HomeMy WebLinkAboutPR 22126: APPROVAL FOR COVID-19 PUBLIC WORKFORCE GRANT City of
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Texas
Date: September 2, 2021
To: Ron Burton, City Manager
From: Judith A. Smith, RN, BSN, Director of Health Services
RE: Approval for COVID-19 Public Workforce Grant
Nature of the Request: This is a new grant developed by the Texas Department of State Health
Services because of the Coronavirus Pandemic. This is the COVID-19 Public Health Workforce
Grant. This grant will provide financial assistance to the health department to supplement the
delivery of public health services and help expand, train, and sustain the workforce in support of
COVID-19 response. The contract is effective on signature and terminates June 30, 2023.
Staff Analysis, Considerations: This grant will cover the cost of an additional LVN, Licensed
Professional Counselor, and an outreach coordinator.
Recommendations: It is recommended that the City Council approve P.R.No. 22126, approving
the contract between the City of Port Arthur and the Department of State Health Service for a
Public Health Workforce grant.
Budget Considerations: The total amount of the grant shall not exceed $385,000.00. No city
match is required.
"REMEMBER WE ARE HERE TO SERVE THE CITIZENS OF PORT ARTHUR"P.O.BOX I089•PORT ARTHUR,IX 77641-1089•
409/983-8101•FAX 409/982-6743
P. R. No. 22126
09/02/2021-js
RESOLUTION NO.
A RESOLUTION APPROVING THE CONTRACT BETWEEN THE CITY
OF PORT ARTHUR AND THE DEPARTMENT OF STATE HEALTH
SERVICES TO PROVIDE PUBLIC HEALTH WORKFORCE FUNDING
TO SUSTAIN PUBLIC HEALTH ACTIVITIES IN SUPPORT OF COVID-
19. THE TOTAL AMOUNT OF THIS GRANT WILL NOT EXCEED
$385,000.00. IT WILL BE EFFECTIVE ON SIGNATURE AND
TERMINATES JUNE 30,2023. NO CASH MATCH IS REQUIRED.
WHEREAS,the Department of State Health Services provides financial assistance to the
Port Arthur City Health Department to supplement the delivery of public health services. This
Public Health Workforce Grant is to establish, expand, train, and sustain the public health
workforce in support of COVID-19 response; and,
WHEREAS, this contract will be effective on signature and will terminate June 30,
2023. The total amount of this grant will not exceed $385,000.00,with no city cash match.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
Section 1. That,the facts and opinions in the preamble are true and correct.
Section 2. That, the City Council of the City of Port Arthur hereby approves the
contract amendment between the City of Port Arthur and the Department of State Health
Services.
Section 3. That, the City Council deems it is in the best interest of the City to
approve and authorize the City Manager and the Director of the City's Health Department to
execute the contract between the Department of State Health Services and the City of Port
Arthur, Texas, as delineated in Exhibit"A".
P.R.No.22126
09/02/2021-js
Section 4. That, a copy of the caption of this Resolution be spread upon the Minutes
of the City Council.
READ, ADOPTED, AND APPROVED, this day of September, 2021 A.D., at a
Regular Meeting of the City Council of the City of Port Arthur, Texas by the following Vote:
AYES: Mayor: ,
Councilmembers: ,
NOES: •
Mayor
ATTEST:
Sherri Bellard, City Secretary
APPR VED AS 0 FORM:
iii
Val Tizeno, Ci , Atto -
dp
APPROVED FOR ADMINISTRATION:
QudcIv dniitib
Ron Burton, City Manager Ju th Smith, RN, BSN, Director of Health
EXHIBIT "A"
P. R.No. 22126
09/02/2021-js
RESOLUTION NO.
A RESOLUTION APPROVING THE CONTRACT BETWEEN THE CITY
OF PORT ARTHUR AND THE DEPARTMENT OF STATE HEALTH
SERVICES TO PROVIDE PUBLIC HEALTH WORKFORCE FUNDING
TO SUSTAIN PUBLIC HEALTH ACTIVITIES IN SUPPORT OF COVID-
19. THE TOTAL AMOUNT OF THIS GRANT WILL NOT EXCEED
$385,000.00. IT WILL BE EFFECTIVE ON SIGNATURE AND
TERMINATES JUNE 30,2023. NO CASH MATCH IS REQUIRED.
WHEREAS, the Department of State Health Services provides financial assistance to the
Port Arthur City Health Department to supplement the delivery of public health services. This
Public Health Workforce Grant is to establish, expand, train, and sustain the public health
workforce in support of COVID-19 response; and,
WHEREAS, this contract will be effective on signature and will terminate June 30,
2023. The total amount of this grant will not exceed $385,000.00,with no city cash match.
NOW THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PORT ARTHUR:
Section 1. That,the facts and opinions in the preamble are true and correct.
Section 2. That, the City Council of the City of Port Arthur hereby approves the
contract amendment between the City of Port Arthur and the Department of State Health
Services.
Section 3. That, the City Council deems it is in the best interest of the City to
approve and authorize the City Manager and the Director of the City's Health Department to
execute the contract between the Department of State Health Services and the City of Port
Arthur, Texas, as delineated in Exhibit"A".
P.R.No. 22126
09/02/2021-js
Section 4. That, a copy of the caption of this Resolution be spread upon the Minutes
of the City Council.
READ, ADOPTED, AND APPROVED, this day of September, 2021 A.D., at a
Regular Meeting of the City Council of the City of Port Arthur, Texas by the following Vote:
AYES: Mayor:
Councilmembers:
NOES:
Mayor
ATTEST:
Sherri Bellard, City Secretary
APPROVED AS TO FORM:
Val Tizeno, City Attorney
APPROVED FOR ADMINISTRATION:
Ron Burton, City Manager Judith Smith, RN, BSN,Director of Health
DocuSign Envelope ID:F40354E2-0741-4624-AFFE-9F23E40FA441
INTERLOCAL COOPERATION CONTRACT
THE DEPARTMENT OF STATE HEALTH SERVICES
CONTRACT No.HHS001076500001
THE DEPARTMENT OF STATE HEALTH SERVICES("System Agency"or"DSHS")and City of Port Arthur
("Local Government,""Grantee,""Performing Agency,"or"Contractor"), each a"Party"and collectively
the "Parties," enter into the following contract for activities to establish, expand, train and sustain public
health workforce in support of Coronavirus 2019 (COVID-19)response and in alignment with the Public
Health Crisis Response Cooperative Agreement for Emergency Response (Funding Opportunity Number
CDC-RFA-TP18-1802) from the Centers for Disease Control and Prevention(CDC).
I. PARTIES
The following will act as the Representative authorized to act on behalf of their respective Party.
System Agency Local Government
Name: Department of State Health Services Name: City of Port Arthur
Address: 1100 W. 49th Street, MC 1990 Address: 449 Austin Avenue
City and Zip: Austin, TX 78756 City and Zip: Port Arthur, Texas 77640
Contact Person: Jennifer Boggs Contact Person: Judith Smith, BSN, RN
Telephone: 512-776-2304 Health Department: 409-983-8832
Fax number: 512-776-7391 Main Line: 409-983-1530
E-Mail Address: Jennifer.Boggs@a,dshs.texas.gov E-Mail Address:judith.smith@portarthurtx.gov
Agency Number: 537
II. STATEMENT OF SERVICES TO BE PROVIDED
The Parties agree to cooperate to provide necessary and authorized services and resources in accordance
with the terms of this Contract. Specific services provided are described in Attachment A— Statement
of Work.
III. CONTRACT PERIOD AND RENEWAL
The Contract is effective on the signature date of the latter of the Parties to sign this agreement and
terminates on June 30,2023,unless renewed, extended,or terminated pursuant to the terms and conditions
of the Contract. The Parties may extend this Contract subject to mutually agreeable terms and conditions.
IV. AMENDMENT
The Parties to this Contract may modify this Contract only through the execution of a written amendment
signed by both Parties.
V. CONTRACT AMOUNT AND PAYMENT FOR SERVICES
System Agency Contract No.HHS001076500001
Page 1 of 4
v.3.1.17
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The total amount of this Contract shall not exceed $385,000.00, as provided for in Attachment B —
Budget.
VI. LEGAL NOTICES
Legal Notices under this Contract shall be deemed delivered when deposited either in the United States
mail, postage paid, certified, return receipt requested; or with a common carrier, overnight, signature
required, to the appropriate address below:
System Agency
Department of State Health Services
1100 W. 49th Street, MC 1911
Austin, TX 78756
Attention: Office of General Counsel
Local Government
Name: Judith Smith, BSN, RN
Address: 449 Austin Avenue
City&Zip: Port Arthur, Texas 77640
E-Mail Address: iudith.smith@,portarthurtx.gov
Notice given in any other manner shall be deemed effective only if and when received by the Party to be
notified. Either Party may change its address for receiving legal notice by notifying the other Party in
writing.
VII. CERTIFICATIONS
The undersigned contracting Parties certify that:
(1) The services specified above are necessary and essential for activities that are properly within
the statutory functions and programs of the affected agencies of state government;
(2) Each Party executing this Contract on its behalf has full power and authority to enter into this
Contract;
(3) The proposed arrangements serve the interest of efficient and economical administration of
state government; and
(4) The services contracted for are not required by Section 21, Article XVI of the Constitution of
Texas to be supplied under a contract awarded to the lowest responsible bidder.
The System Agency further certifies that it has statutory authority to contract for the services described in
this Contract under Texas Government Code, Chapter 791, Texas Health and Safety Code, Chapter 81,
and Texas Government, Code 531.
The Local Government further certifies that it has statutory authority to contract for the services described
in this Contract under Texas Government Code, Chapter 791.
System Agency Contract No.HHS001076500001
Page 2 of 4
v.3.1.17
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
VIII.ADDITIONAL GRANT INFORMATION
In accordance with 2 CFR 200.331(A), if any of the following information is not
available at time of contract execution, then it will be provided to the Grantee by a
Technical Guidance Letter.
Federal Award Identification Number(FAIN): NU90TP922165
Federal Award Date: 5/20/2021
Name of Federal Awarding Agency: Centers for Disease Control and Prevention
CFDA Name and Number: Federal, 93.354
Awarding Official Contact Information: Ms. Sylvia Reeves, 770-488-2739, gpg0@cdc.gov
DUNS: 807391511
System Agency Contract No.HHS001076500001
Page 3 of 4
v.3.1.17
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
SIGNATURE PAGE FOR SYSTEM AGENCY CONTRACT No.HHS001076500001
THE DEPARTMENT OF STATE HEALTH SERVICES CITY OF PORT ARTHUR
Signature Signature
Printed Name Printed Name
Title Title
Date Date
THE FOLLOWING ATTACHMENTS TO THIS CONTRACT ARE HEREBY
INCORPORATED BY REFERENCE AND MADE PART OF THIS CONTRACT:
ATTACHMENT A—STATEMENT OF WORK
ATTACHMENT B—BUDGET
ATTACHMENT C—FISCAL FEDERAL ACCOUNTABILITY AND TRANSPARENCY ACT(FFATA)
CERTIFICATE
ATTACHMENT D—HHS UNIFORM TERMS AND CONDITIONS—GOVERNMENTAL ENTITY,
VERSION 3.0
ATTACHMENT E—DATA USE AGREEMENT
ATTACHMENT F—FEDERAL ASSURANCES AND CERTIFICATIONS
ATTACHMENT G—CONTRACT AFFIRMATIONS 1.8
System Agency Contract No.HHS001076500001
Page 4 of 4
v.3.1.17
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ATTACHMENT A
STATEMENT OF WORK
COVID-19—Public Health Workforce Expansion
I. GRANTEE RESPONSIBILITIES
Grantee will:
A. Establish, expand, train and sustain public health workforce in support of Coronavirus
2019 (COVID-19)response and in alignment with the Public Health Crisis Response
Cooperative Agreement for Emergency Response (Funding Opportunity Number CDC-
RFA-TP18-1802) from the Centers for Disease Control and Prevention(CDC).
B. Complete all activities required and allowable under this Contract by June 30, 2023.
C. Perform required activities intended to slow the transmission of COVID-19, minimize
morbidity and mortality, preserve function of healthcare workforce and infrastructure, and
minimize social and economic impacts. Required activities include:
1. Hire public health personnel (professional, clinical, disease investigation, program
and/or administrative) in support of COVID-19 and infectious disease preparedness
and response. Personnel may be permanent full or part-time staff, temporary or term-
limited staff, fellows, interns and/or contracted employees.
2. Establish a formal committee that will ensure Grantee's health programs, methods
and outcomes meet the diverse needs of the communities served.
a. Within 30 days of Contract execution, submit a roster of this
committee that describes how members are reflective of the
communities to be served and can best address community public
health needs to WorkforceCoAg@dshs.texas.com and the assigned
Contract Manager.
b. Within 60 days of Contract execution, submit proposed plan to address
health disparities, and your training plan to
WorkforceCoAg@dshs.texas.com and the assigned Contract Manager,
using the template provided by System Agency.
3. Provide training for staff to be equipped to address health disparities appropriately, as
recommended by the committee, to existing and new staff, focusing on issues relevant
to the local communities served.
D. Funds cannot be used for research, clinical care, medical or clinical supplies, fund-raising
activities, construction or major renovations, to supplant existing state or federal funds for
activities,purchase of vehicles of any kind(including mobile medical clinics), clothing to
include uniforms or scrubs or funding an award to another party or provider who is
ineligible. Any furniture/cubicle purchases will require PRIOR approval by System
Agency. Funds cannot be used for the preparation, distribution, or use of any material
(publicity or propaganda) or to pay the salary or expenses of grant recipients, contract
recipients, or agents that aim to support or defeat the enactment of legislation, regulation,
administrative action, or executive order proposed or pending before a legislative body
beyond normal, recognized executive relationships.
E. Comply with all applicable regulations, standards, and guidelines in effect on the
beginning date of this Contract and as amended.
Page 1 of 4
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
ATTACHMENT A
STATEMENT OF WORK
COVID-19—Public Health Workforce Expansion
F. The following documents and resources are incorporated herein by reference and made a
part of this Contract as if fully set forth therein:
1. DSHS and CDC Public Health Crisis Response Cooperative Agreement,
Funding Opportunity Number: CDC-RFA-TP 18-1 802;
2. Project workplan
G. Maintain an inventory of equipment, supplies defined as Controlled Assets, and real
property. Grantee shall submit an annual cumulative report of the equipment and other
property on HHS System Agency Grantee's Property Inventory Report to the assigned
System Agency Contract Manager by email not later than October 15 of each year.
Controlled Assets include firearms, regardless of the acquisition cost, and the following
assets with an acquisition cost of$500 or more, but less than $5,000: desktop and laptop
computers (including notebooks, tablets and similar devices), non-portable printers and
copiers, emergency management equipment, communication devices and systems, medical
and laboratory equipment, and media equipment. Controlled Assets are considered
Supplies.
H. Expenses are eligible for reimbursement review and payment in alignment with the Grant
Award effective date of July 1, 2021.
II. PERFORMANCE MEASURES
DSHS will monitor the Grantee's performance of the requirements in this Statement of
Work and compliance with the Contract's terms and conditions.
DSHS will develop performance measures in collaboration with the Grantee.
III. REPORTING REOUIREMENTS
Grantee, at the request of the System Agency, may be required to submit additional
reports determined necessary to accomplish the objectives of and monitor compliance with
this Contract. Grantee must submit reports in a format specified by the System Agency.
Grantee will provide System Agency financial reports as System Agency determines
necessary to accomplish the objectives of this Contract and to monitor compliance. If
Grantee is legally prohibited from providing any report under this Contract, Grantee will
immediately notify System Agency in writing.
Grantee will provide and submit written reports, by electronic mail in the format specified
by System Agency. Grantee will complete and submit the bi-annual program and financial
reports by the 5th business day of each month. Grantee shall maintain the source
documentation used to develop the reports. All written reports should be titled with the
Grantee name, address, email address,telephone number,program name, contract or
purchase order number, dates services were completed and/or products were delivered,the
time period of the report,total invoice amount, and invoices paid to subgrantees for
services received.
A. Submit local health entity COVID-19 Workforce Expansion progress reports and spend
Page 2 of 4
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
ATTACHMENT A
STATEMENT OF WORK
COVID-19—Public Health Workforce Expansion
plans within an established timeframe designated by the System Agency,using the
template provided by System Agency. Progress reports will include status updates on
meeting hiring goals, addressing health disparities and reporting progress through
financial reports. Failure to submit a required report or additional requested information
by the due date specified in this Contract listed below or upon request constitutes breach
of contract and may result in delay of payment. Reports should be sent electronically to
WorkforceCoAg@dshs.texas.com and the assigned Contract Manager.
Progress Reports - due 7-Jan-22
Progress Reports - due 7-Jul-22
Progress Reports - due 9-Jan-23
Progress Reports - due 7-Jul-23
B. Submit a final performance report that describes progress toward achieving the objectives
contained in the approved workplan and deliverables contained in this Contract to
WorkforceCoAg@dshs.texas.com and the assigned Contract Manager, 30 days after end
of Contract period,using the template provided by System Agency.
IV. INVOICE AND PAYMENT
A. Grantee will request payment monthly using the State of Texas Purchase Voucher (Form
B-13) and acceptable supporting documentation for reimbursement of the required
services/deliverables. The Grantee will submit the Financial Status Report(FSR-269A).
Vouchers, supporting documentation, and Financial Status Reports should be mailed or
emailed to the addresses below.
Department of State Health Services
Claims Processing Unit, MC 1940
1100 West 49th Street
P.O. Box 149347
Austin, TX 78714-9347
FAX: (512)458-7442
EMAIL: invoices@dshs.texas.gov&CMSInvoices@dshs.texas.gov& cc your contract
manager.
B-13s and supporting documentation should be sent to: invoices@a,dshs.texas.gov &
CMSInvoices@dshs.texas.gov &cc your contract manager.
FSRs should be sent to: FSRGrants@a,dshs.texas.gov&CMSInvoices@,dshs.texas.gov & cc
your contract manager.
Page 3 of 4
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
ATTACHMENT A
STATEMENT OF WORK
COVID-19—Public Health Workforce Expansion
B. Grantee will be reimbursed monthly and in accordance with Attachment B, Budget.
Reimbursement shall be subject to the submission of required and appropriate
documentation, and in accordance with applicable law and governing regulations.
Page 4 of 4
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
Attachment B
Budget
Budget Categories DSHS Funding
Personnel $127,650
Fringe Benefits $61,272
Travel $6,453
Equipment $0
Supplies $24,919
Contractual $164,706
Other $0
Total Direct Costs $385,000
Indirect Cost Rate Amount $0
Contract Total $385,000
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
Attachment C
Fiscal Federal Funding Accountability and Transparency Act
(FFATA) CERTIFICATION
The certifications enumerated below represent material facts upon which DSHS relies when reporting
information to the federal government required under federal law. If the Department later determines
that the Contractor knowingly rendered an erroneous certification, DSHS may pursue all available
remedies in accordance with Texas and U.S. law. Signor further agrees that it will provide immediate
written notice to DSHS if at any time Signor learns that any of the certifications provided for below were
erroneous when submitted or have since become erroneous by reason of changed circumstances. If the
Signor cannot certify all of the statements contained in this section, Signor must provide written
notice to DSHS detailing which of the below statements it cannot certify and why.
Legal Name of Contractor: FFATA Contact#1 Name, Email and Phone Number:
Primary Address of Contractor: FFATA Contact#2 Name, Email and Phone Number:
ZIP Code: 9-digits Required www.usps.com DUNS Number:9-digits Required www.sam.gov
State of Texas Comptroller Vendor Identification Number(VIN) 14 Digits
Printed Name of Authorized Representative Signature of Authorized Representative
Title of Authorized Representative Date
- 1 -
Department of State Health Services Form 4734—June 2013
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
Attachment C
Fiscal Federal Funding Accountability and Transparency Act
(FFATA) CERTIFICATION
As the duly authorized representative (Signor) of the Contractor, I hereby certify that
the statements made by me in this certification form are true, complete and correct to
the best of my knowledge.
Did your organization have a gross income, from all sources, of less than $300,000 in
your previous tax year? Yes No
If your answer is "Yes", skip questions "A", "B", and "C" and finish the certification.
If your answer is "No", answer questions "A" and "B".
A. Certification Regarding%of Annual Gross from Federal Awards.
Did your organization receive 80% or more of its annual gross revenue from federal
awards during the preceding fiscal year? Yes No
B. Certification Regarding Amount of Annual Gross from Federal Awards.
Did your organization receive $25 million or more in annual gross revenues from federal
awards in the preceding fiscal year? Yes No
If your answer is "Yes" to both question "A" and "B", you must answer question "C".
If your answer is "No" to either question "A" or "B", skip question "C" and finish the
certification.
C. Certification Regarding Public Access to Compensation Information.
Does the public have access to information about the compensation of the senior
executives in your business or organization (including parent organization, all branches,
and all affiliates worldwide) through periodic reports filed under section 13(a) or 15(d)
of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the
Internal Revenue Code of 1986? Yes No
If your answer is "Yes"to this question,where can this information be accessed?
If your answer is "No" to this question, you must provide the names and total
compensation of the top five highly compensated officers below.
For example:
John Blurn:500000;Mfary Redd:50000;Eric Gant:400000;Todd Platt:300000;
Sally Tom:300000
Provide compensation information here:
- 2 -
Department of State Health Services Form 4734—June 2013
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
......
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0'070 TExAs
. 4 di r: Health and Human Services
....
Health and Human Services (HHS)
Uniform Terms and Conditions -
Governmental Entity
Version 3.0
Published and Effective - March 1 , 2020
Responsible Office: Chief Counsel
Health and Human Services
Uniform Terms and Condition—Governmental Entity V.3.0—March 1,2020
Page 1 of 22
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
Table of Contents
ARTICLE I.DEFINITIONS AND INTERPRETIVE PROVISIONS.... 5
1.1 DEFINITIONS 5
1.2 INTERPRETIVE PROVISIONS 7
ARTICLE II.PAYMENT PROVISIONS ...............»....».»..... 8
2.1 PROMPT PAYMENT 8
2.2 ANCILLARY AND TRAVEL EXPENSES 8
2.3 No QUANTITY GUARANTEES 8
2.4 TAXES 8
ARTICLE III.STATE AND FEDERAL FUNDING 8
3.1 EXCESS OBLIGATIONS PROHIBITED 8
3.2 No DEBT AGAINST THE STATE 8
3.3 DEBT AND DELINQUENCIES 9
3.4 REFUNDS AND OVERPAYMENTS 9
ARTICLE 1V.WARRANTY,AFFIRMATIONS,ASSURANCES,AND CERTIFICATIONS 9
4.1 WARRANTY 9
4.2 GENERAL AFFIRMATIONS 9
4.3 FEDERAL ASSURANCES 10
4.4 FEDERAL CERTIFICATIONS 10
ARTICLE V.INTELLECTUAL PROPERTY ». 10
5.1 OWNERSHIP OF WORK PRODUCT 10
5.2 PERFORMING AGENCY'S PRE-EXISTING WORKS 11
5.3 THIRD PARTY IP 11
5.4 AGREEMENTS WITH EMPLOYEES AND SUBCONTRACTORS 11
5.5 DELIVERY UPON TERMINATION OR EXPIRATION 11
5.6 SURVIVAL 12
5.7 SYSTEM AGENCY DATA 12
ARTICLE VI.PROPERTY 12
6.1 USE OF STATE PROPERTY 12
6.2 DAMAGE TO GOVERNMENT PROPERTY 13
6.3 PROPERTY RIGHTS UPON TERMINATION OR EXPIRATION OF CONTRACT 13
Health and Human Services
Uniform Terms and Condition—Governmental Entity V.3.0—March 1,2020
Page 2 of 22
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ARTICLE VII.RECORD RETENTION,AUDIT,AND CONFIDENTIALITY...... 13
7.1 RECORD MAINTENANCE AND RETENTION 13
7.2 AGENCY'S RIGHT TO AUDIT 13
7.3 RESPONSE/COMPLIANCE WITH AUDIT OR INSPECTION FINDINGS 14
7.4 STATE AUDITOR'S RIGHT TO AUDIT 14
7.5 CONFIDENTIALITY 15
ARTICLE VIII.CONTRACT REMEDIES AND EARLY TERMINATION 15
8.1 CONTRACT REMEDIES 15
8.2 TERMINATION FOR CONVENIENCE 15
8.3 TERMINATION FOR CAUSE 15
8.4 PERFORMING AGENCY RESPONSIBILITY FOR TERMINATION COSTS 16
ARTICLE IX.GENERAL PROVISIONS 16
9.1 AMENDMENT 16
9.2 INSURANCE 16
9.3 LIMITATION ON AUTHORITY 16
9.4 LEGAL OBLIGATIONS 17
9.5 CHANGE IN LAWS AND COMPLIANCE WITH LAWS 17
9.6 E-VERIFY PROGRAM 17
9.7 PERMITTING AND LICENSURE 17
9.8 SUBCONTRACTORS 18
9.9 INDEPENDENT PERFORMING AGENCY 18
9.10 GOVERNING LAW AND VENUE 18
9.11 SEVERABILITY 18
9.12 SURVIVABILITY 18
9.13 FORCE MAJEURE 19
9.14 DISPUTE RESOLUTION 19
9.15 No IMPLIED WAIVER OF PROVISIONS 19
9.16 MEDIA RELEASES 19
9.17 No MARKETING ACTIVITIES 20
9.18 PROHIBITION ON NON-COMPETE RESTRICTIONS 20
9.19 SOVEREIGN IMMUNITY 20
9.20 ENTIRE CONTRACT AND MODIFICATION 20
9.21 COUNTERPARTS 20
9.22 CIVIL RIGHTS 20
Health and Human Services
Uniform Terms and Condition-Governmental Entity V.3.0-March 1,2020
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9.23 ENTERPRISE INFORMATION MANAGEMENT STANDARDS 22
9.24 DISCLOSURE OF LITIGATION 22
9.25 No THIRD-PARTY BENEFICIARIES 22
9.26 BINDING EFFECT 22
Health and Human Services
Uniform Terms and Condition—Governmental Entity V.3.0—March 1,2020
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ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS
1.1 DEFINITIONS
As used in this Contract, unless the context clearly indicates otherwise, the following terms
and conditions have the meanings assigned below:
"Amendment" means a written agreement, signed by the Parties, which documents
changes to the Contract other than those permitted by Work Orders.
"Attachment"means documents, terms, conditions, or information added to this Contract
following the Signature Document or included by reference and made a part of this
Contract.
"Contract" means the Signature Document, these Uniform Terms and Conditions, along
with any Attachments, and any Amendments, purchase orders, or Work Orders that may
be issued by the System Agency, to be incorporated by reference for all purposes.
"Deliverable" means a Work Product(s), including all reports and project documentation,
prepared, developed, or procured by Contractor as part of the Services under the Contract
for the use or benefit of the System Agency or the State of Texas.
"Effective Date" means the date agreed to by the Parties as the date on which the
Contract takes effect.
"Federal Fiscal Year" means the period beginning October 1 and ending September 30
each year, which is the annual accounting period for the United States government.
"GAAP"means Generally Accepted Accounting Principles.
"GASB"means the Governmental Accounting Standards Board.
"Goods"means supplies, materials, or equipment.
"Health and Human Services Commission" or"HHSC" means the administrative agency
established under Chapter 531, Texas Government Code, or its designee.
"Health and Human Services"or"HHS"includes the Department of State Health Services
(DSHS), in addition to the Health and Human Services Commission.
"HUB" means Historically Underutilized Business, as defined by Chapter 2161 of the
Texas Government Code.
"Intellectual Property Rights" means the worldwide proprietary rights or interests,
including patent, copyright, trade secret, and trademark rights, as such rights may be
evidenced by or embodied in:
i. any idea, design, concept, personality right,method, process,technique, apparatus,
invention, discovery, or improvement;
ii. any work of authorship,including any compilation, computer code,website or web
page design, literary work,pictorial work, or graphic work;
iii. any trademark, service mark, trade dress, trade name, branding, or other indicia of
source or origin;
iv. domain name registrations; and
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v. any other proprietary or similar rights. The Intellectual Property Rights of a Party
include all worldwide proprietary rights or interests that the Party may have
acquired by assignment, by exclusive license, or by license with the right to grant
sublicenses.
"Parties"means the System Agency and Performing Agency,collectively.
"Party"means either the System Agency or Performing Agency,individually.
"Performing Agency"means the State Agency providing the goods or services defined in
this Contract.
"Project"means the goods or Services described in the Signature Document or a Work
Order of this Contract.
"Receiving Agency"means the State agency receiving the benefit of the goods or
services provided under this Contract.
"Scope of Work" means the description of Services and Deliverables specified in the
Contract and as may be amended.
"Services" means the tasks, functions, and responsibilities assigned and delegated to
Performing Agency under the Contract.
"Signature Document"means the document executed by both Parties that specifically sets
forth all of the documents that constitute the Contract.
"Solicitation"means the document issued by the System Agency(including any published
addenda, exhibits,and Attachments)under which the goods or Services provided under the
Contract were initially requested, which is incorporated by reference for all purposes in its
entirety.
"Solicitation Response" means Performing Agency's full and complete response
(including any Attachments and addenda) to the Solicitation, which is incorporated by
reference for all purposes in its entirety.
"State Fiscal Year" means the period beginning September 1 and ending August 31 each
year, which is the annual accounting period for the State of Texas.
"State of Texas Textravel" means the State Travel Management Program through the
Texas Comptroller of Public Accounts website and Texas Administrative Code, Title 34,
Part 1, Chapter 5, Subchapter C, Section 5.22,relative to travel reimbursements under this
Contract, if any.
"Subcontract"means any written agreement between Performing Agency and a third party
to fulfill the requirements of the Contract. All Subcontracts are required to be in writing.
"Subcontractor" means any individual or entity that enters a contract with the Performing
Agency to perform part or all of the obligations of Performing Agency under this Contract.
"System Agency" means HHSC or any of the agencies of the State of Texas that are
overseen by HHSC under authority granted under state law and the officers, employees,
authorized representatives, and designees of those agencies. These agencies include:
HHSC and the Department of State Health Services.
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"Third Party IP"means the Intellectual Property Rights of any third party that is not a party
to this Contract, and that is not a Subcontractor.
"Work" means all Services to be performed, goods to be delivered, and any
appurtenant actions performed, and items produced, conceived, or developed, including
Deliverables.
"Work Order"means an individually negotiated document that is executed by both Parties
and which authorizes a Project, if any, in an indefinite quantity Contract.
"Work Product" means any and all works, including work papers, notes, materials,
approaches, designs, specifications, systems, innovations, improvements, inventions,
software, programs, source code, documentation, training materials, audio or audiovisual
recordings, methodologies, concepts, studies, reports, whether finished or unfinished, and
whether or not included in the Deliverables, that are developed, produced, generated, or
provided by Performing Agency in connection with Performing Agency's performance of
its duties under the Contract or through use of any funding provided under this Contract.
1.2 INTERPRETIVE PROVISIONS
A. The meanings of defined terms include the singular and plural forms.
B. The words "hereof," "herein," "hereunder," and similar words refer to this Contract as a
whole and not to any particular provision,section,Attachment,or schedule of this Contract
unless otherwise specified.
C. The term"including" is not limiting and means "including without limitation" and, unless
otherwise expressly provided in this Contract, (i) references to contracts (including this
Contract) and other contractual instruments shall be deemed to include all subsequent
Amendments and other modifications, but only to the extent that such Amendments and
other modifications are not prohibited by the terms of this Contract, and (ii) references to
any statute or regulation are to be construed as including all statutory and regulatory
provisions consolidating, amending, replacing, supplementing, or interpreting the statute
or regulation.
D. Any references to "sections," "appendices," or "attachments" are references to sections,
appendices, or attachments of the Contract.
E. Any references to agreements, contracts, statutes, or administrative rules or regulations in
the Contract are references to these documents as amended, modified, or supplemented
from time to time during the term of the Contract.
F. The captions and headings of this Contract are for convenience of reference only and do
not affect the interpretation of this Contract.
G. All Attachments, including those incorporated by reference, and any Amendments are
considered part of the terms of this Contract.
H. This Contract may use several different limitations, regulations, or policies to regulate
the same or similar matters. All such limitations, regulations, and policies are cumulative,
and each will be performed in accordance with its terms.
I. Unless otherwise expressly provided, reference to any action of the System Agency or
by the System Agency by way of consent, approval, or waiver will be deemed modified
by the phrase "in its sole discretion."
J. Time is of the essence in this Contract.
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ARTICLE II. PAYMENT PROVISIONS
2.1 PROMPT PAYMENT
Payment shall be made in accordance with Chapter 2251 of the Texas Government Code,
commonly known as the Texas Prompt Payment Act. Chapter 2251 of the Texas Government
Code shall govern remittance of payment and remedies for late payment and non-payment.
2.2 ANCILLARY AND TRAVEL EXPENSES
A. Except as otherwise provided in the Contract, no ancillary expenses incurred by the
Performing Agency in connection with its provision of the Services or Deliverables
will be reimbursed by the System Agency. Ancillary expenses include,but are not limited
to costs associated with transportation, delivery, and insurance for each Deliverable.
B. When the reimbursement of travel expenses is authorized by the Contract, all such
expenses will be reimbursed in accordance with the rates set by the State of Texas
Textravel available at the Texas Comptroller of Public Accounts State Travel Management
Program website.
2.3 No QUANTITY GUARANTEES
The System Agency makes no guarantee of volume or usage of work under this Contract. All
Work requested may be on an irregular and as needed basis throughout the Contract term.
2.4 TAXES
Purchases made for State of Texas use are exempt from the State Sales Tax and Federal Excise
Tax. Performing Agency represents and warrants that it shall pay all taxes or similar amounts
resulting from the Contract, including, but not limited to, any federal, State, or local income,
sales or excise taxes of Performing Agency or its employees. System Agency shall not be liable
for any taxes resulting from the contract.
ARTICLE III. STATE AND FEDERAL FUNDING
3.1 EXCESS OBLIGATIONS PROHIBITED
The Contract is subject to termination or cancellation, without penalty to the System Agency,
ether in whole or in part, subject to the availability of state funds. System Agency is a state
agency whose authority and appropriations are subject to actions of the Texas Legislature. If
System Agency becomes subject to a legislative change, revocation of statutory authority, or
lack of appropriated funds that would render either System Agency's or Performing Agency's
delivery or performance under the Contract impossible or unnecessary, the Contract will be
terminated or cancelled and be deemed null and void. In the event of a termination or
cancellation under this Section, System Agency will not be liable to Performing Agency for
any damages that are caused or associated with such termination, or cancellation, and System
Agency will not be required to give prior notice.
3.2 No DEBT AGAINST THE STATE
This Contract will not be construed as creating any debt by or on behalf of the State of Texas.
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3.3 DEBT AND DELINQUENCIES
Performing Agency agrees that any payments due under the Contract shall be directly applied
towards eliminating any debt or delinquency it has to the State of Texas including, but not
limited to, delinquent taxes, delinquent student loan payments, and delinquent child support.
3.4 REFUNDS AND OVERPAYMENTS
A. At its sole discretion, the System Agency may:
i. withhold all or part of any payments to Performing Agency to offset overpayments,
unallowable or ineligible costs made to the Performing Agency, or if any required
financial status report(s) is not submitted by the due date(s); or,
ii. require Performing Agency to promptly refund or credit - within thirty (30) calendar
days of written notice - any funds erroneously paid by System Agency which are not
expressly authorized under the Contract.
B. "Overpayments," as used in this Section, include payments:
i. made by the System Agency that exceed the maximum allowable rates;
ii. that are not allowed under applicable laws,rules,or regulations;or,
iii. that are otherwise inconsistent with this Contract, including any unapproved
expenditures. Performing Agency understands and agrees that it will be liable to the
System Agency for any costs disallowed pursuant to financial and compliance audit(s)
of funds received under this Contract. Performing Agency further understands and
agrees that reimbursement of such disallowed costs shall be paid by Performing
Agency from funds which were not provided or otherwise made available to
Performing Agency under this Contract.
ARTICLE IV.WARRANTY,AFFIRMATIONS,ASSURANCES,
AND CERTIFICATIONS
4.1 WARRANTY
Performing Agency warrants that all Work under this Contract shall be completed in a
manner consistent with standards under the terms of this Contract, in the applicable trade,
profession, or industry; shall conform to or exceed the specifications set forth in the
Contract;and all Deliverables shall be fit for ordinary use,of good quality,and with no material
defects. If System Agency, in its sole discretion, determines Performing Agency has failed to
complete Work timely or to perform satisfactorily under conditions required by this Contract,
the System Agency may require Performing Agency, at its sole expense,to:
i. Repair or replace all defective or damaged Work;
ii. Refund any payment Performing Agency received from System Agency for all
defective or damaged Work and, in conjunction therewith, require Performing
Agency to accept the return of such Work; and,
iii. Take necessary action to ensure that Performing Agency's future performance and
Work conform to the Contract requirements.
4.2 GENERAL AFFIRMATIONS
Performing Agency certifies that, to the extent General Affirmations are incorporated into
the Contract under the Signature Document, the Performing Agency has reviewed the General
Affirmations and that Performing Agency is in compliance with all requirements.
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4.3 FEDERAL ASSURANCES
Performing Agency certifies that, to the extent federal assurances are incorporated into the
Contract under the Signature Document, the Performing Agency has reviewed the federal
assurances and that Performing Agency is in compliance with all requirements.
4.4 FEDERAL CERTIFICATIONS
Performing Agency certifies that, to the extent federal certifications are incorporated into
the Contract under the Signature Document, the Performing Agency has reviewed the federal
certifications and that Performing Agency is in compliance with all requirements. In addition,
Performing Agency certifies that it is and shall remain in compliance with all applicable federal
laws,rules,and regulations,as they may pertain to this Contract.
ARTICLE V.INTELLECTUAL PROPERTY
5.1 OWNERSHIP OF WORK PRODUCT
A. All right, title, and interest in the Work Product, including all Intellectual Property Rights
therein, is exclusively owned by System Agency. Performing Agency and Performing
Agency's employees will have no rights in or ownership of the Work Product or any other
property of System Agency.
B. Any and all Work Product that is copyrightable under United States copyright law is
deemed to be "work made for hire" owned by System Agency, as provided by Title 17 of
the United States Code. To the extent that Work Product does not qualify as a"work made
for hire"under applicable federal law, Performing Agency hereby irrevocably assigns and
transfers to System Agency, its successors and assigns, the entire right, title, and interest
in and to the Work Product, including any and all Intellectual Property Rights embodied
therein or associated therewith, and in and to all works based upon, derived from, or
incorporating the Work Product, and in and to all income, royalties, damages, claims and
payments now or hereafter due or payable with respect thereto, and in and to all causes of
action, either in law or in equity for past, present or future infringement based on the
copyrights, and in and to all rights corresponding to the foregoing.
C. Performing Agency agrees to execute all papers and to perform such other acts as System
Agency may deem necessary to secure for System Agency or its designee the rights herein
assigned.
D. In the event that Performing Agency has any rights in and to the Work Product that cannot
be assigned to System Agency, Performing Agency hereby grants to System Agency an
exclusive, worldwide, royalty-free, transferable, irrevocable, and perpetual license, with
the right to sublicense,to reproduce,distribute,modify,create derivative works of,publicly
perform and publicly display, make, have made, use, sell and offer for sale the Work
Product and any products developed by practicing such rights.
E. The foregoing does not apply to Incorporated Pre-existing Works or Third Party IP that are
incorporated in the Work Product by Performing Agency. Performing Agency shall
provide System Agency access during normal business hours to all Vendor materials,
premises, and computer files containing the Work Product.
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5.2 PERFORMING AGENCY'S PRE-EXISTING WORKS
A. To the extent that Performing Agency incorporates into the Work Product any works of
Performing Agency that were created by Performing Agency or that Performing Agency
acquired rights in prior to the Effective Date of this Contract("Incorporated Pre-existing
Works"), Performing Agency retains ownership of such Incorporated Pre-existing Works.
B. Performing Agency hereby grants to System Agency an irrevocable, perpetual, non-
exclusive, royalty-free, transferable, worldwide right and license, with the right to
sublicense, to use, reproduce, modify, copy, create derivative works of, publish, publicly
perform and display, sell, offer to sell, make and have made, the Incorporated Pre-existing
Works, in any medium, with or without the associated Work Product.
C. Performing Agency represents,warrants,and covenants to System Agency that Performing
Agency has all necessary right and authority to grant the foregoing license in the
Incorporated Pre-existing Works to System Agency.
5.3 THIRD PARTY IP
A. To the extent that any Third Party IP is included or incorporated in the Work Product by
Performing Agency, Performing Agency hereby grants to System Agency, or shall obtain
from the applicable third party for System Agency's benefit, the irrevocable, perpetual,
non-exclusive, worldwide, royalty-free right and license, for System Agency's internal
business purposes only,
i. to use, reproduce, display, perform, distribute copies of, and prepare derivative works
based upon such Third Party IP and any derivative works thereof embodied in or
delivered to System Agency in conjunction with the Work Product, and
ii. to authorize others to do any or all of the foregoing.
B. Performing Agency shall obtain System Agency's advance written approval prior to
incorporating any Third Party IP into the Work Product, and Performing Agency shall
notify System Agency on delivery of the Work Product if such materials include any Third
Party IP.
C. Performing Agency shall provide System Agency all supporting documentation
demonstrating Performing Agency's compliance with this Section 5.3, including without
limitation documentation indicating a third party's written approval for Performing Agency
to use any Third Party IP that may be incorporated in the Work Product.
5.4 AGREEMENTS WITH EMPLOYEES AND SUBCONTRACTORS
Performing Agency shall have written, binding agreements with its employees and
subcontractors that include provisions sufficient to give effect to and enable Performing
Agency's compliance with Performing Agency's obligations under this Article V.
5.5 DELIVERY UPON TERMINATION OR EXPIRATION
No later than the first calendar day after the termination or expiration of the Contract or upon
System Agency's request, Performing Agency shall deliver to System Agency all completed,
or partially completed,Work Product, including any Incorporated Pre-existing Works,and any
and all versions thereof. Performing Agency's failure to timely deliver such Work Product is
a material breach of the Contract. Performing Agency will not retain any copies of the Work
Product or any documentation or other products or results of Performing Agency's activities
under the Contract without the prior written consent of System Agency.
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5.6 SURVIVAL
The provisions and obligations of this Article V survive any termination or expiration of the
Contract.
5.7 SYSTEM AGENCY DATA
A. As between the Parties, all data and information acquired, accessed, or made available to
Performing Agency by, through, or on behalf of System Agency or System Agency
contractors, including all electronic data generated, processed, transmitted, or stored by
Performing Agency in the course of providing data processing services in connection with
Performing Agency's performance hereunder (the "System Agency Data"), is owned
solely by System Agency.
B. Performing Agency has no right or license to use, analyze, aggregate, transmit, create
derivatives of, copy, disclose, or process the System Agency Data except as required for
Performing Agency to fulfill its obligations under the Contract or as authorized in advance
in writing by System Agency.
C. For the avoidance of doubt, Performing Agency is expressly prohibited from using, and
from permitting any third party to use, System Agency Data for marketing, research, or
other non-governmental or commercial purposes, without the prior written consent of
System Agency.
D. Performing Agency shall make System Agency Data available to System Agency,
including to System Agency's designated vendors, as directed in writing by System
Agency. The foregoing shall be at no cost to System Agency.
E. Furthermore, the proprietary nature of Performing Agency's systems that process, store,
collect, and/or transmit the System Agency Data shall not excuse Performing Agency's
performance of its obligations hereunder.
ARTICLE VI.PROPERTY
6.1 USE OF STATE PROPERTY
A. Performing Agency is prohibited from using State Property for any purpose other than
performing Services authorized under the Contract.
B. State Property includes, but is not limited to, System Agency's office space, identification
badges, System Agency information technology equipment and networks (e.g., laptops,
portable printers, cell phones, iPads or tablets, external hard drives, data storage devices,
any System Agency-issued software, and the System Agency Virtual Private Network
(VPN client)), and any other resources of System Agency.
C. Performing Agency shall not remove State Property from the continental United States. In
addition, Performing Agency may not use any computing device to access System
Agency's network or e-mail while outside of the continental United States.
D. Performing Agency shall not perform any maintenance services on State Property unless
the Contract expressly authorizes such Services.
E. During the time that State Property is in the possession of Performing Agency,Performing
Agency shall be responsible for:
i. all repair and replacement charges incurred by State Agency that are associated with
loss of State Property or damage beyond normal wear and tear, and
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ii. all charges attributable to Performing Agency's use of State Property that exceeds the
Contract scope. Performing Agency shall fully reimburse such charges to System
Agency within ten (10) calendar days of Performing Agency's receipt of System
Agency's notice of amount due. Use of State Property for a purpose not authorized by
the Contract shall constitute breach of contract and may result in termination of the
Contract and the pursuit of other remedies available to System Agency under contract,
at law, or in equity.
6.2 DAMAGE TO GOVERNMENT PROPERTY
A. In the event of loss,destruction,or damage to any System Agency or State of Texas owned,
leased, or occupied property or equipment by Performing Agency or Performing Agency's
employees, agents, Subcontractors, and suppliers, Performing Agency shall be liable to
System Agency and the State of Texas for the full cost of repair, reconstruction, or
replacement of the lost, destroyed, or damaged property.
B. Performing Agency shall notify System Agency of the loss, destruction, or damage of
equipment or property within one (1) business day. Performing Agency shall reimburse
System Agency and the State of Texas for such property damage within 10 calendar days
after Performing Agency's receipt of System Agency's notice of amount due.
6.3 PROPERTY RIGHTS UPON TERMINATION OR EXPIRATION OF CONTRACT
In the event the Contract is terminated for any reason, or upon its expiration State Property
remains the property of the System Agency and must be returned to the System Agency by the
end date of the Contract or upon System Agency's request.
ARTICLE VII.RECORD RETENTION,AUDIT,AND CONFIDENTIALITY
7.1 RECORD MAINTENANCE AND RETENTION
A. Performing Agency shall keep and maintain under GAAP or GASB, as applicable, full,
true, and complete records necessary to fully disclose to the System Agency, the Texas
State Auditor's Office, the United States Government, and their authorized
representatives sufficient information to determine compliance with the terms and
conditions of this Contract and all state and federal rules, regulations, and statutes.
B. Performing Agency shall maintain and retain legible copies of this Contract and all records
relating to the performance of the Contract including supporting fiscal documents
adequate to ensure that claims for contract funds are in accordance with applicable State of
Texas requirements.These records shall be maintained and retained by Performing Agency
for a minimum of seven(7)years after the Contract expiration date or seven(7)years after
the completion of all audit, claim, litigation, or dispute matters involving the Contract are
resolved, whichever is later.
7.2 AGENCY'S RIGHT TO AUDIT
A. Performing Agency shall make available at reasonable times and upon reasonable notice,
and for reasonable periods, work papers, reports, books, records, supporting documents
kept current by Performing Agency pertaining to the Contract for purposes of inspecting,
monitoring, auditing, or evaluating by System Agency and the State of Texas.
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B. In addition to any right of access arising by operation of law, Performing Agency and
any of Performing Agency's affiliate or subsidiary organizations, or Subcontractors shall
permit the System Agency or any of its duly authorized representatives, as well as duly
authorized federal, state or local authorities, unrestricted access to and the right to
examine any site where business is conducted or Services are performed, and all
records, which includes but is not limited to financial, client and patient records, books,
papers or documents related to this Contract. If the Contract includes federal funds,
federal agencies that shall have a right of access to records as described in this section
include: the federal agency providing the funds, the Comptroller General of the United
States, the General Accounting Office, the Office of the Inspector General, and any of
their authorized representatives. In addition, agencies of the State of Texas that shall have
a right of access to records as described in this section include: the System Agency,
HHSC, HHSC's contracted examiners, the State Auditor's Office, the Texas Attorney
General's Office, and any successor agencies. Each of these entities may be a duly
authorized authority.
C. If deemed necessary by the System Agency or any duly authorized authority, for the
purpose of investigation or hearing, Performing Agency shall produce original documents
related to this Contract.
D. The System Agency and any duly authorized authority shall have the right to audit billings
both before and after payment, and all documentation that substantiates the billings.
E. Performing Agency shall include this provision concerning the right of access to, and
examination of, sites and information related to this Contract in any Subcontract it awards.
7.3 RESPONSE/COMPLIANCE WITH AUDIT OR INSPECTION FINDINGS
A. Performing Agency must act to ensure its and its Subcontractors' compliance with all
corrections necessary to address any finding of noncompliance with any law, regulation,
audit requirement, or generally accepted accounting principle, or any other deficiency
identified in any audit, review, or inspection of the Contract and the Services and
Deliverables provided. Any such correction will be at Performing Agency's or its
Subcontractor's sole expense. Whether Performing Agency's action corrects the
noncompliance shall be solely the decision of the System Agency.
B. As part of the Services, Performing Agency must provide to System Agency upon request
a copy of those portions of Performing Agency's and its Subcontractors' internal audit
reports relating to the Services and Deliverables provided to the State under the Contract.
7.4 STATE AUDITOR'S RIGHT TO AUDIT
A. The state auditor may conduct an audit or investigation of any entity receiving funds from
the state directly under the Contract or indirectly through a subcontract under the Contract.
The acceptance of funds directly under the Contract or indirectly through a subcontract
under the Contract acts as acceptance of the authority of the state auditor, under the
direction of the legislative audit committee, to conduct an audit or investigation in
connection with those funds. Under the direction of the legislative audit committee, an
entity that is the subject of an audit or investigation by the state auditor must provide the
state auditor with access to any information the state auditor considers relevant to the
investigation or audit.
B. The Performing Agency shall comply with any rules and procedures of the state auditor in
the implementation and enforcement of Section 2262.154 of the Texas Government Code.
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7.5 CONFIDENTIALITY
Performing Agency shall maintain as confidential and shall not disclose to third parties without
System Agency's prior written consent, any System Agency information including but not
limited to System Agency Data, System Agency's business activities, practices, systems,
conditions and services. This section will survive termination or expiration of this Contract.
The obligations of Performing Agency under this section will survive termination or expiration
of this Contract. This requirement must be included in all subcontracts awarded by Performing
Agency.
ARTICLE VIII.CONTRACT REMEDIES AND EARLY TERMINATION
8.1 CONTRACT REMEDIES
To ensure Performing Agency's full performance of the Contract and compliance with
applicable law, the System Agency reserves the right to hold Performing Agency accountable
for breach of contract or substandard performance and may take remedial or corrective actions,
including, but not limited to:
i. suspending all or part of the Contract;
ii. requiring the Performing Agency to take specific actions in order to remain in
compliance with the Contract;
iii. recouping payments made by the System Agency to the Performing Agency found to
be inerror;
iv. suspending, limiting,or placing conditions on the Performing Agency's continued
performance of Work; or
v. imposing any other remedies, sanctions, or penalties authorized under this Contract or
permitted by federal or state law.
8.2 TERMINATION FOR CONVENIENCE
The System Agency may terminate the Contract, in whole or in part, at any time when, in its
sole discretion, the System Agency determines that termination is in the best interests of
the State of Texas. The termination will be effective on the date specified in the System
Agency's notice of termination.
8.3 TERMINATION FOR CAUSE
Except as otherwise provided by the U.S. Bankruptcy Code, or any successor law, the System
Agency may terminate the Contract, in whole or in part, upon either of the following
conditions:
i. Material Breach
The System Agency will have the right to terminate the Contract in whole or in part if
the System Agency determines, in its sole discretion, that Performing Agency has
materially breached the Contract or has failed to adhere to any laws, ordinances,rules,
regulations or orders of any public authority having jurisdiction and such violation
prevents or substantially impairs performance of Performing Agency's duties under the
Contract. Performing Agency's misrepresentation in any aspect of Performing
Agency's Solicitation Response,if any, or Performing Agency's addition to the System
for Award Management(SAM) will also constitute a material breach of the Contract.
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ii. Failure to Maintain Financial Viability
The System Agency may terminate the Contract if, in its sole discretion, the System
Agency has a good faith belief that Performing Agency no longer maintains the
financial viability required to complete the Work, or otherwise fully perform its
responsibilities under the Contract.
8.4 PERFORMING AGENCY RESPONSIBILITY FOR SYSTEM AGENCY'S TERMINATION COSTS
If the System Agency terminates the Contract for cause, the Performing Agency shall be
responsible to the System Agency for all costs incurred by the System Agency and the State
of Texas to replace the Performing Agency. These costs include, but are not limited to, the
costs of procuring a substitute vendor and the cost of any claim or litigation attributable
to Performing Agency's failure to perform any Work in accordance with the terms of the
Contract.
ARTICLE IX. GENERAL PROVISIONS
9.1 AMENDMENT
The Contract may only be amended by an Amendment executed by both Parties.
9.2 INSURANCE
A. Unless otherwise specified in this Contract, Performing Agency shall acquire and
maintain, for the duration of this Contract, insurance coverage necessary to ensure proper
fulfillment of this Contract and potential liabilities thereunder with financially sound and
reputable insurers licensed by the Texas Department of Insurance, in the type and amount
customarily carried within the industry as determined by the System Agency. Performing
Agency shall provide evidence of insurance as required under this Contract, including a
schedule of coverage or underwriter's schedules establishing to the satisfaction of the
System Agency the nature and extent of coverage granted by each such policy, upon
request by the System Agency. In the event that any policy is determined by the
System Agency to be deficient to comply with the terms of this Contract, Performing
Agency shall secure such additional policies or coverage as the System Agency may
reasonably request or that are required by law or regulation. If coverage expires during
the term of this Contract, Performing Agency must produce renewal certificates for each
type of coverage.
B. These and all other insurance requirements under the Contract apply to both Performing
Agency and its Subcontractors, if any. Performing Agency is responsible for ensuring its
Subcontractors' compliance with all requirements.
9.3 LIMITATION ON AUTHORITY
A. The authority granted to Performing Agency by the System Agency is limited to the terms
of the Contract.
B. Performing Agency shall not have any authority to act for or on behalf of the System
Agency or the State of Texas except as expressly provided for in the Contract; no other
authority,power, or use is granted or implied. Performing Agency may not incur any debt,
obligation, expense, or liability of any kind on behalf of System Agency or the State of
Texas.
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C. Performing Agency may not rely upon implied authority and is not granted authority under
the Contract to:
i. Make public policy on behalf of the System Agency;
ii. Promulgate, amend, or disregard administrative regulations or program policy
decisions made by State and federal agencies responsible for administration of a
System Agency program; or
iii. Unilaterally communicate or negotiate with any federal or state agency or the Texas
Legislature on behalf of the System Agency regarding System Agency programs or the
Contract. However, upon System Agency request and with reasonable notice from
System Agency to the Performing Agency, the Performing Agency shall assist the
System Agency in communications and negotiations regarding the Work under the
Contract with state and federal governments.
9.4 LEGAL OBLIGATIONS
Performing Agency shall comply with all applicable federal, state, and local laws, ordinances,
and regulations, including all federal and state accessibility laws relating to direct and indirect
use of information and communication technology. Performing Agency shall be deemed to
have knowledge of all applicable laws and regulations and be deemed to understand them.
9.5 CHANGE IN LAWS AND COMPLIANCE WITH LAWS
Performing Agency shall comply with all laws, regulations, requirements and guidelines
applicable to a vendor providing services and products required by the Contract to the State of
Texas, as these laws, regulations, requirements and guidelines currently exist and as amended
throughout the term of the Contract. System Agency reserves the right, in its sole discretion,
to unilaterally amend the Contract to incorporate any modifications necessary for System
Agency's compliance, as an agency of the State of Texas, with all applicable state and federal
laws, regulations, requirements and guidelines.
9.6 E-VERIFY PROGRAM
Performing Agency certifies that for Contracts for Services, Performing Agency shall utilize
the U.S. Department of Homeland Security's E-Verify system during the term of the Contract
to determine the eligibility of:
i. all persons employed by Performing Agency to perform duties within Texas; and
ii. all persons, including subcontractors, assigned by the Performing Agency to perform
Work pursuant to the Contract within the United States of America.
9.7 PERMITTING AND LICENSURE
At Performing Agency's sole expense, Performing Agency shall procure and maintain for the
duration of this Contract any state, county, city, or federal license, authorization, insurance,
waiver, permit, qualification or certification required by statute, ordinance, law, or regulation
to be held by Performing Agency to provide the goods or Services required by this Contract.
Performing Agency shall be responsible for payment of all taxes, assessments, fees,
premiums, permits, and licenses required by law. Performing Agency shall be responsible for
payment of any such government obligations not paid by its Subcontractors during
performance of this Contract.
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9.8 SUBCONTRACTORS
Performing Agency may not subcontract any or all of the Work and/or obligations under the
Contract without prior written approval of the System Agency. Subcontracts, if any, entered
into by the Performing Agency shall be in writing and be subject to the requirements of the
Contract. Should Performing Agency Subcontract any of the services required in the Contract,
Performing Agency expressly understands and acknowledges that in entering into such
Subcontract(s), System Agency is in no manner liable to any subcontractor(s) of Performing
Agency. In no event shall this provision relieve Performing Agency of the responsibility for
ensuring that the services performed under all Subcontracts are rendered in compliance with
the Contract.
9.9 INDEPENDENT PERFORMING AGENCY
Performing Agency and Performing Agency's employees, representatives, agents,
Subcontractors, suppliers, and third-party service providers shall serve as independent
Performing Agencies in providing the services under the Contract.Neither Performing Agency
nor System Agency is an agent of the other and neither may make any commitments on the
other party's behalf. Performing Agency shall have no claim against System Agency for
vacation pay, sick leave, retirement benefits, social security,worker's compensation,health or
disability benefits, unemployment insurance benefits, or employee benefits of any kind. The
Contract shall not create any joint venture, partnership, agency, or employment relationship
between Performing Agency and System Agency.
9.10 GOVERNING LAW AND VENUE
This Contract shall be governed by and construed in accordance with the laws of the State of
Texas, without regard to the conflicts of law provisions. The venue of any suit arising under
the Contract is fixed in any court of competent jurisdiction of Travis County, Texas,unless the
specific venue is otherwise identified in a statute which directly names or otherwise identifies
its applicability to the System Agency.
9.11 SEVERABILITY
If any provision of the Contract is held to be illegal, invalid or unenforceable by a court of law
or equity, such construction will not affect the legality, validity or enforceability of any other
provision or provisions of this Contract. It is the intent and agreement of the Parties this
Contract shall be deemed amended by modifying such provision to the extent necessary to
render it valid, legal and enforceable while preserving its intent or, if such modification is not
possible,by substituting another provision that is valid,legal and enforceable and that achieves
the same objective. All other provisions of this Contract will continue in full force and effect.
9.12 SURVIVABILITY
Expiration or termination of the Contract for any reason does not release Performing Agency
from any liability or obligation set forth in the Contract that is expressly stated to survive any
such expiration or termination,that by its nature would be intended to be applicable following
any such expiration or termination, or that is necessary to fulfill the essential purpose of the
Contract, including without limitation the provisions regarding warranty, indemnification,
confidentiality, and rights and remedies upon termination.
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9.13 FORCE MAJEURE
Neither Performing Agency nor System Agency shall be liable to the other for any delay in, or
failure of performance of, any requirement included in the Contract caused by force majeure.
The existence of such causes of delay or failure shall extend the period of performance until
after the causes of delay or failure have been removed provided the non-performing party
exercises all reasonable due diligence to perform.Force majeure is defined as acts of God,war,
fires, explosions, hurricanes, floods, failure of transportation, or other causes that are beyond
the reasonable control of either party and that by exercise of due foresight such party could not
reasonably have been expected to avoid, and which, by the exercise of all reasonable due
diligence, such party is unable to overcome.
9.14 DISPUTE RESOLUTION
A. The dispute resolution process provided for in Chapter 2260 of the Texas Government
Code must be used to attempt to resolve any dispute arising under the Contract. If the
Performing Agency's claim for breach of contract cannot be resolved informally with the
System Agency,the claim shall be submitted to the negotiation process provided in Chapter
2260. To initiate the process, the Performing Agency shall submit written notice, as
required by Chapter 2260,to the individual identified in the Contract for receipt of notices.
Any informal resolution efforts shall in no way modify the requirements or toll the timing
of the formal written notice of a claim for breach of contract required under §2260.051 of
the Texas Government Code. Compliance by the Performing Agency with Chapter 2260 is
a condition precedent to the filing of a contested case proceeding under Chapter 2260.
B. The contested case process provided in Chapter 2260 is the Performing Agency's sole and
exclusive process for seeking a remedy for an alleged breach of contract by the System
Agency if the Parties are unable to resolve their disputes as described above.
C. Notwithstanding any other provision of the Contract to the contrary, unless otherwise
requested or approved in writing by the System Agency, the Performing Agency shall
continue performance and shall not be excused from performance during the period of any
breach of contract claim or while the dispute is pending. However,the Performing Agency
may suspend performance during the pendency of such claim or dispute if the Performing
Agency has complied with all provisions of Section 2251.051, Texas Government Code,
and such suspension of performance is expressly applicable and authorized under that law.
9.15 No IMPLIED WAIVER OF PROVISIONS
The failure of the System Agency to object to or to take affirmative action with respect to any
conduct of the Performing Agency which is in violation or breach of the terms of the Contract
shall not be construed as a waiver of the violation or breach, or of any future violation or
breach.
9.16 MEDIA RELEASES
A. Performing Agency shall not use System Agency's name, logo, or other likeness in any
press release, marketing material, or other announcement without System Agency's prior
written approval. System Agency does not endorse any vendor, commodity, or service.
Performing Agency is not authorized to make or participate in any media releases or public
announcements pertaining to this Contract or the Services to which they relate without
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System Agency's prior written consent, and then only in accordance with explicit written
instruction from System Agency.
B. Performing Agency may publish, at its sole expense, results of Performing Agency
performance under the Contract with the System Agency's prior review and approval,
which the System Agency may exercise at its sole discretion. Any publication (written,
visual, or sound)will acknowledge the support received from the System Agency and any
Federal agency, as appropriate.
9.17 No MARKETING ACTIVITIES
Performing Agency is prohibited from using the Work for any Performing Agency or third-
party marketing, advertising, or promotional activities, without the prior written consent of
System Agency. The foregoing prohibition includes, without limitation, the placement of
banners,pop-up ads,or other advertisements promoting Performing Agency's or a third party's
products, services, workshops, trainings, or other commercial offerings on any website portal
or internet-based service or software application hosted or managed by Performing Agency as
part of the Work.
9.18 PROHIBITION ON NON-COMPETE RESTRICTIONS
Performing Agency shall not require any employees or Subcontractors to agree to any
conditions, such as non-compete clauses or other contractual arrangements that would limit or
restrict such persons or entities from employment or contracting with the State of Texas.
9.19 SOVEREIGN IMMUNITY
Nothing in the Contract shall be construed as a waiver of the System Agency's or the State's
sovereign immunity. This Contract shall not constitute or be construed as a waiver of any of
the privileges,rights,defenses,remedies,or immunities available to the System Agency or the
State of Texas. The failure to enforce,or any delay in the enforcement of,any privileges,rights,
defenses, remedies, or immunities available to the System Agency or the State of Texas under
the Contract or under applicable law shall not constitute a waiver of such privileges, rights,
defenses, remedies, or immunities or be considered as a basis for estoppel. System Agency
does not waive any privileges, rights, defenses, or immunities available to System Agency by
entering into the Contract or by its conduct prior to or subsequent to entering into the Contract.
9.20 ENTIRE CONTRACT AND MODIFICATION
This Contract constitutes the entire agreement of the Parties and is intended as a complete and
exclusive statement of the promises, representations, negotiations, discussions, and other
agreements that may have been made in connection with the subject matter hereof. Any
additional or conflicting terms in any future document incorporated into the Contract will
be harmonized with this Contract to the extent possible.
9.21 COUNTERPARTS
This Contract may be executed in any number of counterparts, each of which will be an
original, and all such counterparts will together constitute but one and the same Contract.
9.22 CIVIL RIGHTS
A. Performing Agency shall comply with all applicable state and federal anti-discrimination
laws, including:
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i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d, et seq.);
ii. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794);
iii. Americans with Disabilities Act of 1990 (42 U.S.C. §12101, et seq.);
iv. Age Discrimination Act of 1975 (42 U.S.C. §6101, et seq.);
v. Title IX of the Education Amendments of 1972 (20 U.S.C. §1681, et seq.);
vi. Food and Nutrition Act of 2008 (7 U.S.C. §2011, et seq.); and
vii. The System Agency's administrative rules, as set forth in the Texas Administrative
Code, to the extent applicable to this Agreement.
B. Performing Agency shall comply with all amendments to these laws, and all
requirements imposed by the regulations issued pursuant to these laws. These laws provide
in part that no persons in the United States may, on the grounds of race, color, national
origin, sex, age, disability, political beliefs, or religion, be excluded from participation in
or denied any service or other benefit provided by Federal or State funding, or otherwise
be subjected to discrimination.
C. Performing Agency shall comply with Title VI of the Civil Rights Act of 1964, and its
implementing regulations at 45 C.F.R.Part 80 or 7 C.F.R.Part 15, prohibiting a Performing
Agency from adopting and implementing policies and procedures that exclude or have the
effect of excluding or limiting the participation of clients in its programs, benefits, or
activities on the basis of national origin. Civil rights laws require Performing Agency's to
provide alternative methods for ensuring access to services for applicants and recipients
who cannot express themselves fluently in English. Performing Agency shall take
reasonable steps to provide services and information, both orally and in writing and
electronically, in appropriate languages other than English, to ensure that persons with
limited English proficiency are effectively informed and can have meaningful access to
programs,benefits, and activities.
Performing Agency shall post applicable civil rights posters in areas open to the
public informing clients of their civil rights and including contact information for the
HHS Civil Rights Office. The posters are available on the HHS website at:
http://hhscx.hhsc.texas.gov/system-support-services/civil-rights/publications
D. Performing Agency shall comply with Section 504 of the Rehabilitation Act of 1973 and
its implementing regulations at 28 CFR Subpart G § 42.503, and Americans with
Disabilities Act of 1990 and its implementing regulations at 28 CFR Subpart B §35.130
which includes requiring Performing Agency to make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid discrimination on
the basis of disability, unless the Performing Agency can demonstrate that making the
modifications would fundamentally alter the nature of the service, program, or activity.
E. Performing Agency shall comply with federal regulations regarding equal treatment for
faith-based organizations under 45 C.F.R. Part 87 or 7 C.F.R. Part 16, as applicable.
Performing Agency shall not discriminate against clients or prospective clients on the basis
of religion or religious belief, and shall provide written notice to beneficiaries of their
rights.
F. Upon request,Performing Agency shall provide the HHSC Civil Rights Office with copies
of the Performing Agency's civil rights policies and procedures.
G. Performing Agency must notify HHSC's Civil Rights Office of any civil rights complaints
received relating to its performance under this Contract. This notice must be delivered no
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more than ten (10) calendar days after receipt of a complaint. This notice must be directed
to:
HHSC Civil Rights Office
701 W. 51st Street, Mail Code W206
Austin, Texas 78751
Phone Toll Free: (888)388-6332
Phone: (512)438-4313
Fax: (512)438-5885.
9.23 ENTERPRISE INFORMATION MANAGEMENT STANDARDS
Performing Agency shall conform to HHS standards for data management as described by the
policies of the HHS Chief Data and Analytics Officer. These include, but are not limited to,
standards for documentation and communication of data models, metadata, and other data
definition methods that are required by HHS for ongoing data governance, strategic portfolio
analysis, interoperability planning, and valuation of HHS System data assets.
9.24 DISCLOSURE OF LITIGATION
A. The Performing Agency must disclose in writing to the contract manager assigned to this
Contract any material civil or criminal litigation or indictment either threatened or pending
involving the Performing Agency. "Threatened litigation" as used herein shall include
governmental investigations and civil investigative demands. "Litigation" as used herein
shall include administrative enforcement actions brought by governmental agencies. The
Performing Agency must also disclose any material litigation threatened or pending
involving Subcontractors, consultants, and/or lobbyists. For purposes of this section,
"material"refers,but is not limited,to any action or pending action that a reasonable person
knowledgeable in the applicable industry would consider relevant to the Work under the
Contract or any development such a person would want to be aware of in order to stay fully
apprised of the total mix of information relevant to the Work, together with any litigation
threatened or pending that may result in a substantial change in the Performing Agency's
financial condition.
B. This is a continuing disclosure requirement; any litigation commencing after Contract
Award must be disclosed in a written statement to the assigned contract manager within
seven calendar days of its occurrence.
9.25 No THIRD-PARTY BENEFICIARIES
The Contract is made solely and specifically among and for the benefit of the Parties named
herein and their respective successors and assigns, and no other person shall have any right,
interest, or claims hereunder or be entitled to any benefits pursuant to or on account of the
Contract as a third-party beneficiary or otherwise.
9.26 BINDING EFFECT
The Contract shall inure to the benefit of, be binding upon, and be enforceable against, each
Party and their respective permitted successors, assigns, transferees, and delegates.
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HHS DATA USE AGREEMENT
This Data Use Agreement("DUA"), effective as of the date the Base Contract into which
it is incorporated is signed("Effective Date"), is entered into by and between a Texas Health and
Human Services Enterprise agency("HHS"), and the Contractor identified in the Base Contract, a
political subdivision of the State of Texas ("CONTRACTOR").
ARTICLE 1.
PURPOSE;APPLICABILITY; ORDER OF PRECEDENCE
The purpose of this DUA is to facilitate creation, receipt, maintenance, use, disclosure or
access to Confidential Information with CONTRACTOR, and describe CONTRACTOR's rights
and obligations with respect to the Confidential Information.45 CFR 164.504(e)(1)-(3).This DUA
also describes HHS's remedies in the event of CONTRACTOR's noncompliance with its
obligations under this DUA. This DUA applies to both Business Associates and contractors who
are not Business Associates who create, receive, maintain, use, disclose or have access to
Confidential Information on behalf of HHS, its programs or clients as described in the Base
Contract.
As of the Effective Date of this DUA, if any provision of the Base Contract, including any
General Provisions or Uniform Terms and Conditions,conflicts with this DUA,this DUA controls.
ARTICLE 2.
DEFINITIONS
For the purposes of this DUA, capitalized, underlined terms have the meanings set forth in
the following: Health Insurance Portability and Accountability Act of 1996,Public Law 104-191 (42
U.S.C. §1320d, et seq.) and regulations thereunder in 45 CFR Parts 160 and 164, including all
amendments, regulations and guidance issued thereafter; The Social Security Act, including Section
1137 (42 U.S.C. §§ 1320b-7), Title XVI of the Act; The Privacy Act of 1974, as amended by the
Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. § 552a and regulations and
guidance thereunder; Internal Revenue Code, Title 26 of the United States Code and regulations and
publications adopted under that code, including IRS Publication 1075; OMB Memorandum 07-18;
Texas Business and Commerce Code Ch. 521; Texas Government Code, Ch. 552, and Texas
Government Code §2054.1125. In addition,the following terms in this DUA are defined as follows:
"Authorized Purpose" means the specific purpose or purposes described in the Statement
of Work of the Base Contract for CONTRACTOR to fulfill its obligations under the Base Contract,
or any other purpose expressly authorized by HHS in writing in advance.
"Authorized User"means a Person:
(1) Who is authorized to create, receive, maintain, have access to, process, view,
handle, examine, interpret, or analyze Confidential Information pursuant to this DUA;
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(2) For whom CONTRACTOR warrants and represents has a demonstrable need to
create, receive, maintain, use, disclose or have access to the Confidential Information; and
(3) Who has agreed in writing to be bound by the disclosure and use limitations
pertaining to the Confidential Information as required by this DUA.
"Confidential Information" means any communication or record (whether oral, written,
electronically stored or transmitted, or in any other form) provided to or made available to
CONTRACTOR,or that CONTRACTOR may,for an Authorized Purpose,create,receive,maintain,
use, disclose or have access to, that consists of or includes any or all of the following:
(1) Client Information;
(2) Protected Health Information in any form including without limitation, Electronic
Protected Health Information or Unsecured Protected Health Information(herein"PHI");
(3) Sensitive Personal Information defined by Texas Business and Commerce Code
Ch. 521;
(4) Federal Tax Information;
(5) Individually Identifiable Health Information as related to HIPAA, Texas HIPAA
and Personal Identifying Information under the Texas Identity Theft Enforcement and Protection
Act;
(6) Social Security Administration Data, including, without limitation, Medicaid
information;
(7) All privileged work product;
(8) All information designated as confidential under the constitution and laws of the
State of Texas and of the United States, including the Texas Health & Safety Code and the Texas
Public Information Act, Texas Government Code, Chapter 552.
"Legally Authorized Representative"of the Individual,as defined by Texas law,including
as provided in 45 CFR 435.923 (Medicaid); 45 CFR 164.502(g)(1) (HIPAA); Tex. Occ. Code §
151.002(6); Tex. H. & S. Code §166.164; and Estates Code Ch. 752.
ARTICLE 3.
CONTRACTOR'S DUTIES REGARDING CONFIDENTIAL INFORMATION
3.01 Obligations of CONTRACTOR
CONTRACTOR agrees that:
(A) CONTRACTOR will exercise reasonable care and no less than the same
degree of care CONTRACTOR uses to protect its own confidential, proprietary and trade
secret information to prevent any portion of the Confidential Information from being used in
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a manner that is not expressly an Authorized Purpose under this DUA or as Required by Law.
45 CFR 164.502(b)(1);45 CFR 164.514(d)
(B) Except as Required by Law,CONTRACTOR will not disclose or allow access
to any portion of the Confidential Information to any Person or other entity, other than
Authorized User's Workforce or Subcontractors (as defined in 45 C.ER. 160.103) of
CONTRACTOR who have completed training in confidentiality, privacy, security and the
importance of promptly reporting any Event or Breach to CONTRACTOR's management,to
carry out CONTRACTOR's obligations in connection with the Authorized Purpose.
HHS, at its election, may assist CONTRACTOR in training and education on specific or
unique HHS processes, systems and/or requirements. CONTRACTOR will produce
evidence of completed training to HHS upon request. 45 C.F.R. 164.308(a)(5)(i); Texas
Health & Safety Code§181.101
All of CONTRACTOR's Authorized Users, Workforce and Subcontractors with access to a state
computer system or database will complete a cybersecurity training program certified under Texas
Government Code Section 2054.519 by the Texas Department of Information Resources or offered
under Texas Government Code Sec. 2054.519(f).
(C) CONTRACTOR will establish, implement and maintain appropriate
sanctions against any member of its Workforce or Subcontractor who fails to comply with this
DUA, the Base Contract or applicable law. CON IRACTOR will maintain evidence of
sanctions and produce it to HHS upon request.45 C.ER. 164.308(a)(1)(ii)(C); 164.530(e);
164.410(b); 164.530(b)(1)
(D) CONTRACTOR will not, except as otherwise permitted by this DUA,
disclose or provide access to any Confidential Information on the basis that such act is
Required by Law without notifying either HHS or CONTRACTOR's own legal counsel to
determine whether CONTRACTOR should object to the disclosure or access and seek
appropriate relief. CON IRACTOR will maintain an accounting of all such requests for
disclosure and responses and provide such accounting to HHS within 48 hours of HHS'
request. 45 CFR 164.504(e)(2)(ii)(A)
(E) CONTRACTOR will not attempt to re-identify or further identify
Confidential Information or De-identified Information,or attempt to contact any Individuals
whose records are contained in the Confidential Information, except for an Authorized
Purpose, without express written authorization from HHS or as expressly permitted by the
Base Contract. 45 CFR 164.502(d)(2)(i) and (ii) CONTRACTOR will not engage in
prohibited marketing or sale of Confidential Information. 45 CFR 164.501, 164.508(a)(3)
and(4); Texas Health &Safety Code Ch. 181.002
(F) CONTRACTOR will not permit, or enter into any agreement with a
Subcontractor to, create, receive, maintain, use, disclose, have access to or transmit
Confidential Information to carry out CONTRACTOR's obligations in connection with the
Authorized Purpose on behalf of CONTRACTOR, unless Subcontractor agrees to comply
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with all applicable laws, rules and regulations. 45 CFR 164.502(e)(1)(ii); 164.504(e)(1)(i)
and(2).
(G) CONTRACTOR is directly responsible for compliance with,and enforcement
of, all conditions for creation, maintenance, use, disclosure, transmission and Destruction of
Confidential Information and the acts or omissions of Subcontractors as may be reasonably
necessary to prevent unauthorized use. 45 CFR 164.504(e)(5);42 CFR 431.300, et seq.
(H) If CONTRACTOR maintains PHI in a Designated Record Set which is
Confidential Information and subject to this Agreement, CONTRACTOR will make PHI
available to HHS in a Designated Record Set upon request.CONTRACTOR will provide PHI
to an Individual, or Legally Authorized Representative of the Individual who is requesting
PHI in compliance with the requirements of the HIPAA Privacy Regulations.
CONTRACTOR will release PHI in accordance with the HIPAA Privacy Regulations upon
receipt of a valid written authorization. CONTRACTOR will make other Confidential
Information in CONTRACTOR's possession available pursuant to the requirements of
HIPAA or other applicable law upon a determination of a Breach of Unsecured PHI as defined
in HIPAA. CON TRACTOR will maintain an accounting of all such disclosures and provide
it to HHS within 48 hours of HHS'request. 45 CFR 164.524and 164.504(e)(2)(ii)(E).
(I) If PHI is subject to this Agreement, CONTRACTOR will make PHI as
required by HIPAA available to HHS for review subsequent to CONTRACTOR's
incorporation of any amendments requested pursuant to HIPAA. 45 CFR
164.504(e)(2)(ii)(E) and(F).
(J) If PHI is subject to this Agreement,CONTRACTOR will document and make
available to HHS the PHI required to provide access, an accounting of disclosures or
amendment in compliance with the requirements of the HIPAA Privacy Regulations.45 CFR
164.504(e)(2)(ii)(G)and 164.528.
(K) If CONTRACTOR receives a request for access, amendment or accounting
of PHI from an individual with a right of access to information subject to this DUA, it will
respond to such request in compliance with the HIPAA Privacy Regulations.
CONTRACTOR will maintain an accounting of all responses to requests for access to or
amendment of PHI and provide it to HHS within 48 hours of HHS' request. 45 CFR
164.504(e)(2).
(L) CONTRACTOR will provide, and will cause its Subcontractors and agents
to provide, to HHS periodic written certifications of compliance with controls and
provisions relating to information privacy, security and breach notification, including
without limitation information related to data transfers and the handling and disposal of
Confidential Information. 45 CFR 164.308; 164.530(c); 1 TAC 202.
(M) Except as otherwise limited by this DUA, the Base Contract, or law
applicable to the Confidential Information, CONTRACTOR may use PHI for the proper
management and administration of CONTRACTOR or to carry out CONTRACTOR's
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legal responsibilities. Except as otherwise limited by this DUA, the Base Contract, or law
applicable to the Confidential Information, CONTRACTOR may disclose PHI for the
proper management and administration of CONTRACTOR, or to carry out
CONTRACTOR's legal responsibilities, if: 45 CFR 164.504(e)(4)(A).
(1) Disclosure is Required by Law,provided that CONTRACTOR complies with
Section 3.01(D); or
(2) CONTRACTOR obtains reasonable assurances from the person or entity to
which the information is disclosed that the person or entity will:
(a)Maintain the confidentiality of the Confidential Information in accordance
with this DUA;
(b) Use or further disclose the information only as Required by Law or for
the Authorized Purpose for which it was disclosed to the Person; and
(c)Notify CONTRACTOR in accordance with Section 4.01 of any Event or
Breach of Confidential Information of which the Person discovers or should have
discovered with the exercise of reasonable diligence. 45 CFR
164.504(e)(4)(ii)(B).
(N) Except as otherwise limited by this DUA, CONTRACTOR will, if required
by law and requested by HHS,use commercially reasonable efforts to use PHI to provide data
aggregation services to HHS, as that term is defined in the HIPAA, 45 C.F.R. §164.501 and
permitted by HIPAA. 45 CFR 164.504(e)(2)(i)(B)
(0) CONTRACTOR will, on the termination or expiration of this DUA or the
Base Contract, at its expense, send to HHS or Destroy, at HHS's election and to the extent
reasonably feasible and permissible by law, all Confidential Information received from HHS
or created or maintained by CONTRACTOR or any of CONTRACTOR's agents or
Subcontractors on HHS's behalf if that data contains Confidential Information.
CONTRACTOR will certify in writing to HHS that all the Confidential Information that has
been created, received, maintained, used by or disclosed to CONTRACTOR, has been
Destroyed or sent to HHS, and that CONTRACTOR and its agents and Subcontractors have
retained no copies thereof. Notwithstanding the foregoing, HHS acknowledges and agrees
that CONTRACTOR is not obligated to send to HHSC and/or Destroy any Confidential
Information if federal law, state law, the Texas State Library and Archives Commission
records retention schedule, and/or a litigation hold notice prohibit such delivery or
Destruction. If such delivery or Destruction is not reasonably feasible,or is impermissible by
law, CONTRACTOR will immediately notify HITS of the reasons such delivery or
Destruction is not feasible,and agree to extend indefinitely the protections of this DUA to the
Confidential Information and limit its further uses and disclosures to the purposes that make
the return delivery or Destruction of the Confidential Information not feasible for as long as
CONTRACTOR maintains such Confidential Information. 45 CFR 164.504(e)(2)(ii)(.7)
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(P) CONTRACTOR will create, maintain, use, disclose, transmit or Destroy
Confidential Information in a secure fashion that protects against any reasonably anticipated
threats or hazards to the security or integrity of such information or unauthorized uses. 45
CFR 164.306;164.530(c)
(Q) If CONTRACTOR accesses,transmits, stores, and/or maintains Confidential
Information, CONTRACTOR will complete and return to HHS at
infosecurity@hhsc.state.tx.us the HHS information security and privacy initial inquiry(SPI)
at Attachment 1 . The SPI identifies basic privacy and security controls with which
CONTRACTOR must comply to protect HHS Confidential Information. CONTRACTOR
will comply with periodic security controls compliance assessment and monitoring by HHS
as required by state and federal law, based on the type of Confidential Information
CONTRACTOR creates, receives, maintains, uses, discloses or has access to and the
Authorized Purpose and level of risk. CONTRACTOR's security controls will be based on
the National Institute of Standards and Technology (NIST) Special Publication 800-53.
CONTRACTOR will update its security controls assessment whenever there are significant
changes in security controls for HHS Confidential Information and will provide the updated
document to HHS. HHS also reserves the right to request updates as needed to satisfy state
and federal monitoring requirements. 45 CFR 164.306.
(R) CONTRACTOR will establish, implement and maintain reasonable
procedural, administrative, physical and technical safeguards to preserve and maintain the
confidentiality,integrity,and availability of the Confidential Information,and with respect to
PHI, as described in the HTPAA Privacy and Security Regulations,or other applicable laws
or regulations relating to Confidential Information, to prevent any unauthorized use or
disclosure of Confidential Information as long as CONTRACTOR has such Confidential
Information in its actual or constructive possession. 45 CFR 164.308 (administrative
safeguards); 164.310 (physical safeguards); 164.312 (technical safeguards);
164.530(c)(privacy safeguards).
(S) CONTRACTOR will designate and identify, a Person or Persons, as Privacy
Official 45 CFR 164.530(a)(1)and Information Security Official,each of whom is authorized
to act on behalf of CONTRACTOR and is responsible for the development and
implementation of the privacy and security requirements in this DUA. CONTRACTOR will
provide name and current address, phone number and e-mail address for such designated
officials to HHS upon execution of this DUA and prior to any change. If such persons fail to
develop and implement the requirements of the DUA, CONTRACTOR will replace them
upon HHS request. 45 CFR 164.308(a)(2).
(T) CONTRACTOR represents and warrants that its Authorized Users each have
a demonstrated need to know and have access to Confidential Information solely to the
minimum extent necessary to accomplish the Authorized Purpose pursuant to this DUA and
the Base Contract, and further,that each has agreed in writing to be bound by the disclosure
and use limitations pertaining to the Confidential Information contained in this DUA. 45
CFR 164.502; 164.514(d).
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(U) CONTRACTOR and its Subcontractors will maintain an updated, complete,
accurate and numbered list of Authorized Users, their signatures, titles and the date they
agreed to be bound by the terms of this DUA, at all times and supply it to HHS, as directed,
upon request.
(V) CONTRACTOR will implement, update as necessary, and document
reasonable and appropriate policies and procedures for privacy, security and Breach of
Confidential Information and an incident response plan for an Event or Breach, to comply
with the privacy, security and breach notice requirements of this DUA prior to conducting
work under the Statement of Work. 45 CFR 164.308;164.316;164.514(d);164.530(i)(1).
(W) CONTRACTOR will produce copies of its information security and privacy
policies and procedures and records relating to the use or disclosure of Confidential
Information received from,created by,or received,used or disclosed by CONTRACTOR for
an Authorized Purpose for HHS's review and approval within 30 days of execution of this
DUA and upon request by HHS the following business day or other agreed upon time frame.
45 CFR 164.308;164.514(d).
(X) CONTRACTOR will make available to HHS any information HHS requires
to fulfill HHS's obligations to provide access to,or copies of,PHI in accordance with HIPAA
and other applicable laws and regulations relating to Confidential Information.
CONTRACTOR will provide such information in a time and manner reasonably agreed upon
or as designated by the Secretary of the U.S. Department of Health and Human Services, or
other federal or state law. 45 CFR 164.504(e)(2)(i)(I).
(Y) CONTRACTOR will only conduct secure transmissions of Confidential
Information whether in paper, oral or electronic form, in accordance with applicable rules,
regulations and laws.A secure transmission of electronic Confidential Information in motion
includes, but is not limited to, Secure File Transfer Protocol (SFTP) or Encryption at an
appropriate level. If required by rule,regulation or law,HHS Confidential Information at rest
requires Encryption unless there is other adequate administrative, technical, and physical
security.All electronic data transfer and communications of Confidential Information will be
through secure systems. Proof of system,media or device security and/or Encryption must be
produced to HHS no later than 48 hours after HHS's written request in response to a
compliance investigation,audit or the Discovery of an Event or Breach. Otherwise,requested
production of such proof will be made as agreed upon by the parties.De-identification of HHS
Confidential Information is a means of security With respect to de-identification of PHI,
"secure"means de-identified according to HIPAA Privacy standards and regulatory guidance.
45 CFR 164.312;164.530(d).
(Z) For each type of Confidential Information CONTRACTOR creates,receives,
maintains,uses, discloses,has access to or transmits in the performance of the Statement of
Work, CONTRACTOR will comply with the following laws rules and regulations, only to
the extent applicable and required by law:
• Title 1, Part 10, Chapter 202, Subchapter B, Texas Administrative Code;
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• The Privacy Act of 1974;
• OMB Memorandum 07-16;
• The Federal Information Security Management Act of 2002 (FISMA);
• The Health Insurance Portability and Accountability Act of 1996 (HIPAA)
as defined in the DUA;
• Internal Revenue Publication 1075 —Tax Information Security Guidelines
for Federal, State and Local Agencies;
• National Institute of Standards and Technology(MIST) Special Publication
800-66 Revision 1 —An Introductory Resource Guide for Implementing the
Health Insurance Portability and Accountability Act (HIPAA) Security
Rule;
• NIST Special Publications 800-53 and 800-53A—Recommended Security
Controls for Federal Information Systems and Organizations, as currently
revised;
• NIST Special Publication 800-47 — Security Guide for Interconnecting
Information Technology Systems;
• NIST Special Publication 800-88, Guidelines for Media Sanitization;
• NIST Special Publication 800-111, Guide to Storage of Encryption
Technologies for End User Devices containing PHI; and
Any other State or Federal law,regulation,or administrative rule relating to the specific HHS
program area that CONTRACTOR supports on behalf of HHS.
(AA) Notwithstanding anything to the contrary herein, CONTRACTOR will treat
any Personal Identifying Information it creates,receives,maintains,uses,transmits,destroys
and/or discloses in accordance with Texas Business and Commerce Code, Chapter 521 and
other applicable regulatory standards identified in Section 3.01(Z), and Individually
Identifiable Health Information CONTRACTOR creates, receives, maintains, uses,
transmits, destroys and/or discloses in accordance with HIPAA and other applicable
regulatory standards identified in Section 3.01(Z).
ARTICLE 4.
BREACH NOTICE,REPORTING AND CORRECTION REQUIREMENTS
4.01 Breach or Event Notification to HHS. 45 CFR 164.400-414.
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(A) CONTRACTOR will cooperate fully with HHS in investigating,mitigating to
the extent practicable and issuing notifications directed by HHS, for any Event or Breach of
Confidential Information to the extent and in the manner determined by HHS.
(B) CONTRACTOR'S obligation begins at the Discovery of an Event or Breach
and continues as long as related activity continues,until all effects of the Event are mitigated
to HHS's reasonable satisfaction(the"incident response period"). 45 CFR 164.404.
(C) Breach Notice:
(1) Initial Notice.
(a) For federal information, including without limitation, Federal
Tax Information, Social Security Administration Data, and Medicaid Client
Information, within the first, consecutive clock hour of Discovery, and for
all other types of Confidential Information not more than 24 hours after
Discovery,or in a timeframe otherwise approved by HHS in writing,initially
report to HHS's Privacy and Security Officers via email at:
privacy@HHSC.state.tx.us and to the HHS division responsible for this
DUA; and IRS Publication 1075; Privacy Act of 1974, as amended by the
Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. § 552a;
OMB Memorandum 07-16 as cited in HHSC-CMS Contracts for
information exchange.
(b) Report all information reasonably available to
CONTRACTOR about the Event or Breach of the privacy or security of
Confidential Information. 45 CFR 164.410.
(c) Name, and provide contact information to HHS for,
CONTRACTOR's single point of contact who will communicate with HHS
both on and off business hours during the incident response period.
(2) Formal Notice.No later than two business days after the Initial Notice
above, provide formal notification to privacy@HHSC.state.tx.us and to the HHS
division responsible for this DUA, including all reasonably available information
about the Event or Breach, and CONTRACTOR's investigation, including without
limitation and to the extent available:For(a) -(m)below:45 CFR 164.400-414.
(a) The date the Event or Breach occurred;
(b) The date of CONTRACTOR's and, if applicable,
Subcontractor's Discovery;
(c) A brief description of the Event or Breach; including how it
occurred and who is responsible(or hypotheses, if not yet determined);
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(d) A brief description of CONTRACTOR's investigation and the
status of the investigation;
(e) A description of the types and amount of Confidential
Information involved;
(f) Identification of and number of all Individuals reasonably
believed to be affected,including first and last name of the Individual and if
applicable the, Legally Authorized Representative, last known address,
age,telephone number,and email address if it is a preferred contact method,
to the extent known or can be reasonably determined by CONTRACTOR at
that time;
(g) CONTRACTOR's initial risk assessment of the Event or
Breach demonstrating whether individual or other notices are required by
applicable law or this DUA for HHS approval, including an analysis of
whether there is a low probability of compromise of the Confidential
Information or whether any legal exceptions to notification apply;
(h) CONTRACTOR's recommendation for HHS's approval as to
the steps Individuals and/or CONTRACTOR on behalf of Individuals,
should take to protect the Individuals from potential harm,including without
limitation CONTRACTOR's provision of notifications, credit protection,
claims monitoring, and any specific protections for a Legally Authorized
Representative to take on behalf of an Individual with special capacity or
circumstances;
(i) The steps CONTRACTOR has taken to mitigate the harm or
potential harm caused (including without limitation the provision of
sufficient resources to mitigate);
(j) The steps CON 1RACTOR has taken, or will take, to prevent
or reduce the likelihood of recurrence of a similar Event or Breach;
(k) Identify, describe or estimate the Persons, Workforce,
Subcontractor,or Individuals and any law enforcement that may be involved
in the Event or Breach;
(1) A reasonable schedule for CONTRACTOR to provide regular
updates during normal business hours to the foregoing in the future for
response to the Event or Breach, but no less than every three (3) business
days or as otherwise directed by HHS, including information about risk
estimations,reporting,notification,if any,mitigation,corrective action,root
cause analysis and when such activities are expected to be completed; and
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(m) Any reasonably available,pertinent information,documents or
reports related to an Event or Breach that HHS requests following
Discovery.
4.02 Investigation,Response and Mitigation.45 CFR 164.308,310 and 312; 164.530
(A) CONTRACTOR will immediately conduct a full and complete investigation,
respond to the Event or Breach, commit necessary and appropriate staff and resources to
expeditiously respond, and report as required to and by HHS for incident response purposes
and for purposes of HHS's compliance with report and notification requirements, to the
reasonable satisfaction of HHS.
(B) CONTRACTOR will complete or participate in a risk assessment as directed
by HHS following an Event or Breach, and provide the final assessment, corrective actions
and mitigations to HHS for review and approval.
(C) CONTRACTOR will fully cooperate with HHS to respond to inquiries and/or
proceedings by state and federal authorities, Persons and/or Individuals about the Event or
Breach.
(D) CONTRACTOR will fully cooperate with HHS's efforts to seek appropriate
injunctive relief or otherwise prevent or curtail such Event or Breach,or to recover or protect
any Confidential Information, including complying with reasonable corrective action or
measures,as specified by HHS in a Corrective Action Plan if directed by HHS under the Base
Contract.
4.03 Breach Notification to Individuals and Reporting to Authorities. Tex. Bus. &
Comm. Code §521.053; 45 CFR 164.404 (Individuals), 164.406 (Media); 164.408
(Authorities)
(A) HHS may direct CONTRACTOR to provide Breach notification to
Individuals,regulators or third-parties, as specified by HHS following a Breach.
(B) CONTRACTOR shall give HHS an opportunity to review and provide
feedback to CON I'RACTOR and to confirm that CONTRACTOR's notice meets all
regulatory requirements regarding the time, manner and content of any notification to
Individuals, regulators or third-parties, or any notice required by other state or federal
authorities, including without limitation, notifications required by Texas Business and
Commerce Code, Chapter 521.053(b)and HIPAA. HHS shall have ten(10)business days to
provide said feedback to CONTRACTOR. Notice letters will be in CONTRACTOR's name
and on CONTRACTOR's letterhead, unless otherwise directed by HHS, and will contain
contact information, including the name and title of CONTRACTOR's representative, an
email address and a toll-free telephone number, if required by applicable law, rule, or
regulation, for the Individual to obtain additional information.
(C) CONTRACTOR will provide HHS with copies of distributed and approved
communications.
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(D) CONTRACTOR will have the burden of demonstrating to the reasonable
satisfaction of HHS that any notification required by HHS was timely made.If there are delays
outside of CONTRACTOR's control,CONTRACTOR will provide written documentation of
the reasons for the delay.
(E) If HHS delegates notice requirements to CON TRACTOR, HHS shall, in the
time and manner reasonably requested by CONTRACTOR, cooperate and assist with
CONTRACTOR's information requests in order to make such notifications and reports.
ARTICLE 5.
STATEMENT OF WORK
"Statement of Work" means the services and deliverables to be performed or provided by
CONTRACTOR, or on behalf of CONTRACTOR by its Subcontractors or agents for HHS that are
described in detail in the Base Contract. The Statement of Work, including any future amendments
thereto, is incorporated by reference in this DUA as if set out word-for-word herein.
ARTICLE 6.
GENERAL PROVISIONS
6.01 Oversight of Confidential Information
CONTRACTOR acknowledges and agrees that HHS is entitled to oversee and monitor
CONTRACTOR's access to and creation,receipt,maintenance,use,disclosure of the Confidential
Information to confirm that CONTRACTOR is in compliance with this DUA.
6.02 HHS Commitment and Obligations
HHS will not request CON TRACTOR to create,maintain,transmit,use or disclose PHI in
any manner that would not be permissible under applicable law if done by HHS.
6.03 HHS Right to Inspection
At any time upon reasonable notice to CONTRACTOR, or if HHS determines that
CONTRACTOR has violated this DUA, HHS, directly or through its agent, will have the right to
inspect the facilities,systems,books and records of CONTRACTOR to monitor compliance with this
DUA. For purposes of this subsection,HHS's agent(s)include,without limitation,the HHS Office of
the Inspector General or the Office of the Attorney General of Texas, outside consultants or legal
counsel or other designee.
6.04 Term; Termination of DUA; Survival
This DUA will be effective on the date on which CONTRACTOR executes the DUA, and
will terminate upon termination of the Base Contract and as set forth herein. If the Base Contract is
extended or amended, this DUA shall be extended or amended concurrent with such extension or
amendment.
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(A) HHS may immediately terminate this DUA and Base Contract upon a material
violation of this DUA.
(B) Termination or Expiration of this DUA will not relieve CONTRACTOR of its
obligation to return or Destroy the Confidential Information as set forth in this DUA and to
continue to safeguard the Confidential Information until such time as determined by HHS.
(C) If HHS determines that CONTRACTOR has violated a material term of this
DUA; HHS may in its sole discretion:
(1) Exercise any of its rights including but not limited to reports, access
and inspection under this DUA and/or the Base Contract; or
(2) Require CONTRACTOR to submit to a Corrective Action Plan,
including a plan for monitoring and plan for reporting, as HHS may determine
necessary to maintain compliance with this DUA;or
(3) Provide CONTRACTOR with a reasonable period to cure the
violation as determined by HHS; or
(4) Terminate the DUA and Base Contract immediately, and seek relief in
a court of competent jurisdiction in Texas.
Before exercising any of these options, HHS will provide written notice to
CONTRACTOR describing the violation,the requested corrective action CONTRACTOR
may take to cure the alleged violation, and the action HHS intends to take if the alleged
violated is not timely cured by CONTRACTOR.
(D) If neither termination nor cure is feasible,HHS shall report the violation to the
Secretary of the U.S. Department of Health and Human Services.
(E) The duties of CONTRACTOR or its Subcontractor under this DUA survive
the expiration or termination of this DUA until all the Confidential Information is Destroyed
or returned to HHS,as required by this DUA.
6.05 Governing Law,Venue and Litigation
(A) The validity,construction and performance of this DUA and the legal relations
among the Parties to this DUA will be governed by and construed in accordance with the laws
of the State of Texas.
(B) The Parties agree that the courts of Texas,will be the exclusive venue for any
litigation, special proceeding or other proceeding as between the parties that may be brought,
or arise out of, or in connection with, or by reason of this DUA.
6.06 Injunctive Relief
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(A) CONTRACTOR acknowledges and agrees that HHS may suffer irreparable
injury if CONTRACTOR or its Subcontractor fails to comply with any of the terms of this
DUA with respect to the Confidential Information or a provision of HIPAA or other laws or
regulations applicable to Confidential Information.
(B) CONTRACTOR further agrees that monetary damages may be inadequate to
compensate HHS for CONTRACTOR's or its Subcontractor's failure to comply.Accordingly,
CONTRACTOR agrees that HHS will, in addition to any other remedies available to it at law
or in equity, be entitled to seek injunctive relief without posting a bond and without the
necessity of demonstrating actual damages,to enforce the terms of this DUA.
6.07 Responsibility.
To the extent permitted by the Texas Constitution, laws and rules, and without waiving any
immunities or defenses available to CONTRACTOR as a governmental entity, CONTRACTOR
shall be solely responsible for its own acts and omissions and the acts and omissions of its
employees, directors, officers, Subcontractors and agents. HHS shall be solely responsible for its
own acts and omissions.
6.08 Insurance
(A) As a governmental entity, and in accordance with the limits of the Texas Tort
Claims Act, Chapter 101 of the Texas Civil Practice and Remedies Code, CONTRACTOR
either maintains commercial insurance or self-insures with policy limits in an amount
sufficient to cover CONTRACTOR's liability arising under this DUA. CONTRACTOR will
request that HHS be named as an additional insured. HHSC reserves the right to consider
alternative means for CONTRACTOR to satisfy CONTRACTOR's financial responsibility
under this DUA.Nothing herein shall relieve CONTRACTOR of its financial obligations set
forth in this DUA if CONTRACTOR fails to maintain insurance.
(B) CONTRACTOR will provide HHS with written proof that required insurance
coverage is in effect, at the request of HRS.
6.08 Fees and Costs
Except as otherwise specified in this DUA or the Base Contract, if any legal action or other
proceeding is brought for the enforcement of this DUA, or because of an alleged dispute, contract
violation, Event, Breach, default, misrepresentation, or injunctive action, in connection with any of
the provisions of this DUA, each party will bear their own legal expenses and the other cost incurred
in that action or proceeding.
6.09 Entirety of the Contract
This DUA is incorporated by reference into the Base Contract as an amendment thereto
and, together with the Base Contract, constitutes the entire agreement between the parties. No
change, waiver, or discharge of obligations arising under those documents will be valid unless in
writing and executed by the party against whom such change,waiver, or discharge is sought to be
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enforced. If any provision of the Base Contract, including any General Provisions or Uniform
Terms and Conditions, conflicts with this DUA, this DUA controls.
6.10 Automatic Amendment and Interpretation
If there is (i) a change in any law, regulation or rule, state or federal, applicable to HIPPA and/or
Confidential Information, or(ii) any change in the judicial or administrative interpretation of any
such law,regulation or rule„ upon the effective date of such change,this DUA shall be deemed to
have been automatically amended, interpreted and read so that the obligations imposed on HHS
and/or CONTRACTOR remain in compliance with such changes.Any ambiguity in this DUA will
be resolved in favor of a meaning that permits HHS and CONTRACTOR to comply with HIPAA
or any other law applicable to Confidential Information.
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View Burden Statement OMB Number:4040-0007
Expiration Date:02/28/2022
ASSURANCES -NON-CONSTRUCTION PROGRAMS
Public reporting burden for this collection of information is estimated to average 15 minutes per response, including time for reviewing
instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of
information.Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for
reducing this burden,to the Office of Management and Budget, Paperwork Reduction Project(0348-0040),Washington, DC 20503.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND
IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
NOTE: Certain of these assurances may not be applicable to your project or program. If you have questions, please contact the
awarding agency. Further, certain Federal awarding agencies may require applicants to certify to additional assurances.
If such is the case,you will be notified.
As the duly authorized representative of the applicant, I certify that the applicant:
1. Has the legal authority to apply for Federal assistance Act of 1973, as amended (29 U.S.C. §794),which
and the institutional, managerial and financial capability prohibits discrimination on the basis of handicaps; (d)
(including funds sufficient to pay the non-Federal share the Age Discrimination Act of 1975, as amended (42 U.
of project cost)to ensure proper planning, management S.C.§§6101-6107),which prohibits discrimination on
and completion of the project described in this the basis of age; (e)the Drug Abuse Office and
application. Treatment Act of 1972(P.L.92-255), as amended,
relating to nondiscrimination on the basis of drug
2. Will give the awarding agency, the Comptroller General abuse; (f)the Comprehensive Alcohol Abuse and
of the United States and, if appropriate,the State, Alcoholism Prevention, Treatment and Rehabilitation
through any authorized representative, access to and Act of 1970(P.L.91-616), as amended, relating to
the right to examine all records, books, papers, or nondiscrimination on the basis of alcohol abuse or
documents related to the award; and will establish a alcoholism; (g)§§523 and 527 of the Public Health
proper accounting system in accordance with generally Service Act of 1912(42 U.S.C. §§290 dd-3 and 290
accepted accounting standards or agency directives. ee-3),as amended, relating to confidentiality of alcohol
and drug abuse patient records; (h)Title VIII of the Civil
3. Will establish safeguards to prohibit employees from Rights Act of 1968 (42 U.S.C. §§3601 et seq.), as
using their positions for a purpose that constitutes or amended, relating to nondiscrimination in the sale,
presents the appearance of personal or organizational rental or financing of housing; (i)any other
conflict of interest, or personal gain. nondiscrimination provisions in the specific statute(s)
under which application for Federal assistance is being
4. Will initiate and complete the work within the applicable made; and, (j)the requirements of any other
appdiscrimination statute(s)which may apply to the
time frame after receipt of approval of the awarding
application.
agency.
7. Will comply,or has already complied,with the
5. Will comply with the Intergovernmental Personnel Act of requirements of Titles II and III of the Uniform
1970 (42 U.S.C.§§4728-4763)relating to prescribed Relocation Assistance and Real Property Acquisition
standards for merit systems for programs funded under Policies Act of 1970 (P.L.91-646)which provide for
one of the 19 statutes or regulations specified in fair and equitable treatment of persons displaced or
Appendix A of OPM's Standards for a Merit System of whose property is acquired as a result of Federal or
Personnel Administration(5 C.F.R. 900, Subpart F). federally-assisted programs.These requirements
apply to all interests in real property acquired for
6. Will comply with all Federal statutes relating to project purposes regardless of Federal participation in
nondiscrimination.These include but are not limited to: purchases.
(a)Title VI of the Civil Rights Act of 1964 (P.L. 88-352)
which prohibits discrimination on the basis of race, color 8. Will comply, as applicable,with provisions of the
or national origin; (b)Title IX of the Education Hatch Act(5 U.S.C.§§1501-1508 and 7324-7328)
Amendments of 1972, as amended (20 U.S.C.§§1681- which limit the political activities of employees whose
1683, and 1685-1686),which prohibits discrimination on principal employment activities are funded in whole
the basis of sex; (c)Section 504 of the Rehabilitation or in part with Federal funds.
Previous Edition Usable Standard Form 424E(Rev.7-97)
Authorized for Local Reproduction Prescribed by OMB Circular A-102
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
9. Will comply, as applicable,with the provisions of the Davis- 13. Will assist the awarding agency in assuring compliance
Bacon Act(40 U.S.C.§§276a to 276a-7),the Copeland Act with Section 106 of the National Historic Preservation
(40 U.S.C. §276c and 18 U.S.C. §874),and the Contract Act of 1966, as amended (16 U.S.C. §470), EO 11593
Work Hours and Safety Standards Act(40 U.S.C. §§327- (identification and protection of historic properties), and
333), regarding labor standards for federally-assisted the Archaeological and Historic Preservation Act of
construction subagreements. 1974 (16 U.S.C. §§469a-1 et seq.).
10. Will comply, if applicable,with flood insurance purchase 14. Will comply with P.L.93-348 regarding the protection of
requirements of Section 102(a)of the Flood Disaster human subjects involved in research, development, and
Protection Act of 1973 (P.L.93-234)which requires related activities supported by this award of assistance.
recipients in a special flood hazard area to participate in the 15. Will comply with the Laboratory Animal Welfare Act of
program and to purchase flood insurance if the total cost of 1966 (P.L. 89-544, as amended, 7 U.S.C. §§2131 et
insurable construction and acquisition is$10,000 or more. seq.)pertaining to the care, handling, and treatment of
11. Will comply with environmental standards which may be warm blooded animals held for research,teaching, or
prescribed pursuant to the following: (a)institution of other activities supported by this award of assistance.
environmental quality control measures under the National 16. Will comply with the Lead-Based Paint Poisoning
Environmental Policy Act of 1969 (P.L.91-190)and Prevention Act(42 U.S.C.§§4801 et seq.)which
Executive Order(EO) 11514; (b)notification of violating prohibits the use of lead-based paint in construction or
facilities pursuant to EO 11738; (c) protection of wetlands rehabilitation of residence structures.
pursuant to EO 11990; (d)evaluation of flood hazards in
floodplains in accordance with EO 11988; (e)assurance of 17, Will cause to be performed the required financial and
project consistency with the approved State management compliance audits in accordance with the Single Audit
program developed under the Coastal Zone Management Act Amendments of 1996 and OMB Circular No. A-133,
Act of 1972 (16 U.S.C. §§1451 et seq.); (f)conformity of "Audits of States, Local Governments, and Non-Profit
Federal actions to State (Clean Air) Implementation Plans Organizations."
under Section 176(c)of the Clean Air Act of 1955, as
amended (42 U.S.C.§§7401 et seq.); (g)protection of 18. Will comply with all applicable requirements of all other
underground sources of drinking water under the Safe Federal laws, executive orders, regulations, and policies
Drinking Water Act of 1974, as amended (P.L. 93-523); governing this program.
and, (h) protection of endangered species under the
Endangered Species Act of 1973, as amended (P.L. 93- 19. Will comply with the requirements of Section 106(g)of
205). the Trafficking Victims Protection Act(TVPA)of 2000, as
amended (22 U.S.C. 7104)which prohibits grant award
12. Will comply with the Wild and Scenic Rivers Act of recipients or a sub-recipient from (1) Engaging in severe
1968 (16 U.S.C.§§1271 et seq.)related to protecting forms of trafficking in persons during the period of time
components or potential components of the national that the award is in effect(2) Procuring a commercial
wild and scenic rivers system. sex act during the period of time that the award is in
effect or(3)Using forced labor in the performance of the
award or subawards under the award.
SIGNATURE OF AUTHORIZED CERTIFYING OFFICIAL TITLE
APPLICANT ORGANIZATION DATE SUBMITTED
Standard Form 424B(Rev.7-97)Back
DocuSign Envelope ID:F40354E2-D741-4624-AFFE-9F23E40FA441
HEALTH AND HUMAN SERVICES
Contract Number HHS001076500001
EXHIBIT/ATTACHMENT G. CONTRACT AFFIRMATIONS
For purposes of these Contract Affirmations, HHS includes both the Health and Human Services
Commission(HHSC)and the Department of State Health Services(DSHS). System Agency refers
to HHSC, DSHS, or both, that will be a party to this Contract. These Contract Affirmations apply
to all Contractors regardless of their business form (e.g., individual, partnership, corporation).
By entering into this Contract, Contractor affirms, without exception, understands, and agrees to
comply with the following items through the life of the Contract:
1. Contractor represents and warrants that these Contract Affirmations apply to Contractor
and all of Contractor's principals,officers,directors,shareholders,partners,owners,agents,
employees, subcontractors, independent contractors, and any other representatives who
may provide services under,who have a financial interest in, or otherwise are interested in
this Contract and any related Solicitation.
2. Complete and Accurate Information
Contractor represents and warrants that all statements and information provided to HHS
are current, complete, and accurate. This includes all statements and information in this
Contract and any related Solicitation Response.
3. Public Information Act
Contractor understands that HHS will comply with the Texas Public Information Act
(Chapter 552 of the Texas Government Code) as interpreted by judicial rulings and
opinions of the Attorney General of the State of Texas. Information, documentation, and
other material prepared and submitted in connection with this Contract or any related
Solicitation may be subject to public disclosure pursuant to the Texas Public Information
Act. In accordance with Section 2252.907 of the Texas Government Code, Contractor is
required to make any information created or exchanged with the State pursuant to the
Contract, and not otherwise excepted from disclosure under the Texas Public Information
Act, available in a format that is accessible by the public at no additional charge to the
State.
4. Contracting Information Requirements
Contractor represents and warrants that it will comply with the requirements of Section
552.372(a) of the Texas Government Code. Except as provided by Section 552.374(c) of
the Texas Government Code, the requirements of Subchapter J (Additional Provisions
Related to Contracting Information), Chapter 552 of the Government Code, may apply to
the Contract and the Contractor agrees that the Contract can be terminated if the Contractor
knowingly or intentionally fails to comply with a requirement of that subchapter.
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5. Assignment
A. Contractor shall not assign its rights under the contract or delegate the performance of
its duties under the contract without prior written approval from System Agency. Any
attempted assignment in violation of this provision is void and without effect.
B. Contractor understands and agrees the System Agency may in one or more transactions
assign, pledge, or transfer the Contract. Upon receipt of System Agency's notice of
assignment, pledge, or transfer, Contractor shall cooperate with System Agency in
giving effect to such assignment,pledge, or transfer, at no cost to System Agency or to
the recipient entity.
6. Terms and Conditions
Contractor accepts the Solicitation terms and conditions unless specifically noted by
exceptions advanced in the form and manner directed in the Solicitation, if any, under
which this Contract was awarded. Contractor agrees that all exceptions to the Solicitation,
as well as terms and conditions advanced by Contractor that differ in any manner from
HHS' terms and conditions, if any, are rejected unless expressly accepted by System
Agency in writing.
7. HHS Right to Use
Contractor agrees that HHS has the right to use, produce, and distribute copies of and to
disclose to HHS employees, agents, and contractors and other governmental entities all or
part of this Contract or any related Solicitation Response as HHS deems necessary to
complete the procurement process or comply with state or federal laws.
8. Release from Liability
Contractor generally releases from liability and waives all claims against any party
providing information about the Contractor at the request of System Agency.
9. Dealings with Public Servants
Contractor has not given, has not offered to give, and does not intend to give at any time
hereafter any economic opportunity, future employment, gift, loan, gratuity, special
discount, trip, favor, or service to a public servant in connection with this Contract or any
related Solicitation, or related Solicitation Response.
10. Financial Participation Prohibited
Under Section 2155.004, Texas Government Code (relating to financial participation in
preparing solicitations), Contractor certifies that the individual or business entity named in
this Contract and any related Solicitation Response is not ineligible to receive this Contract
and acknowledges that this Contract may be terminated and payment withheld if this
certification is inaccurate.
11. Prior Disaster Relief Contract Violation
Under Sections 2155.006 and 2261.053 of the Texas Government Code (relating to
convictions and penalties regarding Hurricane Rita, Hurricane Katrina, and other
disasters), the Contractor certifies that the individual or business entity named in this
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Contract and any related Solicitation Response is not ineligible to receive this Contract and
acknowledges that this Contract may be terminated and payment withheld if this
certification is inaccurate.
12. Child Support Obligation
Under Section 231.006(d) of the Texas Family Code regarding child support, Contractor
certifies that the individual or business entity named in this Contract and any related
Solicitation Response is not ineligible to receive the specified payment and acknowledges
that the Contract may be terminated and payment may be withheld if this certification is
inaccurate.
13. Suspension and Debarment
Contractor certifies that it and its principals are not suspended or debarred from doing
business with the state or federal government as listed on the State of Texas Debarred
Vendor List maintained by the Texas Comptroller of Public Accounts and the System for
Award Management (SAM) maintained by the General Services Administration. This
certification is made pursuant to the regulations implementing Executive Order 12549 and
Executive Order 12689, Debarment and Suspension, 2 C.F.R. Part 376, and any relevant
regulations promulgated by the Department or Agency funding this project. This provision
shall be included in its entirety in Contractor's subcontracts, if any, if payment in whole or
in part is from federal funds.
14. Excluded Parties
Contractor certifies that it is not listed in the prohibited vendors list authorized by
Executive Order 13224, "Blocking Property and Prohibiting Transactions with Persons
Who Commit, Threaten to Commit, or Support Terrorism, "published by the United States
Department of the Treasury, Office of Foreign Assets Control.'
15. Foreign Terrorist Organizations
Contractor represents and warrants that it is not engaged in business with Iran, Sudan, or a
foreign terrorist organization, as prohibited by Section 2252.152 of the Texas Government
Code.
16. Executive Head of a State Agency
In accordance with Section 669.003 of the Texas Government Code,relating to contracting
with the executive head of a state agency,Contractor certifies that it is not(1)the executive
head of an HHS agency, (2)a person who at any time during the four years before the date
of this Contract was the executive head of an HHS agency, or(3) a person who employs a
current or former executive head of an HHS agency.
17. Human Trafficking Prohibition
Under Section 2155.0061 of the Texas Government Code, Contractor certifies that the
individual or business entity named in this Contract is not ineligible to receive this contract
and acknowledges that this Contract may be terminated and payment withheld if this
certification is inaccurate.
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18. Franchise Tax Status
Contractor represents and warrants that it is not currently delinquent in the payment of any
franchise taxes owed the State of Texas under Chapter 171 of the Texas Tax Code.
19. Debts and Delinquencies
Contractor agrees that any payments due under this Contract shall be applied towards any
debt or delinquency that is owed to the State of Texas.
20. Lobbying Prohibition
Contractor represents and warrants that payments to Contractor and Contractor's receipt of
appropriated or other funds under this Contract or any related Solicitation are not prohibited
by Sections 556.005, 556.0055, or 556.008 of the Texas Government Code (relating to use
of appropriated money or state funds to employ or pay lobbyists, lobbying expenses, or
influence legislation).
21. Buy Texas
Contractor agrees to comply with Section 2155.4441 of the Texas Government Code,
requiring the purchase of products and materials produced in the State of Texas in
performing service contracts.
22. Disaster Recovery Plan
Contractor agrees that upon request of System Agency, Contractor shall provide copies of
its most recent business continuity and disaster recovery plans.
23. Computer Equipment Recycling Program
If this Contract is for the purchase or lease of computer equipment,then Contractor certifies
that it is in compliance with Subchapter Y, Chapter 361 of the Texas Health and Safety
Code related to the Computer Equipment Recycling Program and the Texas Commission
on Environmental Quality rules in 30 TAC Chapter 328.
24. Television Equipment Recycling Program
If this Contract is for the purchase or lease of covered television equipment,then Contractor
certifies that it is compliance with Subchapter Z, Chapter 361 of the Texas Health and
Safety Code related to the Television Equipment Recycling Program.
25. Cybersecurity Training
A. Contractor represents and warrants that it will comply with the requirements of Section
2054.5192 of the Texas Government Code relating to cybersecurity training and
required verification of completion of the training program.
B. Contractor represents and warrants that if Contractor or Subcontractors, officers, or
employees of Contractor have access to any state computer system or database, the
Contractor, Subcontractors, officers, and employees of Contractor shall complete
cybersecurity training pursuant to and in accordance with Government Code, Section
2054.5192.
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26. Restricted Employment for Certain State Personnel
Contractor acknowledges that, pursuant to Section 572.069 of the Texas Government
Code, a former state officer or employee of a state agency who during the period of state
service or employment participated on behalf of a state agency in a procurement or contract
negotiation involving Contractor may not accept employment from Contractor before the
second anniversary of the date the Contract is signed or the procurement is terminated or
withdrawn.
27. No Conflicts of Interest
A. Contractor represents and warrants that it has no actual or potential conflicts of interest
in providing the requested goods or services to System Agency under this Contract or
any related Solicitation and that Contractor's provision of the requested goods and/or
services under this Contract and any related Solicitation will not constitute an actual or
potential conflict of interest or reasonably create an appearance of impropriety.
B. Contractor agrees that, if after execution of the Contract, Contractor discovers or is
made aware of a Conflict of Interest, Contractor will immediately and fully disclose
such interest in writing to System Agency. In addition, Contractor will promptly and
fully disclose any relationship that might be perceived or represented as a conflict after
its discovery by Contractor or by System Agency as a potential conflict. System
Agency reserves the right to make a final determination regarding the existence of
Conflicts of Interest, and Contractor agrees to abide by System Agency's decision.
28. Fraud,Waste, and Abuse
Contractor understands that HHS does not tolerate any type of fraud, waste, or abuse.
Violations of law, agency policies, or standards of ethical conduct will be investigated, and
appropriate actions will be taken. Pursuant to Texas Government Code, Section 321.022,
if the administrative head of a department or entity that is subject to audit by the state
auditor has reasonable cause to believe that money received from the state by the
department or entity or by a client or contractor of the department or entity may have been
lost,misappropriated,or misused,or that other fraudulent or unlawful conduct has occurred
in relation to the operation of the department or entity, the administrative head shall report
the reason and basis for the belief to the Texas State Auditor's Office(SAO).All employees
or contractors who have reasonable cause to believe that fraud,waste,or abuse has occurred
(including misconduct by any HHS employee, Grantee officer, agent, employee, or
subcontractor that would constitute fraud, waste, or abuse) are required to immediately
report the questioned activity to the Health and Human Services Commission's Office of
Inspector General. Contractor agrees to comply with all applicable laws,rules,regulations,
and System Agency policies regarding fraud, waste, and abuse including, but not limited
to, HHS Circular C-027.
A report to the SAO must be made through one of the following avenues:
• SAO Toll Free Hotline: 1-800-TX-AUDIT
• SAO website: http://sao.fraud.state.tx.usi
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All reports made to the OIG must be made through one of the following avenues:
• OIG Toll Free Hotline 1-800-436-6184
• OIG Website: ReportTexasFraud.com
• Internal Affairs Email: InternalAffairsReferral@hhsc.state.tx.us
• OIG Hotline Email: OIGFraudHotline@hhsc.state.tx.us.
• OIG Mailing Address: Office of Inspector General
Attn: Fraud Hotline
MC 1300
P.O. Box 85200
Austin, Texas 78708-5200
29. Antitrust
The undersigned affirms under penalty of perjury of the laws of the State of Texas that:
A. in connection with this Contract and any related Solicitation Response, neither I nor
any representative of the Contractor has violated any provision of the Texas Free
Enterprise and Antitrust Act, Tex. Bus. & Comm. Code Chapter 15;
B. in connection with this Contract and any related Solicitation Response, neither I nor
any representative of the Contractor has violated any federal antitrust law; and
C. neither I nor any representative of the Contractor has directly or indirectly
communicated any of the contents of this Contract and any related Solicitation
Response to a competitor of the Contractor or any other company, corporation, firm,
partnership or individual engaged in the same line of business as the Contractor.
30. Legal and Regulatory Actions
Contractor represents and warrants that it is not aware of and has received no notice of any
court or governmental agency proceeding, investigation, or other action pending or
threatened against Contractor or any of the individuals or entities included in numbered
paragraph 1 of these Contract Affirmations within the five (5) calendar years immediately
preceding execution of this Contract or the submission of any related Solicitation Response
that would or could impair Contractor's performance under this Contract, relate to the
contracted or similar goods or services, or otherwise be relevant to System Agency's
consideration of entering into this Contract. If Contractor is unable to make the preceding
representation and warranty, then Contractor instead represents and warrants that it has
provided to System Agency a complete, detailed disclosure of any such court or
governmental agency proceeding, investigation, or other action that would or could impair
Contractor's performance under this Contract, relate to the contracted or similar goods or
services, or otherwise be relevant to System Agency's consideration of entering into this
Contract. In addition,Contractor acknowledges this is a continuing disclosure requirement.
Contractor represents and warrants that Contractor shall notify System Agency in writing
within five (5) business days of any changes to the representations or warranties in this
clause and understands that failure to so timely update System Agency shall constitute
breach of contract and may result in immediate contract termination.
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31. No Felony Criminal Convictions
Contractor represents that neither Contractor nor any of its employees, agents, or
representatives, including any subcontractors and employees, agents, or representative of
such subcontractors, have been convicted of a felony criminal offense or that if such a
conviction has occurred Contractor has fully advised System Agency in writing of the facts
and circumstances surrounding the convictions.
32. Unfair Business Practices
Contractor represents and warrants that it has not been the subject of allegations of
Deceptive Trade Practices violations under Chapter 17 of the Texas Business and
Commerce Code, or allegations of any unfair business practice in any administrative
hearing or court suit and that Contractor has not been found to be liable for such practices
in such proceedings. Contractor certifies that it has no officers who have served as officers
of other entities who have been the subject of allegations of Deceptive Trade Practices
violations or allegations of any unfair business practices in an administrative hearing or
court suit and that such officers have not been found to be liable for such practices in such
proceedings.
33. Entities that Boycott Israel
Contractor represents and warrants that(1)it does not, and shall not for the duration of the
Contract, boycott Israel or (2) the verification required by Section 2271.002 of the Texas
Government Code does not apply to the Contract. If circumstances relevant to this
provision change during the course of the contract,Contractor shall promptly notify System
Agency.
34. E-Verify
Contractor certifies that for contracts for services, Contractor shall utilize the U.S.
Department of Homeland Security's E-Verify system during the term of this Contract to
determine the eligibility of:
1. all persons employed by Contractor to perform duties within Texas; and
2. all persons, including subcontractors, assigned by Contractor to perform work
pursuant to this Contract within the United States of America.
35. Former Agency Employees—Certain Contracts
If this Contract is an employment contract, a professional services contract under Chapter
2254 of the Texas Government Code, or a consulting services contract under Chapter 2254
of the Texas Government Code, in accordance with Section 2252.901 of the Texas
Government Code, Contractor represents and warrants that neither Contractor nor any of
Contractor's employees including, but not limited to, those authorized to provide services
under the contract, were former employees of an HHS Agency during the twelve (12)
month period immediately prior to the date of the execution of the contract.
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36. Disclosure of Prior State Employment—Consulting Services
If this Contract is for consulting services,
A. In accordance with Section 2254.033 of the Texas Government Code, a Contractor
providing consulting services who has been employed by, or employs an individual
who has been employed by, System Agency or another State of Texas agency at any
time during the two years preceding the submission of Contractor's offer to provide
services must disclose the following information in its offer to provide services.
Contractor hereby certifies that this information was provided and remains true,correct,
and complete:
1. Name of individual(s) (Contractor or employee(s));
2. Status;
3. The nature of the previous employment with HHSC or the other State of Texas
agency;
4. The date the employment was terminated and the reason for the termination; and
5. The annual rate of compensation for the employment at the time of its termination.
B. If no information was provided in response to Section A above, Contractor certifies
that neither Contractor nor any individual employed by Contractor was employed by
System Agency or any other State of Texas agency at any time during the two years
preceding the submission of Contractor's offer to provide services.
37. Abortion Funding Limitation
Contractor understands, acknowledges, and agrees that, pursuant to Article IX, Section
6.25 of the General Appropriations Act(the Act),to the extent allowed by federal and state
law, money appropriated by the Texas Legislature may not be distributed to any individual
or entity that, during the period for which funds are appropriated under the Act:
1. performs an abortion procedure that is not reimbursable under the state's Medicaid
program;
2. is commonly owned, managed, or controlled by an entity that performs an abortion
procedure that is not reimbursable under the state's Medicaid program; or
3. is a franchise or affiliate of an entity that performs an abortion procedure that is not
reimbursable under the state's Medicaid program. The provision does not apply to a
hospital licensed under Chapter 241,Health and Safety Code,or an office exempt under
Section 245.004(2), Health and Safety Code. Contractor represents and warrants that it
is not ineligible, nor will it be ineligible during the term of this Contract, to receive
appropriated funding pursuant to Article IX, Section 6.25.
38. Funding Eligibility
Contractor understands, acknowledges, and agrees that, pursuant to Chapter 2272 of the
Texas Government Code, except as exempted under that Chapter, HHSC cannot contract
with an abortion provider or an affiliate of an abortion provider. Contractor certifies that it
is not ineligible to contract with HHSC under the terms of Chapter 2272 of the Texas
Government Code.
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39. Prohibition on Certain Telecommunications and Video Surveillance Services or
Equipment (2 CFR 200.216)
Contractor certifies that the individual or business entity named in this Response or contract
is not ineligible to receive the specified contract or funding pursuant to 2 CFR 200.216.
40. COVID-19 Vaccine Passports
Contractor represents and warrants that it is in compliance with Section 161.0085(c) of the
Texas Health and Safety Code and eligible, pursuant to that section, to receive a grant or
enter into a contract payable with state funds.
41. False Representation
Contractor understands, acknowledges, and agrees that any false representation or any
failure to comply with a representation, warranty, or certification made by Contractor is
subject to all civil and criminal consequences provided at law or in equity including, but
not limited to, immediate termination of this Contract.
42. False Statements
Contractor represents and warrants that all statements and information prepared and
submitted by Contractor in this Contract and any related Solicitation Response are current,
complete, true, and accurate. Contractor acknowledges any false statement or material
misrepresentation made by Contractor during the performance of this Contract or any
related Solicitation is a material breach of contract and may void this Contract. Further,
Contractor understands, acknowledges, and agrees that any false representation or any
failure to comply with a representation, warranty, or certification made by Contractor is
subject to all civil and criminal consequences provided at law or in equity including, but
not limited to, immediate termination of this Contract.
43. Permits and License
Contractor represents and warrants that it will comply with all applicable laws and maintain
all permits and licenses required by applicable city, county, state, and federal rules,
regulations, statutes, codes, and other laws that pertain to this Contract.
44. Drug-Free Workplace
Contractor represents and warrants that it shall comply with the applicable provisions of
the Drug-Free Work Place Act of 1988 (41 U.S.C. §701 et seq.) and maintain a drug-free
work environment.
45. Equal Employment Opportunity
Contractor represents and warrants its compliance with all applicable duly enacted state
and federal laws governing equal employment opportunities.
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46. Federal Occupational Safety and Health Law
Contractor represents and warrants that all articles and services shall meet or exceed the
safety standards established and promulgated under the Federal Occupational Safety and
Health Act of 1970, as amended(29 U.S.C. Chapter 15).
47. Signature Authority
Contractor represents and warrants that the individual signing this Contract Affirmations
document is authorized to sign on behalf of Contractor and to bind the Contractor.
Signature Page Follows
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Authorized representative on behalf of Contractor must complete and sign the following:
Legal Name of Contractor
Assumed Business Name of Contractor, if applicable (d/b/a or `doing business as')
Texas County(s)for Assumed Business Name (d/b/a or `doing business as')
Attach Assumed Name Certificate(s) filed with the Texas Secretary of State and Assumed
Name Certificate(s),if any, for each Texas County Where Assumed Name Certificate(s) has
been filed
Signature of Authorized Representative Date Signed
Printed Name of Authorized Representative Title of Authorized Representative
First, Middle Name or Initial, and Last Name
Physical Street Address City, State, Zip Code
Mailing Address, if different City, State, Zip Code
Phone Number Fax Number
Email Address DUNS Number
Federal Employer Identification Number Texas Payee ID No.—11 digits
Texas Franchise Tax Number Texas Secretary of State Filing
Number
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DocuSign
Certificate Of Completion
Envelope Id: F40354E2D7414624AFFE9F23E40FA441 Status:Sent
Subject:HHS001076500001,City of Port Arthur, Base Contract
Source Envelope:
Document Pages:61 Signatures:0 Envelope Originator:
Certificate Pages:5 Initials:0 CMS Internal Routing Mailbox
AutoNav:Enabled 11493 Sunset Hills Road
Envelopeld Stamping:Enabled #100
Time Zone:(UTC-06:00)Central Time(US&Canada) Reston,VA 20190
CMS.InternalRouting@dshs.texas.gov
IP Address: 160.42.85.9
Record Tracking
Status: Original Holder:CMS Internal Routing Mailbox Location:DocuSign
7/30/2021 11:34:05 AM CMS.InternalRouting@dshs.texas.gov
Signer Events Signature Timestamp
Ron Burton,City Manager Sent:8/2/2021 10:26:13 AM
ron.burton@portarthurtx.gov Resent:8/2/2021 10:26:46 AM
City Manager Resent:9/1/2021 10:27:55 AM
City of Port Arthur
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Jonah Wilczynski
Jonah.Wilczynski@dshs.texas.gov
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Accepted:9/2/2021 8:11:08 AM
ID:ba95ad76-0ead-4a25-9792-bb9478b26fff
Patty Melchior
Patty.Melchior@dshs.texas.gov
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Accepted:9/2/2021 8:38:15 AM
ID:46cb60c9-2260-444c-bd62-db7e6640b8f5
Dave Gruber
David.Gruber@dshs.texas.gov
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Accepted: 1/3/2021 4:48:45 PM
ID:bd2f4497-b4dc-4c51-9974-71b86780cff4
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Judith A.Smith, BSN,RN Sent:8/4/2021 12:27:55 PM
judith.smith@portarthurtx.gov - Viewed:9/2/2021 11:44:09 AM
Director of Health Services
City of Port Arthur
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Accepted:8/25/2021 3:41:37 PM
ID:0e371822-fba6-41de-8a62-cbee47f84e9e
Jennifer Boggs
Jennifer.Boggs@dshs.texas.gov
Security Level: Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
CMS Inbox
cmucontracts@dshs.texas.gov
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
CMS Mailbox
CMS.InternalRouting@dshs.texas.gov
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Beverly Taylor
Beverly.Taylor@dshs.texas.gov
Security Level:Email,Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 7/30/2021 11:48:17 AM
Payment Events Status Timestamps
Electronic Record and Signature Disclosure
Electronic Record and Signature Disclosure created on:9/14/2020 7:10:18 PM
Parties agreed to:Jonah Wilczynski,Patty Melchior,Dave Gruber,Judith A.Smith,BSN,RN
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, DSHS Contract Management Section(we, us or Company) may be required
by law to provide to you certain written notices or disclosures. Described below are the terms
and conditions for providing to you such notices and disclosures electronically through the
DocuSign system. Please read the information below carefully and thoroughly, and if you can
access this information electronically to your satisfaction and agree to this Electronic Record and
Signature Disclosure (ERSD),please confirm your agreement by selecting the check-box next to
`I agree to use electronic records and signatures' before clicking `CONTINUE' within the
DocuSign system.
Getting paper copies
At any time, you may request from us a paper copy of any record provided or made available
electronically to you by us. You will have the ability to download and print documents we send
to you through the DocuSign system during and immediately after the signing session and, if you
elect to create a DocuSign account, you may access the documents for a limited period of time
(usually 30 days) after such documents are first sent to you. After such time, if you wish for us to
send you paper copies of any such documents from our office to you, you will be charged a
$0.00 per-page fee. You may request delivery of such paper copies from us by following the
procedure described below.
Withdrawing your consent
If you decide to receive notices and disclosures from us electronically, you may at any time
change your mind and tell us that thereafter you want to receive required notices and disclosures
only in paper format. How you must inform us of your decision to receive future notices and
disclosure in paper format and withdraw your consent to receive notices and disclosures
electronically is described below.
Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the
speed at which we can complete certain steps in transactions with you and delivering services to
you because we will need first to send the required notices or disclosures to you in paper format,
and then wait until we receive back from you your acknowledgment of your receipt of such
paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to
receive required notices and consents electronically from us or to sign electronically documents
from us.
All notices and disclosures will be sent to you electronically
Unless you tell us otherwise in accordance with the procedures described herein,we will provide
electronically to you through the DocuSign system all required notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided or made
available to you during the course of our relationship with you. To reduce the chance of you
inadvertently not receiving any notice or disclosure, we prefer to provide all of the required
notices and disclosures to you by the same method and to the same address that you have given
us. Thus, you can receive all the disclosures and notices electronically or in paper format through
the paper mail delivery system. If you do not agree with this process, please let us know as
described below. Please also see the paragraph immediately above that describes the
consequences of your electing not to receive delivery of the notices and disclosures
electronically from us.
How to contact DSHS Contract Management Section:
You may contact us to let us know of your changes as to how we may contact you electronically,
to request paper copies of certain information from us, and to withdraw your prior consent to
receive notices and disclosures electronically as follows:
To contact us by email send messages to: alison.joffrion@hhsc.state.tx.us
To advise DSHS Contract Management Section of your new email address
To let us know of a change in your email address where we should send notices and disclosures
electronically to you, you must send an email message to us at alison.joffrion@hhsc.state.tx.us
and in the body of such request you must state: your previous email address, your new email
address. We do not require any other information from you to change your email address.
If you created a DocuSign account, you may update it with your new email address through your
account preferences.
To request paper copies from DSHS Contract Management Section
To request delivery from us of paper copies of the notices and disclosures previously provided
by us to you electronically, you must send us an email to alison.joffrion@hhsc.state.tx.us and in
the body of such request you must state your email address, full name, mailing address, and
telephone number. We will bill you for any fees at that time, if any.
To withdraw your consent with DSHS Contract Management Section
To inform us that you no longer wish to receive future notices and disclosures in electronic
format you may:
i. decline to sign a document from within your signing session, and on the subsequent page,
select the check-box indicating you wish to withdraw your consent, or you may;
ii. send us an email to alison.joffiion@hhsc.state.tx.us and in the body of such request you must
state your email, full name, mailing address, and telephone number. We do not need any other
information from you to withdraw consent.. The consequences of your withdrawing consent for
online documents will be that transactions may take a longer time to process..
Required hardware and software
The minimum system requirements for using the DocuSign system may change over time. The
current system requirements are found here: https://support.docusign.com/guides/signer-guide-
signing-system-requirements.
Acknowledging your access and consent to receive and sign documents electronically
To confirm to us that you can access this information electronically, which will be similar to
other electronic notices and disclosures that we will provide to you, please confirm that you have
read this ERSD, and(i)that you are able to print on paper or electronically save this ERSD for
your future reference and access; or(ii)that you are able to email this ERSD to an email address
where you will be able to print on paper or save it for your future reference and access. Further,
if you consent to receiving notices and disclosures exclusively in electronic format as described
herein,then select the check-box next to `I agree to use electronic records and signatures' before
clicking `CONTINUE' within the DocuSign system.
By selecting the check-box next to `I agree to use electronic records and signatures', you confirm
that:
• You can access and read this Electronic Record and Signature Disclosure; and
• You can print on paper this Electronic Record and Signature Disclosure, or save or send
this Electronic Record and Disclosure to a location where you can print it, for future
reference and access; and
• Until or unless you notify DSHS Contract Management Section as described above, you
consent to receive exclusively through electronic means all notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided
or made available to you by DSHS Contract Management Section during the course of
your relationship with DSHS Contract Management Section.