HomeMy WebLinkAboutResolution - 2023-R0347 - Amendment #5 DHSH Contract No. HHS000109800001 - 07/11/2023Resolution 2023-R0347
Item No. 5.14
July 11, 2023
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, Amendment No. 5 to Contract No.
HHS000109800001, the Immunization/Locals Grant Program Contract, by and between the
City of Lubbock and the State of Texas' Department of State Health Services, and all related
documents. Said Amendment is attached hereto and incorporated in this resolution as if fully
set forth herein and shall be included in the minutes of the City Council.
Passed by the City Council on July 11, 2023
TRA E, YOR
A TEST:
C rtney Paz, City Sec ta
APPROVED AS TO CONTLNT:
,1 l, �
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Bill Howerton, Deputy City Manager
APPROVED AS TO PORM:
Rachael Foster, ssi ant City Attorney W
RES.Amend No. 5 Contract No. H} IS000109800001 DSHS
6.13.23
The Honorable Tray Payne, Mayor
City of Lubbock
PO Box 2000
Lubbock, Texas 79408
Subject: IMM/LOCALS
Contract Number: HHS000109800001, Amendment No. 5
Contract Amount: $1,274,373.00
Contract Term: September 1, 2018 through August 31, 2023
Dear Mayor Payne:
Enclosed is Amendment No. 5 to the IMM/LOCALS contract between the Department of State
Health Services and City of Lubbock.
The purpose of this contract is to implement and operate an immunization program for
children, adolescents, and adults, with special emphasis on accelerating interventions to
improve the immunization coverage of children three (3) years of age or younger (birth to 35
months of age).
This amendment is to update verbiage in the Statement of Work.
Please let me know if you have any questions or need additional information.
Sincerely,
Shelva Mays, CTCM
Contract Manager
Shelva.Mays@dshs.texas.gov
P.O. Box 149347 • Austin, Texas 78714-9347 • Phone: 888-963-7111 • TTY: 800-735-2989 • dshs.texas.gov
D EPARTMENT OF S TATE H EALTH S ERVICES
C ONTRACT N O. HHS000109800001
A MENDMENT N O. 5
The D EPARTMENT OF S TATE H EALTH S ERVICES (DSHS or System Agency) and C ITY OF
L UBBOCK (Grantee), Parties to that certain Immunization/Locals Grant Program Contract, effective
September 1, 2018, and denominated DSHS Contract No. HHS000109800001 (the Contract), as
amended, now want to further amend the Contract.
W HEREAS, DSHS wants to revise A TTACHMENT A-2, FY 2023 S TATEMENT OF W ORK.
N OW, T HEREFORE, the Parties agree as follows:
1.A TTACHMENT A-2,FY 2023 S TATEMENT OF W ORK, is deleted in its entirety and replaced
with A TTACHMENT A-3, FY 2023 S TATEMENT OF W ORK.
2. A TTACHMENT C of the C ONTRACT, U NIFORM T ERMS AND C ONDITIONS, is hereby
deleted in its entirety and replaced with A TTACHMENT C-1, U NIFORM T ERMS AND
C ONDITIONS.
3. A TTACHMENT G of the C ONTRACT, D ATA U SE A GREEMENT, is hereby deleted in its
entirety and replaced with A TTACHMENT G-1, D ATA U SE A GREEMENT.
4. A TTACHMENT H-3, I MMUNIZATION/L OCALS P ROGRAM G UIDANCE D OCUMENT, is
hereby deleted in its entirety.
5. This Amendment No. 5 shall be effective as the date last signed below.
6. Except as modified by this Amendment No. 5, all terms and conditions of the Contract, as
amended, shall remain in full force and effect.
7.The Parties signing below are duly authorized to execute this amendment.
8. Any further revisions to the Contract shall be by written agreement of the Parties.
9. The following attachments are fully incorporated in this Amendment and the Contract as if
set forth herein fully:
A TTACHMENT A-3 – FY 2023 S TATEMENT OF W ORK
A TTACHMENT C-1 – U NIFORM T ERMS AND C ONDITIONS
A TTACHMENT G-1 – D ATA U SE A GREEMENT
S IGNATURE P AGE F OLLOWS
DSHS Contract No. HHS000109800001
Page 1 of 6
Amendment 5
S IGNATURE P AGE FOR A MENDMENT N O. 5
DSHS C ONTRACT N O. HHS000109800001
C ITY OF L UBBOCK
D EPARTMENT OF S TATE H EALTH
S ERVICES
By: By:
Kvmz!29-!3134
Kvmz!24-!3134
Date ofSignature: Date of Signature
A TTACHMENTS F OLLOW
DSHS Contract No. HHS000109800001
Page 2 of 6
Amendment 5
ATTACHMENT A-3
FY 2023 STATEMENT OF WORK
I. GRANTEE RESPONSIBILITIES
Grantee will:
A. Implement and operate an immunization program for children, adolescents, and adults,
with special emphasis on accelerating interventions to improve the immunization
coverage of children three (3) years of age or younger (birth to 35 months of age).
Grantee shall incorporate traditional and non-traditional systematic approaches
designed to eliminate barriers, expand immunization capacity, and establish uniform
operating policies, as described herein.
B. Be enrolled as a provider in the Texas Vaccines for Children (TVFC) and the Adult
Safety Net (ASN) Programs by the effective date of this Contract. This includes a
signed Deputization Addendum Form(EF11-13999).
C. Comply with writtenpolicies andprocedures provided by DSHS in managing vaccines
supplied through the ASN and TVFC Programs, including guidelines for proper
storage, handling, and safeguarding of vaccines in the event of natural disaster.
D. Adhere to DSHS Immunization updated guidance according to the FY2023 Contractors
Guide, located at:
https://www.dshs.texas.gov/immunize/Responsible-Entities/Contract-Management/.
E. Adhere to Health and Safety Code Section 1001.089, and any information obtained
must be used for the provision of essential public health functions and adhere to the
Data Use Agreement.
F. Maintain staffing levels to meet required activities of the Contract and ensure staff
funded by this Contract attend required training.
G. Report all notifiable conditions as specified in Texas Administrative Code (TAC) Title
25, Part I §§ 97.1-97.6, as amended, and as otherwise required by law.
H. Report all vaccine adverse event occurrences in accordance with the 1986 National
Childhood Vaccine Injury Act (NCVIA) 42 U.S.C. § 300aa-25 (located at
http://vaers.hhs.gov/ or 1-800-822-7967), as amended.
I. Sustain a network of TVFC/ASN providers to administer vaccines to program-eligible
populations by conducting the followingactivities:
1. Ensuring New Provider Checklist is completed;
2. Conducting quality assurance reviews;
3. Ensuring annual influenza pre-book survey is completed;
4. Conducting compliance site visits;
DSHS Contract No. HHS000109800001
Page 3 of 6
Amendment 5
5. Conducting unannounced storage and handling visits;and
6. Ensuring providers adhere to the vaccine borrowing procedure.
J. Participate in audits and assessments through the following activities:
1. Completing and submitting through Child Health Reporting System (CHRS)all
audits and assessments conducted on childcare facilities and Head Start
Centers;
2. Completing audits, assessments and retrospective surveys of public and private
schools;
3. Reviewing monthly reports to ensure data quality;
4. Reviewing the monthly Provider ActivityReports;
5. Reviewing the quarterly Consent Accepted Rate Evaluations; and
6. Conducting quality improvement assessments of Texas Immunization Registry
organizations.
K. Provide education and outreach activities regarding vaccines and vaccine-preventable
diseases, Texas Immunization Registry, and TVFC and ASN Programs to the
following:
1. American Indian Tribes;
2. Schools and childcare facilities;
3. Healthcare workers; and
4. Community and general public.
L. Not deny vaccinations to recipients because they do not reside within Grantee's
jurisdiction or because of an inability to pay an administration fee.
M. Be responsible for identification and case management of all hepatitis B surface antigen
(HBsAg)-positive pregnant women. Grantee shall ensure timely newborn post-
exposure prophylaxis (PEP) with hepatitis B vaccine and hepatitis B immune globulin
(HBIG), timely completion of doses two and three of hepatitis B vaccine, and timely
completion of post-vaccination serologic testing (PVST).
N. Be responsible for assessing and/or auditing coverage rates and/or compliance with
vaccine requirements at assigned schools and childcare facilities inaccordance withthe
Population Assessment Manual, which is distributed annually from DSHS.
O. Transfer (which may includeshipping) overstocked vaccinesand vaccines approaching
expiration to alternate providers for immediate use when instructed to do so by the
DSHS Public Health Region (PHR) Immunization Program Manager to avoid vaccine
waste. Grantee is responsible for covering the cost to ship overstocked vaccines and
vaccines approaching expiration.
P. Receive written approval from DSHS before varying from applicable policies,
procedures, protocols, and/or work plans, and must update and disseminate its
implementation documentation to its staff involved in activities under this Contract
within forty-eight (48) hours of making approvedchanges.
DSHS Contract No. HHS000109800001
Page 4 of 6
Amendment 5
Q. Review monthly Contract funding expenditures and salary savings from any Contract-
paid staff vacancies and revise spending plan to ensure that all funds will be properly
expended under this Contract before the end of the Contract term.
R. Submit out-of-state travel requests to the Immunization Section for approval when
utilizing Contract funds or program income.
S. Report the number of doses administered to underinsured children monthly, as directed
by DSHS.
T. Report the number of unduplicated underinsured clients served, as directed by DSHS.
U. Complete and submit Immunization Inter-Local Agreement (ILA) Quarterly Report
form, utilizing the format provided by the DSHS Immunization Section and available
at https://dshs.texas.gov/immunize/lhd.shtm by the reportdue date. Ifthe due date falls
on a weekend or state approved holiday, the report is due the next business day.
Report Type Reporting PeriodReport Due Date
Programmatic09/1/2022 to 11/30/202212/31/2022
Programmatic12/1/2022 to 02/28/202303/31/2023
Programmatic03/1/2023 to 05/31/202306/30/2023
Programmatic06/1/2023 to 08/31/202309/30/2023
Submit quarterly reports electronically through an online tool according to the
timeframes stated above. DSHS Immunization Section will provide instructions at the
beginning of each state fiscal year through CMS. Supplemental report documents
(PEAR and AFIX reports, vacancy letters, etc.) should be sent to
dshsimmunizationcontracts@dshs.texas.gov.
II. PERFORMANCE MEASURES
A. The System Agencywill monitorthe Grantee’s performance of the requirements in this
Attachment A-3 and compliance with the Contract’s terms andconditions.
III. INVOICE AND PAYMENT
A. Grantee shall request monthly payments using the State of Texas Purchase Voucher
(Form B-13) athttp://www.dshs.texas.gov/grants/forms.shtm and submitting
acceptable supporting documentation for reimbursement of the required
services/deliverables. Vouchers and supporting documentation shall be submitted to
System Agency no later than thirty (30) days after the last day of each month.
Documentation shall be submitted in a format approved by DSHS Immunization
Section.
At a minimum voucher should include:
DSHS Contract No. HHS000109800001
Page 5 of 6
Amendment 5
1. Grantee name, address, email address, vendor identification number, and telephone
number;
2. DSHS Contract or Purchase Order number;
3. Dates services were completed and/or products were delivered;
4. The total invoice amount; and
5. DSHS supporting documentation.
B. Voucher and supporting documentation shall be mailed or submitted by fax or
electronic mail to DSHS Claims Processing Unit at the address/number below, and to
the Immunization Section at DSHSImmunizationContracts@dshs.texas.gov.
Department of State Health Services
Claims Processing Unit, MC 1940
th
1100 West 49Street
P.O. Box 149347
Austin, TX 78714-9347
FAX: (512) 458-7442
EMAIL: invoices@dshs.texas.gov and CMSinvoices@dshs.texas.gov
Grantee will be paid on a cost reimbursement basis and in accordance with the Budget
in Attachment B-4, FY 2023 Budget of this Contract.
DSHS Contract No. HHS000109800001
Page 6 of 6
Amendment 5
Health and Human Services (HHS)
Uniform Terms and Conditions - Grant
Version 3.2
Published and Effective – July 2022
Responsible Office: Chief Counsel
ABOUT THIS DOCUMENT
In this document, Grantees (also referred to in this document as subrecipients or contractors) will find
requirements and conditions applicable to grant funds administered and passed-through by both the Texas Health
and Human Services Commission (HHSC) and the Department of State Health Services (DSHS). These
requirements and conditions are incorporated into the Grant Agreement through acceptance by Grantee of any
funding award by HHSC or DSHS.
The terms and conditions in this document are in addition to all requirements listed in the RFA, if any, under
which applications for this grant award are accepted, as well as all applicable federal and state laws and
regulations. Applicable federal and state laws and regulations may include, but are not limited to: 2 CFR Part 200,
Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards;
requirements of the entity that awarded the funds to HHS; Chapter 783 of the Texas Government Code; Texas
Comptroller of Public Accounts’ agency rules (including Uniform Grant and Contract Standards set forth in Title
34, Part 1, Chapter 20, Subchapter E, Division 4 of the Texas Administrative Code); the Texas Grant
Management Standards (TxGMS) developed by the Texas Comptroller of Public Accounts; and the Funding
Announcement, Solicitation, or other instrument/documentation under which HHS was awarded funds. HHS, in
its sole discretion, reserves the right to add requirements, terms, or conditions.
HHS Uniform Terms and Conditions –Grant v 3.2
Effective July 2022
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS ........................... 6
1.1 D EFINITIONS ..................................................................................................................................... 6
1.2 I NTERPRETIVE P ROVISIONS ....................................................................................................... 7
ARTICLE II. PAYMENT PROVISIONS ......................................................................... 8
2.1P ROMPT P AYMENT ........................................................................................................................ 8
2.2 T AXES .................................................................................................................................................. 8
2.3A NCILLARY AND T RAVEL E XPENSES.....................................................................................9
2.4 B ILLING .............................................................................................................................................. 9
2.5 U SE OF F UNDS .................................................................................................................................. 9
2.6 U SE FOR M ATCH P ROHIBITED .................................................................................................. 9
2.7 P ROGRAM I NCOME ........................................................................................................................ 9
2.8 N ONSUPPLANTING .......................................................................................................................... 9
2.9 I NDIRECT C OST R ATES ............................................................................................................. 10
ARTICLE III. STATE AND FEDERAL FUNDING ..................................................... 10
3.1 E XCESS O BLIGATIONS P ROHIBITED .................................................................................... 10
3.2 N O D EBT A GAINST THE S TATE .............................................................................................. 10
3.3 D EBTS AND D ELINQUENCIES .................................................................................................. 10
3.4 R EFUNDS AND O VERPAYMENTS ............................................................................................ 10
ARTICLE IV. ALLOWABLE COSTS AND AUDIT REQUIREMENTS .................. 11
4.1 A LLOWABLE C OSTS ................................................................................................................... 11
4.2 A UDITS AND F INANCIAL S TATEMENTS ............................................................................... 11
4.3 S UBMISSION OF A UDITS AND F INANCIAL S TATEMENTS .............................................. 12
ARTICLE V. WARRANTY, AFFIRMATIONS, ASSURANCES AND
CERTIFICATIONS ........................................................................................................... 12
5.1 W ARRANTY .................................................................................................................................... 12
5.2 G ENERAL A FFIRMATIONS ........................................................................................................ 13
5.3 F EDERAL A SSURANCES ............................................................................................................. 13
5.4 F EDERAL C ERTIFICATIONS ..................................................................................................... 13
5.5 S TATE A SSURANCES ................................................................................................................... 13
HHS Uniform Terms and Conditions –Grant v 3.2
Effective July 2022
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ARTICLE VI.INTELLECTUAL PROPERTY ............................................................. 13
WNERSHIP OF W ORK P RODUCT ......................................................................................... 13
6.1 O
6.2 G RANTEE’S P RE-E XISTING W ORKS .................................................................................... 14
HIRD P ARTY IP ................................................................................................. 14
6.3 T
6.4 A GREEMENTS WITH E MPLOYEES AND S UBCONTRACTORS ........................................ 14
6.5 D ELIVERY UPON T ERMINATION OR E XPIRATION .......................................................... 15
6.6 S URVIVAL ....................................................................................................................................... 15
6.7 S YSTEM A GENCY D ATA ............................................................................................................ 15
ARTICLE VII. PROPERTY ............................................................................................ 15
7.1 U SE OF S TATE P ROPERTY ........................................................................................................ 15
AMAGE TO S TATE P ROPERTY ............................................................................................. 16
7.2 D
7.3 P ROPERTY R IGHTS UPON T ERMINATION OR E XPIRATION OF C ONTRACT ......... 16
7.4 E QUIPMENT AND P ROPERTY ................................................................................................... 16
ARTICLE VIII. RECORD RETENTION, AUDIT,AND CONFIDENTIALITY ..... 17
8.1 R ECORD M AINTENANCE AND R ETENTION ....................................................................... 17
8.2 A GENCY’S R IGHT TO A UDIT ................................................................................................... 17
8.3 R ESPONSE/C OMPLIANCE WITH A UDIT OR I NSPECTION F INDINGS ......................... 18
8.4 S TATE A UDITOR’S R IGHT TO A UDIT ................................................................................... 18
8.5 C ONFIDENTIALITY ...................................................................................................................... 18
ARTICLE IX. GRANT REMEDIES, TERMINATION AND PROHIBITED
ACTIVITIES ...................................................................................................................... 19
9.1 R EMEDIES ....................................................................................................................................... 19
9.2 T ERMINATION FOR C ONVENIENCE ...................................................................................... 19
9.3 T ERMINATION FOR C AUSE ...................................................................................................... 19
9.4 G RANTEE R ESPONSIBILITY FOR S YSTEM A GENCY’S T ERMINATION C OSTS ..... 20
9.5 I NHERENTLY R ELIGIOUS A CTIVITIES ................................................................................ 20
9.6 P OLITICAL A CTIVITIES ............................................................................................................. 20
ARTICLE X. INDEMNITY .............................................................................................. 21
10.1 G ENERAL I NDEMNITY ............................................................................................................... 21
10.2 I NTELLECTUAL P ROPERTY ..................................................................................................... 21
10.3 A DDITIONAL I NDEMNITY P ROVISIONS ............................................................................... 22
ARTICLE XI. GENERAL PROVISIONS...................................................................... 22
11.1 A MENDMENTS ............................................................................................................................... 22
11.2 N O Q UANTITY G UARANTEES .................................................................................................. 22
HHS Uniform Terms and Conditions –Grant v 3.2
Effective July 2022
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11.3 C HILD A BUSE R EPORTING R EQUIREMENTS .................................................................... 22
ERTIFICATION OF M EETING OR E XCEEDING T OBACCO-F REE W ORKPLACE
11.4 C
P OLICY M INIMUM S TANDARDS ............................................................................................. 23
NSURANCE AND B ONDS ............................................................................................................ 23
11.5 I
11.6 L IMITATION ON A UTHORITY .................................................................................................. 23
HANGE IN L AWS AND C OMPLIANCE WITH L AWS ........................................................ 24
11.7 C
11.8 S UBCONTRACTORS ...................................................................................................................... 24
ERMITTING AND L ICENSURE ................................................................................................ 24
11.9 P
11.10 I NDEPENDENT C ONTRACTOR ................................................................................................. 24
OVERNING L AW AND V ENUE ............................................................................................... 25
11.11 G
11.12 S EVERABILITY .............................................................................................................................. 25
11.13 S URVIVABILITY ............................................................................................................................ 25
11.14 F ORCE M AJEURE ......................................................................................................................... 25
11.15 N O I MPLIED W AIVER OF P ROVISIONS ................................................................................ 26
11.16 F UNDING D ISCLAIMERS AND L ABELING ............................................................................ 26
11.17 M EDIA R ELEASES ........................................................................................................................ 26
11.18 P ROHIBITION ON N ON-C OMPETE R ESTRICTIONS ......................................................... 26
11.19 S OVEREIGN I MMUNITY ............................................................................................................. 26
11.20 E NTIRE C ONTRACT AND M ODIFICATION .......................................................................... 27
11.21 C OUNTERPARTS ........................................................................................................................... 27
11.22 P ROPER A UTHORITY .................................................................................................................. 27
11.23 E-V ERIFY P ROGRAM ................................................................................................................. 27
11.24 C IVIL R IGHTS ............................................................................................................................... 27
11.25 E NTERPRISE I NFORMATION M ANAGEMENT S TANDARDS .......................................... 28
11.26 D ISCLOSURE OF L ITIGATION .................................................................................................. 28
11.27 N O T HIRD P ARTY B ENEFICIARIES ....................................................................................... 29
11.28 B INDING E FFECT ......................................................................................................................... 29
HHS Uniform Terms and Conditions –Grant v 3.2
Effective July 2022
Page 5 of 29
ARTICLE I. DEFINITIONS AND INTERPRETIVE PROVISIONS
1.1 D EFINITIONS
As used in this Grant Agreement, unless a different definition is specified, or the context
clearly indicates otherwise, the following terms and conditions have the meanings assigned
below:
“Amendment” means a written agreement, signed by the Parties, which documents
changes to the Grant Agreement.
“Contract” or “Grant Agreement” means the agreement entered into by the Parties,
including the Signature Document, these Uniform Terms and Conditions, along with any
attachments and amendments that may be issued by the System Agency.
“Deliverables” means the goods, services, and work product, including all reports and
project documentation, required to be provided by Grantee to the System Agency.
“DSHS” means the Department of State Health Services.
“Effective Date” means the date on which the Grant Agreement takes effect.
“Federal Fiscal Year” means the period beginning October 1 and ending September 30
each year, which is the annual accounting period for the United States government.
“GAAP” means Generally Accepted Accounting Principles.
“GASB” means the Governmental Accounting Standards Board.
“Grantee” means the Party receiving funds under this Grant Agreement. May also be
referred to as “subrecipient” or "contractor" in this document.
“HHSC” means the Texas Health and Human Services Commission.
“Health and Human Services” or “HHS” includes HHSC and DSHS.
“Intellectual Property Rights” means the worldwide proprietary rights or interests,
including patent, copyright, trade secret, and trademark rights, as such right may be
evidenced by or embodied in:
i. any idea, design, concept, personality right, method, process, technique,
apparatus, invention, discovery, orimprovement;
ii. any work of authorship, including any compilation, computer code, website or
web page design, literary work, pictorial work, or graphic work;
iii. any trademark, service mark, trade dress, trade name, branding, or other indicia
of source or origin;
iv. domain name registrations; and
v.any other proprietary or similar rights. The Intellectual Property Rights of aParty
include all worldwide proprietary rights or interests that the Party may have
acquiredbyassignment,byexclusivelicense,orbylicensewiththerighttogrant
sublicenses.
“Parties” means the System Agency and Grantee, collectively.
“Party” means either the System Agency or Grantee, individually.
HHS Uniform Terms and Conditions – Grant v. 3.2
Effective July 2022
Page 6 of 29
“Project” means specific activities oftheGrantee that are supported by funds provided
under this Grant Agreement.
“Signature Document” means the document executed by all Parties for this Grant
Agreement.
“Solicitation,” “Funding Announcement” or “Request for Applications (RFA)” means
the document (including all exhibits, attachments, and published addenda), issued by the
System Agency under which applications for grant funds were requested, which is
incorporated by reference in the Grant Agreement for all purposes in its entirety.
“Solicitation Response” or “Application” means Grantee’s full and complete Solicitation
response (including any attachments and addenda), which is incorporated by reference in
the Grant Agreement for all purposes in its entirety.
“State Fiscal Year” means the period beginning September 1 and ending August 31 each
year, which is the annual accounting period for the State of Texas.
“State of Texas Textravel” means the Texas Comptroller of Public Accounts’ state travel
rules, policies, and guidelines.
“Statement of Work” means thedescription of activities Grantee must perform to complete
the Project, as specified in the Grant Agreement and as may be amended.
“System Agency” means HHSC or DSHS, as applicable.
“Work Product” means any and all works, including work papers, notes, materials,
approaches, designs, specifications, systems, innovations, improvements, inventions,
software, programs, source code, documentation, training materials, audio or audiovisual
recordings, methodologies, concepts, studies, reports, whether finished or unfinished,
and whether or not included in the deliverables, that are developed, produced, generated
or provided by Grantee in connection with Grantee’s performance of its duties under the
Grant Agreement or through use of any funding provided under this Grant Agreement.
“Texas Grant Management Standards” or “TxGMS” means uniform grant and contract
administration procedures, developed under the authority of Chapter 783 of the
Texas Government Code, to promote the efficient use of public funds in local
government and in programs requiring cooperation among local, state, and federal
agencies. Under this Grant Agreement, TxGMS applies to Grantee except as otherwise
provided by applicable law or directed by System Agency. Additionally, except as
otherwise provided by applicable law, in the event of a conflict between TxGMS and
applicable federal or state law, federal law prevails over state law and state lawprevails
overTxGMS.
1.2 I NTERPRETIVE P ROVISIONS
A. The meanings of defined terms include the singular and plural forms.
B.The words “hereof,” “herein,” “hereunder,” and similar words refer to this Grant
Agreement as a whole and not to any particular provision, section, attachment, or
schedule of this Grant Agreement unless otherwisespecified.
C.The term “including” is not limiting and means “including without limitation” and,
unless otherwise expressly provided in this Grant Agreement, (i) references to contracts
HHS Uniform Terms and Conditions – Grant v. 3.2
Effective July 2022
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(including this Grant Agreement) and other contractual instruments shall be deemed to
include all subsequent Amendments and other modifications, but only to the extent that
such Amendments and other modifications are not prohibited by the terms of this Grant
Agreement, and (ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending, replacing,
supplementing, or interpreting the statute or regulation.
D. Any references to agreements, contracts, statutes, or administrative rules or regulations
in the Grant Agreement are references to these documents as amended, modified, or
supplemented during the term of the Grant Agreement.
E.The captions and headings of this Grant Agreement are for convenience of reference
only and do not affect the interpretation of this GrantAgreement.
F. All attachments, including those incorporated by reference, and any Amendments are
considered part of the terms of this Grant Agreement.
G. This Grant Agreement may use several different limitations, regulations, or policies to
regulate the same or similar matters. All such limitations, regulations, and policies are
cumulative.
H. Unless otherwise expressly provided, reference to any action of the System Agency or
by the System Agency by way of consent, approval, or waiver will be deemed modified
by the phrase “in its sole discretion.”
I. Time is of the essence in this Grant Agreement.
J.Prior to execution of the Grant Agreement, Grantee must notify System Agency’s
designated contact in writing of any ambiguity, conflict, discrepancy, omission, or other
error. If Grantee fails to notify the System Agency designated contact of any ambiguity,
conflict, discrepancy, omission or other error in the Grant Agreement prior to Grantee’s
execution of the Grant Agreement, Grantee:
i. Shall have waived any claim of error or ambiguity in the Grant Agreement; and
ii. Shall not contest the interpretation by the System Agency of such provision(s).
No grantee will be entitled to additional reimbursement, relief, or time by reason of any
ambiguity, conflict, discrepancy, exclusionary specification, omission, or other error or
its later correction.
ARTICLE II. PAYMENT PROVISIONS
2.1 P ROMPT P AYMENT
Payment shall be made in accordance with Chapter 2251 of the Texas Government Code,
commonly known as the Texas Prompt Payment Act. Chapter 2251 of the Texas
Government Code shall govern remittance of payment and remedies for late payment and
non-payment.
2.2 T AXES
Grantee represents and warrants that it shall pay all taxes or similar amounts resulting from
the Grant Agreement, including, but not limited to, any federal, State, or local income, sales
or excise taxes of Grantee or its employees. System Agency shall not be liable for any taxes
resulting from the Grant Agreement.
HHS Uniform Terms and Conditions – Grant v. 3.2
Effective July 2022
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2.3 A NCILLARY AND T RAVEL E XPENSES
A. Except as otherwise provided in the Grant Agreement, no ancillary expenses incurred by
the Grantee in connection with its provision of the services or deliverables will be
reimbursed by the System Agency. Ancillary expenses include, but are not limited to,
costs associated with transportation, delivery, and insurance for each deliverable.
B.Except as otherwise provided in the Grant Agreement, when the reimbursement of travel
expenses is authorized by the Grant Agreement, all such expenses will be reimbursed in
accordance with the rates set by the Texas Comptroller’s Textravel guidelines, which can
currently be accessed at:https://fmx.cpa.texas.gov/fmx/travel/textravel/.
2.4 B ILLING
Unless otherwise provided in the Grant Agreement, Grantee shall bill the System Agency in
accordance with the Grant Agreement. Unless otherwise specified in the Grant Agreement,
Grantee shall submit requests for reimbursement or payment monthly by the lastbusiness
day of the month following the month in which expenses were incurred or services provided.
Grantee shall maintain all documentation that substantiates invoices and make the
documentation available to the System Agency upon request.
2.5 U SE OF F UNDS
Grantee shall expendfunds under this Grant Agreement only for approved servicesand for
reasonable and allowable expenses directly related to those services.
2.6 U SE FOR M ATCH P ROHIBITED
Grantee shall not use funds provided under this Grant Agreement for matching purposes in
securing other funding without the written approval of the System Agency.
2.7 P ROGRAM I NCOME
Program income refers to gross income directly generated by a supporting activity during
the period of performance. Unless otherwise required under the Grant Agreement, Grantee
shall use Program Income, as provided in TxGMS, to further the Project, and Grantee shall
spend the Program Income on the Project. Grantee shall identify and report Program Income
in accordance with the Grant Agreement, applicable law, and any programmatic guidance.
Grantee shall expend Program Income during the Grant Agreement term, when earned, and
may not carry Program Income forward to any succeeding term. Grantee shall refund
Program Income to the System Agency if the Program Income is not expended in the term in
which it is earned. The System Agency may base future funding levels, in part, upon
Grantee’s proficiency in identifying, billing, collecting, and reporting Program Income, and
in using Program Income for the purposes and under the conditions specified in this Grant
Agreement.
2.8N ONSUPPLANTING
Grant funds must be used to supplement existing, new or corresponding programming and
related activities. Grant funds may not be used to supplant (replace) existing funds that have
been appropriated, allocated, or disbursed for the same purpose. System Agency may
conduct Grant monitoring or audits may be conducted to review, among other things,
Grantee’s compliance with this provision.
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2.9 I NDIRECT C OST R ATES
The System Agency may acknowledge an indirect cost rate for Grantees that is utilized for
all applicable Grant Agreements. For subrecipients receiving federal funds, indirect cost
rates will be determined in accordance with applicable law including, but not limited to, 2
CFR 200.414(f). For recipients receiving state funds, indirect costs will be determined in
accordance with applicable law including, but not limited to, TxGMS. Grantees funded with
blended federal and state funding will be subject to both state and federal requirementswhen
determining indirect costs. In the event of a conflict between TxGMS and applicable federal
law or regulation, the provisions of federal law or regulation will apply. Grantee will provide
any necessary financial documents to determine the indirect cost rate in accordance with the
Uniform Grant Guidance (UGG) and TxGMS.
ARTICLE III. STATE AND FEDERAL FUNDING
3.1 E XCESS O BLIGATIONS P ROHIBITED
This Grant Agreement is subject to termination or cancellation, without penalty to System
Agency, either in whole or in part, subject to the availability and actual receipt by System
Agency of state or federal funds. System Agency is a state agency whose authority and
appropriations are subject to actions of the Texas Legislature. If System Agency becomes
subject to a legislative change, revocation of statutory authority, or lack of appropriated
funds that would render either System Agency’s or Grantee’s delivery or performance under
the Grant Agreement impossible or unnecessary, the Grant Agreement will be terminated or
cancelled and be deemed null and void. In the event of a termination or cancellation under
this Section, System Agency will not be liable to Grantee for any damages that are caused or
associated with such termination or cancellation, and System Agency will not be required to
give prior notice. Additionally, System Agency will not be liable to Grantee for any
remaining unpaid funds under this Grant Agreement at time of termination.
3.2N O D EBT A GAINST THE S TATE
This Grant Agreement will not be construed as creating any debt by or on behalf of the State
of Texas.
3.3D EBTS AND D ELINQUENCIES
Grantee agrees that any payments due under the Grant Agreement shall be directly applied
towards eliminating any debt or delinquency it has to the State of Texas including, but not
limited to, delinquent taxes, delinquent student loan payments, and delinquent child support
during the entirety of the Grant Agreement term.
3.4 R EFUNDS AND O VERPAYMENTS
A. At its sole discretion, the System Agency may (i) withhold all or part of any payments to
Grantee to offset overpayments, unallowable or ineligible costs made to the Grantee, or
if any required financial status report(s) is not submitted by the due date(s); or (ii) require
Grantee to promptlyrefund or credit - within thirty (30) calendar days of written notice –
to System Agency any funds erroneously paid by System Agency which are not expressly
authorized under the Grant Agreement.
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B.“Overpayments” as used in this Section include payments (i) made by the System
Agencythat exceed the maximum allowable rates; (ii) that are not allowed under applicable
laws, rules, or regulations; or (iii) that are otherwise inconsistent with this Grant
Agreement, including any unapproved expenditures. Grantee understands and agrees that
it shall be liable to the System Agency for any costs disallowed pursuant to financial and
compliance audit(s) of funds received under this Grant Agreement. Grantee further
understands and agrees that reimbursement of such disallowed costs shall be paid by
Grantee from funds which were not provided or otherwise made available to Grantee
under this Grant Agreement.
ARTICLE IV. ALLOWABLE COSTS AND AUDIT REQUIREMENTS
4.1 A LLOWABLE C OSTS
A. Allowable Costs are restricted to costs that are authorized under Texas Uniform Grant
Management Standards (TxGMS) and applicable state and federal rules and laws. This
Grant Agreement is subject to all applicable requirements of TxGMS, including the
criteria for Allowable Costs. Additional federal requirements apply if this Grant
Agreement is funded, in whole or in part, with federalfunds.
B.System Agency will reimburse Grantee for actual, allowable, and allocable costs incurred
by Grantee in performing the Project, provided the costs are sufficiently documented.
Grantee must have incurred a cost prior to claiming reimbursement and within the
applicable term to be eligible for reimbursement under this Grant Agreement. At its sole
discretion, the System Agency will determine whether costs submitted by Grantee are
allowable and eligible for reimbursement. The System Agency may take repayment
(recoup) from remaining funds available under this Grant Agreement in amounts
necessary to fulfill Grantee’s repayment obligations. Grantee and all payments received
by Grantee under this Grant Agreement are subject to applicable cost principles, audit
requirements, and administrative requirements including applicable provisions under 2
CFR 200, 48 CFR Part 31, and TxGMS.
C.OMB Circulars will be applied with the modifications prescribed by TxGMS with effect
given to whichever provision imposes the more stringent requirement in the event of a
conflict.
4.2 A UDITS AND F INANCIAL S TATEMENTS
A. Audits
i. Grantee understands and agrees that Grantee is subject to any and all applicable audit
requirements found in state or federal law or regulation or added by this Grant
Agreement
ii. HHS Single Audit Unit will notify Grantee to complete the Single Audit
Determination Form. If Grantee fails to complete the form within thirty (30) calendar
days after receipt of notice, Grantee maybe subject to sanctions and remediesfor
non-compliance.
iii. If Grantee, within Grantee’s fiscal year, expends at least SEVEN HUNDRED FIFTY
THOUSAND DOLLARS ($750,000) in federal funds awarded, Grantee shall have a
single audit or program-specific audit in accordance with 2 CFR 200. The federal
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threshold amount includes federal funds passed through by way of state agency
awards.
iv. If Grantee, within Grantee’s fiscal year, expends at least SEVEN HUNDREDFIFTY
THOUSAND DOLLARS ($750,000) in state funds awarded, Grantee shall have a
single audit or program-specific audit in accordance with TxGMS. The audit must be
conducted by an independent certified public accountant and in accordance with 2
CFR 200, Government Auditing Standards, and TxGMS.
v. For-profit Grantees whose expenditures meet or exceed the federal or state
expenditure thresholds stated above shall follow the guidelines in 2 CFR 200 or
TxGMS, as applicable, for their program-specific audits.
vi. Each Grantee required to obtain a single audit must competitively re-procure single
audit services once every six years. Grantee shall procure audit services in
compliance with this section, state procurement procedures, as well as with
applicable provisions of 2 CFR 200 and TxGMS.
B. Financial Statements.
Each Grantee that does not meet the expenditure threshold for a single audit or program-
specific audit, must provide financial statements for the audit period.
4.3 S UBMISSION OF A UDITS AND F INANCIAL S TATEMENTS
A. Audits.
Due the earlier of 30 days after receipt of the independent certified public accountant's
report or nine months after the end of the fiscal year, Grantee shall submit one electronic
copy of the single audit or program-specific audit to the System Agency via:
i. HHS portal at https://hhsportal.hhs.state.tx.us/heartwebextr/hhscSau or,
ii. Email to:single_audit_report@hhsc.state.tx.us.
B. Financial Statements.
Due no later than nine months after the Grantee’s fiscal year-end, Grantees not required
to submit an audit, shall submit one electronic copy of their financial statements via:
i. HHS portal at https://hhsportal.hhs.state.tx.us/heartwebextr/hhscSau; or,
ii. Email to:single_audit_report@hhsc.state.tx.us.
ARTICLE V. WARRANTY, AFFIRMATIONS, ASSURANCES AND
CERTIFICATIONS
5.1 W ARRANTY
Grantee warrants that all work under this Grant Agreement shall be completed in a manner
consistent with standards under the terms of this Grant Agreement, in the applicable trade,
profession, or industry; shall conform to or exceed the specifications set forth in the Grant
Agreement; and all deliverables shall be fit for ordinary use, of good quality, and with no
material defects. If System Agency, in its sole discretion, determines Grantee has failed to
complete work timely or to perform satisfactorily under conditions required by this Grant
Agreement, the System Agency may require Grantee, at its sole expense, to:
i.Repair or replace all defective or damagedwork;
ii. Refund any payment Grantee received from System Agency for all defective or
damaged work and, in conjunction therewith, require Grantee to accept the returnof
such work; and,
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iii. Take necessary action to ensure that Grantee’s future performance and work conform
to the Grant Agreement requirements.
5.2G ENERAL A FFIRMATIONS
Grantee certifies that, to the extent affirmations are incorporated into the Grant Agreement,
the Grantee has reviewed the affirmations and that Grantee is in compliance with all
requirements.
5.3 F EDERAL A SSURANCES
Grantee further certifies that, to the extent federal assurances are incorporated into the Grant
Agreement, the Grantee has reviewed the federal assurances and that Grantee is in
compliance with all requirements.
5.4 F EDERAL C ERTIFICATIONS
Grantee further certifies that, to the extent federal certifications are incorporated into the
Grant Agreement, the Grantee has reviewed the federal certifications and that Grantee is in
compliance with all requirements. In addition, Grantee certifies that it is in compliance with
all applicable federal laws, rules, and regulations, as they may pertain to this Grant Agreement.
5.5 S TATE A SSURANCES
Except to the extent of any conflict under applicable law or requirements or guidelines of
any federal awarding agency from which funding for this Grant Agreement originated, the
Grantee must comply with the applicable state assurances included within the TxGMS
which are incorporated here by reference.
ARTICLE VI. INTELLECTUAL PROPERTY
6.1 O WNERSHIP OF W ORK P RODUCT
A. All right, title, and interest in the Work Product, including all Intellectual Property
Rights therein, is exclusively owned by System Agency. Grantee and Grantee’s
employees will have no rightsin or ownershipof the WorkProductorany otherproperty
of System Agency.
B.Any and all Work Product that is copyrightable under United States copyright law is
deemed to be “work made for hire” owned by System Agency, as provided by Title 17
of the United States Code. To the extent that Work Product does not qualify as a “work
made for hire” under applicable federal law, Grantee hereby irrevocably assigns and
transfers to System Agency, its successors and assigns, the entire right, title, and interest
in and to the Work Product, including any and all Intellectual Property Rights
embodied therein or associated therewith, and in and to all works based upon, derived
from, or incorporating the Work Product, and in and to all income, royalties, damages,
claims and payments now or hereafter due or payable with respect thereto, and in and to
all causes of action, either in law or in equity for past, present or future infringement
based on the copyrights, andinand to all rights corresponding to the foregoing.
C.Grantee agrees to execute all papers and to perform such other acts as System Agency
may deem necessary to secure for System Agency or its designee the rights herein
assigned.
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D. In the event that Grantee has any rights in and to the Work Product that cannot be
assigned to System Agency, Grantee hereby grants to System Agency an exclusive,
worldwide, royalty-free, transferable, irrevocable, and perpetual license, with the right to
sublicense, to reproduce, distribute, modify, create derivative works of, publicly perform
and publicly display, make, have made, use, sell and offer for sale the Work Product and
any products developed by practicing such rights.
E.The foregoing does not apply to Incorporated Pre-existing Works or Third Party IP that
are incorporated in the Work Product by Grantee. Grantee shall provide System Agency
access during normal business hours to all Grantee materials, premises, and computer
files containing the Work Product.
6.2 G RANTEE’S P RE-E XISTING W ORKS
A. To the extent that Grantee incorporates into the Work Product any works of Grantee that
were created by Grantee or that Grantee acquired rights in prior to the Effective Date of
this Grant Agreement (“Incorporated Pre-existing Works”), Grantee retains ownership
of such Incorporated Pre-existingWorks.
B.Grantee hereby grants to System Agency an irrevocable, perpetual, non-exclusive,
royalty-free, transferable, worldwide right and license, with the right to sublicense, to
use, reproduce, modify, copy, create derivative works of, publish, publicly perform and
display, sell, offer to sell, make and have made, the Incorporated Pre-existing Works, in
any medium, with or without the associated Work Product.
C.Grantee represents, warrants, and covenants to System Agency that Grantee has all
necessary right and authorityto grant theforegoing license in the Incorporated Pre-
existing Works to System Agency.
6.3 T HIRD P ARTY IP
A. To the extent that any Third Party IP is included or incorporated in the Work Product by
Grantee, Grantee hereby grants to System Agency,or shall obtain from the applicable
third party for System Agency’s benefit, the irrevocable, perpetual, non-exclusive,
worldwide, royalty-free right and license, for System Agency’s internal business or
governmental purposes only, to use, reproduce, display, perform, distribute copies of,
and prepare derivative works based upon such Third Party IP and any derivative works
thereof embodied in or delivered to System Agency in conjunction with the Work
Product, and to authorize others to do any or all of the foregoing.
B.Grantee shall obtain System Agency’s advance written approval prior to incorporating
any Third Party IP into the Work Product, and Grantee shall notify System Agency on
delivery of the Work Product if such materials include any Third Party IP.
C.Grantee shall provide System Agency all supporting documentation demonstrating
Grantee’s compliance with this Section 6.3, including without limitation documentation
indicating a third party’s written approval for Grantee to use any Third Party IP that may
be incorporated in the Work Product.
6.4 A GREEMENTS WITH E MPLOYEES AND S UBCONTRACTORS
Grantee shall have written, binding agreements with its employees and subcontractors that
include provisions sufficient to give effect to and enable Grantee’s compliance with
Grantee’s obligations under this Article VI, Intellectual Property.
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6.5 D ELIVERY UPON T ERMINATION OR E XPIRATION
No later than the first calendar day after the termination or expiration of the Grant Agreement
or upon System Agency’s request, Grantee shall deliver to System Agency all completed, or
partially completed, Work Product, including any Incorporated Pre-existing Works, and any
and all versions thereof. Grantee’s failure to timely deliver such Work Product is a material
breach of the Grant Agreement. Grantee will not retain any copies of the Work Product or any
documentation or other products or results of Grantee’s activities under the Grant Agreement
without the prior written consent of System Agency.
6.6 S URVIVAL
The provisions and obligations of this Article survive any termination or expiration of the
Grant Agreement.
6.7 S
YSTEM A GENCY D ATA
A. As between the Parties, all data and information acquired, accessed, or made available to
Grantee by, through, or on behalf of System Agency or System Agency contractors,
including all electronic data generated, processed, transmitted, or stored by Grantee in
the course of providing data processing services in connection with Grantee’s
performance hereunder (the “System Agency Data”), is owned solely by System Agency.
B.Grantee has no right or license to use, analyze, aggregate, transmit, create derivatives of,
copy, disclose, or process the System Agency Data except as required for Grantee to
fulfill its obligations under the Grant Agreement or as authorized in advance in writing
by System Agency.
C.For the avoidance of doubt, Grantee is expressly prohibited from using, and from
permitting any third party to use, System Agency Data for marketing, research, or other
non-governmental or commercial purposes, without the prior written consent of System
Agency.
D. Grantee shall make System Agency Data available to System Agency, including to
System Agency’s designated vendors, as directed in writing by System Agency. The
foregoing shall be at no cost to SystemAgency.
E.Furthermore, the proprietary nature of Grantee’s systems that process, store, collect,
and/or transmit the System Agency Data shall not excuse Grantee’s performance of its
obligations hereunder.
ARTICLE VII. PROPERTY
7.1 U SE OF S TATE P ROPERTY
A. Grantee is prohibited from using State Property for any purpose other than performing
Services authorized under the Grant Agreement.
B.State Property includes, but is not limited to, System Agency’s office space,
identification badges, System Agency information technology equipment and networks
(e.g., laptops, portable printers, cell phones, iPads or tablets, external hard drives, data
storage devices, any System Agency-issued software, and the System Agency Virtual
Private Network (VPN client)), and any other resources of System Agency.
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C.Granteeshallnotremove State Property from thecontinental United States. In addition,
Grantee may not use any computing device to access System Agency’s network or e-
mail while outside of the continental United States.
D. Grantee shall not perform any maintenance services on State Property unless theGrant
Agreement expressly authorizes such Services.
E.During the time that State Property is in the possession of Grantee, Grantee shall be
responsible for:
i. all repair and replacement charges incurred by State Agency that are associated with
loss of State Property or damage beyond normal wear and tear, and
ii. all charges attributable to Grantee’s use of State Property that exceeds the Grant
Agreement scope. Grantee shall fully reimburse such charges to System Agency
within ten (10) calendar days of Grantee’s receipt of System Agency’s notice of
amount due. Use of State Property for a purpose not authorized by the Grant
Agreement shall constitute breach of contract and may result in termination of the
Grant Agreement and the pursuit of other remedies available to System Agency
under contract, at law, or in equity.
7.2 D AMAGE TO S TATE P ROPERTY
A. In the event of loss, destruction, or damage to any System Agency or State of Texas
owned, leased, or occupied property or equipment by Grantee or Grantee’s employees,
agents, Subcontractors, or suppliers, Grantee shall be liable to System Agency and the
State of Texas for the full cost of repair, reconstruction, or replacement of the lost,
destroyed, or damaged property.
B.Granteeshallnotify SystemAgency oftheloss, destruction, or damage of equipment or
property within one (1) business day. Grantee shall reimburse System Agency and the
State of Texas for such property damage within ten (10) calendar days after Grantee’s
receipt of System Agency’s notice of amount due.
7.3 P ROPERTY R IGHTS UPON T ERMINATION OR E XPIRATION OF C ONTRACT
In the event the Grant Agreement is terminated for any reason or expires, State Property
remains the property of the System Agency and must be returned to the System Agency by
the earlier of the end date of the Grant Agreement or upon System Agency’s request.
7.4 E QUIPMENT AND P ROPERTY
A. The Grantee must ensure equipment with a per-unit cost of $5,000 or greater purchased
with grant funds under this award is used solely for the purpose of this Grant or is
properly pro-rated for use under this Grant. Grantee must have control systems to
prevent loss, damage, or theft of property funded under this Grant. Grantee shall
maintain equipment management and inventory procedures for equipment, whether
acquired in part or whole with grant funds, until disposition occurs.
B.When equipment acquired by Grantee under this Grant Agreement is no longer needed
for the original project or for other activities currently supported by System Agency, the
Grantee must properly dispose of the equipment pursuant to 2 CFR and/or TxGMS, as
applicable. Upon termination of this Grant Agreement, use and disposal of equipmentby
the Grantee shall conform with TxGMS requirements.
C.Grantee shall initiate the purchase of all equipment approved in writing by the System
Agency in accordance with the schedule approved by System Agency, as applicable.
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Failure to timely initiate the purchase of equipment may result in the loss of availability
of funds for the purchase of equipment. Requests to purchase previously approved
equipment after the first quarter in the Grant Agreement must be submitted to the
assigned System Agency contract manager.
D. Controlled Assets include firearms, regardless of the acquisition cost, and the following
assets with an acquisition cost of $500 or more, but less than $5,000: desktop and laptop
computers (including notebooks, tablets and similar devices), non-portable printers and
copiers, emergency management equipment, communication devices and systems,
medical and laboratory equipment, and media equipment. Controlled Assets are
consideredsupplies.
E.System Agency funds must not be used to purchase buildings or real property without
prior written approval from System Agency. Any costs related to the initial acquisition
of the buildings or real property are not allowable without written pre-approval.
ARTICLE VIII. RECORD RETENTION, AUDIT, AND
CONFIDENTIALITY
8.1 R ECORD M AINTENANCE AND R ETENTION
A. Grantee shall keep and maintain under GAAP or GASB, as applicable, full, true, and
complete records necessary to fully disclose to the System Agency, the Texas State
Auditor’s Office, the United States Government, and their authorized representatives
sufficient informationto determine compliancewith the terms and conditions of this Grant
Agreement and all state and federal rules, regulations, and statutes.
B.Grantee shall maintain and retain legible copies of this Grant Agreement and all records
relating to the performance of the Grant Agreement, including supporting fiscal
documents adequate to ensure that claims for grant funds are in accordance with
applicable State of Texas requirements. These records shall be maintained and retained
by the Grantee for a minimum of seven (7) years after the Grant Agreement expiration
date or seven (7) years after all audits, claims, litigation or disputes involving the Grant
Agreement are resolved, whichever islater.
8.2 A GENCY’S R IGHT TO A UDIT
A. Grantee shall make available at reasonable times and upon reasonable notice, and for
reasonable periods, work papers, reports, books, records, supporting documents kept
current by Grantee pertaining to the Grant Agreement for purposes of inspecting,
monitoring, auditing, or evaluating by System Agency and the State of Texas.
B.In addition to any right of access arising by operation of law, Grantee and any of
Grantee’s affiliate or subsidiary organizations, or Subcontractors shall permit the System
Agency or any of its duly authorized representatives, as well as duly authorized federal,
state or local authorities, unrestricted access to and the right to examine any site where
business is conducted or services are performed, and all records, which includes but is
not limited to financial, client and patient records, books, papers or documents related to
this Grant Agreement. If the Grant Agreement includes federal funds, federal agencies
that shall have a right of access to records as described in this section include: the federal
agency providing the funds, the Comptroller General of the United States, the General
Accounting Office, the Office of the Inspector General, and any of their authorized
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representatives. In addition, agencies of the State of Texas that shall have a right of
access to records as described in this section include: the System Agency, HHS's
contracted examiners, the State Auditor’s Office, the Office of the Texas Attorney
General, andany successor agencies.Each of these entities may be a duly authorized
authority.
C.If deemed necessary by the System Agency or any duly authorized authority, for the
purpose of investigation or hearing, Grantee shall produce original documents related to
this Grant Agreement.
D. The System Agency and any duly authorized authority shall have the right to audit
billings both before and after payment, and all documentation that substantiatesthe
billings.
E.Grantee shall include this provision concerning the right of access to, and examination
of, sites and information related to this Grant Agreement in any Subcontract it awards.
8.3 R ESPONSE/C OMPLIANCE WITH A UDIT OR I NSPECTION F INDINGS
A. Grantee must act to ensure its and its Subcontractors’ compliance with all corrections
necessary to address any finding of noncompliance with any law, regulation, audit
requirement, or generally accepted accounting principle, or any other deficiency
identified in any audit, review, or inspection of the Grant Agreement and the services
and Deliverables provided. Any such correction will be at Grantee’s or its
Subcontractor's sole expense. Whether Grantee's action corrects the noncompliance shall
be solely the decision of the System Agency.
B.As part of the services, Grantee must provide to HHS upon request a copy of those
portions ofGrantee'sand its Subcontractors' internal auditreports relatingto the services
and Deliverables provided to the State under the Grant Agreement.
8.4 S TATE A UDITOR’S R IGHT TO A UDIT
The stateauditor may conduct an audit or investigation of any entity receiving funds from the
state directly under the Grant Agreement or indirectly through a subcontract under the Grant
Agreement. The acceptance of funds directly under the Grant Agreement or indirectly
through a subcontract under the Grant Agreement acts as acceptance of the authority of the
state auditor, under the direction of the legislative audit committee, to conduct an audit or
investigation in connection with those funds. Under the direction of the legislative audit
committee, an entity that is the subject of an audit or investigation by the state auditor must
provide the state auditor with access to any information the state auditor considers relevant
to the investigation or audit.
8.5 C ONFIDENTIALITY
Grantee shall maintain as confidential and shall not disclose to third parties without System
Agency’s prior written consent, any SystemAgencyinformation includingbutnotlimited to
System Agency’s business activities, practices, systems, conditions and services. This
section will survive termination or expiration of this Grant Agreement. This requirement
must be included in all subcontracts awarded by Grantee.
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ARTICLE IX. GRANT REMEDIES, TERMINATION AND PROHIBITED
ACTIVITIES
9.1 R EMEDIES
A. To ensure Grantee’s full performance of the Grant Agreement and compliance with
applicablelaw, System Agency reserves the right to hold Grantee accountable for breach
of contract or substandard performance and may take remedial or corrective actions,
including, but not limited to the following:
i. temporarily withholding cash disbursements or reimbursements pending correction of
the deficiency;
ii. disallowing or denying use of funds for theactivity or action deemed not to be in
compliance;
iii. disallowing claims for reimbursement that may require a partial or whole return of
previous payments or reimbursements;
iv. suspending all or part of the Grant Agreement;
v. requiring the Grantee to take specific actions in order to remain in compliance with
the Grant Agreement;
vi. recouping payments made by the System Agency to the Grantee found to be in error;
vii. suspending, limiting, or placing conditions on the Grantee’s continued performance
of the Project;
viii. prohibiting the Grantee from receiving additional funds for other grant programs
administered by the System Agency until satisfactory compliance resolution is
obtained;
ix. withholding release of new grant agreements; and
x. imposing any other remedies, sanctions or penalties authorized under this Grant
Agreement or permitted by federal or state statute, law, regulation or rule.
B. Unless expressly authorized by System Agency, Grantee may not be entitled to
reimbursement for expenses incurred while the Grant Agreement is suspended.
C. No action taken by System Agency in exercising remedies or imposing sanctions will
constitute or operate as a waiver of any other rights or remedies available to System
Agency under the Grant Agreement or pursuant to law. Additionally, no action taken by
System Agency in exercising remedies or imposing sanctions will constitute or operate
as an acceptance, waiver, or cure of Grantee’s breach. Unless expressly authorized by
System Agency, Grantee may not be entitled to reimbursement for expenses incurred
while the Grant Agreement is suspended or after termination.
9.2T ERMINATION FOR C ONVENIENCE
The System Agency may terminate the Grant Agreement, in whole or in part, at any time
when, in its sole discretion, the System Agency determines that termination is in the best
interests of the State of Texas. The termination will be effective on the date specified in the
System Agency’s notice of termination.
9.3 T ERMINATION FOR C AUSE
A.Except as otherwise provided by the U.S. Bankruptcy Code, or any successor law, the
System Agency may terminate theGrant Agreement, inwhole or in part, uponeither of
the following conditions:
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i. Material Breach
The System Agency may terminate the Grant Agreement, in whole or in part, if
the System Agency determines, in its sole discretion, that Grantee has materially
breached the Grant Agreement or has failed to adhere to any laws, ordinances,
rules, regulations or orders of any public authority having jurisdiction, whether or
notsuch violation prevents orsubstantially impairs performance ofGrantee’s duties
under the Grant Agreement. Grantee's misrepresentation in any aspect including,
but not limited to, of Grantee’s Solicitation Application, if any, or Grantee's
addition to the SAM exclusion list (identification in SAM as an excluded entity)
may also constitute a material breach of the Grant Agreement.
ii. Failure to Maintain Financial Viability
The System Agency may terminate the Grant Agreement if the System Agency, in
its sole discretion, determines that Grantee no longer maintains the financial
viability required to complete the services and deliverables, or otherwise fully
perform its responsibilities under the Grant Agreement.
B. System Agency will specify the effective date of such termination in the notice to
Grantee. If no effective date is specified, the Grant Agreement will terminate on the
date of the notification.
9.4G RANTEE R ESPONSIBILITY FOR S YSTEM A GENCY’S T ERMINATION C OSTS
If the System Agency terminates the Grant Agreement for cause, the Grantee shall be
responsibleto the System Agency for all costs incurred by the System Agency and the State
of Texas to replace the Grantee. These costs include, but are not limited to, the costs of
procuring a substitute grantee and the cost of any claim or litigation attributable to Grantee’s
failure to perform any work in accordance with the terms of the Grant Agreement.
9.5 I NHERENTLY R ELIGIOUS A CTIVITIES
Grantee may not use grant funding to engage in inherently religious activities, such as
proselytizing, scripture study, or worship. Grantees may engage in inherently religious
activities; however, these activities must be separate in time or location from the grant-
funded program. Moreover, grantees must not compel program beneficiaries to participate in
inherently religious activities. These requirements apply to all grantees, not just faith-based
organizations.
9.6 P OLITICAL A CTIVITIES
Grant funds cannot be used for the following activities:
A. Grantees and their relevant sub-grantees or subcontractors are prohibited from using
grant funds directly or indirectly for political purposes, including lobbying, advocating
for legislation, campaigning for, endorsing, contributing to, or otherwise supporting
political candidates or parties, and voter registration campaigns. Grantees may use
private, or non-System Agency money or contributions for political purposes but may
not charge to, or be reimbursed from, System Agency contracts or grants for the costsof
such activities.
B. Grant-funded employees may not use official authority or influence to achieve any
political purpose and grant funds cannot be used for the salary, benefits, or any other
compensation of an elected official.
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C. Grant funds may not be used to employ, in any capacity, a person who is required by
Chapter 305 of the Texas Government Code to register as a lobbyist. Additionally, grant
funds cannot be used to pay membership dues to an organization that partially or wholly
pays the salary of a person who is required by Chapter 305 of the Texas Government
Code to register as a lobbyist.
D. As applicable, Grantee will comply with 31 USC § 1352, relating to the limitation on use
of appropriated funds to influence certain Federal contracting and financialtransactions.
ARTICLE X. INDEMNITY
10.1G ENERAL I NDEMNITY
A. GRANTEE SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS THE
STATE OF TEXAS AND SYSTEM AGENCY, AND/OR THEIR OFFICERS,
AGENTS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS,
ASSIGNEES, AND/OR DESIGNEES FROM ANY AND ALL LIABILITY,
ACTIONS, CLAIMS, DEMANDS, OR SUITS, AND ALL RELATED COSTS,
ATTORNEYS’ FEES, AND EXPENSES ARISING OUT OF OR RESULTING
FROM ANY ACTS OR OMISSIONS OF GRANTEE OR ITS AGENTS,
EMPLOYEES, SUBCONTRACTORS, ORDER FULFILLERS, OR SUPPLIERS
OF SUBCONTRACTORS IN THE EXECUTION OR PERFORMANCE OF THE
GRANT AGREEMENT AND ANY PURCHASE ORDERS ISSUED UNDER THE
GRANT AGREEMENT.
B. THIS PARAGRAPH IS NOT INTENDED TO AND WILL NOT BE
CONSTRUED TO REQUIRE GRANTEE TO INDEMNIFY OR HOLD
HARMLESS THE STATE OR THE SYSTEM AGENCY FOR ANY CLAIMS OR
LIABILITIES RESULTING FROM THE NEGLIGENT ACTS OR OMISSIONS
OF THE SYSTEM AGENCY OR ITS EMPLOYEES.
C. For the avoidance of doubt, System Agency shall not indemnify Grantee or any other
entity under the Grant Agreement.
10.2 I NTELLECTUAL P ROPERTY
GRANTEE SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS THE
SYSTEM AGENCY AND THE STATE OF TEXAS FROM AND AGAINST ANY
AND ALL CLAIMS, VIOLATIONS, MISAPPROPRIATIONS, OR
INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT, TRADE
SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS AND/OR OTHER
INTANGIBLE PROPERTY, PUBLICITY OR PRIVACY RIGHTS, AND/OR IN
CONNECTION WITH OR ARISING FROM:
i. THE PERFORMANCE OR ACTIONS OF GRANTEE PURSUANT TO THIS
GRANT AGREEMENT;
ii. ANY DELIVERABLE, WORK PRODUCT, CONFIGURED SERVICE OR
OTHER SERVICE PROVIDED HEREUNDER;AND/OR
iii.SYSTEMAGENCY’SAND/OR GRANTEE’S USE OFORACQUISITION OF
ANY REQUESTED SERVICES OR OTHER ITEMS PROVIDED TO
SYSTEM AGENCY BY GRANTEE OR OTHERWISE TO WHICH SYSTEM
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AGENCY HAS ACCESS AS A RESULT OF GRANTEE’S PERFORMANCE
UNDER THE GRANT AGREEMENT.
10.3 A DDITIONAL I NDEMNITY P ROVISIONS
A. GRANTEE AND SYSTEM AGENCY AGREE TO FURNISH TIMELY
WRITTEN NOTICE TO EACH OTHER OF ANY INDEMNITY CLAIM.
GRANTEE SHALL BE LIABLE TO PAY ALL COSTS OF DEFENSE,
INCLUDING ATTORNEYS’FEES.
B. THE DEFENSE SHALL BE COORDINATED BY THE GRANTEE WITH THE
OFFICE OF THE TEXAS ATTORNEY GENERAL WHEN TEXAS STATE
AGENCIES ARE NAMED DEFENDANTS IN ANY LAWSUIT AND GRANTEE
MAY NOT AGREE TO ANY SETTLEMENT WITHOUT FIRST OBTAINING
THE CONCURRENCE FROM THE OFFICE OF THE TEXAS ATTORNEY
GENERAL.
C. GRANTEE SHALL REIMBURSE SYSTEM AGENCY AND THE STATE OF
TEXAS FOR ANY CLAIMS, DAMAGES, COSTS, EXPENSES OR OTHER
AMOUNTS, INCLUDING, BUT NOT LIMITED TO, ATTORNEYS’ FEES AND
COURT COSTS, ARISING FROM ANY SUCH CLAIM. IF THE SYSTEM
AGENCY DETERMINES THAT A CONFLICT EXISTS BETWEEN ITS
INTERESTS AND THOSE OF GRANTEE OR IF SYSTEM AGENCY IS
REQUIRED BY APPLICABLE LAW TO SELECT SEPARATE COUNSEL,
SYSTEM AGENCY WILL BE PERMITTED TO SELECT SEPARATE
COUNSEL AND GRANTEE SHALL PAY ALL REASONABLE COSTS OF
SYSTEM AGENCY’S COUNSEL.
ARTICLE XI. GENERAL PROVISIONS
11.1A MENDMENTS
Except as otherwise expressly provided, the Grant Agreement may only be amended by a
written Amendment executed by both Parties.
11.2N O Q UANTITY G UARANTEES
The System Agency makes no guarantee of volume or usage of work under this Grant
Agreement. All work requested may be on an irregular and as needed basis throughout the
Grant Agreement term.
11.3 C HILD A BUSE R EPORTING R EQUIREMENTS
A.Grantees shall comply with child abuse and neglect reporting requirements in Texas
Family Code Chapter 261. This section is in addition to and does not supersede any
other legal obligation of the Grantee to report child abuse.
B. Grantee shall use the Texas Abuse Hotline Website located at
https://www.txabusehotline.org/Login/Default.aspx as required by the System
Agency. Grantee shall retain reporting documentation on site and make it available for
inspection by the System Agency.
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11.4 C ERTIFICATION OF M EETING OR E XCEEDING T OBACCO-F REE W ORKPLACE P OLICY
M INIMUM S TANDARDS
A. Grantee certifies that it has adopted and enforces a Tobacco-Free Workplace Policy that
meets or exceeds all of the following minimum standards of:
i. Prohibiting the use of all forms of tobacco products, including but not limited to
cigarettes, cigars, pipes, water pipes (hookah), bidis, kreteks, electroniccigarettes,
smokeless tobacco, snuff and chewing tobacco;
ii. Designating the property to which this Policy applies as a "designated area,” which
must at least comprise all buildings and structures where activities funded under this
Grant Agreement are taking place, as well as Grantee owned, leased, or controlled
sidewalks, parking lots, walkways, and attached parking structures immediately
adjacent to this designated area;
iii. Applying to all employees and visitors in this designated area;and
iv. Providing for or referring its employees to tobacco use cessation services.
B. If Grantee cannot meet these minimum standards, it must obtain a waiver from the
System Agency.
11.5I NSURANCE AND B ONDS
Unless otherwise specified in this Contract, Grantee shall acquire and maintain, for the
duration of this Contract, insurance coverage necessary to ensure proper fulfillment of this
Contract and potential liabilities thereunder with financially sound and reputable insurers
licensed by the Texas Department ofInsurance, in the type and amount customarily carried
within the industry as determined by the System Agency. Grantee shall provide evidence of
insurance as required under this Contract, including a schedule of coverage or underwriter’s
schedules establishing to the satisfaction of the System Agency the nature and extent of
coverage granted by each such policy, upon request by the System Agency. In the event that
any policy is determined by the System Agency to be deficient to comply with the terms of
this Contract, Grantee shall secure such additional policies or coverage as the System
Agency may reasonably request or that are required by law or regulation. If coverage expires
during the term of this Contract, Grantee must produce renewal certificates for each type of
coverage. In addition, if required by System Agency, Grantee must obtain and have on file a
blanket fidelity bond that indemnifies System Agency against the loss or theft of any grant
funds, including applicable matching funds. The fidelity bond must cover the entirety of the
grant term and any subsequent renewals. The failure of Grantee to comply with these
requirements may subject Grantee to remedial or corrective actions detailed in section 10.1,
General Indemnity, above.
These and all other insurance requirements under the Grant apply to both Grantee and its
Subcontractors, if any. Grantee is responsible for ensuring its Subcontractors’ compliance
with all requirements.
11.6 L IMITATION ON A UTHORITY
A. Grantee shallnot have anyauthority to act for oron behalfof the System Agency or the
State of Texas except as expressly provided for in the Grant Agreement; no other
authority, power, or use is granted or implied. Grantee may not incur any debt,
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obligation, expense, or liability of any kind on behalf of System Agency or the State of
Texas.
B. Grantee may not rely upon implied authority and is not granted authority under the Grant
Agreement to:
i. Make public policy on behalf of the System Agency;
ii. Promulgate, amend, or disregard administrative regulations or program policy
decisions made by State and federal agencies responsible for administration of a
System Agency program; or
iii. Unilaterally communicate or negotiate with any federal or state agency or the Texas
Legislature on behalf of the System Agency regarding System Agency programs or
the Grant Agreement. However, upon System Agency request and with reasonable
notice from System Agency to the Grantee, the Grantee shall assist the System
Agency in communications and negotiations regarding the Work under the Grant
Agreement with state and federal governments.
11.7 C HANGE IN L AWS AND C OMPLIANCE WITH L AWS
Grantee shall comply with all laws, regulations, requirements and guidelines applicable to a
Grantee providing services and products required by the Grant Agreement to the State of
Texas, as these laws, regulations, requirements and guidelinescurrentlyexist andasamended
throughout the term of the Grant Agreement. Notwithstanding Section 11.1, Amendments,
above,System Agencyreservestheright, in its sole discretion, to unilaterally amend the Grant
Agreement to incorporate any modifications necessary for System Agency’s compliance, as
an agency of the State of Texas, with all applicable state and federal laws, regulations,
requirements and guidelines.
11.8 S UBCONTRACTORS
Grantee may not subcontract any or all of the Work and/or obligations under the Grant
Agreement without prior written approval of the System Agency. Subcontracts, if any,
entered into by the Grantee shall be in writing and be subject to the requirements of the
Grant Agreement. Should Grantee subcontract any of the services required in the Grant
Agreement, Grantee expressly understands and acknowledges System Agency is in no
manner liable to any subcontractor(s) of Grantee. In no event shall this provision relieve
Grantee of the responsibility for ensuring that the services performed under all subcontracts
are rendered in compliance with the Grant Agreement.
11.9P ERMITTING AND L ICENSURE
At Grantee's sole expense, Grantee shall procure and maintain for the duration of this Grant
Agreement any state, county, city, or federal license, authorization, insurance, waiver,
permit, qualification or certification required by statute, ordinance, law, or regulation to be
held by Grantee to provide the goods or services required by this Grant Agreement. Grantee
shall be responsible for payment of all taxes, assessments, fees, premiums, permits, and
licenses required by law. Grantee shall be responsible for payment of any such government
obligations not paid by its Subcontractors during performance of this Grant Agreement.
11.10 I NDEPENDENT C ONTRACTOR
Grantee and Grantee’s employees, representatives, agents, Subcontractors, suppliers, and
third-party service providers shall serve as independent contractors in providing the services
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under the Grant Agreement. Neither Grantee nor System Agency is an agent of the other and
neither may make any commitments on the other party’s behalf. The Grantee is not a
“governmental body” solely by virtue of this Grant Agreement or receipt of grant funds
under this Grant Agreement. Grantee shall have no claim against System Agency for
vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health
or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
The Grant Agreement shall not create any joint venture, partnership, agency, or employment
relationship between Grantee and System Agency.
11.11G OVERNING L AW AND V ENUE
The Grant Agreement shall be governed by and construed in accordance with the laws of the
State of Texas, without regard to the conflicts of law provisions. The venue of any suit
arising under the Grant Agreement is fixed in any court of competent jurisdiction of Travis
County, Texas, unless the specific venue is otherwise identified in a statute which directly
names or otherwise identifies its applicability to the System Agency.
11.12S EVERABILITY
If any provision contained in this Grant Agreement is held to be unenforceable by a court of
law or equity, such construction will not affect the legality, validity, or enforceability of any
other provision or provisions of this Grant Agreement. It is the intent and agreement of the
Parties this Grant Agreement shall be deemed amended by modifying such provision to the
extent necessary to render it valid, legal and enforceable while preserving its intent or, if
such modification is not possible, by substituting another provision that is valid, legal and
enforceable and that achieves the same objective. All other provisions of this Grant
Agreement will continue in full force and effect.
11.13 S URVIVABILITY
Expiration or termination of the Grant Agreement for any reason does not release Grantee
from any liability or obligation set forth in the Grant Agreement that is expressly stated to
survive any such expiration or termination, that by its nature would be intended to be
applicable following any such expiration or termination, or that is necessary to fulfill the
essential purpose of the Grant Agreement, including without limitation the provisions
regarding return of grant funds, audit requirements, records retention, public information,
warranty, indemnification, confidentiality, and rights and remedies upon termination.
11.14 F ORCE M AJEURE
Neither Grantee nor System Agency shall be liable to the other for any delay in, or failure of
performance, of any requirement included in the Grant Agreement caused by force majeure.
The existence of such causes of delay or failure shall extend the period of performance until
after the causes of delay or failure have been removed provided the non-performing party
exercises all reasonable due diligence to perform. Force majeure is defined as acts of God,
war, fires, explosions, hurricanes, floods, failure of transportation, or other causes that are
beyond the reasonable control of either party and that by exercise of due foresight such party
could not reasonably have been expected to avoid, and which, by the exercise of all
reasonable due diligence, such party is unable to overcome.
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11.15 N O I MPLIED W AIVER OF P ROVISIONS
The failure of the System Agency to object to or to take affirmative action with respect to
any conduct of the Grantee which is in violation or breach of the terms of the Grant
Agreement shall not be construed as a waiver of the violation or breach, or of any future
violation or breach.
11.16 F UNDING D ISCLAIMERS AND L ABELING
A. Grantee shall not use System Agency’s name or refer to System Agency directly or
indirectly in any media appearance, public service announcement, or disclosure relating
to this Grant Agreement including any promotional material without first obtaining
written consent from System Agency. The foregoing prohibition includes, without
limitation, the placement of banners, pop-up ads, or other advertisements promoting
Grantee’s or a third party’s products, services, workshops, trainings, or other commercial
offerings on any website portal or internet-based service or software application hosted
or managed by Grantee. This does not limit the Grantee’s responsibility to comply with
obligations related to the Texas Public Information Act or Texas Open Meetings Act.
B. In general, no publication (including websites, reports, projects, etc.) may convey
System Agency’s recognition or endorsement of the Grantee’s project without prior
written approval from System Agency. Publications funded in part or wholly by HHS
grant funding must include a statement that “HHS and neither any of its components
operate, control, are responsible for, or necessarily endorse, this publication (including,
without limitation, its content, technical infrastructure, and policies, and any services or
tools provided)” at HHS’s request.
11.17 M EDIA R ELEASES
A. Grantee shall not use System Agency’s name, logo, or other likeness in any press
release, marketing material or other announcement without System Agency’s prior
written approval. System Agency does not endorse any vendor, commodity, or service.
Grantee is not authorized to make or participate in any media releases or public
announcements pertaining to this Grant Agreement or the Services to which they relate
without System Agency’s prior written consent, and then only in accordance with
explicit written instruction from System Agency.
B. Grantee may publish, at its sole expense, results of Grantee performance under the Grant
Agreement with the System Agency’s prior review and approval, which the System
Agency may exercise at its sole discretion. Any publication (written, visual, or sound)
will acknowledge the support received from the System Agency and any Federal agency,
as appropriate.
11.18 P ROHIBITION ON N ON-C OMPETE R ESTRICTIONS
Grantee shall not require any employees or Subcontractors to agree to any conditions, such
as non-compete clauses or other contractual arrangements, that would limit or restrict such
persons or entities from employment or contracting with the State of Texas.
11.19 S OVEREIGN I MMUNITY
Nothing in the Grant Agreement will be construed as a waiver of the System Agency’s or
the State’s sovereign immunity. This Grant Agreement shall not constitute or be construed as
a waiver of any of the privileges, rights, defenses, remedies, or immunities available to the
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System Agency ortheState ofTexas. The failure to enforce, or any delay in the enforcement,
of any privileges, rights, defenses, remedies, or immunities available to the System Agency
or the State of Texas under the Grant Agreement or under applicable law shall not constitute
a waiver of such privileges, rights, defenses, remedies, or immunities or be considered as a
basis for estoppel. System Agency does not waive any privileges, rights, defenses, or
immunities available to System Agency by entering into the Grant Agreement or by its
conduct prior to or subsequent to entering into the Grant Agreement.
11.20 E NTIRE C ONTRACT AND M ODIFICATION
The Grant Agreement constitutes the entire agreement of the Parties and is intended as a
complete and exclusive statement of the promises, representations, negotiations, discussions,
and other agreements that may have been made in connection with the subject matter hereof.
Any additional or conflicting terms in any future document incorporated into the Grant
Agreement will be harmonized with this Grant Agreement to the extent possible.
11.21 C OUNTERPARTS
This Grant Agreement may be executed in any number of counterparts, each of which will
be an original, and all such counterparts will together constitute but one and the same Grant
Agreement.
11.22 P ROPER A UTHORITY
Each Party represents and warrants that the person executing this Grant Agreement on its
behalf has full power and authority to enter into this Grant Agreement.
11.23 E-V ERIFY P ROGRAM
Grantee certifies that it utilizes and will continue to utilize the U.S. Department of
Homeland Security's E-Verify system to determine the eligibility of:
A. all persons employed to perform duties within Texas during the term of the Grant
Agreement; and
B. all persons, (including subcontractors) assigned by the Grantee to perform work pursuant
to the Grant Agreement within the United States ofAmerica.
11.24 C IVIL R IGHTS
A.Grantee agrees to comply with state and federal anti-discrimination laws, including:
i. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000d et seq.);
ii. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794);
iii. Americans with Disabilities Act of 1990 (42 U.S.C. §12101 et seq.);
iv. Age Discrimination Act of 1975 (42 U.S.C. §§6101-6107);
v. Title IX of the Education Amendments of 1972 (20 U.S.C. §§1681-1688);
vi. Food and Nutrition Act of 2008 (7 U.S.C. §2011 et seq.); and
vii. The System Agency's administrative rules, as set forth in the Texas Administrative
Code, to the extent applicable to this Grant Agreement.
B. Grantee agrees to comply with all amendments to the above-referenced laws, and all
requirements imposed by the regulations issued pursuant to these laws. These laws
provide in part that no persons in the United States may, on the grounds of race, color,
national origin, sex, age, disability, political beliefs, or religion, be excluded from
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participation in or denied any aid, care, service or other benefits provided by Federal or
State funding, or otherwise be subjected to discrimination.
C. Grantee agrees to comply with Title VI of the Civil Rights Act of 1964, and its
implementing regulations at 45 C.F.R. Part 80 or 7 C.F.R. Part 15, prohibiting a
contractor from adopting and implementing policies and procedures that exclude or have
the effect of excluding or limiting the participation of clients in its programs, benefits, or
activities on the basis of national origin. State and federal civil rights laws require
contractors to provide alternative methods for ensuring access to services for applicants
and recipients who cannot express themselves fluently in English. Grantee agrees to take
reasonable steps to provide services and information, both orally and in writing, in
appropriate languages other than English, in order to ensure that persons with limited
English proficiency are effectively informed and can have meaningful access to
programs, benefits, and activities.
D. Grantee agrees to post applicable civil rights posters in areas open to the public
informing clients of their civil rights and including contact information for the HHS
Civil Rights Office. The posters are available on the HHS website at:
https://hhs.texas.gov/about-hhs/your-rights/civil-rights-office/civil-rights-posters.
E. Grantee agrees to comply with Executive Order 13279, and its implementing regulations
at 45 C.F.R. Part 87 or 7 C.F.R. Part 16. These provide in part that any organization that
participates in programs funded by direct financial assistance from the United States
Department of Agriculture or the United States Department of Health and Human
Services shall not discriminate against a program beneficiary or prospective program
beneficiary on the basis of religion or religiousbelief.
F. Upon request, Grantee shall provide HHSC’s Civil Rights Office with copies of the
Grantee’s civil rights policies and procedures.
G. Grantee must notify HHSC’s Civil Rights Office of any complaints ofdiscrimination
received relating to its performance under this Grant Agreement. This notice must be
delivered no more than ten (10) calendar days after receipt of a complaint. Notice
provided pursuant to this section must be directed to:
HHSC Civil Rights Office
701 W. 51st Street, Mail CodeW206
Austin, Texas 78751
Phone Toll Free: (888) 388-6332
Phone: (512) 438-4313
Fax: (512) 438-5885
Email: HHSCivilRightsOffice@hhsc.state.tx.us.
11.25 E NTERPRISE I NFORMATION M ANAGEMENT S TANDARDS
Grantee shall conform to HHS standards for data management as described by the policies
of the HHS Office of Data, Analytics, and Performance. These include, but are not limited
to, standards for documentation and communication of data models, metadata, and other
data definition methods that are required by HHS for ongoing data governance, strategic
portfolio analysis, interoperability planning, and valuation of HHS System data assets.
11.26 D ISCLOSURE OF L ITIGATION
A. The Grantee must disclose in writing to the contract manager assigned to this Grant
Agreementany materialcivil orcriminal litigation orindictment either threatened or
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pending involving the Grantee. “Threatened litigation” as used herein shall include
governmental investigations and civil investigative demands. “Litigation” as used herein
shall include administrative enforcement actions brought by governmental agencies. The
Grantee must also disclose any material litigation threatened or pending involving
Subcontractors, consultants, and/or lobbyists. For purposes of this section, “material”
refers, but is not limited, to any action or pending action that a reasonable person
knowledgeable in the applicable industry would consider relevant to the Work under the
Grant Agreement or any development such a person would want to be aware of in order
to stay fully apprised of the total mix of information relevant to the Work, together with
any litigation threatened or pending that may result in a substantial change in the
Grantee’s financial condition.
B. This is a continuing disclosure requirement; any litigation commencing after Grant
Agreement Award must be disclosed in a written statement to the assigned contract
manager within seven calendar days of its occurrence.
11.27 N O T HIRD P ARTY B ENEFICIARIES
The Grant Agreement is made solely and specifically among and for the benefit of the
Parties named herein and their respective successors and assigns, and no other person shall
have any right, interest, or claims hereunder or be entitled to any benefits pursuant to or on
account of the Grant Agreement as a third-party beneficiary or otherwise.
11.28 B INDING E FFECT
The Grant Agreement shall inure to the benefit of, be binding upon, and be enforceable
against each Party and their respective permitted successors, assigns, transferees, and
delegates.
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HHS D ATA U SE A GREEMENT
This Data Use Agreement (“DUA”), effective as of the date the Base Contract into which
it is incorporated is signed (“Effective Date”), is entered into by and between a Texas Health and
Human Services Enterpriseagency(“HHS”), and the Contractoridentified in the Base Contract,a
political subdivision of the State of Texas (“CONTRACTOR.
PURPOSE; APPLICABILITY; ORDER OF PRECEDENCE
The purpose of this DUA is to facilitate creation, receipt, maintenance, use, disclosure or
access to Confidential Information with CONTRACTOR, and describe CONTRACTOR’s rights
and obligations with respect to the Confidential Information. 45 CFR 164.504(e)(1)-(3). This DUA
also describes HHS’s remedies in the event of CONTRACTOR’s noncompliance with its
obligations under this DUA. This DUA applies to both Business Associates and contractors who
are not Business Associateswho create, receive, maintain, use,disclose or have access to
Confidential Information on behalf of HHS, its programs or clients as described in the Base
Contract.
As of the Effective Date of thisDUA, if any provision of the Base Contract, includingany
General Provisions or Uniform Terms and Conditions, conflicts with this DUA, this DUAcontrols.
DEFINITIONS
For the purposes of this DUA, capitalized, underlined terms have the meanings set forth in
the following: Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (42
U.S.C. §1320d, et seq.) and regulations thereunder in 45 CFR Parts 160 and 164, including all
amendments, regulations and guidance issued thereafter; The Social Security Act, including Section
1137 (42 U.S.C. §§ 1320b-7), Title XVI of the Act; The Privacy Act of 1974, as amended by the
Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. § 552a and regulations and
guidance thereunder; Internal Revenue Code, Title 26 of the United States Code and regulations and
publications adopted under that code, including IRS Publication 1075; OMB Memorandum 07-18;
Texas Business and Commerce Code Ch. 521; Texas Government Code, Ch. 552, and Texas
Government Code §2054.1125. In addition, the following terms in this DUA are defined as follows:
“Authorized Purpose” means the specific purpose or purposes described in the Statement
of Work of the Base Contract for CONTRACTOR to fulfill its obligations under the Base Contract,
or any other purpose expressly authorized by HHS in writing in advance.
“Authorized User” means a Person:
(1) Who is authorized to create, receive, maintain, have access to, process, view,
handle, examine, interpret, or analyze Confidential Informationpursuant to this DUA;
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(2) For whom CONTRACTOR warrants and represents has a demonstrable need to
create, receive, maintain, use, disclose or have access to the Confidential Information; and
(3) Who has agreed in writing to be bound by the disclosure and use limitations
pertaining to the Confidential Information as required by this DUA.
“Confidential Information” means any communication or record (whether oral, written,
electronically stored or transmitted, or in any other form) provided to or made available to
CONTRACTOR, or that CONTRACTOR may,for an Authorized Purpose,create, receive, maintain,
use, disclose or have access to, that consists of or includes any or all of the following:
(1) Client Information;
(2) Protected Health Information in any form including without limitation, Electronic
Protected Health Information or Unsecured Protected Health Information (herein “PHI”);
(3) Sensitive Personal Information defined by Texas Business and Commerce Code
Ch. 521;
(4) Federal Tax Information;
(5) Individually Identifiable Health Information as related to HIPAA, Texas HIPAA
and Personal Identifying Information under the Texas Identity Theft Enforcement and Protection
Act;
(6) Social Security Administration Data, including, without limitation, Medicaid
information;
(7) All privileged work product;
(8) All information designated as confidential under the constitution and laws of the
State of Texas and of the United States, including the Texas Health & Safety Code and the Texas
Public Information Act, Texas Government Code, Chapter 552.
“Legally Authorized Representative”of the Individual, as definedby Texaslaw, including
as provided in 45 CFR 435.923 (Medicaid); 45 CFR 164.502(g)(1) (HIPAA); Tex. Occ. Code §
151.002(6); Tex. H. & S. Code §166.164; and Estates Code Ch. 752.
CONTRACTOR'S DUTIES REGARDING CONFIDENTIAL INFORMATION
Obligations of CONTRACTOR
CONTRACTOR agrees that:
(A) CONTRACTOR will exercise reasonable care and no less than the same
degree of care CONTRACTOR uses to protect its own confidential, proprietary and trade
secret information to prevent any portion of the Confidential Information from being usedin
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a manner that is not expressly an Authorized Purpose under this DUA or as Required by Law.
45 CFR 164.502(b)(1); 45 CFR 164.514(d)
(B) Except as Requiredby Law,CONTRACTORwillnot disclose or allow access
to anyportion of the Confidential Information to anyPersonor other entity, other than
Authorized User's Workforce or Subcontractors (as defined in 45 C.F.R. 160.103) of
CONTRACTOR who have completed training in confidentiality, privacy, security and the
importance of promptly reporting any Event or Breach to CONTRACTOR's management, to
carry out CONTRACTOR’s obligations in connection with the Authorized Purpose.
HHS, at its election, may assist CONTRACTOR in training and education on specific or
unique HHS processes, systems and/or requirements. CONTRACTOR will produce
evidence of completed training to HHS upon request. 45 C.F.R. 164.308(a)(5)(i); Texas
Health & Safety Code §181.101
All of CONTRACTOR’s Authorized Users, Workforce and Subcontractors with access to a state
computer system or database will complete a cybersecurity training program certified under Texas
Government Code Section 2054.519 by the Texas Department of Information Resources or offered
under Texas Government Code Sec. 2054.519(f).
(C) CONTRACTOR will establish,implement and maintain appropriate
sanctions against any member of its Workforceor Subcontractor who fails to comply with this
DUA, the Base Contract or applicable law. CONTRACTOR will maintain evidence of
sanctions and produce it to HHS upon request.45 C.F.R. 164.308(a)(1)(ii)(C); 164.530(e);
164.410(b); 164.530(b)(1)
(D) CONTRACTOR will not, except as otherwise permitted by this DUA,
disclose or provide access to any Confidential Information on the basis that such act is
Required by Lawwithout notifying either HHS or CONTRACTOR’s own legal counsel to
determine whether CONTRACTOR should object to the disclosure or access and seek
appropriate relief. CONTRACTOR will maintain an accounting of all such requests for
disclosure and responses and provide such accounting to HHS within 48 hours of HHS’
request. 45 CFR 164.504(e)(2)(ii)(A)
(E) CONTRACTOR will not attempt to re-identify or further identify
Confidential Information or De-identified Information, or attempt to contact any Individuals
whose records are contained in the Confidential Information, except for an Authorized
Purpose, without express written authorization from HHS or as expressly permitted by the
Base Contract. 45 CFR 164.502(d)(2)(i) and (ii) CONTRACTOR will not engage in
prohibited marketing or sale of Confidential Information. 45 CFR 164.501, 164.508(a)(3)
and (4); Texas Health & Safety Code Ch. 181.002
(F) CONTRACTOR willnot permit, or enterinto anyagreement with a
Subcontractor to, create, receive, maintain, use, disclose, have access to or transmit
Confidential Information to carry out CONTRACTOR’s obligations in connection with the
Authorized Purpose on behalf of CONTRACTOR, unlessSubcontractor agrees to comply
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with all applicable laws, rules and regulations. 45 CFR 164.502(e)(1)(ii); 164.504(e)(1)(i)
and (2).
(G) CONTRACTORisdirectly responsiblefor compliance with, and enforcement
of, all conditions for creation, maintenance, use, disclosure, transmission and Destruction of
Confidential Informationand the acts or omissions of Subcontractors as may be reasonably
necessary to prevent unauthorized use. 45 CFR 164.504(e)(5); 42 CFR 431.300, et seq.
(H) If CONTRACTOR maintains PHI in a Designated Record Set which is
Confidential Information and subject to this Agreement, CONTRACTOR will makePHI
availableto HHS in a Designated Record Set upon request. CONTRACTORwill provide PHI
to an Individual, or LegallyAuthorized Representative of the Individual who is requesting
in compliance with the requirements of theHIPAA Privacy Regulations.
CONTRACTOR will release PHI in accordance with the HIPAA Privacy Regulations upon
receipt of a valid written authorization. CONTRACTOR will make other Confidential
Information in CONTRACTOR’s possession available pursuant to the requirements of
HIPAA or otherapplicable law upona determination of a Breach of Unsecured PHI as defined
in HIPAA. CONTRACTOR will maintain an accounting of all such disclosures and provide
it to HHS within 48 hours of HHS' request. 45 CFR 164.524and 164.504(e)(2)(ii)(E).
(I) If PHI is subject to this Agreement, CONTRACTOR will make PHIas
required by HIPAA available to HHS for review subsequent to CONTRACTOR’s
incorporation of any amendments requested pursuant to HIPAA. 45 CFR
164.504(e)(2)(ii)(E) and (F).
(J) If PHI issubject to this Agreement, CONTRACTOR will document and make
available to HHS the PHI required to provide access, an accounting of disclosures or
amendmentin compliance with the requirements of the HIPAA Privacy Regulations. 45CFR
164.504(e)(2)(ii)(G) and164.528.
(K) If CONTRACTOR receives arequest for access,amendment or accounting
of PHI from an individual with a right of access to information subject to thisDUA, it will
respond to such request in compliance with the HIPAA Privacy Regulations.
CONTRACTOR will maintain an accounting of all responses to requests for access to or
amendment ofPHIand provide it to HHS within 48 hours of HHS' request. 45 CFR
164.504(e)(2).
(L) CONTRACTOR will provide, and will cause its Subcontractors and agents
to provide, to HHS periodic written certifications of compliance with controls and
provisions relating to information privacy, security and breach notification, including
without limitation information related to data transfers and the handling and disposal of
Confidential Information. 45 CFR 164.308; 164.530(c); 1 TAC 202.
(M) Except as otherwise limited by this DUA, the Base Contract, or law
applicable to the Confidential Information, CONTRACTOR may usePHI for the proper
management and administrationof CONTRACTOR or to carry out CONTRACTOR’s
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legal responsibilities. Except as otherwise limited by this DUA, the Base Contract, or law
applicable to the Confidential Information, CONTRACTOR may disclose PHI for the
proper management and administration of CONTRACTOR, or to carry out
CONTRACTOR’s legal responsibilities, if: 45 CFR 164.504(e)(4)(A).
(1) Disclosure isRequiredby Law, provided that CONTRACTOR complies with
Section 3.01(D); or
(2) CONTRACTOR obtains reasonable assurances from the person or entity to
which the information is disclosed that the person or entitywill:
(a)Maintain the confidentiality of the Confidential Information in accordance
with this DUA;
(b) Use orfurther disclose theinformation only as Required by Law or for
the Authorized Purposeforwhich it was disclosed to the Person; and
(c) Notify CONTRACTOR in accordance with Section 4.01 of any Eventor
Breach of Confidential Information of which the Person discovers or should have
discovered with the exercise of reasonable diligence. 45 CFR
164.504(e)(4)(ii)(B).
(N) Except as otherwise limited by this DUA, CONTRACTOR will, if required
by law and requested byHHS,usecommerciallyreasonableefforts tousePHIto provide data
aggregation services to HHS, as that term is defined in the HIPAA, 45 C.F.R. §164.501 and
permitted by HIPAA. 45 CFR164.504(e)(2)(i)(B)
(O) CONTRACTOR will, on the termination or expiration of this DUA or the
Base Contract, at its expense, send to HHS orDestroy, at HHS’s election and to the extent
reasonably feasible and permissible by law, allConfidential Informationreceived from HHS
or created or maintainedby CONTRACTOR or any of CONTRACTOR’s agents or
Subcontractors on HHS's behalf if that data contains Confidential Information.
CONTRACTOR will certify inwriting to HHS that all theConfidentialInformation thathas
been created, received, maintained, used by or disclosed to CONTRACTOR, has been
Destroyed or sent to HHS, and that CONTRACTOR and its agents and Subcontractors have
retained no copies thereof. Notwithstanding the foregoing, HHS acknowledges and agrees
that CONTRACTOR is not obligated to send to HHSC and/or Destroy any Confidential
Information if federal law, state law, the Texas State Library and Archives Commission
records retention schedule, and/or a litigation hold notice prohibit such delivery or
Destruction. If such delivery or Destruction is not reasonably feasible, or is impermissible by
law, CONTRACTOR will immediately notify HHS of the reasons such delivery or
Destruction is not feasible, and agree to extend indefinitely the protections of this DUA to the
Confidential Information and limit its further uses and disclosures to the purposes that make
the return delivery or Destruction of the Confidential Information not feasible for as long as
CONTRACTOR maintains suchConfidential Information. 45 CFR 164.504(e)(2)(ii)(J)
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(P) CONTRACTOR will create, maintain, use, disclose, transmit orDestroy
Confidential Information in a secure fashion that protects against any reasonably anticipated
threats or hazards to the security or integrity of such information or unauthorized uses. 45
CFR 164.306; 164.530(c)
(Q) If CONTRACTOR accesses, transmits, stores, and/or maintainsConfidential
Information, CONTRACTOR will complete and return to HHS at
infosecurity@hhsc.state.tx.us the HHS information security and privacy initial inquiry (SPI)
at Attachment 1 . The SPI identifies basic privacy and security controls with which
CONTRACTOR must comply to protect HHS Confidential Information. CONTRACTOR
will comply with periodic security controls compliance assessment and monitoring by HHS
as required by state and federal law, based on the type ofConfidential Information
CONTRACTOR creates, receives, maintains, uses, discloses or has access to and the
Authorized Purpose and level of risk. CONTRACTOR's security controls will be based on
the National Institute of Standards and Technology (NIST) Special Publication 800-53.
CONTRACTOR will update its security controls assessment whenever there are significant
changes in security controls for HHS Confidential Information and will provide the updated
document to HHS. HHS also reserves the right to request updates as needed to satisfy state
and federal monitoring requirements. 45 CFR 164.306.
(R) CONTRACTOR will establish, implement and maintain reasonable
procedural, administrative, physical and technical safeguards to preserve and maintain the
confidentiality, integrity, and availability oftheConfidential Information, andwith respect to
, as described in the HIPAA Privacy and Security Regulations,or other applicable laws
or regulations relating to Confidential Information, to prevent any unauthorized use or
disclosureof Confidential Information as long as CONTRACTOR has such Confidential
Information in its actual or constructive possession. 45 CFR 164.308 (administrative
safeguards); 164.310 (physical safeguards); 164.312 (technical safeguards);
164.530(c)(privacy safeguards).
(S) CONTRACTOR will designate and identify, a Person or Persons, as Privacy
Official 45 CFR 164.530(a)(1) andInformation SecurityOfficial, each of whom is authorized
to act on behalf of CONTRACTOR and is responsible for the development and
implementation of the privacy and security requirements in this DUA. CONTRACTOR will
provide name and current address, phone number and e-mail address for such designated
officials to HHS upon execution of this DUA and prior to any change. If such persons fail to
develop and implement the requirements of the DUA, CONTRACTOR will replace them
upon HHS request. 45 CFR 164.308(a)(2).
(T) CONTRACTOR represents and warrants that its Authorized Userseach have
a demonstrated need to know and have access to Confidential Information solely to the
minimum extent necessary to accomplish the Authorized Purposepursuant to this DUA and
the Base Contract, and further, that each has agreed in writing to be bound by the disclosure
and use limitations pertaining to theConfidential Information contained in this DUA. 45
CFR 164.502;164.514(d).
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(U) CONTRACTOR and its Subcontractors will maintain an updated, complete,
accurate and numbered list ofAuthorized Users, their signatures, titles and the date they
agreed to be bound by the terms of this DUA, at all times and supply it to HHS, as directed,
upon request.
(V) CONTRACTORwill implement, update as necessary, and document
reasonable and appropriate policies and procedures for privacy, security andBreach of
Confidential Information and an incident response plan for anEvent or Breach, to comply
with the privacy, security and breach notice requirements of this DUA prior to conducting
work under the Statement of Work. 45 CFR 164.308; 164.316; 164.514(d); 164.530(i)(1).
(W) CONTRACTOR will produce copies of its information security and privacy
policies andprocedures and records relatingto the use or disclosure of Confidential
Information received from, created by, or received, used or disclosed by CONTRACTOR for
an Authorized Purpose for HHS’s review and approval within 30 days of execution of this
DUA and upon request by HHS the following business day or other agreed upon time frame.
45 CFR 164.308; 164.514(d).
(X) CONTRACTOR will make available to HHS any information HHS requires
to fulfill HHS's obligations to provide access to,or copies of, PHI in accordance with HIPAA
and other applicable laws and regulations relating to Confidential Information.
CONTRACTOR will provide such information in atime andmanner reasonablyagreed upon
or as designated by theSecretary of the U.S. Department of Health and Human Services, or
other federal or state law. 45 CFR 164.504(e)(2)(i)(I).
(Y) CONTRACTOR will only conduct secure transmissions of Confidential
Information whether in paper, oral or electronic form, in accordance with applicable rules,
regulations and laws. A secure transmission of electronic Confidential Information in motion
includes, but is not limited to, Secure File Transfer Protocol (SFTP) or Encryption at an
appropriate level. If required by rule, regulation or law, HHS Confidential Information at rest
requires Encryption unless there is other adequate administrative, technical, and physical
security. All electronic data transferandcommunications of Confidential Information will be
through secure systems. Proofof system, mediaordevice security and/orEncryption must be
produced to HHS no later than 48 hours after HHS's written request in response to a
compliance investigation, audit or the Discovery of an Event or Breach. Otherwise, requested
production of suchproofwillbe made as agreed upon by the parties. De-identification of HHS
Confidential Information is a means of security. With respect to de-identification of PHI,
"secure"meansde-identified according to HIPAA Privacy standardsandregulatory guidance.
45 CFR 164.312; 164.530(d).
(Z) For each type of Confidential Information CONTRACTOR creates, receives,
maintains, uses, discloses, has access toor transmits in the performance of the Statement of
Work, CONTRACTOR will comply with the following laws rules and regulations, only to
the extent applicable and required by law:
Title 1, Part 10, Chapter 202, Subchapter B, Texas Administrative Code;
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The Privacy Act of 1974;
OMB Memorandum 07-16;
The Federal Information Security Management Act of 2002 (FISMA);
The Health Insurance Portability and Accountability Act of 1996 (HIPAA)
as defined in the DUA;
Internal Revenue Publication 1075 – Tax Information Security Guidelines
for Federal, State and Local Agencies;
National Institute of Standards and Technology (NIST) Special Publication
800-66 Revision 1 – AnIntroductory Resource Guide for Implementingthe
Health Insurance Portability and Accountability Act (HIPAA) Security
Rule;
NIST Special Publications 800-53 and 800-53A – Recommended Security
Controls for Federal Information Systems and Organizations, as currently
revised;
NIST Special Publication 800-47 – Security Guide for Interconnecting
Information Technology Systems;
NIST Special Publication 800-88, Guidelines for Media Sanitization;
NIST Special Publication 800-111, Guide to Storage of Encryption
Technologies for End User Devices containing PHI; and
Any other State or Federal law, regulation, or administrative rule relating to the specific HHS
program area that CONTRACTOR supports on behalf of HHS.
(AA) Notwithstanding anything to the contrary herein, CONTRACTOR will treat
any Personal Identifying Information it creates, receives, maintains, uses, transmits, destroys
and/or discloses in accordance with Texas Business and Commerce Code, Chapter 521 and
other applicable regulatory standards identified in Section 3.01(Z), and Individually
Identifiable Health Information CONTRACTOR creates, receives, maintains, uses,
transmits, destroys and/or discloses in accordance with HIPAA and other applicable
regulatory standards identified in Section 3.01(Z).
BREACH NOTICE, REPORTING AND CORRECTION REQUIREMENTS
Breach or Event Notification to HHS. 45 CFR 164.400-414.
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(A) CONTRACTORwillcooperate fully with HHS in investigating, mitigating to
the extent practicable and issuing notifications directed by HHS, for any Event or Breach of
Confidential Information to the extent and in the manner determined by HHS.
(B) CONTRACTOR’S obligation beginsat the Discovery of an Event or Breach
and continues as long as related activity continues, until all effects of the Event are mitigated
to HHS’s reasonable satisfaction (the "incident response period"). 45 CFR 164.404.
(C) Breach Notice:
(1) Initial Notice.
(a)For federal information, including without limitation, Federal
Tax Information,Social Security Administration Data, and Medicaid Client
Information, within the first, consecutive clock hour of Discovery, and for
all other typesof Confidential Informationnot more than 24 hours after
Discovery,or ina timeframe otherwise approved by HHS in writing, initially
report to HHS's Privacy and Security Officers via email at:
privacy@HHSC.state.tx.us and to the HHS division responsible for this
DUA; and IRS Publication 1075; Privacy Act of 1974, as amended by the
Computer Matching and Privacy Protection Act of 1988, 5 U.S.C. § 552a;
OMB Memorandum 07-16 as cited in HHSC-CMS Contracts for
information exchange.
(b) Report all information reasonably available to
CONTRACTOR about the Event or Breach of the privacy or security of
Confidential Information. 45 CFR 164.410.
(c)Name, and provide contact information to HHS for,
CONTRACTOR's single point of contact who will communicate withHHS
both on andoffbusiness hours during the incident response period.
(2) FormalNotice. No later than two business days after the Initial Notice
above, provide formal notification to privacy@HHSC.state.tx.us and to the HHS
division responsible for this DUA, including all reasonably available information
about the Event orBreach, and CONTRACTOR's investigation, including without
limitation and to theextent available: For(a) - (m) below: 45 CFR 164.400-414.
(a)The date the EventorBreachoccurred;
(b) The date of CONTRACTOR's and, ifapplicable,
Subcontractor's Discovery;
(c)A brief description of theEvent or Breach; including how it
occurred and who is responsible (or hypotheses, if not yetdetermined);
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(d) A brief description of CONTRACTOR's investigation and the
status of the investigation;
(e)A descriptionof the types and amount of Confidential
Informationinvolved;
(f) Identification of and number of all Individualsreasonably
believed to be affected, including firstand last name of the Individual and if
applicable the,Legally Authorized Representative, last known address,
age,telephonenumber, and email addressifit is a preferred contact method,
to the extent known or can be reasonably determined by CONTRACTOR at
that time;
(g) CONTRACTOR’s initial risk assessment of the Eventor
Breach demonstrating whether individual or other notices are required by
applicable law or this DUA for HHS approval, including an analysis of
whether there is a low probability of compromise of the Confidential
Information or whether any legal exceptions to notification apply;
(h) CONTRACTOR's recommendation for HHS’s approval as to
the steps Individuals and/or CONTRACTOR on behalf of Individuals,
should take to protect the Individuals from potential harm, including without
limitation CONTRACTOR’s provision of notifications, credit protection,
claimsmonitoring,and any specific protections for a Legally Authorized
Representative to take on behalf of anIndividual with special capacity or
circumstances;
(i) The steps CONTRACTOR has taken to mitigate the harm or
potential harm caused (including without limitation the provision of
sufficient resources tomitigate);
(j) The steps CONTRACTOR has taken, or will take, to prevent
or reduce the likelihood of recurrence of a similar Event or Breach;
(k) Identify, describe or estimate thePersons, Workforce,
Subcontractor, or Individuals and any lawenforcement that may be involved
in the Eventor Breach;
(l) Areasonable schedule for CONTRACTOR to provide regular
updates during normal business hours to the foregoing in the future for
response to the Event or Breach, but no less than every three (3) business
days or as otherwise directed by HHS, including information about risk
estimations, reporting, notification, if any, mitigation, corrective action, root
cause analysis and when such activities are expected to be completed;and
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(m) Anyreasonablyavailable, pertinentinformation, documents or
reports related to an Eventor Breachthat HHS requests following
Discovery.
Investigation, Response and Mitigation. 45 CFR 164.308, 310 and 312; 164.530
(A) CONTRACTOR will immediately conduct a full and complete investigation,
respond to the Event orBreach, commit necessary and appropriate staff and resources to
expeditiously respond, and report as required to and by HHS for incident response purposes
and for purposes of HHS’s compliance with report and notification requirements, to the
reasonable satisfaction of HHS.
(B) CONTRACTOR will complete or participate in a risk assessment as directed
by HHS following anEvent orBreach, and provide the final assessment, corrective actions
and mitigations to HHS for review and approval.
(C) CONTRACTOR will fully cooperate with HHS to respond to inquiries and/or
proceedings by state and federal authorities, Persons and/or Individuals about the Event or
Breach.
(D) CONTRACTOR will fully cooperate with HHS's efforts to seek appropriate
injunctive relief or otherwise prevent orcurtailsuch Event or Breach, or to recover or protect
any Confidential Information, including complying with reasonable corrective action or
measures, as specified by HHS in a Corrective Action Plan if directed by HHS under the Base
Contract.
Breach Notification to Individuals and Reporting to Authorities. Tex. Bus. &
Comm. Code §521.053; 45 CFR 164.404 (Individuals), 164.406 (Media); 164.408
(Authorities)
(A) HHS may direct CONTRACTOR to provide Breach notification to
Individuals, regulators or third-parties, as specified by HHS following aBreach.
(B) CONTRACTOR shall give HHS an opportunity to review and provide
feedback to CONTRACTOR and to confirm that CONTRACTOR's notice meets all
regulatory requirements regarding the time, manner and content of any notification to
Individuals, regulators or third-parties, or any notice required by other state or federal
authorities, including without limitation, notifications required by Texas Business and
Commerce Code, Chapter 521.053(b) and HIPAA. HHS shall have ten (10) business days to
provide said feedback to CONTRACTOR. Notice letters will be in CONTRACTOR's name
and on CONTRACTOR's letterhead, unless otherwise directed by HHS, and will contain
contact information, including the name and title of CONTRACTOR's representative, an
email address and a toll-free telephone number, if required by applicable law, rule, or
regulation, for the Individual to obtain additional information.
(C) CONTRACTORwill provide HHS with copies of distributed and approved
communications.
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(D) CONTRACTOR will have the burden of demonstrating to the reasonable
satisfaction of HHS that any notification required by HHS was timely made. If there are delays
outside of CONTRACTOR's control, CONTRACTOR will provide written documentationof
the reasons for the delay.
(E) If HHS delegates notice requirements to CONTRACTOR, HHS shall, in the
time and manner reasonably requested by CONTRACTOR, cooperate and assist with
CONTRACTOR’s information requests in order to make such notifications and reports.
STATEMENT OF WORK
“Statement of Work” means the services and deliverables to be performed or provided by
CONTRACTOR, or on behalf of CONTRACTOR by its Subcontractors or agents for HHS that are
described in detail in the Base Contract. The Statement of Work, including any future amendments
thereto, is incorporated by reference in this DUA as if set outword-for-word herein.
GENERAL PROVISIONS
Oversight of Confidential Information
CONTRACTOR acknowledges and agrees that HHS is entitled to oversee and monitor
CONTRACTOR's access to and creation, receipt, maintenance, use, disclosure of the Confidential
Information to confirm that CONTRACTOR is in compliance with this DUA.
HHS Commitment and Obligations
HHS will not request CONTRACTOR tocreate, maintain,transmit,use or disclose PHI in
any manner that would not be permissible under applicable law if done by HHS.
HHS Right to Inspection
At any time upon reasonable notice to CONTRACTOR, or if HHS determines that
CONTRACTOR has violated this DUA, HHS, directly or through its agent, will have the right to
inspect the facilities, systems, books andrecords of CONTRACTOR to monitor compliance withthis
DUA. For purposes of this subsection, HHS’s agent(s) include, without limitation, the HHS Office of
the Inspector General or the Office of the Attorney General of Texas, outside consultants or legal
counsel or other designee.
Term; Termination of DUA; Survival
This DUA will be effective on the date on which CONTRACTOR executes the DUA, and
will terminate upon termination of the Base Contract and as set forth herein. If the Base Contract is
extended or amended, this DUA shall be extended or amended concurrent with such extension or
amendment.
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(A) HHSmay immediately terminate this DUA and Base Contract upon a material
violation of this DUA.
(B) Termination orExpiration of this DUA will not relieve CONTRACTOR of its
obligation to return or Destroy the Confidential Information as set forth in this DUA and to
continue to safeguard theConfidential Information until such time as determined by HHS.
(C) If HHS determines that CONTRACTOR has violated a material term of this
DUA; HHS may in its sole discretion:
(1) Exercise any of its rights including but not limited to reports, access
and inspection under this DUA and/or the Base Contract; or
(2) Require CONTRACTOR to submit to a Corrective Action Plan,
including a plan for monitoring and plan for reporting, as HHS may determine
necessary to maintain compliance with this DUA;or
(3) Provide CONTRACTORwith a reasonable period to cure the
violation as determined by HHS; or
(4) Terminate the DUA and Base Contract immediately, and seek relief in
a court of competent jurisdiction in Texas.
Before exercising any of these options, HHS will provide written notice to
CONTRACTOR describing the violation,the requested corrective action CONTRACTOR
may take to cure the alleged violation, and the action HHS intends to take if the alleged
violated is not timely cured by CONTRACTOR.
(D) If neither termination nor cure is feasible, HHS shall report the violation to the
Secretary of the U.S. Department of Health and Human Services.
(E) The duties of CONTRACTOR or its Subcontractor under this DUA survive
the expiration or termination of this DUA until all the Confidential Information is Destroyed
or returned to HHS, as required by this DUA.
Governing Law, Venue and Litigation
(A) The validity, construction and performanceof this DUA and the legal relations
among the Partiesto this DUA will be governed by and construed in accordance with the laws
of the State of Texas.
(B) The Parties agree that thecourtsofTexas, will be the exclusive venue for any
litigation, special proceeding or other proceedingas between the parties that may be brought,
or arise out of, or in connection with, or by reason of this DUA.
Injunctive Relief
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(A) CONTRACTOR acknowledges and agrees that HHS may suffer irreparable
injury if CONTRACTOR or its Subcontractor fails to comply with any of the terms of this
DUA with respect to the ConfidentialInformation or a provision ofHIPAA or other laws or
regulations applicable to Confidential Information.
(B) CONTRACTOR further agrees that monetary damages may be inadequate to
compensate HHS for CONTRACTOR'sor its Subcontractor's failure to comply. Accordingly,
CONTRACTOR agrees that HHS will, inadditiontoanyother remedies available toit at law
or in equity, be entitled to seek injunctive relief without posting a bond and without the
necessity of demonstrating actual damages, to enforce the terms of this DUA.
Responsibility.
To the extent permitted by the Texas Constitution, laws and rules, and without waiving any
immunities or defenses available to CONTRACTOR as a governmental entity, CONTRACTOR
shall be solely responsible for its own acts and omissions and the acts and omissions of its
employees, directors, officers, Subcontractors and agents. HHS shall be solely responsible for its
own acts and omissions.
6.08 Insurance
(A) As a governmental entity, and in accordance with the limits of the Texas Tort
Claims Act, Chapter 101 of the Texas Civil Practice and Remedies Code, CONTRACTOR
either maintains commercial insurance or self-insures with policy limits in an amount
sufficient to cover CONTRACTOR's liability arising under this DUA. CONTRACTOR will
request that HHS be named as an additional insured. HHSC reserves the right to consider
alternative means for CONTRACTOR to satisfy CONTRACTOR's financial responsibility
under this DUA. Nothing herein shall relieve CONTRACTOR of its financial obligations set
forth in thisDUA if CONTRACTOR failstomaintaininsurance.
(B) CONTRACTORwill provide HHSwith written proof that required insurance
coverage is in effect, at the request of HHS.
Fees and Costs
Except as otherwise specified in this DUA or the Base Contract, if any legal action or other
proceeding is brought for the enforcement of this DUA, or because of an alleged dispute, contract
violation, Event, Breach, default, misrepresentation, or injunctive action, in connection with any of
the provisions of this DUA, each party willbear their own legal expenses andthe other cost incurred
in that action or proceeding.
Entirety of the Contract
This DUA is incorporated by reference into the Base Contract as an amendment thereto
and, together with the Base Contract, constitutes the entire agreement between the parties. No
change, waiver, or discharge of obligations arising under those documents will be valid unless in
writing and executed by the party against whom such change, waiver, or discharge is sought tobe
HHS Data Use Agreement
TACCHO VERSION (Local City and County Entities) October 23, 2019
Page 14 of 15
enforced. If any provision of the Base Contract, including any General Provisions or Uniform
Terms and Conditions, conflicts with this DUA, this DUA controls.
Automatic Amendment and Interpretation
If there is (i) a change in any law, regulation or rule, state or federal, applicable to HIPPAand/or
Confidential Information, or (ii) any change in the judicial or administrative interpretation of any
such law, regulation or rule,, upon the effective dateof such change, this DUA shall be deemedto
have been automatically amended, interpreted and read so that the obligations imposed on HHS
and/or CONTRACTOR remain in compliance with such changes. Any ambiguity in this DUA will
be resolved in favor of a meaning that permits HHS and CONTRACTOR to comply with HIPAA
or any other law applicable to Confidential Information.
HHS Data Use Agreement
TACCHO VERSION (Local City and County Entities) October 23, 2019
Page 15 of 15
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Electronic Record and Signature Disclosure created on: 9/14/2020 7:10:18 PM
Parties agreed to: The Honorable Tray Payne, Helen Whittington, Patty Melchior, Kirk Cole, Amber Aguilar
ELECTRONIC RECORD AND SIGNATURE DISCLOSURE
From time to time, DSHS Contract Management Section (we, us or Company) may be required
by law to provide to you certain written notices or disclosures. Described below are the terms
and conditions for providing to you such notices and disclosures electronically through the
DocuSign system. Please read the information below carefully and thoroughly, and if you can
access this information electronically to your satisfaction and agree to this Electronic Record and
Signature Disclosure (ERSD), please confirm your agreement by selecting the check -box next to
`I agree to use electronic records and signatures' before clicking `CONTINUE' within the
DocuSign system.
Getting paper copies
At any time, you may request from us a paper copy of any record provided or made available
electronically to you by us. You will have the ability to download and print documents we send
to you through the DocuSign system during and immediately after the signing session and, if you
elect to create a DocuSign account, you may access the documents for a limited period of time
(usually 30 days) after such documents are first sent to you. After such time, if you wish for us to
send you paper copies of any such documents from our office to you, you will be charged a
$0.00 per -page fee. You may request delivery of such paper copies from us by following the
procedure described below.
Withdrawing your consent
If you decide to receive notices and disclosures from us electronically, you may at any time
change your mind and tell us that thereafter you want to receive required notices and disclosures
only in paper format. How you must inform us of your decision to receive future notices and
disclosure in paper format and withdraw your consent to receive notices and disclosures
electronically is described below.
Consequences of changing your mind
If you elect to receive required notices and disclosures only in paper format, it will slow the
speed at which we can complete certain steps in transactions with you and delivering services to
you because we will need first to send the required notices or disclosures to you in paper format,
and then wait until we receive back from you your acknowledgment of your receipt of such
paper notices or disclosures. Further, you will no longer be able to use the DocuSign system to
receive required notices and consents electronically from us or to sign electronically documents
from us.
All notices and disclosures will be sent to you electronically
Unless you tell us otherwise in accordance with the procedures described herein, we will provide
electronically to you through the DocuSign system all required notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided or made
available to you during the course of our relationship with you. To reduce the chance of you
inadvertently not receiving any notice or disclosure, we prefer to provide all of the required
notices and disclosures to you by the same method and to the same address that you have given
us. Thus, you can receive all the disclosures and notices electronically or in paper format through
the paper mail delivery system. If you do not agree with this process, please let us know as
described below. Please also see the paragraph immediately above that describes the
consequences of your electing not to receive delivery of the notices and disclosures
electronically from us.
How to contact DSHS Contract Management Section:
You may contact us to let us know of your changes as to how we may contact you electronically,
to request paper copies of certain information from us, and to withdraw your prior consent to
receive notices and disclosures electronically as follows:
To contact us by email send messages to: alison.joffrion@hhsc.state.tx.us
To advise DSHS Contract Management Section of your new email address
To let us know of a change in your email address where we should send notices and disclosures
electronically to you, you must send an email message to us at alison.joffrion@hhsc.state.tx.us
and in the body of such request you must state: your previous email address, your new email
address. We do not require any other information from you to change your email address.
If you created a DocuSign account, you may update it with your new email address through your
account preferences.
To request paper copies from DSHS Contract Management Section
To request delivery from us of paper copies of the notices and disclosures previously provided
by us to you electronically, you must send us an email to alison.joffrion@hhsc.state.tx.us and in
the body of such request you must state your email address, full name, mailing address, and
telephone number. We will bill you for any fees at that time, if any.
To withdraw your consent with DSHS Contract Management Section
To inform us that you no longer wish to receive future notices and disclosures in electronic
format you may:
i. decline to sign a document from within your signing session, and on the subsequent page,
select the check -box indicating you wish to withdraw your consent, or you may;
ii. send us an email to alison.joffrion@hhsc.state.tx.us and in the body of such request you must
state your email, full name, mailing address, and telephone number. We do not need any other
information from you to withdraw consent.. The consequences of your withdrawing consent for
online documents will be that transactions may take a longer time to process..
Required hardware and software
The minimum system requirements for using the DocuSign system may change over time. The
current system requirements are found here: https://support.docusi ng com/guides/signer- uide-
si nmg-system-requirements.
Acknowledging your access and consent to receive and sign documents electronically
To confirm to us that you can access this information electronically, which will be similar to
other electronic notices and disclosures that we will provide to you, please confirm that you have
read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for
your future reference and access; or (ii) that you are able to email this ERSD to an email address
where you will be able to print on paper or save it for your future reference and access. Further,
if you consent to receiving notices and disclosures exclusively in electronic format as described
herein, then select the check -box next to `I agree to use electronic records and signatures' before
clicking `CONTINUE' within the DocuSign system.
By selecting the check -box next to `I agree to use electronic records and signatures', you confirm
that:
You can access and read this Electronic Record and Signature Disclosure; and
You can print on paper this Electronic Record and Signature Disclosure, or save or send
this Electronic Record and Disclosure to a location where you can print it, for future
reference and access; and
Until or unless you notify DSHS Contract Management Section as described above, you
consent to receive exclusively through electronic means all notices, disclosures,
authorizations, acknowledgements, and other documents that are required to be provided
or made available to you by DSHS Contract Management Section during the course of
your relationship with DSHS Contract Management Section.