Contract - State of Colorado and ARIS Corp.
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STATE OF COLORADO
DEPARTMENT OF HUMAN SERVICES
OFFICE OF INFORMATION TECHNOLOGY SERVICES
DEPT #
ROUTING # 99 IHA 00458
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CONTRACT
THIS CONTRACT, made this 2nd day of October, 1998, by and between the
State of Colorado for the use and benefit of the DEPARTMENT OF HUMAN SERVICES,
Office of Information Technology Services, 1575 Sherman St., 7th Floor, Denver,
Colorado 80203, hereinafter referred to as the State, and ARIS CORPORATION, P.O.
Box 4424, Bellevue, WA 98009-4224, (with a local business office at 717
Seventeenth Street, Suite 1510, Denver, CO 80202), hereinafter referred to as
the Contractor.
WHEREAS, authority exists in the Law and Funds have been budgeted,
appropriated and otherwise made available and a sufficient unencumbered balance
thereof remains available for payment in Fund Number 100, Appropriation Code
240; and
WHEREAS, required approval, clearance and coordination- has been
accomplished from and with appropriate agencies; and
WHEREAS, in accordance with the terms hereof, the parties desire to have
Contractor engineer, design, acquire, install, develop, test, and implement all
required hardware and software, develop and deliver training, and provide
helpdesk support considered necessary for the County Financial Management
System, hereinafter called CFMS, an automated financial management system for
use by the State and counties of Colorado; and
WHEREAS, in accordance with the terms hereof, the parties desire to have
Contractor provide maintenance of CFMS (application software, host environment
hardware/software, training, and helpdesk support) for one year and up to four
additional years at the State's option; and
WHEREAS, on July 27, 1998 the State issued Request for Proposal #
IHANC907015ITSX (the "RFP") seeking proposals from vendors for services for the
CFMS project; and
WHEREAS, in response to the RFP, the Contractor submitted its proposal
(the "Proposal") which was determined to be the most advantageous to the State,
taking into consideration the price and evaluation facto set forth in the RFP.
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NOW THEREFORE, it is here by agreed that
I. Statement of Work
A. The parties understand and agree that Exhibit A attached hereto
consists of the RFP and that Exhibit B attached hereto consists of the
Proposal The Contractor shall provide to the State the services and
deliverables set forth herein and in Exhibits A and B, at the prices and
rates set forth in Exhibits B and C.
B. In the event of conflict between the terms of this Agreement and the
provisions of Exhibits A and/or B, the terms of this Agreement shall
control. In the event of a conflict between the provisions of Exhibit A
and the provisions of Exhibit B, the provisions of Exhibit A shall
control.
C. The Contractor shall provide the services hereunder in accordance
with the workplan with deliverables schedule and costs attached hereto
as Exhibit C. In the event of conflict between the terms of this
Agreement and the provisions of Exhibit C, the terms of this Agreement
shall control. In the event of a conflict between the provisions of
Exhibit C and the provisions of Exhibits A and/or B, the provisions of
Exhibit C shall control.
II. PROJECT STAFF
In the performance hereunder, unless otherwise approved by the State,
which approval by the State shall not unreasonably withhold, the
Contractor shall use and provide the key project staff proposed in
Exhibit B. It is agreed that the key project staff proposed shall be
provided by the Contractor for this project and approved by the State
and any changes in key staffing must also be approved by the State.
The State shall retain the right to request, within a reasonable period
of time, the replacement of any of the Contractor personnel whose
qualifications or performance does not meet the qualifications or
performance necessary for the successful and timely completion of the
project. Upon receipt of such written request, the Contractor shall
comply with such a request within 30 days, or take other corrective
action as may be negotiated with the State.
III. Ownership of Materials and Information
A. During the term of this Agreement, as a result of Contractor's
efforts under this Agreement, Contractor may generate ideas, inventions,
suggestions, copyrightable materials or other information ("Intellectual
Property") which fall into one of two categories:
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1. Intellectual Property specifically related to the subject
mattes of Contractor's efforts under this Agreement, and
directly related to, of incorporated into, the work product to
be produced by Contractor and delivered to the State under this
Agreement Title to Intellectual Property described in this
paragraph 111.A I., that is developed solely by Contractor, or
jointly by Contractor and the State, shall remain in the State
at all times Contractor agrees to disclose and assign to the
State, in a term satisfactory to the State, all such
Intellectual Property, whether made alone or in conjunction with
others, and to render such assistance as the State may
reasonably require to perfect such assignments and to protect
such Intellectual Property. The parties understand and agree
that any such property, if developed from federal funds, may be
the property of the Federal Government. If such be the case, the
State reserves a royalty-free, non-exclusive, and irrevocable
license to reproduce, publish, and otherwise use and to
authorize others to use for the State's and for the Federal
Government's purposes, any such intellectual property; and
2. Intellectual Property of general applicability, whether or not
related to, or incorporated into, the work product to be
produced by Contractor and delivered to the State under this
Agreement. Title to Intellectual Property described in this
paragraph III.A.2., including any Intellectual Property
developed by Contractor prior to or outside of this Agreement,
shall remain in Contractor. To the extent such Intellectual
Property is incorporated into the work product to be produced by
Contractor and delivered to the State under this Agreement,
Contractor grants and the State hereby accepts, a perpetual,
worldwide, royalty-free, non-exclusive license to use all such
Intellectual Property as incorporated into the Contractor work
product."
B. The State will be the owner of the license provided by the contractor
on all third party proprietary operating and vendor software package(s)
which are provided to the State hereunder.
C. The State grants the Contractor, to the extent authorized by law,
rights to royalty-free use of the CFMS Project software and
documentation in the bidding and performance of other government system
transfer or development projects, provided such use does not result in
any additional cost to the State, compromise the performance of this or
any other State project, or disclose any restricted State or personal
data obtained by the Contractor in performance of this contract.
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D. Records Retention and Availability All contractor records. documents,
communications and other materials related to the performance of this
contract shall remain the property of tile Contractor to ensure the
Contractor "s ability to comply with all State, Federal and SIC
corporate reporting requirement, but shall be made available to the
State for review and audit as defined in Section VI paragraph H of this
Contract "Inspection". All such records shall be maintained by the
contractor, for a period of 4 years from November I, 1998.
E. Approval Process for Deliverables: The State agrees to review the
final deliverable document, product, or service within five (5) to ten
(10) working days of receipt, as applicable, thereof by the State.
Acceptance/rejection by the State will be indicated by a Letter of
Acceptance/Rejection citing the specific deliverables that are
approved/or not approved. Any approvals required by the Federal
government are excluded from this agreement and may add additional time
for review. Should protracted review by the Federal government result in
an impact on the project schedule, parties agree to negotiate a revised
schedule based on the delay.
IV. MANDATORY FIXED PRICE DELIVERABLES
The Contractor shall provide an operational system that meets the
requirements specified in the RFP (EXHIBIT A), and in accordance with
the requirements (technical and functional) defined in the detailed
design, required under Exhibit C, and accepted and approved by the State
for an amount not to exceed $5,170,937.
The development process for the system shall take no longer than eight
(8) months from November 2, 1998 and the Contractor shall allow for a
subsequent six (6) month acceptance period. The Contractor shall
provide, upon acceptance of a fully operational system, one (1) year of
mandatory maintenance, support and operation for the system as defined
in the RFP (warranty period).
All fixed price deliverables are subject to the State's acceptance
before they can be determined as "final". The list of fixed price
deliverables for the System is included in EXHIBIT C.
V. OPTIONAL MAINTENANCE AND SUPPORT
The Contractor shall provide support (including, but not limited to
on-going application software, host environment hardware/software,
training, and help desk support) for up to four (4) years, at the
State's option, exercisable on a year by year basis, beginning at the
conclusion of the warranty period, and ending December 31, 2004 This
request for maintenance and support can be made on a year by year basis
up to four (4) years as specified in the RFP (EXHIBIT A)
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Optional Maintenance acrd Support for the System is not to exceed
$4,054,253 for a period of 4 years ($9 9,372 for Year l - 2001, $986,890
for Year 2 - 2002, $1,()37,969 for Year 3 - 2003, and $1,090,022 for
Year 4 - 2004). to be exercised at the State's option This amount is the
Contractor's fixed price bid for up to 4 years of maintenance and
support The additional 4 years of optional support and maintenance will
require a plan set forth by the Contractor for the State's approval,
which lists deliverables This plan and the procedure for the
year-by-year exercise of the optional maintenance and support shall be
finalized between the parties by a formal amendment hereto. The
Contractor shall provide the plan to the State not later than September
30, 2000
Financial obligations of the State of Colorado payable after the current
fiscal year are contingent upon funds for that purpose being
appropriated, budgeted, and otherwise made available
VI. MISCELLANEOUS PROJECT PROVISIONS
A. BILATERAL CHANGE ORDER LETTERS
Bilateral changes within the general scope of the contract may
be executed using the simplified change order letter process
described in this paragraph and the model letter attached as
EXHIBIT D for any of the following reasons:
1. Where the agreed changes result in no adjustment to the
price, delivery schedule, or other terms and conditions
of the contract, the change letter will contain a mutual
release of claims for adjustment of price, cost, time
for performance, or other terms and conditions, whether
based on costs of changed work or direct or indirect
impacts on unchanged work, as a result of the change; or
2. Where the changes to the contract are price based on the
unit prices to be paid for the goods or services in
EXHIBIT C of the contract (unit prices refers to such in
EXHIBIT B); or
3. Where the changes to the contract are priced based on
the established catalog prices generally extended to the
public, or on prices or rates set by law or regulation.
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The written bilateral change order letter WILL be
substantially in tile form at EXHIBIT D, must bear tile
signature of' tile authorized agency official tile
contractor, and--except where the parties agree on the
face of' tile change order that no price/cost, schedule,
or other contract adjustments are due the contractor-the
State Controller or Ills designee The change order
letter shall refer to the basic contract and include a
detailed description of' the changes to the contract,
tile price or cost of ceiling adjustment, the effective
date, and (where applicable) the time within which the
changed work must be done. Other bilateral modifications
to this contract not within the scope of this paragraph
must be executed by formal amendment to the contract,
approved in accordance with State law.
B LIQUIDATED DAMAGES
In the event the Contractor does not perform its obligations under this
Contract, the State will incur major costs to maintain the functions
that would have otherwise been performed by the Contractor. The parties
understand and agree that the damages herein provided for are difficult
to establish and the below stated damages are a reasonable approximation
of actual damages.
If the Contractor fails to meet the performance specifications herein,
liquidated damages may be imposed by the State against the Contractor
for Project Delays, System Down Time, Contractor Nonresponsiveness
and/or Late Deliverables. The State may require direct payment of such
liquidated damages from the Contractor. The parties agree that the
damages from breach of this contract are difficult to prove or estimate,
and the amount of liquidated damages specified herein represents a
reasonable estimation of damages that will be suffered by the State from
late performance, including costs of additional inspection and
oversight, and lost opportunity for additional efficiencies that would
have attended on-time completion of performance. The following represent
circumstances under which liquidated damages may be imposed on the
Contractor by the State:
1. LIQUIDATED DAMAGES FOR SYSTEM DOWN TIME AND NON
RESPONSIVENESS
The parties understand and agree that it is critical for
the CFMS host system to maintain continuous online
availability which meets the response time requirements
in Section 5 of the RFP (EXHIBIT A). It is also critical
that system support be available seven (7) days a week,
twenty-four (24) hours a day. Therefore, at any time
where due to the fault of the Contractor, the
Contractor's unscheduled production host environment
[host system(s) and back-up system(s)] is unavailable,
the liquidated damages shall be as follows:
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a Down time during the business day 7:00 am to 7 pm.
Monday - Friday) in excess of two (2) hours $1,00 per
hour
b Down time other than business day in excess of' four
(4) hours $ 1,000 per hour
Commencing with the roll-out of the application software
into production, during the term hereof, the following
schedule applies for any continuous 24 month period
beginning on the date of the first individual occurrence
of down time:
Damages for the first individual occurrence of
down time shall be assessed at a factor of 75%.
Thereafter, successive instances of down time
shall have damages assessed at a factor as
follows.
Second and Third - 85%
Fourth through Sixth - 95%
Seventh through Twelfth - 125%
Thirteenth and above - 200%
c. The damage provisions of this section shall be
limited to the amount as set forth in section VI(E)(2)
of this Agreement.
2. LATE DELIVERABLES
Subject to the limitations of liability provisions as set forth
in section VI(E)(2) of this Agreement, in the event that the
Contractor fails to complete and submit a required deliverable
as defined in Exhibits C or E, $3,000 per day liquidated damages
may be applied by the State for the late submission of the
deliverable for each day beyond the scheduled due date for the
deliverable. This provision also applies to deliverables that
are deemed unacceptable by the State and the re-submission of
the deliverable is late due to the State's rejection. This
provision shall be limited to those items in EXHIBITS C and E
identified by an asterisk (*).
The remedy specified in this clause does not limit the State's
right to exercise other remedies under this contract, or at law
or equity.
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3. FAILURE TO MEET SYSTEM IMPLEMENTATION DATE
In the event the Contractor fails to have CFMS functioning on
July I, 1999 in accordance with the CFMS Project Workplan, a
$10,000 per day liquidated damages may he applied by the State
for each day beyond July 1, 1999 This section shall be limited
to the amounts as set forth in Section (Vl)(E-)(2) of this
Agreement
C BILLING, AND PAYMENT TERMS
1. The Contractor shall bill the State according to the agreed-upon
payment schedule in EXHIBITS C and E.
2. Payment pursuant to this contract shall be made as earned, in
whole or in part, from available funds in an amount not to
exceed * for the purchase of the within described hardware,
software, and consulting services, and the mandatory fixed price
and optional maintenance and support for 4 years after
expiration of the mandatory 12 month warranty period. The
liability of the State, at any time shall be limited to the
encumbered amount remaining of such funds.
*
*
*
*
*
*
*
No unused funds in any one fiscal year may be extended for use
in a subsequent year without the prior written consent of the
State.
See the "Dollar Analysis" section of Exhibit C for a full
reconciliation of prices, use of funds, and time periods.
3. The State may establish forms to be followed and used by
the Contractor in billing for services, equipment, and
deliverables provided hereunder. Invoices shall be
submitted to the State by the Contractor on a monthly
basis for work performed in the previous month. The
State shall pay amounts due within 45 days of the
receipt of correct billings.
Financial obligations of the State of Colorado payable
after the current fiscal year are contingent upon funds
for that purpose being appropriated, budgeted, and
otherwise made available
*Portions of this agreement have been omitted pursuant to a request for
confidential treatment pursuant to SEC Rule 24b-2, to be filed separately with
the SEC no later than April 10, 2001.
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4 Trough system implementation, for deliverables by the
Contractor, as set forth in Exhibit C, there shall be up
to a twenty percent (20%) holdback, excluding hardware.
non-CFMS software, and facility costs, to be retained by
the State pending roll-out, integration and acceptance
of each of' the major subsystems The 20% holdback will
be distributed after the System is fully operational and
accepted by the State, and the integrated solution as
identified in the RFP, has been delivered according to
the terms and specifications hereof Payments for
Facilities and Facilities Support shall be made based on
the expenses incurred and as billed monthly by the
contractor. Hardware and non-CFMS software will be
billed as expenses incurred and paid based on the
State's acceptance and approval of the deliverable.
Expenses subject to this provision shall be limited to
those items in Exhibit C identified by a pound sign (#).
D. TAXES
The State is exempt from all federal excise taxes and from all state and
local government use taxes. When materials are purchased by the
Contractor for the benefit of the State, such exemptions apply except
that in certain political subdivisions (for example - City of Denver)
the Contractor may be required to pay sales or use taxes even though the
ultimate product or service is provided to the State. These sales or use
taxes will not be reimbursed by the State.
E. DAMAGES
1. Notwithstanding any language to the contrary, no interpretation
hereof shall be allowed to find the State or any agency thereof
has agreed to the payment of damages or penalties upon the
occurrence or non-occurrence of a contingency.
2. This section is hereby made bold and conspicuous for the benefit
of both parties. In no event shall the contractor's contractual
liability to the State for damages of any nature exceed the
total charges payable under this contract, as it may be amended
from time to time. This limitation of liability provision, and
any other limitation or exclusion of damages in this contract,
do not limit or exclude the contractor's liability for
infringement or for death or bodily injury or damage to tangible
property arising out of contract performance and caused by the
contractor, its employees, agents, or subcontractors.
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F. WARRANTY OF DELIVERABLES
1 Notwithstanding prior acceptance by the State of any
deliverables) under this contract, the Contractor
expressly warrants all documentation, reports and other
items as correct and complete within the terms of this
contract The Contractor shall warrant custom application
software free of significant problems or bugs after the
State operates the System through a complete 12 month
cycle or through December 31, 2000, whichever comes
later. The commencement date of operation of the System
shall be determined by the parties based upon the
acceptance protocol developed under Task 8 of EXHIBIT C.
No provision hereof shall be given effect which attempts
to exclude, modify, disclaim or otherwise attempts to
limit implied warranties of merchantability and fitness
for a particular purpose by the Contractor.
2. Upon its recognition of any significant error,
deficiency, or defect in the performance by the
Contractor, the State shall give notice to the
Contractor in writing, and cite in the notice the
specific deficiency. After such notice, the Contractor
shall promptly respond with a plan to correct any
deficiencies cited in the notice. If, in the exercise of
its reasonable discretion, the State finds that the plan
is inadequate to correct the deficiency, or if the
Contractor fails to diligently implement the plan or
correct the error, deficiency or defect, or the error
recurs, the State upon written notification to the
Contractor may act to correct the problem. Should the
State so act, the Contractor shall reimburse the State
for any costs it incurs from so acting and/or the State
may consider such deficiency(s) by the Contractor to be
a breach of this Contract.
3. The Contractor warrants that the software, firmware, or
supplies delivered, or services performed, under this
contract to be used before, during, and after the turn
of the century (January 1, 2000) are "Year 2000
compliant." "Year 2000 compliant" means fault-free
performance in the processing of date and date-related
(including, but not limited to calculating, comparing,
and sequencing) by all software products, firmware, and
supplies, individually and in combination as a system,
when used in accordance with the product documentation
provided by the Contractor. Fault-free performance
means:
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- Nor invalid car incorrect results or abnormal
termination prior to, during, and after January
1, 2000 as a result of date or date-related data
or data processing that represents or references
different centuries or more than one century;
and
- Proper calculation and handling of leap years;
and
- Except for normal user interfaces (e.g. four
digit date entry) identified in the Contractor's
documentation, such as date data processing
shall be transparent to the user.
In the event this warranty is breached, the State may elect to
(1) return the software or supply and receive a refund of the
purchase price (in the case of delivered software or supplies)
or (2) require the contractor to make all code revisions or
repairs/replacements or firmware or supplies, as well as
revisions to associated documentation, at no cost to the State
in order to ensure that the software, firmware or supplies are
Year 2000 compliant so long as notice of such defect is provided
no later than 90 days after discovery. This warranty shall
survive acceptance of the software, firmware, or supplies and is
not subject to any disclaimer or limitation of warranty or other
limitation of the contractor's or vendor's liability which may
be specified in this contract or purchase -order, or exhibits,
appendices, or any other document attached or incorporated in
this contract by reference. The remedies specified therein shall
not be exclusive remedies and shall not limit any other remedy
at law or equity available to the State.
All remedies are cumulative and may be selectively and
collectively enforced by the State. Enforcement of one remedy
does not preclude enforcement of any or all other remedies.
G. FORCE MAIEURE
Neither the Contractor nor the State shall be liable to the
other for any delay in, or failure of performance of, any
covenant or promise contained in this contract, nor shall any
delay of failure constitute default or give rise to any
liability for damages if, and only to the extent that, such
delay or failure is caused by "force majeure." As used in this
contract "force majeure" means fire, explosion, action of the
elements, strike, interruption of transportation, government
interference, rationing, court action, illegality, or any other
cause which is beyond the control of the party affected and
which, by the exercise of reasonable diligence, could not have
been prevented by the party affected. The existence of such
causes of delay or failure shall extend the period for
performance to such extent as may be necessary to enable the
complete performance in the exercise of reasonable diligence
after the causes of delay or failure have bee n removed. Nothing
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in this paragraph shall prevent the State from covering its
requirements from another Contractor during the period of delay.
H. INSPECTION
Upon notification, except in exceptional circumstances, the
State or its authorized representatives has the right to inspect
or otherwise evaluate all phases of performance under this
contract and in any premises in which it is being performed
Upon ten (10) days notice, except in exceptional circumstances,
by the State to the Contractor, during any working day between
the hours of 7:30am - 5:00pm, all documentation, including
accounting records, related to this Contract shall be available
locally, within the Denver metro area, for and subject to
review, inspection, copying, and audit by the State or any other
personnel duly authorized by the State.
The authorized parties inspecting or otherwise evaluating
performance, the Contractor's documents shall abide by the
Contractor's security policies.
I. FUNCTIONALITY
EXHIBIT A shall govern as to functionality to be contained in
CFMS. EXHIBIT B shall govern as to how that functionality will
be provided in CFMS. After approval thereof by the State, the
provisions of the Detailed Design Document (a deliverable
hereunder) shall control over the provisions of EXHIBITS A and
B.
J. TERM
This contract shall be effective from November 2, 1998 to
December 31, 2004.
In the performance herein by the Contractor, time shall be of
the essence.
K. PRIME CONTRACTOR AND SUBCONTRACTORS
1. The Contractor shall assume ALL responsibility for the delivery
and quality of the products and services provided by this
contract, regardless of whether or not the Contractor hires
subcontractors. The Contractor shall be the sole point of
contact with the State with regard to all matters covered by
this contract. The Contractor shall not subcontract any work or
services provided by this contract without the express written
consent of the State prior to initiating the subcontract.
Subcontracts permitted by the State shall be subject to the
requirements of this Contract, and the
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Contractor is responsible for all subcontracting arrangements
and the delivery of services as set forth in this Contract
Contractor shall be responsible for the performance of' any
subcontractor Failure of the subcontractor to provide services
in accordance with the requirements of this contract shall be
the responsibility of the Contractor. Contractor warrants and
agrees that any subcontract resulting from its performance under
the terms and conditions of this Contract, shall include a
provision requiring the said subcontractor to abide by the terms
and conditions hereof, as well as all other applicable federal
and State laws, and rules and regulations pertinent hereto that
have been or may hereafter be established. Also, Contractor
warrants and agrees that all subcontracts shall include a
provision that the subcontractor shall indemnify and hold
harmless the State of Colorado, Department of Human Services.
2. The parties understand and agree that the September 2, 1998
memorandum from ARIS's Legal Department (in Tab 8 of Exhibit B)
shall not apply to this contract. The license(s) from Oracle
Corporation to be supplied hereunder by the contractor to the
State shall comply with the terms and conditions of the sample
agreement attached hereto as Exhibit F.
L. SUPPORT
At the option of the State, support and maintenance of the
state-wide software applications can be out-sourced with the
Contractor. The State retains the option to exercise these 4
optional years of maintenance and support. It is expected that
the Contractor will provide the maintenance and support for the
first year as part of this contract and the 4 optional years
will be exercised in one year increments.
M. NOTICE AND REPRESENTATIVES
Representatives
For the purposes of this Contract, the individuals identified
below are hereby designated representatives of the respective
parties. Either party may from time to time designate in writing
a new or substitute representative(s):
For the State: For the Contractor:
Patrick Horton Mark Devlin
Manager, Office of Operations Regional Consulting Manager
1575 Sherman, 60th Floor 717 17th St., Suite 1510
Denver, CO 80203 Denver, CO 80202
and
Henry D. Wharton
Chief Information Officer
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1575 Sherman, 7th Floor
Denver, CO 80203
Notice
All notice required to be given by the parties hereunder shall
be given by certified or registered mail, return receipt
requested, to the individuals at the addresses set forth below.
Either party may from time to time designate in writing a
substitute person(s) or address to whom such notices shall be
sent
N. DISPUTES
Except as herein specifically provided otherwise, disputes
concerning the performance of this Contract which cannot be
resolved by the designated contract representatives shall be
referred in writing to a senior departmental management staff
designated by the department and a senior manager designated by
the Contractor. Failing resolution at that level, disputes shall
be presented in writing to the executive director and contractor
chief executive officer for resolution. This process is not
intended to supersede any other process for the resolution of
controversies provided by law.
O. REMEDIES
The Executive Director of the State or designee may exercise the
following remedial actions, in addition to all other remedial
actions authorized by law or found in this contract, should s/he
find the Contractor substantially failed to satisfy the scope of
work, following written notification to the Contractor.
Substantial failure to satisfy the scope of work shall be
defined to mean incorrect or improper activities or inaction by
Contractor. These remedial actions are as follows:
1. Withhold payment of disputed amounts to Contractor until
the necessary services or corrections in performance are
satisfactorily completed;
2. Request the removal from work on the contract of
employee(s) and/or agent(s) of Contractor whom the
Executive Director or designee reasonably justifies as
being incompetent, careless, insubordinate, unsuitable,
or otherwise unacceptable, or whose continued employment
on the contract s/he deems to be contrary to the public
interest or not in the best interest of the State;
3. Deny payment or recover reimbursement for those services
or deliverables which have not been performed and which
due to circumstances caused by Contractor cannot be
performed or if performed would be of no value to the
State. Denial of the amount of payment shall be
reasonably related to the amount of work or deliverable
lost to the State;
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4. Incorrect payments to the Contractor due to omission,
error, fraud, and/or defalcation shall be recovered from
the Contractor by deduction from subsequent payments
under this Contract or other contracts between the State
and the Contractor, or by the State as a debt due to the
State or otherwise as provided by law
5. Terminate the Contract for cause without compensation
for termination costs If the State terminates the
Contract for cause, it WILL first give written notice to
the Contractor, stating the reasons for cancellation,
procedures to correct problems, if any, and date the
Contract will be terminated in the event problems have
not been corrected.
a) In the event this Contract is terminated for
cause, the State will only reimburse the
Contractor for acceptable work or deliverables
received to date of termination
b) In the event this Contract is terminated for
cause, final payment to the Contractor may be
withheld at the discretion of the State until
completion of a final audit.
6. This contract is subject to immediate termination by the
State in the event that the State determines that the
health, safety, or welfare of persons receiving CDHS
services may be in jeopardy. Additionally, the state may
immediately terminate this contract upon verifying that
the Contractor has engaged in or is about to participate
in fraudulent acts.
P. TERMINATION
Should the State exercise its right hereunder to terminate this
Contract for Financial Exigency or for Convenience, within 10
days of the termination date (or such other period as the
parties may mutually agree upon), the Contractor shall be
entitled to be paid a reasonable amount for costs incurred. The
Contractor shall submit to the State a statement of outstanding:
1) reasonable and necessary costs incurred in the performance of
the work up to the effective termination date, 2) reasonable and
necessary costs of settling and paying termination settlement
proposals not to exceed 30 days pay for each subcontractor, 3)
reasonable profit on the completed, but undelivered work up to
the date of termination and, 4) reasonable and necessary
accounting, legal, clerical and other expenses necessary for
preparation of termination settlement proposals.
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<PAGE> 16
Q. Exhibits
The following exhibits are made part of this Contract
EXHIBIT A Request for Proposal (RI,_P) - because of its
voluminous size, this EXHIBIT A is not
attached hereto, however, each party
acknowledges being in possession of an
original copy of EXHIBIT A.
EXHIBIT B Technical and Cost Proposal - because of its
voluminous size, this EXHIBIT B is not
attached hereto, however, each party
acknowledges being in possession of an
original copy of EXHIBIT B.
EXHIBIT C Deliverable Schedule and Costs - attached
hereto
EXHIBIT D Task Order Format - attached hereto
EXHIBIT E To Be Added after Detailed Design for the
Optional Years Deliverable Schedule and Costs
EXHIBIT F Sample Oracle Corporation license agreement
GENERAL PROVISIONS
SPECIAL PROVISIONS
Page 16 of 33
<PAGE> 17
[Insert 6-5]
GENERAL PROVISIONS
The following clauses apply to this contract. In some instances, these
general clauses have been expanded upon in other sections of this
contract. To the extent that other provisions of the contract provide
more specificity than these general clauses, the more specific provision
shall control.
A. Federal Funds Contingency
Payment pursuant to this contract, if in federal funds, whether in whole
or in part, is subject to and contingent upon the continuing
availability of federal funds for the purposes hereof. In the event that
said funds, or any part thereof, become unavailable as determined by the
State, the State may immediately terminate this contract or amend it
accordingly.
B. INDEPENDENT CONTRACTOR
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 THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED
EMPLOYMENT TAXES AND INCOME TAX WITHHOLDING, INCLUDING ALL FEDERAL AND
STATE INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID PURSUANT TO THIS
CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES
ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE
CONTRACTOR OR A THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE
DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE. CONTRACTOR SHALL
HAVE NO AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY
AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH
HEREIN. CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKER'S COMPENSATION
(AND SHOW PROOF OF SUCH INSURANCE) 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.
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<PAGE> 18
C. Beneficiary
Except as herein specifically provided otherwise, this contract shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns.
It is expressly understood and agreed that the enforcement of the terms
and conditions of this contract and all rights of action relating to
such enforcement, shall be strictly reserved to the State and the named
contractor. Nothing contained in this agreement shall give or allow any
claim or right of action whatsoever by any other third person. It is the
express intention of the State and the contractor that any such person
or entity, other than the State or the contractor, receiving services or
benefits under this agreement shall be deemed an incidental beneficiary
only.
D. Insurance - Contractor
1. During the term of this contract, and any extension(s) hereof,
contractor agrees that it will keep in force an insurance policy
or policies, issued by a company authorized to do business in
Colorado, in the kinds and minimum amounts specified below
unless specifically waived herein. In the event of cancellation
of any such coverage, the contractor shall immediately notify
the State of such cancellation.
a. Standard Worker's Compensation and Employers' Liability
as required by State statute, including occupational
disease; covering all employees on or off the work site,
acting within the course and scope of their employment.
b. General, Personal Injury, Professional, Automobile
Liability (including bodily injury, personal injury and
property damage) with minimum coverage of:
(1) 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.
(2) Annual Aggregate Limit policy: Not less than
$1,000,000 plus agreement that the contractor
will purchase additional insurance to replenish
the limit to $1,000,000 if claims reduce the
annual aggregate below $600,000.
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<PAGE> 19
2. The State of Colorado shall be named as an additional insured on
all liability policies.
3. The insurance shall include provisions preventing cancellation
without thirty (30) calendar days prior written notice to the
State by certified mail.
4. Upon execution of this contract, the contractor shall provide to
the State additional insured endorsements and certificates of
the required insurance coverage.
5. The contractor shall provide such other insurance as may be
required by law, or in a specific solicitation.
6. If the contractor is a "public entity" within the meaning of the
Colorado Governmental Immunity Act, 24-10-101, et seg.. C.R.S..
as amended ("Act"); the contractor shall maintain such
insurance, by commercial policy or selfinsurance, as is
necessary to meet the contractor's liabilities under-the Act.
Proof of such insurance shall be provided upon request by the
State.
E. Contractor Representations - Licenses/Approvals/insurance
The contractor certifies that, at the time of entering into this
contract, it has currently in effect all necessary licenses,
certifications, approvals, insurance, etc. required to properly provide
the services and/or supplies covered by this contract. Additionally, all
employees of the contractor performing services under this contract
shall hold the required license or certification, if any, to perform
their responsibilities. Any revocation, withdrawal or nonrenewal of
necessary license, certification, approval, insurance, etc. required for
the contractor to properly perform this contract, shall be grounds for
termination of this contract by the State.
The contractor further certifies that, if a foreign corporation, a
limited liability company, a limited liability partnership or a limited
liability limited partnership, it currently has a Certificate of Good
Standing or Certificate of Existence to do business in Colorado. Proof
of such certification shall be provided upon request by the State.
F. Records Maintenance
The contractor shall maintain a complete file of all records, documents,
communications, and other materials which pertain to the operation of
the
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<PAGE> 20
program/project or the delivery of services under this contract. Such
files shall be sufficient to properly reflect all direct and indirect
costs of labor, materials, equipment, supplies and services, and other
costs of whatever nature for which a contract payment was made. These
records shall be maintained according to generally accepted accounting
principles and shall be easily separable from other contractor records.
G. Records Retention and Availability
All such records, documents, communications, and other materials shall
be the property of the State unless otherwise specified herein and shall
be maintained by the contractor, for a period of three (3) years from
the date of final payment or submission of the final federal expenditure
report under this contract, unless the State requests that the records
be retained for a longer period, or until an audit has been completed
with the following qualification. If an audit by or on behalf of the
federal and/or state government has begun but is not completed at the
end of the three (3) year period, or if audit findings have not been
resolved after a three (3) year period, the materials shall be retained
until the resolution of the audit findings.
H. Performance Monitoring
The contractor shall permit the State and any other governmental agency
authorized by law, or their authorized designee to monitor all
activities conducted by the contractor pursuant to the terms of this
contract. As the monitoring agency may in its sole discretion deem
necessary or appropriate, such monitoring may consist of intemal
evaluation procedures, reexamination of program data, special analyses,
on-site verification, formal audit examinations, or any other reasonable
procedures. All such monitoring shall be performed in a manner that will
not unduly interfere with contract work.
I. Audits
1. General. The contractor authorizes the State or its
representatives to perform audits and/or inspections of its
records at any reasonable time during the term of this contract
and for a period of three (3) years, (unless the State
determines a longer timeframe is required) following the date of
final payment under this contract, to assure compliance with its
terms and/or to evaluate the contractor's performance.
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<PAGE> 21
Any amounts which have been paid by the State which are found to
be improper in accordance with other terms of this contract
shall be immediately returned to the State or may be received in
accordance with other remedies.
2. Single Audit Clause. All state and local governments and
non-profit organizations receiving more than $300,000 from all
funding sources, that are defined as federal financial
assistance for single audit purposes, shall comply with the
audit requirements of OMB Circular A-128 (Audits of State and
Local Governments) or A-133 (Audits of Institutions of Higher
Education and Other Non-profit Organizations), whichever
applies.
J. Confidential of Records
The contractor shall protect the confidentiality of all records. and
other materials containing personally identifying information that are
maintained in accordance with this contract. Except as provided by law,
no information in possession of the contractor about any individual
constituent shall be disclosed in a form including identifying
information without the prior written consent of the person in interest,
a minor's parent, or guardian. The contractor shall have written
policies- -governing access to, duplication and dissemination of, all
such information. The contractor shall advise its employees, agents and
subcontractors, if any, that they are subject to these confidentiality
requirements. The contractor shall provide its employees, agents and
subcontractors, if any, with a copy or written explanation of these
confidentiality requirements before access to confidential data is
permitted.
K. Conflict of Interest
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 the State.
Thus, the contractor agrees to refrain from any practices, activities or
relationships which could reasonably be considered to be in conflict
with the contractor's fully performing his/her obligations to the State
under the terms of this contract, without the prior written approval of
the State.
In the event that the contractor is uncertain whether the appearance of
a conflict of interest may reasonably exist, the contractor shall submit
to the State a full
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<PAGE> 22
disclosure statement setting forth the relevant details for the State's
consideration and direction. Failure to promptly submit a disclosure
statement or to follow the State's direction in regard to the apparent
conflict shall be grounds for termination of the contract.
Further, the contractor (and subcontractors or subgrantees permitted
under the terms of this contract) shall maintain a written code of
standards governing the performance of its employees engaged in the
award and administration of contracts. No employee, officer or agent of
the contractor, subcontractor, or subgrantee shall participate in the
selection, or in the award or administration of a contract or
subcontract supported by Federal funds if a conflict of interest, real
or apparent, would be involved. Such a conflict would arise when:
a. The employee, officer or agent;
b. Any member of the employee's immediate family;
c. The employee's partner; or
d. An organization which employees, or is about to employ,
any of the above,
has a financial or other interest in the firm selected for award. The
contractor's, subcontractor's, or subgrantee's officers, employees, or
agents will neither solicit nor accept gratuities, favors, or anything
of monetary value from contractor's potential contractors, or parties to
subagreements.
L. Conformance with Law
The contractor shall at all times during the term of this contract
strictly adhere to all applicable federal and state laws and
implementing regulations as they currently exist and may hereafter be
amended. The contractor shall also require compliance with these
statutes and regulations in subcontract and subgrant agreements, if any,
permitted under this contract. Without limitation, these federal laws
and regulations include:
- Age Discrimination Act of 1975, 42 U.S.C. Sections 6101 et. se
q. and its implementing regulation, 45 C.F.R. Part 91;
- Age Discrimination in Employment Act of 1967, 29 U.S.C. 621-634;
- Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101
et sea.;
- The Drug Free Workplace Act of 1988, 1988,41 U.S.C. 701 et seg.;
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<PAGE> 23
- Equal Pay Act of 1963, 29 U_S.C. 206(d);
- Immigration Reform and Control Act of 1986, 8 U.S.C. 1324b;
- Pro-Children Act of 1994, 20 U.S.C. 6081 et seg.;
- Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, as
amended, and implementing regulation 45 C.F.R. Part 84;
- Titles VI & VII of the Civil Rights Act of 1964, 42 U.S.C. 2000d
& e;
- Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et
seg.;
- Section 24-34-302, et sea., Colorado Revised Statutes 1993, as
amended;
- The "Uniform Administrative Requirements for Grants and
Cooperative Agreements to State and Local Governments (Common
Rule), at 49 Code of Federal Regulations, Part 18;
- Office of Management and Budget Circulars A-87, A-21 or A-122,
and A-102 or A-110, whichever is applicable.
- The Hatch Act (5 USC 1501-1508 and Public Law 95-454 Section
4728. These statutes state that federal funds cannot be used for
partisan political purposes of any kind by any person or
organization involved in the administration of
federally-assisted programs.
The contractor also shall comply with any and all laws and regulations
prohibiting discrimination in the specific program(s) which is/are the
subject of this contract. In consideration of and for the purpose of
obtaining any and all federal and/or state financial assistance, the
contractor makes the following assurances, upon which the State relies.
1. The contractor will not discriminate against any person on the
basis of race, color, national origin, age, sex, religion and
handicap, including Acquired Immune Deficiency Syndrome (AIDS)
or AIDS related conditions, in performance of work under this
contract.
2. At all times during the performance of this contract, no
qualified individual with a disability shall, by reason of such
disability, be excluded from participation in, or denied
benefits of the service, programs, or activities
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<PAGE> 24
performed by the contractor, or be subjected to any
discrimination by the contractor.
3. The contractor shall take all necessary affirmative steps, as
required by 45 CFR 92.36(e), Colorado Executive Orders D0055 87
and D0005 94 and State Procurement Rules, to assure that small
and minority businesses and women's business enterprises are
used, when possible, as sources of supplies, equipment,
construction, and services purchased under this contract.
M. Assignment/Delegation/Subcontracting
Except as herein specifically provided otherwise, the duties and
obligations of the contractor arising hereunder cannot be assigned,
delegated nor subcontracted except with the express prior written
consent of the State. The subcontracts permitted by the State shall be
subject to the requirements of this contract, and the contractor is
responsible for all subcontracting arrangements and the delivery of
services as set forth in this contract. The contractor shall be
responsible for the performance of any subcontractor. Failure of the
subcontractor to provide services in accordance with the requirements of
this contract shall be the responsibility of the contractor. . The
contractor warrants and agrees that any subcontract resulting from its
performance under the terms and conditions of this contract, shall
include a provision that the said subcontractor shall abide by the terms
and conditions hereof, as well as all other applicable federal and State
laws, and rules and regulations pertinent hereto that have been or may
hereafter be established. Also, the contractor warrants and agrees that
all subcontracts shall include a provision that the subcontractor shall
indemnify and hold harmless the State. The subcontractors must be
certified to work on any equipment for which their services are
obtained.
N. Litigation
The contractor shall promptly notify the State in the event that the
contractor learns of any actual litigation in which it is a party
defendant in a case which involves services provided under this
contract. The contractor, within five (5) calendar days after being
served with a summons, complaint, or other pleading which has been filed
in any federal or state court or administrative agency, shall deliver
copies of such document(s) to the State's Executive Director. The term
"litigation" includes an assignment for the benefit of creditors, and
filings in bankruptcy, reorganization and/or foreclosure.
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<PAGE> 25
O. Disputes
Except as herein specifically provided otherwise, disputes concerning
the performance of this contract which cannot be resolved by the
designated contract representatives shall be referred in writing to a
senior departmental management staff designated by the department and a
senior manager designated by the contractor. Failing resolution at that
level, disputes shall be presented in writing to the Executive Director
and the contractor chief executive officer for resolution. This process
is not intended to supersede any other process for the resolution of
controversies provided by law.
P. Remedies
The Executive Director of the State or designee may exercise the
following remedial actions, in addition to all other remedial actions
authorized by law, should s/he find the contractor substantially failed
to satisfy the scope of work found in this contract. Substantial failure
to satisfy the scope of work shall be defined to mean incorrect or
improper activities or inaction by the contractor.
These remedial actions are as follows:
1. Withhold payment to the contractor until the necessary services
or corrections in performance are satisfactorily completed;
2. Request the removal from work on the contract of employee(s)
and/or agent(s) of the contractor whom the Executive Director or
designee justifies as being incompetent, careless,
insubordinate, unsuitable, or otherwise unacceptable, or whose
continued employment on the contract s/he deems to be contrary
to the public interest or not in the best interest of the State;
3. Deny payment or recover reimbursement for those services or
deliverables which have not been performed and which due to
circumstances caused by the contractor cannot be performed or if
performed would be of no value to the State. Denial of the
amount of payment shall be reasonably related to the amount of
work or deliverables lost to the State;
4. Incorrect payments to the contractor due to omission, error,
fraud, and/or defalcation shall be recovered from the contractor
by deduction from subsequent payments under this contract or
other contracts between the State and the contractor, or by the
State as a debt due to the State or otherwise as provided by
law.
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<PAGE> 26
Q. Termination
1. Termination for Default. The State may terminate the contract
for cause without compensation for termination costs. If the
State terminates the contract for cause, it will first give ten
(10) days prior written notice to the contractor, stating the
reasons for cancellation, procedures to correct problems, if
any, and the date the contract will be terminated in the event
problems have not been corrected.
a. In the event this contract is terminated for cause, the
State will only reimburse the contractor for acceptable
work or deliverables received up to the date of
termination.
b. In the event this contract is terminated for cause,
final payment to the contractor may be withheld at the
discretion of the State until completion of final audit.
2. Termination for Convenience. The State shall have the right to
terminate this contract by giving the contractor at least thirty
(30) days prior written notice. If notice is so given, this
contract shall terminate on the expiration of the specified time
period, and the liability of the parties hereunder for further
performance of the terms of this contract shall thereupon cease,
but the parties shall not be released from the duty to perform
their obligations up to the date of termination.
3. Immediate Termination. This contract is subject to immediate
termination by the State in the event that the State determines
that the health, safety, or welfare of persons receiving
services may be in jeopardy. Additionally, the State may
immediately terminate this contract upon verifying that the
contractor has engaged in or is about to participate in
fraudulent acts.
4. Termination for Financial Exigency. The State shall have the
right to terminate this contract for financial 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 the financial circumstances of the
State are such that it is in the best interest of the State to
terminate this contract. If notice of such termination is so
given, 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 the terms of this
contract shall
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<PAGE> 27
thereupon cease, but the parties shall not be released from the
duty to perform their obligations up to the date of termination.
R. 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 for 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 a waiver of any other term, or the same
term upon subsequent breach.
S. Integration of Understandings.
This contract is intended as the complete integration of all
understandings between the parties. No prior or contemporaneous
addition, deletion, or other amendment hereto shall have any force or
effect whatsoever, unless embodied herein in writing. No subsequent
novation, renewal, addition, deletion, or other amendment hereto shall
have any force or effect unless embodied in a written contract executed
and approved pursuant to the State Fiscal Rules.
T. Proprietary Information
1. Proprietary 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 from third
parties, that which is in the public domain, or that which is
developed independently.
2. Neither party shall use or disclose directly or indirectly
without prior written authorization any proprietary information
concerning the other party obtained as a result of this
contract. Any proprietary information removed from the State'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.
U. Discrimination Complaints
Any person who feels that s/he has been discriminated against relating
to the services provided under this contract has the right to file a
complaint with the
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<PAGE> 28
Colorado Department of Human Services, the Colorado Civil Rights
Commission, and/or the US Commission on Civil Rights.
V. If any of the payments hereunder are from federal funds, where
applicable, the following provisions shall apply to this contract.
1. Press Releases
Pursuant to Section 511 of P.L. 101-166, when issuing
statements, press releases, requests for proposals, bid
solicitations and other documents describing projects or
programs funded in whole or in part with federal funds, the
contractor shall clearly state (i) that the activity is funded
in whole or in part by federal funds, (ii) the percentage of the
total costs of the program or project which will be financed
with federal money, (iii) percentage and dollar amount of the
total costs of the project or program that will be financed by
non-federal sources.
2. Debarment Certification To the extent applicable, if any payment
pursuant to this contract is in federal funds, the following
provisions apply to this contract.
a. The contractor certifies to the best of its knowledge
and belief that the contractor, its principals and
authorized subcontractors: (i) are not presently
debared, suspended, proposed for debarment declared
ineligible, or voluntarily excluded from participation
in this transaction by any federal department or agency;
(ii) have not within a three year period preceding this
contract been convicted of or had a civil judgment
rendered against it for commission of fraud or a
criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal,
State, or local) transaction or contract under a public
transaction; (iii) have not violated a Federal or State
antitrust statutes or committed embezzlement, theft,
forgery, bribery, falsification or destruction of
records, or made false statements; or received stolen
property; (iv) are not presently indicted for, or
otherwise criminally or civilly charged by a
governmental entity (Federal, State, or local) with
commission of any of the offenses enumerated in
sub-paragraph (iii) of this certification; and, (v) have
not within a three year period preceding this contract
had one or more public transactions (Federal, State, or
local) terminated for cause or default.
Further, the contractor shall include, without
modification, the following Certification Clause in the
contract of any subcontractor obligated to perform
services pursuant hereto:
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<PAGE> 29
The prospective lower tier participant certifies, by
submission of this contract, that neither it nor its
principals is presently debared, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded
from participation in this transaction by any Federal
Department or agency."
b. Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such
prospective participant shall attach an explanation to this
contract.
c. "Lower tier participant" is defined to include the contractor
and its principals, agents, and subcontractors who are obligated
to perform services pursuant to the terms of this contract.
3. Payments made to the contractor from Federal funds under this contract
shall supplement and not supplant state or local expenditures that would
have been made in the absence of such federal support.
4. The contractor shall not use federal funds to satisfy federal cost
sharing and matching requirements unless approved in writing by the
appropriate federal agency.
5. In accordance with the requirements of P.L. 101-166, none of the federal
funds provided under this contract may be used to pay the salary of any
individual at a rate in excess of $125,000 per year.
6. Rights in Data and Copyright - Federal Reserved Rights
Except for its own internal use, the contractor shall not publish or reproduce
any data/information, in whole or part, that is recorded in any form or medium
whatsoever and that is delivered or specified to be delivered under this
contract, nor may it authorize or permit others to do so, without the written
consent of the federal government, through the State, until such time as the
federal government may have released such data/information to the public.
As authorized by 49 C.F.R. 18.34, the federal government, through the State,
reserves a royalty free, nonexclusive, and irrevocable license to reproduce,
publish or otherwise use, and to authorize the State and others to use; a) any
work developed under this contract or a resulting third party contract
irrespective of whether or not it is copyrighted; and b) any rights of copyright
to which a contractor, subrecipient, or third party contractor purchases
ownership with federal assistance.
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W. Exhibits - Interpretation
1. Unless otherwise stated, all exhibits referenced herein are
attached hereto and incorporated herein and made a part of this
contract.
2. The terms of this contract shall control over any conflicting
terms in any of its attached exhibits.
X. Venue The parties agree that venue for any action related to performance
of this contract shall be in the City and County of Denver, Colorado.
Y. Vendor Offset The parties understand and agree that the State shall have
the right to offset against payment due to the contractor hereunder, any
debts owed by the contractor to the State or any child support payments
owed by the contractor.
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Colorado Contract Procedures and Management Manual - August 1997
================================================================================
D. SPECIAL PROVISIONS
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THESE SPECIAL PROVISIONS ARE REQUIRED BY FISCAL RULE 3-1 TO BE USED IN EVERY
STATE CONTRACT, INCLUDING GRANTS.
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SPECIAL PROVISIONS
CONTROLLER'S APPROVAL
1. This contract shall not be deemed valid until it shall have been approved by
the Controller of the State of Colorado or such assistant as he may designate.
This provision is applicable to any contract involving the payment of money by
the State.
FUND AVAILABILITY
2. Financial obligations of the State of Colorado payable after the current
fiscal year are contingent upon funds for that purpose being appropriated,
budgeted, and otherwise made available.
BOND REQUIREMENT
3. If this contract involves the payment of more than fifty thousand dollars
for the construction, erection, repair, maintenance, or improvement of any
building, road, bridge, viaduct, tunnel, excavation or other public work for
this State, the Contractor shall, before entering upon the performance of any
such work included in this contract, duly execute and deliver to the State
official who will sign the contract, a good and sufficient bond or other
acceptable surety to be approved by said official in a penal sum not less than
one-half of the total amount payable by the terms of this contract. Such bond
shall be duly executed by a qualified corporate surety conditioned upon the
faithful performance of the contract and in addition, shall provide that if the
Contractor or his subcontractors fail to duly pay for any labor, materials, team
hire, sustenance, provisions, provendor or other supplies used or consummed by
such Contractor or his subcontractor in performance of the work contracted to be
done or fails to pay any person who supplies rental machinery, tools, or
equipment in the prosecution of the work the surety will pay the same in an
amount not exceeding the sum specified in the bond, together with interest at
the rate of eight per cent per annum. Unless such bond is executed, delivered
and filed, no claim in favor of the Contractor arising under such contract shall
be audited, allowed or paid. A certified or cashier's check or a bank money
order payable to the Treasurer of the State of Colorado may be accepted in lieu
of a bond. This provision is in compliance with CRS 38-26-106.
INDEMNIFICATION
4. To the extent authorized by law, the Contractor shall indemnify, save, and
hold harmless the State, 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.
DISCRIMINATION AND AFFIRMATIVE ACTION
5. The Contractor agrees to comply with the letter and spirit of the Colorado
Antidiscrimination Act of 1957, as amended, and other applicable law respecting
discrimination and unfair employment practices (CRS 24-34-402), and as required
by Executive Order, Equal Opportunity and Affirmative Action, dated April 16,
1975. Pursuant thereto, the following provisions shall be contained in all
State contracts or subcontracts.
During the performance of this contract, the Contractor agrees as follows:
(a) The Contractor will not discriminate against any employee or applicant for
employment because of race, creed, color, national origin, sex, marital
status, religion, ancestry, mental or physical handicap, or age. The
Contractor will take affirmative action to insure that applicants are
employed, and that employees are treated during employment, without regard to
the above mentioned characteristics. Such action shall include, but not be
limited to the following: employment upgrading, demotion or transfer,
recruitment or recruitment advertising: lay-offs or terminations; rates of pay
or other forms of compensation; and selection for training, including
apprenticeship. The Contractor agrees to post in conspicuous places, available
to employees and applicants for employment, notices to be provided by the
contracting officer setting forth provisions of this non-discrimination clause.
(b) The Contractor will, in all solicitations or advertisements for employees
placed by or on behalf of the Contractor, State that all qualified applicants
will receive consideration for employment without regard to race, creed,
color, national origin, sex, marital status, religion, ancestry, mental or
physical handicap, or age.
Page 31 of 33
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Colorado Contract Procedures and Management Manual - August 1997
================================================================================
(c) The Contractor will sent to each labor union or representative of
workers with which he has a collective bargaining agreement or other
contract or understanding, notice to be provided by the contracting
officer, advising the labor union or workers' representative of the
Contractor's commitment under the Executive Order. Equal Opportunity and
Affirmative Action, dated April 16, 1975, and rules, regulations, and
relevant Orders of the Governor.
(d) The Contractor and labor unions will furnish all information and
reports required by Executive Order, Equal Opportunity and Affirmative
Action of April 16, 1975, and by the rules, regulations and Orders of the
Governor, or pursuant thereto, and will permit access to his books,
records, and accounts by the contracting agency and the office of the
Governor or his designee for purposes of investigation to ascertain
compliance with such rules regulations and orders.
(e) A labor organization will not exclude any individual otherwise
qualified from full membership rights in such labor organization, or expel
any such individual from membership in such labor organization or
discriminate against any of its members in the full enjoyment work
opportunity because of race, creed, color, sex, national origin, or
ancestry.
(f) A labor organization, or the employees or members thereof will not
aid, abet, incite, compel or coerce the doing of any act defined in this
contract to be discriminatory or obstruct or prevent any person from
complying with the provision of this contract or any order issued
thereunder; or attempt, either directly or indirectly, to commit any act
defined in this contract to be discriminatory.
(g) In the event of the Contractor's non-compliance with the
non-discrimination clauses of this contract or with any of such rules,
regulations, or orders, this contract may be canceled, terminated or
suspended in whole or in part and the Contractor may be declared ineligible
for further State contracts in accordance with procedures, authorized in
Executive Order, Equal Opportunity and Affirmative Action of April 16, 1975
and the rules, regulations, or orders promulgated in accordance therewith,
and such other sanctions as may be imposed and remedies as may be invoked
as provided in Executive Orders, Equal Opportunity and Affirmative Action
of April 16, 1975, or by rules, regulations, or orders promulgated in
accordance therewith, or as otherwise provided by law.
(h) The Contractor will include the provisions of paragraphs (a) through
(h) in every subcontract and subcontractor purchase order unless exempted
by rules, regulations, or orders issued pursuant to Executive Order,
Equal Opportunity and Affirmative Action of April 16, 1975, so that such
provisions will be binding upon each subcontractor or vendor. The
Contractor will take such action with respect to any sub-contracting or
purchase order as the contracting agency may direct, as a means of
enforcing such provisions, including sanctions for non-compliance;
provided, however, that in the event the Contractor becomes involved in,
or is threatened with, litigation, with the subcontractor or vendor as a
result of such direction by the contracting agency, the Contractor may
request the State of Colorado to enter into such litigation to protect the
interest of the State of Colorado.
COLORADO LABOR PREFERENCE
6a. Provisions of CRS 8-17-101 & 102 for preference of Colorado labor are
applicable to this contract if public works within the State are undertaken
hereunder and are financed in whole or in part be State funds.
b. When a construction contract for a public project is to be awarded to
a bidder, a resident bidder shall be allowed a preference against a
non-resident bidder from a State or foreign country equal to the preference
given or required by the State or foreign country in which the non-resident
bidder is a resident. If it is determined by the officer responsible for
awarding the bid that compliance with this subsection .06 may cause denial of
federal funds which would otherwise be available or would otherwise be
inconsistent with requirements of Federal law, this subsection shall be
suspended, but only to the extent necessary to prevent denial of the moneys or
to eliminate the inconsistency with Federal requirements (CRS 8-19-101 and 102).
GENERAL
7. 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.
8. 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.
9. Pursuant to CRS 24-30-202.4 (as amended), the State Controller may
withhold debts owed to State agencies under the vendor offset intercept system
for: (a) unpaid child support debt or child support arrearages; (b) unpaid
balance of tax, accrued interest, or other charges specified in Article 22,
Title 39, CRS; (c) unpaid loans due to the Student Loan Division of the
Department of Higher Education; (d) owed amounts required to be paid to the
Unemployment Compensation Fund; and (e) other unpaid debts owing to the State
or any agency thereof, the amount of which is found to be owing as a result of
final agency determination or reduced to judgment as certified by the
controller.
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Colorado Contract Procedures and Management Manual -- August 1997
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10. The signatories aver that they are familiar with CRS 18-8301, et.
seq., (Bribery and Corrupt Influences) and CRS 18-8-401, et. seq., (Abuse of
Public Office), and that no violation of such provisions is present.
11. The signatories aver that to their knowledge, no State employee has
any personal or beneficial interest whatsoever in the service or property
described herein:
IN WITNESS WHEREOF, the parties hereto have executed this Contract on the day
first above written.
Contractor: [ILLEGIBLE] STATE OF COLORADO
(Full Legal Name) RICK E. BRAUEN ROY ROMER, GOVERNOR
--------------------------------------
[SIGNATURE ILLEGIBLE]
-------------------------------------- --------------------------------------
EXECUTIVE DIRECTOR
Position (Title) Central Area Director
---------------------- FOR
91-14-7147
-------------------------------------- DEPARTMENT OF Human Services
Social Security Number or Federal -------------------------
Identification Number
If Corporation:) APPROVALS:
Attest (Seal) STATE CONTROLLER
ARTHUR L. BARNHART
By RICK E. BRAUEN By: [SIGNATURE ILLEGIBLE]
------------------------------------ -----------------------------------
Corporate Secretary, or Equivalent,
Town/City/Country Clerk
APPROVALS:
ATTORNEY GENERAL STATE CONTROLLER
By C. RICHARD PENNINGTON By
------------------------------------ ------------------------------------
C. Richard Pennington
Assistant Attorney General
State Services Section
Page 33 which is the last of 33 pages
<PAGE> 34
CFMS PROJECT
EXHIBIT C - DELIVERABLE SCHEDULE AND COSTS
FIXED PRICE
DELIVERABLE PAYMENT AMOUNT PLANNED DELIVERY MONTH
=================================================================================================
Task 1
------
Per month *
Planning and Project Management Support * *
Quarterly Status Reports*
Monthly Status Reports
Workplan updates
Steering Committee
------------------------------------------
Project Management *
------------------------------------------
Task 2
------
2.01 Consultant Familiarization with CFMS * *
2.02 Project Site & Initial Environment * *
2.03 Familiarize CDHS Staff with COTS * *
2.04 Develop Implementation Strategies * *
2.06 Project Initiation Meetings * *
------------------------------------------
Project Initiation *
------------------------------------------
Task 3
------
3.01 Document Baseline Requirements * *
3.02 Define AR Requirements * *
3.03 Design system functionality for CFMS * *
3.04 Develop Software Architecture & Integration P * *
3.05 Set Up Conference Room Pilot System * *
3.06 Identify Application Gaps in COTS * *
3.07 Test GLDI Functions * *
3.08 Devise workarounds and customizations * *
3.09 Design interfaces with existing legacy system * *
3.11 Design Interfaces with New Systems * *
3.12 Prepare for Development * *
3.13 Finalize detailed design of customizations * *
3.15 Develop Security Strategy * *
3.16 Develop and implement change management * *
3.17 Phase Management & Completion * *
------------------------------------------
System Analysis & Design *
------------------------------------------
Task 4
------
4.01 Prepare for System Testing * *
4.02 Develop GLDI Processes * *
4.03 Develop Reports * *
4.04 Develop Calculations * *
4.05 Develop & Unit Test Custom Data Store and * *
4.06 Develop Interface Software * *
4.07 Conduct Preliminary Capacity Analysis * *
4.08 System Acceptance Test * *
4.09 Conduct Final Capacity Analysis * *
4.10 Finalize Documentation * *
* Portions of this agreement have been omitted pursuant to a request for
confidential treatment pursuant to SEC Rule 24b-2, to be filed separately with
the SEC no later than April 10, 2001.
<PAGE> 35
CFMS PROJECT
EXHIBIT C -- DELIVERABLE SCHEDULE AND COSTS
FIXED PRICE
DELIVERABLE PAYMENT AMOUNT PLANNED DELIVERY MONTH
--------------------------------------------------------------------------------------
4.11 Disaster Recovery Plan * *
4.12 Phase Management & Completion * *
-----------
System Development & Testing *
-----------
Task 5
------
5.01 Environment Planning * *
5.02 Acquire Hardware * *
5.03 Configure Production Environment * *
5.04 Configure production applications * *
5.05 Phase Management & Completion * *
-----------
Acquisition and Installation
of Hardware *
-----------
Task 6
------
6.01 Initial Production Period * *
6.02 Support of Network * *
6.03 Final System Acceptance * Monthly payments during
acceptance time
*
6.04 Finalize & turnover system
documentation * *
6.05 Phase Management & Completion * *
-----------
Initial Production Operation *
-----------
Task 7
------
7.01 Plan User Training * *
7.02 Create Training Environment &
Materials * *
7.03 Train CDHS & Other State
Personnel * *
7.04 Phase Management & Completion * *
-----------
User Support *
and Technical Training -----------
Task 8
------
8.01 Warrant CFMS * *
8.03 Turnover Plan * *
8.04 Provide ongoing training * *
8.06 Process contract deliverables * *
8.08 Turnover system * *
-----------
Mandatory Post Implementation
Support *
-----------
Task 9
------
9.01 Mandatory Post Implementation Per month *
Support * *
-----------
Post Implementation Support *
-----------
# Deliverables subject to 20% holdback.
* Deliverables subject to late charge.
* Portions of this agreement have been omitted pursuant to a request for
confidential treatment pursuant to SEC Rule 24b-2, to be filed separately with
the SEC no later than April 10, 2001.
<PAGE> 36
CFMS PROJECT
EXHIBIT C -- DELIVERABLE SCHEDULE AND COSTS
FIXED PRICE
DELIVERABLE PAYMENT AMOUNT PLANNED DELIVERY MONTH
-----------------------------------------------------------------------------------------
Hardware Costs/Facilities
HP Hardware Purchase Production * *
HP Hardware Purchase Development * *
HP Hardware Purchase
Application Server * *
HP Configuration * *
HP Open View/ITO (Note 1) * *
Prepaid Support * *
------------
*
Network Costs * *
Oracle Software & Tutor * *
Noetix Views * *
Ring Master * *
------------
*
Oracle Software Support * *
Oracle Tutor * *
Software Maintenance * *
------------
*
Monthly facility cost *
Facilities/Equipment * *
Monthly facility cost *
Facilities/Equipment * *
Monthly Hardware Costs *
Hardware Costs * *
Training * *
------------
Hardware *
------------
------------
Fixed Price Total *
------------
# Deliverables subject to 20% holdback.
* Deliverables subject to late charge.
Note 1: Facilitated by CDHS IS Department
Note 2: All AR customization, development, testing and production setups,
documentation, training and training materials, and production support for the
AR module have been eliminated.
*Portions of this agreement have been omitted pursuant to a request for
confidential treatment pursuant to SEC Rule 24b-2, to be filed separately
with the SEC no later than April 10, 2001.