HomeMy WebLinkAboutContract 34764-A CITY SECRETARY
CONTRACT NO.
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DEPARTMENT OF STATE HEALTH SERVICES
1100 WEST 49TH STREET
AUSTIN,TEXAS 78756-3199
STATE OF TEXAS DSHS Document No.7560005286A2006
COUNTY OF TRAVIS Contract Change Notice No. 01
The Department of State Health Services,hereinafter referred to as RECEIVING AGENCY,did heretofore enter into a contract in
writing with CITY OF FORT WORTH hereinafter referred to as PERFORMING AGENCY. The parties thereto now desire to amend
such contract attachment(s)as follows:
SUMMARY OF TRANSACTION:
ATT NO.01A: CPS-13IOTERR-CBEMPACK
All terms and conditions not hereby amended remain in full force and effect.
EXECUTED IN DUPLICATE ORIGINALS ON THE DATES SHOWN.
Authorized Contracting Entity(type above if different
from PERFORMING AGENCY)for and in behalf of:
PERFORMING AGENCY: RECEIVING AGENCY:
CITY OF FORT W H DEPARTMENT OF STATE HEALTH SERVICES
By:
By' (Signature of person authorized to sign)
(Signa s u
a per thorized to sign)
Bob Burnette,Director
Client Services Contracting Unit
(Name and Title) (Name and Title)
Date: Z— .'S O 6 Date: l a/I S 106
RECD NDED: At,.e3ted By-
By: '
(RECEIV AGENCY Director,if different
from person uthorized to sign contract Marty Hendr"
City Secretar,
LAj�)QCSRev.6/OS
APPROVED AS TO FORM AN LEGALITY: ,nnrr-acic a *hoz i z at i on
, 0f �"ATTORNEY �( �t_7
Cover Page 1
DETAILS OF ATTACHMENTS
Att/ DSHS Program ID/ Term Financial Assistance Direct Total Amount
Amd DSHS Purchase Assistance (DSHS Share)
No. Order Number Begin End Source of Amount
Funds*
01A CPSBIO-CHEM 01/01/06 08/31/07 93.283 5,000.00 0.00 5,000.00
0000313492
DSHS Document No.7560005286A2006 Totals $ 5,000 00 $ 0.00 $ 5,000.00
Chang_ 01
*Federal funds are indicated by a number from the Catalog of Federal Domestic Assistance(CFDA),if applicable. REFER TO
BUDGET SECTION OF ANY ZERO AMOUNT ATTACHMENT FOR DETAILS.
Cover Page 2
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Fiscal Year 2007 Performance Contract
General Provisions
(Core/Subrecipient)
ARTICLE I COMPLIANCE AND REPORTING
Section 1.01 Compliance with Statutes and Rules. Contractor shall comply, and shall
require its subcontractor(s) to comply, with the requirements set forth in the Department's
rules of general applicability and other applicable statutes and rules as such statutes and rules
currently exist and as they may be lawfully amended. The Department rules are set forth in
the Texas Administrative Code, Title 25 (Rules). Where applicable, federal statutes and
regulations, including federal grant requirements applicable to funding sources, shall apply to
this Contract. To the extent this Contract imposes a higher standard, or additional
requirements beyond those required by applicable statutes, regulations or the Rules, the terms
of the Contract shall control.
Section 1.02 Compliance with Requirements of Solicitation Document. Except as
specified in these General Provisions or the Program Attachment(s), Contractor shall comply
with the requirements; eligibility conditions, assurances, certifications and program
requirements of the Solicitation Document (including any revised or additional terms agreed
to in writing by Contractor and DSHS prior to execution of this Contract) for the duration of
this Contract or any subsequent renewals. The Parties agree that the Department has relied
upon the Contractor's response to the Solicitation Document. The Parties agree that any
misrepresentation contained in the Contractor's response to the Solicitation Document shall
constitute a breach of this Contract.
Section 1.03 Reporting. Contractor shall submit reports in accordance with the reporting
requirements established by the Department. Contractor shall provide any other information
required by the Department. Failure to submit a required report or additional requested
information by the due date specified in the Program Attachment(s) or upon request
constitutes a breach of contract, may result in delayed payment, and may adversely affect
evaluation of Contractor's future contracting opportunities with the Department. Contractor
shall submit reports and additional information requested by DSHS in the format required by
DSHS.
Section 1.04 Immunization Reporting. If Contractor provides immunizations,
Contractor shall comply with all immunization reporting guidelines and requirements set
forth in Health and Safety Code, Chapter 161, Subchapter A. Contractor shall include this
provision in any subcontract with subcontractors that provide immunizations.
Section 1.05 Client Eligibility. Where applicable, financial eligibility criteria, financial
assessment procedures, and standards developed by the Department shall be utilized by
Contractor to determine client eligibility.
Section 1.06 Federal and State Laws, Rules and Ordinances. Contractor shall comply
with all applicable federal and state statutes, rules and regulations, including but not limited
to Office of Management and Budget (OMB) Circulars and Uniform Grant Management
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Standards (UGMS), as applicable.
Section 1.07 Applicable Contracts Law and Venue for Disputes. Regarding all issues
related to contract formation, performance, interpretation, and any issues that may arise in any
dispute between the Parties, the Contract shall be governed by, and construed in accordance
with, the laws of the State of Texas. In the event of a dispute between the Parties, venue for
any suit shall be Travis County,Texas.
Section 1.08 Applicable Laws and Regulations Regarding Funding Sources. Where
applicable, federal statutes and regulations, including federal grant requirements applicable to
funding sources, shall apply to this Contract. Contractor agrees to comply with applicable
laws, executive orders, regulations and policies as well as the Uniform Grant Management
Act of 1981 (UGMA), TEX. Gov'T. CODE ch. 783, as amended, and UGMS as amended by
revised federal circulars and incorporated in UGMS by the Governor's Budget and Planning
Office. UGMA is located on the Internet at
http://www.capitol.state.tK.us/statutes/statutes.html; the UGMS are located on the Internet at
httR//www governor state tx us/divisions/stateglants/euid_elines/view. Contractor also shall
comply with all applicable federal and state assurances contained in UGMS, Part III, State
Uniform Administrative Requirements for Grants and Cooperative Agreement §_.14.
Section 1.09 Statutes and Standards of General Applicability. It is Contractor's
responsibility to review and comply with all applicable statutes, rules, regulations, executive
orders and policies. Contractor shall carry out the terms of this Contract in a manner that is in
compliance with the provisions set forth below. To the extent such provisions are applicable
to Contractor, Contractor agrees to comply with the following:
a) The following statutes and DSHS policy that collectively prohibit discrimination on
the basis of race, color, national origin, limited English proficiency, sex, sexual orientation
(where applicable), disabilities, age, substance abuse or religion: 1) Title VI of the Civil
Rights Act of 1964, 42 U.S.C.A. §§ 2000d et seq.; 2) Title IX of the Education Amendments
of 1972, 20 U.S.C.A. §§ 1681-1683, and 1685-1686; 3) Section 504 of the Rehabilitation Act
of 1973, 29 U.S.C.A. § 794(a); 4) the Americans with Disabilities Act of 1990, 42 U.S.C.A.
§§ 12101 et seq.; 5) Age Discrimination Act of 1975, 42 U.S.C.A. §§ 6101-6107: 6)
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act
of 1970, 42 U.S.C.A. § 290dd (b)(1); 7) 45 CFR Parts 80, 84, 86 and 91; 8) TEX. LAB. CODE.
ch. 21; and 9)DSHS Policy AA-5018,Non-discrimination Policy for DSHS Programs;
b) ' Drug Abuse Office and Treatment Act of 1972, 21 U.S.C.A. §§ 1101 et seq.,
relating to drug abuse;
C) Public Health Service Act of 1912, §§ 523 and 527, 42 U.S.C.A. § 290dd-2, and
42 C.F.R. pt. 2, relating to confidentiality of alcohol and drug abuse patient records;
d) Title VIII of the Civil Rights Act of 1968, 42 U.S.C.A. §§ 3601 et seq., relating
to nondiscrimination in housing;
e) Immigration Reform and Control Act of 1986, 8 U.S.C.A. § 1324a, regarding
employment verification;
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f) Pro-Children Act of 1994, 20 U.S.C.A. §§ 6081-6084, regarding the non-use of
all tobacco products;
g) National Research Service Award Act of 1971, 42 U.S.C.A. §§ 289a-1 et seq.,
and 6601 (P.L. 93-348 and P.L. 103-43), as amended, regarding human subjects involved
in research;
h) Hatch Political Activity Act, 5 U.S.C.A. §§ 7321-26, which limits the political activity
of employees whose employment is funded with federal funds;
i) Fair Labor Standards Act, 29 U.S.C.A. §§ 201 et seq., and the Intergovernmental
Personnel Act of 1970, 42 U.S.C.A. §§ 4701 et seq., as applicable, concerning minimum wage
and maximum hours;
j) TEx. GOv'T CODE ch. 469 (Supp. 2004), pertaining to eliminating architectural barriers
for persons with disabilities;
k) Texas Workers' Compensation Act, TEX. LABOR CODE, chs. 401-406 28 TEx. ADmix
CODE pt. 2,regarding compensation for employees' injuries;
1) The Clinical Laboratory Improvement Amendments of 1988, 42 USC § 263a,
regarding the regulation and certification of clinical laboratories;
m) The Occupational Safety and Health Administration Regulations on Blood Borne
Pathogens, 29 CFR § 1910.1030, or Title 25 Tex. Admin Code ch. 96 regarding safety
standards for handling blood borne pathogens;
n) Laboratory Animal Welfare Act of 1966, 7 USC §§ 2131 et seq., pertaining to the
treatment of laboratory animals;
o) 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 Order 11514 (35 Fed. Reg. 4247), "Protection and Enhancement of
Environmental Quality;" 2) 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;" 3)
Protection of wetlands pursuant to Executive Order 11990, 42 Fed. Reg. 26961; 4) 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); 5) Assurance of project consistency
with the approved State Management program developed under the Coastal Zone
Management Act of 1972, 16 USC §§ 1451 et seq; 6) Conformity of federal actions to state
clean air implementation plans under the Clean Air Act of 1955, as amended, 42 USC §§
7401 et seq.; 7) Protection of underground sources of drinking water under the Safe Drinking
Water Act of 1974, 42 USC §§ 300f--300j; 8) Protection of endangered species under the
Endangered Species Act of 1973, 16 USC §§ 1531 et seq.; 9) Conformity of federal actions to
state clean air implementation plans under the Clean Air Act of 1955, 42 USC §7401 et seq.;
10) Protection of underground sources of drinking water under the Safe Drinking Water Act
of 1974, 42 USC §§300f-330j; 11) Wild and Scenic Rivers Act of 1968 (16 U.S.C. §§ 1271 et
seq.) related to protecting certain rivers system; and 12) Lead-Based Paint Poisoning
Prevention Act (42 U.S.C. §§ 4801 et seq.) prohibiting the use of lead-based paint in
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residential construction or rehabilitation;
P) 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 C.F.R.
Part 900, Subpart F);
q) Titles H and III of the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (P.L. 91-646), relating to fair treatment of persons displaced or whose
property is acquired as a result of Federal or federally-assisted programs;
r) Davis-Bacon Act (40 U.S.C. §§ 276a to 276a-7), the Copeland Act (40 U.S.C. § 276c
and 18 U.S.C. § 874), and the Contract Work Hours and Safety Standards Act (40 U.S.C. §§
327-333), regarding labor standards for federally-assisted construction subagreements;
S) National Historic Preservation Act of 1966, §106 (16 U.S.C. § 470), Executive Order
11593, and the Archaeological and Historic Preservation Act of 1974 (16 U.S.C. §§ 469a-1 et
seq.) regarding historic property to the extent necessary to assist DSHS in complying with the
Acts;
t) Financial and compliance audits in accordance with Single Audit Act Amendments
of 1996 and OMB Circular No. A-133, "Audits of States, Local Governments, and Non-Profit
Organizations;" and
U) requirements of any other applicable statutes, executive orders, regulations and
policies.
If this Contract is funded by a grant, additional requirements found in the Notice of Grant
Award are imposed on Contractor and incorporated herein by reference.
Section 1.10 General Provisions Applicable to Interagency and Interlocal Contracts.
Certain sections or portions of sections of these General Provisions shall not apply to
Contractors that are State agencies or units of local government; and certain additional
provisions shall apply to such Contractors.
a) The following sections or portions of sections of these General Provisions shall not apply
to interagency or interlocal contracts:
1) Hold Harmless;
2) Independent Contractor (delete the third sentence in its entirety; delete the word
"employees"in the fourth sentence; the remainder of the section applies)
3) Insurance and Bonding; and
4) Liability Coverage.
b) The following additional provisions shall apply to interagency contracts:
1) This Contract is entered into pursuant to the authority granted and in compliance
with the provisions of the Interagency Cooperation Act, Gov. Code Chapter 771.
2) The parties hereby certify that (1) the services specified are necessary and essential
for the activities that are properly within the statutory functions and programs of the
effected agencies of State government; (2) the proposed arrangements serve the
interest of efficient and economical administration of the State government, and (3)
the services, supplies or materials contracted for are not required by Section 21 of
Article 16 of the Constitution of the State of Texas to be supplied under contract
given to the lowest responsible bidder.
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3) DSHS certifies that it has the authority to enter into this Contract granted in Health
and Safety Code Chapter 1001, and Contractor certifies that it has specific statutory
authority to enter into and perform this Contract.
(c) The following additional provisions shall apply to interlocal contracts:
1) This Contract is entered into pursuant to the authority granted and in compliance
with the provisions of the Interlocal Cooperation Act, Gov. Code Chapter 791.
2) Payments made by DSHS to Contractor shall be from current revenues available to
DSHS.
3) Each party represents that it has been authorized to enter into this Contract.
(d) Contractor agrees that Contract Revision Requests, when signed by a duly
authorized representative of Contractor, shall be effective as of the effective date specified by
the Department, whether that date is prior to or after the date of any ratification by
Contractor's governing board.
ARTICLE II SERVICES
Section 2.01 Education to Persons in Residential Facilities. If applicable, Contractor
shall ensure that all persons, who are housed in Department licensed and/or funded residential
facilities and who are twenty-two (22) years of age or younger, have access to educational
services as required by TEX. EDUC. CODE § 29.012. Contractor shall notify the local
education agency or local early intervention program as prescribed by TEX. EDUC. CODE §
29.012 not later than the third calendar day after the date a person who is twenty-two (22)
years of age or younger is placed in Contractor's residential facility.
Section 2.02 Disaster Services. In the event of a local, state, or federal emergency,
including natural, man-made, criminal, terrorist, and/or bioterrorism events, declared as a
state disaster by the Governor, or a federal disaster by the appropriate federal official,
Contractor may be called upon to assist DSHS in providing services, as appropriate, in the
following areas: community evacuation, health and medical assistance; assessment of health
and medical needs; health surveillance; medical care personnel; health and medical
equipment and supplies; patient evacuation; in-hospital care and hospital facility status; food,
drug, and medical device safety; worker health and safety; mental health and substance abuse;
public health information; vector control and veterinary services; and victim identification
and mortuary services. Disaster services shall be carried out in the manner most responsive
to the needs of the emergency, be cost effective, and be least intrusive on the primary services
of the Contractor.
Section 2.03 Consent to Medical Care. If Contractor provides medical, dental,
psychological or surgical treatment to a minor under this Contract, either directly or through
contracts with subcontractors, the treatment of a minor shall be provided only if consent to
treatment is obtained pursuant to TEX. FAM. CODE, Chapter 32 relating to consent to treatment
of a child by a non-parent or child or pursuant to other state law. If requirements of federal
law relating to consent directly conflict with TEX. FAM. CODE, Chapter 32, federal law shall
supersede state law.
Section 2.04 Telemedicine Medical Services. Contractor shall ensure that if a provider
uses telemedicine/telepsychiatry that the services are implemented in accordance with written
procedures and using protocol approved by the Contractor's medical director and utilizing
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equipment that complies with the equipment.standards as required by the Department.
Procedures of telemedicine service provision must include the following requirements:
a) clinical oversight by the Contractor's medical director or designated physician
responsible for medical leadership;
b) contraindication considerations for telemedicine use;
c) qualified staff members to ensure the safety of the individual being served by
telemedicine at the remote site;
d) safeguards to ensure confidentiality and privacy in accordance with state and federal
laws;
e) use by credentialed licensed providers providing clinical care within the scope of their
licenses;
f) demonstrated competency in the operations of the system by all staff members who are
involved in the operation of the system and provision of the services prior to initiating the
protocol;
g) priority in scheduling the system for clinical care of individuals;
h) quality oversight and monitoring of satisfaction of the individuals served; and
i) management of information and documentation for telemedicine services that ensures
timely access to accurate information between the two sites.
Section 2.05 Fees for Services. Contractor may develop a fee-for-service system and
schedule of fees for personal health services in accordance with the provisions of Health and
Safety Code §12.032, DSHS Rule §1.91 covering Fees for Personal Health Services, and
other applicable laws or grant requirements. The amount of a fee shall not exceed the actual
cost of providing the services. No patient may be denied a service due to inability to pay.
Section 2.06 Cost Effective Purchasing of Medications. Contractor shall make needed
medications available to clients at the lowest possible prices and use the most cost effective
medications purchasing arrangement possible.
ARTICLE III FUNDING
Section 3.01 Debt to State and Corporate Status.. Pursuant to TEX. GOVT. CODE §
403.055,the Department will not approve and the State Comptroller will not issue payment to
Contractor if Contractor is indebted to the State for any reason, including a tax delinquency.
Contractor, 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 (Texas Tax Code §§171.001 et seq, as amended).
Contractor, if a corporation, further certifies that it is and will remain in good standing with
the Secretary of State's office. A false statement regarding franchise tax or corporate status is
a material breach of this Contract. If franchise tax payments become delinquent during the
Contract term, all or part of the payments under this Contract may be withheld until
Contractor's delinquent franchise tax is paid in full.
Section 3.02 Application of Payment Due. Contractor agrees that any payments due
under this Contract will be applied towards any debt, including but not limited to delinquent
taxes and child support that is owed to the State of Texas.
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i
Section 3.03 Use of Funds. Contractor agrees that it shall expend Department funds only
for the provision of approved services and for reasonable and allowable expenses directly
related to those services.
Section 3.04 Use for Match Prohibited. Contractor agrees funds provided through this
Contract shall not be used for matching purposes in securing other funding unless directed or
approved by the Department in writing.
Section 3.05 Program Income. Gross income directly generated from Department funds
through a project or activity performed under a Program Attachment and/or earned only as a
result of a Program Attachment during the term of the Program Attachment are considered
program income. Unless otherwise required under the terms of the grant funding this
Contract, the addition alternative, as provided in UGMS § _.25(g)(2), for the use of program
income shall be used by Contractor to further the program objectives of the state or federal
statute under which the Program Attachment was made, and it shall be spent on the same
Program Attachment project in which it was generated. Contractor shall identify and report
this income in accordance with the Compliance and Reporting Article of these General
Provisions and the Special Provisions of the Program Attachment(s). Contractor shall expend
program income during the Program Attachment term and may not cant' forward to the
succeeding term. Program income not expended in the term in which it is earned shall be
refunded to DSHS. DSHS may base future funding levels, in part, upon Contractor's
proficiency in identifying, billing, collecting, and reporting program income, and in utilizing
it for the purposes and conditions set forth in this Contract.
Section 3.06 Nonsupplanting. Contractor shall not supplant [i.e., use funds from this
Contract to replace or substitute existing funding from other sources that also supports the
activities that are the subject of this Contract] but rather shall use funds from this Contract to
supplement existing funds. Contractor shall use the funds from this Contract to increase state
or local funds currently available for a particular activity. Contractor shall make a good faith
effort to maintain its current level of support. Contractor may be required to submit
documentation substantiating that a reduction in local funding, if any, resulted for reasons
other than receipt or expected receipt of funding under this Contract.
ARTICLE IV PAYMENT METHODS AND RESTRICTIONS.
Section 4.01 Payment Methods. Except as otherwise provided by the Special Provisions
of this Contract,the payment method for each program shall be one of the following methods:
(a) cost reimbursement. This payment method is based on an approved budget in the
Program Attachment(s) and successful submission of a request for reimbursement;
(b) unit rate. This payment method is based on the set unit rate stated in the Program
Attachment(s) and successful submission of all required forms; or
(c) fee-for-service. This payment method is based on the agreed fee stated in the
Program Attachment(s) and successful submission of all required forms.
Section 4.02 Billing Submission. Contractors shall bill the Department in accordance
with the Program Attachment(s) in the form and format prescribed by DSHS. Unless
otherwise specified in the Program Attachment(s), Contractor shall submit requests for
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reimbursement or payment monthly within thirty (30) calendar days following the end of the
month covered by the bill.
Section 4.03 Final Billing Submission. Unless otherwise provided by the Department,
Contractor shall submit a reimbursement or payment request as a final close-out bill not later
than sixty(60) calendar days following the end of the applicable term for goods received and
services rendered during the term. If necessary to meet this deadline, Contractor may submit
reimbursement or payment requests by facsimile transmission. Reimbursement or payment
requests received in DSHS's offices more than sixty (60) calendar days following the end of
the applicable term will be denied. Consideration of requests for an exception will be made
on a case-by-case basis subject to the availability of funding.
Section 4.04 Working Capital Advance. If allowed under the Contract, a single one-
time working capital advance per term of the Contract may be granted at the Department's
discretion. Contractor must submit documentation to the Division Contract Management Unit
assigned to the Contract to justify the need for a working capital advance. The working
capital advance must be liquidated as directed by the Department. The requirements for the
documentation justifying the need for an advance and the directions for liquidating the
advance are found in the Contractor's Financial Procedures Manual located at
h=://www.dshs.state.tx.us/grants/docs.shtm.
Section 4.05 Financial Status Reports (FSRs). Except as otherwise provided, for
contracts with categorical budgets, Contractor shall submit quarterly FSRs to Accounts
Payable by the thirtieth calendar day of the month following the end of each quarter of the
Contract term for Department review and financial assessment. The final FSR must be
submitted not later than 60 days following the end of the applicable term.
Section 4.06 Third Party Payors. A third party payor is any person or entity who has the
legal responsibility for paying for all or part of the services provided, including commercial
health or liability insurance carriers, Medicaid, or other federal, state, local, and private
funding sources. Except as provided in the Contract, Contractor shall screen all clients and
shall not bill the Department for services eligible for reimbursement from third party payors.
Contractor shall: (a) enroll as a provider in Children's Health Insurance Plan and Medicaid if
providing approved services authorized under the Contract that may be covered by those
programs, and bill those plans for the covered services; (b) provide assistance to individuals
to enroll in such programs when the screening process indicates possible eligibility for such
programs; (c) allow clients that are otherwise eligible for Department services,but cannot pay
a deductible required by a third party payor, to receive services up to the amount of the
deductible and to bill the Department for the deductible; (d) not bill the Department for any
services eligible for third party reimbursement until all appeals to third party payors have
been exhausted; (e) maintain appropriate documentation from the third party payor reflecting
attempts to obtain reimbursement; (f) bill all third party payors for services provided under
this Contract before submitting any request for reimbursement to Department; and(g)provide
third party billing functions at no cost to the client.
ARTICLE V TERMS AND CONDITIONS OF PAYMENT
Section 5.01 Prompt Payment. Upon receipt of a timely, undisputed invoice pursuant to
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this Contract, Department will pay Contractor. Payments are contingent upon a signed
Contract and will not exceed the total of authorized funds under this Contract. Contractor is
entitled to payment only if the service, work, and/or product has been authorized by the
Department and performed or provided pursuant to the Contract. If those conditions are met,
Department will make payment in accordance with the Texas prompt payment law (TEX.
GOVT. CODE, Chapter 2251). Contractor must comply with TEX. GOV'T. CODE, Chapter
2251 regarding its prompt payment obligations to subcontractors. Payment of invoices by the
Department shall not constitute acceptance or approval of Contractor's performance, and all
invoices and Contractor's performance shall be subject to audit or review by the Department.
Section 5.02 Withholding Payments. Department may withhold all or part of any
payments to Contractor to offset reimbursement for any ineligible expenditures or
overpayments that Contractor has not refunded to Department, or if financial status report(s)
required by the Department are not submitted by the date(s) due. Department may take
repayment from funds available under this Contract, active or expired, in amounts necessary
to fulfill Contractor's repayment obligations.
Section 5.03 Condition Precedent to Requesting Payment. Contractor shall disburse
program income, rebates, refunds, contract settlements, audit recoveries, and interest earned
on such funds before requesting cash payments including any advance payments from
Department.
Section 5.04 Acceptance as Payment in Full. Contractor shall accept reimbursement or
payment from DSHS as payment in full for services or goods provided to clients. Contractor
agrees to not seek additional reimbursement or payment for services or goods from clients.
ARTICLE VI ALLOWABLE COSTS AND AUDIT REQUIREMENTS
Section 6.01 Independent Audit. If Contractor within Contractor's fiscal year expends a
total amount of at least $500,000 in state.funds awarded or at least $500,000 in federal funds
awarded, Contractor must have a single audit or program-specific audit in accordance with
the Office of Management and Budget(OMB) Circ. No.A-133, the Single Audit Act of 1984,
Pub. L. 98-502, 98 Stat. 2327, and the Single Audit Act Amendments of 1996, Pub. L. 104-
156, 110 Stat. 1396. The $500,000 federal threshold amount includes federal funds passed
through by way of state agency awards. The audit shall be conducted by an independent
certified public accountant and in accordance with applicable OMB Circulars, Government
Auditing Standards, and Uniform Grant Management Standards (UGMS) located on the
Internet at http://www.goyemor.state.tx us/divisions/stategrants/gWdelines/view Contractor
shall procure audit services in compliance with state procurement procedures, as well as with
the provisions of UGMS. Contractor shall not use the same accountant or accounting firm to
conduct the independent audit for more than five consecutive years.
Section 6.02 Allowable Costs. For services satisfactorily performed pursuant to this
Contract, DSHS will reimburse Contractor for allowable costs. Reimbursements are
contingent on a signed contract and will not exceed the total amount of the Contract.
Contractor is entitled to payment only if the service, work, and/or product has been
authorized and satisfactorily performed. Contractor must have incurred a cost within the
applicable term to be eligible for reimbursement under this Contract and prior to claiming
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reimbursement. DSHS shall determine whether costs submitted by Contractor are allowable
and reimbursable. If DSHS has paid funds to Contractor for unallowable or ineligible costs,
Contractor shall return the funds to DSHS within thirty (30) calendar days of written notice.
DSHS may withhold all or part of any payments to Contractor to offset reimbursement for
any ineligible expenditures that Contractor has not refunded to DSHS, or if financial status
report(s) required under the Financial Status Reports Section are not submitted by the date(s)
due. DSHS may take repayment from funds available under any term of the Contract, active
or expired, in amounts necessary to fulfill Contractor's repayment obligations. Applicable
cost principles, audit requirements, and administrative requirements include:
Applicable Applicable Audit Requirements Administra-
Entity Cost Principles tive
Requirements
State, Local OMB Circular OMB Circular A-133 UGMS
and Tribal A-87 and UGMS
Governments
Educational OMB Circular OMB Circular A-133 OMB
Institutions A-21 and UGMS Circular
A-110
Non-Profit OMB Circular OMB Circular A-133 UGMS
Organizations A-122 and UGMS
For-profit 48 C.F.R. Part Program audit UGMS
Organization 31, Contract conducted by an
other than a Cost Principles independent certified
hospital and an Procedures, or public accountant in
organization uniform cost accordance with
named in accounting Governmental Auditing
OMB Circular standards that. Standards.
A-122 as not comply with
subject to that cost principles
circular. acceptable to
the federal or
state awarding
agency
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.
Section 6.03 Submission of Audit. Within thirty (30) calendar days of receipt of the
audit reports required by this section, Contractor shall submit one copy to the Department's
Contract Oversight and Support Section, and one copy to the Texas Health and Human
Services Commission (HHSC), Office of Inspector General (OIG), at the following addresses:
Department of State Health Services
Contract Oversight and Support, Mail Code 1910
1100 West 49`h St.
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Austin Texas 78756-3199
Texas Health and Human Services Commission
Office of Inspector General
Compliance/Audit Mail Code 1326
P.O. Box 85200
Austin, Texas 78708-5200
ARTICLE VII CONFIDENTIALITY.
Section 7.01 Confidential Information. Contractor is required to comply with state and
federal laws relating to the privacy and confidentiality of patient and client records that
contain protected health information (PHI), or other information or records made confidential
by law.
Section 7.02 Maintenance of Confidentiality. Contractor must maintain the
confidentiality of information received during the performance of this Contract, including
PHI, and any other information that discloses confidential personal information or identifies
any client served by DSHS, in accordance with applicable federal and state law and Rules,
including but not limited to 7 CFR Part 246; 42 CFR Part 2, 45 CFR Parts 160 and 164;
Health and Safety Code Chapters 12, 47, 81, 82, 85, 88, 92, 161, 181, 241, 245, 251, 534,
576, 577,596, 611, and 773; and Occupations Code, Chapters 56 and 159 and all applicable
Rules.
Section 7.03 Use of PHI. If Contractor is subject to HIPAA privacy regulations at 45
CFR Parts 160 and 164, Contractor may receive, use and disclose PHI, as defined in 45 CFR
§164.501, only to carry out Contractor's duties under this Contract in accordance with the
regulations. When using or disclosing PHI or when requesting PHI from another entity,
Contractor must make reasonable efforts to limit the PHI to the minimum necessary to
accomplish the intended purpose of the use, disclosure or request.
Section 7.04 Disclosure to Department. Contractor is required to disclose PHI of
patients or clients provided services funded through this Contract and other confidential
information to Department upon request, or as otherwise required in other contract provisions
or laws governing the release of client records or other confidential information.
Section 7.05 Department Access to PHI. Contractor shall cooperate with Department to
allow Department to request, collect and receive PHI under this Contract, without the consent
of the individual to whom the PHI relates, for funding, payment and administration of the
grant program. Contractor shall cooperate with Department to allow Department to request,
collect and receive PHI under this Contract, without the consent of the individual to whom
the PHI relates, under applicable state and federal confidentiality and privacy laws, including
the Health Insurance Portability and Accountability Act (HIPAA) and the Privacy Standards
adopted to implement HIPAA at 45 C.F.R. pts. 160 and 164, at § 164.512, and TEX. Occ.
CODE ch. 159, at §§ 159.003 and 159.004.
Section 7.06 Exchange of Client-Identifying Information. Except as prohibited by other
law, Contractor and DSHS shall exchange PHI without the consent of clients in accordance
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with 45 CFR § 164.504(e)(3)(i)(B), Health and Safety Code § 533.009 and Rule Chapter 414,
Subchapter A or other applicable law or rules. Contractor shall disclose information described
in Health and Safety Code § 614.017(a)(2) relating to special needs offenders, to an agency
described in Health and Safety Code §614.017(c) upon request of that agency, unless
Contractor documents that the information is not allowed to be disclosed under 45 CFR Part
164 or other applicable law.
Section 7.07 Security of Patient or Client Records. Contractor must maintain patient
and client records in compliance with state and federal law relating to security and retention
of medical or mental health and substance abuse patient records. Department may require
Contractor to transfer original or copies of patient and client records to Department, without
the consent or authorization of the patient or client, upon termination of this Contract, or if
the care and treatment of the individual patient or client is transferred to another entity. Prior
to providing services funded under this Contract to a patient or client, Contractor shall
attempt to obtain consent from the patient or client to transfer copies of patient or client
records to another entity funded by DSHS upon termination of this Contract or if care or
treatment is transferred to another DSHS-funded contractor.
Section 7.08 HIV/AIDS Model Workplace Guidelines. If providing direct client care,
services, or programs, Contractor shall implement Department's policies based on the
HIV/AIDS (human immunodeficiency virus/acquired immunodeficiency syndrome) Model
Workplace Guidelines for Businesses, State Agencies, and State Contractors, policy No.
090.021, and Contractor shall educate employees and clients concerning HIV and its related
conditions, including AIDS, in accordance with the TEX. HEALTH &. SAFETY CODE § 85.112-
114. A link to the Model Workplace Guidelines can be found on the Texas Department of
Health legacy website at htti)://www.tdh.state.tx.us/hivstd/Rolia/Solicy2. m#top.
ARTICLE VIII RECORDS RETENTION.
Section 8.01 Retention. Contractor shall retain records in accordance with the
Department's State of Texas Records Retention Schedule, located at
httv://www.dshs.state.tx.us/records/ Department Rules and other applicable state and federal
statutes and regulations governing medical, mental health, and substance abuse information.
At a minimum Contractor shall retain and preserve all other records, including financial
records, which are generated or collected by Contractor under the provisions of this Contract,
for a period of four (4) years after the termination of the Contract. If services are funded
through Medicaid, the federal retention period, if more than four (4) years, shall apply.
Contractor shall retain all records pertaining to this Contract that are the subject of litigation
or an audit until the litigation has ended or all questions pertaining to the audit are resolved.
Legal requirements for Contractor may extend beyond the retention schedules established in
this section. Contractor shall retain medical records in accordance with Tex Admin Code
Title 22, Part 9, §165.1(b) and (c) or other applicable statutes and regulations governing
medical information. Contractor shall ensure that this provision concerning records retention
is included in any subcontract it awards. If Contractor ceases business operations, it shall
ensure that records relating to the Contract are securely stored and are accessible by the
Department upon Department's request for at least four years from the date Contractor ceases
business or from the termination date of the Contract, whichever is sooner. Contractor shall
provide the name and address of the party responsible for storage of records to the Division
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Contract Management Unit assigned to the Contract.
Section 8.02 Survival of Obligations. The obligations of Contractor to retain records and
maintain confidentiality of information shall survive this Contract.
ARTICLE IX ACCESS AND INSPECTION.
Section 9.01 Access. In addition to any right of access arising by operation of law,
Contractor, and any of Contractor's affiliate or subsidiary organizations or subcontractors
shall permit the Department or any of its duly authorized representatives, as well as duly
authorized federal, state or local authorities, including the Office of the Inspector General at
HHSC (OIG), and the State Auditor's Office (SAO), unrestricted access to and the right to
examine any site where business is conducted and all records (including client and patient
records, if any), books, papers or documents related to the Contract. If deemed necessary by
the Department or the OIG, for the purpose of investigation or hearing, Contractor shall
produce original documents related to the Contract. Further, Contractor will ensure that
information collected, assembled or maintained by the Contractor relative to this Contract is
available to the Department for the Department to respond to requests that it receives under
the Public Information Act. The Department and HHSC will have the right to audit billings
both before and after payment. Payments will not foreclose the right of Department and
HHSC to recover excessive or illegal payments. Contractor will ensure that this provision
concerning the right of access to, and examination of, 'information related to the Contract is
included in any subcontract it awards.
Section 9.02 State Auditor's Office. Contractor shall, upon request, make all records,
books, papers, documents, or recordings related to this Contract available for inspection,
audit, or reproduction during normal business hours to any authorized representative of the
Department. The Contractor understands that the acceptance of funds under this Contract
acts as acceptance of the authority of the SAO, or any successor agency, to_conduct an audit
or investigation in connection with those funds. The Contractor further agrees to cooperate
fully with the SAO or its successor in the conduct of the audit or investigation, including
providing all records requested, and providing access to any information the SAO considers
relevant to the investigation or audit. Contractor will ensure that this provision concerning
the authority to audit funds will apply to funds received indirectly by subcontractors through
the Contractor, and the requirement to cooperate, is included in any subcontract it awards.
Section 9.03 Responding to Deficiencies. Any deficiencies identified by DSHS or HHSC
upon examination of Contractor's records will be conveyed in writing to Contractor.
Contractor will submit, by the date prescribed by DSHS, a resolution to the deficiency in a
program review or management or financial audit to the satisfaction of DSHS. A DSHS or
HHSC determination of either an inadequate or inappropriate resolution of the findings may
result in contract remedies or sanctions under the Breach of Contract and Remedies for Non-
Compliance Article of this Contract.
ARTICLE X NOTICE REQUIREMENTS.
Section 10.01 Child Abuse Reporting Requirement. This section applies to mental health
and substance abuse contractors and contractors for the following public health programs:
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HIV/STD; Family Planning (Titles X and XX); Primary Health Care; Maternal and Child
Health; and Nutrition Services.Contractor shall make a good faith effort to comply with child
abuse reporting guidelines and requirements in TEX. FAM. CODE ch. 261 relating to
investigations of reports of child abuse and neglect. Contractor shall develop, implement and
enforce a written policy that includes at a minimum the Department's Child Abuse Screening,
Documenting, and Reporting Policy for Contractors/providers and train all staff on reporting
requirements. Contractor shall use the Checklist for Monitoring as required by the
Department located at www.dshs.state.tx.us/childabuserel)orting. Contractor shall retain
reporting documentation on site and make it available for inspection by DSHS.
Section 10.02 Significant Incidents. In addition to notifying the appropriate authorities,
Contractor shall report to the Division Contract Management Unit assigned to the Contract
incidents involving substantial disruption of program operation or potentially affecting
Department funded clients or participants within seventy-two (72)hours of discovery.
Section 10.03 Litigation. Contractor shall notify the Division Contract Management Unit
assigned to the Contract of litigation to which Contractor is a party within seven (7) calendar
days of becoming aware of such a proceeding. This includes, but is not limited to an action,
suit or proceeding before any court or governmental body, including environmental and civil
rights matters, professional liability, and employee litigation. Notification shall include the
names of the parties, nature of the litigation and remedy sought, including amount of
damages, if any.
Section 10.04 Action Against the Contractor. Contractor shall notify the Division Contract
Management Unit assigned to the Contract if Contractor has had a contract suspended or
terminated by any local, state or federal department or agency or nonprofit entity. Such
notification shall include the reason for such action that includes the name and contact
information of the local, state or federal department or agency or entity, the date of the
contract, and the contract or case reference number. If the Contractor, as an organization, has
surrendered its license or has had its license suspended or revoked by any local, state or
federal department or agency or non-profit entity, it shall disclose this information to the
Department by submitting a one page description of the reason(s) for such action that
includes the name and contact information of the local, state or federal department or agency,
or entity, the date of the license action, and a license or case reference number.
Section 10.05 Insolvency. Contractor shall notify in writing the Division Contract
Management Unit assigned to the Contract of Contractor's insolvency, incapacity, or
outstanding unpaid obligations to the Internal Revenue Service (IRS) or Texas Workforce
Commission (TWC) within three (3) working days of the date of determination that
Contractor is insolvent, incapacitated, or the date Contractor discovered an unpaid obligation
to the IRS or TWC. Contractor shall notify in writing the Division Contract Management
Unit assigned to the Contract of its plan to seek bankruptcy protection within three (3)
working days of such action by the Contractor's board of directors.
Section 10.06 Misuse of Funds. Contractor shall report to the Division Contract
Management Unit assigned to the Contract and to the State Auditor's Office (SAO), any
knowledge of debarment, suspected fraud, program abuse, possible illegal expenditures,
unlawful activity, or violation of financial laws, rules, policies and procedures related to
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performance under this Contract. Contractor shall make such report no later than three (3)
working days from the date of discovery. Contractor shall make the report to the SAO at
(800)TX-AUDIT, or by Internet at http://www.sao.state.tx.us.
Section 10.07 Criminal Activity and Disciplinary Action. Contractor shall notify in
writing the Division Contract Management Unit assigned to the Contract if it has reason to
believe Contractor, or a person with ownership or controlling interest in the organization or
who is an agent or managing employee of the organization, an employee or volunteer of
Contractor, or a subcontractor has engaged in any activity that would constitute a criminal
offense equal to or greater than a Class A misdemeanor or if such activity would reasonably
constitute grounds for disciplinary action by a state or federal regulatory authority, or has
been placed on community supervision, received deferred adjudication, or been convicted of a
criminal offense relating to involvement in any financial matter, federal or state program or
felony sex crime. Contractor shall make the reports required by this section no later than
three(3) working days from the date of discovery.
Section 10.08 Retaliation Prohibited. Contractor shall not retaliate against any person who
reports a violation of, or cooperates with an investigation regarding, any applicable law, rule,
or standard to the SAO, the Department, another state agency, or any federal, state or local
law enforcement official.
Section 10.09 Documentation. Contractor shall maintain appropriate documentation of all
notices.
ARTICLE XI ASSURANCES AND CERTIFICATIONS.
Section 11.01 Certification. Contractor certifies by execution of this Contract to the
following:
a) it is not ineligible for participation in federal or state assistance programs;
b) neither it, nor its principals, are presently debarred, suspended, proposed for
debarment, declared ineligible, or voluntarily excluded from participation in this
transaction by any federal or state department or agency;
c) it has not knowingly failed to pay a single substantial debt or a number of
outstanding debts to a federal or state agency;
d) it is not subject to an outstanding judgment in a suit against Contractor for
collection of the balance of a debt;
e) it is in good standing with all state and/or federal agencies that have a
contracting or regulatory relationship with Contractor; and
f) that no person who has an ownership or controlling interest in Contractor or
who is an agent or managing employee of Contractor has been convicted of a
criminal offense related to involvement in any program established under
Medicare, Medicaid, or a federal block grant.
Where Contractor is unable to certify to any of the statements in this Article, Contractor shall
submit an explanation to the Division Contract Management Unit assigned to the Contract. If
Contractor's status with respect to the items certified above changes during the Contract,
Contractor shall immediately notify the Division Contract Management Unit assigned to the
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Contract.
Section 11.02 Contracting with Executive Head of State Agency. Contractor certifies that
it is in compliance with TEX. GOVT. CODE § 669.003, relating to contracting with the
executive head of a state agency. If Contractor currently or subsequently employs a current
or former executive head of DSHS, Texas Department of Health, Texas Department of
Mental Health and Mental Retardation or Texas Commission on Alcohol and Drug Abuse,
Contractor will submit the following information to the Division Contract Management Unit
assigned to the Contract:
(a) Name of Executive;
(b) Name of State Agency;
(c) Date of Separation from State Agency, if separated;
(d) Date of Employment with Contractor; and
(e) Other information as required by DSHS to verify Contractor's compliance with TEX.
Gov'T. CODE § 669.003.
Section 11.03 Child Support Delinquencies. As required by TEX.FAM.CODE § 231.006,
a child support obligor who is more than thirty (30) calendar days delinquent in paying child
support and a business entity in which the obligor is a sole proprietor, partner, shareholder, or
owner with an ownership interest of at least twenty-five percent (25%) is not eligible to
receive payments from state funds under a contract to provide property, materials, or services
or receive a state-funded grant or loan. If applicable, Contractor agrees to maintain its
eligibility to receive payments under this Contract, certifies that it is not ineligible to receive
the payments specified in this Contract, and acknowledges that this Contract may be
terminated and payment may be withheld if this certification is inaccurate.
Section 11.04 Authorization. Contractor certifies that it possesses legal authority to contract
for the services set forth in this Contract and that a resolution, motion or similar action has
been duly adopted or passed as an official act of the Contractor's governing body, authorizing
the binding of the organization under this Contract including all understandings and
assurances contained in this Contract, and directing and authorizing the person identified as
the authorized representative of the Contractor to act in connection with the Contract and to
provide such additional information as may be required.
Section 11.05 Gifts and Benefits Prohibited. Contractor certifies that it has not given,
offered to give, nor intends to give at any time hereafter, any economic opportunity, present
or future employment, gift, loan, gratuity, special discount, trip, favor, or service to a DSHS
or HHSC official or employee in connection with this Contract.
Section 11.06 Ineligibility to Receive the Contract. Pursuant to TEX. GOVT. CODE Section
§ 2155.004, Contractor is ineligible to receive this Contract if the Contract includes financial
participation by a person who received compensation from DSHS to participate in preparing
the specifications or Solicitation Document on which this Contract is based. Contractor
certifies that neither Contractor, nor its employees, nor anyone acting for the Contractor has
received compensation from DSHS for participation in the preparation of specifications for
this Contract or in the Solicitation Document on which this Contract is based. Contractor
further certifies that the individual or business entity named in this Contract is not ineligible
to receive the specified Contract. Contractor acknowledges that this Contract may be
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terminated and payment withheld if these certifications are inaccurate.
Section 11.07 Antitrust. Pursuant to 15 U.S.C.A. Sec. 1, et seq. and TEX. Bus. & Comm.
CODE Section § 15.01, et seq. Contractor certifies that neither Contractor, nor anyone acting
for the Contractor has violated the antitrust laws of this state or federal antitrust laws, nor
communicated directly or indirectly regarding the bid with any competitor or any other
person engaged in such line of business for the purpose of substantially lessening competition
in such line of business.
ARTICLE XII GENERAL BUSINESS OPERATIONS OF
CONTRACTOR
Section 12.01 Board Training. If they have not already done so within the preceding two
(2) years, a majority of the board of directors of Contractor shall review the Department's
board training in the format provided by the Department and shall verify in writing to the
Division Contract Management Unit assigned to the Contract that the review took place.
Written verification shall be submitted no later than the end of the first quarter of the Contract
and shall be in the form required by the Department. This review shall be completed at least
every two (2) years of consecutive funding from the Department, except that each member of
the governing board of a Contractor that provides mental health services shall complete the
board training review initially and then annually.
Section 12.02 Duty of Compliance. Contractor and its governing board, shall bear full
responsibility for the integrity of the fiscal and programmatic management of the
organization. This provision applies to all organizations, including Section 501(c)(3)
organizations as defined in the Internal Revenue Service Code as not for-profit organizations.
The responsibility of Contractor's governing board shall include: accountability for all funds
and materials received from Department; compliance with Department Rules, policies,
procedures, and applicable federal and state laws and regulations; and correction of fiscal and
program deficiencies identified through self-evaluation and Department's monitoring
processes. Further, Contractor's governing board shall ensure separation of powers, duties,
and functions of board members and staff. Staff members, including the executive director,
shall not serve as voting members of the Contractor's governing board. Ignorance of any
Contract provisions or other requirements contained or referenced in this Contract shall not
constitute a defense or basis for waiving or appealing such provisions or requirements.
Section 12.03 Management and Control Systems. Contractor shall maintain an appropriate
contract administration system to insure that all terms, conditions, and specifications are met.
Contractor shall develop, implement, and maintain financial management and control systems
that meet or exceed the requirements of UGMS and adhere to procedures detailed in
Department's Contractor's Financial Procedures Manual available at the Department's web
site: httn://www.dshs.state.tx.us/grants/docs.shti-n. Those requirements shall include at a
minimum:
a) financial planning, including the development of budgets that adequately
reflect all functions and resources necessary to carry out authorized activities and
the adequate determination of costs;
b) financial management systems including accurate, correct, and complete
accounting records that identify the source and application of funds provided
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under each Program Attachment of this Contract, and that support the information
contained in required financial reports; and cost source documentation; and
(c) effective internal and budgetary controls; determination of reasonableness,
allowableness, and allocability of costs; timely and appropriate audits and
resolution of any findings; billing and collection policies; and a mechanism
capable of billing and making reasonable efforts to collect from clients and third
parties.
Section 12.04 Insurance and Bonding. Contractor shall maintain insurance or other means
of replacing assets purchased with Department funds.
Section 12.05 Fidelity Bond. Contractor is required to carry a fidelity bond or insurance
coverage equal to the amount of funding provided under this Contract up to $100,000 that
covers each employee of Contractor handling funds under this Contract, including person(s)
authorizing payment of such funds. The fidelity bond or insurance shall provide for
indemnification of losses occasioned by: (1) any fraudulent or dishonest act or acts committed
by any of Contractor's employees, either individually or in concert with others, and/or (2)
failure of Contractor or any of its employees to perform faithfully his/her duties or to account
properly for all monies and property received by virtue of his/her position or employment.
Section 12.06 Liability Coverage. Contractor shall also maintain liability insurance
coverage, referred to in TEx. GOVT. CODE § 2261.102, as "director and officer liability
coverage,"where Contractor is a legal entity that is required to have directors and/or officers.
This provision applies to entities that are organized as non-profit corporations under the
Texas Non-Profit Corporation Act; for-profit corporations organized under the Texas
Business Corporations Act; and any other legal entity that is required under Texas law to have
directors and/or officers. Contractor shall maintain liability insurance coverage in an amount
not less than the total value of this Contract and that is sufficient to protect the interests of
Department in the event an actionable act or omission by a director or officer of Contractor
damages Department's interests.
Section 12.07 Overtime Compensation. Except as provided in this section, Contractor shall
not use any of the funds provided by this Contract to pay the premium portion of overtime.
Contractor shall be responsible for any obligations of premium overtime pay due employees.
Premium overtime pay is defined as any compensation paid to an individual in addition to the
employee's normal rate of pay for hours worked in excess of normal working hours. Funds
provided under this Contract may be used to pay the premium portion of overtime only under
the following conditions: 1) with the prior approval of DSHS; 2) temporarily, in the case of
an emergency or an occasional operational bottleneck; 3) when employees are performing
indirect functions, such as administration, maintenance, or accounting; 4) in performance of
tests, laboratory procedures, or similar operations that are continuous in nature and cannot
reasonably be interrupted or otherwise completed; or 5) when lower overall cost to DSHS
will result.
Section 12.08 Program Site. All Contractors shall ensure that the location where services
are provided is in compliance with all applicable local, state and federal zoning, building,
health, fire, and safety standards.
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Section 12.09 Cost Allocation Plan. Contractor shall submit a cost allocation plan to the
Department's Contract Oversight and Support Section at Mail Code 1910, 1100 W. 49'. St.
Austin, Texas 78756, except under the following circumstances: (1) Contractor has
previously submitted to DSHS a current indirect cost rate that has been approved by a federal
cognizant agency or a state single audit coordinating agency; or (2) Contractor has a current
Cost Allocation Plan on file with the Department. Contractor shall implement and follow the
applicable cost allocation plan. If Contractor's plan is the same as in the previous year, by
signing this Contract, Contractor certifies that its current cost allocation plan for the current
year is the same as that submitted to DSHS for the previous year. In the event that the cost.
allocation plan has changed, Contractor must submit a new cost allocation plan to the
Contract Oversight and Support Section no later than the 60`h calendar day after the effective
date of the Contract, in the form required by the Department. Contractor shall notify the
Contract Oversight and Support Section in writing if its cost allocation plan changes during
the course of the Contract term. Cost allocation plans must comply with the guidelines
provided in the Department's Contractor's Financial Procedures Manual located at
http://www.dshs.state.tx.us/contracts.
Section 12.10 Reporting for Unit Rate and Fee For Service Contracts. Contractor shall
submit reports concerning unit rate and fee-for-service contracts to the Department in
accordance with the requirements stated in the Department's Contractor's Financial
Procedures Manual located at httQ//www.dshs.state.tx.us/contracts.
Section 12.11 Historically Underutilized Businesses (HUBS). If Contractor was not
required to submit a HUB subcontracting plan, Contractor is encouraged to make a good faith
effort to consider subcontracting with HUBs as set forth in TEX. Gov'T CODE ch. 2161 and 1
TEX ADM. CODE § 111.12. Contractors may obtain a list of HUBs at
http://www.tbpc.state.tx.us-. If Contractor has filed a HUB subcontracting plan, the plan is
incorporated by reference in this Contract. If Contractor desires to make a change in the plan,
Contractor must obtain prior approval from the Department's HUB Coordinator of the revised
plan before proposed changes will be effective under the Contract. Contractor agrees to make
a good faith effort to subcontract with HUBS during the performance of its contract with
Department and will report HUB subcontract activity to the Department's HUB Coordinator
in accordance with 1 TEX. ADM CODE §111.16(c).
Section 12.12 Buy Texas. Contractor shall purchase products and materials produced in
Texas when the products and materials are available at a price and time comparable to
products and materials produced outside of Texas as required by TEX. Gov'T CODE §
2155.4441.
Section 12.13 Contracts with Subrecipient Subcontractors. Contractor may enter into
contracts with subrecipient subcontractors unless restricted or otherwise prohibited in a
specific Program Attachment(s). Prior to entering into an agreement equaling $25,000 or
twenty-five percent (25%) of a Program Attachment amount, whichever is greater, Contractor
shall obtain written approval from DSHS. Contracts with subcontractors shall be in writing
and include the following:
a) Name and address of all parties;
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b) A detailed description of the services to be provided;
c) Measurable method and rate of payment and total amount of contract;
d) Clearly defined and executable termination clause;
e) Beginning and ending dates that coincide with the dates of the applicable Program
Attachment(s) or cover a term within the beginning and ending dates of the applicable
Program Attachment(s);
f) Access to inspect the work and the premises on which any work is performed, in
accordance with the Access and Inspection Article in this Contract; and
g) A copy of these General Provisions and a copy of the Statement of Work and any
Special Provisions in the Program Attachment(s) applicable to the subcontract.
Contractor is responsible to DSHS for the performance of any subcontractor. Contractor shall
monitor both financial and programmatic performance and maintain pertinent records that
shall be available for inspection by DSHS. Contractor shall ensure that subcontractors are
fully aware of the requirements placed upon them by state/federal statutes and regulations and
under this Contract. Contractor shall not contract with a subcontractor, at any tier, that is
debarred or suspended or excluded from or ineligible for participation in federal assistance
programs.
Section 12.14 Status of Subcontractors. Contractor shall require that all subcontractors
certify that they are in good standing with all state and federal funding and regulatory
agencies; are not currently debarred, suspended, revoked, or otherwise excluded from
participation in federal grant programs; are not delinquent on any repayment agreements; and
have not had a contract terminated by the Department. Contractors shall further require that
subcontractors certify that they have not voluntarily surrendered within the past three (3)
years any license issued by the Department.
Section 12.15 Incorporation of Terms. Contractor shall ensure that all written agreements
with the subrecipient subcontractor incorporate the terms of this Contract, and provide that
the subcontractor is subject to audit by DSHS, HHSC and the SAO.
Section 12.16 Independent Contractor. Contractor is an independent Contractor.
Contractor shall direct and be responsible for the performance of its employees,
subcontractors,joint venture participants or agents. Contractor is not an agent or employee of
the Department or the State of Texas for any purpose whatsoever. For purposes of this
Contract, Contractor acknowledges that 'its employees, subcontractors, joint venture
participants or agents will not be eligible for unemployment compensation from the
Department or the State of Texas.
Section 12.17 Authority to Bind. The person or persons signing and executing this Contract
on behalf of Contractor, or representing themselves as signing and executing this Contract on
behalf of Contractor, warrant and guarantee that they have been duly authorized by
Contractor to execute this Contract for Contractor and to validly and legally bind Contractor
to all of its terms.
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Section 12.18 Tax Liability. Contractor shall comply with all state and federal tax laws and
is solely responsible for filing all required state and federal tax forms and making all tax
payments. In the event that the Department discovers that Contractor has failed to remain
current on a delinquent liability to the IRS, the Contract will be subject to immediate
termination at the Department's discretion. In the event of Contract termination under this
section, the Department will not enter into a Contract with Contractor for three (3) years from
the date of termination. In addition to other remedies, the Department has the right to place
the Contract on high risk status in response to Contractor's liability to the IRS for any
amount.
Section 12.19 Notice of Organizational Change. Contractor shall submit written notice
to the Division Contract Management Unit assigned to the Contract within ten business days
of any change to the following: Contractor's name; contact information; key personnel,
officer, director or partner; organizational structure; legal standing; or authority to do business
in Texas. A change in Contractor's name requires an amendment to the Contract in
accordance with the Amendments section of these General Provisions.
Section 12.20 Quality Management. Contractor shall comply with quality management
requirements as directed by the Department.
Section 12.21' Equipment Purchases. Equipment means an article of nonexpendable,
tangible personal property having a useful lifetime of more than one year and an acquisition
cost of $5,000 or more. Contractor must inventory controlled assets, which include, hand
guns and rifles, regardless of the acquisition cost, and the following assets with an acquisition
cost of $500 or more: fax machines, telecopiers, stereo systems, cameras, video
recorder/laserdisc players, televisions, video cassette recorders, camcorders, desktop and
laptop computers, non-portable printers, and cellular and portable phones. Contractors on a
cost reimbursement payment method shall comply with the requirements of the provisions in
this Article concerning equipment. If purchase of equipment is approved in writing by the
Department, Contractor is required to initiate the purchase of that equipment in the first
quarter of the Contract term. Failure to initiate the purchase of equipment may result in loss
of availability of funds for the purchase of equipment.
Section 12.22 Supplies. Supplies are defined as consumable items necessary to carry out the
services under this Contract including medical supplies, drugs, janitorial supplies, office
supplies, patient educational supplies, software, and any items of tangible personal property
other than those defined as equipment above.
Section 12.23 Changes to Equipment List. All items of equipment purchased with funds
under this Contract shall be itemized in Contractor's application as finally negotiated with the
Department. Any changes to the equipment list contained in the negotiated application shall
be approved in writing by Department prior to purchase of equipment. Contractor shall
submit to the Division Contract Management Unit assigned to the Contract a written
description including complete product specifications and need justification prior to
purchasing any item of unapproved equipment. If approved, Department will acknowledge
its approval by means of a written amendment or by written acceptance of Contractor's
Contract Revision Request, as appropriate.
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Section 12.24 Property Inventory and Protection of Assets. Contractor shall maintain a
nonexpendable personal property (equipment) inventory and submit an annual cumulative
report to the Division Contract Management Unit assigned to the Contract no later than
October 15`h of each year. 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 assets provided under this Contract, it shall use the proceeds
to repair or replace said assets.
Section 12.25 Bankruptcy. In the event of bankruptcy, Contractor shall sever Department
property, equipment, and supplies in possession of Contractor from the bankruptcy, and title
shall revert to Department.
Section 12.26 Title to Property. At the conclusion of the contractual relationship between
the Department and the Contractor, for any reason, title to any remaining equipment and
supplies purchased from funds under this Contract reverts to Department. Title may be
transferred to any other party designated by Department. The Department may, at its option
and to the extent allowed by law, transfer the reversionary interest to such property to
Contractor.
Section 12.27 Property Acquisitions. Department funds may not be used to purchase
buildings or real property. Any costs related to the initial acquisition of the buildings or real
property is not allowable.
Section 12.28 Disposition of Property. Except when federal statutory requirements
supersede, Contractor shall follow the procedures in the American Hospital Association's
"Estimated Useful Lives of Depreciable Assets" in disposing, at any time during or after the
Contract term, of equipment or controlled assets purchased with the Department funds. If,
prior to the end of the useful life, any item of equipment is no longer needed to perform
services under this Contract, or becomes inoperable, Contractor shall request disposition
approval and instructions in writing from the Division Contract Management Unit assigned to
the Contract. After an item reaches the end of its useful life, Contractor must ensure that
disposition of any equipment is in accordance with Generally Accepted Accounting
Principles, and any applicable federal guidance.
Section 12.29 Closeout of Equipment. Contractor shall submit to the Division Contract
Management Unit assigned to the Contract an inventory of property purchased with
Department funds at closeout and request disposition instructions for such property. All
property purchased with Department funds shall be secured by the Contractor at the time of
closeout and shall be returned to the Department as required by the Department's disposition
instructions or at the request of the Department at the Contractor's expense.
Section 12.30 Assets as Collateral Prohibited. Contractors on a cost reimbursement
payment method shall not encumber property purchased with Department funds without prior
written approval from the Department.
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ARTICLE XIII GENERAL TERMS.
Section 13.01 Assignment. Contractor will not transfer, assign, or sell its interest, in whole
or in part, in this Contract, or in any equipment purchased with funds from this Contract,
without the prior written consent of the Department.
Section 13.02 Lobbying. Contractor shall not use funds granted under this Contract to pay
any person for influencing or attempting to influence an officer or employee of any agency,
federal or state, a member of Congress, an officer or employee of Congress, or an employee
of a member of Congress in connection with the awarding of any contract or the extension,
continuation, renewal, amendment, or modification of any contract (31 U.S.C.A. § 1352, as
amended, and UGMS). If at any time this Contract exceeds $100,000 of federal funds,
Contractor shall file with the Division Contract Management Unit assigned to the Contract a
declaration containing the name of any registrant under the Lobbying Disclosure Act of 1995
who has made lobbying contacts on behalf of Contractor in connection with the Contract, a
certification that none of the funds provided by Department have been or will be used for
payment to lobbyists, and disclosure of the names of any and all registered lobbyists with
whom Contractor has an agreement. Contractor shall require any person who requests or
receives a subcontract to file the same declaration, certification; and disclosure with the
Division Contract Management Unit assigned to the Contract. Contractor shall file the
declaration, certification, and disclosure at the time of application for the contract; upon
execution of a contract unless Contractor previously filed a declaration, certification, or
disclosure form in connection with the award; and at the end of each calendar quarter in
which there occurs any event that materially affects the accuracy of the information contained
in any declaration, certification, or disclosure previously filed.
Section 13.03 Conflict of Interest. Contractor represents to the Department that it does not
have nor shall it knowingly acquire any interest that would conflict in any manner with the
performance of its obligations under this Contract. Potential conflicts of interest include, but
are not limited to, an existing or potential business or personal relationship between
Contractor, its principal, or any affiliate or subcontractor with Department or HHSC, their
commissioners, officers or employees, or any other entity or person involved in any way in
any project that is the subject of this Contract. Contractor shall 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.
Section 13.04 Transactions Between Related Parties. Contractor shall identify and report
to DSHS any transactions between Contractor and a related party that is part of the work that
the Department is purchasing under this Contract before entering into the transaction or
immediately upon discovery. Contractor shall submit to the Division Contract Management
Unit assigned to the Contract the name, address and telephone number of the related party,
how the party is related to the Contractor and the work the related party will perform under
the Contract. A related party is a person or entity related to the Contractor by blood or
marriage, common ownership or any association that permits either to significantly influence
or direct the actions or policies of the other. The Contractor, for purposes of reporting
transactions between related parties, includes the entity contracting with the Department
under this Contract as well as the chief executive officer, chief financial officer and program
director of the Contractor. Contractor shall comply with TEX. Gov'T CODE ch. 573.
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Contractor shall maintain records and supply any additional information requested by the
Department, regarding a transaction between related parties, needed to enable the Department
to determine the appropriateness of the transaction pursuant to applicable state or federal law,
regulations or circulars, which may include 45 C.F.R. part 74, OMB Circ. No. A-110 (Rev.
11/19/93, as further amended 09/30/99), 2 CFR §215.42, and UGMS.
Section 13.05 Intellectual Property. Texas Health and Safety Code §12.020 authorizes
DSHS to protect intellectual property developed as a result of this Contract.
(a) "Intellectual property" means created property that may be protected under copyright,
patent, or trademark/service mark law.
(b) For purposes of this Contract "work made for hire" is intellectual property prepared for
DSHS use, or a work specially ordered or commissioned through a contract for DSHS use.
DSHS owns works made for hire unless it agrees otherwise by contract.
(c) If federal funds are used to finance activities supported by this Contract that result in the
production of intellectual property, the federal awarding agency reserves a royalty-free,
nonexclusive, and irrevocable license to reproduce, publish, or otherwise use, and to
authorize others to use, for federal government purposes (1) the copyright in any intellectual
property developed under this Contract, including any subcontract and (2) any rights of
copyright to which a Contractor purchases ownership with contract funds. Contractor shall
place an acknowledgment of federal awarding agency grant support and a disclaimer, as
appropriate, on any publication written or published with such support and, if feasible, on any
publication reporting the results of or describing a grant-supported activity. An
acknowledgment shall be to the effect that "This publication was made possible by grant
number from (federal awarding agency)" or "The project described was supported by
grant number from (federal awarding a ency)" and "Its contents are solely the
responsibility of the authors and do not necessarily represent the official views of the(federal
awarding agency)."
(d) In the event the terms of a federal grant award the copyright to Contractor, DSHS reserves
a royalty-free, nonexclusive, worldwide and irrevocable license to reproduce, publish or
otherwise use, and to authorize others to use, for DSHS, public health, and state governmental
noncommercial purposes (1) the copyright, trademark, service mark, and/or patent on an
invention, discovery, or improvement to any process, machine, manufacture, or composition
of matter; products; technology; scientific information; trade secrets; and computer software,
in any work developed under a grant, subgrant, or contract under a grant or subgrant; and (2)
any rights of copyright, service or trade marks or patents to which a grantee, subgrantee or a
Contractor purchases ownership with contract funds.
(e) If the results of the contract performance are subject to copyright law, the Contractor
cannot publish those results without prior review and approval of DSHS. Contractor shall
submit requests for review and approval to the Division Contract Management Unit assigned
to the Contract.
Section 13.06 Other Intangible Property. At the conclusion of the contractual relationship
between Department and the Contractor, for any reason, Department shall have the sole
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ownership rights and interest in all non-copyrightable intangible property that was developed,
produced or obtained by Contractor as a specific requirement under the Contract or under any
grant that funds this Contract, such as domain names, URLs, etc. Contractor shall cooperate
with Department and perform all actions necessary to transfer ownership of such property to
the Department or its designee, or otherwise affirm Department's ownership rights and
interest in such property. This provision shall survive the termination or expiration of the
Contract.
Section 13.07 Severability and Ambiguity. If any provision of this Contract is construed to
be illegal or invalid, the illegal or invalid provision will be deemed stricken and deleted to the
same extent and effect as if never incorporated, but all other provisions will continue. Parties
represent and agree that the language contained in this Contract is to be construed as jointly
drafted,proposed and accepted.
Section 13.08 Legal Notice. Any notice required or permitted to be given by the provisions
of this Contract shall be deemed to have been received by a Party on the third business day
after the date on which it was mailed to the Party at the address first given above (or at such
other address as the Party shall specify to the other Party in writing) or, if sent by certified
mail, on the date of receipt.
Section 13.09 Successors. The Contract shall be binding upon the Parties and their
successors and assignees, except as expressly provided in this Contract.
Section 13.10 Headings. The articles and section headings used in the Contract are for
convenience of reference only and shall not be construed in any way to define, limit or
describe the scope or intent of any provisions.
Section 13.11 Parties. The Parties represent to each other that they are entities fully familiar
with transactions of the kind reflected by this document, and are capable of understanding the
terminology and meaning of its terms and conditions and of obtaining independent legal
advice pertaining to this Contract.
Section 13.12 Survivability of Terms. Termination or expiration of this Contract for any
reason shall not release either party from any liabilities or obligations set forth in this
Contract that (a) the parties have expressly agreed shall survive any such termination or
expiration, or (b) remain to be performed or (c) by their nature would be intended to be
applicable following any such termination or expiration.
Section 13.13 Direct Operation. The Department may temporarily assume operations of a
Contractor's program or programs funded under this Contract when the continued operation
of the program by Contractor puts at risk the health and safety of clients and/or participants
served by the Contractor, and there are no reasonable alternatives available.
Section 13.14 Customer Service Information. If requested, Contractor shall supply such
information as required by the Department to comply with the provisions of TEX. GOV'T
CODE ch. 2114 regarding Customer Service surveys.
Section 13.15 Amendment. Parties agree that the Department may reduce funds pursuant to
the terms of this Contract. Unless otherwise specified in these General Provisions, all other
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amendments to this Contract must be in writing and agreed to by both Parties. Contractor's
request for certain budget revisions or other amendments must be submitted in writing,
including a justification for the request, to the Division Contract Management Unit assigned
to the Contract; and if a budget revision or amendment is requested during the last quarter of
the Contract term, Contractor's written justification must include a reason for the delay in
making the request. Revision or amendment requests may be granted at the discretion of
DSHS.
Section 13.16 Contractor's Notification of Change to Certain Contract Provisions. The
following changes may be made to the Contract without the Department's prior approval:
1) Contractor's contact person and contact information.
2) Contact information for key personnel, as stated in the application.
3) Cumulative budget line item transfers that exceed 10% among direct cost categories
other than the equipment category, of cost reimbursement contracts of less than $100,000,
provided that the total budget amount is unchanged.
4) Minor corrections or clarifications to the Contract language that in no way alter the
Contract scope of work, objectives or performance measures.
5) A change in the Contractor's share of the budget via program income or match,
regardless of the amount of the change.
Contractor within ten days shall notify in writing the Division Contract Management.Unit
assigned to the Contract of any change enumerated in this section. The notification may be
by letter, fax or email.
Section 13.17 Contractor's Request for Revision of Certain Contract Provisions.
Contractor may request a revision of the following provisions of the Contract:
1) Cumulative budget line item transfers among direct cost categories that exceed 10%
of cost reimbursement contracts of$100,000 or more, provided that the total budget amount
is unchanged.
2) Line item transfer of funds for direct payment of training allowances for any cost
reimbursement contract.
3) Change in clinic hours or location.
4) Change in equipment list substituting an item of equipment equivalent to an item of
equipment on the approved budget.
5) Changes in the equipment category of a previously approved equipment budget
(other than acquisition of additional equipment, which requires an amendment to the
Contract).
6) Changes specified in applicable cost principles as requiring prior approval,
regardless of dollar threshold.
In order to request a revision of any of the enumerated provisions, Contractor shall obtain a
Contract Revision Request form from the DSHS website and complete the form as directed
by the Department. Two copies of the completed form must be signed by Contractor's
representative who is authorized to sign contracts on behalf of Contractor and submitted to
the Division Contract Management Unit assigned to the Contract. Any approved revision will
not be effective unless signed by the DSHS Director of Client Services Contracting Unit.
Circumstances of a requested contract revision may indicate the need for a Contract
amendment with written justification rather than a contract revision.
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Section 13.18 Immunity Not Waived. THE PARTIES EXPRESSLY AGREE THAT NO
PROVISION OF THIS CONTRACT IS IN ANY WAY INTENDED TO CONSTITUTE A
WAIVER BY DEPARTMENT OR THE STATE OF TEXAS OF ANY IMMUNITIES
FROM SUIT OR FROM LIABILITY THAT DEPARTMENT OR THE STATE OF TEXAS
MAY HAVE BY OPERATION OF LAW.
Section 13.19 Hold Harmless. Contractor, as an independent contractor, agrees to hold
Department, the State of Texas, individual state employees and officers, and the federal
government harmless and to indemnify them from any and all liability, suits, claims, losses,
damages and judgments, and to pay all costs, fees, and damages to the extent that such costs,
fees, and damages arise from performance or nonperformance of Contractor, its employees,
subcontractors,joint venture participants or agents under this Contract.
Section 13.20 Waiver. Acceptance by either party of partial performance or failure to
complain of any action, non-action or default under this Contract shall not constitute a waiver
of either party's rights under the Contract.
ARTICLE XIV BREACH OF CONTRACT AND REMEDIES FOR
NON-COMPLIANCE.
Section 14.01 Actions Constituting Breach of Contract. Actions or inactions that
constitute breach of contract include,but are not limited to, the following:
a) failure to properly provide the services and/or goods purchased under this
Contract;
b) failure to comply with any provision of this Contract:
c) failure to pay refunds or penalties owed to the Department;
d) failure to comply with a repayment agreement with the Department or agreed
order issued by the Department;
e) failure by Contractor to provide a full accounting of funds expended under this
Contract;
1) discovery of a material misrepresentation in any aspect of Contractor's
response to the.Solicitation Document; or
g) any misrepresentation in the assurances and certifications in the Contractor's
application or response to the Solicitation Document or in this Contract.
Section 14.02 General Remedies and Sanctions. The Department will monitor Contractor
for both programmatic and financial compliance. The remedies set forth below are available
to the Department against Contractor and any entity that subcontracts with Contractor for
provision of services or goods. HHSC OIG may investigate, audit and impose or recommend
imposition of sanctions to Department for any breach of this Contract and may monitor
Contractor for financial compliance. The Department may impose one or more sanctions for
each item of noncompliance and will determine sanctions on a case-by-case basis. Contractor
is responsible for complying with all of the terms of this Contract. The listing of or use of
one or more of the remedies listed below does not relieve Contractor of any obligations under
the Contract. A state or federal statute, rule or regulation, or federal guideline will prevail
over the provisions of this Article unless the statute, rule, regulation, or guideline can be read
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together with the provision(s) of this Article to give effect to both. If the Contractor breaches
this Contract by failing to comply with one or more of the terms of this Contract, including
but not limited to compliance with applicable statutes, rules or regulations, the Department
may take one or more of the actions listed below:
a) terminate the Contract or a Program Attachment of the Contract as it relates to
a specific program type. In the case of termination, the Department will inform
Contractor of the termination no less than thirty-one (3 1) calendar days before the
effective date of the termination in a notice of termination. The notice of
termination will state the effective date of the termination, the reasons for the
termination, and, if applicable, alert the Contractor of the opportunity to request a
hearing on the termination pursuant to TEx. GOVT CODE ch. 2105 regarding
administration of Block Grants. The Contractor agrees that it shall not make any
claim for payment or reimbursement for services provided from the effective date
of termination;
b) suspend all or part of this Contract. Suspension is, depending on the context,
either (1) the temporary withdrawal of Contractor's authority to obligate funds
pending corrective action by Contractor or its subcontractor(s) or pending a
decision to terminate or amend the Contract, or (2) an action taken by a
suspending official in accordance with Department rules to immediately exclude a
person from participating in contract transactions for a period of time, pending
completion of an investigation and such legal or debarment proceedings as may
ensue. Contractor costs resulting from obligations incurred by Contractor during a
suspension are not allowable unless expressly authorized by the notice of
suspension;
c) deny additional or future contracts or renewals with Contractor;
d) reduce funding if the Contractor fails to provide services or goods consistent
with performance expectations described in the Contract;
e) disallow (deny both use of funds and matching credit for) all or part of the
activities or action not in compliance;
f) temporarily withhold cash payments. Temporarily withholding cash payments
means the temporary withholding of a working capital advance, if applicable, or
reimbursements or payments to Contractor for proper charges or obligations
incurred, pending resolution of issues of noncompliance with conditions of this
Contract or indebtedness to the United States or to the State of Texas;
g) permanently withhold cash payments. Permanent withholding of cash
payment means that Department retains funds billed by Contractor for (1)
unallowable, undocumented, disputed, inaccurate, improper, or erroneous billings;
(2) material failure to comply with Contract provisions; or (3) indebtedness to the
United States or to the State of Texas;
h) declare the Contract void upon the Department's determination that the
Contract was obtained fraudulently or upon the Department's determination that
the Contract was illegal or invalid from the Contract's inception;
i) designate the Contractor as high risk;
j) request that Contractor be removed from the centralized Master Bidders List
(CMBL) or any other state bid list, and bar it from participating in future
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contracting opportunities with the State of Texas;
k) delay contract execution with Contractor while other imposed or proposed
sanctions are pending resolution;
1) place Contractor on probation. Probation means that Contractor will be placed
on accelerated monitoring for a period not to exceed six (6) months at which time
items of noncompliance must be resolved or substantial improvement shown by
Contractor. Accelerated monitoring means more frequent or more extensive
monitoring will be performed by Department than would routinely be
accomplished;
m) require Contractor to obtain technical or managerial assistance;
n) establish additional prior approvals for expenditure of funds by Contractor;
o) require additional, more detailed, financial and/or programmatic reports to be
submitted by Contractor;
p) demand repayment from Contractor;
q) reduce the funding amount for failure to achieve or maintain the proposed
level of service, to expend funds appropriately and at a rate which will make full
use of the award, or to provide services or to achieve local match,if required;
r) pursue a claim for damages as a result of breach of contract;
s) require removal of any officer or employee of the Contractor who has been
convicted of the misuse of state or federal funds, fraud or illegal acts that are in
contraindication to continued obligations under this Contract, as determined by
DSHS;
t) withhold any payments to Contractor to satisfy any recoupment or penalty
imposed by DSHS, and take repayment from funds available under this Contract,
active or expired, in amounts necessary to fulfill Contractor's repayment
obligations;
u) reduce the Contract term;
v) recoup improper payments when it is verified that the Contractor has been
overpaid because of improper billing or accounting practices or failure to comply
with Contract terms; or
w) impose other remedies provided by law.
Section 14.03 Notice of Sanctions. Department will formally notify Contractor in writing
when a sanction is imposed (with the exception of accelerated monitoring, which may be
unannounced), stating the nature of the sanction(s), the reasons for imposing them, the
corrective actions, if any, that must be taken before the actions will be removed and the time
allowed for completing the corrective actions, and the method, if any, of requesting
reconsideration of the sanctions imposed. Contractor is required to file, within fifteen (15)
calendar days of receipt of notice, a written response to Department acknowledging receipt of
such notice. If requested by the Department, the written response shall state how Contractor
shall correct the noncompliance or demonstrate in writing that the findings on which the
sanctions are based are either invalid or do not warrant the sanction(s). If Department
determines that a sanction is warranted, unless the sanction is subject to review under a
federal or state statute, regulation or guideline, Department's decision is final. Department
shall provide written notice to Contractor of Department's decision. If required by the
Department, Contractor shall take corrective action.
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Section 14.04 Emergency Action. In an emergency, Department may immediately
terminate or suspend all or part of this Contract, temporarily or permanently withhold cash
payments, deny contract renewal or future contract awards, or delay contract execution by
delivering written notice to Contractor, by any verifiable method, stating the reason for the
emergency action. An"emergency" is defined as the following:
a) Contractor is noncompliant and the noncompliance has a direct adverse impact
on the public or client health, welfare or safety. The direct adverse impact may be
programmatic or financial and may include failing to provide services, providing
inadequate services, providing unnecessary services, or utilizing resources so that
the public or clients do not receive the benefits contemplated by the scope of work
or performance measures; or
b) Contractor is expending funds inappropriately.
Whether Contractor's conduct or noncompliance is an emergency will be determined by
Department on a case-by-case basis and will be based upon the nature of the noncompliance
or conduct.
ARTICLE XV CLAIMS AGAINST THE DEPARTMENT.
Section 15.01 Breach of Contract Claim. The process for a breach of contract claim
against the Department provided for in Chapter 2260 of Texas Government Code and
implemented in the rules at 25 TAC §§1.431-1.447 shall be used by DSHS and Contractor to
attempt to resolve any claim for breach of contract made by DSHS.
Section 15.02 Notice. Contractor's claims for breach of this Contract that the parties
cannot resolve in the ordinary course of business shall be submitted to the negotiation process
provided in Chapter 2260, subchapter B, Texas Government Code. To initiate the process,
Contractor shall submit written notice, as required by subchapter B, to DSHS's Office of
General Counsel. The notice shall specifically state that the provisions of Chapter 2260,
subchapter B, are being invoked. A copy of the notice shall also be given to all other
representatives of DSHS and Contractor. Subchapter B is a condition precedent to the filing
of a contested case proceeding under Chapter 2260, subchapter C, Texas Government Code.
Section 15.03 Sole Remedy.The contested case process provided in Chapter 2260,
subchapter C, Texas Government Code, is Contractor's sole and exclusive process for
seeking a remedy for any and all alleged breaches of contract by DSHS if the parties are
unable to resolve their disputes under this Article.
Section 15.04 Condition Precedent to Suit. Compliance with the contested case
process provided in Chapter 2260, subchapter C, Texas Government Code, is a condition
precedent to seeking consent to sue from the Legislature under Chapter 107 of the Civil
Practices and Remedies Code. Neither the execution of this Contract by DSHS nor any other
conduct of any representative of DSHS relating to this Contract shall be considered a waiver
of sovereign immunity to suit.
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Section 15.05 Performance Not Suspended. Neither the occurrence of an event nor the
pendency of a claim constitutes grounds for the suspension of performance by Contractor, in
whole or in part.
ARTICLE XVI TERMINATION.
Section 16.01 Expiration of Contract or Program Attachment(s). Contractor's service
obligations set forth in each Program Attachment shall end upon the expiration date of that
Program Attachment unless extended or renewed by written amendment. Prior to completion
of the term of all Program Attachments, all or a part of this Contract may be terminated with
or without cause as set forth below.
Section 16.02 Effect of Termination. Termination is the permanent withdrawal of
Contractor's authority to obligate previously awarded funds before that authority would
otherwise expire or the voluntary relinquishment by Contractor of the authority to obligate
previously awarded funds. Contractor costs resulting from obligations incurred by Contractor
after termination of an award are not allowable unless expressly authorized by the notice of
termination. Upon termination of this Contract, Contractor shall cooperate with DSHS to the
fullest extent possible to ensure the orderly and safe transfer of responsibilities under the
Contract to DSHS or other entity designated by DSHS. Upon termination of all or part of this
Contract, Department and Contractor will be discharged from any further obligation created
under the applicable terms of this Contract except for the equitable settlement of the
respective accrued interests or obligations incurred prior to termination and for Contractor's
duty to cooperate with DSHS. Termination does not however, constitute a waiver of any
remedies for breach of this Contract In addition Contractor's obligations to retain records
and maintain confidentiality of information shall survive this Contract.
Section 16.03 Acts Not Constituting Termination. Termination does not include: (1)
withdrawal of funds awarded on the basis of the Contractor's underestimate of the
unobligated balance in a prior period; (2) withdrawal of the unobligated balance at the
expiration of the term of a Program Attachment; (3) refusal to extend a Program Attachment
or award additional funds to make a competing or noncompeting continuation, renewal,
extension, or supplemental award; or (4) voiding of a contract upon determination that the
award was obtained fraudulently, or was otherwise illegal or invalid from inception.
Section 16.04 Termination Without Cause.
a) Either Party may terminate this Contract with at least thirty(30) calendar days
prior written notice to the other Party, except that if Contractor seeks to terminate
a Contract that involves residential client services, Contractor must give the
Department at least ninety (90) calendar days prior written notice and must submit
a transition plan to ensure client services are not disrupted.
b) The Parties may terminate this Contract by mutual agreement.
c) Either Party may terminate this Contract with at least thirty (30) calendar days
prior written notice to the other Party in the event state and/or federal funding for
this Contract is terminated, limited, suspended, withdrawn, or discontinued.
d) Department may terminate this Contract immediately when, in the sole
determination of Department, termination is in the best interest of the State of
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Texas.
Section 16.05 Termination For Cause. Either Party may terminate for material breach of
this Contract with at least thirty (30) calendar days written notice to the other Party.
Department may terminate this Contract, in whole or in part, for breach of contract or for any
other conduct that jeopardizes the Contract objectives, by giving at least thirty (30) calendar
days written notice to Contractor. Such conduct may include one or more of the following:
(a) a court of competent jurisdiction finds that Contractor has failed to adhere to any
laws,ordinances, rules, regulations or orders of any public authority having jurisdiction;
(b) Contractor fails to communicate with Department or fails to allow its employees or
those of its subcontractor to communicate with Department as necessary to the performance
of this Contract;
(c) Contractor breaches a standard of confidentiality with respect to the services
provided under this Contract;
(d) Department determines that Contractor is without sufficient personnel or resources
to perform under this Contract or that Contractor is otherwise unable or unwilling to fulfill
any of its requirements under the Contract or exercise adequate control over expenditures or
assets;
(e) Department determines that Contractor, its agent or another representative offered or
gave a gratuity (e.g., entertainment or gift) to an official or employee of DSHS or HHSC for
the purpose of obtaining a contract or favorable treatment;
(f) Department determines that the Contract includes financial participation by a person
who received compensation from DSHS to participate in preparing the specifications or
Solicitation Document on which this Contract is based in violation of Gov. Code §2155.004;
(g) Contractor appears to be financially unstable. Indicators of financial instability may include
one or more of the following:
1. Contractor fails to make payments;
2. Contractor makes an assignment for the benefit of its creditors;
3. Contractor admits in writing its inability to pay its debts generally as they become
due;
4. if judgment for the payment of money in excess of$50,000 (which is not covered
by insurance) is rendered by any court or governmental body against Contractor, and
Contractor does not (a) discharge the judgment or (b) provide for its discharge in accordance
with its terms, or(c)procure a stay of execution within thirty(30) calendar days from the date
of entry of the judgment, and within the thirty (30)-day period or a longer period during
which execution of the judgment has been stayed, appeal from the judgment and cause the
execution to be stayed during such appeal while providing such reserves for the judgment as
may be required under generally accepted accounting principles;
EF29-12425 General Provisions (Core Subrecipient 2007) Page: GP32
5. writ or warrant of attachment or any similar process shall be issued by any court
against all or any material portion of the property of Contractor, and such writ or warrant of
attachment or any similar process is not released or bonded within thirty (30) calendar days
after its entry;
6. Contractor is adjudicated bankrupt or insolvent;
7. Contractor files a case under the Federal Bankruptcy Code or seeks relief under any
provision of any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution, receivership or liquidation law of any jurisdiction, whether now or hereafter in
effect,or consents to the filing of any case or petition against it under any such law;
8. any property or portion of the property of Contractor is sequestered by court order
and the order remains in effect for more than thirty (30) calendar days after Contractor
obtains knowledge thereof;
9. a petition is filed against Contractor under any state reorganization, arrangement,
insolvency, readjustment of debt, dissolution, receivership or liquidation law of any
jurisdiction, whether now or hereafter in effect, and such petition is not dismissed within
thirty(30) calendar days;
10. Contractor consents to the appointment of a receiver, trustee, or liquidator of
Contractor or of all or any part of its property; or
(h) Contractor's management system does not meet the UGMS management standards.
Section 16.06 Notice of Termination. Either Party may deliver written notice of intent to
terminate by any verifiable method. If either Party gives notice of its intent to terminate all or
a part of this Contract, Department and Contractor will attempt to resolve any issues related
to the anticipated termination in good faith during the notice period.
ARTICLE XVII VOID, SUSPENDED,AND TERMINATED
CONTRACTS.
Section 17.01 Void Contracts. Department may hold this Contract void upon determination
that the award was obtained fraudulently or was otherwise illegal or invalid from its
inception.
Section 17.02 Effect of Void, Suspended, or Involuntarily Terminated Contract. A
Contractor who has been a party to a contract with DSHS that has been found to be void,
suspended,or terminated for cause is not eligible for expansion of current contracts, if any, or
new contracts or renewals until the Department has determined that Contractor has
satisfactorily resolved the issues underlying the suspension or termination. Additionally, if
this Contract is found to be void, any amount paid is subject to refund.
Section 17.03 Appeals Rights. Pursuant to Gov. Code §2105.302, after receiving notice
from the Department of termination of a contract with DSHS funded by block grant funds,
Contractor may request an administrative hearing under Gov. Code Chapter 2001.
EF29-12425 General Provisions(Core Subrecipient 2007) Page: GP33
ARTICLE XVIII CLOSEOUT AND CONTRACT RECONCILIATION
Section 18.01 Cessation of Services At Closeout. Upon expiration of the Contract (and any
renewals of the Contract) on its own terms, Contractor shall cease services under the Contract
and shall cooperate with DSHS to the fullest extent possible to ensure the orderly and safe
transfer of responsibilities under the Contract to DSHS or other entity designated by DSHS.
Upon receiving notice of Contract termination or non-renewal of the Contract, the Contractor
agrees to immediately begin to transition recipients of services to alternative service
providers, as needed. Contractor also agrees to completely cease providing services under the
Contract by the date specified in the Contract termination or non-renewal notice. Contractor
shall not incur any additional expenses once the Contract is terminated or has expired. Upon
termination, expiration or non-renewal of this Contract, Contractor shall immediately initiate
closeout activities described in this Article.
Section 18.02 Administrative Offset. The Department shall have the right to
administratively offset amounts owed by Contractor against billings.
Section 18.03 Deadline for Closeout. Contractor shall submit all financial, performance,
and other closeout reports required under the Contract within sixty (60) calendar days after
the Contract end date. Unless otherwise provided under the Final Billing Submission section
of the Payment Methods and Restrictions Article, the Department is not liable for any claims
that are not received within sixty(60)calendar days after the Contract end date.
Section 18.04 Payment of Refunds. Any funds paid to the Contractor in excess of the
amount to which the Contractor is finally determined to be entitled under the terms of the
Contract constitute a debt to the Department and will result in a refund due. Contractor shall
pay any refund amount due within the time period established by the Department.
Section 18.05 Disallowances and Adjustments. The closeout of the Contract does not
affect the Department's right to disallow costs and recover funds on the basis of a later audit
or other review or the Contractor's obligation to return any funds due as a result of later
refunds, corrections, or other transactions.
Section 18.06 Contract Reconciliation. If Contractor is required to annually reconcile
multi-year contracts, Contractor, within 60 calendar days after the end of each year of the
contract, shall submit to the Division Contract Management Unit assigned to the Contract all
financial and reconciliation reports required by Department in forms as determined by
Department. Required reconciliation forms and reports may include the following: Cash
Match Participation Form, In-kind Match Participation Form, Program Income Report,
Equipment Inventory, Controlled Items Inventory, Contractor's Release Agreement, and
Reconciliation Refund Remittance Form. Any additional forms or reports required by
Department shall be posted on the DSHS website prior to the reconciliation period. Unless
otherwise directed by Department, all forms and reports must,be submitted in hard copies,
with original signatures if required, to DSHS by the due date.
EF29-12425 General Provisions(Core Subrecipient 2007) Page: GP34
DOCUMENT NO. 7560005286A-2006
ATTACHMENT NO. 01 A
PURCHASE ORDER NO. 0000313492
CONTRACTOR: CITY OF FORT WORTH
DSHS PROGRAM: COMMUNITY PREPAREDNESS SECTION
TERM: January 01, 2006 THRU: August 31, 2007
It is mutually agreed by and between the contracting parties to amend the conditions of
Document No. 7560005286A2006 -01 as written below. All other conditions not hereby
amended are to remain in full force and effect.
PERFORMING AGENCY is hereby replaced with CONTRACTOR.
RECEIVING AGENCY is hereby replaced with DSHS.
General Provisions are hereby replaced with the attached Fiscal Year 2007 Performance Contract
General Provisions for subrecipients effective September 1, 2006.
SECTION I. SCOPE OF WORK is revised to include the following:
CONTRACTOR,shall complete required DSHS training for use of CHEMPACK contents.
CONTRACTOR shall maintain all specifications as set forth in the CDC CHEMPACK
Guidelines. Written copies of these documents are available from DSHS upon request.
The following documents are incorporated by reference and made a part of this contract
Attachment:
• CDC's Public Health Emergency Preparedness Announcement AA154, 2005 and 2006.
CONTRACTOR shall complete the activities outlined in Exhibit A, Amendment 1 in
consultation with DSHS Program's Regional CHEMPACK coordinator. CONTRACTOR shall
deliver to DSHS in accordance to the activities and due dates as outlined in Exhibit A,
Amendment 1.
PERFORMANCE MEASURES are amended as follows:
The following performance measures will be used to assess, in part, CONTRACTOR'S
effectiveness in providing the services described in this contract Attachment, without waiving
the enforceability of any of the other terms of the contract:
CONTRACTOR shall complete the activities as referenced in the attached Exhibit A,
Amendment 1 and submit the deliverables to DSHS Program's Regional CHEMPACK
coordinator by or before the due date.
ATTACHMENT—Page 1
Failure to accomplish required deliverables shall result in nonpayment until CONTRACTOR has
remedied the situation according to the original terms of DSHS contract Attachment.
SECTION II. SPECIAL PROVISIONS are amended as follows:
General Provisions, Terms and Conditions of Payment Article are revised to include:
DSHS will reimburse CONTRACTOR upon submission of a State of Texas Purchase
Voucher and DSHS'S acceptance of the required deliverables as indicated in the attached
Exhibit A, Amendment 1.
SECTION III. BUDGET is amended as follows:
Upon approval of successful completion of the deliverables outlined in Exhibit A, Amendment 1,
DSHS will reimburse CONTRACTOR $5,000.00.
ATTACHMENT—Page 2
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Page 1 of 2
City of Fort Worth, Texas
Mayor and Council Communication
COUNCIL ACTION: Approved on 10/24/2006 - Ordinance No. 17245-10-2006
DATE: Tuesday, October 24, 2006
LOG NAME: 022006HSGP REFERENCE NO.: **G-15465
SUBJECT:
Authorize Acceptance of the FY 2006 Homeland Security Grant Program Award and Adopt
Appropriation Ordinance
RECOMMENDATION:
It is recommended that the City Council authorize the City Manager to:
1. Accept from the State of Texas - Governor's Division of Emergency Management the FY 2006
Homeland Security Grant Program (HSGP) Award consisting of two sub-program allocations:
A. Urban Area Securty Initiative (UASI): $2,252,065.67
B. Metropolitan Medical Response System: $232,330.00
Combined Total Award: $2,484,395.67
2. Adopt the attached appropriation ordinance increasing estimated receipts and appropriations in the
Grants Fund by $2,484,395.67 upon receipt of the funds.
DISCUSSION:
The Homeland Security Grant Program is awarded by the Department of Homeland Security (DHS),
through the State of Texas, to jurisdictions on the basis of risk and other demographic factors. The grants
are provided to assist in enhancing the jurisdiction's capability to prevent, respond to, and recover from acts
of terrorism and natural disasters. Over the past three years, the DHS has encouraged jurisdictions to
strengthen regional collaboration efforts and seek benefits available through cooperative action. Fort Worth
participates with other North Central Texas Council of Governments jurisdictions to develop and implement
methods and projects to increase regional and individual community readiness, in alignment with Federal
and State homeland security strategies.
The City's Office of Emergency Management will coordinate with multiple City departments in the
development and implementation of projects in the areas of threat and vulnerability assessment, risk
reduction, plan development, capability enhancement, public education and readiness, training, and
exercises in support of the overall preparedness efforts of our community and region.
This grant is 100 percent funded. There is no local match requirement.
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/5/2007
Page 2 of 2
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that upon acceptance and execution of the grant contract and approval of the
attached appropriation ordinance, funds will be available in the current operating budget, as appropriated, of
the Grants Fund.
TO Fund/Account/Centers FROM Fund/Account/Centers
GR76 451217 002442151000 $2,484,395.67
GR76 5 $2,484,395.67
(VARIOUS) 002442151000
Submitted for City Manager's Office lby• Joe Paniagua (6191)
Originating Department Head: Juan Ortiz (6173)
Additional Information Contact: Eric Carter(2877)
http://www.cfwnet.org/council_packet/Reports/mc_print.asp 2/5/2007