HomeMy WebLinkAboutResolution - 2002-R0313 - Contract Pertaining To Milk Sample Analyses - TX Dept. Of Health - 08_29_2002Resolution No. 2002-RO313
August 29, 2002
Item No. 43
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock is hereby authorized and directed to
execute for and on behalf of the City of Lubbock a Contract (TDH Document No.
7560005906A 2003, Attachment No. 01) pertaining to milk sample analyses and any
associated documents between the City of Lubbock and the Texas Department of Health,
a copy of which contract is attached hereto and which shall be spread upon the minutes of
this Council and as spread upon the minutes of this Council shall constitute and be a part
hereof as if fully copied herein in detail.
Passed by the City Council this 29th day o
ATTEST:
Rebecca Garza, City Secret
APPROVED AS TO CONTENT:
Tommy C m en, Health Director
APPROVED AS TO FORM:
IYAald G. Vandiver, First Assistant City
Attorney
DDres/TDH-Milk. con.. res
August 1, 2002
CONTRACT FOR PUBLIC HEALTH SERVICES
Resolution No. 2002—RO313
August 29, 2002
Item No. 43
TDH DOCUMENT NO. 7560005906A?.00';
Contract Issued by: TEXAS DEPARTMENT OF HEALTH TV -
(RECEIVING AGENCY) 1100 WEST 497" STREET
AUSTIN, TEXAS 78756-3199
Legal Authority to Contract: Chapters 12 and 121, Health and Safety Code.
Venue: The provisions of this Contract shall be interpreted in accordance with Texas law. Venue for any court disputes shall be in Travis County,
Texas.
PERFORMING AGENCY NAME: LUBBOCK CITY HEALTH DEPARTMENT
MAILING ADDRESS: PO BOX 2548 LUBBOCK TX 79457-0000
STREET ADDRESS: 1902 TEXAS AVENUE LUBBOCK TX 79457-0000
NAME OF AUTHORIZED
CONTRACTING ENTITY: CITY OF LU13BOCK HEALTH DEPARTMENT
(If different from PERFORMING AGENCY)
PAYEE DATA (If not the same as PERFORMING AGENCY or AUTHORIZED CONTRACTING ENTITY; must be on file with the Texas State
Comptroller's Office.):
NAME: CITY OF LUB13OCK
ADDRESS: PO BOX 2000 LU13BOCK TX 79408-2000
(City, State, Zip)
State of Texas Vendor Identification No. (14 digits) PAYEE AGENCY Fiscal
17560005906001 Year Ending Month: December
PAYEE BUSINESS INFORMATION FOR STATISTICAL REPORTING: Please check the categories that apply to your business.
Small Business - A corporation, sole proprietorship, or other legal entity formed for the purpose of making a profit which is
independently owned and operated and has fewer than 100 employees or has less than $1,000,000 in annual gross receipts.
Historically Underutilized Business (HUB) - A corporation, sole proprietorship, or joint venture formed for the purpose of making a
profit in which at least 51 % of all classes of the shares of stock or other equitable securities are owned by one or more persons who
have been historically underutilized (socially disadvantaged) because of their identification as members of certain groups: Black
American, Hispanic American, Asian Pacific American, Native American, and Women. The HUB must be certified by General
Services Commission or another entity.
For Profit Organization
SUMMARY OF CONTRACT DOCUMENTATION:
COVER PAGE 1 - Receiving and Performing Agency Data GENERAL PROVISIONS — 11/2001
COVER PAGE 2 - Details of Attachment(s) ATTACHMENT(S)
COVER PAGE 3 - Authorized Signatures EXHIBITS, IF APPLICABLE
Cover Page 1
DETAILS OF ATTACHMENTS
Att/
TDH
Term
Financial Assistance
-
Direct
Total Amount
Amd
Program
Assistance
(TDH Share)
No.
ID
Begin
End
Source of
Amount
Funds*
01
M&D
09/01/02
08/31/03
State
0.00
0.00
0.00
TDH Document No.7560005906A2003 Totals
$ 0.00
$ 0.00
$ 0.00
*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
EXECUTED IN DUPLICATE ORIGINALS ON THE DATES SHOWN. -
CITY OF LUBBOCK HEALTH DEPARTMENT
Authorized Contracting Entity (type above if different
from PERFORMING AGENCY) for and in behalf of:
PERFORMING AGENCY NAME:
LUBBOCK
al
Iz.I�D pl, Mayor
(Name and Title)
Date: August 29, 2002
RECOMMENDED:
By:
— ".-- /Z��
(PE OORMIN AGENCY Director, if different
from person authorized to sign contract)
TmW Cart, Health MrEr-tor
RECEIVING AGENCY NAME:
TEXAS DEPARTMENT OF HEALTH
Q
By:
O. °
140
(Signature of person authorized to sign contracts)
Melanie A. Doyle, Director
Grants Management Division
(Name and Title)
TDH Document No: 7560005906A2003
12MOvID A • •'; r•.
Cover Page 3
GENRRAL PROWWSIONS FOR
TEXAS DEPARTMENT OF HEALTH GRANT CONTRACTS
(Fee -for -Service) GENERAL PROVISIONS 11/2001
Any alterration to this document constitutes a counter-offer and must be approved in writing by the Texas Department of Health.
GENERAL PROVISIONS FOR
TEXAS DEPARTMENT OF HEALTH GRANT CONTRACTS
ARTICLE 1. Preamble
PERFORMING AGENCY and RECEIVING AGENCY (the parties) agree to make and enter into this grant
contract (contract), to faithfully perform the duties prescribed by this contract, and to uphold and abide by its
terms and provisions. This contract consists of RECEIVING and PERFORMING AGENCY identifying data,
Details of Attachment(s), authorized signatures, General Provisions, and Attachment(s) with detailed Scope(s)
of Work, Special Provisions, budget(s), and exhibit(s) as applicable. This contract represents the complete and
entire understanding and agreement of the parties. No prior agreement or understanding, oral or otherwise, of
the parties or their agents will be valid or enforceable unless embodied in this contract.
The person or persons signing and executing this contract on behalf of PERFORMING AGENCY, or
representing themselves as signing and executing this contract on behalf of PERFORMING AGENCY, warrant
and guarantee that he, she, or they have been duly authorized by PERFORMING AGENCY to execute this
contract on behalf of PERFORMING AGENCY and to validly and legally bind PERFORMING AGENCY to
all of its terms, performances, and provisions.
PERFORMING AGENCY assures compliance with this contract, including these General Provisions unless
otherwise specified in any Special Provisions of the Attachment(s) to this document. If these General
Provisions are revised or replaced during the term of this contract and PERFORMING AGENCY does not
consent to comply with the modified General Provisions, PERFORMING AGENCY may exercise its
termination options in accordance with the General Provisions, Termination Article.
ARTICLE 2. Term
The time period of this contract shall be governed by the term(s) of the Attachment(s). No commitment of
contract funds is permitted prior to the first day or subsequent to the last day of the term. The term may be
extended or shortened by amendment(s).
ARTICLE 3. Funding
This contract is contingent upon the availability of funding for each Attachment for the term of the Attachment.
PERFORMING AGENCY shall have no right of action against the State of Texas or RECEIVING AGENCY in
the event that RECEIVING AGENCY is unable to fulfill its obligations under this contract as a result of lack of
sufficient funding of RECEIVING AGENCY for any Attachment(s) to this contract. If funds become
unavailable, provisions of the Termination Article will apply.
ARTICLE 4. Amendments
This contract may be amended only if the amendment is in writing and signed by individuals with authority to
bind all parties.
PERFORMING AGENCY shall not perform and RECEIVING AGENCY will not pay for the performance of
different or additional services, work, or products except pursuant to an amendment of this contract that is
(Fee -for -Service) GENERAL PROVISIONS Page 1 1112001
executed in compliance with this Article. RECEIVING AGENCY may not waive any term, covenant, or
condition of this contract unless by amendment executed in compliance with this Article.
PERFORMING AGENCY shall plan expenditures so that any necessary budget revisions or amendments are
executed no later than ninety (90) days prior to the expiration of the Attachment term. PERFORMING
AGENCY shall provide a written justification for any budget revisions and/or amendments. If a budget revision
or amendment is requested during the last quarter of the Attachment term, the written justification shall include
a reason for the delay. Revision or amendment requests may be granted at the discretion of RECEIVING
AGENCY.
ARTICLE 5. Applicable Laws and Standards
This contract shall be interpreted under and in accordance with the laws of the State of Texas and enabling state
rules. Where applicable, federal statutes and regulations, including federal grant requirements applicable to
funding sources, shall apply to this contract.
The principles in the Uniform Grant Management Standards (UGMS) as amended by revised federal circulars
and incorporated in UGMS by the Governor's Budget and Planning Office shall be used as a guide in the pricing
of fixed price arrangements where costs are used in determining the appropriate price.
RECEIVING AGENCY must give prior approval for changes to contract Attachment(s) as specified by UGMS
in Part III- "State Uniform Administrative Requirements for Grants and Cooperative Agreements," Subpart C-
Post-Award Requirements, item _30-Changes and applicable federal Office of Management and Budget
(OMB) circulars. RECEIVING AGENCY will provide copies of applicable OMB circulars, Code of Federal
Regulations, and UGMS to PERFORMING AGENCY upon request. These documents are incorporated by
reference as a condition of this contract.
PERFORMING AGENCY 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 grant or the extension, continuation, renewal, amendment, or modification of any contract or grant
(31 USC §1352, as amended, and UGMS). If at any time this contract exceeds $100,000 of federal funds,
PERFORMING AGENCY shall file with RECEIVING AGENCY a declaration containing the name of any
registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on behalf of
PERFORMING AGENCY in connection with that contract or grant, a certification that none of the funds
provided by RECEIVING AGENCY have been or will be used for payment to lobbyists, and disclosure of the
names of any and all registered lobbyists with whom PERFORMING AGENCY has an agreement.
PERFORMING AGENCY shall require any person who requests or receives a subgrant or subcontract to file
the same declaration, certification, and disclosure with RECEIVING AGENCY. PERFORMING AGENCY
shall file the declaration, certification, and disclosure at the time of application for the contract or grant; upon
execution of a contract or grant unless PERFORMING AGENCY 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. RECEIVING AGENCY will supply the certification form to PERFORMING
AGENCY upon request.
PERFORMING AGENCY, 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). A false statement regarding
franchise tax status is a material breach of this contract. If franchise tax payments become delinquent during the
Attachment term, payments under this contract will be withheld until PERFORMING AGENCY'S delinquent
franchise tax is paid in full.
(Fee -for -Service) GENERAL PROVISIONS Page 2 11/2001
ARTICLE 6. Debarment and Suspension
PERFORMING AGENCY certifies by execution of this contract to the following:
• It is notineligible for participation in federal or state assistance programs under Executive Order 12549,
Debarment and Suspension, Feb.18, 1986, 51 Fed. Reg. 6370;
• 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 department or
agency;
• It has not knowingly failed to pay a single substantial debt or a number of outstanding debts to a federal
or state agency; and,
• It is not subject to an outstanding judgment in a suit against PERFORMING AGENCY for collection of
the balance of a debt.
Where PERFORMING AGENCY is unable to certify to any of the statements in this Article, PERFORMING
AGENCY shall attach an explanation. If PERFORMING AGENCY'S status with respect to the items certified
above changes during the contract term, PERFORMING AGENCY shall notify RECEIVING AGENCY,
immediately.
PERFORMING AGENCY shall not contract with a subrecipient nor procure goods or services from a
subcontractor, at any tier, which is debarred or suspended or is otherwise excluded from or ineligible for
participation in federal assistance programs under Executive Order 12549.
ARTICLE 7. Assurances
PERFORMING AGENCY 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.
To the extent such provisions are applicable to PERFORMING AGENCY, PERFORMING AGENCY agrees to
fully comply with the following:
• Title VI of the Civil Rights Act of 1964, 42 USC §§2000d et seq., as amended (P.L. 88-352), which
prohibits discrimination on the basis of race, color or national origin, and includes the provision for
effective communication and equal access to programs, services and activities to persons with Limited
English Proficiency;
• Title IX of the Education Amendments of 1972, 20 USC §§1681-1683, and 1685-1686, as amended,
which prohibits discrimination on the basis of sex;
• Section 504 of the Rehabilitation Act of 1973, 29 USC §794(a), which prohibits discrimination on the
basis of disabilities and the Americans with Disabilities Act of 1990, 42 USC § § 12101 et seq., including
the provision for effective communication and equal access to programs, services and activities to
persons with sensory and speech impairments;
• The Age Discrimination Act of 1975, 42 USC §§6101-6107, as amended, which prohibits
discrimination on the basis of age;
• The Drug Abuse Office and Treatment Act of 1972, 21 USC § § 1101 et seq., as amended, relating to
nondiscrimination on the basis of drug abuse;
• The Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of
1970, 42 USC §290dd (b)(1), as amended, relating to the nondiscrimination on the basis of alcohol
abuse or alcoholism;
• Public Health Service Act of 1912, §§523 and 527, 42 USC §290dd-2, as amended, relating to
confidentiality of alcohol and drug abuse patient records;
(Fee -for -Service) GENERAL PROVISIONS Page 3 11/2001
Title VIII of the Civil Rights Act of 1968, 42 USC §§3601 et seq., as amended, relating to
nondiscrimination in the sale, rental or financing of housing; and,
The requirements of any other nondiscrimination statute(s).
Collectively, such requirements obligate RECEIVING AGENCY to provide services without discrimination on
the basis of race, color, national origin, age, sex, or disability. PERFORMING AGENCY shall carry out the
terms of this contract in a manner which will assist RECEIVING AGENCY in complying with such obligations
to the fullest extent of PERFORMING AGENCY'S ability.
PERFORMING AGENCY agrees to comply with all or part of the following, as applicable:
A. Texas Labor Code, Chapter 21, which requires that certain employers not discriminate on the
basis of race, color, disability, religion, sex, national origin, or age.
B. Immigration Reform and Control Act of 1986, 8 USC § 1324a, as amended, regarding
employment verification and retention of verification forms for any individual(s) hired on or after
November 6, 1986, who will perform any labor or services under this contract.
C. Pro -Children Act of 1994, 20 USC §§6081-6084, regarding the provision of a smoke -free
workplace and promoting the non-use of all tobacco products.
D. The National Research Service Award Act of 1971, 42 USC §§289a-1 et seq., as amended, and
6601 (P.L. 93-348 and P.L. 103-43), as amended, regarding the protection of human subjects
involved in research, development, and related activities supported by any applicable award of
federal assistance, as implemented by 45 CFR Part 46, Protection of Human Subjects.
E. The Clinical Laboratory Improvement Amendments of 1988, 42 USC §263a, as amended, which
establish federal requirements for the regulation and certification of clinical laboratories.
F. The Occupational Safety and Health Administration Regulations on Blood Borne Pathogens, 29
CFR § 1910.1030, which set safety standards for those workers and facilities in the private sector
who may handle blood bome pathogens, or Title 25 Texas Administrative Code (TAC), Chapter
96, which affects facilities in the public sector.
G. Laboratory Animal Welfare Act of 1966, 7 USC §§2131 et seq. (P.L. 89-544), as amended,
pertaining to the care, handling, and treatment of warm-blooded animals held for research,
teaching, or other activities supported by this award of assistance.
H. Article 9102, Texas Revised Civil Statutes, as amended, pertaining to standards which eliminate
architectural barriers for persons with disabilities.
I. Health and Safety Code § 165.004, relating to the promotion of breast-feeding by providing
information that encourages breast-feeding to program participants who are pregnant women or
mothers with infants. Promotional material may be requested from RECEIVING AGENCY by
calling (512) 406-0744.
Environmental standards pursuant to the following:
(1) Institution of environmental qualitycontrol 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."
(Fee for -Service) GENERAL PROVISIONS Page 4 11/2001
(2) Notification of violating facilities pursuant to Executive Order 11738 (40 CFR Part 32),
"Providing for Administration of the Clean Air Act and 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.
(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., as amended.
(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, as amended.
(8) Protection of endangered species under the Endangered Species Act of 1973, 16 USC
§§ 1531 et seq., as amended.
K. Hatch Political Activity Act, 5 USC §§7321-26, which limits the political activity of employees
whose principal employment activities are funded in whole or in part with federal funds.
L. The Fair Labor Standards Act, 29 USC § §201 et seq., and the Intergovernmental Personnel Act of
1970, 42 USC §§4701 et seq., as applicable, concerning minimum wage and maximum hours.
M. General Appropriations Act, Regular Session, 77th Legislature, 2001, Article, §9-6.13, page IX-
42, "Limitation on Grants to Units of Local Government." For the purpose of §9-6.13, "unit of
local government" shall mean a council of governments, a regional planning commission, or a
similar regional planning agency created under Chapter 391, Local Government Code; a Local
Workforce Development Board; or an MHMR community center.
N. Texas Government Code, Chapter 573, relating to nepotism.
O. Texas Government Code, Chapter 552, relating to open records and public information.
P. Texas Government Code, Chapter 551, relating to open meetings.
Q. Texas Occupations Code, Chapter 1701, as amended, and all rules adopted by the Texas
Commission on Law Enforcement Officer Standards and Education pursuant to Chapter 1701, as
amended, relating to regulated law enforcement agencies.
PERFORMING AGENCY shall ensure that the facilities under its ownership, lease or supervision which will be
utilized in the accomplishment of the project are not listed on the Environmental Protection Agency's (EPA) list
of Violating Facilities and shall notify the Federal grantor agency of the receipt of any communication from the
Director of the EPA Office of Federal Activities indicating that a facility to be used in the project is under
consideration for listing by the EPA (Executive Order 11738).
PERFORMING AGENCY shall comply with the flood insurance purchase requirements of 102(a) of the Flood
Disaster Protection Act of 1973, 42 USC §§4001-4003, as amended. Section 102(a) requires the purchase of
flood insurance in communities where the insurance is, available as a condition for the receipt of any federal
financial assistance for construction or acquisition proposed for use in any area that has been identified by the
Secretary of the U.S. Department of Housing and Urban Development as an area having special flood hazards.
As required by Texas Family Code, §231.006, a child support obligor who is more than thirty (30) 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
(Fee for -Service) GENERAL PROVISIONS Page 5 11/2001
payments from state funds under a contract to provide property, materials, or services or receive a state -funded
grant or loan. If applicable, PERFORMING AGENCY agrees to comply with these provisions, 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.
If PERFORMING AGENCY provides medical, dental, psychological or surgical treatment to a minor under this
contract, either directly or through contracts with subrecipients, the treatment of a minor shall be provided only
if consent to treatment is obtained pursuant to Chapter 32 of the Texas Family Code relating to consent to
treatment of a child by a non -parent or child. If requirements of federal law relating to consent directly conflict
with Chapter 32 of the Family Code, federal law shall supersede state law.
If PERFORMING AGENCY provides immunizations, PERFORMING AGENCY shall comply with all
immunization reporting guidelines and requirements set forth in the Health and Safety Code, Chapter 161,
Subchapter A. This requirement shall also apply to subrecipients or subcontractors of PERFORMING
AGENCY, if any.
PERFORMING AGENCY shall comply with the requirements of the Texas Workers' Compensation Act, Labor
Code, Chapters 401-406, and rules promulgated thereunder found at 28 Texas Administrative Code (TAC), Part
2, which cover compensation for employees' injuries.
When incorporated into a contract, standard assurances contained in the application package, if any, become
terms or conditions for receipt of RECEIVING AGENCY funds. PERFORMING AGENCY and its
subrecipients shall maintain an appropriate contract administration system to ensure that all terms, conditions,
and specifications are met.
PERFORMING AGENCY shall comply with all federal tax laws and is solely responsible for filing all required
state and federal tax forms.
PERFORMING AGENCY shall comply with all applicable requirements of federal and state laws, executive
orders, regulations and policies governing the activity described in the Attachment(s), and with the applicable
standard conditions or assurances prescribed by UGMS in Part III, "State Uniform Administrative Requirements
for Grants and Cooperative Agreements," Subpart B-Pre-Award Requirements, item —14-State Assurances.
PERFORMING AGENCY assures it shall not transfer, assign or sell its interest in this contract without the
written consent of RECEIVING AGENCY.
ARTICLE 8. Child Abuse Reporting Requirements
[PERFORMING AGENCY is required to comply with this article only as related to services provided under the
following Attachments: Human Immunodeficiency Virus and Sexually Transmitted Diseases (all Attachments),
Title X and Title XX (Family Planning), Primary Health Care, Title V Maternal and Child Health (Fee -for -
service), and Bureau of Nutrition Services/Cards (WIC).] PERFORMING AGENCY and each of its
subrecipients shall make a good faith effort to comply with child abuse reporting guidelines and requirements in
Chapter 261 of the Texas Family Code relating to investigations of reports of child abuse and neglect.
PERFORMING AGENCY and each of its subrecipients shall develop, implement and enforce a written policy
that includes at a minimum the RECEIVING AGENCY'S Child Abuse Screening, Documenting, and Reporting
Policy for Grant Services Contractors and train all staff on reporting requirements. PERFORMING AGENCY
and its subrecipients shall use the Checklist for TDH Monitoring as required by RECEIVING AGENCY. (The
policy and checklist are available at each of the above -referenced programs' websites.)
(Fee -for -Service) GENERAL PROVISIONS Page 6 11/2001
ARTICLE 9. Intellectual Property
Texas Health and Safety Code § 12.020(a), as amended, authorizes RECEIVING AGENCY to apply for,
register, secure, hold, and protect a patent, copyright, trademark or other evidence of protection or exclusivity
issued in or for intellectual property.
"Intellectual property" consists of inventions; discoveries; improvements to any process, machine, manufacture,
or composition of matter; products; technology; scientific information; trade secrets; computer software; literary
works; musical works with any accompanying words; dramatic works with any accompanying music;
pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other
audiovisual works; sound recordings; architectural works; words, names, symbols, devices, slogans or any
combination thereof which have been adopted and used by RECEIVING AGENCY to identify goods and/or
services and distinguish them from those of others; and any other creative works if they may be protected by a
patent, copyright, trademark, service mark, collective mark, or certification mark or other evidence of protection
or exclusivity whether or not protection or exclusivity has been applied for or received.
"Mark," for purposes of trademark and service mark, includes a word, name, symbol, device, slogan or any
combination thereof which has been adopted and used by RECEIVING AGENCY to identify goods and/or
services and distinguish them from those of others. Federal trademark law also provides for collective marks
and certification marks.
"Patent" protects any new and useful process, machine, manufacture, or composition of matter, or any new and
useful improvement.
"Work made for hire," a concept under copyright law, is a work prepared by an employee within the scope of
his or her employment, or a work prepared by a subrecipient or subcontractor within the scope of his or her
contract, or a work specially ordered or commissioned for use as a contribution to a collective work, as a part of
a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an
instructional text, as a test, as answer material for a test, or as an atlas, and the parties expressly agree in a
written instrument signed by them that the work shall be considered a work made fof hire.
The term "works," for purposes of federal copyright law, includes software; literary works; musical works with
any accompanying words; dramatic works with any accompanying music; pantomimes and choreographic
works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works, sound recordings
and architectural works.
All work performed that results in the production of original books, manuals, films, or other original material is
the exclusive property of RECEIVING AGENCY. All rights, title, and interest in and to said property shall vest
in RECEIVING AGENCY upon creation. All work performed shall be deemed to be a "work made for hire" for
copyright purposes and made in the course of the services rendered pursuant to this contract. To the extent that
title to any such work may not, by operation of law, vest in RECEIVING AGENCY or such work may not be
considered a work made for hire, all rights, title and interest therein are hereby irrevocably assigned to
RECEIVING AGENCY. RECEIVING AGENCY shall have the right to obtain and to hold in its own name any
and all patents, copyrights, trademarks, service marks, certification marks, collective marks, registrations, or
such other protection as may be appropriate to the subject matter, and any extensions and renewals thereof.
PERFORMING AGENCY shall ensure all rights, titles, and interest in and to the intellectual property are
secured to RECEIVING AGENCY from PERFORMING AGENCY and its subrecipients. PERFORMING
AGENCY agrees to give RECEIVING AGENCY and agrees to require its subrecipients to give RECEIVING
AGENCY, or any person designated by RECEIVING AGENCY, all assistance required to perfect the rights
defined in this Article, without any charge or expense beyond those amounts payable to PERFORMING
AGENCY for the services rendered under the contract.
(Fee -for -Service) GENERAL PROVISIONS Page 7 11/2001
If federal funds are used to finance activities supported by the contract Attachment(s) that result in the
production of original books, manuals, films, or other original material, 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 work developed under a grant, subgrant,
or contract under a grant or subgrant; and (2) any rights of copyright to which a PERFORMING AGENCY or
its subrecipient purchases ownership with grant support. PERFORMING AGENCY 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 agency)" and "Its contents are solely the responsibility
of the authors and do not necessarily represent the official views of the (federal awarding agency)."
In the event the terms of a federal grant award the copyright to PERFORMING AGENCY, RECEIVING
AGENCY reserves a royalty -free, nonexclusive, worldwide and irrevocable license to reproduce, publish or
otherwise use, and to authorize others to use, for RECEIVING AGENCY, public health, and state governmental
noncommercial purposes (1) the copyright, trade mark, 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 grant support.
RECEIVING AGENCY may waive ownership of a copyright, mark, or patent to a university or college with
statutory authority to hold a copyright, mark, or patent or to a subcontractor of the college or university that
would have the right of ownership under rules or policies of the college or university as part of the consideration
for a contract. If RECEIVING AGENCY waives ownership, RECEIVING AGENCY reserves a royalty -free,
nonexclusive, worldwide and irrevocable license to reproduce, publish or otherwise use, and to authorize other
to use, for RECEIVING AGENCY and state governmental non-commercial and public health purposes: (1) the
copyright, trade mark, service mark, and patent in any intellectual property developed under a contract, grant,
subgrant, or contract under a grant or subgrant; and (2) any rights of copyright, trade mark, service mark, and
patent in any intellectual property for which a grantee, subgrantee or a contractor purchases ownership with
grant support or with other funds from RECEIVING AGENCY. RECEIVING AGENCY may waive ownership
of the copyright to accomplish the contract objectives dealing with public health through a qualified state
college or university and enhance the recruiting benefits and prestige of the college or university.
PERFORMING AGENCY may publish the results of the contract performance if those results are subject to
copyright law at its expense with prior RECEIVING AGENCY review and approval. RECEIVING AGENCY
will not withhold the approval unreasonably. If RECEIVING AGENCY withholds approval, PERFORMING
AGENCY may still publish the results of the contract performance but shall not reference the Texas Department
of Health in any manner. If RECEIVING AGENCY approves and owns the copyright, any publication should
include "C (the year of publication), Texas Department of Health, All Rights Reserved." If PERFORMING
AGENCY is the copyright holder, any publication shall include acknowledgment of the support received from
RECEIVING AGENCY. At least six (6) copies of any such publication shall be provided to RECEIVING
AGENCY. RECEIVING AGENCY reserves the right to require additional copies before or after the initial
review.
PERFORMING AGENCY and any subrecipient, as appropriate, shall comply with the standard patent rights
clauses in 37 Code of Federal Regulations §401.14 or Federal Acquisition Regulations 52.227.11.
(Fee -for -Service) GENERAL, PROVISIONS Page 8 11/2001
ARTICLE 10. Historically Underutilized Businesses
RECEIVING AGENCY shall comply with Texas Government Code, Chapter 2161, and 1 TAC §§111.11-
111.24 et seq., whereby state agencies are required to make a good faith effort to assist historically underutilized
businesses (HUBS) in receiving contract awards issued by the state to purchase "goods," which are defined as
"supplies, materials, or equipment," services, or public works.
If PERFORMING AGENCY subcontracts a portion of this contract, PERFORMING AGENCY agrees to make
a good faith effort to subcontract with HUBs during the performance of its contract Attachment(s) with
RECEIVING AGENCY and will report HUB subcontract activity on a quarterly basis to RECEIVING
AGENCY.
ARTICLE 11. Conflict of Interest
PERFORMING AGENCY 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 an
existing business or personal relationship between PERFORMING AGENCY, its principal, or any affiliate or
subrecipient with RECEIVING AGENCY, its board members, officers or employees, or any other entity or
person involved in any way in any project that is the subject of this contract.
ARTICLE 12. Certification of Software, Hardware, Firmware and Micro Code Products
PERFORMING AGENCY certifies that any supplied or supported software, hardware, firmware, and micro
code products used individually or together as a system to comply with RECEIVING AGENCY contract
requirements shall operate "accurately" in the manner in which they were intended when given a "valid date"
containing century, year, month, and day.
For purposes of this Article, "supplied or supported software, hardware, firmware, and micro code products"
does not include software supported by RECEIVING AGENCY or an agency of the federal government.
PERFORMING AGENCY is responsible for installing and implementing any versions of any software provided
by RECEIVING AGENCY or an agency of the federal government which is used in performance of this
contract.
For purposes of this Article,
a) "accurately" is defined to include the following:
1) calculations shall be correctly performed using four -digit year processing;
2) functionality -on-line, batch including entry, inquiry, maintenance and updates shall support four -digit
year processing;
3) interfaces and reports shall support four -digit year processing;
4) processing with a four -digit year shall occur without human intervention;
5) correct results in forward and backward date calculation spanning century boundaries shall be
provided;
6) correct leap year calculations shall be performed; and
7) processing correct results in forward and backward date calculation spanning century boundaries
shall occur;
b) "date integrity" shall mean all manipulations of time -related data (dates, durations, days of week, etc.)
shall produce desired results for all valid date values within the application domain;
(Fee -for -Service) GENERAL PROVISIONS Page 9 11/2001
c) "explicit century" shall mean date elements in interfaces and data storage permit specifying century to
eliminate date ambiguity;
d) "extraordinary actions" shall be defined to mean any action outside the normal documented processing
steps identified in the product's reference documentation;
e) "general integrity" shall mean no value for current date shall cause interruptions in desired operation;
f) "implicit century" shall mean for any data element without century, the correct century is unambiguous
for all manipulations involving that document;
g) "product" or "products" shall be defined to include, but is not limited to, any supplied or supported
hardware, software, firmware and/or micro code;
h) "valid date" shall contain a two -digit month, a two -digit day and a four -digit year.
PERFORMING AGENCY and its subrecipient(s) shall obtain a warranty from any vendor/licensor from which
it obtains product(s) that product(s) delivered and installed under the contract/license shall accurately process
valid date data when used in accordance with the product documentation provided by the contractor/licensor and
require no extraordinary actions on the part of PERFORMING AGENCY, its personnel, or its subrecipient(s).
Products under the contract/license shall possess general integrity, date integrity, explicit and implicit century
capabilities. If the contract/license requires that specific products shall perform as a system in accordance with
the foregoing warranty, then the warranty shall apply to those listed products as a system. The duration of this
warranty and the remedies available to PERFORMING AGENCY or its subrecipient(s) for breach of the
warranty shall be defined in, and subject to, the terms and conditions of the contractor's standard commercial
warranty or warranties contained in the contract/license; provided, that notwithstanding any provision to the
contrary in such commercial warranty or warranties, the remedies available to PERFORMING AGENCY or its
subrecipient(s) shall include repair or replacement of any supplied product if its noncompliance is discovered
and made known to the contractor/licensor in writing within ninety (90) days after final acceptance. Nothing in
the warranty shall be considered to limit any rights or remedies PERFORMING AGENCY or its subrecipient(s)
may otherwise have under the contract/license.
RECEIVING AGENCY will not hold PERFORMING AGENCY responsible if the information coming to
PERFORMING AGENCY'S product/software from RECEIVING AGENCY is inaccurate or corrupt.
ARTICLE 13. Standards for Financial and Programmatic Management
PERFORMING AGENCY shall bill all third party payers for services provided under the Attachment(s) before
submitting any request for payment to RECEIVING AGENCY. A third party payer is any person or entity who
has the legal responsibility for paying all or part of the services provided, including, commercial health or
liability insurance carriers, Medicaid, or other federal, state, local and private funding sources. Third party
billing functions shall be provided by PERFORMING AGENCY at no cost to the client. PERFORMING
AGENCY or its subrecipient shall become a Medicaid provider if performing approved Texas Medicaid services
authorized by the Attachment(s).
PERFORMING AGENCY, if designated a 501(c)(3) organization as defined in the Internal Revenue Service
Code or a for -profit organization, and its governing board, shall bear full responsibility for the integrity of the
fiscal and programmatic management of the organization. Such responsibility shall include: accountability for
all funds and materials received from RECEIVING AGENCY; compliance with RECEIVING AGENCY rules,
policies, procedures, and applicable federal and state laws and regulations; and correction of fiscal and program
deficiencies identified through self -evaluation and RECEIVING AGENCY'S monitoring processes. Further,
PERFORMING AGENCY'S goveming board shall ensure separation of powers, duties, and functions of board
(Fee -for -Service) GENERAL PROVISIONS Page 10 11/2001
members and staff. 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.
ARTICLE 14. Bonding and Liability Insurance
PERFORMING AGENCY is required to carry a fidelity bond or insurance coverage equal to the amount of
funding provided under the contract Attachment(s) up to $100,000 that covers each employee of
PERFORMING AGENCY 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 PERFORMING AGENCY'S employees, either
individually or in concert with others, and/or 2) failure of PERFORMING AGENCY 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.
PERFORMING AGENCY shall also maintain liability insurance coverage, referred to in Texas Government
Code, Section 2259.102, as "director and officer liability coverage," where PERFORMING AGENCY 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. PERFORMING AGENCY shall maintain liability insurance coverage in an amount not less
than the value of this contract Attachment and that is sufficient to protect the interests of RECEIVING
AGENCY in the event an actionable act or omission by a director or officer of PERFORMING AGENCY
damages RECEIVING AGENCY'S interests.
ARTICLE 15. Terms and Conditions of Payment
For services satisfactorily performed pursuant to this contract, RECEIVING AGENCY will pay PERFORMING
AGENCY for allowable costs. Payments are contingent on a signed contract and will not exceed the total of
each Attachment(s). PERFORMING AGENCY is entitled to payment only if the service, work, and/or product
has been satisfactorily performed and authorized in accordance with this contract.
PERFORMING AGENCY shall submit requests for payment on a State of Texas Purchase Voucher (TDH Form
B-13) or any other form designated by RECEIVING AGENCY. PERFORMING AGENCY shall submit
vouchers for payment monthly within thirty (30) days following the end of the month covered by the bill.
PERFORMING AGENCY shall submit a payment request as a final close-out bill not later than ninety (90) days
following the end of the applicable Attachment term(s). Requests submitted and postmarked more than ninety
(90) days following the end of the applicable Attachment term will not be paid. (Additional information
regarding reimbursement request deadline is available at www.tdh.state.tx.us/grants/hot topics.htm#Deadline.)
PERFORMING AGENCY shall disburse program income, rebates, refunds, contract settlements, audit
recoveries and interest earned on such funds before. requesting cash payments including advance payments from
RECEIVING AGENCY.
Funding from this contract shall not be used to supplant [i.e., use in place of funds dedicated, appropriated or
expended for activities funded through the Attachment(s)] state or local funds, but PERFORMING AGENCY
shall use the funds from this contract to increase state or local funds currently available for a particular activity.
PERFORMING AGENCY shall make a good faith effort to maintain its current level of support.
PERFORMING AGENCY 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 the Attachment.
RECEIVING AGENCY shall determine whether costs submitted by PERFORMING AGENCY are allowable
and payable. If RECEIVING AGENCY has paid funds to PERFORMING AGENCY for unallowable or
(Fee -for -Service) GENERAL PROVISIONS Page l 1 11/2001
ineligible costs, PERFORMING AGENCY shall return the funds to RECEIVING AGENCY within thirty (30)
days of written notice.
RECEIVING AGENCY may withhold all or part of any payments to PERFORMING AGENCY to offset
payment for any ineligible expenditures that PERFORMING AGENCY has not paid to RECEIVING
AGENCY, or if financial status report(s) required under the Reports Article are not submitted by the date(s) due.
RECEIVING AGENCY may take repayment from funds available under any contract Attachment, active or
expired, in amounts necessary to fulfill PERFORMING AGENCY repayment obligations.
ARTICLE 16. Program Income
PERFORMING AGENCY may, or if PERFORMING AGENCY is a local health department shall, develop a
fee -for -service system and a schedule of fees for personal health services in accordance with the provisions of
Health and Safety Code, § 12.031; the Texas Board of Health rules covering Fees for Clinical Health Services,
25 TAC § 1.91; and other applicable laws. No patient shall be denied a service due to inability to pay.
All revenues directly generated by an Attachment(s) supported activity or earned only as a result of the
Attachment(s) during the term of the Attachment(s) are considered program income. PERFORMING AGENCY
shall identify and report this income utilizing the forms and frequencies specified in the Reports Article of these
provisions, and in the Special Provisions of the Attachment(s).
PERFORMING AGENCY shall use program income to provide additional client services. Any program
income not used to provide additional client services shall be deducted from PERFORMING AGENCY'S total
final billing to RECEIVING AGENCY at the end of the Attachment(s) term(s).
RECEIVING AGENCY may base future funding levels, in part, upon PERFORMING AGENCY'S proficiency
in identifying, billing, collecting, and reporting program income, and in utilizing it for the purposes and
conditions of the applicable Attachment(s).
ARTICLE 17. Contracts with Subrecipients
PERFORMING AGENCY may enter into contracts with subrecipients unless restricted or otherwise prohibited
in specific Attachment(s). Prior to entering into an agreement equaling $25,000 or twenty-five percent (25%) of
an Attachment, whichever is greater, PERFORMING AGENCY shall obtain written approval from
RECEIVING AGENCY.
Contracts with subrecipients shall be in writing and include the following:
• Name and address of all parties;
• A detailed description of the services to be provided;
• Measurable method and rate of payment and total amount of the contract;
• Clearly defined and executable termination clause;
• Beginning and ending dates which coincide with the dates of the applicable contract Attachment(s) or
cover a term within the beginning and ending dates of the applicable contract Attachment(s);
• Records retention requirements consistent with UGMS;
• Access to inspect the work and the premises on which any of the work is performed, in accordance with
the Inspections Article contained in this contract; and
• All clauses required by state/federal statutes, executive orders, and their implementing regulations.
(Fee -for -Service) GENERAL PROVISIONS Page 12 11/2001
PERFORMING AGENCY is responsible to RECEIVING AGENCY for the performance of any subrecipient.
PERFORMING AGENCY shall monitor both financial and programmatic performance and maintain pertinent
records that will be available for inspection by RECEIVING AGENCY.
PERFORMING AGENCY shall ensure that:
• Subrecipients are fully aware of the requirements imposed upon them by state/federal statutes and
regulations;
• Subrecipients comply with all financial management requirements as defined by RECEIVING
AGENCY, UGMS and the applicable OMB circulars;
• Subrecipients complete required audits;
• An adequate tracking system is maintained to ensure timely receipt of any subrecipient's required audit
reports and the resolution of any findings and questioned costs cited by these reports; and, that
• RECEIVING AGENCY is immediately notified in .writing of alleged or actual misuse or
misappropriation of contract funds by subrecipients.
ARTICLE 18. Contracts for Procurement
PERFORMING AGENCY may enter into contracts for procurement unless restricted or otherwise prohibited in
specific Attachment(s). PERFORMING AGENCY agrees that it shall be responsible to RECEIVING
AGENCY for the performance of any subcontracted activity.
Contracts for procurement shall be in writing and contain the following provisions:
• Administrative, contractual, or legal remedies in instances where contractors violate or breach contract
terms, and provide for such sanctions and penalties as may be appropriate (contracts other than small
purchases).
• Termination for cause and for convenience by PERFORMING AGENCY including the manner by
which it will be effected and the basis for settlement (all contracts in excess of $10,000).
• Compliance with the Copeland "Anti -Kickback" Act (18 USC §874) as supplemented in Department of
Labor regulations (29 CFR Part 3) (all contracts and subgrants for construction or repair).
• Compliance with §§103 and 107 of the Contract Work Hours and Safety Standards Act (40 USC §§327-
330) as supplemented by Department of Labor regulations (29 CFR Part 5) (construction contracts
awarded by grantees and subgrantees in excess of $2,000, and in excess of $2,500 for other contracts
which involve the employment of mechanics or laborers).
• Notice of RECEIVING AGENCY requirements and regulations pertaining to reporting.
• Notice of RECEIVING AGENCY requirements and regulations pertaining to trademarks, service
marks, copyrights, and patent rights with respect to any discovery or invention which arises or is
developed in the course of or under such contract.
• RECEIVING AGENCY requirements and regulations pertaining to copyrights and rights in data.
• Access by RECEIVING AGENCY, the federal grantor agency, the Comptroller General of the United
States, the State of Texas or any of their duly authorized representatives to any books, documents,
papers, and records of the contractor which are directly pertinent to that specific contract for the purpose
of making audit, examination, excerpts, and transcriptions.
• Retention of all required records for the required retention period after RECEIVING AGENCY makes
final payments and all other pending matters are closed.
• Compliance with all applicable standards, orders, or requirements issued under §306 of the Clean Air
Act (42 USC §7401), §508 of the Clean Water Act (33 USC §1368), Executive Order 11738, and
Environmental Protection Agency regulations (40 CFR Part 15) (contracts, subcontracts, and subgrants
of amounts in excess of $100,000).
(Fee -for -Service) GENERAL PROVISIONS Page 13 11/2001
• Mandatory standards and policies relating to efficiency which are contained in the state energy plan
issued in compliance with the Energy Policy and Conservation Act (P. L. 94-163), 42 USC §§6201 et
seq., as amended.
ARTICLE 19. Reports
PERFORMING AGENCY shall submit the financial, program, and progress reports required by RECEIVING
AGENCY in the format agreed to by the parties. PERFORMING AGENCY shall provide RECEIVING
AGENCY other reports RECEIVING AGENCY determines to be necessary to accomplish the objectives of this
contract and to monitor compliance. If PERFORMING AGENCY is legally prohibited from providing such
reports, it shall immediately notify RECEIVING AGENCY.
ARTICLE 20. Inspections
RECEIVING AGENCY and, when federal funds are involved, any authorized representative(s) of the federal
government have the right, at all reasonable times, to inspect or otherwise evaluate the work (including reviews
of client or patient records and discussions with staff) performed by PERFORMING AGENCY and its
subrecipient(s), if any, and the premises on which the work is being performed. PERFORMING AGENCY and
its subrecipient(s) shall participate in inspections and provide reasonable access, facilities, and assistance to the
representatives. All inspections and evaluations will be conducted in such a manner as will not unduly interfere
with the work.
PERFORMING AGENCY (and any parent, affiliate or subsidiary organization, if such a relationship exists) and
its subrecipient(s), if any, shall give RECEIVING AGENCY, the federal government, and the Texas State
Auditor, or any of their duly authorized representatives, access to any pertinent books, documents, papers, and
client or patient records, if � any, for the purpose of making audit, examination, excerpts, and transcripts of
transactions related to contract Attachment(s). RECEIVING AGENCY will have the right to audit billings both
before and after payment. Payment under Attachment(s) will not foreclose the right of RECEIVING AGENCY
to recover excessive or illegal payments.
Any deficiencies identified by RECEIVING AGENCY upon examination of PERFORMING AGENCY'S
records will be conveyed in writing to PERFORMING AGENCY. PERFORMING AGENCY'S resolution of
findings shall also be conveyed in writing to RECEIVING AGENCY within thirty (30) days of receipt of
RECEIVING AGENCY'S findings. A RECEIVING AGENCY determination of either an inadequate or
inappropriate resolution of the findings may result in sanctions which will remain in effect until RECEIVING
AGENCY determines the deficiencies are properly remedied.
ARTICLE 21. Records Retention
PERFORMING AGENCY and its subrecipients or subcontractors shall retain medical records in accordance
with 22 Texas Administrative Code (TAC), Part 9, § 165.1(b)(c) or other applicable statutes and regulations
governing medical information. PERFORMING AGENCY shall retain and preserve all other records, including
financial records; which are generated or collected by PERFORMING AGENCY or its subrecipients or
subcontractors under the terms of this contract, for a period of four (4) years after the termination of the
contract. If the contract is funded through Medicaid, the federal retention period, if more than four (4) years,
shall apply. PERFORMING AGENCY and its subrecipients shall retain all records for a contract that is the
subject of litigation or an audit until the litigation is ended or all questions pertaining to the audit are resolved.
Legal requirements for PERFORMING AGENCY may extend beyond the retention schedules established
herein.
(Fee -for -Service) GENERAL PROVISIONS Page 14 11/2001
ARTICLE 22. Patient or Client Records
Notwithstanding any other provision herein, if requested by RECEIVING AGENCY, PERFORMING
AGENCY shall share all patient or client information with RECEIVING AGENCY when the contract involves
patient or client care by PERFORMING AGENCY.
RECEIVING AGENCY may require PERFORMING AGENCY, or any subrecipient, to transfer a client or
patient record to another agency or to RECEIVING AGENCY if the transfer is necessary to protect either the
confidentiality of the record or the health and welfare of the client or patient.
In the event of termination or expiration of the Attachment(s), RECEIVING AGENCY may require the transfer
of client or patient records as authorized by law upon written notice to PERFORMING AGENCY, either to
another entity that agrees to continue the service or to RECEIVING AGENCY.
At the end of the Attachment term, PERFORMING AGENCY shall give RECEIVING AGENCY access to the
records or provide copies for audit, examination, evaluation, inspection, litigation, or other circumstances that
may arise, to the extent authorized by law.
PERFORMING AGENCY, or any subrecipient, shall not otherwise transfer through any means, including
electronically, an identifiable client record, including a patient record, to another entity or person without written
consent from the client or patient, or someone authorized to act on his or her behalf. Written consent shall be
given on a form provided by RECEIVING AGENCY or as otherwise authorized by law, including the Texas
Occupations Code, Chapter 159, as amended.
ARTICLE 23. Confidentiality
PERFORMING AGENCY shall have a system in effect to protect client or patient records and all other
documents deemed confidential by law which are maintained in connection with the activities funded under this
contract. PERFORMING AGENCY shall not disclose or transfer confidential client or patient information,
including information required by the Reports Article, except in accordance with applicable law.
If providing direct client care, services, or programs, PERFORMING AGENCY shall implement RECEIVING
AGENCY'S policies based on the model HIV/AIDS (human immunodeficiency virus/acquired
immunodeficiency syndrome) workplace guidelines, and PERFORMING AGENCY shall educate employees
and clients concerning HIV and its related conditions, including AIDS, in accordance with the Health and Safety
Code, §§85.112-114.
ARTICLE 24. Hold Harmless
PERFORMING AGENCY, as an independent contractor, agrees to hold RECEIVING AGENCY and/or 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 PERFORMING AGENCY under this contract.
ARTICLE 25. Sanctions
RECEIVING AGENCY may impose sanctions for any breach of contract, and will monitor PERFORMING
AGENCY for both programmatic and financial compliance. RECEIVING AGENCY may, at its own discretion,
impose one or more sanctions for each item of noncompliance and will determine sanctions on a case -by -case
basis. A state or federal statute, rule, regulation, or federal guideline will prevail over the provisions of this
Article unless the statute, rule, regulation, or guideline can be read together with the provision(s) of this Article
to give effect to both.
(Fee -for -Service) GENERAL PROVISIONS Page 15 11/2001
RECEIVING AGENCY may:
A. Terminate all or a part of the contract. Termination is the permanent withdrawal of
PERFORMING AGENCY'S authority to obligate previously awarded funds before that authority
would otherwise expire or the voluntary relinquishment by PERFORMING AGENCY of the
authority to obligate previously awarded funds. PERFORMING AGENCY costs resulting from
obligations incurred by PERFORMING AGENCY after termination of an award are not allowable
unless expressly authorized by the notice of termination. Termination does not include: (1)
withdrawal of funds awarded on the basis of PERFORMING AGENCY'S underestimate of the
unobligated balance in a prior period; (2) withdrawal of the unobligated balance as of the
expiration of a contract; (3) refusal to extend a contract 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;
B. Suspend all or part of the contract. Suspension is, depending on the context, either (1) the
temporary withdrawal of PERFORMING AGENCY'S authority to obligate funds pending
corrective action by PERFORMING AGENCY or its subrecipient(s) or pending a decision to
terminate or amend the contract, or (2) an action taken by a suspending official in accordance with
agency regulations implementing Executive Order 12549 to immediately exclude a person from
participating in contract transactions for a period, pending completion of an investigation and such
legal or debarment proceedings as may ensue. PERFORMING AGENCY costs resulting from
obligations incurred by PERFORMING AGENCY during a suspension are not allowable unless
expressly authorized by the notice of suspension;
C. Disallow (deny both use of funds and matching credit for) all or part of the activities or action not
in'compliance;
D. Temporarily withhold cash payments. Temporarily withholding cash payments means the
temporary withholding of advances or reimbursements to PERFORMING AGENCY or its
subrecipient(s) for proper charges or obligations incurred, pending resolution of issues of
noncompliance with contract conditions or indebtedness to the United States or to the State of
Texas;
E. Permanently withhold cash payments. Permanent withholding of cash payment means that
RECEIVING AGENCY retains funds billed by PERFORMING AGENCY or its subrecipient(s)
for a) unallowable, undocumented, disputed, inaccurate, improper, or erroneous billings; b) failure
to comply with contract provisions; or c) indebtedness to the United States or to the State of
Texas;
F. Deny contract renewal or future contract awards to a PERFORMING AGENCY;
G. Delay contract execution with PERFORMING AGENCY while other imposed or proposed
sanctions are pending resolution;
H. Place PERFORMING AGENCY on probation. Probation means that PERFORMING AGENCY
will be placed on accelerated monitoring for a period not to exceed six (6) months at which time
items of noncompliance shall be resolved or substantial improvement shown by PERFORMING
AGENCY;
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I. Conduct accelerated monitoring of PERFORMING AGENCY. Accelerated monitoring means
more frequent or more extensive monitoring will be performed by RECEIVING AGENCY than
would routinely be accomplished;
J. Require PERFORMING AGENCY to obtain technical or managerial assistance;
K. Disallow requests for payments by disapproving costs or fees submitted for payment or
reimbursement by PERFORMING AGENCY;
L. Establish additional prior approvals for expenditure of funds by PERFORMING AGENCY;
M. Require additional, more detailed, financial and/or programmatic reports to be submitted by
PERFORMING AGENCY;
N. Demand repayment from PERFORMING AGENCY;
O. Reduce the contract 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 as set out in the contract; and
P. Impose other remedies provided by law.
RECEIVING AGENCY will formally notify PERFORMING AGENCY 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 which shall be taken before they will be removed and the
time allowed for completing the corrective actions, and the method, if any, of requesting reconsideration of the
sanctions imposed. PERFORMING AGENCY is required to file, within fifteen (15) days of receipt of notice, a
written response to RECEIVING AGENCY'S program/division that sent the notice, acknowledging receipt of
such notice and stating how PERFORMING AGENCY shall correct the noncompliance or demonstrating in
writing that the findings on which the sanctions are based are either invalid or do not warrant the sanction(s). If
RECEIVING AGENCY determines that a sanction is warranted, and unless the sanction is subject to review
(see Sanction Review Article), RECEIVING AGENCY'S decision is final and PERFORMING AGENCY shall
take corrective action.
In an emergency, RECEIVING AGENCY may immediately terminate or suspend all or part of the contract,
temporarily or permanently withhold cash payments, deny contract renewal or future contract awards, or delay
contract execution by delivering written notice to PERFORMING AGENCY, by any verifiable method, stating
the reason for the emergency action.
An "emergency" is defined as the following:
• PERFORMING AGENCY is noncompliant and the noncompliance has a direct adverse impact on the
public or client health or safety. The direct adverse impact may be programmatic or financial,
impacting health or safety by 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 contract scope of work or performance measures;
• PERFORMING AGENCY fails to achieve a performance measure;
• PERFORMING AGENCY is paid or requesting payment for expenditures which are not in accordance
with applicable federal or state laws and regulations or the provisions of the contract; or
• PERFORMING AGENCY is expending funds inappropriately.
(Fee -for -Service) GENERAL PROVISIONS Page 17 11/2001
Whether PERFORMING AGENCY'S conduct or inaction is an emergency will be determined by RECEIVING
AGENCY on a case -by -case basis and will be based upon the egregious nature of the noncompliance or
conduct.
ARTICLE 26. Sanction Review
PERFORMING AGENCY may request a review of the imposition of the following sanctions: termination of all
or part of the contract, suspension of all or part of the contract, permanent withholding of cash payments,
reduction of contract funding or other contract amendment resulting from noncompliance, and denial of contract
renewal or future contract awards.
PERFORMING AGENCY shall make the request for review in writing to RECEIVING AGENCY within
fifteen (15) days from the date of notification by providing written notice of the dispute to the person who
signed the notification.
PERFORMING AGENCY'S notice shall contain the following: (1) a copy of the letter from RECEIVING
AGENCY notifying PERFORMING AGENCY of the sanction; (2) a specific description of each act that is the
basis for the dispute; (3) the grounds upon which PERFORMING AGENCY bases the complaint; (4) an
identification of the issue or issues to be resolved; (5) a precise statement of the relevant facts; (6) any
documentation in support of PERFORMING AGENCY'S position; and (7) a statement and authorities in
support of PERFORMING AGENCY'S position.
Evidence that PERFORMING AGENCY properly notified RECEIVING AGENCY consists of any of the
following documents: (1) signature on delivery card; (2) confirmation of a facsimile to the correct telephone
number; or (3) signed acknowledgment of delivery.
RECEIVING AGENCY'S representative will schedule a meeting or a conference call to attempt to resolve the
issues in dispute. If the dispute is resolved, any resolution will be in writing and will be signed by all parties. If
the dispute is not resolved, RECEIVING AGENCY'S representative will notify PERFORMING AGENCY in
writing. RECEIVING AGENCY will appoint a reviewer(s), who will review the information, who may permit
or require additional information and who may grant, deny, or modify all relief requested in the written notice of
dispute. The reviewer(s)'s decision will be in writing and will contain a discussion of the reason for the decision
and the remedial action, if any. The reviewer(s) will send copies of the decision to all parties by any verifiable
means. The decision of the reviewer(s) is final and is the final action of RECEIVING AGENCY for purposes of
further proceedings.
A state statute or rule or a federal statute, regulation or guideline will prevail over the provisions of this Article
unless the statute, rule, regulation or guideline can be read together with the provision or provisions of this
Article to give effect to both.
ARTICLE 27. Dispute Resolution for Breach of Contract
The dispute resolution process provided for in Chapter 2260 of Texas Government Code shall be used, as further
described herein, by RECEIVING AGENCY and PERFORMING AGENCY to attempt to resolve any claim for
breach of contract made by PERFORMING AGENCY. (This process is not applicable for governmental
entities.)
A. PERFORMING AGENCY'S claims for breach of this contract that the parties can not 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, PERFORMING AGENCY
shall submit written notice, as required by subchapter B, to RECEIVING AGENCY'S Office of
General Counsel. Said notice shall specifically state that the provisions of Chapter 2260,
(Fee -for -Service) GENERAL PROVISIONS Page 18 11/2001
subchapter B, are being invoked. A copy of the notice shall also be given to all other
representatives of RECEIVING AGENCY and PERFORMING AGENCY otherwise entitled to
notice under the parties' contract. Compliance by PERFORMING AGENCY with subchapter B
is a condition precedent to the filing of a contested case proceeding under Chapter 2260,
subchapter C, Texas Government Code.
B. The contested case process provided in Chapter 2260, subchapter C, Texas Government Code is
PERFORMING AGENCY'S sole and exclusive process for seeking a remedy for any and all
alleged breaches of contract by RECEIVING AGENCY if the parties are unable to resolve their
disputes under subparagraph A. of this paragraph.
C. Compliance with the contested case process provided in subchapter C 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 RECEIVING AGENCY nor any other
conduct of any representative of RECEIVING AGENCY relating to the contract shall be
considered a waiver of sovereign immunity to suit.
The submission, processing and resolution of PERFORMING AGENCY'S claim is to be governed by the
published rules adopted by RECEIVING AGENCY pursuant to Chapter 2260, as currently effective, hereafter
enacted or subsequently amended. These rules are to be found at25 TAC Chapter 1, when available.
Neither the occurrence of an event nor the pendency of a claim constitute grounds for the suspension of
performance by PERFORMING AGENCY, in whole or in part.
ARTICLE 28. Termination
Each Attachment shall terminate upon the expiration date of the Attachment unless extended by written
amendment in accordance with the Amendments Article. Prior to completion of the contract term, all or a part
of this contract may be terminated with or without cause as set out below.
A. Termination without cause.
(1) Either party may terminate this contract with at least ninety (90) days prior written notice to
the other party.
(2) The parties may terminate this contract by mutual agreement.
(3) Either party may terminate this contract with at least thirty (30) days prior written notice to the
other party in the event state and/or federal funding for this contract is terminated, limited,
suspended, or withdrawn.
(4) RECEIVING AGENCY may terminate this contract when, in the sole determination of
RECEIVING AGENCY, termination is in the best interest of the State of Texas.
B. Termination for cause.
(1) Either party may terminate for material breach of contract with at least thirty (30) days written
notice to the other party.
(2) RECEIVING AGENCY 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)
days written notice to PERFORMING AGENCY. Such conduct may include one or more of
the following:
(Fee for -Service) GENERAL PROVISIONS Page 19 11/2001
(a) A court of competent jurisdiction finds that PERFORMING AGENCY has failed to
adhere to any laws, ordinances, rules, regulations or orders of any public authority
having jurisdiction;
(b) PERFORMING AGENCY fails to communicate with RECEIVING AGENCY or fails
to allow its employees or those of its subrecipients to communicate with RECEIVING
AGENCY as necessary to the performance of the contract;
(c) PERFORMING AGENCY breaches a standard of confidentiality with respect to the
services provided under this contract;
(d) RECEIVING AGENCY determines that PERFORMING AGENCY is without the
personnel or resources to perform under the contract;
(e) RECEIVING AGENCY determines that PERFORMING AGENCY, its agent or
another representative offered or gave a gratuity (e.g., an entertainment or gift) to an
official or employee of RECEIVING AGENCY for the purpose of obtaining a contract
or favorable treatment;
(f) PERFORMING AGENCY'S management system does not meet the UGMS
management standards; or
(g) PERFORMING AGENCY appears to be financially unstable. Indicators of financial
instability may include one or more of the following:
(i) PERFORMING AGENCY fails to make payments;
(ii) PERFORMING AGENCY makes an assignment for the benefit of its creditors;
(iii) PERFORMING AGENCY admits in writing its inability to pay its debts
generally as they become due;
(iv) 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
PERFORMING AGENCY, and PERFORMING AGENCY 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) days from the date of
entry thereof, and within the thirty (30) day period or a longer period during
which execution of the judgment shall have been stayed, appeal therefrom and
cause the execution thereof to be stayed during such appeal while providing such
reserves therefore as may be required under generally accepted accounting
principles;
(v) A 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 PERFORMING
AGENCY, and such writ or warrant of attachment or any similar process is not
released or bonded within thirty (30) days after its entry;
(vi) PERFORMING AGENCY is adjudicated bankrupt or insolvent;
(vii) PERFORMING AGENCY files a case under the Federal Bankruptcy Code or is
seeking 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;
(viii) Any property or portion of the property of PERFORMING AGENCY is
sequestered by court order and the order remains in effect for more than thirty
(3 0) days after PERFORMING AGENCY obtains knowledge thereof;
(ix) A petition is filed against PERFORMING AGENCY under any state
reorganization, arrangement, insolvency, readjushnent of debt, dissolution,
liquidation, or receivership law of any jurisdiction, whether now or hereafter in
effect, and such petition is not dismissed within thirty (30) days; or
(x) PERFORMING AGENCY consents to the appointment of a receiver, trustee, or
liquidator of PERFORMING AGENCY or of all or any part of its property.
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C. Emergency termination. In emergency circumstances, RECEIVING AGENCY may terminate the
contract immediately upon notice to PERFORMING AGENCY by any verifiable means.
"Emergency" is defined in the Sanctions Article.
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, RECEIVING AGENCY and PERFORMING
AGENCY will attempt to resolve any issues related to the anticipated termination in good faith during the notice
period. Upon termination of all or part of this contract, RECEIVING AGENCY and PERFORMING AGENCY
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. Termination
does not, however, constitute a waiver of any remedies for breach of this contract.. In addition, the obligations
of PERFORMING AGENCY to retain records and maintain confidentiality of information shall survive this
contract.
ARTICLE 29. Void Contract
RECEIVING AGENCY may hold a contract void upon determination that the contract award was obtained
fraudulently or was otherwise illegal or invalid from its inception.
ARTICLE 30. Severability
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.
ARTICLE 31. Survival 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 by their nature would be intended to be applicable following any
such termination or expiration.
ARTICLE 32. Construction of Ambiguities
The parties expressly agree that they have each independently read and understood this contract. Any
ambiguities in this contract shall not be construed against the drafters.
ARTICLE 33. No Waiver of Sovereign Immunity
THE PARTIES EXPRESSLY AGREE THAT NO PROVISION OF TIHS CONTRACT IS IN ANY
WAY INTENDED TO CONSTITUTE A WAIVER BY RECEIVING AGENCY OR THE STATE OF
TEXAS OF ANY IMMUNITIES FROM SUIT OR FROM LIABILITY THAT RECEIVING AGENCY
OR THE STATE OF TEXAS MAY HAVE BY OPERATION OF LAW.
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DOCUMENT NO. 7560005906A-2003
ATTACHMENT NO. 01
PERFORMING AGENCY: LUBBOCK CITY HEALTH DEPARTMENT
RECEIVING AGENCY PROGRAM: MILK AND DAIRY PRODUCTS DIVISION
TERM: September 01, 2002 THRU: August 31, 2003
SECTION I. SCOPE OF WORK:
PERFORMING AGENCY shall provide analyses of milk samples. Analyses shall meet
laboratory proficiency standards as set by the National Conference of Interstate Milk Shipments
and the 1999 U.S. Public Health Service Grade "A" Pasteurized Milk Ordinance, 25 TAC
Chapter 217. PERFORMING AGENCY shall:
1. PERFORMING AGENCY shall only perform the tests requested by RECEIVING
AGENCY for each sample and mail results to RECEIVING AGENCY within 48 hours
from the date of sample submission to PERFORMING AGENCY laboratory.
RECEIVING AGENCY will provide mailers.
2. Send original copy of laboratory results forms to RECEIVING AGENCY, Milk and
Dairy Products Division, 1100 West 49th Street, Austin, Texas 78756 to be microfilmed
and returned to PERFORMING AGENCY.
3. Submit monthly vouchers, which include total number and type of tests performed to
RECEIVING AGENCY, Milk and Dairy Products Division.
PERFORMING AGENCY shall comply with Chapter 435, Health and Safety Code, Dairy
Products.
PERFORMING AGENCY shall provide an estimated 2,124 analyses of milk samples in the
service area defined as: Lubbock.
SECTION II. SPECIAL PROVISIONS:
None.
SECTION III. BUDGET:
Laboratory analyses shall be performed at a rate per test not to exceed the following schedule:
ATTACHMENT — Page 1
Standard Plate Count
Direct Microscopic Somatic Cell Count
Electronic Somatic Cell Count
Added Water
Antibiotics Inhibitor (Disk Assay)
Antibiotics Confirmation Raid Test
AFlatoxin
Phosphatase
Coliform
Water Supply
Cooling Water
SPC
$ 6.00
DMSCC
$ 8.00
ESCC
$ 8.00
Cryoscope
$ 2.00
Disc
$ 4.50
Charm I, II, SNAP, etc.
$24.00
AFlatoxin
$12.50
Fluorophos
$ 7.50
Coli
$ 5.50
Water
$15.00
Glycol -Sweet Water
$15.00
ATTACHMENT — Page 2