:34/No.73600102$7 P 34 5.1. Brand Awareness 5.2. Promotional Strategy 5.3, Monthly Accounts and Services 5.4. Service Packaging . 5.5. Traditional Advertising 5.6. Measuring Results 6 Portal Customer Service Plan 6.1. Online Customer Survey Forms 6.2. Email Customer .Service Support 15.3. Phone -Based Customer Support 6.4, Live Help for Constituents 6.5. Subscriber Support Services 7 General Portal Ramp -Up and Infinstruchm Schedule 8 Project Plan For Online Services 8.1. Initial Agency Meetings (Concurs mt with Portal Business Plan Due D"il4vace) 8.2. Master Project Matrix of Identified Priority Applications (Free and Fee Services) 8.3. Migration of Existing Colorado.gov Applications 8.4. Application Development Guidelines 8.5. Priority List of New Onlim Services (Free and Fee Services) 8.6. Project Plan for New Online Services 9 Portal Staffing Plan 9.1. Required Staffing Level 9.2. Colorado Interactive Support Staff and Management Team 9.3. Recommended 12 - Month Starling Plan 9.4. Portal Organization Curt 10 Portal Financial Plan 10.1. Revenue Requirements 10.2. Proposed Proposed Portal Driver Record Services Fee 10.3. Market Research Supporting Proposed Driver Record Services 10.4. Forecasting Revenues for Other Revenue Services 10.5. Portal Operating Budget Based on Recommended Staffing Plan 10.6. Summary of Financial flan 34 FROM - J (TUE)SEP 5 2006 15 :47/ST.15:34/No.7360010267 P 35 Appendix 1— Anecdotal Savings by Constituenuffind -users of Egover went Appendix 2 - Savings by Agencies Through eClovernmennt Appendix 3 - Master Project List ,Appendix 4 - Priority List of New Online Services Risk Analysis of Potential ,Applications Proposed Free Application List Proposed Fee Application list Appendix S - Management Team Resumes 35 FROM ` (TUE)SEP 5 2008 1 TlST.15:34/No.7380010287 P 38 Attachment A Task order Su tement of Work M FROM C-l` (TUE)SEP 5 2006 1S.'C ";ST.15;34/Ho.7360010257 P 37 Attachment U Task Order Rates 37 FROM (TUE)SEP 5 2008 4- 11ST.15:34/Ho.7380010287 P 38 FJRST AMENDMENT TO THE MASTER AGREEMENT January 31, 2006 1. Article 3: Task Order Consideration and Portal Funding, Section B. Portal Services Fees and Charges, subsection 2, Portal Accounts, paragraph b., subparagraph ii., is amended to read as follows: "Contract administration fee payable to SIPA shall be $37,500 per month, plus two percent (2 %) of Net Revenue received by the Portal from Work Orders, including the separate Vendor Agreement (Driver Histories) with DOR, but excluding Task Orders, during that month; the first priority for amounts in excess of SIPA operating expenses shall be additional Portal services via Task Orders. "Pursuant to Article I, Section B, subsection 2, Contractor will prepare an Annual Business Plan for Approval by the Board. Portal Resources will be projected by the Contractor in the Annual Business Plan. Separately, but at the same time, the corresponding projected amounts calculated under the contract to be paid to SIPA as contract administration fees will also be provided." 2. Article 30: Third Party Beneficiaries, is amended to read as follows: "(a) Except as set forth in section (b) below, it is expressly understood and agreed that the enforcement of the terms and conditions of the Contract and all right of action relating to such enforcement, shall be strictly reserved to SIPA and the Contractor or their permitted assigns. Nothing contained in this Contract shall give or allow any claim or right of action whatsoever by any other third person, except as set forth in section (b). It is the express intention of SIPA and the Contractor that, except as provided in section (b), any such person or entity, other than SIPA or the Contractor or their permitted assigns, receiving services or benefits under this agreement shall be deemed an incidental beneficiary only. (b) Anything herein to the contrary notwithstanding, it is expressly understood and agreed that each Eligible Government Entity that is a party to an Eligible Government Entity Agreement shall be a third party beneficiary with respect to Article 8, Intellectual,Propertv Indemnification and Special Provisions Section 1, Indemnification, of this Contract and shall have the right to enforce the terms and conditions of such provisions and all right of action relating to such enforcement subject to the same obligations, requirements, and limitations as apply to SIPA; provided however, that the various entities of Colorado government shall be collectively entitled to but one award and one measure of damages for each incidence of indemnification, and further provided that if more than one Eligible Government Entity is involved, the Contractor shall be required to pay attorney's fees, if applicable, for only one counsel for all such entities. Contractor and/or SIPA shall provide notice of any indemnification claim by one agency to all Eligible Government Entities that may be affected by such claim no later than five business days from receipt of notice of the claim." FROM (TUE)SEP 5 2006 1ilST,15:341No.7360010287 P 39 First Amendment Page 2 IN WITNESS WHEREOF, the parties have signed this First Amendment to the Master Agreement in duplicate: Contractor Colorado Interactive LLC Rich Olsen, General Manager SIPA Re,D sentative Bill Cadman, Chairman SECOND AMENDMENT TO AND RENEWAL OF STATE OF COLORADO STATEWIDE INTERNET PORTAL AUTHORITY MASTER CONTRACT WITH INTEGRATION CONTRACTOR TO DESIGN, BUILD, OPERATE, MAINTAIN AND ENHANCE A STATEWIDE INTERNET WEB PORTAL This Amendment (the "Amendment ") to and Renewal of the "State 'of Colorado Statewide Internet Portal Authority Master Contract with Integration Contractor to Design, Build, Operate, Maintain and Enhance a Statewide Internet Web Portal" (the "Contract") is made this 2 *ay of May 2010, by and between the Statewide Internet Portal Authority ("SIPA ") and Colorado Interactive, LLC ('Contractor'), as successor in interest to NIC Inc. WHEREAS, the parties previously entered into the Contract, effective May 19, 2005, and first amended January 31, 2006, under which Contractor is to provide to SIPA certain e- government and related services (collectively, the "Services'); and WHEREAS, pursuant to the Contract, SIPA has the option to renew the Contract for two (2) additional two (2) year periods, for a maximum renewal period of four (4) years; and WHEREAS, the initial term of the Contract expires on May 19, 2010; and WHEREAS, SIPA desires to exercise both of its option terms, resulting in a renewal of the Contract for the full four (4) years, and to amend certain terms of the Contract, as provided for herein; and WHEREAS, Contractor is agreeable to renewing the Contract for the four (4) year period, and also desires to amend certain terms of the Contract, as provided for herein; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Extension. SIPA hereby exercises both of its two year option terms, and the parties agree that the term of the Contract is hereby renewed and extended for an additional four (4) years so that the same has a natural expiration date of 11:59 pm, local time, on May 18, 2014. 2. Amendment. The parties agree that the Contract is amended, effective as of May 19, 2010, as follows: a. Definitions. i. The definition of "Net Revenue" under Definitions, page 2 of the Contract is hereby deleted in its entirety and replaced with the following: "Net Revenue" means Total Fees less Statutory Fees, less merchant fees required to process credit cards and Automated Clearing House (ACH) transactions, less the amounts paid to the Department of Revenue (DOR) for Driver Histories and Motor Vehicle Title and Lien records under the separate Vendor Agreement with DOR. Should any sales and use, value added or other similar taxes (but excluding taxes based upon the income of Contractor) be imposed on the Services at any time during the term of this Amendment, such taxes will be automatically passed through Contractor to the end -users of the transaction(al) Portal Services. As a result, any such taxes paid by Contractor will also be deducted from Total Fees in determining Net Revenue, with SIPA's concurrence which will not be unreasonably withheld. b. Portal Services. i. Article 1, Section B.L(Portal Services), subsection (d) is hereby deleted in its entirety and replaced with the following text: Participate in a governance structure established by SIPA and the Contractor for the State Portal activities that foster high- quality content, organization and structure, State Portal management processes, user interface, and opportunities for improvement; ii. Article 1, Section B.I. (Portal Services), subsection (f) is hereby deleted in its entirety and replaced with the following text: Assist SIPA in marketing the State Portal's capabilities and Services to Eligible Governmental Entities, but only at the request, direction and authorization of the SIPA Executive Director. Collaborate with Eligible Governmental Entities to market services developed under Work Orders or Task Orders to end users of portal online services; iii. Article 1, Section B.1. (Portal Services), subsection (g) is hereby deleted in its entirety and replaced with the following:. g. The agreement of Contractor to Task Orders or Work Orders under the EGE agreements, as evidenced by Contractor's signature, will be required before such Orders are effective. C. Task Order Consideration and Portal Funding; Portal Services Fees and Charges. 2 i. Article 3, Section B.1 (Collection of Fees and Transaction Charges) is hereby deleted in its entirety and replaced with the following text: Collection of Fees and Transaction Charges. Contractor shall collect Statutory Fees and Transaction Fees from Users of services approved for assessment of a Transaction Fee (e.g., for electronic record delivery or electronic transaction filing); such fees shall be recommended by Contractor in consultation with EGE, but are subject to the approval of SIPA. Contractor shall establish an accounting capability for Total Fee collection and distribution functions. This accounting capability shall include a numbered chart of accounts, books of original entry of all transactions, appropriate subsidiary ledgers, a general ledger that includes to -date postings, and an audit trail through financial statements. The accounting capability for Total Fee collection and distribution functions shall also include reports, both summary and detailed, that reasonably serve the needs of the EGEs for balancing purposes. Such reports shall be developed by the Contractor in consultation with the EGE. ii. The first paragraph under Article 3, Section B.2. (Portal Accounts), subsection (b)(ii), as amended by the First Amendment to the Contract, is hereby deleted in its entirety and replaced with the following text: A Contract administration fee payable monthly to SIPA of $37,500 per month, plus seven percent (7 %) of Net Revenue received for the applicable month by the Portal from Task Orders, but specifically excluding revenue from Task Orders issued by SIPA, during that month; a priority for SIPA's expenditure of amounts in excess of SIPA operating expenses shall be to purchase additional Portal services via Task Orders. iii. Article 3, Section B.2. (Portal Accounts), subsection (b)(iii) is hereby deleted in its entirety and replaced with the following text: All operating and administrative expenses for the State Portal including but not limited to load testing for portal applications and web pages, disaster recovery planning, and other expenses necessary for the successful operation of the State Portal. d. Rights in Data, Documents and Computer Software or Other Intellectual Property. i. Article 7, Section A. (License Rights Following the Termination for Cause or Expiration of the Contract), subsection (3) is hereby deleted in its entirety and replaced with the following text: load the Contractor Software on any servers for the Permitted Uses; 3 ii. Article 7, Section B. (Option of SIPA after Other Forms of Termination), subsection (3) is hereby deleted in its entirety and replaced with the following text: load the Contractor Software on any servers for the Permitted Uses; iii. Article 7, Section E. last sentence of the paragraph is hereby deleted in its entirety and replaced with the following text: Contractor shall provide an updated inventory of programs and versions of Third Party Software currently being used in the State Portal as part of the documentation stored in escrow with the source code. e. Dispute Resolution i. Article 16, first sentence is hereby deleted in its entirety and replaced with the following text: Except as herein specifically provided otherwise, disputes concerning the performance of this Contract which cannot be resolved by the Executive Director of the Statewide Internet Portal Authority and the General Manager of Colorado Interactive shall be referred in writing to the SIPA Board of Directors and NICUSA Management. f. Communications i. Article 21, all of the names and addresses are updated as follows: SIPA: Mr. John Conley, Executive Director 633 17' St., Suite 1610 Denver, CO 80202 Voice: 303 - 866 -4211 Copy to: Mr. Richard Westfall, Legal Counsel Hale/Westfall, LLP 1660 Wynkoop St., Suite 900 Denver, CO 80202 Voice: 720- 904 -6000 Contractor: Mr. Dan Morrison, President Colorado Interactive, LLC 60017`h St., Suite 2150 South 4 Denver, CO 80202 303 -534 -3468 Copy to: William Bradley, General Counsel NIC, Inc. 25501 West Valley Parkway, Suite 300 Olathe, KS 66061 Voice: 913- 754 -7002 g. Insurance - Contractor i. Article 24, Section 2.b.1, is hereby deleted in its entirety and replaced with the following text: The State Internet Portal Authority shall be named as a loss payee on all liability policies (except for Professional liability coverage). h. Choice of Law, Jurisdiction & Venue i. Section 4, Choice of Law is hereby deleted in its entirety and replaced with the following text: 4. CHOICE OF LAW, JURISDICTION, AND VENUE. The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation, execution, and enforcement of this contract. Any provision of this contract, whether or not incorporated herein by reference, which provides for arbitration by any extra judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and State laws, rules, and regulations that have been or may hereafter be established. Any legal action related to this agreement shall be brought in either a state or federal court within the City and County of Denver, Colorado. i. Amendment to Attachment B. i. The following text is hereby added to the Contract as a new Attachment B: 5 Task Order rates shall be as contained in Attachment B -1, incorporated herein for all purposes, and are based on a market analysis of rates charged by other vendors providing comparable government services to those of the Contractor, under an arrangement similar to that established by the Contract. A market analysis will be conducted by Contractor and rate recommendations shall be submitted to SIPA for approval on an annual basis to ensure currency with prevailing market rates. j. Items Added to the Contract. The following provisions are hereby added to the Contract as new. Article 34: Second Amendment Additions: i. There is hereby agreed a new Article 34, Section A added to the Contract as follows: A. Operational Availability of Colorado goy. The availability of the Colorado.gov homepage is critical to the success of SIPA and the Portal, and therefore, shall have a public availability of 99.9 percent except for routine and/or scheduled maintenance, the availability of dependent third party systems, the availability of essential services at the State Data Center, or other factors outside of Contractor's reasonable control. The Executive Director of SIPA shall receive monthly written reports detailing the availability of the home page www.colorado.gov. Any deviation from the required uptime should be explained in a monthly written report to the Executive Director of SIPA. Three (3) consecutive months of less than 99.9 percent availability will require a detailed plan to correct such deviation within thirty (30) days. Six (6) consecutive months of less than 99.9 percent availability may result in a financial penalty. If a financial penalty is to be levied, it will be calculated using the following formula: Average Net Revenue per Transaction (ANRT) based on a rolling previous twelve (12) month time frame, times the Average number of Transactions per Hour (ATH) over the same twelve (12) month time frame, times the number of hours of outage (NoH) (rounded to the nearest hour), times seven percent (7 %). (ANRT x ATH x NoH) x.07 = Assessed Penalty ii. There is hereby agreed a new Article 34, Section B added to the Contract as follows: B. Operational Availability of Transaction Payment Engine. Many of the applications that citizens rely on require the transaction payment engine (TPE) to be fully functional and therefore, the TPE shall have availability of 99.9 percent except for routine and scheduled maintenance, the availability of dependent third party systems such as merchant processors, the availability of essential services at the State Data Center, or other factors outside of Contractor's reasonable control. The Executive Director of SIPA shall receive monthly written reports of the availability of the TPE. The Executive Director of SIPA should be notified via email within Col j ' sixty (60) minutes if the TPE is not operational for greater than thirty (30) minutes. The notification should include when the TPE went offline, the expected time of resolution, and individuals to contact for additional information. Financial penalties may result if the TPE is ofIline or unavailable such that it does not meet the required availability; the financial penalties will be calculated using the following formula: Average Net Revenue per Transaction (ANRT) based on a rolling previous twelve (12) month time frame, times the Average number of Transactions per Hour (ATH) over the same twelve (12) month time frame, times the number of hours of outrage (NoH) (rounded to the nearest hour), times seven percent (7 %). (ANRT x ATH x NoH) x.07 = Assessed Penalty iii. There is hereby agreed a new Article 34, Section C added to the Contract as follows: C. Operational Availability of Vital Applications and Websites. There are many applications and websites that provide vital services to the citizens of Colorado. The goal is that each EGE application developed and hosted by the Contractor should have a public availability of 99.9 percent, excluding maintenance, availability of dependent third party systems, the availability of essential services at the State Data Center, or other factors outside of Contractor's control. The Executive director should be notified promptly via email if any of these applications and/or websites are unavailable for greater than two (2) hours during normal portal business hours, and greater than four (4) hours during portal non - business hours. All reasonable efforts must be made by Contractor to bring applications back online as quickly as reasonably possible. iv. There is hereby created a new Article 34, Section D added to the Contract as follows: D. Outage Notification. Outage notification shall be documented and follow the standard notification format used by Contractor. These notifications should include the following information at least, to the extent known: date of outage, cause of outage, expected time frame of resolution, person responsible for resolution or primary point of contact, websites and/or applications affected, and a list of user groups who have been notified. V. There is hereby created a new Article 34, Section E added to the Contract as follows: Chance Control Process and Procedures. Contractor must have a standardized change control process in place that is furnished yearly to the Executive Director of SIPA. The change control process will cover changes to the information technology hardware and software 7 infrastructure critical for the routine operation of Portal online applications and services. vi. There is hereby created a new Article 34, Section F added to the Contract as follows: F. Content Management System Training. Training users on the Content Management System is important to its success, and as such Contractor should report monthly statistics on the training program. This reporting should include at least the following: number of users trained during the previous month, number of classes held during the previous month, number of classes scheduled for the upcoming month and the wait list for training. vii. There is hereby created a new Article 34, Section G added to the Contract as follows: G. Disaster Recovery Plan. Contractor must have a Disaster Recovery Plan and this plan shall be shared with the Executive Director of SIPA (a) on a yearly basis and (b) as changes are made to the plan. The Disaster Recovery Plan should be tested by Contractor at least once a year. The results shall be discussed with the Executive Director of SIPA. viii. There is hereby created a new Article 34, Section H added to the Contract as follows: H. Customer Satisfaction Reporting. Contractor shall establish, with input from SIPA, a customer satisfaction report template to use in reporting quarterly the portal's customer satisfaction. Result will be shared quarterly with the Executive Director of SIPA. This report shall indicate the average satisfaction rate of customers for the portal home page and for key applications developed on behalf of government agencies. It is understood that the customers for these two categories are separate and distinct. The report for portal home page satisfaction shall include factors such as frequency of use, navigation, appearance, content, and comments, and other factors as appropriate. The report for application development shall include overall satisfaction score, satisfaction with status reporting, satisfaction with project management, timeliness of development, quality of application, and other appropriate items. 3. Miscellaneous Provisions. a. Limited Amendment. Except as expressly provided for otherwise herein by this Amendment, all terms and conditions of the Contract, and first amendment thereto, shall remain unchanged and in full force and effect. The parties hereby ratify the Contract as now twice amended. N b. Counterparts; Facsimile Signature. This Amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which shall constitute one and the same instrument. Signatures to this Amendment may be transmitted by facsimile or scanned and emailed. 4. Amended and Restated Agreement The parties will cooperate following the signing of this Second Amendment, to produce an amended and restated version of the Agreement within six months of the signing, which incorporates into the original Agreement the changes from the First Amendment and from the Second Amendment, and which shall be dated as of the effective date of the Second Amendment. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have each executed and delivered this Amendment as of the date first written above. COLORAD ERACTIVE, LLC By: • Dan Morrison, President STATEWIDE IN T PO AUTH RITY By: ,/ n /Name: -, Q. rri � J %/ Title: ��CuG��i�e. 10 i 0 Attachment B -1 [To be furnished by Mr. Morrison] 10