4-Sample ODA Contract.docx

The AGREEMENT BETWEEN

MONTGOMERY COUNTY

DEPARTMENT OF HEALTH AND HUMAN SERVICES

OFFICE OF DRUG AND ALCOHOL (SCA)

P.O. BOX 311

NORRISTOWN, PA 19404-0311

AND

Vendor

WHEREFORE, in witness of the covenants set forth below on the attached pages, the parties have affixed their signatures hereto:

BY: DATE:

Signature of Contractor

Title Print/Type Name

BY: DATE:

Signature of Contractor

Title Print/Type Name

MONTGOMERY COUNTY

IF THE CONTRACTOR IS A CORPORATE ENTITY PLEASE HAVE EITHER THE PRESIDENT OR VICE PRESIDENT AND EITHER THE SECRETARY/ASSISTANT SECRETARY OR TREASURER/ASSISTANT TREASURER OF THE CORPORATION SIGN. IF ANY OTHER PERSON HAS AUTHORITY TO EXECUTE CONTRACTS, THAT PERSON MAY SIGN, BUT A COPY OF THE DOCUMENT CONFERRING THAT AUTHORITY (SUCH AS BY-LAWS OR CORPORATE RESOLUTION) MUST BE SENT WITH THIS CONTRACT WHEN RETURNING IT FOR PROCESSING.

The Department of Health and Human Services, Office of Drug and Alcohol (SCA)

AGREEMENT

THIS AGREEMENT is made by and between the Montgomery County Department of Health and Human Services – Office of Drug and Alcohol, (“SCA”), and Vendor, (“CONTRACTOR”).

WHEREAS, the SCA has received or is anticipating receiving state and federal funds from the Commonwealth of Pennsylvania, Department of Drug and Alcohol Programs (“DDAP”), and funds from other sources including SCA County, for the provision of drug and alcohol abuse treatment and prevention and other services; and

WHEREAS, the SCA desires to contract with CONTRACTOR for the provision of such services; and

WHEREAS, the parties desire to set forth their understandings and agreements in writing.

NOW, THEREFORE, for good and valuable consideration, the parties, intending to be legally bound, hereby agree as follows:

I. TERM: This contract shall be effective from ______ through _________, subject to the other provisions herein, unless terminated earlier by either party in accordance with the termination provisions of this agreement.

II. TERMINATION: Either party may terminate this agreement by providing the other party sixty (60) days advance written notice at the address set forth below:

SCA:

Montgomery County Department of Health and Human Services (HHS) Office of Drug and Alcohol PO Box 3111 Norristown, PA 19404-0311 Attention: _____________, Administrator – Office of Drug and Alcohol

CONTRACTOR:

Attention: Contact

Vendor Address

III. CONTRACT AMOUNT/INVOICING PROCEDURES: This contract is contingent on and subject to the availability of federal, state and local funds. The SCA will make payment under this contract for the work performed as set forth in the Work Statement of this contract in accordance with the attached budget, up to a maximum amount of $ . The total funding amount is allocated as follows:

SCA will pay for and CONTRACTOR shall submit invoices for services rendered pursuant to this Agreement. Subject to the availability of local, state, federal and other funds, and the other terms and conditions of this contract, SCA will reimburse CONTRACTOR in accordance with the budget for the costs incurred in providing the services described in this contract. SCA shall have the right to disapprove any expenditures made by CONTRACTOR which are not in accordance with the terms of this Agreement and adjust payment to the CONTRACTOR accordingly.

SCA specific invoicing procedures and Fiscal staff contacts are covered in the work statements provided in Appendix E. Invoicing instructions and forms may also be found on the Montgomery County Drug & Alcohol website under the Fiscal Section at: https://www.montcopa.org/746/Fiscal-Forms.

SCA, at its option, may withhold the last 20% of reimbursement due under this Agreement, until SCA has determined that all work and services required under this Agreement have been performed or delivered in a manner acceptable to SCA.

The CONTRACTOR shall, upon request, furnish SCA or DDAP receipts of itemized bills for all expenditures incurred in the performance of the project, and billed in a particular period. The expenditures must be substantiated by documentation including, but not limited to, certified copies of payroll vouchers, travel vouchers, and storeroom requisitions.

CONTRACTOR shall comply with the DDAP Fiscal Manual and the following procedures for all funds provided under this Agreement:

Any interest income derived by CONTRACTOR from Departmental funds shall be used to secure additional eligible drug and alcohol services and shall be clearly identified as having been so used.

CONTRACTOR shall ensure that funds provided under this Agreement are not utilized to pay for any item or service to the extent that payment has been made or can reasonably be expected to be made with respect to that item or service through other income.

IV. WORK STATEMENT: CONTRACTOR shall provide the work and services and activities as set forth and described in Appendix F, and in accordance with the applicable DDAP Manuals.

V. APPENDICES AND ATTACHMENTS: The following attached Appendices and attachments are incorporated into and made a part of this contract:

Appendix F- Work Statement Appendix G- Audit Requirements Appendix H- Montgomery County, PA Insurance Requirements

The DDAP Manuals can be accessed via the website: www.ddap.pa.gov.

The DDAP Manuals are incorporated by reference and made a part of this Agreement.

VI. CONTRACT CONDITIONS:

1. STANDARD GENERAL TERMS AND CONDITIONS

CONTRACTOR agrees to abide by and comply with the service requirements, all reporting requirements, and contract conditions as provided herein.

1. Modification: SCA reserves the right to amend this Agreement at any time pursuant to amendments in the SCA Grant Agreement with the Department of Drug and Alcohol Programs. CONTRACTOR will be notified in advance of any such Contract language amendments. Any alteration, variation, modification, or waiver of a provision of this Agreement shall be valid only when reduced to writing, duly signed by the SCA and CONTRACTOR, and attached to the original of the Agreement.

2. Contract Construction: The provisions of this Agreement shall be construed in accordance with the Laws of the Commonwealth of Pennsylvania. CONTRACTOR shall include all of the performance and regulatory provisions of this Agreement in every sub-contract under this Agreement so that the contractual provisions also bind each sub-contractor.

CONTRACTOR agrees to comply with all applicable requirements of the SCA Grant Agreement with DDAP, and the applicable provisions of the DDAP Manuals, and any subsequent revisions thereto. CONTRACTOR shall comply with all applicable state and federal regulations and laws. All documents referenced in this paragraph are incorporated herein by reference. Each provision enumerated herein or incorporated by reference hereto shall be deemed to be material and any breach thereof may be considered a material breach of this Agreement.

3. Independent Contractor: The parties hereto agree that the CONTRACTOR, and any agents and employees of the CONTRACTOR, in the performance of this Contract, shall act in an independent capacity and not as officers, employees, or agents of SCA or the Commonwealth of Pennsylvania. CONTRACTOR shall be responsible for the payment of all payroll taxes and shall provide and be responsible for all premiums for public liability, property damage, and workers’ compensation insurance, insuring as they may appear, the interests of the SCA and CONTRACTOR against any and all claims which may arise out of CONTRACTOR’s operations pursuant to this Agreement.

4. Department and SCA Held Harmless: CONTRACTOR agrees to indemnify, defend and save harmless the Commonwealth (including DDAP), its officers, agents, and employees and the SCA, its officers, agents, and employees: (a) from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, materialmen, laborers and any other persons, firms or corporations furnishing or supplying work, services, materials or supplies in connection with the performance of this Agreement; and (b) from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by the CONTRACTOR in the performance of this Agreement; and (c) against any liability, including costs and expenses, for violation of proprietary rights or right of privacy, arising out of the publication, translation, reproduction, delivery, performance, use or disposition of any data furnished under this Agreement or based on any libelous or other unlawful matter contained in such data.

5. Assignability: CONTRACTOR shall not assign this Agreement, in whole or in part, or payment hereunder, to any third party without prior written approval by SCA. A change of name by CONTRACTOR, provided CONTRACTOR’s Federal Identification Number (EIN) remains unchanged, shall not be considered an assignment hereunder. Written notice of any change of name must be given by CONTRACTOR to SCA within seven (7) business days of the change.

6. Sub-Contracts: Except for those sub-contracts specifically authorized by this Agreement, CONTRACTOR shall not enter into sub-contracts for any work contemplated under this Agreement without obtaining prior written approval of SCA. Provided, however, notwithstanding the foregoing, unless otherwise provided herein, such prior written approval shall not be required for the purchase by CONTRACTOR of articles, supplies, equipment and services which are both necessary for and merely incidental to the performance of the work required under this Agreement. No provision of this clause and no approval by SCA of any sub-contract shall be deemed in any event in any manner to provide for the incurrence of any obligation of SCA in addition to the total agreed upon contract amount. A copy of all sub-contracts must be provided to SCA prior to execution.

7. Other Contractors: DDAP or SCA may undertake or award other contracts for additional or related work, and CONTRACTOR shall fully cooperate with other contractors, DDAP employees and SCA employees and carefully fit its work to such additional work. CONTRACTOR shall not commit or permit any act, which will interfere with the performance of work by any other contractor or by DDAP employees or SCA employees.

This paragraph shall be included in the contracts of all contractors with whom this CONTRACTOR will be required to cooperate. DDAP and SCA shall equitably enforce this paragraph as to all contractors to prevent the imposition of unreasonable burdens on any contractor.

8. Availability of Information: CONTRACTOR agrees that all information obtained during the period of this Agreement by CONTRACTOR through work governed by this Agreement shall be made available to DDAP and SCA immediately upon demand.

9. Fiscal and Program Records: CONTRACTOR agrees to maintain program records and program statistical records required by DDAP or SCA and agrees that a program and facilities review, including meetings with consumers, review of service records, review of service policy and procedural issuances, review of staffing ratios and job descriptions, and meetings with any staff directly or indirectly involved in the provision of services.

CONTRACTOR agrees to maintain books, records, documents and other evidence pertaining to the costs and expenses of this Agreement (hereinafter referred to in this paragraph 9 as "the records"), to the extent and in such detail as will properly reflect all net costs, direct and indirect, of labor, materials, equipment, supplies and services and other costs and expenses of whatever nature for which reimbursement is claimed under the provisions of this contract. If CONTRACTOR is not a public body, CONTRACTOR agrees to maintain books, records, documents and other evidence in accordance with accounting procedures and practices which meet generally accepted accounting principles.

If this Agreement provides funding for a clinic or program which receives income or funding other than directly through this Agreement (such as, but not limited to, third party reimbursement for patients), CONTRACTOR agrees that all parts of this paragraph 9 shall also apply to CONTRACTOR's records pertaining to such other sources of funding or income supporting the clinic or program.

CONTRACTOR agrees to make available at the Office of the CONTRACTOR at all reasonable times during the term of this Agreement and the period set forth in Paragraph 10 below, any of the records for inspection, audit or reproduction by any authorized representative of the Department, the Department's Comptroller, the Auditor General, the Inspector General, Federal auditors or SCA.

The provisions of this Paragraph 9 shall be applicable to and included in each sub-contract hereunder.

CONTRACTOR agrees to collect statistical data of a fiscal nature on a regular basis and to make fiscal statistical reports at times prescribed by, and on forms furnished by DDAP and SCA.

10. Record Retention Requirements: All records shall be retained pursuant to the provisions of this paragraph.

A. CONTRACTOR shall preserve and make available its records for a period of five (5) years from the date of final payment by SCA to CONTRACTOR, and for such period, if any, as is required by applicable statute, by any other paragraph of this Agreement, or by sub-paragraphs (1) or (2) below.

(1) If this Agreement is completely or partially terminated, the records relating to the work terminated shall be preserved and made available for a period of five (5) years from the date of any resulting final payment.

(2) Records which relate to litigation or the settlement of claims arising out of the performance of this Agreement, or costs and expenses of this Agreement as to which exception has been taken by the auditors, shall be retained by the CONTRACTOR until such litigation, claims, or exceptions have been disposed of.

B. Except for the records described in sub-paragraph A(2) above, the CONTRACTOR may, in fulfillment of its obligation to retain its records as required by this paragraph, substitute photographs, microphotographs, or other authentic reproductions of such records, after the expiration of two (2) years following the last day of the month of reimbursement to the CONTRACTOR of the invoice or voucher to which such records relate, unless a shorter period is authorized by DDAP or SCA, with the concurrence of the auditors.

C. Additionally, other regulations may supersede the aforementioned retention requirements, such as the Health Insurance Portability and Accountability Act (HIPAA). At a minimum, HIPAA requires all client-identifying information to be retained for a period of six (6) years after final service payment. CONTRACTOR should consult HIPAA regulations for complete compliance requirements.

11. Evaluation Component: All work performed under this Agreement shall include an evaluation component. CONTRACTOR shall participate in the collection of data as required by DDAP or SCA, based on federal requirements and as determined by SCA to track clients and performance outcome measures. CONTRACTOR shall ensure complete, timely and accurate reporting of data to include transferring that data to DDAP and SCA.

12. Federal Funds: If CONTRACTOR is contributing toward the general contract cost, Contractor certifies that the Federal funds to be used under this Agreement do not replace or supplant in any way State, local, or private funds used for already existing services. Contractor further certifies that the services to be provided under this Agreement are not already available without cost and that State funds do not replace or supplant local funding for already existing services.

13. Quality Assurance: Unless otherwise provided herein, CONTRACTOR, with due diligence, shall furnish all necessary qualified personnel, material and equipment, managing and directing same to complete the work required by this Agreement. CONTRACTOR’s work hereunder shall be monitored by SCA’s designated representatives. In an effort to ensure uniformity of service delivery and evaluation, CONTRACTOR agrees to utilize forms, reports, and any instruments for the collection of data, as may be required by SCA from time to time or on an ongoing basis. SCA reserves the right to disallow the payment for services resulting from documentation and/or billing errors found during the annual monitoring visit.

14. Program Changes: SCA may at any time, by written order, make changes in the statement of work, provided such changes are within the general scope of the statement of work and provided further that the total cost of this Agreement is not exceeded. A change in the scope of work or an increase in the total cost of this Agreement shall require a fully executed contract amendment. SCA and CONTRACTOR shall mutually determine whether the ordered changes can be accomplished within the total contract cost and the extent of change, if any, in delivery schedules required by the ordered changes.

15. Written Commitment: Any written commitment or representation of CONTRACTOR made within the scope of this Agreement shall be binding upon CONTRACTOR and shall be incorporated as a part of this Agreement.

16. Key Personnel: CONTRACTOR agrees to ensure that key staff are available for all Quality Assurance Assessment Reviews and any follow-up visits required by DDAP and/or SCA. Prior to the diversion of key staff to other programs, CONTRACTOR shall notify SCA in advance and shall submit justification including the proposed substitutions, in detail sufficient to permit evaluation of the impact of the changes on the program.

17. Inspection and Acceptance: Final inspection and acceptance of all work required under this Agreement shall be performed by SCA.

18. Travel and Subsistence Costs: CONTRACTOR agrees that SCA shall not be liable for travel or subsistence costs except as specifically set forth in Paragraph VI. C. of this Agreement.

19. Data, Copyrights, and Disclosure: Data, as defined herein, may be copyrighted by the CONTRACTOR only upon prior written approval of DDAP and SCA. Where CONTRACTOR receives such approval, DDAP retains a royalty-free, non-exclusive, and irrevocable license to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others to do so, all materials originating in the performance of this Grant Agreement, whether funded in whole or in part by SCA.

A. Definition: The term “data” as used herein, includes, but is not necessarily limited to written reports and analyses, diagrams, maps, system designs, computer programs, flow charts, software, magnetic tapes, diskettes, drawings, studies, manuals, brochures, advertisements, documents, sketches, papers, files, information, computer documentation, or other tangible materials, and work of any similar nature which is required to be performed by or for CONTRACTOR under this Agreement or which is incidentally prepared by or for CONTRACTOR in the performance of this Agreement. Data includes background material prepared by or for CONTRACTOR incidental to the performance of this Agreement. Background material is defined as original work papers, notes, and drafts prepared by or for CONTRACTOR to support conclusions in any final report or product delivered under this agreement, including but not limited to completed questionnaires, and material in electronic data processing form, computer programs, and other tangible materials produced by or for CONTRACTOR during the term of this Agreement and directly related to the services being rendered. It does not include CONTRACTOR’s financial reports or other information incidental to Agreement administration.

B. Preexisting Materials Brought by Contractor to the Project: DDAP and SCA shall have no ownership rights to CONTRACTOR’s proprietary materials, methodologies or other intellectual property that CONTRACTOR brings to the service provision or has previously developed with or obtained from third parties. Notwithstanding the foregoing provision, where materials brought by CONTRACTOR to the service provision are necessary to use the deliverables required under this Agreement, CONTRACTOR shall, and hereby effectively does, grant to DDAP and SCA a paid-up, nonexclusive, nontransferable license to use, modify, prepare derivative works, and to grant to third parties engaged by the Commonwealth the right to use, modify, and prepare derivative works, from all or any portion of the material brought by CONTRACTOR to the service provision.

C. Ownership of Data: Any Data that fits the definition of “work made for hire”, as that term is defined in United States copyright law, shall be considered a “work made for hire.” All rights to these Data shall vest in DDAP, which shall have the sole and exclusive ownership of all Data. In the event that such Data do not fall within the specifically enumerated works that constitute “works made for hire” under the United States copyright laws, CONTRACTOR agrees to assign and, upon their authorship or creation, expressly and automatically assigns all copyright interests, proprietary rights, trade secrets, and other right, title and interest in and to such Data to DDAP. DDAP shall have the rights accorded a holder of copyright under the United States copyright laws including, but not limited to, the exclusive right to reproduce the Data in copies, the right to distribute copies by sale or other transfers, the right to register all copyrights in its own name as author in the United States and foreign countries, the right to prepare derivative works based upon the Data, and the right to display the Data. Upon completion or termination of this Agreement, CONTRACTOR shall immediately deliver all working papers, files, background material, and other documentation to SCA. CONTRACTOR warrants that the Data are original and do not infringe the rights of any other work.

D. Data Processing: All computer programs, tapes, and software developed under this Agreement, and any data or information provided to DDAP or SCA by diskette or electronic means, shall be compatible with DDAP computer systems. Specifications, if not included elsewhere in the Agreement, may be obtained from SCA.

E. Federal Government Interests: It is understood that certain funding under this Agreement may be provided by the Federal Government. Accordingly, the rights to Data of Contractors or subcontractors hereunder will be further subject to government rights as set forth in 37 C.F.R. Section 401, and other applicable statutes. Notwithstanding the foregoing, DDAP retains the right to share information with the Federal Government relating to Data developed under a wholly state-funded Contract.

F. Defense of Infringement Claim: CONTRACTOR shall hold the Commonwealth and SCA harmless for any suit or proceeding brought against the Commonwealth, including DDAP, or its officials or employees, or SCA, or its officials or employees, on account of any alleged infringement of any United States or foreign copyrights, patents, trademarks, or trade secrets arising out of the performance of this Agreement, including any suit or proceeding relating to all work, services, materials, reports, studies and computer programs provided by CONTRACTOR. CONTRACTOR shall pay all damages and costs awarded therein against the Commonwealth or SCA. Pursuant to the Commonwealth Attorney’s Act, 71 P.S. Sections 732-101, et seq., the Office of the Attorney General (OAG) has the sole authority to represent the Commonwealth in actions brought against the Commonwealth. The OAG may, however, in its sole discretion and under the terms it deems appropriate, delegate its right of defense. If information and assistance are furnished by the Commonwealth at CONTRACTOR’s written request, it shall be at the CONTRACTOR’s expense, but the responsibility for such expense shall be only that within the CONTRACTOR’s written request. If any of the data, materials, reports, studies or computer programs provided by CONTRACTOR are held to constitute infringement, and the use of publication thereof is enjoined in such suit or proceeding, CONTRACTOR shall, at its own expense and at its option, either procure the right to publish or continue use of such infringing data, materials, reports, studies or computer programs, replace them with non-infringing items, or so modify them so that they are no longer infringing. If after a reasonable time and good faith effort, CONTRACTOR is unable to comply with the requirements of the immediately preceding sentence, CONTRACTOR shall return to DDAP/SCA that portion of contract funds expended by CONTRACTOR in relation to the infringing item. The obligations of CONTRACTOR under this paragraph continue without time limit.

20. Department Approval and Attribution:

(A) All printed material is subject to written pre-approval by DDAP/SCA. “Printed material” includes, but is not limited to, notices, informational pamphlets, press releases, research reports, brochures, manuals, labels, newsletters, artwork and print advertisements. All printed material must bear the DDAP logo and the names and titles of the Governor and the Secretary of the Department of Drug and Alcohol Programs unless otherwise authorized in writing by DDAP’s Contracting Officer and SCA. All material produced for radio and television must also be approved for quality of content and accreditation in writing by DDAP and SCA prior to final production as well as after final production.

(B) DDAP attribution shall be at DDAP’s sole discretion. If DDAP requires attribution on printed materials, CONTRACTOR shall include the following statement on printed materials released by CONTRACTOR: “This project is funded, in part, under a contract with the Pennsylvania Department of Drug and Alcohol Programs. Basic data for use in this study were supplied by the Pennsylvania Department of Drug and Alcohol Programs, Harrisburg, Pennsylvania. DDAP takes no part in and is in no way responsible for any analyses, interpretations or conclusions,” or another statement approved by DDAP. If DDAP requires attribution on materials produced for radio or television, CONTRACTOR shall include a statement approved by DDAP.

21. Forms Approval: All forms, questionnaires, survey instruments, etc., developed under this Agreement shall be subject to prior written approval by DDAP and/or SCA.

22. Confidentiality, Sensitive Documents and Information:

A. CONTRACTOR shall maintain the confidentiality of medical records of individuals served by CONTRACTOR under this Agreement except to disclose such confidential information to DDAP and/or SCA for purposes of consultation or DDAP’s and/or SCA’s monitoring of this Agreement.

B. CONTRACTOR shall not publish or otherwise disclose, except to DDAP and/or SCA, and except matters of public record, any information or data obtained hereunder from private individuals, organizations, or public agencies, in a publication whereby the information or data furnished by or about any particular person or establishment can be identified, except with the informed consent of such person or establishment.

C. CONTRACTOR shall not release any sensitive documents or information without the prior written approval of DDAP and/or SCA. The term “sensitive documents or information” shall mean a document or information that contains the description, design, operational plan, or other vital information about a critical facility or infrastructure located in Pennsylvania and bordering states (e.g., nuclear power plants, hazardous chemical plant, oil refinery, bridge, dam, tunnel, etc.), or contains information about the operational protocols or emergency response capabilities of state and local agency personnel, the content of which could be used by a terrorist or enemy of the United states to plan an attack upon a critical facility located in Pennsylvania and bordering states or engages in other activities that could cause death or injury to fire, police, medical, military, or other emergency response personnel, public officials, or the general public.

23. Collection or Recording of Information: CONTRACTOR shall submit to the SCA for written approval prior to use copies of each questionnaire and survey plan, including plans for structured interviews and consultations, for the collection of information upon identical items from five (5) or more individuals or organizational elements. The term “structured interview and consultation” is defined as an interview or consultation which follows a pre-designed line of questioning that takes approximately the same form for all the respondents being interviewed or consulted.

24. Interests of the Members of the Commonwealth and Others: No officer, member or employee of the Commonwealth and no member of its General Assembly, who exercises any functions or responsibilities under this agreement, shall participate in any decision relating to this agreement which affects that person’s personal interest or the interest of any corporation, partnership, or association in which that person is, directly or indirectly, interested; nor shall any such officer, member or employee of the Commonwealth or member of its general assembly have any interest, direct or indirect, in this Agreement or the proceeds thereof.

25. Interest of Contractor: For purposes of this Agreement, having an adverse interest means being employed by or sitting in an advisory position to; having a contract or agreement to provide services or materials, supplies, equipment, land or other personal or real property to; or having more than five (5%) percent ownership interest including ownership in the aggregate by such person and any immediate family member in a company, corporation or organization with whom CONTRACTOR contracts. For purposes of this Paragraph, a member of the immediate family means a parent, sibling, spouse, child, grandparent, grandchild or in-laws. CONTRACTOR further covenants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of its services hereunder. CONTRACTOR further covenants that in the performance of this Agreement, it shall not knowingly employ or make a contract for reimbursable services with any person having such interest. CONTRACTOR further certifies that no member of the Board of CONTRACTOR or any of its officers or directors have such an adverse interest.

26. Default and Termination:

A. SCA may, by written notice of default to CONTRACTOR, immediately terminate upon such terms as said notice shall set forth, the whole or any part of this Agreement in any one of the following circumstances:

(1) If CONTRACTOR fails to perform the contracted services within the time specified herein or any extension thereof; or

(2) If CONTRACTOR fails to perform any of the other provisions of this Agreement, or so fails to make progress as to endanger its terms, and in either of these two (2) circumstances does not cure such failure within the period of ten (10) days (or such longer period as authorized by SCA in writing to CONTRACTOR) after receipt of notice from SCA specifying such failure.

B. In the event SCA terminates this Agreement as provided herein, CONTRACTOR shall transfer and deliver to SCA all partially completed reports or other documentation as CONTRACTOR has produced under this Agreement.

C. Should CONTRACTOR become insolvent, or if proceedings in bankruptcy be instituted by or against CONTRACTOR, the remaining or unexpired portion of this Agreement may be terminated.

D. It is further agreed that in the event funding to SCA from state or federal funding sources is not obtained and continued at the anticipated level, SCA may exercise one of the following options:

(1) Issue a written Notice of Termination of this Agreement to CONTRACTOR effective upon a specified date; or

(2) Continue the Agreement by reducing the amount provided in the Agreement in accordance with the manner set forth in DDAP’s Fiscal Manual.

E. After receipt of Notice of Termination, unless otherwise directed in writing by SCA, CONTRACTOR shall:

(3) Settle all outstanding liabilities and all claims arising out of such termination. Notwithstanding the above, CONTRACTOR shall not be relieved of liability to SCA for damages sustained by SCA by virtue of the performance of CONTRACTOR.

F. The rights and remedies of SCA provided in this Paragraph 26 shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Agreement.

27. Contract Contingent upon Legislative Appropriation: Payment hereunder is subject to the availability of State and/or Federal funds.

28. Availability or Sufficiency of Department Funds: DDAP may terminate the Grant Agreement with the SCA at any time in the event funds become unavailable or are insufficient for DDAP program purposes. In such case, SCA will provide CONTRACTOR with advance notice to the extent reasonable and possible under the circumstances to either terminate this Agreement or suspend all or a portion of this Agreement as determined by SCA. SCA will compensate CONTRACTOR for satisfactory work completed up until such termination, but in no event shall CONTRACTOR be entitled to receive compensation for loss of profits.

29. Fee-Splitting: The CONTRACTOR agrees that no employee, board member, or representative of the CONTRACTOR, either personally or through an agent, shall solicit the referral of clients to any facility in a manner that offers or implies an offer of rebate to persons referring clients or other fee-splitting inducements. No person or entity involved in the referral of clients may receive payment or other inducement by a facility or its representatives.

30. Environmental Protection: In carrying out this Agreement, CONTRACTOR shall minimize pollution and shall strictly comply with all applicable environmental laws and regulations.

31. Equal Employment Opportunity:

A. CONTRACTOR shall not discriminate against any employee, applicant for employment, independent contractor or any other person because of race, color, religious creed, ancestry, national origin, age, or sex. CONTRACTOR shall take affirmative action to ensure that applicants are employed, and that employees or agents are treated during employment, without regard to their race, color, religious creed, ancestry, national origin, age, or sex. Such affirmative action shall include, but is not limited to: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training. CONTRACTOR shall post in conspicuous places, available to employees, agents, applicants for employment, and other persons, a notice to be provided by the contracting agency setting forth the provisions of this nondiscrimination clause.

B. CONTRACTOR shall, in advertisements or requests for employment placed by it or on its behalf, state that all qualified applicants will receive consideration for employment without regard to race, color, religious creed, ancestry, national origin, age, or sex.

C. CONTRACTOR shall send each labor union or workers’ representative with which it has a collective bargaining agreement or other contract or understanding, a notice advising said labor union or workers’ representative of its commitment to this nondiscrimination clause. Similar notice shall be sent to every other source of recruitment regularly utilized by CONTRACTOR.

D. It shall be no defense to a finding of noncompliance with this nondiscrimination clause that CONTRACTOR had delegated some of its employment practices to any union, training program, or other source of recruitment, which prevents it from meeting its obligations. However, if the evidence indicates that the CONTRACTOR was not on notice of the third-party discrimination or made a good faith effort to correct it; such factor shall be considered in mitigation in determining appropriate sanction.

E. Where the practices of a union or training program or other source of recruitment will result in the exclusion of minority group persons, so that CONTRACTOR will be unable to meet its obligations under this nondiscrimination clause, CONTRACTOR shall then employ and fill vacancies through other nondiscriminatory employment procedures.

F. CONTRACTOR shall comply with all State and Federal laws prohibiting discrimination in hiring or employment opportunities. In the event of CONTRACTOR’s noncompliance with the nondiscrimination clause of this Agreement or with any such laws, this Agreement may be terminated or suspended, in whole or in part, and CONTRACTOR may be declared temporarily ineligible for further Commonwealth contracts, and other sanctions may be imposed and remedies invoked.

G. CONTRACTOR shall furnish all necessary employment documents and records to, and permit access to its books, records, and accounts by, the Department and the Office of Administration, Bureau of Affirmative Action, for purposes of investigation to ascertain compliance with the provisions of this clause. If CONTRACTOR does not possess documents or records reflecting the necessary information requested, it shall furnish such information on reporting forms supplied by DDAP or the Bureau of Affirmative Action.

H. CONTRACTOR shall actively recruit minority sub-contractors or sub-contractors with substantial minority representation among their employees.

32. Equal Opportunity for the Handicapped: The CONTRACTOR agrees to abide by Section 504 of the Rehabilitation Act of 1973, as amended (Public Law 93-112, 29 U.S.C. Section 794, as amended) and implementing Federal regulations. The CONTRACTOR assures that any benefits, services, or employment, available through the CONTRACTOR to the public by way of this Agreement’s funds, shall not be denied persons with handicaps who are otherwise qualified or eligible for the benefits, services, or employment available as a result of this Agreement.

The CONTRACTOR shall be responsible for and agree to indemnify and hold harmless the Commonwealth of Pennsylvania from all losses, damages, expenses, claims, demands, suits, and actions brought by any party against the Commonwealth of Pennsylvania as a result of the CONTRACTOR’s failure to comply with the provisions of the above paragraph.

CONTRACTOR agrees to indemnify and hold harmless SCA from all losses, damages, expenses, claims, demands, suits, and actions brought by any party against the SCA as a result of CONTRACTOR’s failure to comply with the provisions of this Section.

33. Provisions Concerning the Americans with Disabilities Act: During the term of this Agreement, the CONTRACTOR agrees as follows:

Pursuant to federal regulations promulgated under the authority of the Americans With Disabilities Act, 28 C.F.R. Section 35.101 et seq., the CONTRACTOR understands and agrees that no individual with a disability shall, on the basis of the disability, be excluded from participation in this Agreement or from activities provided for under this Agreement. As a condition of accepting and executing this Agreement, the CONTRACTOR agrees to comply with the “General Prohibitions Against Discrimination,” 28 C.F.R. §35.130, and all other regulations promulgated under Title II of The Americans With Disabilities Act which are applicable to the benefits, services, programs, and activities provided by the Commonwealth of Pennsylvania through contracts with outside contractors.

CONTRACTOR agrees to indemnify and hold harmless the Commonwealth of Pennsylvania and SCA from all losses, damages, expenses, claims, demands, suits, and actions brought by any party against the Commonwealth of Pennsylvania as a result of CONTRACTOR’s failure to comply with the provisions of the above paragraph.

34. Culturally and Linguistically Appropriate Services (CLAS): The CONTRACTOR must provide services that are respectful of and responsive to cultural and linguistic needs, cultural health beliefs and practices, preferred languages, health literacy levels and other communication needs.

35. Nondiscrimination/Sexual Harassment Clause: During the term of this Agreement, the CONTRACTOR agrees as follows:

A. In the hiring of any employee(s) for the manufacture of supplies, performance of work, or any other activity required under the grant agreement or any subgrant agreement, contract or subcontract, the Grantee, a subgrantee, a contractor, a subcontractor, or any person acting on behalf of the Grantee shall not discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the Pennsylvania Human Relations Act (PHRA) and applicable federal laws, against any citizen of this Commonwealth who is qualified and available to perform the work to which the employment relates.

B. The Grantee, any subgrantee, contractor or any subcontractor or any person on their behalf shall not in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, against or intimidate any of its employees.

C. Neither the Grantee nor any subgrantee nor any contractor nor any subcontractor nor any person on their behalf shall in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, in the provision of services under the grant agreement, subgrant agreement, contract or subcontract.

D. Neither the Grantee nor any subgrantee nor any contractor nor any subcontractor nor any person on their behalf shall in any manner discriminate against employees by reason of participation in or decision to refrain from participating in labor activities protected under the Public Employees Relations Act, Pennsylvania Labor Relations Act or National Labor Relations Act, as applicable and to the extent determined by entities charges with such Acts’ enforcement, and shall comply with any provision of law establishing organizations as employees’ exclusive representatives.

E. The Grantee, any subgrantee, contractor or any subcontractor shall establish and maintain a written nondiscrimination and sexual harassment policy and shall inform their employees in writing of the policy. The policy must contain a provision that sexual harassment will not be tolerated and employees who practice it will be disciplined. Posting this Nondiscrimination/Sexual Harassment Clause conspicuously in easily-accessible and well-lighted places customarily frequented by employees and at or near where the grant services are performed shall satisfy this requirement for employees with an established work site.

F. The Grantee, any subgrantee, contractor or any subcontractor shall not discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, against any subgrantee, contractor, subcontractor or supplier who is qualified to perform the work to which the grant relates.

G. The Grantee and each subgrantee, contractor and subcontractor represents that it is presently in compliance with and will maintain compliance with all applicable federal, state, and local laws and regulations relating to nondiscrimination and sexual harassment. The Grantee and each subgrantee, contractor, and subcontractor further represents that it has filed a Standard Form 100 Employer Information Report (“EEO-1”) with the U.S. Equal Employment Opportunity Commission (“EEOC”) and shall file an annual EEO-1 report with the EEOC as required for employers subject to Title VII of the Civil Rights Act of 1964, as amended, that have 100 or more employees and employers that have federal government contracts or first-tier subcontracts and have 50 or more employees. The Grantee, any subgrantee, any contractor or any subcontractor shall, upon request and within the time periods requested by the Commonwealth, furnish all necessary employment documents and records, including EEO-1 reports, and permit access to their books, records and accounts by the granting agency and the Bureau of Diversity, Inclusion and Small Business Opportunities for the purpose of ascertaining compliance with the provisions of this Nondiscrimination/Sexual Harassment Clause.

H. The Grantee, any subgrantee, any contractor or any subcontractor shall include the provisions of this Nondiscrimination/Sexual Harassment Clause in every subgrant agreement, contract or subcontract so that those provisions applicable to subgrantees, contractors or subcontractors will be binding upon each subgrantee, contractor or subcontractor.

I. The Grantee’s, and each subgrantee’s, contractor’s and subcontractor’s obligations pursuant to these provisions are ongoing from and after the effective date of the grant agreement through the termination date thereof. Accordingly, The Grantee, and each subgrantee, contractor and subcontractor shall have an obligation to inform the commonwealth if, at any time during the term of this Agreement, it becomes aware of any actions or occurrences that would result in violation of these provisions.

J. The commonwealth may cancel or terminate the grant agreement and all money due or to become due under the grant agreement may be forfeited for a violation of the terms and conditions of this Nondiscrimination/Sexual Harassment Clause. In addition, the granting agency may proceed with debarment or suspension and may place The Grantee, subgrantee, contractor or subcontractor in the Contractor Responsibility File.

36. Additional Provisions Relating to Non-Discrimination/Sexual Harassment:

1. CONTRACTOR or any person on CONTRACTOR’s behalf shall not in any manner discriminate against or intimidate any employee involved in the performance of work or any other activity required under this Agreement on account of gender, race, creed, color, religion, age, sexual preference, handicap, or national origin.

B. CONTRACTOR shall ensure that any services or benefits available to the public or other third parties by way of this Agreement shall not be denied or restricted for such persons due to race, creed, color, religion, sex, sexual preference, age, handicap, or national origin (national origin protections include persons who are limited English proficient) consistent with the provisions of Federal and State Laws and regulations.

C. CONTRACTOR shall furnish all necessary employment documents and records and permit access to its books, records, and accounts by SCA for purposes of investigation to ascertain compliance with the provisions of this Nondiscrimination/Sexual Harassment Clause.

37. Disposition of Equipment and Other Material: CONTRACTOR shall adhere to the requirements for fixed assets as described in the DDAP Fiscal Manual Section 2.06.

38. Generic Drugs: If under this Agreement CONTRACTOR prescribes or dispenses drugs to consumers, it shall do so in accordance with Act 259 of November 24, 1976, P.L. 1163, 35 P.S. Section 960.1 et seq., as amended, and prescribe and dispense generically equivalent drugs rather than brand name drugs whenever possible.

39. Extension Right: SCA reserves the right, upon written notice to CONTRACTOR, to extend the term of this Agreement for up to three (3) months upon the same terms and conditions in the event that DDAP extends the Grant Agreement with the SCA for said term.

40. Contractor Integrity Provisions:

A. For purposes of this paragraph only, the following terms shall have the definitions provided in this section:

(1) “Affiliate” means two or more entities where (a) a parent entity owns more than fifty (50 %) percent of the voting stock of each of the entities; or, (b) a common shareholder or group of shareholders owns more than 50 percent of the voting stock of each of the entities; or, (c) the entities have a common proprietor or…