HomeMy WebLinkAboutC2015-533 - 10/27/2015 - Approved SIGNATURE DOCUMENT FOR
DEPARTMENT OF STATE HEALTH SERVICES
CONTRACT No.2016-048777-001
UNDER THE
WOMEN,INFANT AND CHILDREN'S NUTRITION GRANT PROGRAM
I.LEGAL Aumoam
The Department of State Health Services("Enterprise Agency)and CORPUS CHRIST!-
NUECES COUNTY PUBLIC HEALTH DISTRICT(CITY)("Grantee")(each a"Party"
and collectively the "Parties") enter into the following grant contract (the "Contract").
This Contract is authorized by and in compliance with the provisions of 42 U.S.C. §
1786,7 CFR Part 246,and Chapter 32 of the Texas Health&Safety Code.
II.DURATION
The Contract is effective on October 1, 2015 and terminates on September 30, 2016
unless renewed, extended, or terminated pursuant to the terms and conditions of the
Contract. The Enterprise Agency,at its own discretion, may extend this Contract subject
to terms and conditions mutually agreeable to both Parties.
Buocgr
The total amount of this Contract will not exceed$1,002,324.00. All payment requests
and reimbursements will be made in accordance with the conditions specified in
ATTACHMENT A -- STATEMENT OF WORK, SECTION IV. BILLING
INSTRUCTION AND PAYMENT of this Contract.
Grantee DUNS#:069457786
CFDA: 10357.001; 10.557.013
Purchase Order Number. 0000419918
IV.NOTICES
Unless otherwise noted in the Attachments to this Contract,any notices required under this
Contact shall be deemed delivered when deposited by the Enterprise Agency 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:
DSHS Contract No.2016.048777-001
Page 1 of 3
2015-533
10/27/15
Ord. 030674
TX Dept of State Health Services INDEXED
Enterprise Agency
Department of State Health Services
Division for Family and Community Health Services
Mail Code 1914
PO Box 149347
Austin,TX 78714-9347
Grantee
CITY OF CORPUS CHRISTI
PO BOX 9277
CORPUS CHRISTI,TX 78469-9277
Attn: Ron Olsen
Notice given by Grantee will be deemed effective when received by the Enterprise
Agency. Either Party may change its address for notice by written notice to the
other Party as herein provided without amending the Contract.
V.DISPUTE RESOLUTION
If a contract dispute arises that cannot be resolved to the satisfaction of the
Parties, either Party may notify the other Party in writing of the dispute. If the
Parties arc unable to satisfactorily resolve the dispute within fourteen(14)days of
the written notification, the Parties must use the dispute resolution process
provided for in Chapter 2260 of the Texas Government Code to attempt to resolve
the dispute. This provision will not apply to any matter with respect to which
either Party may make a decision within its respective sole discretion.
SIGNATURE PAGE FOLLOWS
DSHS Contract No.2016-048777-001
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SIGNATURE PAGE FOR ENTERPRISE AGENCY CONTRACT No.2016-048777-001
HEALTH AND HUMAN SERVICES GRANTEE
COMMISSION
•
•
Chris Traylor Name: - .
Executive Commissioner Alkoi��`��"`
Date of execution: 3 - `l �l Date of execution: u. alt 11, JJ
THE FOLLOWING ATTACHMENTS TO ENTERPRISE AGENCY
CONTRACT No.2016-048777-001 ARE HEREBY INCORPORATED BY REFERENCE:
ATTACHMENT A-STATEMENT OF WORK
ATTACHMENT B-UNIFORM TERMS AND CONDITIONS
ATTACHMENT C-SPECIAL CONDITIONS
ATTACHMENT D-DATA USE AGREEMENT
ATTACHMENT E-NON-EXCLUSIVE LIST OF APPLICABLE LAWS
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DSHS Contract No.2016-048777-001
Page 3 of 3
ATTACHMENT A
STATEMENT OF WORK
I. PURPOSE
For the Enterprise Agency's Special Supplemental Nutrition Program for Women, Infant, and
Children (WIC), Grantee shall administer the DSHS WIC to provide supplemental food benefits,
nutrition education, and counseling to enhance good health care at no cost to low-income
pregnant and postpartum women, infants and children identified to be at nutritional risk.
II. GRANTEE RESPONSIBILITIES
Grantee will:
A. Perform professional, administrative and clerical services necessary to determine
eligibility, provide food benefits, and provide appropriate nutrition education and
counseling to qualified women, infants and children in a specified geographic area.
Grantee shall ensure adequate staff coverage and uninterrupted delivery of services.
Services shall be performed according to the statutes, rules, policies, and directives of
DSHS Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)
and/or as directed by the United States Department of Agriculture (USDA) as referenced
in this Statement of Work During the term of this Statement of Work, USDA may issue
regulations, instructions, policies and/or directives, which may be incorporated into the
current DSHS WIC Program Policy and Procedures Manual and program rules.
B. Provide services within the state boundaries of Texas and in the approved clinic locations
described in Grantee's application.
C. Assist DSHS or USDA in the collection of data that will identify benefits of this nutrition
intervention program and furnish financial, health, nutrition education and any other
special reports in a timely manner as required by DSHS WIC Program's written rules and
policies for the compilation of such data.
D. Determine eligibility of applicants through assessment of their categorical income,
residence and nutritional status, and provide nutrition education and counseling to
eligible participants.
E. Become and maintain designation as a DSHS Mother-Friendly Worksite in accordance
with 25 Tex. Admin. Code § 31.1.
F. Appoint a Grantee WIC Director/Supervisor.
G. Train Local Agency staff. The term "Local Agency" is defined at 7 CFR § 246.2.
H. Conduct outreach to potential participants.
I. Complete surveys as requested.
DSHS Contract No. 2016-048777-001
Attachment A - Page 1
ATTACHMENT A
STATEMENT OF WORK
J. Complete part one, part two, or both of the following:
a. Part One: Coordinate with DSHS to visit the physical address of a proposed
grocery store outlet and determine if a store exists. Grantee shall send DSHS an
email correspondence indicating findings.
b. Part Two: Coordinate with DSHS to schedule and conduct an on-site evaluation
(refer to WIC policy WV 10.0) of the WIC authorized vendor upon request by
DSHS and complete the On-site Evaluation within 30 days and submit the form
electronically to DSHS within one business day.
K. Determine participants' access to health care, medical care and other human services, and
make appropriate referrals. Grantee shall have a system in place to provide participants
with appropriate health services or make appropriate referrals to health care providers
under written agreements that ensure confidentiality of participants' personal
information.
L. Issue pre-numbered WIC Electronic Benefit Transfer (EBT) cards furnished by DSHS to
qualified participants who shall use such EBT cards to obtain specified food items from
participating vendors; maintain complete accountability and security of all WIC EBT
cards received from DSHS. Grantee shall be held financially responsible for all
unaccounted WIC EBT cards and/or for the redeemed value of those issued to ineligible
participants. In addition, Grantee shall be held financially liable for issuance of infant
formula instruments that are not authorized or prescribed according to the WIC Policy
and Procedures Manual.
M. Permit DSHS or its agent to install telecommunications equipment at all Grantee WIC
clinics and administrative offices using Texas-WIN software on a network or stand alone
personal computer. Grantee is required to permit installation at all its permanent WIC
sites. Grantee will notify DSHS not less than forty-five (45) days prior to the relocation
of a site or the deployment of a new site to allow DSHS or its agent to install
telecommunications equipment.
N. Connect portable computers (e.g. notebook or laptop) that use Texas-WIN software daily
to a DSHS-provided telecommunications access point to transfer data to and receive
updates from DSHS. Data transfer and update connection must be made on each day that
Grantee provides WIC.
O. Review the immunization records of WIC Program applicants/participants to ensure that
immunizations are current. Make appropriate referrals to health care providers for
necessary immunizations.
P. Offer services during extended hours of operation outside the traditional times of 8:00
a.m. to 5:00 p.m., Monday through Friday, according to the Grantee's Annual Plan of
Operations as approved by DSHS and incorporated by reference in this Statement of
Work.
DSHS Contract No. 2016-048777-001
Attachment A- Page 2
ATTACHMENT A
STATEMENT OF WORK
•
Q. Implement or expand Grantee's Breastfeeding Peer Counseling program to provide
training and salary of peer counselors who assist pregnant and breastfeeding WIC
participants in normal breastfeeding situations. Provide clients with after-hours peer
counseling services. Funding for this activity will be contingent on availability and
written approval by DSHS.
R. Implement special projects according to DSHS-approved plan related to nutrition
education, outreach or breastfeeding if project is requested by Grantee and approved by
DSHS. Funding for special projects is contingent upon availability and approval in
writing by DSHS of the Grantee's plan for the special project.
S. Implement lactation services for WIC participants who have breastfeeding problems that
are beyond the expertise of Grantee's local WIC staff and/or peer counselors using
International Board Certified Lactation Consultants or the most qualified equivalent.
Lactation services may also include Local Agency staff training and the provision of
lactation equipment. DSHS will provide written approval of Grantee's plan to use
lactation funding. Grantee's plan shall include qualifications of any non-board certified
lactation consultant, which is included in the proposal.
T. Ensure adequate staff coverage and uninterrupted delivery of WIC services if any
member of Grantee's staff is approved in writing by DSHS to participate in the DSHS
Dietetic Internship program. This internship will consist of no less than 1200 hours of
supervised learning experiences in a variety of nutrition-related facilities. Grantee is
responsible for: (1) Designating a WIC Nutritionist (preferably a Registered Dietitian) to
be the Community Nutrition (CN)-WIC Preceptor and oversee and evaluate intern's
performance for the Community Nutrition/WIC portion of the Texas WIC Dietetic
Internship. (2) Community Nutrition Preceptor will ensure that interns meet all
requirements, standards and required supervised practice hours for the Community
Nutrition CN Supervised Practice. (3) Ensuring that intern is not used for regular WIC
duties during the internship period. (4) Collecting pay-back monies from intern in the
event that the intern does not fulfill dietetic internship local agency contract
requirements. Monies must be returned to State Agency.
U. Stock DSHS-provided manual pumps, single-user electric breast pumps and multi-user
electric breast pumps, collection kits, and purchase additional sized flanges. Distribute
the appropriate pumps, kits, and/or additional sized flanges to eligible WIC participants.
During the term of this Statement of Work, DSHS reserves the right to withhold payment
if Grantee fails to accurately complete and submit online breast pump receiving reports
within three (3) business days of receiving a DSHS breast pump delivery as documented
in the current WIC Local Agency policy and procedure manual.
V. Implement or expand Grantee's use of a Registered Dietitian (RD) who is registered with
the Commission on Dietetic Registration to provide for Grantee that includes, but not
limited to: assistance with quality assurance, staff training, assistance with the Annual
DSHS Contract No. 2016-048777-001
Attachment A- Page 3
ATTACHMENT A
STATEMENT OF WORK
Nutrition Education and Breastfeeding plan, individual counseling for high-risk
participants, and facilitated discussion classes.
W. Grantee shall resolve all possible dual participation records each month. During the term
of this Statement of Work, DSHS reserves the right to withhold payment if Grantee fails
to accurately resolve all possible dual participation records within three (3) months from
the month of the automated alert within the Texas WIN system.
Within thirty (30) days of receipt of an amended standard(s) or guideline(s) listed above, Grantee
shall inform DSHS, in writing, if it shall not continue performance under this Statement of Work
in compliance with the amended standard(s) or guideline(s). DSHS may terminate the Statement
of Work immediately or within a reasonable period of time as determined by DSHS.
All activities related to WIC, including timeframes, budget, and any revisions shall be approved
by DSHS.
III. PERFORMANCE MEASURES
The following performance measures will be used to assess, in part, Grantee's effectiveness in
providing the services described in this Statement of Work, without waiving the enforceability of
any of the other terms of the contract.
A. Grantee shall ensure:
1) An average of 95% of families each quarter who participate in DSHS WIC Program
by receiving food benefits shall also receive nutrition education classes or individual
counseling services to coincide with food instrument issuance;
2) An average of 20% of all pregnant women who enter DSHS WIC Program each
quarter shall be certified as eligible during the period of the first trimester of their
pregnancy;
3) An average of 80% of clients a quarter who are enrolled in the DSHS WIC Program,
excluding dual participants, transfer locked and/or migrant clients, shall participate as
food benefit recipients each month (breast-feeding infants are also included in the
client count); and
4) 98% of participants who indicate during the enrollment process for the DSHS WIC
Program that they have no source of health care shall be referred to at least one (1)
source of health care at certification of eligibility.
B. Grantee shall submit:
1. WIC Local Agency Performance Measure Report which describes Grantee's
efforts towards meeting performance measures. The report shall be in an approved
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Attachment A - Page 4
ATTACHMENT A
STATEMENT OF WORK
format as provided by DSHS, and shall be completed and submitted to DSHS
within fifteen(15) calendar days after the end of each month; and
2. Monthly Incentive Funding Summary Report by the 15th day of the following
month.
3. Grantee shall submit quarterly FSRs to DSHS Contract Development and Support
Branch at WicVouchers@dshs.state.tx.us by the last business day of the month
following the end of each quarter of the Contract Statement of Work term for
Department review and financial assessment.
IV. BILLING INSTRUCTIONS AND PAYMENT
Grantee shall request payment using the State of Texas Purchase Voucher (Form B-13) and
Financial Status Reports (FSR) and submit by electronic mail to DSHS Contract Development
and Support Branch at WicVouchers@dshs.state.tx.us. Grantee shall indicate separately on the
face of the claim for reimbursement (State of Texas Purchase Voucher, Form B-13) the costs
associated with nutrition education,breast-feeding, and other administrative costs.
All payments made by DSHS to Grantee under this Contract will be reimbursements subject to
the following requirements, conditions and stipulations:
All categories of costs billed to DSHS WIC Program, and allocation of such costs, shall be in
accordance with the "Plan to Allocate Direct Costs" (PADC) submitted by Grantee and
approved by the DSHS WIC Program. This document is incorporated by reference and
detailed in ATTACHMENT E—NON-EXCLUSIVE LIST OF APPLICABLE LAWS.
DSHS will reimburse Grantee for administrative costs incurred when determining eligibility,
providing appropriate nutrition education and counseling, issuing WIC EBT cards, making
participant referrals, vendor evaluation, outreach, start-up costs and general administrative
support.
Administrative costs will be reimbursed based on actual costs, but not to exceed the
"maximum reimbursement" based upon the sum of the participants who actually receive
WIC EBT cards each month plus infants who do not receive any WIC EBT cards whose
breastfeeding mothers were participants to the extent that the total so derived does not exceed
Grantee's total assigned caseload within any given month. Surplus funds (the amount by
which maximum reimbursements exceed actual costs) can be accumulated and carried
forward within the Statement of Work term.
The participant caseload will be assigned by DSHS by giving written notice to Grantee. The
participant caseload is subject to change upon written notice to Grantee from DSHS with
Grantee's concurrence. Grantee assumes liability for all food costs resulting from Grantee
exceeding its assigned caseload. The number of individuals served in excess of assigned
caseload are not to be included in the calculation of earned administrative funds as described
below.
DSHS Contract No. 2016-048777-001
Attachment A-Page 5
ATTACHMENT A
STATEMENT OF WORK
PARTICIPANTS SERVED PER MONTH MAXIMUM REIMBURSEMENT:
During the term of the Statement of Work, Grantee shall earn administrative funds at the rate
of$13.97 for each participant served as defined above.
Grantee agrees that:
A. Grantee shall identify and document separately not less than 19% of total administrative
costs as expenditures directly related to nutrition education and counseling. Nutrition
education and counseling expenditures shall be supported by documentation of
participant attendance or non-attendance within the DSHS WIC Program.
B. DSHS will reimburse Grantee for administrative expenses at a rate not greater than 5.26
times the amount of properly documented expenditures for nutrition education and
counseling, but not more than is earned based on actual participation not to exceed
Grantee's assigned participant caseload, plus any incentive funds allocated to Grantee by
DSHS.
C. DSHS will reimburse Grantee's indirect costs by one of the following: (1) amount
calculated in accordance with Grantee's current valid federally negotiated indirect cost
rate (IDCR), (2) amount calculated in accordance with Grantee's accepted DSHS Cost
Allocation Plan. DSHS will limit (cap) Cost Allocation Plan reimbursement at twenty
(20) percent applied to Grantee's total direct salaries plus benefits reimbursed by DSHS,
or(3) a Grantee that has never negotiated an IDCR may elect to charge a de minimis rate
of 10% of modified total direct costs.
D. DSHS will identify annually to Grantee an amount of funds that shall be spent for
breastfeeding promotion. The allocation of breastfeeding funds to Grantee will be based
on Grantee's proportional share of the statewide combined total of pregnant and
breastfeeding participants as reported to DSHS WIC Program.
E. DSHS WIC Program also reserves the right to withhold a proportionate amount of earned
administrative funds when evidence exists that nutrition education and/or breastfeeding
promotion is not being provided by Grantee, or Grantee is not complying with the
provisions of USDA and/or DSHS directives.
F. DSHS may amend or terminate this Statement of Work if available funds become
reduced, depleted, or unavailable during the term of the Statement of Work to the extent
that the WIC Program is unable to provide administrative funding at the rate(s) stated in
this Statement of Work. DSHS will provide written notification to Grantee of such fact.
G. DSHS may, at its sole discretion, pay for additional goods or services as specified in this
Statement of Work if provided by Local Agency during the term of this Statement of
Work (but not otherwise paid during the term of this Statement of Work) if it is in the
best interest of DSHS and DSHS WIC Program to do so. If Grantee exceeds the amount
DSHS Contract No. 2016-048777-001
Attachment A- Page 6
ATTACHMENT A
STATEMENT OF WORK
of earned administrative funds as stated above, Grantee shall continue to bill DSHS for
the services provided. If additional funds become available at a later date for the
provision of these services, DSHS WIC Program may pay Grantee a share of these funds.
H. DSHS may provide incentives to Grantee for participants who are provided WIC services
outside the normal traditional hours to the extent that federal funding is available.
I. During the term of this Statement of Work, DSHS may, at its sole discretion, unilaterally
adjust the base reimbursement rate as defined in this Statement of Work if it is in the best
interest of DSHS and the DSHS WIC Program and if administrative WIC Grant funds
change.
DSHS Contract No. 2016-048777-001
Attachment A- Page 7
HHSC Uniform Terms and Conditions Version 2.0
Published and Effective: September 1, 2015
Responsible Office: Chief Counsel
TEXAS
Health and Human
Services Commission
Health and Human Services Commission
HHSC Uniform Terms and Conditions - Grant
Version 2.0
Attachment B -DSHS Contract No. 2016-048777-001
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS 4
1.01 Definitions 4
1.02 Interpretive Provisions 5
ARTICLE II Payment Methods and Restrictions 6
2.01 Payment Methods 6
2.02 Final Billing Submission 6
2.03 Financial Status Reports (FSRs) 7
2.04 Debt to State and Corporate Status 7
2.05 Application of Payment Due 7
2.06 Use of Funds 7
2.07 Use for Match Prohibited 7
2.08 Program Income 7
2.09 Nonsupplanting 8
ARTICLE III. STATE AND FEDERAL FUNDING 8
3.01 Funding 8
3.02 No debt Against the State 8
3.03 Debt to State 8
3.04 Recapture of Funds 8
ARTICLE IV Allowable Costs and Audit Requirements 9
4.01 Allowable Costs. 9
4.02 Independent Single or Program-Specific Audit 10
4.03 Submission of Audit 10
Article V AFFIRMATIONS, ASSURANCES AND CERTIFICATIONS 11
5.01 General Affirmations 11
5.02 Federal Assurances 11
5.03 Federal Certifications 11
ARTICLE VI OWNERSHIP AND INTELLECTUAL PROPERTY 11
6.01 Ownership 11
6.02 Intellectual Property 11
ARTICLE VII RECORDS, AUDIT, AND DISCLOSURE 12
7.01 Books and Records 12
7.02 Access to records, books, and documents 12
7.03 Response/compliance with audit or inspection findings 12
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7.04 SAO Audit 13
7.05 Confidentiality 13
7.06 Public Information Act 13
ARTICLE VIII CONTRACT MANAGEMENT AND EARLY TERMINATION 13
8.01 Contract Management 13
8.02 Termination for Convenience 13
8.03 Termination for Cause 14
8.04 Equitable Settlement 14
ARTICLE IX MISCELLANEOUS PROVISIONS 14
9.01 Amendment 14
9.02 Insurance 14
9.03 Legal Obligations 15
9.04 Permitting and Licensure 15
9.05 Indemnity 15
9.06 Assignments 16
9.07 Relationship of the Parties 16
9.08 Technical Guidance Letters 16
9.09 Governing Law and Venue 16
9.10 Survivability 17
9.11 Force Majeure 17
9.12 No Waiver of Provisions 17
9.13 Publicity 17
9.14 Prohibition on Non-compete Restrictions 17
9.15 No Waiver of Sovereign Immunity 18
9.16 Entire Contract and Modification 18
9.17 Counterparts 18
9.18 Proper Authority 18
9.19 Employment Verification 18
9.20 Civil Rights 18
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ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS
1.01 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 hereto, which documents
changes to the Contract other than those permitted by Work Orders or Technical Guidance
Letters, as herein defined.
"Attachment" means documents, terms, conditions, or additional information physically added to
this Contract following the Signature Document or included by reference, as if physically, within
the body of this Contract.
"Contract" means the Signature Document, these Uniform Terms and Conditions, along with any
Attachments, and any Amendments, or Technical Guidance Letters that may be issued by the
Enterprise Agency, to be incorporated by reference herein for all purposes if issued.
"Deliverable" means a work product prepared, developed, or procured by Grantee as part of the
Services under the Contract for the use or benefit of the Enterprise 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.
"Enterprise 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, and designees of
those agencies. These agencies include: the Department of Aging and Disability Services, the
Department of Assistive and Rehabilitative Services, the Department of Family and Protective
Services, and the Department of State Health Services.
"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.
"Grantee"means the Party receiving funds under this Contract, if any.
"Health and Human Services Commission" or "HHSC" means the administrative agency
established under Chapter 531, Texas Government Code or its designee.
"HUB" means Historically Underutilized Business, as defined by Chapter 2161 of the Texas
Government Code.
Intellectual Property" means patents, rights to apply for patents, trademarks, trade names,
service marks, domain names, copyrights and all applications and worldwide registration of
Attachment B -DSHS Contract No.2016-048777-001
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such, schematics, industrial models, inventions, know-how,ow, trade secrets, computer software
programs, and other intangible proprietary information.
"Mentor Protégé" means the Comptroller of Public Accounts' leadership program found at:
http://www.window.state.tx.us/procurement/prog/hub/mentorprotege/.
"Parties"means the Enterprise Agency and Grantee, collectively.
"Party"means either the Enterprise Agency or Grantee, individually.
"Program" means the statutorily authorized activities of the Enterprise Agency under which this
Contract has been awarded.
"Project"means specific activities of the Grantee that are supported by funds provided under this
Contract.
"Public Information Act" or"PIA"means Chapter 552 of the Texas Government Code.
"Scope of Work" means the description of activities performed in completing the Project, as
specified in the Contract and as may be amended.
"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 Enterprise Agency under which applications for
Program funds were requested, which is incorporated herein by reference for all purposes in its
entirety, including all Amendments and Attachments.
"Solicitation Response" means Grantee's full and complete response to the Solicitation, which is
incorporated herein by reference for all purposes in its entirety, including any Attachments and
addenda.
"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 Texas Administrative Code, Title 34, Part 1, Chapter 5,
Subchapter C, Section 5.22, relative to travel reimbursements under this Contract, if any.
"Technical Guidance Letter" or "TGL" means an instruction, clarification, or interpretation of
the requirements of the Contract, issued by the Enterprise Agency to the Grantee.
1.02 Interpretive Provisions
a. The meanings of defined terms are equally applicable to the singular and plural forms of the
defined terms.
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
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Amendments and other modifications thereto, 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 within this Contract, 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 Enterprise Agency or by
the Enterprise 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.
ARTICLE II PAYMENT METHODS AND RESTRICTIONS
2.01 Payment Methods
Except as otherwise provided by the provisions of the Contract, the payment method will be one
or more of the following:
a. cost reimbursement. This payment method is based on an approved budget and submission
of a request for reimbursement of expenses Grantee has incurred at the time of the request;
b. unit rate/fee-for-service. This payment method is based on a fixed price or a specified rate(s)
or fee(s) for delivery of a specified unit(s) of service and acceptable submission of all
required documentation, forms and/or reports; or
c. advance payment. This payment method is based on disbursal of the minimum necessary
funds to carry out the Program or Project where the Grantee has implemented appropriate
safeguards. This payment method will only be utilized in accordance with governing law
and at the sole discretion of the Enterprise Agency.
Grantees shall bill the Enterprise Agency in accordance with the Contract. Unless otherwise
specified in the Contract, Grantee shall submit requests for reimbursement or payment monthly
by the last business day of the month following the month in which expenses were incurred or
services provided. Grantee shall maintain all documentation that substantiates invoices and make
the documentation available to the Enterprise Agency upon request.
2.02 Final Billing Submission
Unless otherwise provided by the Enterprise Agency, Grantee shall submit a reimbursement or
payment request as a final close-out invoice not later than forty-five (45) calendar days following
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the end of the term of the Contract. Reimbursement or payment requests received in the
Enterprise Agency's offices more than forty-five (45) calendar days following the termination of
the Contract may not be paid.
2.03 Financial Status Reports (FSRs)
Except as otherwise provided in these General Provisions or in the terms of any Program
Attachment(s) that is incorporated into the Contract, for contracts with categorical budgets,
Grantee shall submit quarterly FSRs to Accounts Payable by the last business day of the month
following the end of each quarter of the Program Attachment term for Enterprise Agency review
and financial assessment. Grantee shall submit the final FSR no later than forty-five (45)
calendar days following the end of the applicable term.
2.04 Debt to State and Corporate Status
Pursuant to Tex. Gov. Code § 403.055, the Department will not approve and the State
Comptroller will not issue payment to Grantee if Grantee is indebted to the State for any reason,
including a tax delinquency. Grantee, if a corporation, certifies by execution of this Contract that
it is current and will remain current in its payment of franchise taxes to the State of Texas or that
it is exempt from payment of franchise taxes under Texas law (Tex. Tax Code §§ 171.001 et
seq.). If tax payments become delinquent during the Contract term, all or part of the payments
under this Contract may be withheld until Grantee's delinquent tax is paid in full.
2.05 Application of Payment Due
Grantee agrees that any payments due under this Contract will be applied towards any debt of
Grantee, includingbut not limited to delinquent taxes and child support that is owed to the State
q Pp
of Texas.
2.06 Use of Funds
Grantee shall expend funds provided under this Contract only for the provision of approved
services and for reasonable and allowable expenses directly related to those services.
2.07 Use for Match Prohibited
Grantee shall not use funds provided under this Contract for matching purposes in securing other
funding without the written approval of the Enterprise Agency.
2.08 Program Income
Income directly generated from funds provided under this Contract or earned only as a result of
such funds is Program Income. Unless otherwise required under the Program, Grantee shall use
the addition alternative, as provided in UGMS § _.25(g)(2), for the use of Project income to
further the Program, and Grantee shall spend the Program Income on the Project. Grantee shall
identify and report this income in accordance with the Contract, applicable law, and the
Contractor's Financial Procedures Manual located at
http://www.dshs.state.tx.us/contracts/cfpm.shtm. Grantee shall expend Program Income during
the Program Attachment term and may not carry forward to any succeeding term. Grantee shall
refund program income not expended in the term in which it is earned to the Enterprise Agency.
The Enterprise Agency may base future funding levels, in part, upon Grantee's proficiency in
identifying, billing, collecting, and reporting Program Income, and in using it for the purposes
and under the conditions specified in this Contract.
Attachment B-DSHS Contract No. 2016-048777-001
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2.09 Nonsupplanting
Grantee shall not use funds from this Contract to replace or substitute for existing funding from
other but shall use funds from this Contract to supplement existing state or local funds currently
available. Grantee shall make a good faith effort to maintain its current level of support.
Grantee may be required to submit documentation substantiating that a reduction in state or local
funding, if any, resulted for reasons other than receipt or expected receipt of funding under this
Contract.
ARTICLE III. STATE AND FEDERAL FUNDING
3.01 Funding
This Contract is contingent upon the availability of sufficient and adequate funds. If funds
become unavailable through lack of appropriations, budget cuts, transfer of funds between
programs or agencies, amendment of the Texas General Appropriations Act, agency
consolidation, or any other disruptions of current funding for this Contract, the Enterprise
Agency may restrict, reduce, or terminate funding under this Contract. This Contract is also
subject to immediate cancellation or termination, without penalty to the Enterprise Agency, if
sufficient and adequate funds are not available. Grantee will have no right of action against the
Enterprise Agency if the Enterprise Agency cannot perform its obligations under this Contract as
a result of lack of funding for any activities or functions contained within the scope of this
Contract. In the event of cancellation or termination under this Section, the Enterprise Agency
will not be required to give notice and will not be liable for any damages or losses caused or
associated with such termination or cancellation.
3.02 No debt Against the State
The Contract will not be construed as creating any debt by or on behalf of the State of Texas.
3.03 Debt to State
If a payment law prohibits the Texas Comptroller of Public Accounts from making a payment,
the Grantee acknowledges the Enterprise Agency's payments under the Contract will be applied
toward eliminating the debt or delinquency. This requirement specifically applies to any debt or
delinquency, regardless of when it arises.
3.04 Recapture of Funds
The Enterprise Agency may withhold all or part of any payments to Grantee to offset
overpayments made to the Grantee. Overpayments as used in this Section include payments (i)
made by the Enterprise 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. Grantee understands and agrees that it will be
liable to the Enterprise Agency for any costs disallowed pursuant to financial and compliance
audit(s) of funds received under this Contract. Grantee further understands and agrees that
reimbursement of such disallowed costs will be paid by Grantee from funds which were not
provided or otherwise made available to Grantee under this Contract.
Attachment B -DSHS Contract No. 2016-048777-001
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ARTICLE IV ALLOWABLE COSTS AND AUDIT REQUIREMENTS
4.01 Allowable Costs.
Enterprise Agency will reimburse the allowable costs incurred in performing the Project that are
sufficiently documented. Grantee must have incurred a cost prior to claiming reimbursement and
within the applicable term to be eligible for reimbursement under this Contract. The Enterprise
Agency will determine whether costs submitted by Grantee are allowable and eligible for
reimbursement. If the Enterprise Agency has paid funds to Grantee for unallowable or ineligible
costs, the Enterprise Agency will notify Grantee in writing, and Grantee shall return the funds to
the Enterprise Agency within thirty (30) calendar days of the date of this written notice. The
Enterprise Agency may withhold all or part of any payments to Grantee to offset reimbursement
for any unallowable or ineligible expenditure that Grantee has not refunded to the Enterprise
Agency, or if financial status report(s) required under the Financial Status Reports section are not
submitted by the due date(s). The Enterprise Agency may take repayment (recoup) from funds
available under this Contract in amounts necessary to fulfill Grantee's repayment obligations.
Applicable cost principles, audit requirements, and administrative requirements include-
Applicable Entity Applicable Cost Audit Administrative
Principles Requirements Requirements
State, Local and 2 CFR, Part 225 2 CFR Part 200, 2 CFR Part 200 and
Tribal Governments Subpart F and UGMS
UGMS
Educational 2 CFR, Part 220 2 CFR Part 200, 2 CFR Part 200 and
Institutions Subpart F and UGMS
UGMS
Non-Profit 2 CFR, Part 230 2 CFR Part 200, 2 CFR Part 200 and
Organizations Subpart F and UGMS
UGMS
For-profit 48 CFR Part 31, 2 CFR Part 200, 2 CFR Part 200 and
Organization other Contract Cost Subpart F and UGMS
than a hospital and an Principles UGMS
organization named in Procedures, or
OMB Circular A-122 uniform cost
(2 CFR Part, 230) as accounting
not subject to that standards that
circular. comply with cost
principles
acceptable to the
federal or state
awarding agency
Attachment B -DSHS Contract No. 2016-048777-001
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A chart of applicable Federal awarding agency common rules is located through a web link on
the Enterprise Agency website at http://www.dshs.state.tx.us/contracts/links.shtm. OMB
Circulars will be applied with the modifications prescribed by UGMS with effect given to
whichever provision imposes the more stringent requirement in the event of a conflict.
4.02 Independent Single or Program-Specific Audit
If Grantee, within Grantee's fiscal year, expends a total amount of at least SEVEN HUNDRED
FIFTY THOUSAND DOLLARS ($750,000) in federal funds awarded, Grantee shall have a single
audit or program-specific audit in accordance with the 2 CFR 200. The $750,000 federal
threshold amount includes federal funds passed through by way of state agency awards. If
Grantee, within Grantee's fiscal year, expends a total amount of at least $500,000 in state funds
awarded, Grantee must have a single audit or program-specific audit in accordance with UGMS,
State of Texas Single Audit Circular. For-profit Grantees whose expenditures meet or exceed
the federal or state expenditure thresholds stated above shall follow the guidelines in 2 CFR 200
or UGMS, as applicable, for their program-specific audits. The HHSC Office of Inspector
General (OIG) will notify Grantee to complete the Single Audit Status Registration Form. If
Grantee fails to complete the Single Audit Status Form within thirty (30) calendar days after
notification by OIG to do so, Grantee shall be subject to the Enterprise Agency sanctions and
remedies for non-compliance with this Contract. The audit must be conducted by an independent
certified public accountant and in accordance with applicable OMB Circulars, Government
Auditing Standards, and UGMS, which is accessible through a web link on the Enterprise
Agency website at http://www.dshs.state.tx.us/contracts/links.shtm. Grantee shall procure audit
services in compliance with this section, state procurement procedures, as well as with the
provisions of UGMS
4.03 Submission of Audit
Within thirty (30) calendar days of receipt of the audit reports required by the Independent
Single or Program-Specific Audit section, Grantee shall submit one copy to the Department's
Contract Oversight and Support Section, and one copy to the OIG, at the following addresses:
Department of State Health Services
Contract Oversight and Support, Mail Code 1326
P.O. Box 149347
Austin, Texas 78714-9347
Health and Human Services Commission
Office of Inspector General
Compliance/Audit, Mail Code 1326
P.O. Box 85200
Austin, Texas 78708-5200
Electronic submission to the Enterprise Agency should be addressed as follows:
COSContractAdministration(2I dshs.state.tx.us
Electronic submission to HHSC should be addressed as follows:
Dani.fielding(a,hhsc.state.tx.us
Attachment B-DSHS Contract No.2016-048777-001
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If Grantee fails to submit the audit report as required by the Independent Single or Program-
Specific Audit section within thirty (30) calendar days of receipt by Grantee of an audit report,
Grantee shall be subject to the Enterprise Agency sanctions and remedies for non-compliance
with this Contract.
ARTICLE V AFFIRMATIONS, ASSURANCES AND CERTIFICATIONS
5.01 General Affirmations
Grantee certifies that, to the extent General Affirmations are incorporated into the Contract under
the Signature Document, the General Affirmations have been reviewed and that Grantee is in
compliance with each of the requirements reflected therein.
5.02 Federal Assurances
Grantee further certifies that, to the extent Federal Assurances are incorporated into the Contract
under the Signature Document, the Federal Assurances have been reviewed and that Grantee is
in compliance with each of the requirements reflected therein.
5.03 Federal Certifications
Grantee further certifies, to the extent Federal Certifications are incorporated into the Contract
under the Signature Document, that the Federal Certifications have been reviewed, and that
Grantee is in compliance with each of the requirements reflected therein. In addition, Grantee
certifies that it is in compliance with all applicable federal laws, rules, or regulations, as they
may pertain to this Contract.
ARTICLE VI OWNERSHIP AND INTELLECTUAL PROPERTY
6.01 Ownership
The Enterprise Agency will own, and Grantee hereby assigns to the Enterprise Agency, all right,
title, and interest in all Deliverables.
6.02 Intellectual Property
a. The Enterprise Agency and Grantee will retain ownership, all rights, title, and interest in and
to, their respective pre-existing Intellectual Property. A license to either Party's pre-existing
Intellectual Property must be agreed to under this or another contract.
b. Grantee grants to the Enterprise Agency and the State of Texas a royalty-free, paid up,
worldwide, perpetual, non-exclusive, non-transferable license to use any Intellectual Property
invented or created by Grantee, Grantee's contractor, or a subcontractor in the performance of
the Project. Grantee will require its contractors to grant such a license under its contracts.
c. As used herein, "Intellectual Property" shall mean: inventions and business processes,
whether or not patentable; works of authorship; trade secrets; trademarks; service marks;
industrial designs; and other intellectual property incorporated in any Deliverable and first
created or developed by Grantee, Grantee's contractor or a subcontractor in performing the
Project.
Attachment B -DSHS Contract No. 2016-048777-001
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ARTICLE VII RECORDS, AUDIT, AND DISCLOSURE
7.01 Books and Records
Grantee will keep and maintain under GAAP or GASB, as applicable, full, true, and complete
records necessary to fully disclose to the Enterprise 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. Unless otherwise specified in this Contract, Grantee will
maintain legible copies of this Contract and all related documents for a minimum of seven (7)
years after the termination of the contract period or seven (7) years after the completion of any
litigation or dispute involving the Contract, whichever is later.
7.02 Access to records, books, and documents
In addition to any right of access arising by operation of law, Grantee and any of Grantee's
affiliate or subsidiary organizations, or Subcontractors will permit the Enterprise 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 will 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 will have a right of
access to records as described in this section include: the Enterprise 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. If deemed
necessary by the Enterprise Agency or any duly authorized authority, for the purpose of
investigation or hearing, Grantee will produce original documents related to this Contract. The
Enterprise Agency and any duly authorized authority will have the right to audit billings both
before and after payment, and all documentation that substantiates the billings. Grantee will
include this provision concerning the right of access to, and examination of, sites and
information related to this Contract in any Subcontract it awards.
7.03 Response/compliance with audit or inspection findings
a. Grantee must act to ensure its and its Subcontractor's 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 goods or services provided
hereunder. Any such correction will be at Grantee or its Subcontractor's sole expense.
Whether Grantee's action corrects the noncompliance will be solely the decision of the
Enterprise Agency.
b. As part of the Services, Grantee must provide to HHSC upon request a copy of those portions
of Grantee's and its Subcontractors' internal audit reports relating to the Services and
Deliverables provided to the State under the Contract.
Attachment B -DSHS Contract No. 2016-048777-001
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7.04 SAO Audit
Grantee understands that 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's Office
(SAO), or any successor agency, 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 SAO must provide the SAO with access to any information the SAO
considers relevant to the investigation or audit. Grantee agrees to cooperate fully with the SAO
or its successor in the conduct of the audit or investigation, including providing all records
requested. Grantee will ensure that this clause concerning the authority to audit funds received
indirectly by Subcontractors through Grantee and the requirement to cooperate is included in any
Subcontract it awards.
7.05 Confidentiality
Any specific confidentiality agreement between the Parties takes precedent over the terms of this
section. To the extent permitted by law, Grantee agrees to keep all information confidential, in
whatever form produced, prepared, observed, or received by Grantee. The provisions of this
section remain in full force and effect following termination or cessation of the services
performed under this Contract.
7.06 Public Information Act
Information related to the performance of this Contract may be subject to the PIA and will be
withheld from public disclosure or released only in accordance therewith. Grantee must make all
information not otherwise excepted from disclosure under the PIA available in portable
document file (".pdf') format or any other format agreed between the Parties.
ARTICLE VIII CONTRACT MANAGEMENT AND EARLY TERMINATION
8.01 Contract Management
To ensure full performance of the Contract and compliance with applicable law, the Enterprise
Agency may take actions including:
a. suspending all or part of the Contract;
b. requiring the Grantee to take specific corrective actions in order to remain in
compliance with term of the Contract;
c. recouping payments made to the Grantee found to be in error;
d. suspending, limiting, or placing conditions on the continued performance of the
Project;
e. imposing any other remedies authorized under this Contract; and
f. imposing any other remedies, sanctions or penalties permitted by federal or state
statute, law, regulation, or rule.
8.02 Termination for Convenience
The Enterprise Agency may terminate the Contract at any time when, in its sole discretion, the
Enterprise Agency determines that termination is in the best interests of the State of Texas. The
termination will be effective on the date specified in HHSC's notice of termination.
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8.03 Termination for Cause
Except as otherwise provided by the U.S. Bankruptcy Code, or any successor law, the Enterprise
Agency may terminate the Contract, in whole or in part, upon either of the following conditions:
a. Material Breach
The Enterprise Agency will have the right to terminate the Contract in whole or in part if the
Enterprise Agency determines, at its sole discretion, that Grantee 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
Grantee's duties under the Contract. Grantee's misrepresentation in any aspect of Grantee's
Solicitation Response, if any or Grantee's addition to the Excluded Parties List System (EPLS)
will also constitute a material breach of the Contract.
b. Failure to Maintain Financial Viability
The Enterprise Agency may terminate the Contract if, in its sole discretion, the Enterprise
Agency has a good faith belief that Grantee no longer maintains the financial viability required
to complete the Services and Deliverables, or otherwise fully perform its responsibilities under
the Contract.
8.04 Equitable Settlement
Any early termination under this Article will be subject to the equitable settlement of the
respective interests of the Parties up to the date of termination.
ARTICLE IX MISCELLANEOUS PROVISIONS
9.01 Amendment
The Contract may only be amended by an Amendment executed by both Parties.
9.02 Insurance
Unless otherwise specified in this Contract, Grantee will 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 Enterprise Agency. Grantee will provide evidence of insurance as required
under this Contract, including a schedule of coverage or underwriter's schedules establishing to
the satisfaction of the Enterprise Agency the nature and extent of coverage granted by each such
policy, upon request by the Enterprise Agency. In the event that any policy is determined by the
Enterprise Agency to be deficient to comply with the terms of this Contract, Grantee will secure
such additional policies or coverage as the Enterprise Agency may reasonably request or that are
required by law or regulation. If coverage expires during the term of this Contract, Grantee must
produce renewal certificates for each type of coverage.
These and all other insurance requirements under the Contract apply to both Grantee and its
Subcontractors, if any. Grantee is responsible for ensuring its Subcontractors' compliance with all
requirements.
Attachment B -DSHS Contract No. 2016-048777-001
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9.03 Legal Obligations
Grantee will comply with all applicable federal, state, and local laws, ordinances, and
regulations. Grantee will be deemed to have knowledge of all applicable laws and regulations
and be deemed to understand them. In addition to any other act or omission that may constitute a
material breach of the Contract, failure to comply with this Section may also be a material breach
of the Contract.
9.04 Permitting and Licensure
At Grantee's sole expense, Grantee will 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 Grantee to provide
the goods or Services required by this Contract. Grantee will be responsible for payment of all
taxes, assessments, fees, premiums, permits, and licenses required by law. Grantee agrees to be
responsible for payment of any such government obligations not paid by its contactors or
subcontractors during performance of this Contract.
9.05 Indemnity
To THE EXTENT ALLOWED BY LAW, GRANTEE WILL DEFEND, INDEMNIFY, AND HOLD
HARMLESS THE STATE OF TEXAS AND ITS OFFICERS AND EMPLOYEES, AND THE ENTERPRISE
AGENCY AND ITS OFFICERS AND EMPLOYEES, FROM AND AGAINST ALL CLAIMS, ACTIONS,
SUITS, DEMANDS, PROCEEDINGS, COSTS, DAMAGES, AND LIABILITIES, INCLUDING ATTORNEYS'
FEES AND COURT COSTS ARISING OUT OF,OR CONNECTED WITH,OR RESULTING FROM:
a. GRANTEE'S PERFORMANCE OF THE CONTRACT, INCLUDING ANY NEGLIGENT ACTS OR
OMISSIONS OF GRANTEE, OR ANY AGENT, EMPLOYEE, SUBCONTRACTOR, OR SUPPLIER OF
GRANTEE, OR ANY THIRD PARTY UNDER THE CONTROL OR SUPERVISION OF GRANTEE, IN
THE EXECUTION OR PERFORMANCE OF THIS CONTRACT;OR
b. ANY BREACH OR VIOLATION OF A STATUTE, ORDINANCE, GOVERNMENTAL REGULATION,
STANDARD, RULE, OR BREACH OF CONTRACT BY GRANTEE, ANY AGENT, EMPLOYEE,
SUBCONTRACTOR, OR SUPPLIER OF GRANTEE, OR ANY THIRD PARTY UNDER THE CONTROL
OR SUPERVISION OF GRANTEE, IN THE EXECUTION OR PERFORMANCE OF THIS CONTRACT;
OR
c. EMPLOYMENT OR ALLEGED EMPLOYMENT, INCLUDING CLAIMS OF DISCRIMINATION
AGAINST GRANTEE,ITS OFFICERS,OR ITS AGENTS; OR
d. WORK UNDER THIS CONTRACT THAT INFRINGES OR MISAPPROPRIATES ANY RIGHT OF ANY
THIRD PERSON OR ENTITY BASED ON COPYRIGHT, PATENT, TRADE SECRET, OR OTHER
INTELLECTUAL PROPERTY RIGHTS.
GRANTEE WILL COORDINATE ITS DEFENSE WITH THE ENTERPRISE AGENCY AND ITS COUNSEL.
THIS PARAGRAPH IS NOT INTENDED TO AND WILL NOT BE CONSTRUED TO REQUIRE GRANTEE
TO INDEMNIFY OR HOLD HARMLESS THE STATE OR THE ENTERPRISE AGENCY FOR ANY CLAIMS
OR LIABILITIES RESULTING SOLELY FROM THE GROSS NEGLIGENCE OF THE ENTERPRISE
AGENCY OR ITS EMPLOYEES. THE PROVISIONS OF THIS SECTION WILL SURVIVE
TERMINATION OF THIS CONTRACT.
Attachment B -DSHS Contract No. 2016-048777-001
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9.06 Assignments
Grantee may not assign all or any portion of its rights under, interests in, or duties required under
this Contract without prior written consent of the Enterprise Agency, which may be withheld or
granted at the sole discretion of the Enterprise Agency. Except where otherwise agreed in writing
by the Enterprise Agency, assignment will not release Grantee from its obligations under the
Contract.
Grantee understands and agrees the Enterprise Agency may in one or more transactions assign,
pledge, or transfer the Contract. This assignment will only be made to another State agency or a
non-state agency that is contracted to perform agency support.
9.07 Relationship of the Parties
Grantee is, and will be, an independent contractor and, subject only to the terms of this Contract,
will have the sole right to supervise, manage, operate, control, and direct performance of the
details incident to its duties under this Contract. Nothing contained in this Contract will be
deemed or construed to create a partnership or joint venture, to create relationships of an
employer-employee or principal-agent, or to otherwise create for the Enterprise Agency any
liability whatsoever with respect to the indebtedness, liabilities, and obligations of Grantee or
any other Party.
Grantee will be solely responsible for, and the Enterprise Agency will have no obligation with
respect to:
a. payment of Grantee's employees for all Services performed;
b. ensuring each of its employees, agents, or Subcontractors who provide Services or
Deliverables under the Contract are properly licensed, certified, or have proper permits to
perform any activity related to the Work;
c. withholding of income taxes, FICA, or any other taxes or fees;
d. industrial or workers' compensation insurance coverage;
e. participation in any group insurance plans available to employees of the State of Texas;
f. participation or contributions by the State to the State Employees Retirement System;
g. accumulation of vacation leave or sick leave; or
h. unemployment compensation coverage provided by the State.
9.08 Technical Guidance Letters
In the sole discretion of the Enterprise Agency, and in conformance with federal and state law,
the Enterprise Agency may issue instructions, clarifications, or interpretations as may be required
during Work performance in the form of a Technical Guidance Letter. A TGL must be in
writing, and may be delivered by regular mail, electronic mail, or facsimile transmission. Any
TGL issued by the Enterprise Agency will be incorporated into the Contract by reference herein
for all purposes when it is issued.
9.09 Governing Law and Venue
This Contract and the rights and obligations of the Parties hereto will be governed by, and
construed according to, the laws of the State of Texas, exclusive of conflicts of law provisions.
Venue of any suit brought under this Contract will be in a court of competent jurisdiction in
Travis County, Texas unless otherwise elected by the Enterprise Agency. Grantee irrevocably
waives any objection, including any objection to personal jurisdiction or the laying of venue or
Attachment B -DSHS Contract No. 2016-048777-001
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based on the grounds of forum non conveniens, which it may now or hereafter have to the
bringing of any action or proceeding in such jurisdiction in respect of this Contract or any
document related hereto. Severability
If any provision contained in this Contract is held to be unenforceable by a court of law or
equity, this Contract will be construed as if such provision did not exist and the non-
enforceability of such provision will not be held to render any other provision or provisions of
this Contract unenforceable.
9.10 Survivability
Termination or expiration of this Contract or a Contract for any reason will not release either
party from any liabilities or obligations in this Contract that the parties have expressly agreed
will survive any such termination or expiration, remain to be performed, or by their nature would
be intended to be applicable following any such termination or expiration, including maintaining
confidentiality of information and records retention.
9.11 Force Majeure
Except with respect to the obligation of payments under this Contract, if either of the Parties,
after a good faith effort, is prevented from complying with any express or implied covenant of
this Contract by reason of war; terrorism; rebellion; riots; strikes; acts of God; any valid order,
rule, or regulation of governmental authority; or similar events that are beyond the control of the
affected Party (collectively referred to as a "Force Majeure"), then, while so prevented, the
affected Party's obligation to comply with such covenant will be suspended, and the affected
Party will not be liable for damages for failure to comply with such covenant. In any such event,
the Party claiming Force Majeure will promptly notify the other Party of the Force Majeure
event in writing and, if possible, such notice will set forth the extent and duration thereof.
9.12 No Waiver of Provisions
Neither failure to enforce any provision of this Contract nor payment for services provided under
it constitute waiver of any provision of the Contract.
9.13 Publicity
Except as provided in the paragraph below, Grantee must not use the name of, or directly or
indirectly refer to, the Enterprise Agency, the State of Texas, or any other State agency in any
media release, public announcement, or public disclosure relating to the Contract or its subject
matter, including in any promotional or marketing materials, customer lists, or business
presentations.
Grantee may publish, at its sole expense, results of Grantee performance under the Contract with
the Enterprise Agency's prior review and approval, which the Enterprise Agency may exercise at
its sole discretion. Any publication (written, visual, or sound) will acknowledge the support
received from the Enterprise Agency and any Federal agency, as appropriate.
9.14 Prohibition on Non-compete Restrictions
Grantee will 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.
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9.15 No Waiver of Sovereign Immunity
Nothing in the Contract will be construed as a waiver of sovereign immunity by the Enterprise
Agency.
9.16 Entire Contract and Modification
The 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 by the Enterprise Agency.
9.17 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.
9.18 Proper Authority
Each Party hereto represents and warrants that the person executing this Contract on its behalf
has full power and authority to enter into this Contract. Any Services or Work performed by
Grantee before this Contract is effective or after it ceases to be effective are performed at the sole
risk of Grantee with respect to compensation.
9.19 Employment Verification
Grantee will confirm the eligibility of all persons employed during the contract term to perform
duties within Texas and all persons, including subcontractors, assigned by the contractor to
perform work pursuant to the Contract.
9.20 Civil Rights
a. Grantee agrees to comply with state and federal anti-discrimination laws,
including:
1. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.);
2. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794);
3. Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.);
4. Age Discrimination Act of 1975 (42 U.S.C. §§6101-6107);
5. Title IX of the Education Amendments of 1972 (20 U.S.C. §§1681-1688);
6. Food and Nutrition Act of 2008 (7 U.S.C. §2011 et seq.); and
7. The Enterprise Agency's administrative rules, as set forth in the Texas Administrative
Code, to the extent applicable to this Agreement.
Grantee agrees to comply with all amendments to the above-referenced 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 aid, care, service or other benefits provided by Federal or State funding, or otherwise be
subjected to discrimination.
b. Grantee agrees to 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 contractor from adopting
Attachment B -DSHS Contract No. 2016-048777-001
Page 18of19
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. State and federal civil rights laws require contractors to provide alternative
methods for ensuring access to services for applicants and recipients who cannot express
themselves fluently in English. Grantee agrees to take reasonable steps to provide services
and information, both orally and in writing, in appropriate languages other than English, in
order to ensure that persons with limited English proficiency are effectively informed and
can have meaningful access to programs,benefits, and activities.
c. Grantee agrees to 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://www.hhsc.state.tx.us/about hhsc/civil-rights/brochures-posters.shtml
d. Grantee agrees to comply with Executive Order 13279, and its implementing regulations at
45 C.F.R. Part 87 or 7 C.F.R. Part 16. These provide in part that any organization that
participates in programs funded by direct financial assistance from the United States
Department of Agriculture or the United States Department of Health and Human Services
shall not discriminate against a program beneficiary or prospective program beneficiary on
the basis of religion or religious belief.
e. Upon request, Grantee will provide HHSC Civil Rights Office with copies of all of the
Grantee's civil rights policies and procedures.
f. Grantee must notify HHSC's Civil Rights Office of any civil rights complaints received
relating to its performance under this Agreement. This notice must be delivered no more than
ten (10) calendar days after receipt of a complaint. Notice provided pursuant to this section
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
TTY Toll Free: (877)432-7232
Fax: (512) 438-5885.
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ATTACHMENT C
SPECIAL CONDITIONS
Section 1.01 Notice of Legal Matter or Litigation.
Contractor shall notify the contract manager assigned to this Contract of any litigation or legal matter
related to or affecting this Contract within seven calendar days of becoming aware of the litigation or
legal matter.
Section 1.02 Notice of a Contract Action.
Contractor shall notify their assigned contract manager assigned to the contract if Contractor has had any
contract
suspended or terminated for cause by any local, state or federal department or agency or nonprofit
entity within five days of becoming aware of the action and include the following:
a. Reason for such action;
b. Name and contact information of the local, state or federal department or agency or entity;
c. Date of the contract;
d. Date of suspension or termination; and
e. Contract or case reference number.
Section 1.03 Notice of Bankruptcy. Contractor shall notify in writing their assigned
contract manager assigned of its plan to seek bankruptcy protection within five days of such action by
Contractor.
Section 1.04 Notice of Criminal Activity and Disciplinary Actions.
a. Contractor shall immediately report in writing their contract manager when the Contractor has
knowledge or reason to believe any that they or any person with ownership or controlling
interest in the organization/business,or their agent, employee, subcontractor or volunteer that
is providing services under this Contract has engaged in any activity that:
1. Would constitute a criminal offense equal to or greater than a Class A misdemeanor; and
2. Reasonably would constitute grounds for disciplinary action by a state or federal
regulatory authority; or
3. Has been placed on community supervision,received deferred adjudication, or
been indicted for or convicted of a criminal offense relating to involvement in any
financial matter, federal or state program or felony sex crime.
b. Contractor shall not permit any person who engaged, or was alleged to have engaged,
in any activity subject to reporting under this section to perform direct client services
or have direct contact with clients,unless otherwise directed in writing by DSHS.
Section 1.05 Contractor's Notification of Change of Contact Person or Key Personnel.
Within ten days shall notify in writing the contract manager assigned to the Contract of any change
enumerated in the Contractor's Contact Person or Key Personnel.
Section 1.06 All activities related to WIC, including timeframes,budget, and any revisions shall
be approved by DSHS.
Section 1.07 Contractor shall comply with all provisions required by implementing the
regulations of the Department of Agriculture, 7 CFR Part 246, 248; Department of Justice
Guidelines for Enforcement of Title VI; 28 CFR § 50.3 and 28 CFR Part 42; and Food &
Nutrition Service (FNS) directives and guidelines, to the effect that no person will, on the
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ATTACHMENT C
SPECIAL CONDITIONS
grounds of race, color, national origin, sex, age, or disability be excluded from participation
under any program or activity for which Contractor receives federal financial assistance from
FNS; and hereby gives assurance that it shall immediately take measures necessary to
implement this Contract.
Contractor shall compile data, maintain records and submit reports, as required, to permit
effective enforcement of the nondiscrimination laws and permit authorized USDA and State of
Texas personnel, during normal working hours, to review such records, books, and accounts as
needed to ascertain compliance with the nondiscrimination laws. The Department of
Agriculture, Food and Nutrition Service (USDA), has the right to seek judicial enforcement if
Contractor violates any nondiscrimination laws. This Assurance is binding on Contractor, its
successors, transferees, and assignees, as long as they receive assistance or retain possession of
any assistance from the Department of Agriculture. The person or persons whose signatures
appear on the Core Contract are authorized to sign this Assurance on behalf of Contractor.
Contractor shall comply with all of the requirements of the current WIC Policy and Procedures
Manual and Program rules as well as state and federal laws and amendments governing or
regulating the WIC Program. A copy of the current WIC Policy and Procedures Manual has
been made available to Contractor. The WIC Policy and Procedures Manual, and all revisions
made to the WIC Policy and Procedures Manual are incorporated into this Agreement by
reference. Contractor is responsible to remain familiar with the contents within the WIC Policy
and Procedures Manual.
Contractor is responsible for ensuring that employees or agents acting on behalf of Contractor
comply with all of the requirements of the current WIC Policy and Procedures Manual,
Program rules, and all state and federal laws and amendments governing and regulating the
WIC Program.
Section 1.08 The Contractor will be notified if a change in funding occurs and will have sixty
(60) days to provide written notice to the DSHS if it intends to terminate this contract.
Contractor shall submit all performance, and other Closeout reports required under this Contract
within 60 calendar days after the Contract, if applicable, has terminated.
Surplus encumbered by September 30 shall be billed and vouchers received by DSHS no later
than 60 calendar days following the term of the contract.
Section 1.09 Contractor will be allowed the option of receiving a two (2) month cash advance in
accordance with current WIC Program Policy and Procedures.
Section 1.10 Contractor shall maintain full and complete records concerning Program operations
and the following requirements:
a. Records shall include, but not be limited to, information pertaining to financial
operations, food delivery systems, food benefit issuance and redemption, equipment
purchases and inventory, certification, nutrition education, civil rights and fair hearing
procedures.
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ATTACHMENT C
SPECIAL CONDITIONS
b. If USDA deems any of the WIC program records to be of historical interest, it may
require DSHS or the Contractor to forward such records to the USDA whenever either
entity is disposing of them.
c. All records shall be available during normal business hours for representatives of the
USDA, DSHS and the Comptroller General of the United States to inspect, audit, and
copy. Any reports or other documents resulting from the examination of such records that
are publicly released may not include confidential applicant or participant information.
Section 1.11 If Contractor chooses to interview a client to determine if an affirmative defense to
prosecution exists, as defined by DSHS, which would allow them under the DSHS policy to not
make a report of child abuse, the Contractor shall conduct these interviews in the following
manner:
a. For ineligible clients, the interview shall be conducted after the entire WIC visit is done.
For eligible clients, the interview may occur at the point in time when all WIC activities,
including communication of eligibility and individual counseling, are completed with
the exception of food instrument issuance.
b. The interview shall be conducted only by a competent authority or a supervisor and in a
confidential setting.
c. Prior to asking the client any questions, the interviewer shall inform the client that the
questions have no bearing on the client's WIC eligibility and receipt of services.
Section 1.12 Contractor shall maintain an inventory of reportable capital assets placed in the
custody of the Contractor by DSHS. Contractor shall conduct an annual inventory for each
administrative and clinic site and submit to DSHS Property Management in a format and upon a
delivery date designated by DSHS. Contractor shall administer a program of maintenance, repair
and protection of assets under this Contract so as to assure their full availability and usefulness.
In the event Contractor is indemnified, reimbursed, or otherwise compensated for any loss of,
destruction of, or damage to the assess provided under this Contract, it shall use the proceeds to
repair or replace said assets.
Section 1.13 DSHS may terminate this Contract with at least thirty(30) calendar days prior
written notice to the other Party.
If the Contractor seeks to terminate this Contract, Contractor shall give the Department at least
sixty (60) calendar days prior written notice and shall submit a transition plan to ensure client
services are not disrupted.
The Parties can agree to terminate by mutual agreement.
DSHS may temporarily suspend or terminate this Contract, as applicable if funds become
unavailable through lack of appropriations, budget cuts, transfer of funds between programs or
HHSC agencies, amendments to the Appropriations Act, health and human services
consolidations or any other disruption of current appropriated funding for this Contract.
Contractor shall be notified in writing of any termination or temporary suspension and of any
cessation of temporary suspension. Upon notification of temporary suspension, Contractor will
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Attachment C -Page 3
ATTACHMENT C
SPECIAL CONDITIONS
discontinue performance under the Contract as of the effective date of the suspension for the
duration of the suspension.
Section 1.14 Section 9.02, Insurance, of Attachment B - Uniform Terms and Conditions, is
deleted in its entirety and replaced by the following: Pursuant to Chapter 2259 of the Texas
Government Code entitled, "Self-Insurance by Governmental Units," Each Party is self-insured
and, therefore, is not required to purchase insurance.
DSHS Contract No. 2016-048777-001
Attachment C -Page 4
ATTACHMENT D
DATA USE AGREEMENT
BETWEEN THE
TEXAS HEALTH AND HUMAN SERVICES ENTERPRISE
AND
CORPUS CHRISTI-NUECES COUNTY PUBLIC HEALTH DISTRICT(CITY)
This Data Use Agreement ("DUA"), is entered into by and between the Texas Health and Human
Services Commission, by and through the Department of State Health Services ("HHS") and
CORPUS CHRISTI-NUECES COUNTY PUBLIC HEALTH DISTRICT (CITY)
("CONTRACTOR"), and incorporated into the terms of DSHS Contract No. 2016-048777-001 in
Travis County, Texas (the "Base Contract"). The DUA takes effect contemporaneously with the
Base Contract.
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:
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"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;
(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 "PHP');
(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.
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DSHS Contract#2016-048777-001
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
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.F.R. 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 HI-IS 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
(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. CONTRACTOR will maintain evidence of
sanctions and produce it to HHS upon request.45 C.F.R. 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. CONTRACTOR 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
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(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
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. CONTRACTOR 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
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DSHS Contract#2016-048777-001
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
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 HHS of the reasons such delivery or
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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)(J)
(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 I . 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 HIPAA 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).
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(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).
(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).
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(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;
• 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 (NIST) 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).
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ARTICLE 4.
BREACH NOTICE, REPORTING AND CORRECTION REQUIREMENTS
4.01 Breach or Event Notification to HHS. 45 CFR 164.400-414.
(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;
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(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);
(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 CONTRACTOR 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)
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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
(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 CONTRACTOR 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. 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
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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.
(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 CONTRACTOR, 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 CON t'RACTOR 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 CONTRACTOR 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
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This DUA will be effective contemporaneously with the Base Contract, and will terminate
upon termination of the Base Contract and as set forth herein . If the Base Contract is extended or
amended,this DUA is updated automatically concurrent with such extension or amendment.
(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 HI-IS 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.
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(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
(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 HHS.
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.
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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 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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ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
1. Contractor shall comply with all applicable federal and state laws, rules, regulations,
standards, and guidelines in effect on the beginning date of this Attachment as amended,
including, but not limited to:
1) Uniform Federal Assistance Regulations, 7 CFR Parts 15, 15a, 15b, 246, 248,
3016, 3017 and 3018;
2) WIC Program and Farmers' Market Nutrition Program Rules, 25 Texas
Administrative Code, §§ 31.11-31.37; and
3) Child Nutrition Act of 1966, as amended, 42 USC 1786.
2. The following documents are incorporated by reference and made a part of this Program
Attachment:
1. DSHS Standards for Public Health Clinic Services, revised August 2004, or latest
revision;
2. USDA Food and Nutrition Service (FNS) Guidelines;
3. USDA FNS Instructions issued under the FNS Directives Management System;
4. Current WIC Policy and Procedures Manual; and
5. Contractor's Plan to Allocated Direct Costs (PADC) as approved by the DSHS
WIC Program.
3. Within thirty(30) days of receipt of an amended standard(s) or guideline(s) listed above,
Contractor shall inform DSHS, in writing, if it shall not continue performance under this
Program Attachment in compliance with the amended standard(s) or guideline(s). DSHS may
terminate the Program Attachment immediately or within a reasonable period of time as
determined by DSHS.
4. Contractor is responsible for reviewing and complying with all applicable statutes, rules,
regulations, executive orders and policies. To the extent applicable to Contractor, Contractor
shall comply with the following:
a. Statutes, rules, regulations, and DSHS policy (and any of their subsequent amendments)
that collectively prohibit discrimination, exclusion from or limitation of participation in
programs, benefits or activities or denial of any aid, care, service or other benefit on the
basis of race, color, national origin, limited English proficiency, sex, sexual orientation
(where applicable), disabilities, age, substance abuse, political belief or religion:
1. Title VI of the Civil Rights Act of 1964, 42 USC §§ 2000d et seq.;
2. Title IX of the Education Amendments of 1972, 20 USC §§ 1681-1683, and
1685-1686;
3. Section 504 of the Rehabilitation Act of 1973, 29 USC § 794(a);
4. Americans with Disabilities Act of 1990, 42 USC §§ 12101 et seq.;
5. Age Discrimination Act of 1975, 42 USC §§ 6101-6107;
6. Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
DSHS Contract No. 2016-048777-001
Attachment E - Page 1
ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
Rehabilitation Act of 1970, 42 USC § 290dd (b)(1); 7) 45 CFR Parts 80,
84, 86 and 91;
7. U.S. Department of Labor, Equal Employment Opportunity E.O. 11246;
8. Tex. Labor Code Chapter 21;
9. Food Stamp Act of 1977 (7 USC §§ 2011 et seq.);
10. Executive Order 13279, 45 CFR Part 87 or 7 CFR Part 16
regarding equal treatment and opportunity for religious
organizations;
11. Drug Abuse Office and Treatment Act of 1972, 21 USC §§ 1101 et seq.,
relating to drug abuse;
12. Public Health Service Act of 1912, §§ 523 and 527, 42 USC § 290dd-2,
and 42 CFR pt. 2, relating to confidentiality of alcohol and drug abuse
patient records;
13. Title VIII of the Civil Rights Act of 1968, 42 USC §§ 3601 et seq., relating to
nondiscrimination in
housing; and
14. DSHS Policy AA-5018, Non-discrimination Policy for DSHS Programs;
b. Immigration Reform and Control Act of 1986, 8 USC § 1324a, and Immigration Act of
1990, 8 USC 1101 et seq., as amended by Public Law113-4 (March 7, 2013), regarding
employment verification; and
Illegal Immigration Reform and Immigrant Responsibility Act of 1996;
c. Pro-Children Act of 1994, 20 USC §§ 6081-6084, and the Pro-Children Act of 2001,
20 USC § 7183, regarding the non-use of all tobacco products;
d. National Research Service Award Act of 1971, 42 USC §§ 289a-1 et seq., and 6601 (P.L.
93-348 and
P.L. 103-43), regarding human subjects involved in research;
e. Hatch Political Activity Act, 5 USC §§ 1501-1508 and 7324-26, which limits the
political activity of employees whose employment is funded with federal funds;
f. Fair Labor Standards Act, 29 USC §§ 201 et seq., and the Intergovernmental Personnel
Act of 1970, 42 USC §§ 4701 et seq., as applicable, concerning minimum wage and
maximum hours;
g. Texas Government Code Chapter 469 pertaining to eliminating architectural barriers
for persons with disabilities;
h. Texas Workers' Compensation Act, Texas Labor Code Chapters 401-406, and 28 Texas
Administrative
Code (TAC) pt. 2, regarding compensation for employees' injuries;
i. The Clinical Laboratory Improvement Amendments of 1988, 42 USC § 263a, regarding
the regulation and certification of clinical laboratories;
j. The Occupational Safety and Health Administration Regulations on Blood Borne
Pathogens, 29 CFR §
1910.1030, or Title 25 Tex. Admin Code Chapter 96 regarding safety standards
for handling blood borne pathogens;
k. Laboratory Animal Welfare Act of 1966, 7 USC §§ 2131 et seq., pertaining to the
treatment of
laboratory animals;
1. Environmental standards pursuant to the following:
1. Institution of environmental quality control measures under the National
Environmental Policy Act of 1969, 42 USC §§ 4321-4347 and Executive
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Attachment E - Page 2
ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
Order 11514 (35 Fed. Reg. 4247), "Protection and Enhancement of
Environmental Quality;" Notification of violating facilities pursuant to
Executive Order 11738 (40 CFR Part 32), "Providing for Administration of
the Clean Air Act and the Federal Water Pollution Control Act with respect
to Federal Contracts, Grants, or Loans;"
2. Protection of wetlands pursuant to Executive Order 11990, 42 Fed. Reg.
26961;
3. Evaluation of flood hazards in floodplains in accordance with Executive Order
11988, 42 Fed. Reg.
26951 and, if applicable, flood insurance purchase requirements of
Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93-
234);
4. Assurance of project consistency with the approved State Management
program developed under the Coastal Zone Management Act of 1972, 16
USC §§ 1451 et seq.;
5. Federal Water Pollution Control Act, 33 USC §§ 1251 et seq.;
6. Protection of underground sources of drinking water under the Safe Drinking
Water Act of 1974, 42 USC §§ 300f-300j;
7. Protection of endangered species under the Endangered Species Act of
1973, 16 USC §§ 1531 et seq.;
8. Conformity of federal actions to state clean air implementation plans
under the Clean Air Act of 1955, 42 USC §§ 7401 et seq.;
9. Wild and Scenic Rivers Act of 1968, 16 USC §§ 1271 et seq., related to
protecting certain river systems; and
m. Lead-Based Paint Poisoning Prevention Act, 42 USC §§ 4821 et seq., prohibiting the use
of lead-based
paint in residential construction or rehabilitation;
n. Intergovernmental Personnel Act of 1970, 42 USC §§ 4278-4763, regarding
personnel merit systems for programs specified in Appendix A of the federal
Office of Program Management's
Standards for a Merit System of Personnel Administration, 5 CFR Part1200 et seq;
o. Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of, 42 USC §§4601 et seq (PL 91-646), relating to fair treatment of persons
displaced or whose property is
acquired as a result of Federal or federally-assisted programs;
p. Davis-Bacon Act, 40 USC §§ 3141-3148;
q. Copeland Act, 40 USC §§ 276c and 18 USC § 874;
r. Contract Work Hours and Safety Standards Act, 40 USC § 3702 et seq., regarding
labor standards for federally-assisted construction subagreements;
s. National Historic Preservation Act of 1966, § 106, 16 USC § 470; Executive Order 11593;
and the
Archaeological and Historic Preservation Act of 1974 (16 USC §§ 469a-1 et seq.)
regarding historic property to the extent necessary to assist DSHS in complying
with the Acts;
t. Trafficking Victims Protection Act of 2000, Section 106(g) (22 USC § 7104);
u. Executive Order 13513 (Oct. 1, 2009), Federal Leadership on Reducing Text Messaging
While Driving, October 1, 2009, if required by a federal funding source of this Contract;
v. Whistleblower Protection Enhancement Act (5 U.S.C. 2302(b)(8)) and Texas
DSHS Contract No. 2016-048777-001
Attachment E - Page 3
ATTACHMENT E
NON-EXCLUSIVE LIST OF APPLICABLE LAWS
Whistleblower Act (Tex.
Gov. Code Chapter 554); and
w. Requirements of any other applicable state and federal statutes, executive orders,
regulations,rules and policies.
5. Where applicable, federal statutes and regulations, including federal grant requirements
applicable to funding sources, will apply to this Contract. Contractor agrees to comply with
applicable laws, executive orders, regulations and policies, as well as Office of Management
and Budget (OMB) Circulars (as codified in Title 2 of the Code of Federal Regulations), the
Uniform Grant and Contract Management Act of 1981 (UGMA), Tex. Gov. Code Chapter
783, and Uniform Grant Management Standards (UGMS), as revised by federal circulars
and incorporated in UGMS by the Comptroller of Public Accounts, Texas Procurement and
Support Services Division. UGMA and UGMS can be located through web links on the
DSHS website at http://www.dshs.state.tx.us/contracts/links.shtm.
DSHS Contract No. 2016-048777-001
Attachment E -Page 4
Corpus Christi - Nueces County
Public Health District
[Support Services Division—Administration]
1702 Horne Rd.,Corpus Christi,TX 78416 Public Health
Phone: 361-826-7200 Fax: 361-826-1343 P r° PfOO1OLe P°E°
MEMORANDUM
Date: April 7, 2016
To: Monique Lerma (Executive Assistant to City Secretary)
From: William M. Uhlarik (Assistant Director of Public Health . 0
Subject: Executed WIC Grant Contract (10/1/2015 to 10/1/2016)
Re: Hard copy for Office of the City Secretary
As required by the Office of the City Secretary, I have attached to this memo a hard
copy of the executed WIC Grant for filing with the City Records.
If you have questions, please call me. Thank you.
1 Attachment
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