INTERLOCAL COOPERATION CONTRACT THE DEPARTMENT OF STATE HEALTH SERVICES XXXXXXXX XX. XXX000000000000
XXX XXXXXXXXXX XX XXXXX HEALTH SERVICES (“System Agency” or “DSHS”) and Xxxxxxxxxx COUNTY AND CITIES HEALTH DISTRICT (“Local Government,” “Grantee,” “Performing Agency,” or “Contractor”), each a “Party” and collectively the "Parties,” enter into the following contract for activities in support of Coronavirus 2019 (COVID-19) response and in alignment with the Public Health Crisis Response Cooperative Agreement for Emergency Response (Funding Opportunity Number CDC-RFA- TP18-1802) from the Centers for Disease Control and Prevention (CDC) (the “Contract” or the “Base Contract”) pursuant to the provisions of the “Interlocal Cooperation Act,” Chapter 791 of the Texas Government Code.
The following will act as the Representative authorized to act on behalf of their respective Party. System Agency Local Government
Name: Department of State Health Services Name: Xxxxxxxxxx County And Cities Health District Address: 0000 X. 00xx Xxxxxx, XX 0000 Address: 000 Xxxxx Xxx.
City and Zip: Xxxxxx, XX 00000 City and Zip: Xxxxx Xxxx, XX, 00000
Contact Person: Xxxxxxx Xxxxxx Contact Person: Xxxxxxx Xxxx
Telephone: 000-000-0000 Telephone 000-000-0000
Fax number: 000-000-0000 Fax number:
E-Mail Address: Xxxxxxx.Xxxxxx@xxxx.xxxxx.xxx E-Mail Address: email@example.com
Agency Number: 537
II. STATEMENT OF SERVICES TO BE PROVIDED
The Parties agree to cooperate to provide necessary and authorized services and resources in accordance with the terms of this Contract. Specific services provided are described in Attachment A – Statement of Work.
III. CONTRACT PERIOD AND RENEWAL
The Contract is effective on the signature date of the latter of the Parties to sign this agreement and terminates on March 15, 2021, unless renewed, extended, or terminated pursuant to the terms and conditions of the Contract. The Parties may extend this Contract subject to mutually agreeable terms and conditions.
The Parties to this Contract may modify this Contract only through the execution of a written amendment signed by both Parties.
V. CONTRACT AMOUNT AND PAYMENT FOR SERVICES
The total amount of this Contract shall not exceed $325,988.00, as provided for in Attachment B – Budget.
VI. LEGAL NOTICES
Legal Notices under this Contract shall be deemed delivered when deposited either in the United States mail, postage paid, certified, return receipt requested; or with a common carrier, overnight, signature required, to the appropriate address below:
Department of State Health Services 0000 X. 00xx Xxxxxx, XX 0000
Xxxxxx, XX 00000
Attention: Office of General Counsel
Xxxxxxxxxx County And Health District 000 Xxxxx Xxx.
Xxxxx Xxxx, XX, 00000 Attention: firstname.lastname@example.org
Notice given in any other manner shall be deemed effective only if and when received by the Party to be notified. Either Party may change its address for receiving legal notice by notifying the other Party in writing.
The undersigned contracting Parties certify that:
(1) The services specified above are necessary and essential for activities that are properly within the statutory functions and programs of the affected agencies of state government;
(2) Each Party executing this Contract on its behalf has full power and authority to enter into this Contract;
(3) The proposed arrangements serve the interest of efficient and economical administration of state government; and
(4) The services contracted for are not required by Section 21, Article XVI of the Constitution of Texas to be supplied under a contract awarded to the lowest responsible bidder.
The System Agency further certifies that it has statutory authority to contract for the services described in this Contract under Texas Government Code, Chapter 791, Texas Health and Safety Code, Chapter 81, and Texas Government, Code 531.
The Local Government further certifies that it has statutory authority to contract for the services described in this Contract under Texas Government Code, Chapter 791.
SIGNATURE PAGE FOR SYSTEM AGENCY XXXXXXXX XX. XXX000000000000
XXXXXXXXXX XX XXXXX HEALTH SERVICES XXXXXXXXXX COUNTY AND CITIES HEALTH
Xxxxx Xxxxxx Xxxxxxx Xxxx
Printed Name Printed Name
Associate Commissioner for RLHS
April 6, 2020
April 6, 2020
THE FOLLOWING ATTACHMENTS TO THIS CONTRACT ARE HEREBY INCORPORATED BY REFERENCE AND MADE PART OF THIS CONTRACT:
ATTACHMENT A – STATEMENT OF WORK ATTACHMENT B – BUDGET
ATTACHMENT C – HHS UNIFORM TERMS AND CONDITIONS – GOVERNMENTAL ENTITY, VERSION 3.0
ATTACHMENT D – DATA USE AGREEMENT
ATTACHMENT E – FEDERAL ASSURANCES AND CERTIFICATIONS
ATTACHMENT A STATEMENT OF WORK
COVID-19 – Component B
I. GRANTEE RESPONSIBILITIES
A. Perform activities in support of Coronavirus 2019 (COVID-19) response and in alignment with the Public Health Crisis Response Cooperative Agreement for Emergency Response (Funding Opportunity Number CDC-RFA-TP18-1802) from the Centers for Disease Control and Prevention (CDC).
B. Perform required activities intended to slow the of transmission of the disease, minimize morbidity and mortality, preserve function of healthcare workforce and infrastructure, and minimize social and economic impacts. Required activities include:
1. Surveillance, Laboratory Testing, and Reporting
Recipients are required to implement and scale up laboratory testing and data collection to enable identification and tracking of COVID-19 cases in the community and are responsible for immediate implementation of real-time reporting to CDC. Specifically, jurisdictions should focus on the following activities, in accordance with CDC guidelines:
a. Conduct surveillance to identify cases, report case data in a timely manner, identify contacts, characterize disease transmission, and track relevant epidemiologic characteristics including hospitalization and death.
b. Conduct surveillance to monitor virologic and disease activity in the community and healthcare settings.
c. Implement routine and enhanced surveillance to support the science base that informs public health interventions that mitigate the impact of COVID-19, including understanding of clinical characteristics; infection prevention and control practices; and other mitigation requirements.
d. Establish or enhance core epidemiological activities to support response such as risk assessment, case classification, analysis, visualization, and reporting.
e. Conduct surveillance to monitor disruption in the community caused by COVID-19 and related mitigation activities (e.g., school closures and cancellation of mass gatherings).
f. Conduct surveillance to monitor disruption in healthcare systems caused by COVID-19 (e.g., shortages of personal protective equipment).
2. Community Intervention Implementation Plan
a. Recipients must develop a brief COVID-19 community intervention implementation plan that describes how the state and local jurisdictions will achieve the response’s three mitigation goals: 1) Slow transmission of disease; 2) Minimize morbidity and mortality; and 3) Preserve healthcare, workforce, and infrastructure functions and minimize social and economic impacts. The plan should address how the recipient will:
i. Minimize potential spread and reduce morbidity and mortality of COVID-19 in communities.
ii. Plan and adapt for disruption caused by community spread and interventions to prevent further spread.
iii. Ensure healthcare system response is an integrated part of community interventions.
iv. Ensure integration of community mitigation interventions with health system preparedness and response plans and interventions.
C. May use funds to pay pre-award costs which date back to January 20, 2020, and directly relate to the outbreak.
D. Complete all required and allowable activities by March 15, 2021.
E. Develop a work plan outlining allowable activities. Grantee will submit a workplan thirty
(30) days after execution of this document and on a template provided by the System Agency.
F. Submit a final performance report that describes progress toward achieving the objectives contained in the approved workplan within an established timeframe designated by the Contractual Requirements Schedule, using the template provided by System Agency.
G. Not use funds for research, clinical care, fund-raising activities, construction or major renovations, to supplant existing state or federal funds for activities, purchase of vehicles of any kind, uniforms or furniture, or funding an award to another party or provider who is ineligible. Funds cannot be used for the preparation, distribution, or use of any material (publicity or propaganda) or to pay the salary or expenses of grant recipients, contract recipients, or agents that aim to support or defeat the enactment of legislation, regulation, administrative action, or executive order proposed or pending before a legislative body beyond normal, recognized executive relationships.
H. Submit monthly local health department COVID-19 spend plans and progress reports within an established timeframe designated by the Contractual Requirements Schedule, using the template provided by System Agency. Failure to submit a required report or additional requested information by the due date specified in this Contract or upon request constitutes breach of contract and may result in delay of payment. Reports should be sent electronically to XXXX@xxxx.xxxxx.xxx and the assigned Contract Manger.
I. Comply with all applicable regulations, standards, and guidelines in effect on the beginning date of this Contract and as amended.
J. The following documents and resources are incorporated herein by reference and made a part of this Contract as if fully set forth therein:
1. DSHS and CDC Public Health Crisis Response Cooperative Agreement, Funding Opportunity Number: CDC-RFA-TP18-1802;
2. Project workplan; and
3. Local Health Department COVID Monthly Spend Plan(s).
II. PERFORMANCE MEASURES
DSHS will monitor the Grantee’s performance of the requirements in this Statement of Work and compliance with the Contract’s terms and conditions.
III. REPORTING REQUIREMENTS
Grantee, at the request of the System Agency, may be required to submit additional reports determined necessary to accomplish the objectives of and monitor compliance with this Contract. Grantee must submit reports in a format specified by the System Agency. Grantee will provide System Agency financial reports as System Agency determines necessary to accomplish the objectives of this Contract and to monitor compliance. If Grantee is legally prohibited from providing any report under this Contract, Grantee will immediately notify System Agency in writing.
Grantee will provide and submit written reports, by electronic mail in the format specified by System Agency. Grantee will complete and submit the Local Health Department COVID-19 Monthly Spend Plans by the 5th business day of each month. Grantee shall maintain the source documentation used to develop the reports. All written reports should be titled with the Grantee name, address, email address, telephone number, program name, contract or purchase order number, dates services were completed and/or products were delivered, the time period of the report, total invoice amount, and invoices paid to subgrantees for services received.
DSHS will develop performance measures in collaboration with the Grantee. DSHS will monitor the Grantee’s performance of the requirements in this Statement of Work and compliance with the Contract’s terms and conditions.
IV. INVOICE AND PAYMENT
A. Grantee will request payment monthly using the State of Texas Purchase Voucher (Form B-
13) and acceptable supporting documentation for reimbursement of the required services/deliverables. The Grantee will submit the Financial Status Report (FSR-269A). Vouchers, supporting documentation, and Financial Status Reports should be mailed or emailed to the addresses below.
Department of State Health Services Claims Processing Unit, MC 1940 0000 Xxxx 00xx Xxxxxx
X.X. Xxx 000000 Xxxxxx, XX 00000-0000 FAX: (000) 000-0000
EMAIL: email@example.com & XXXXxxxxxxx@xxxx.xxxxx.xxx
B-13s and supporting documentation should be sent to: firstname.lastname@example.org & XXXXxxxxxxx@xxxx.xxxxx.xxx.
FSRs should be sent to: XXXXxxxxx@xxxx.xxxxx.xxx & XXXXxxxxxxx@xxxx.xxxxx.xxx.
B. Subject to submission of required and appropriate documentation, and in accordance with applicable law and governing regulations, Grantee will be reimbursed monthly and in accordance with Attachment B, Budget.
Health and Human Services (HHS)
Uniform Terms and Conditions - Governmental Entity
Published and Effective - March 1, 2020 Responsible Office: Chief Counsel
Table of Contents
ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS 5
1.1 DEFINITIONS 5
1.2 INTERPRETIVE PROVISIONS 7
ARTICLE II. PAYMENT PROVISIONS 8
2.1 PROMPT PAYMENT 8
2.2 ANCILLARY AND TRAVEL EXPENSES 8
2.3 NO QUANTITY GUARANTEES 8
2.4 TAXES 8
ARTICLE III. STATE AND FEDERAL FUNDING 8
3.1 EXCESS OBLIGATIONS PROHIBITED 8
3.2 NO DEBT AGAINST THE STATE 8
3.3 DEBT AND DELINQUENCIES 9
3.4 REFUNDS AND OVERPAYMENTS 9
ARTICLE IV. WARRANTY, AFFIRMATIONS, ASSURANCES, AND CERTIFICATIONS 9
4.1 WARRANTY 9
4.2 GENERAL AFFIRMATIONS 9
4.3 FEDERAL ASSURANCES 10
4.4 FEDERAL CERTIFICATIONS 10
ARTICLE V.INTELLECTUAL PROPERTY 10
5.1 OWNERSHIP OF WORK PRODUCT 10
5.2 PERFORMING AGENCY’S PRE-EXISTING WORKS 11
5.3 THIRD PARTY IP 11
5.4 AGREEMENTS WITH EMPLOYEES AND SUBCONTRACTORS 11
5.5 DELIVERY UPON TERMINATION OR EXPIRATION 11
5.6 SURVIVAL 12
5.7 SYSTEM AGENCY DATA 12
ARTICLE VI. PROPERTY 12
6.1 USE OF STATE PROPERTY 12
6.2 DAMAGE TO GOVERNMENT PROPERTY 13
6.3 PROPERTY RIGHTS UPON TERMINATION OR EXPIRATION OF CONTRACT 13
ARTICLE VII. RECORD RETENTION, AUDIT, AND CONFIDENTIALITY 13
7.1 RECORD MAINTENANCE AND RETENTION 13
7.2 AGENCY’S RIGHT TO AUDIT 13
7.3 RESPONSE/COMPLIANCE WITH AUDIT OR INSPECTION FINDINGS 14
7.4 STATE AUDITOR’S RIGHT TO AUDIT 14
7.5 CONFIDENTIALITY 15
ARTICLE VIII. CONTRACT REMEDIES AND EARLY TERMINATION 15
8.1 CONTRACT REMEDIES 15
8.2 TERMINATION FOR CONVENIENCE 15
8.3 TERMINATION FOR CAUSE 15
8.4 PERFORMING AGENCY RESPONSIBILITY FOR TERMINATION COSTS 16
ARTICLE IX. GENERAL PROVISIONS 16
9.1 AMENDMENT 16
9.2 INSURANCE 16
9.3 LIMITATION ON AUTHORITY 16
9.4 LEGAL OBLIGATIONS 17
9.5 CHANGE IN LAWS AND COMPLIANCE WITH LAWS 17
9.6 E-VERIFY PROGRAM 17
9.7 PERMITTING AND LICENSURE 17
9.8 SUBCONTRACTORS 18
9.9 INDEPENDENT PERFORMING AGENCY 18
9.10 GOVERNING LAW AND VENUE 18
9.11 SEVERABILITY 18
9.12 SURVIVABILITY 18
9.13 FORCE MAJEURE 19
9.14 DISPUTE RESOLUTION 19
9.15 NO IMPLIED WAIVER OF PROVISIONS 19
9.16 MEDIA RELEASES 19
9.17 NO MARKETING ACTIVITIES 20
9.18 PROHIBITION ON NON-COMPETE RESTRICTIONS 20
9.19 SOVEREIGN IMMUNITY 20
9.20 ENTIRE CONTRACT AND MODIFICATION 20
9.21 COUNTERPARTS 20
9.22 CIVIL RIGHTS 20
9.23 ENTERPRISE INFORMATION MANAGEMENT STANDARDS 22
9.24 DISCLOSURE OF LITIGATION 22
9.25 NO THIRD-PARTY BENEFICIARIES 22
9.26 BINDING EFFECT 22
ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS
As used in this Contract, unless the context clearly indicates otherwise, the following terms and conditions have the meanings assigned below:
“Amendment” means a written agreement, signed by the Parties, which documents changes to the Contract other than those permitted by Work Orders.
“Attachment” means documents, terms, conditions, or information added to this Contract following the Signature Document or included by reference and made a part of this Contract.
“Contract” means the Signature Document, these Uniform Terms and Conditions, along with any Attachments, and any Amendments, purchase orders, or Work Orders that may be issued by the System Agency, to be incorporated by reference for all purposes.
“Deliverable” means a Work Product(s), including all reports and project documentation, prepared, developed, or procured by Contractor as part of the Services under the Contract for the use or benefit of the System Agency or the State of Texas.
“Effective Date” means the date agreed to by the Parties as the date on which the Contract takes effect.
“Federal Fiscal Year” means the period beginning October 1 and ending September 30 each year, which is the annual accounting period for the United States government.
“GAAP” means Generally Accepted Accounting Principles. “GASB” means the Governmental Accounting Standards Board. “Goods” means supplies, materials, or equipment.
“Health and Human Services Commission” or “HHSC” means the administrative agency established under Chapter 531, Texas Government Code, or its designee.
“Health and Human Services” or “HHS” includes the Department of State Health Services (DSHS), in addition to the Health and Human Services Commission.
“HUB” means Historically Underutilized Business, as defined by Chapter 2161 of the Texas Government Code.
“Intellectual Property Rights” means the worldwide proprietary rights or interests, including patent, copyright, trade secret, and trademark rights, as such rights may be evidenced by or embodied in:
i. any idea, design, concept, personality right, method, process, technique, apparatus, invention, discovery, or improvement;
ii. any work of authorship, including any compilation, computer code, website or web page design, literary work, pictorial work, or graphic work;
iii. any trademark, service xxxx, trade dress, trade name, branding, or other indicia of source or origin;
iv. domain name registrations; and
v. any other proprietary or similar rights. The Intellectual Property Rights of a Party include all worldwide proprietary rights or interests that the Party may have acquired by assignment, by exclusive license, or by license with the right to grant sublicenses.
“Parties” means the System Agency and Performing Agency, collectively. “Party” means either the System Agency or Performing Agency, individually.
“Performing Agency” means the State Agency providing the goods or services defined in this Contract.
“Project” means the goods or Services described in the Signature Document or a Work Order of this Contract.
“Receiving Agency” means the State agency receiving the benefit of the goods or services provided under this Contract.
“Scope of Work” means the description of Services and Deliverables specified in the Contract and as may be amended.
“Services” means the tasks, functions, and responsibilities assigned and delegated to Performing Agency under the Contract.
“Signature Document” means the document executed by both Parties that specifically sets forth all of the documents that constitute the Contract.
“Solicitation” means the document issued by the System Agency (including any published addenda, exhibits, and Attachments) under which the goods or Services provided under the Contract were initially requested, which is incorporated by reference for all purposes in its entirety.
“Solicitation Response” means Performing Agency’s full and complete response (including any Attachments and addenda) to the Solicitation, which is incorporated by reference for all purposes in its entirety.
“State Fiscal Year” means the period beginning September 1 and ending August 31 each year, which is the annual accounting period for the State of Texas.
“State of Texas Textravel” means the State Travel Management Program through the Texas Comptroller of Public Accounts website and Texas Administrative Code, Title 34, Part 1, Chapter 5, Subchapter C, Section 5.22, relative to travel reimbursements under this Contract, if any.
“Subcontract” means any written agreement between Performing Agency and a third party to fulfill the requirements of the Contract. All Subcontracts are required to be in writing.
“Subcontractor” means any individual or entity that enters a contract with the Performing Agency to perform part or all of the obligations of Performing Agency under this Contract.
“System Agency” means HHSC or any of the agencies of the State of Texas that are overseen by HHSC under authority granted under state law and the officers, employees, authorized representatives, and designees of those agencies. These agencies include: HHSC and the Department of State Health Services.
“Third Party IP” means the Intellectual Property Rights of any third party that is not a party to this Contract, and that is not a Subcontractor.
“Work” means all Services to be performed, goods to be delivered, and any appurtenant actions performed, and items produced, conceived, or developed, including Deliverables.
“Work Order” means an individually negotiated document that is executed by both Parties and which authorizes a Project, if any, in an indefinite quantity Contract.
“Work Product” means any and all works, including work papers, notes, materials, approaches, designs, specifications, systems, innovations, improvements, inventions, software, programs, source code, documentation, training materials, audio or audiovisual recordings, methodologies, concepts, studies, reports, whether finished or unfinished, and whether or not included in the Deliverables, that are developed, produced, generated, or provided by Performing Agency in connection with Performing Agency’s performance of its duties under the Contract or through use of any funding provided under this Contract.
1.2 INTERPRETIVE PROVISIONS
A. The meanings of defined terms include the singular and plural forms.
B. The words “hereof,” “herein,” “hereunder,” and similar words refer to this Contract as a whole and not to any particular provision, section, Attachment, or schedule of this Contract unless otherwise specified.
C. The term “including” is not limiting and means “including without limitation” and, unless otherwise expressly provided in this Contract, (i) references to contracts (including this Contract) and other contractual instruments shall be deemed to include all subsequent Amendments and other modifications, but only to the extent that such Amendments and other modifications are not prohibited by the terms of this Contract, and (ii) references to any statute or regulation are to be construed as including all statutory and regulatory provisions consolidating, amending, replacing, supplementing, or interpreting the statute or regulation.
D. Any references to “sections,” “appendices,” or “attachments” are references to sections, appendices, or attachments of the Contract.
E. Any references to agreements, contracts, statutes, or administrative rules or regulations in the Contract are references to these documents as amended, modified, or supplemented from time to time during the term of the Contract.
F. The captions and headings of this Contract are for convenience of reference only and do not affect the interpretation of this Contract.
G. All Attachments, including those incorporated by reference, and any Amendments are considered part of the terms of this Contract.
H. This Contract may use several different limitations, regulations, or policies to regulate the same or similar matters. All such limitations, regulations, and policies are cumulative, and each will be performed in accordance with its terms.
I. Unless otherwise expressly provided, reference to any action of the System Agency or by the System Agency by way of consent, approval, or waiver will be deemed modified by the phrase “in its sole discretion.”
J. Time is of the essence in this Contract.
2.1 PROMPT PAYMENT
ARTICLE II. PAYMENT PROVISIONS
Payment shall be made in accordance with Chapter 2251 of the Texas Government Code, commonly known as the Texas Prompt Payment Act. Chapter 2251 of the Texas Government Code shall govern remittance of payment and remedies for late payment and non-payment.
2.2 ANCILLARY AND TRAVEL EXPENSES
A. Except as otherwise provided in the Contract, no ancillary expenses incurred by the Performing Agency in connection with its provision of the Services or Deliverables will be reimbursed by the System Agency. Ancillary expenses include, but are not limited to costs associated with transportation, delivery, and insurance for each Deliverable.
B. When the reimbursement of travel expenses is authorized by the Contract, all such expenses will be reimbursed in accordance with the rates set by the State of Texas Textravel available at the Texas Comptroller of Public Accounts State Travel Management Program website.
2.3 NO QUANTITY GUARANTEES
The System Agency makes no guarantee of volume or usage of work under this Contract. All Work requested may be on an irregular and as needed basis throughout the Contract term.
Purchases made for State of Texas use are exempt from the State Sales Tax and Federal Excise Tax. Performing Agency represents and warrants that it shall pay all taxes or similar amounts resulting from the Contract, including, but not limited to, any federal, State, or local income, sales or excise taxes of Performing Agency or its employees. System Agency shall not be liable for any taxes resulting from the contract.
ARTICLE III. STATE AND FEDERAL FUNDING
3.1 EXCESS OBLIGATIONS PROHIBITED
The Contract is subject to termination or cancellation, without penalty to the System Agency, ether in whole or in part, subject to the availability of state funds. System Agency is a state agency whose authority and appropriations are subject to actions of the Texas Legislature. If System Agency becomes subject to a legislative change, revocation of statutory authority, or lack of appropriated funds that would render either System Agency’s or Performing Agency’s delivery or performance under the Contract impossible or unnecessary, the Contract will be terminated or cancelled and be deemed null and void. In the event of a termination or cancellation under this Section, System Agency will not be liable to Performing Agency for any damages that are caused or associated with such termination, or cancellation, and System Agency will not be required to give prior notice.
3.2 NO DEBT AGAINST THE STATE
This Contract will not be construed as creating any debt by or on behalf of the State of Texas.
3.3 DEBT AND DELINQUENCIES
Performing Agency agrees that any payments due under the Contract shall be directly applied towards eliminating any debt or delinquency it has to the State of Texas including, but not limited to, delinquent taxes, delinquent student loan payments, and delinquent child support.
3.4 REFUNDS AND OVERPAYMENTS
A . At its sole discretion, the System Agency may:
i. withhold all or part of any payments to Performing Agency to offset overpayments, unallowable or ineligible costs made to the Performing Agency, or if any required financial status report(s) is not submitted by the due date(s); or,
ii. require Performing Agency to promptly refund or credit - within thirty (30) calendar days of written notice - any funds erroneously paid by System Agency which are not expressly authorized under the Contract.
B. “Overpayments,” as used in this Section, include payments:
i . made by the System Agency that exceed the maximum allowable rates;
ii. that are not allowed under applicable laws, rules, or regulations; or,
iii. that are otherwise inconsistent with this Contract, including any unapproved expenditures. Performing Agency understands and agrees that it will be liable to the System Agency for any costs disallowed pursuant to financial and compliance audit(s) of funds received under this Contract. Performing Agency further understands and agrees that reimbursement of such disallowed costs shall be paid by Performing Agency from funds which were not provided or otherwise made available to Performing Agency under this Contract.
ARTICLE IV. WARRANTY, AFFIRMATIONS, ASSURANCES,
Performing Agency warrants that all Work under this Contract shall be completed in a manner consistent with standards under the terms of this Contract, in the applicable trade, profession, or industry; shall conform to or exceed the specifications set forth in the Contract; and all Deliverables shall be fit for ordinary use, of good quality, and with no material defects. If System Agency, in its sole discretion, determines Performing Agency has failed to complete Work timely or to perform satisfactorily under conditions required by this Contract, the System Agency may require Performing Agency, at its sole expense, to:
i. Repair or replace all defective or damaged Work;
ii. Refund any payment Performing Agency received from System Agency for all defective or damaged Work and, in conjunction therewith, require Performing Agency to accept the return of such Work; and,
iii. Take necessary action to ensure that Performing Agency’s future performance and Work conform to the Contract requirements.
4.2 GENERAL AFFIRMATIONS
Performing Agency certifies that, to the extent General Affirmations are incorporated into the Contract under the Signature Document, the Performing Agency has reviewed the General Affirmations and that Performing Agency is in compliance with all requirements.
4.3 FEDERAL ASSURANCES
Performing Agency certifies that, to the extent federal assurances are incorporated into the Contract under the Signature Document, the Performing Agency has reviewed the federal assurances and that Performing Agency is in compliance with all requirements.
4.4 FEDERAL CERTIFICATIONS
Performing Agency certifies that, to the extent federal certifications are incorporated into the Contract under the Signature Document, the Performing Agency has reviewed the federal certifications and that Performing Agency is in compliance with all requirements. In addition, Performing Agency certifies that it is and shall remain in compliance with all applicable federal laws, rules, and regulations, as they may pertain to this Contract.
ARTICLE V. INTELLECTUAL PROPERTY
5.1 OWNERSHIP OF WORK PRODUCT
A. All right, title, and interest in the Work Product, including all Intellectual Property Rights therein, is exclusively owned by System Agency. Performing Agency and Performing Agency’s employees will have no rights in or ownership of the Work Product or any other property of System Agency.
B. Any and all Work Product that is copyrightable under United States copyright law is deemed to be “work made for hire” owned by System Agency, as provided by Title 17 of the United States Code. To the extent that Work Product does not qualify as a “work made for hire” under applicable federal law, Performing Agency hereby irrevocably assigns and transfers to System Agency, its successors and assigns, the entire right, title, and interest in and to the Work Product, including any and all Intellectual Property Rights embodied therein or associated therewith, and in and to all works based upon, derived from, or incorporating the Work Product, and in and to all income, royalties, damages, claims and payments now or hereafter due or payable with respect thereto, and in and to all causes of action, either in law or in equity for past, present or future infringement based on the copyrights, and in and to all rights corresponding to the foregoing.
C. Performing Agency agrees to execute all papers and to perform such other acts as System Agency may deem necessary to secure for System Agency or its designee the rights herein assigned.
D. In the event that Performing Agency has any rights in and to the Work Product that cannot be assigned to System Agency, Performing Agency hereby grants to System Agency an exclusive, worldwide, royalty-free, transferable, irrevocable, and perpetual license, with the right to sublicense, to reproduce, distribute, modify, create derivative works of, publicly perform and publicly display, make, have made, use, sell and offer for sale the Work Product and any products developed by practicing such rights.
E. The foregoing does not apply to Incorporated Pre-existing Works or Third Party IP that are incorporated in the Work Product by Performing Agency. Performing Agency shall provide System Agency access during normal business hours to all Vendor materials, premises, and computer files containing the Work Product.
5.2 PERFORMING AGENCY’S PRE-EXISTING WORKS
A. To the extent that Performing Agency incorporates into the Work Product any works of Performing Agency that were created by Performing Agency or that Performing Agency acquired rights in prior to the Effective Date of this Contract (“Incorporated Pre-existing Works”), Performing Agency retains ownership of such Incorporated Pre-existing Works.
B. Performing Agency hereby grants to System Agency an irrevocable, perpetual, non- exclusive, royalty-free, transferable, worldwide right and license, with the right to sublicense, to use, reproduce, modify, copy, create derivative works of, publish, publicly perform and display, sell, offer to sell, make and have made, the Incorporated Pre-existing Works, in any medium, with or without the associated Work Product.
C. Performing Agency represents, warrants, and covenants to System Agency that Performing Agency has all necessary right and authority to grant the foregoing license in the Incorporated Pre-existing Works to System Agency.
5.3 THIRD PARTY IP
A. To the extent that any Third Party IP is included or incorporated in the Work Product by Performing Agency, Performing Agency hereby grants to System Agency, or shall obtain from the applicable third party for System Agency’s benefit, the irrevocable, perpetual, non-exclusive, worldwide, royalty-free right and license, for System Agency’s internal business purposes only,
i. to use, reproduce, display, perform, distribute copies of, and prepare derivative works based upon such Third Party IP and any derivative works thereof embodied in or delivered to System Agency in conjunction with the Work Product, and
ii. to authorize others to do any or all of the foregoing.
B. Performing Agency shall obtain System Agency’s advance written approval prior to incorporating any Third Party IP into the Work Product, and Performing Agency shall notify System Agency on delivery of the Work Product if such materials include any Third Party IP.
C. Performing Agency shall provide System Agency all supporting documentation demonstrating Performing Agency’s compliance with this Section 5.3, including without limitation documentation indicating a third party’s written approval for Performing Agency to use any Third Party IP that may be incorporated in the Work Product.
5.4 AGREEMENTS WITH EMPLOYEES AND SUBCONTRACTORS
Performing Agency shall have written, binding agreements with its employees and subcontractors that include provisions sufficient to give effect to and enable Performing Agency’s compliance with Performing Agency’s obligations under this Article V.
5.5 DELIVERY UPON TERMINATION OR EXPIRATION
No later than the first calendar day after the termination or expiration of the Contract or upon System Agency’s request, Performing Agency shall deliver to System Agency all completed, or partially completed, Work Product, including any Incorporated Pre-existing Works, and any and all versions thereof. Performing Agency’s failure to timely deliver such Work Product is a material breach of the Contract. Performing Agency will not retain any copies of the Work Product or any documentation or other products or results of Performing Agency’s activities under the Contract without the prior written consent of System Agency.
The provisions and obligations of this Article V survive any termination or expiration of the Contract.
5.7 SYSTEM AGENCY DATA
A. As between the Parties, all data and information acquired, accessed, or made available to Performing Agency by, through, or on behalf of System Agency or System Agency contractors, including all electronic data generated, processed, transmitted, or stored by Performing Agency in the course of providing data processing services in connection with Performing Agency’s performance hereunder (the “System Agency Data”), is owned solely by System Agency.
B. Performing Agency has no right or license to use, analyze, aggregate, transmit, create derivatives of, copy, disclose, or process the System Agency Data except as required for Performing Agency to fulfill its obligations under the Contract or as authorized in advance in writing by System Agency.
C. For the avoidance of doubt, Performing Agency is expressly prohibited from using, and from permitting any third party to use, System Agency Data for marketing, research, or other non-governmental or commercial purposes, without the prior written consent of System Agency.
D. Performing Agency shall make System Agency Data available to System Agency, including to System Agency’s designated vendors, as directed in writing by System Agency. The foregoing shall be at no cost to System Agency.
E. Furthermore, the proprietary nature of Performing Agency’s systems that process, store, collect, and/or transmit the System Agency Data shall not excuse Performing Agency’s performance of its obligations hereunder.
ARTICLE VI. PROPERTY
6.1 USE OF STATE PROPERTY
A. Performing Agency is prohibited from using State Property for any purpose other than performing Services authorized under the Contract.
B. State Property includes, but is not limited to, System Agency’s office space, identification badges, System Agency information technology equipment and networks (e.g., laptops, portable printers, cell phones, iPads or tablets, external hard drives, data storage devices, any System Agency-issued software, and the System Agency Virtual Private Network (VPN client)), and any other resources of System Agency.
C. Performing Agency shall not remove State Property from the continental United States. In addition, Performing Agency may not use any computing device to access System Agency’s network or e-mail while outside of the continental United States.
D. Performing Agency shall not perform any maintenance services on State Property unless the Contract expressly authorizes such Services.
E. During the time that State Property is in the possession of Performing Agency, Performing Agency shall be responsible for:
i. all repair and replacement charges incurred by State Agency that are associated with loss of State Property or damage beyond normal wear and tear, and
ii. all charges attributable to Performing Agency’s use of State Property that exceeds the Contract scope. Performing Agency shall fully reimburse such charges to System Agency within ten (10) calendar days of Performing Agency’s receipt of System Agency’s notice of amount due. Use of State Property for a purpose not authorized by the Contract shall constitute breach of contract and may result in termination of the Contract and the pursuit of other remedies available to System Agency under contract, at law, or in equity.
6.2 DAMAGE TO GOVERNMENT PROPERTY
A. In the event of loss, destruction, or damage to any System Agency or State of Texas owned, leased, or occupied property or equipment by Performing Agency or Performing Agency’s employees, agents, Subcontractors, and suppliers, Performing Agency shall be liable to System Agency and the State of Texas for the full cost of repair, reconstruction, or replacement of the lost, destroyed, or damaged property.
B. Performing Agency shall notify System Agency of the loss, destruction, or damage of equipment or property within one (1) business day. Performing Agency shall reimburse System Agency and the State of Texas for such property damage within 10 calendar days after Performing Agency’s receipt of System Agency’s notice of amount due.
6.3 PROPERTY RIGHTS UPON TERMINATION OR EXPIRATION OF CONTRACT
In the event the Contract is terminated for any reason, or upon its expiration State Property remains the property of the System Agency and must be returned to the System Agency by the end date of the Contract or upon System Agency’s request.
ARTICLE VII. RECORD RETENTION, AUDIT, AND CONFIDENTIALITY
7.1 RECORD MAINTENANCE AND RETENTION
A. Performing Agency shall keep and maintain under GAAP or GASB, as applicable, full, true, and complete records necessary to fully disclose to the System Agency, the Texas State Auditor’s Office, the United States Government, and their authorized representatives sufficient information to determine compliance with the terms and conditions of this Contract and all state and federal rules, regulations, and statutes.
B. Performing Agency shall maintain and retain legible copies of this Contract and all records relating to the performance of the Contract including supporting fiscal documents adequate to ensure that claims for contract funds are in accordance with applicable State of Texas requirements. These records shall be maintained and retained by Performing Agency for a minimum of seven (7) years after the Contract expiration date or seven (7) years after the completion of all audit, claim, litigation, or dispute matters involving the Contract are resolved, whichever is later.
7.2 AGENCY’S RIGHT TO AUDIT
A. Performing Agency shall make available at reasonable times and upon reasonable notice, and for reasonable periods, work papers, reports, books, records, supporting documents kept current by Performing Agency pertaining to the Contract for purposes of inspecting, monitoring, auditing, or evaluating by System Agency and the State of Texas.
B. In addition to any right of access arising by operation of law, Performing Agency and any of Performing Agency’s affiliate or subsidiary organizations, or Subcontractors shall permit the System Agency or any of its duly authorized representatives, as well as duly authorized federal, state or local authorities, unrestricted access to and the right to examine any site where business is conducted or Services are performed, and all records, which includes but is not limited to financial, client and patient records, books, papers or documents related to this Contract. If the Contract includes federal funds, federal agencies that shall have a right of access to records as described in this section include: the federal agency providing the funds, the Comptroller General of the United States, the General Accounting Office, the Office of the Inspector General, and any of their authorized representatives. In addition, agencies of the State of Texas that shall have a right of access to records as described in this section include: the System Agency, HHSC, HHSC's contracted examiners, the State Auditor’s Office, the Texas Attorney General's Office, and any successor agencies. Each of these entities may be a duly authorized authority.
C. If deemed necessary by the System Agency or any duly authorized authority, for the purpose of investigation or hearing, Performing Agency shall produce original documents related to this Contract.
D. The System Agency and any duly authorized authority shall have the right to audit xxxxxxxx both before and after payment, and all documentation that substantiates the xxxxxxxx.
E. Performing Agency shall include this provision concerning the right of access to, and examination of, sites and information related to this Contract in any Subcontract it awards.
7.3 RESPONSE/COMPLIANCE WITH AUDIT OR INSPECTION FINDINGS
A. Performing Agency must act to ensure its and its Subcontractors’ compliance with all corrections necessary to address any finding of noncompliance with any law, regulation, audit requirement, or generally accepted accounting principle, or any other deficiency identified in any audit, review, or inspection of the Contract and the Services and Deliverables provided. Any such correction will be at Performing Agency’s or its Subcontractor's sole expense. Whether Performing Agency's action corrects the noncompliance shall be solely the decision of the System Agency.
B. As part of the Services, Performing Agency must provide to System Agency upon request a copy of those portions of Performing Agency's and its Subcontractors' internal audit reports relating to the Services and Deliverables provided to the State under the Contract.
7.4 STATE AUDITOR’S RIGHT TO AUDIT
A. The state auditor may conduct an audit or investigation of any entity receiving funds from the state directly under the Contract or indirectly through a subcontract under the Contract. The acceptance of funds directly under the Contract or indirectly through a subcontract under the Contract acts as acceptance of the authority of the state auditor, under the direction of the legislative audit committee, to conduct an audit or investigation in connection with those funds. Under the direction of the legislative audit committee, an entity that is the subject of an audit or investigation by the state auditor must provide the state auditor with access to any information the state auditor considers relevant to the investigation or audit.
B. The Performing Agency shall comply with any rules and procedures of the state auditor in the implementation and enforcement of Section 2262.154 of the Texas Government Code.
Performing Agency shall maintain as confidential and shall not disclose to third parties without System Agency’s prior written consent, any System Agency information including but not limited to System Agency Data, System Agency’s business activities, practices, systems, conditions and services. This section will survive termination or expiration of this Contract. The obligations of Performing Agency under this section will survive termination or expiration of this Contract. This requirement must be included in all subcontracts awarded by Performing Agency.
ARTICLE VIII. CONTRACT REMEDIES AND EARLY TERMINATION
8.1 CONTRACT REMEDIES
To ensure Performing Agency’s full performance of the Contract and compliance with applicable law, the System Agency reserves the right to hold Performing Agency accountable for breach of contract or substandard performance and may take remedial or corrective actions, including, but not limited to:
i. suspending all or part of the Contract;
ii. requiring the Performing Agency to take specific actions in order to remain in compliance with the Contract;
iii. recouping payments made by the System Agency to the Performing Agency found to be inerror;
iv. suspending, limiting, or placing conditions on the Performing Agency’s continued performance of Work; or
v. imposing any other remedies, sanctions, or penalties authorized under this Contract or permitted by federal or state law.
8.2 TERMINATION FOR CONVENIENCE
The System Agency may terminate the Contract, in whole or in part, at any time when, in its sole discretion, the System Agency determines that termination is in the best interests of the State of Texas. The termination will be effective on the date specified in the System Agency’s notice of termination.
8.3 TERMINATION FOR CAUSE
Except as otherwise provided by the U.S. Bankruptcy Code, or any successor law, the System Agency may terminate the Contract, in whole or in part, upon either of the following conditions:
i. Material Breach
The System Agency will have the right to terminate the Contract in whole or in part if the System Agency determines, in its sole discretion, that Performing Agency has materially breached the Contract or has failed to adhere to any laws, ordinances, rules, regulations or orders of any public authority having jurisdiction and such violation prevents or substantially impairs performance of Performing Agency’s duties under the Contract. Performing Agency's misrepresentation in any aspect of Performing Agency’s Solicitation Response, if any, or Performing Agency's addition to the System for Award Management (XXX) will also constitute a material breach of the Contract.
ii. Failure to Maintain Financial Viability
The System Agency may terminate the Contract if, in its sole discretion, the System Agency has a good faith belief that Performing Agency no longer maintains the financial viability required to complete the Work, or otherwise fully perform its responsibilities under the Contract.
8.4 PERFORMING AGENCY RESPONSIBILITY FOR SYSTEM AGENCY’S TERMINATION COSTS
If the System Agency terminates the Contract for cause, the Performing Agency shall be responsible to the System Agency for all costs incurred by the System Agency and the State of Texas to replace the Performing Agency. These costs include, but are not limited to, the costs of procuring a substitute vendor and the cost of any claim or litigation attributable to Performing Agency’s failure to perform any Work in accordance with the terms of the Contract.
ARTICLE IX. GENERAL PROVISIONS
The Contract may only be amended by an Amendment executed by both Parties.
A. Unless otherwise specified in this Contract, Performing Agency shall acquire and maintain, for the duration of this Contract, insurance coverage necessary to ensure proper fulfillment of this Contract and potential liabilities thereunder with financially sound and reputable insurers licensed by the Texas Department of Insurance, in the type and amount customarily carried within the industry as determined by the System Agency. Performing Agency shall provide evidence of insurance as required under this Contract, including a schedule of coverage or underwriter’s schedules establishing to the satisfaction of the System Agency the nature and extent of coverage granted by each such policy, upon request by the System Agency. In the event that any policy is determined by the System Agency to be deficient to comply with the terms of this Contract, Performing Agency shall secure such additional policies or coverage as the System Agency may reasonably request or that are required by law or regulation. If coverage expires during the term of this Contract, Performing Agency must produce renewal certificates for each type of coverage.
B. These and all other insurance requirements under the Contract apply to both Performing Agency and its Subcontractors, if any. Performing Agency is responsible for ensuring its Subcontractors' compliance with all requirements.
9.3 LIMITATION ON AUTHORITY
A. The authority granted to Performing Agency by the System Agency is limited to the terms of the Contract.
B. Performing Agency shall not have any authority to act for or on behalf of the System Agency or the State of Texas except as expressly provided for in the Contract; no other authority, power, or use is granted or implied. Performing Agency may not incur any debt, obligation, expense, or liability of any kind on behalf of System Agency or the State of Texas.
C. Performing Agency may not rely upon implied authority and is not granted authority under the Contract to:
i. Make public policy on behalf of the System Agency;
ii. Promulgate, amend, or disregard administrative regulations or program policy decisions made by State and federal agencies responsible for administration of a System Agency program; or
iii. Unilaterally communicate or negotiate with any federal or state agency or the Texas Legislature on behalf of the System Agency regarding System Agency programs or the Contract. However, upon System Agency request and with reasonable notice from System Agency to the Performing Agency, the Performing Agency shall assist the System Agency in communications and negotiations regarding the Work under the Contract with state and federal governments.
9.4 LEGAL OBLIGATIONS
Performing Agency shall comply with all applicable federal, state, and local laws, ordinances, and regulations, including all federal and state accessibility laws relating to direct and indirect use of information and communication technology. Performing Agency shall be deemed to have knowledge of all applicable laws and regulations and be deemed to understand them.
9.5 CHANGE IN LAWS AND COMPLIANCE WITH LAWS
Performing Agency shall comply with all laws, regulations, requirements and guidelines applicable to a vendor providing services and products required by the Contract to the State of Texas, as these laws, regulations, requirements and guidelines currently exist and as amended throughout the term of the Contract. System Agency reserves the right, in its sole discretion, to unilaterally amend the Contract to incorporate any modifications necessary for System Agency’s compliance, as an agency of the State of Texas, with all applicable state and federal laws, regulations, requirements and guidelines.
9.6 E-VERIFY PROGRAM
Performing Agency certifies that for Contracts for Services, Performing Agency shall utilize the U.S. Department of Homeland Security's E-Verify system during the term of the Contract to determine the eligibility of:
i. all persons employed by Performing Agency to perform duties within Texas; and
ii. all persons, including subcontractors, assigned by the Performing Agency to perform Work pursuant to the Contract within the United States of America.
9.7 PERMITTING AND LICENSURE
At Performing Agency's sole expense, Performing Agency shall procure and maintain for the duration of this Contract any state, county, city, or federal license, authorization, insurance, waiver, permit, qualification or certification required by statute, ordinance, law, or regulation to be held by Performing Agency to provide the goods or Services required by this Contract. Performing Agency shall be responsible for payment of all taxes, assessments, fees, premiums, permits, and licenses required by law. Performing Agency shall be responsible for payment of any such government obligations not paid by its Subcontractors during performance of this Contract.
Performing Agency may not subcontract any or all of the Work and/or obligations under the Contract without prior written approval of the System Agency. Subcontracts, if any, entered into by the Performing Agency shall be in writing and be subject to the requirements of the Contract. Should Performing Agency Subcontract any of the services required in the Contract, Performing Agency expressly understands and acknowledges that in entering into such Subcontract(s), System Agency is in no manner liable to any subcontractor(s) of Performing Agency. In no event shall this provision relieve Performing Agency of the responsibility for ensuring that the services performed under all Subcontracts are rendered in compliance with the Contract.
9.9 INDEPENDENT PERFORMING AGENCY
Performing Agency and Performing Agency’s employees, representatives, agents, Subcontractors, suppliers, and third-party service providers shall serve as independent Performing Agencies in providing the services under the Contract. Neither Performing Agency nor System Agency is an agent of the other and neither may make any commitments on the other party’s behalf. Performing Agency shall have no claim against System Agency for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. The Contract shall not create any joint venture, partnership, agency, or employment relationship between Performing Agency and System Agency.
9.10 GOVERNING LAW AND VENUE
This Contract shall be governed by and construed in accordance with the laws of the State of Texas, without regard to the conflicts of law provisions. The venue of any suit arising under the Contract is fixed in any court of competent jurisdiction of Xxxxxx County, Texas, unless the specific venue is otherwise identified in a statute which directly names or otherwise identifies its applicability to the System Agency.
If any provision of the Contract is held to be illegal, invalid or unenforceable by a court of law or equity, such construction will not affect the legality, validity or enforceability of any other provision or provisions of this Contract. It is the intent and agreement of the Parties this Contract shall be deemed amended by modifying such provision to the extent necessary to render it valid, legal and enforceable while preserving its intent or, if such modification is not possible, by substituting another provision that is valid, legal and enforceable and that achieves the same objective. All other provisions of this Contract will continue in full force and effect.
Expiration or termination of the Contract for any reason does not release Performing Agency from any liability or obligation set forth in the Contract that is expressly stated to survive any such expiration or termination, that by its nature would be intended to be applicable following any such expiration or termination, or that is necessary to fulfill the essential purpose of the Contract, including without limitation the provisions regarding warranty, indemnification, confidentiality, and rights and remedies upon termination.
9.13 FORCE MAJEURE
Neither Performing Agency nor System Agency shall be liable to the other for any delay in, or failure of performance of, any requirement included in the Contract caused by force majeure. The existence of such causes of delay or failure shall extend the period of performance until after the causes of delay or failure have been removed provided the non-performing party exercises all reasonable due diligence to perform. Force majeure is defined as acts of God, war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are beyond the reasonable control of either party and that by exercise of due foresight such party could not reasonably have been expected to avoid, and which, by the exercise of all reasonable due diligence, such party is unable to overcome.
9.14 DISPUTE RESOLUTION
A. The dispute resolution process provided for in Chapter 2260 of the Texas Government Code must be used to attempt to resolve any dispute arising under the Contract. If the Performing Agency’s claim for breach of contract cannot be resolved informally with the System Agency, the claim shall be submitted to the negotiation process provided in Chapter 2260. To initiate the process, the Performing Agency shall submit written notice, as required by Chapter 2260, to the individual identified in the Contract for receipt of notices. Any informal resolution efforts shall in no way modify the requirements or toll the timing of the formal written notice of a claim for breach of contract required under §2260.051 of the Texas Government Code. Compliance by the Performing Agency with Chapter 2260 is a condition precedent to the filing of a contested case proceeding under Chapter 2260.
B. The contested case process provided in Chapter 2260 is the Performing Agency’s sole and exclusive process for seeking a remedy for an alleged breach of contract by the System Agency if the Parties are unable to resolve their disputes as described above.
C. Notwithstanding any other provision of the Contract to the contrary, unless otherwise requested or approved in writing by the System Agency, the Performing Agency shall continue performance and shall not be excused from performance during the period of any breach of contract claim or while the dispute is pending. However, the Performing Agency may suspend performance during the pendency of such claim or dispute if the Performing Agency has complied with all provisions of Section 2251.051, Texas Government Code, and such suspension of performance is expressly applicable and authorized under that law.
9.15 NO IMPLIED WAIVER OF PROVISIONS
The failure of the System Agency to object to or to take affirmative action with respect to any conduct of the Performing Agency which is in violation or breach of the terms of the Contract shall not be construed as a waiver of the violation or breach, or of any future violation or breach.
9.16 MEDIA RELEASES
A. Performing Agency shall not use System Agency’s name, logo, or other likeness in any press release, marketing material, or other announcement without System Agency’s prior written approval. System Agency does not endorse any vendor, commodity, or service. Performing Agency is not authorized to make or participate in any media releases or public announcements pertaining to this Contract or the Services to which they relate without
System Agency’s prior written consent, and then only in accordance with explicit written instruction from System Agency.
B. Performing Agency may publish, at its sole expense, results of Performing Agency performance under the Contract with the System Agency’s prior review and approval, which the System Agency may exercise at its sole discretion. Any publication (written, visual, or sound) will acknowledge the support received from the System Agency and any Federal agency, as appropriate.
9.17 NO MARKETING ACTIVITIES
Performing Agency is prohibited from using the Work for any Performing Agency or third- party marketing, advertising, or promotional activities, without the prior written consent of System Agency. The foregoing prohibition includes, without limitation, the placement of banners, pop-up ads, or other advertisements promoting Performing Agency’s or a third party’s products, services, workshops, trainings, or other commercial offerings on any website portal or internet-based service or software application hosted or managed by Performing Agency as part of the Work.
9.18 PROHIBITION ON NON-COMPETE RESTRICTIONS
Performing Agency shall not require any employees or Subcontractors to agree to any conditions, such as non-compete clauses or other contractual arrangements that would limit or restrict such persons or entities from employment or contracting with the State of Texas.
9.19 SOVEREIGN IMMUNITY
Nothing in the Contract shall be construed as a waiver of the System Agency’s or the State’s sovereign immunity. This Contract shall not constitute or be construed as a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the System Agency or the State of Texas. The failure to enforce, or any delay in the enforcement of, any privileges, rights, defenses, remedies, or immunities available to the System Agency or the State of Texas under the Contract or under applicable law shall not constitute a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a basis for estoppel. System Agency does not waive any privileges, rights, defenses, or immunities available to System Agency by entering into the Contract or by its conduct prior to or subsequent to entering into the Contract.
9.20 ENTIRE CONTRACT AND MODIFICATION
This Contract constitutes the entire agreement of the Parties and is intended as a complete and exclusive statement of the promises, representations, negotiations, discussions, and other agreements that may have been made in connection with the subject matter hereof. Any additional or conflicting terms in any future document incorporated into the Contract will be harmonized with this Contract to the extent possible.
This Contract may be executed in any number of counterparts, each of which will be an original, and all such counterparts will together constitute but one and the same Contract.
9.22 CIVIL RIGHTS
A. Performing Agency shall comply with all applicable state and federal anti-discrimination laws, including:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d, et seq.);
ii. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794);
iii. Americans with Disabilities Act of 1990 (42 X.X.X. §00000, et seq.);
iv. Age Discrimination Act of 1975 (42 X.X.X. §0000, et seq.);
v. Title IX of the Education Amendments of 1972 (20 X.X.X. §0000, et seq.);
vi. Food and Nutrition Act of 2008 (7 X.X.X. §0000, et seq.); and
vii. The System Agency's administrative rules, as set forth in the Texas Administrative Code, to the extent applicable to this Agreement.
B. Performing Agency shall comply with all amendments to these laws, and all requirements imposed by the regulations issued pursuant to these laws. These laws provide in part that no persons in the United States may, on the grounds of race, color, national origin, sex, age, disability, political beliefs, or religion, be excluded from participation in or denied any service or other benefit provided by Federal or State funding, or otherwise be subjected to discrimination.
C. Performing Agency shall comply with Title VI of the Civil Rights Act of 1964, and its implementing regulations at 45 C.F.R. Part 80 or 7 C.F.R. Part 15, prohibiting a Performing Agency from adopting and implementing policies and procedures that exclude or have the effect of excluding or limiting the participation of clients in its programs, benefits, or activities on the basis of national origin. Civil rights laws require Performing Agency’s to provide alternative methods for ensuring access to services for applicants and recipients who cannot express themselves fluently in English. Performing Agency shall take reasonable steps to provide services and information, both orally and in writing and electronically, in appropriate languages other than English, to ensure that persons with limited English proficiency are effectively informed and can have meaningful access to programs, benefits, and activities.
Performing Agency shall post applicable civil rights posters in areas open to the public informing clients of their civil rights and including contact information for the HHS Civil Rights Office. The posters are available on the HHS website at: xxxx://xxxxx.xxxx.xxxxx.xxx/xxxxxx-xxxxxxx-xxxxxxxx/xxxxx-xxxxxx/xxxxxxxxxxxx
D. Performing Agency shall comply with Section 504 of the Rehabilitation Act of 1973 and its implementing regulations at 28 CFR Subpart G § 42.503, and Americans with Disabilities Act of 1990 and its implementing regulations at 28 CFR Subpart B §35.130 which includes requiring Performing Agency to make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the Performing Agency can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
E. Performing Agency shall comply with federal regulations regarding equal treatment for faith-based organizations under 45 C.F.R. Part 87 or 7 C.F.R. Part 16, as applicable. Performing Agency shall not discriminate against clients or prospective clients on the basis of religion or religious belief, and shall provide written notice to beneficiaries of their rights.
F. Upon request, Performing Agency shall provide the HHSC Civil Rights Office with copies of the Performing Agency's civil rights policies and procedures.
G. Performing Agency must notify HHSC’s Civil Rights Office of any civil rights complaints received relating to its performance under this Contract. This notice must be delivered no
more than ten (10) calendar days after receipt of a complaint. This notice must be directed to:
HHSC Civil Rights Office
000 X. 00xx Xxxxxx, Mail Code X000 Xxxxxx, Xxxxx 00000
Phone Toll Free: (000) 000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000.
9.23 ENTERPRISE INFORMATION MANAGEMENT STANDARDS
Performing Agency shall conform to HHS standards for data management as described by the policies of the HHS Chief Data and Analytics Officer. These include, but are not limited to, standards for documentation and communication of data models, metadata, and other data definition methods that are required by HHS for ongoing data governance, strategic portfolio analysis, interoperability planning, and valuation of HHS System data assets.
9.24 DISCLOSURE OF LITIGATION
A. The Performing Agency must disclose in writing to the contract manager assigned to this Contract any material civil or criminal litigation or indictment either threatened or pending involving the Performing Agency. “Threatened litigation” as used herein shall include governmental investigations and civil investigative demands. “Litigation” as used herein shall include administrative enforcement actions brought by governmental agencies. The Performing Agency must also disclose any material litigation threatened or pending involving Subcontractors, consultants, and/or lobbyists. For purposes of this section, “material” refers, but is not limited, to any action or pending action that a reasonable person knowledgeable in the applicable industry would consider relevant to the Work under the Contract or any development such a person would want to be aware of in order to stay fully apprised of the total mix of information relevant to the Work, together with any litigation threatened or pending that may result in a substantial change in the Performing Agency’s financial condition.
B. This is a continuing disclosure requirement; any litigation commencing after Contract Award must be disclosed in a written statement to the assigned contract manager within seven calendar days of its occurrence.
9.25 NO THIRD-PARTY BENEFICIARIES
The Contract is made solely and specifically among and for the benefit of the Parties named herein and their respective successors and assigns, and no other person shall have any right, interest, or claims hereunder or be entitled to any benefits pursuant to or on account of the Contract as a third-party beneficiary or otherwise.
9.26 BINDING EFFECT
The Contract shall inure to the benefit of, be binding upon, and be enforceable against, each Party and their respective permitted successors, assigns, transferees, and delegates.
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ASSURANCES - NON-CONSTRUCTION PROGRAMS
OMB Number: 4040-0007
Expiration Date: 02/28/2022
Public reporting burden for this collection of information is estimated to average 15 minutes per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Management and Budget, Paperwork Reduction Project (0348-0040), Xxxxxxxxxx, XX 00000.
PLEASE DO NOT RETURN YOUR COMPLETED FORM TO THE OFFICE OF MANAGEMENT AND BUDGET. SEND IT TO THE ADDRESS PROVIDED BY THE SPONSORING AGENCY.
NOTE: Certain of these assurances may not be applicable to your project or program. If you have questions, please contact the awarding agency. Further, certain Federal awarding agencies may require applicants to certify to additional assurances. If such is the case, you will be notified.
As the duly authorized representative of the applicant, I certify that the applicant:
1. Has the legal authority to apply for Federal assistance and the institutional, managerial and financial capability (including funds sufficient to pay the non-Federal share of project cost) to ensure proper planning, management and completion of the project described in this application.
2. Will give the awarding agency, the Comptroller General of the United States and, if appropriate, the State, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to the award; and will establish a proper accounting system in accordance with generally accepted accounting standards or agency directives.
3. Will establish safeguards to prohibit employees from using their positions for a purpose that constitutes or presents the appearance of personal or organizational conflict of interest, or personal gain.
4. Will initiate and complete the work within the applicable time frame after receipt of approval of the awarding agency.
5. Will comply with the Intergovernmental Personnel Act of 1970 (42 U.S.C. §§4728-4763) relating to prescribed standards for merit systems for programs funded under one of the 19 statutes or regulations specified in Appendix A of OPM's Standards for a Merit System of Personnel Administration (5 C.F.R. 900, Subpart F).
6. Will comply with all Federal statutes relating to nondiscrimination. These include but are not limited to:
(a) Title VI of the Civil Rights Act of 1964 (P.L. 88-352) which prohibits discrimination on the basis of race, color or national origin; (b) Title IX of the Education Amendments of 1972, as amended (20 U.S.C.§§1681- 1683, and 1685-1686), which prohibits discrimination on the basis of sex; (c) Section 504 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. §794), which prohibits discrimination on the basis of handicaps; (d) the Age Discrimination Act of 1975, as amended (42 U.
S.C. §§6101-6107), which prohibits discrimination on the basis of age; (e) the Drug Abuse Office and Treatment Act of 1972 (P.L. 92-255), as amended, relating to nondiscrimination on the basis of drug abuse; (f) the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91-616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (g) §§523 and 527 of the Public Health Service Act of 1912 (42 U.S.C. §§290 dd-3 and 290
ee- 3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (h) Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§3601 et seq.), as amended, relating to nondiscrimination in the sale, rental or financing of housing; (i) any other nondiscrimination provisions in the specific statute(s) under which application for Federal assistance is being made; and, (j) the requirements of any other nondiscrimination statute(s) which may apply to the application.
7. Will comply, or has already complied, with the requirements of Titles II and III of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646) which provide for fair and equitable treatment of persons displaced or whose property is acquired as a result of Federal or federally-assisted programs. These requirements apply to all interests in real property acquired for project purposes regardless of Federal participation in purchases.
8. Will comply, as applicable, with provisions of the Hatch Act (5 U.S.C. §§1501-1508 and 7324-7328) which limit the political activities of employees whose principal employment activities are funded in whole or in part with Federal funds.
Previous Edition Usable Standard Form 424B (Rev. 7-97)
Authorized for Local Reproduction
Prescribed by OMB Circular A-102