HomeMy WebLinkAboutResolutions - 2022.09.29 - 37631
AGENDA ITEM: Interlocal Agreement Updating the Per Diem Amount with MDHHS for Shelter
Foster Care Services 22-343
COMMITTEE MEETING: Board of Commissioners
DATE: Thursday, September 29, 2022 12:58 PM - Click to View Agenda
ITEM SUMMARY SHEET
DEPARTMENT SPONSORED BY
Public Services - Children's Village Penny Luebs
INTRODUCTION AND BACKGROUND
This is an amendment to update the per diem amount of approved MR 22-311.The electronic
signature on the contract must be submitted on 9/30/2022 for the contract to be in place by October
1st, so immediate action is critical.
POLICY ANALYSIS
BUDGET AMENDMENT REQUIRED: No
Committee members can contact Michael Andrews, Policy and Fiscal Analysis Supervisor at
248.858.5115 (office) or andrewsmb@oakgov.com, or the department contact persons listed for
additional information.
CONTACT
Heather Calcaterra, Manager Children's
Village-UNI
calcaterrah@oakgov.com
ITEM REVIEW TRACKING
Penny Luebs, Created/Initiated - 9/29/2022
David Woodward, Board of Commissioners Approved - 9/29/2022
Hilarie Chambers, Executive's Office Approved - 10/3/2022
Lisa Brown, Clerk/Register of Deeds Final Approval - 10/4/2022
AGENDA DEADLINE: 10/09/2022 12:58 PM
COMMITTEE TRACKING
2022-09-29 Public Health & Safety - recommend to Board
2022-09-29 Full Board - Adopt
ATTACHMENTS
1. MDHHS Shelter Care Contract Amend 2 - E. MA180000000832 A2 9-22-2022
September 29, 2022
MISCELLANEOUS RESOLUTION #22-343
Sponsored By: Penny Luebs
Public Services - Children's Village - Interlocal Agreement Updating the Per Diem Amount with
MDHHS for Shelter Foster Care Services
Chairperson and Members of the Board:
WHEREAS on September 1, 2022 the Board of Commissioners approved Miscellanious Resolution #22-
311 which extended the existing contract with MDHHS and Children's Village for Shelter Foster Care from
October 1, 2022 through September 30,2023; and
WHEREAS the finalized contract submitted by the State to Children's Village for electronic signature
includes an increase in per diem from $789.40 to $853.72 for fiscal year FY2023; and
WHEREAS there is no budgetary impact and the total aggregate contract value is unchanged from
MR 22-311 which has been previously approved.
NOW THEREFORE BE IT RESOLVED that the Oakland County Board of Commissioners hereby
approves and authorizes the Chairperson to sign the Interlocal Agreement between Oakland County
and the Michigan Department of Health and Human Services for shelter foster care services at
Oakland County Children's Village.
BE IT FURTHER RESOLVED that this agreement will take effect Upon Board of Commissioner
approval and authorization.
Chairperson, the following Commissioners are sponsoring the foregoing Resolution: Penny Luebs.
Date: September 29, 2022
David Woodward, Commissioner
Date: October 03, 2022
Hilarie Chambers, Deputy County Executive II
Date: October 04, 2022
Lisa Brown, County Clerk / Register of Deeds
COMMITTEE TRACKING
2022-09-29 Public Health & Safety - recommend to Board
2022-09-29 Full Board - Adopt
VOTE TRACKING
Motioned by Commissioner Michael Gingell seconded by Commissioner Gary McGillivray to adopt the
attached Interlocal Agreement: Updating the Per Diem Amount with MDHHS for Shelter Foster Care Services.
Yes: David Woodward, Michael Gingell, Michael Spisz, Karen Joliat, Kristen Nelson, Eileen Kowall,
Christine Long, Philip Weipert, Gwen Markham, Angela Powell, Thomas Kuhn, Chuck Moss, Marcia
Gershenson, William Miller III, Yolanda Smith Charles, Charles Cavell, Penny Luebs, Janet Jackson, Gary
McGillivray, Robert Hoffman (20)
No: None (0)
Abstain: None (0)
Absent: (0)
Passed
ATTACHMENTS
1. MDHHS Shelter Care Contract Amend 2 - E. MA180000000832 A2 9-22-2022
STATE OF MICHIGAN)
COUNTY OF OAKLAND)
I, Lisa Brown, Clerk of the County of Oakland, do hereby certify that the foregoing resolution is a true and
accurate copy of a resolution adopted by the Oakland County Board of Commissioners on September 29, 2022,
with the original record thereof now remaining in my office.
In Testimony Whereof, I have hereunto set my hand and affixed the seal of the Circuit Court at Pontiac,
Michigan on Thursday, September 29, 2022.
Lisa Brown, Oakland County Clerk / Register of Deeds
CONTRACT NUMBER:MA180000000832
AMENDMENT NUMBER:2
Between
THE STATE OF MICHIGAN
DEPARTMENT OF HEALTH AND HUMAN SERVICES
And
CONTRACTOR County of Oakland, A Michigan Constitutional Corp.
CONTRACTOR ADDRESS 1200 N. Telegraph Road, Pontiac, MI 48341
CONTRACTOR EMAIL calcaterrah@oakgov.com
STATE CONTACT NAME EMAIL
Contract Administrator Sarah Goad goads@Michigan.gov
BGP Analyst Bonnie Fineis fineisb@Michigan,gov
CONTRACT SUMMARY
SERVICE DESCRIPTION Shelter Foster Care (SHFC)
GEOGRAPHIC AREA Statewide
INITIAL EFFECTIVE DATE October 1, 2018 CURRENT EXPIRATION DATE September 30, 2022
CURRENT CONTRACT VALUE $6,000,000.00
CONTRACT TYPE Unit Rate/Per Diem
AMENDMENT DESCRIPTION
OPTION LENGTH OF OPTION EXTENSION LENGTH OF EXTENSION NEW EXPIRATION DATE
1 year September 30, 2023
AMENDMENT AMOUNT ESTIMATED REVISED AGGREGATE CONTRACT VALUE
$1,000,000.00 INCREASE DECREASE $7,000,000.00
NATURE OF CHANGE
Effective October 1, 2022 this amendment exercises an option year, increases the total
contract value, revises Section 1.1,Client Eligibility Criteria, Section 2.4, Licensing
Requirements and Number of Children in Care, Section 2.7, Provider Numbers, Section 2.10,
Services to be Provided, Section 2.16,Private Agency MiSACWIS, Section 2.17, Billing Section
3.1, Payment and Section 4, Standard Contract Terms.
The undersigned have the lawful authority to bind the Contractor and the Michigan Department of Health and Human
Services (MDHHS) to the terms set forth in this Contract.
FOR THE CONTRACTOR:FOR THE STATE:
County of Oakland, A Michigan Constitutional Corp.
MICHIGAN DEPARTMENT OF HEALTH AND HUMAN
SERVICES
Contractor
Signature of Director or Authorized Designee Signature of Director or Authorized Designee
Christine H. Sanches
Director, Bureau of Grants and Purchasing
Print Name Print Name
Date Date
PAGE 2 of 42
Rev. 12-21
Contract Number:MA180000000832
Amendment Number:2
STATE OF MICHIGAN
DEPARTMENT OF HEALTH AND HUMAN SERVICES
WHEREAS, the Michigan Department of Health and Human Services (hereinafter referred to
as “MDHHS”) entered into a Contract effective October 1, 2018, with County of Oakland, A
Michigan Constitutional Corp. (hereinafter referred to as “Contractor”), having a mailing
address of 1200 N. Telegraph Road, Pontiac, MI 48341, for the provision of certain services
as set forth therein; and,
WHEREAS, it is mutually desirable to MDHHS and to the Contractor to amend the aforesaid
Contract.
THEREFORE, in consideration of the promises and mutual covenants hereinabove and
hereinafter contained, the parties hereto agree to the following amendment of said Contract.
This amendment will be attached to the Contract, said Contract being hereby reaffirmed and
made a part hereof.
Article I
This amendment will be effective on October 1, 2022.
Article II
MDHHS will exercise the second of two, one-year options to renew. Therefore, the end date
of the Contract will be changed from September 30, 2022, to September 30, 2023.
Article III
The maximum dollar amount of the Contract will be increased by $1,000,000.00 from
$6,000,000.00 to $7,000,000.00 for the period October 1, 2018, through September 30,
2023.
Article IV
In Section 1., Program Requirements, Item 1.1, Client Eligibility Criteria, b., Determination of
Eligibility will be deleted and replaced with:
1. PROGRAM REQUIREMENTS
1.1. Client Eligibility Criteria
b. Determination of Eligibility
Contract Number:MA180000000832
Amendment Number:2
PAGE 3 of 42
Rev. 12-21
MDHHS shall determine the children and families' eligibility and document
this in the Michigan Statewide Automated Child Welfare Information System
(MiSACWIS) or the Comprehensive Child Welfare Information System
(CCWIS).
Article V
In Section 2., CONTRACTOR RESPONSIBILITIES, Item 2.4 Licensing Requirements and
Number of Children in Care and Item 2.7, Provider Numbers, will be deleted and replaced
with:
2. CONTRACTOR RESPONSIBILITIES
2.4. Licensing Requirements and Number of Children in Care
The MDHHS Division of Child Welfare Licensing (DCWL) is the licensing agency
for Child Caring Institutions (CCI). A license is issued to a certain person or
organization at a specific location, is non-transferable, and remains the property
of the Department. Therefore, an institution must be established at a specific
location.
The Contractor shall ensure that, for the duration of this Contract, it shall
maintain a license for those program areas and services that are provided for in
this Contract. If the Contractor fails to comply with this section, MDHHS may
terminate this Contract for default.
The Contractor is licensed to provide service under this Contract under the
following license number: CE630201059
At no time shall the number of children in care exceed the licensed capacity of
the facility specified in the Contractor’s license. On no day during this Contract
period, shall there be more than 10 children in placement for whom MDHHS has
the responsibility to make a State payment. MDHHS does not guarantee any
minimum number of referrals or children in care at any point in time. If the
Contractor is able to admit more than the contracted number of children (but not
more than the licensed capacity), a Bed Capacity Exception must be obtained by
the primary caseworker/agency through DCWL prior to placement.
2.7. Provider Numbers
MiSACWIS/CCWIS Provider Number: 10400607
Bridges Provider Number: 6358407
Contract Number:MA180000000832
Amendment Number:2
PAGE 4 of 42
Rev. 12-21
Article VI
In Section 2., CONTRACTOR RESPONSIBILITIES, Item 2.10, Services to be Delivered,
Item, 1st Paragraph, Item, c., Referral and Intake Process, 3), c) & d), Item, d., Staffing, 4)
Staffing Ratio, Item, f., Restraint and Seclusion, Item, g., Transition and Discharge Planning,
Item, l., Clinical Case Management and Day to Day Crisis Counseling, and Item, o.,
Education will be deleted and replaced with:
2. CONTRACTOR RESPONSIBILITIES
2.10. Services to be Provided
Services provided under this Contract shall be trauma informed, evidence-
based, evidence-informed and based on best practices to effect optimal
outcomes. Services must be delivered according to each child’s assessed needs
with interventions aligned with the identified needs and desirable outcomes.
Resources for evidence-based interventions and practices can be found at:
c. Referral and Intake Process
3) Intake
c) The Contractor shall develop a comprehensive preliminary
assessment within seven calendar days of admission. The plan shall
include:
i. A comprehensive assessment of the child’s physical/mental
health needs
ii. An assessment of the child’s immediate and specific needs &
diagnosis
iii. The specific services to be provided by the contractor and other
resources to meet the identified needs.
iv. Goals, outcomes, and timeframes for achievement
v. Placement recommendation
vi. Barriers to achievement of the recommended placement and
plans to eliminate barriers.
d) The Contractor shall develop an assessment-based plan within 20
calendar days of placement, and every 15 calendar days thereafter.
The Contractor shall document the assessment-based plan on the
identified Children’s Foster Care Residential Care Case Plans. The
case plan must include information on identified long-term service
needs for the youth. The Contractor shall ensure that licensed clinical
personnel (master’s level social worker, master’s level counselor,
licensed psychiatrist, and/or psychologist) conduct a bio-psychosocial
evaluation, or review a recent bio-psychosocial evaluation (within the
past year) that includes:
Contract Number:MA180000000832
Amendment Number:2
PAGE 5 of 42
Rev. 12-21
i. A psychiatric history, as necessary
ii. Social history
iii. A mental status examination
iv. A trauma assessment
v. Intelligence and projective tests, if necessary
vi. A behavioral appraisal
vii. Family, environmental, cultural, and religious or spiritual
preferences
viii. Behaviors that necessitated a more restrictive placement setting
for the child
ix. Reviewing previous psychotherapeutic and psychiatric
assessments and treatment
x. An updated assessment of the child’s specific needs &
diagnosis.
xi. Placement recommendations
xii. Recommended service to meet the child’s identified needs.
d. Staffing
4) Staffing Ratio
The Contractor shall:
a) Provide a minimum of one on-duty direct childcare staff for every two
children during waking hours. The Contractor is not required to
provide the identified staffing ratio during school hours.
b) Maintain a minimum of one on-duty direct childcare staff for every
eight children during sleeping hours. All the staff shall be awake
during this period. Room checks must be conducted at variable
intervals of no more than every 15 minutes between checks during
sleeping hours.
If the child poses a threat to self or others, the Contractor may be approved
to provide 1:1 staffing ratio. The approval for 1:1 staffing must be requested
in writing to DCWL by email or fax. For requests sent via email, the request
must be secured and encrypted to protect the child’s personal information.
f. Restraint and Seclusion
The use of Positive Peer Culture, peer-on-peer restraint or any form of
corporal punishment is prohibited by the Contractor. The Contractor shall
promote cultures of care that are family-driven, youth-guided, trauma
informed and responsive, and culturally and linguistically competent.
Contract Number:MA180000000832
Amendment Number:2
PAGE 6 of 42
Rev. 12-21
The Contractor shall report the use of seclusion/isolation and restraint within
24 hours (or the next business day) of the use of seclusion/isolation or
restraint. The Contractor will utilize the Incident Reporting Form in
MiSACWIS/CCWIS to record all incidents of seclusion/isolation and restraint.
g. Transition and Discharge Planning
Transition and discharge planning shall begin at the time of admission. The
Contractor shall develop a transition/discharge plan in collaboration with the
child, parent or guardian, agency with placement responsibility, foster
parents, relative caregiver, and Lawyer Guardian ad Litem (LGAL) during the
initial and subsequent Family Team Meeting to be held, within seven
calendar days of admission. The child’s transition/discharge plan shall
include:
1) A projected date for discharge.
2) The level of care projected to be needed at discharge.
3) Long-term clinical service needs identified through assessments for the
youth.
4) Transfer of information (e.g. medical records, mental health records, etc.).
5) A planned contact schedule, to prepare the family/caregiver(s) for a well-
supported discharge placement.
The Contractors shall provide the following for a child whose placement
recommendation is residential:
1) Child-specific information and provide all required documentation for a
child whose placement recommendation is residential.
2) Notification to the local MDHHS County Office or RPU staff and assigned
caseworker of pre-placement interviews held at the facility.
3) Will work with the case worker to ensure transportation and coordinate
transportation for the child to pre-placement interviews held off site if
requested by the primary caseworker/agency and RPU responsible for
placement.
l. Clinical Case Management and Day to Day Crisis Counseling
The Contractor shall provide clinical case management and day-to-day crisis
counseling for each child.
Services must include weekly individual therapy supplemented with group
therapy and psychiatric services as needed.
The Contractor shall provide psychiatric services as needed and determined
by the child’s case plan.
Contract Number:MA180000000832
Amendment Number:2
PAGE 7 of 42
Rev. 12-21
The Contractor shall facilitate continuation of mental and/or behavioral
services the child is participating in at the time of admission through telehealth
or other methods whenever possible.
o. Education
The Contractor shall ensure every child is provided with appropriate
educational services. Those services shall be provided in accordance with
the requirements set forth in the FOM, and MDHHS DCWL standards for the
license specified in Section 2.4 of this Contract, and as detailed in the
Modified Implementation, Sustainability, and Exit Plan.
In addition, the Contractor shall:
1) Collaborate with the child’s identified school to screen for possible
educational disabilities; and if a disability is suspected, refer the child for
an Individual Education Program Team (IEPT) evaluation within the first
five calendar days of placement to assess, plan and place the child in the
most appropriate educational/vocational program.
2) Request prior educational assessments within five calendar days of
placement to assist in assessing the current educational needs.
Documentation of diligence in requesting records must be included in the
child’s file.
3) Assure that program staff are available to the school staff in crisis
situations to assist in managing the crisis or to call for assistance.
4) Provide or arrange structured educational and/or vocational activities for
children suspended from or expelled from school, or who have passed
their General Education Development (GED) test, (i.e., structured
homework time, additional reading or writing activities, online educational
programming, independent study assignments and independent living
skills).
5) Take an active role in monitoring and maintaining school progress for
children. Interventions may include, but are not limited to, obtaining
school assignments, monitoring completion of homework, capturing and
reporting grades and test scores when and where available, and
additional tutoring.
6) Provide tutorial services to a child, as necessary, based on the child’s
Individualized Education Plan (IEP) or treatment plan. Tutorial staff must
have appropriate educational credentials to provide tutorial services.
Appropriate educational credentials are determined by the Contractors
Permanency/Educational Specialist. Tutorial services must not be a
substitute for special education and related services.
7) Provide advocacy and service planning for children that are expelled or
suspended including actively engaging the youth’s family in the advocacy
and planning process.
Contract Number:MA180000000832
Amendment Number:2
PAGE 8 of 42
Rev. 12-21
8) Follow Michigan’s Department of Education rules and requirements if
operating a school on grounds.
9) Provide transportation to and from the child’s identified school if public
school transportation is not available.
10)Whenever possible, maintain enrollment in the child(ren)’s school of
origin.
11)Forward the above education reports to the primary caseworker/agency
and RPU within five (5) working days of completion.
Article VII
In Section 2., CONTRACTOR RESPONSIBILITIES, Item 2.16, Private Agency MiSACWIS,
will be deleted and replaced with:
2.16. Private Agency MiSACWIS/CCWIS
The Contractor shall ensure that residential payment staff has access to the
Michigan MiSACWIS or CCWIS through a web-based interface, henceforth
referred to as the “MiSACWIS/CCWIS application.” Requirements for
MiSACWIS/CCWIS for CCI contracts may be found at
http://www.michigan.gov/mdhhs/0,5885,7-339-71551_7199---,00.html
Article VIII
In Section 2., CONTRACTOR RESPONSIBILITIES, Item 2.17, Billing, will be deleted and
replaced with:
2.17. Billing
The Contractor shall submit through the MiSACWIS/CCWIS system the bi-
weekly roster for any child in the Contractors care per the instructions within the
MiSACWIS/CCWIS system. The billing shall only indicate the units of service
provided by the Contractor and shall be submitted to MDHHS within 30 days
from the end of the billing period.
No original request for payment submitted by the Contractor more than one year
after the close of the two week billing period during which services were provided
shall be honored for payment.
When the Contractor’s financial records reveal that payment for a child has not
been provided by MDHHS within 30 days of receiving all necessary
documentation, the Contractor will seek payment resolution by contacting the
direct supervisor of the assigned MDHHS worker in writing. Any concerns over
a payment authorization or issuance that cannot be resolved within 30 days of
the written notice must be reported to the MDHHS County Director for immediate
Contract Number:MA180000000832
Amendment Number:2
PAGE 9 of 42
Rev. 12-21
resolution. The Contractor will apprise MDHHS Office of Child Welfare Services
and Support of any ongoing, unresolved payment concerns.
Article IX
In Section 3., MDHHS RESPONSIBILITIES, Item 3.1, Payment, will be deleted and replaced
with:
3. MDHHS RESPONSIBILITIES
3.1. Payment
MDHHS shall make payments to the Contractor pursuant to MCL 17.51-17.57
and State of Michigan Financial Management Guide, Part II-Accounting and
Financial Reporting, Chapter 25, Section 100, “Prompt Payment for Goods and
Services.”
Per Diem Unit Definition: One unit equals the initial calendar day of placement of
a referred child or any 24-hour period thereafter where a child is receiving basic
supervision and care, and any specialized services as defined by this Contract.
The last day of a child’s placement must not be counted as a unit.
a. The per diem rate(s) for services provided under this Contract shall be
Service Code 745
Program Name Children’s Village Mandy’s Place
Per Diem Rate $853.72
Effective Date 08/2022
Bridges Provider Number 6358407
MiSACWIS/CCWIS Provider Number 10400607
Article X
In Section 4., STANDARD CONTRACT TERMS, Item STANDARD CONTRACT TERMS,
will be deleted and replaced with:
4. STANDARD CONTRACT TERMS
4.1 Duties of Contractor
Contractor must perform the services and provide the deliverables described in
Sections 1 and 2 (the “Contract Activities”). An obligation to provide delivery of
any commodity is considered a service and is a Contract Activity.
Contract Number:MA180000000832
Amendment Number:2
PAGE 10 of 42
Rev. 12-21
Contractor must furnish all labor, equipment, materials, and supplies necessary
for the performance of the Contract Activities unless otherwise specified in
Section 2.10 – Services to be Provided.
Contractor must:
a. Perform the Contract Activities in a timely, professional, safe, and workmanlike
manner consistent with standards in the trade, profession, or industry;
b. Meet or exceed the performance and operational standards, and specifications
of the Contract;
c. Provide all Contract Activities in good quality, with no material defects;
d. Not interfere with MDHHS’s operations;
e. Obtain and maintain all necessary licenses, permits or other authorizations
necessary for the performance of the Contract;
f. Cooperate with MDHHS, including MDHHS’s quality assurance personnel, and
any third party to achieve the objectives of the Contract;
g. Return to MDHHS any State-furnished equipment or other resources in the
same condition as when provided when no longer required for the Contract;
h. Assign to MDHHS any claims resulting from state or federal antitrust violations
to the extent that those violations concern materials or services supplied by
third parties toward fulfillment of the Contract;
i. Comply with all State physical and IT security policies and standards which will
be made available upon request; and
j. Provide MDHHS priority in performance of the Contract except as mandated
by federal disaster response requirements.
Any breach under this provision is considered a material breach.
Contractor must also be clearly identifiable while on State property by wearing
identification issued by the State, and clearly identify themselves whenever
making contact with the State.
4.2 Notices
All notices and other communications required or permitted under this Contract
must be in writing and will be considered given and received: (a) when verified by
written receipt if sent by courier; (b) when actually received if sent by mail without
verification of receipt; or (c) when verified by automated receipt or electronic logs
if sent by facsimile or email.
4.3 Reserved
4.4 Reserved
4.5 Reserved
Contract Number:MA180000000832
Amendment Number:2
PAGE 11 of 42
Rev. 12-21
4.6 Insurance Requirements
Contractor, at its sole expense, must maintain the insurance coverage identified
below. All required insurance must:
a. Protect the State from claims that may arise out of, are alleged to arise out of,
or otherwise result from Contractor's or a subcontractor's performance;
b. Be primary and non-contributing to any comparable liability insurance
(including self-insurance) carried by the State; and
c. Be provided by a company with an A.M. Best rating of "A-" or better and a
financial size of VII or better.
Required Limits Additional Requirements
Commercial General Liability Insurance
Minimum Limits:
$1,000,000 Each Occurrence
$1,000,000 Personal & Advertising
Injury
$2,000,000 General Aggregate
$2,000,000 Products/Completed
Operations
Contractor must have their policy
endorsed to add “the State of
Michigan, its departments, divisions,
agencies, offices, commissions,
officers, employees, and agents” as
additional insureds using
endorsement CG 20 10 11 85, or
both CG 20 10 12 19 and CG 20 37
12 19.
If the contractor will deal with
children, schools, or the cognitively
impaired, coverage must not have
exclusions or limitations related to
sexual abuse and molestation
liability.
Umbrella or Excess Liability Insurance
Minimum Limits:
$4,000,000 General Aggregate
Contractor must have their policy
follow form.
Automobile Liability Insurance
Minimum Limits:
$1,000,000 Per Accident
Contractor must have their policy:
(1) endorsed to add “the State of
Michigan, its departments, divisions,
agencies, offices, commissions,
officers, employees, and agents” as
additional insureds; and (2) include
Hired and Non-Owned Automobile
Contract Number:MA180000000832
Amendment Number:2
PAGE 12 of 42
Rev. 12-21
coverage.
Workers’ Compensation Insurance
Minimum Limits:
Coverage according to applicable
laws governing work activities.
Waiver of subrogation, except
where waiver is prohibited by law.
Employers Liability Insurance
Minimum Limits:
$500,000 Each Accident
$500,000 Each Employee by
Disease
$500,000 Aggregate Disease.
Privacy and Security Liability (Cyber Liability) Insurance
Minimum Limits:
$1,000,000 Each Occurrence
$1,000,000 Annual Aggregate
Contractor must have their policy
cover information security and
privacy liability, privacy notification
costs, regulatory defense and
penalties, and website media
content liability.
Professional Liability (Errors and Omissions) Insurance
Minimum Limits:
$1,000,000 Each Occurrence
$1,000,000 Annual Aggregate
If any of the required policies provide claims-made coverage, the Contractor
must:
a. Provide coverage with a retroactive date before the effective date of the
Contract or the beginning of Contract Activities;
b. Maintain coverage and provide evidence of coverage for at least three
years after completion of the Contract Activities; and
c. If coverage is canceled or not renewed, and not replaced with another
claims-made policy form with a retroactive date prior to the Contract
Contract Number:MA180000000832
Amendment Number:2
PAGE 13 of 42
Rev. 12-21
effective date, Contractor must purchase extended reporting coverage for
a minimum of three years after completion of work.
Contractor must:
a. Provide insurance certificates to the Contract Administrator, containing the
Contract or delivery order number, at Contract formation and within 20
calendar days of the expiration date of the applicable policies;
b. Require that subcontractors maintain the required insurance contained in
this Section;
c. Notify the Contract Administrator within five business days if any
insurance is cancelled; and
d. Waive all rights against the State for damages covered by insurance.
Failure to maintain the required insurance does not limit this waiver.
Contractors who are self-insured must provide the following:
a. Proof of self-insurance from the Michigan Department of Insurance and
Financial Services for auto liability.
b. Proof of self-insurance from the Michigan Department of Licensing and
Regulatory Affairs for worker’s compensation and employer’s liability.
c. A copy of their most recent, independently audited financial statements.
This Section is not intended to and is not to be construed in any manner as
waiving, restricting or limiting the liability of either party for any obligations under
this Contract (including any provisions hereof requiring Contractor to indemnify,
defend and hold harmless the State).
4.7 Reserved
4.8 Extended Purchasing Program
This contract is extended to MiDEAL members. MiDEAL members include local
units of government, school districts, universities, community colleges, and
nonprofit hospitals. A current list of MiDEAL members is available at
www.michigan.gov/mideal. Upon written agreement between MDHHS and
Contractor, this Contract may also be extended to: (a) State of Michigan
employees and (b) other states (including governmental subdivisions and
authorized entities).
If extended, Contractor must supply all Contract Activities at the established
Contract prices and terms. MDHHS reserves the right to impose an administrative
fee and negotiate additional discounts based on any increased volume generated
by such extensions.
Contract Number:MA180000000832
Amendment Number:2
PAGE 14 of 42
Rev. 12-21
Contractor must submit invoices to, and receive payment from, extended
purchasing program members on a direct and individual basis.
4.9 Relationship of the Parties
The relationship between the parties is that of independent contractors.
Contractor, its employees, and agents will not be considered employees of
MDHHS. No partnership or joint venture relationship is created by virtue of this
Contract. Contractor, and not MDHHS, is responsible for the payment of wages,
benefits and taxes of Contractor’s employees and any subcontractors. Prior
performance does not modify Contractor’s status as an independent contractor.
Neither party has authority to contract for nor bind the other party in any manner
whatsoever.
4.10 Intellectual Property Rights
If Sections 1 and 2 (the “Contract Activities”) require Contractor to create any
intellectual property, Contractor hereby acknowledges that the State is and will be
the sole and exclusive owner of all right, title, and interest in the Contract Activities
and all associated intellectual property rights, if any. Such Contract Activities are
works made for hire as defined in Section 101 of the Copyright Act of 1976. To
the extent any Contract Activities and related intellectual property do not qualify
as works made for hire under the Copyright Act, Contractor will, and hereby does,
immediately on its creation, assign, transfer and otherwise convey to the State,
irrevocably and in perpetuity, throughout the universe, all right, title and interest in
and to the Contract Activities, including all intellectual property rights therein.
4.11 Subcontracting
Contractor may not delegate any of its obligations under the Contract without the
prior written approval of MDHHS. Contractor must notify MDHHS at least 90
calendar days before the proposed delegation and provide MDHHS any
information it requests to determine whether the delegation is in its best interest. If
approved, Contractor must:
a. Be the sole point of contact regarding all contractual matters, including
payment and charges for all Contract Activities;
b. Make all payments to the subcontractor; and
c. Incorporate the terms and conditions contained in this Contract in any
subcontract with a subcontractor.
Contractor remains responsible for the completion of the Contract Activities,
compliance with the terms of this Contract, and the acts and omissions of the
subcontractor. MDHHS, in its sole discretion, may require the replacement of any
subcontractor.
4.12 Staffing
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Amendment Number:2
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Rev. 12-21
MDHHS’s Contract Administrator may require Contractor to remove or reassign
personnel by providing a notice to Contractor.
4.13 Reserved
4.14 Assignment
Contractor may not assign this Contract to any other party without the prior
approval of MDHHS. Upon notice to Contractor, MDHHS, in its sole discretion,
may assign in whole or in part, its rights or responsibilities under this Contract to
any other party. If MDHHS determines that a novation of the Contract to a third
party is necessary, Contractor will agree to the novation and provide all necessary
documentation and signatures.
4.15 Change of Control
Contractor will notify MDHHS, within 30 days of any public announcement or
otherwise once legally permitted to do so, of a change in Contractor’s
organizational structure or ownership. For purposes of this Contract, a change in
control means any of the following:
a. A sale of more than 50% of Contractor’s stock;
b. A sale of substantially all of Contractor’s assets;
c. A change in a majority of Contractor’s board members;
d. Consummation of a merger or consolidation of Contractor with any other
entity;
e. A change in ownership through a transaction or series of transactions; or
f. The board (or the stockholders) approves a plan of complete liquidation.
A change of control does not include any consolidation or merger effected
exclusively to change the domicile of Contractor, or any transaction or series of
transactions principally for bona fide equity financing purposes.
In the event of a change of control, Contractor must require the successor to
assume this Contract and all of its obligations under this Contract.
4.16 Reserved
4.17 Acceptance
Contract Activities are subject to inspection and testing by MDHHS within 30
calendar days of MDHHS’s receipt of them (“State Review Period”), unless
otherwise provided in Section 2.10 – Services to be Provided. If the Contract
Activities are not fully accepted by MDHHS, MDHHS will notify Contractor by the
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Amendment Number:2
PAGE 16 of 42
Rev. 12-21
end of the State Review Period that either: (a) the Contract Activities are accepted
but noted deficiencies must be corrected; or (b) the Contract Activities are
rejected. If MDHHS finds material deficiencies, it may: (i) reject the Contract
Activities without performing any further inspections; (ii) demand performance at
no additional cost; or (iii) terminate this Contract in accordance with Section 4.24,
Termination for Cause.
Within 10 business days from the date of Contractor’s receipt of notification of
acceptance with deficiencies or rejection of any Contract Activities, Contractor
must cure, at no additional cost, the deficiency and deliver unequivocally
acceptable Contract Activities to MDHHS. If acceptance with deficiencies or
rejection of the Contract Activities impacts the content or delivery of other non-
completed Contract Activities, the parties’ respective Program Managers must
determine an agreed to number of days for re-submission that minimizes the
overall impact to the Contract. However, nothing herein affects, alters, or relieves
Contractor of its obligations to correct deficiencies in accordance with the time
response standards set forth in this Contract.
If Contractor is unable or refuses to correct the deficiency within the time
response standards set forth in this Contract, MDHHS may cancel the order in
whole or in part. MDHHS, or a third party identified by MDHHS, may perform the
Contract Activities and recover the difference between the cost to cure and the
Contract price plus an additional 10% administrative fee.
4.18 Reserved
4.19 Reserved
4.20 Reserved
4.21 Invoices and Payment
Invoices must conform to the requirements communicated from time-to-time by
MDHHS. All undisputed amounts are payable within 45 days of MDHHS’s receipt.
Contractor may only charge for Contract Activities provided as specified in
Section 2.10 – Services to be Provided. Invoices must include an itemized
statement of all charges. MDHHS is exempt from State sales tax for direct
purchases and may be exempt from federal excise tax, if Services purchased
under this Contract are for MDHHS’s exclusive use. Notwithstanding the
foregoing, all fees are exclusive of taxes, and Contractor is responsible for all
sales, use and excise taxes, and any other similar taxes, duties and charges of
any kind imposed by any federal, state, or local governmental entity on any
amounts payable by MDHHS under this Contract.
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Amendment Number:2
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Rev. 12-21
MDHHS has the right to withhold payment of any disputed amounts until the
parties agree as to the validity of the disputed amount. MDHHS will notify
Contractor of any dispute within a reasonable time. Payment by MDHHS will not
constitute a waiver of any rights as to Contractor’s continuing obligations,
including claims for deficiencies or substandard Contract Activities. Contractor’s
acceptance of final payment by MDHHS constitutes a waiver of all claims by
Contractor against MDHHS for payment under this Contract, other than those
claims previously filed in writing on a timely basis and still disputed.
MDHHS will only disburse payments under this Contract through Electronic
Funds Transfer (EFT). Contractor must register with the State at
http://www.michigan.gov/SIGMAVSS to receive electronic fund transfer
payments. If Contractor does not register, MDHHS is not liable for failure to
provide payment. Without prejudice to any other right or remedy it may have,
MDHHS reserves the right to set off at any time any amount then due and owing
to it by Contractor against any amount payable by MDHHS to Contractor under
this Contract.
Excluding federal government charges and terms, Contractor warrants and
agrees that each of the fees, economic or product terms or warranties granted
pursuant to this Contract are comparable to or better than the equivalent fees,
economic or product term or warranty being offered to any commercial or
government customer (including any public educational institution within the State
of Michigan) of Contractor. If Contractor enters into any arrangements with
another customer of Contractor to provide the products or services, available
under this Contract, under more favorable prices, as the prices may be indicated
on Contractor’s current U.S. and International price list or comparable document,
then this Contract will be deemed amended as of the date of such other
arrangements to incorporate those more favorable prices, and Contractor will
immediately notify the State of such fee and formally memorialize the new pricing
in a change notice.
4.22 Reserved
4.23 Stop Work Order
MDHHS may suspend any or all activities under the Contract at any time.
MDHHS will provide Contractor a written stop work order detailing the
suspension. Contractor must comply with the stop work order upon receipt. Within
90 calendar days, or any longer period agreed to by Contractor, MDHHS will
either: (a) issue a notice authorizing Contractor to resume work, or (b) terminate
the Contract, or delivery order. MDHHS will not pay for Contract Activities,
Contractor’s lost profits, or any additional compensation during a stop work
period.
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Amendment Number:2
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Rev. 12-21
4.24 Termination for Cause
MDHHS may terminate this Contract for cause, in whole or in part, if Contractor,
as determined by MDHHS:
a. Endangers the value, integrity, or security of any location, data, or
personnel;
b. Becomes insolvent, petitions for bankruptcy court proceedings, or has an
involuntary bankruptcy proceeding filed against it by any creditor;
c. Engages in any conduct that may expose MDHHS to liability;
d. Breaches any of its material duties or obligations; or
e. Fails to cure a breach within the time stated in a notice of breach.
Any reference to specific breaches being material breaches within this Contract
will not be construed to mean that other breaches are not material.
If MDHHS terminates this Contract under this Section, MDHHS will issue a
termination notice specifying whether Contractor must: (a) cease performance
immediately, or (b) continue to perform for a specified period. If it is later
determined that Contractor was not in breach of the Contract, the termination will
be deemed to have been a Termination for Convenience, effective as of the same
date, and the rights and obligations of the parties will be limited to those provided
in Section 4.25, Termination for Convenience.
MDHHS will only pay for amounts due to Contractor for Contract Activities
accepted by MDHHS on or before the date of termination, subject to MDHHS’s
right to set off any amounts owed by the Contractor for MDHHS’s reasonable
costs in terminating this Contract. The Contractor must pay all reasonable costs
incurred by MDHHS in terminating this Contract for cause, including
administrative costs, attorneys’ fees, court costs, transition costs, and any costs
MDHHS incurs to procure the Contract Activities from other sources.
4.25 Termination for Convenience
MDHHS may immediately terminate this Contract in whole or in part without
penalty and for any reason, including but not limited to, appropriation or budget
shortfalls. The termination notice will specify whether Contractor must: (a) cease
performance of the Contract Activities immediately, or (b) continue to perform the
Contract Activities in accordance with Section 4.26, Transition Responsibilities. If
MDHHS terminates this Contract for convenience, MDHHS will pay all
reasonable costs, as determined by MDHHS, for MDHHS approved Transition
Responsibilities.
The Contractor may terminate this Contract upon 30 days written notice to
MDHHS at any time prior to the completion of the Contract period.
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Amendment Number:2
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Rev. 12-21
4.26 Transition Responsibilities
Upon termination or expiration of this Contract for any reason, Contractor must,
for a period of time specified by MDHHS (not to exceed 90 calendar days),
provide all reasonable transition assistance requested by MDHHS, to allow for the
expired or terminated portion of the Contract Activities to continue without
interruption or adverse effect, and to facilitate the orderly transfer of such Contract
Activities to MDHHS or its designees. Such transition assistance may include, but
is not limited to:
a. Continuing to perform the Contract Activities at the established Contract
rates;
b. Taking all reasonable and necessary measures to transition performance
of the work, including all applicable Contract Activities, training,
equipment, software, leases, reports and other documentation, to MDHHS
or MDHHS’s designee;
c. Taking all necessary and appropriate steps, or such other action as
MDHHS may direct, to preserve, maintain, protect, or return to MDHHS all
materials, data, property, and confidential information provided directly or
indirectly to Contractor by any entity, agent, vendor, or employee of
MDHHS;
d. Transferring title in and delivering to MDHHS, at MDHHS’s discretion, all
completed or partially completed deliverables prepared under this
Contract as of the Contract termination date; and
e. Preparing an accurate accounting from which MDHHS and Contractor
may reconcile all outstanding accounts (collectively, “Transition
Responsibilities”).
This Contract will automatically be extended through the end of the transition
period.
4.27 Indemnification
Contractor must defend, indemnify and hold the State, its departments, divisions,
agencies, offices, commissions, officers, and employees harmless, without
limitation, from and against any and all actions, claims, losses, liabilities,
damages, costs, attorney fees, and expenses (including those required to
establish the right to indemnification), arising out of or relating to:
a. Any breach by Contractor (or any of Contractor’s employees, agents,
subcontractors, or by anyone else for whose acts any of them may be
liable) of any of the promises, agreements, representations, warranties, or
insurance requirements contained in this Contract;
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Amendment Number:2
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Rev. 12-21
b. Any infringement, misappropriation, or other violation of any intellectual
property right or other right of any third party;
c. Any bodily injury, death, or damage to real or tangible personal property
occurring wholly or in part due to action or inaction by Contractor (or any
of Contractor’s employees, agents, subcontractors, or by anyone else for
whose acts any of them may be liable); and
d. Any acts or omissions of Contractor (or any of Contractor’s employees,
agents, subcontractors, or by anyone else for whose acts any of them may
be liable).
MDHHS will notify Contractor in writing if indemnification is sought; however,
failure to do so will not relieve Contractor, except to the extent that Contractor is
materially prejudiced. Contractor must, to the satisfaction of MDHHS,
demonstrate its financial ability to carry out these obligations.
MDHHS is entitled to: (i) regular updates on proceeding status; (ii) participate in
the defense of the proceeding; (iii) employ its own counsel; and to (iv) retain
control of the defense, at its own cost and expense, if MDHHS deems necessary.
Contractor will not, without MDHHS’s prior written consent (not to be
unreasonably withheld), settle, compromise, or consent to the entry of any
judgment in or otherwise seek to terminate any claim, action, or proceeding.
Any litigation activity on behalf of the State, or any of its subdivisions under this
Section, must be coordinated with the Department of Attorney General. An
attorney designated to represent MDHHS may not do so until approved by the
Michigan Attorney General and appointed as a Special Assistant Attorney
General.
The State is constitutionally prohibited from indemnifying Contractor or any third
parties.
4.28 Infringement Remedies
If, in either party’s opinion, any piece of equipment, software, commodity, or
service supplied by Contractor or its subcontractors, or its operation, use or
reproduction, is likely to become the subject of a copyright, patent, trademark, or
trade secret infringement claim, Contractor must, at its expense:
a. Procure for MDHHS the right to continue using the equipment, software,
commodity, or service, or if this option is not reasonably available to
Contractor,
b. Replace or modify the same so that it becomes non-infringing; or
c. Accept its return by MDHHS with appropriate credits to MDHHS against
Contractor’s charges and reimburse MDHHS for any losses or costs
incurred as a consequence of MDHHS ceasing its use and returning it.
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Amendment Number:2
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Rev. 12-21
4.29 Limitation of Liability and Disclaimer of Damages
IN NO EVENT WILL THE STATE’S AGGREGATE LIABILITY TO
CONTRACTOR UNDER THIS CONTRACT, REGARDLESS OF THE FORM
OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT
LIABILITY OR BY STATUTE OR OTHERWISE, FOR ANY CLAIM RELATED
TO OR ARISING UNDER THIS CONTRACT, EXCEED THE MAXIMUM
AMOUNT OF FEES PAYABLE UNDER THIS CONTRACT. MDHHS is not
liable for consequential, incidental, indirect, or special damages, regardless of the
nature of the action.
4.30 Disclosure of Litigation, or Other Proceeding
Contractor must notify MDHHS within 14 calendar days of receiving notice of any
litigation, investigation, arbitration, or other proceeding (collectively,
“Proceeding”) involving Contractor, a subcontractor, or an officer or director of
Contractor or subcontractor, that arises during the term of the Contract, including:
a. A criminal Proceeding;
b. A parole or probation Proceeding;
c. A Proceeding under the Sarbanes-Oxley Act;
d. A civil Proceeding involving:
1) A claim that might reasonably be expected to adversely affect
Contractor’s viability or financial stability; or
2) A governmental or public entity’s claim or written allegation of fraud; or
3) Any complaint filed in a legal or administrative proceeding alleging the
Contractor or its subcontractors discriminated against its employees,
subcontractors, vendors, or suppliers during the term of this Contract;
or
e. A Proceeding involving any license that Contractor is required to possess
in order to perform under this Contract.
4.31 Reserved
4.32 State Data
a. Ownership. MDHHS’s data (“State Data,” which will be treated by Contractor
as Confidential Information) includes:
1) MDHHS’s data, user data, and any other data collected, used, processed,
stored, or generated as the result of the Contract Activities;
2) Personally identifiable information (“PII“) collected, used, processed,
stored, or generated as the result of the Contract Activities, including,
without limitation, any information that identifies an individual, such as an
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Amendment Number:2
PAGE 22 of 42
Rev. 12-21
individual’s social security number or other government-issued
identification number, date of birth, address, telephone number, biometric
data, mother’s maiden name, email address, credit card information, or an
individual’s name in combination with any other of the elements here listed;
and,
3) Protected health information (“PHI”) collected, used, processed, stored, or
generated as the result of the Contract Activities, which is defined under
the Health Insurance Portability and Accountability Act (HIPAA) and its
related rules and regulations. State Data is and will remain the sole and
exclusive property of MDHHS and all right, title, and interest in the same is
reserved by MDHHS.
b. Contractor Use of State Data. Contractor is provided a limited license to State
Data for the sole and exclusive purpose of providing the Contract Activities,
including a license to collect, process, store, generate, and display State Data
only to the extent necessary in the provision of the Contract Activities.
Contractor must:
1) Keep and maintain State Data in strict confidence, using such degree of
care as is appropriate and consistent with its obligations as further
described in this Contract and applicable law to avoid unauthorized access,
use, disclosure, or loss;
2) Use and disclose State Data solely and exclusively for the purpose of
providing the Contract Activities, such use and disclosure being in
accordance with this Contract, any applicable Statement of Work, and
applicable law;
3) Keep and maintain State Data in the continental United States and
4) Not use, sell, rent, transfer, distribute, commercially exploit, or otherwise
disclose or make available State Data for Contractor’s own purposes or for
the benefit of anyone other than MDHHS without MDHHS’s prior written
consent. Contractor's misuse of State Data may violate state or federal
laws, including but not limited to MCL 752.795.
c. Extraction of State Data. Contractor must, within five business days of
MDHHS’s request, provide MDHHS, without charge and without any
conditions or contingencies whatsoever (including but not limited to the
payment of any fees due to Contractor), an extract of the State Data in the
format specified by MDHHS.
d. Backup and Recovery of State Data. Unless otherwise specified in Section
2.10 – Services to be Provided, Contractor is responsible for maintaining a
backup of State Data and for an orderly and timely recovery of such data.
Unless otherwise described in Section 2.10 – Services to be Provided,
Contractor must maintain a contemporaneous backup of State Data that can
be recovered within two hours at any point in time.
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Amendment Number:2
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Rev. 12-21
e. Loss or Compromise of Data. In the event of any act, error or omission,
negligence, misconduct, or breach on the part of Contractor that compromises
or is suspected to compromise the security, confidentiality, or integrity of State
Data or the physical, technical, administrative, or organizational safeguards put
in place by Contractor that relate to the protection of the security,
confidentiality, or integrity of State Data, Contractor must, as applicable:
1) Notify MDHHS as soon as practicable but no later than 24 hours of
becoming aware of such occurrence;
2) Cooperate with MDHHS in investigating the occurrence, including making
available all relevant records, logs, files, data reporting, and other materials
required to comply with applicable law or as otherwise required by
MDHHS;
3) In the case of PII or PHI, at MDHHS’s sole election, (i) with approval and
assistance from MDHHS, notify the affected individuals who comprise the
PII or PHI as soon as practicable but no later than is required to comply
with applicable law, or, in the absence of any legally required notification
period, within five calendar days of the occurrence; or (ii) reimburse
MDHHS for any costs in notifying the affected individuals;
4) In the case of PII, provide third-party credit and identity monitoring services
to each of the affected individuals who comprise the PII for the period
required to comply with applicable law, or, in the absence of any legally
required monitoring services, for no less than 24 months following the date
of notification to such individuals;
5) Perform or take any other actions required to comply with applicable law as
a result of the occurrence;
6) Pay for any costs associated with the occurrence, including but not limited
to any costs incurred by MDHHS in investigating and resolving the
occurrence, including reasonable attorney’s fees associated with such
investigation and resolution;
7) Without limiting Contractor’s obligations of indemnification as further
described in this Contract, indemnify, defend, and hold harmless MDHHS
for any and all claims, including reasonable attorneys’ fees, costs, and
incidental expenses which may be suffered by, accrued against, charged
to, or recoverable from MDHHS in connection with the occurrence;
8) Be responsible for recreating lost State Data in the manner and on the
schedule set by MDHHS without charge to MDHHS; and,
9) Provide to MDHHS a detailed plan within 10 calendar days of the
occurrence describing the measures Contractor will undertake to prevent a
future occurrence.
Notification to affected individuals, as described above, must comply with
applicable law, be written in plain language, not be tangentially used for any
solicitation purposes, and contain, at a minimum: name and contact
information of Contractor’s representative; a description of the nature of the
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Amendment Number:2
PAGE 24 of 42
Rev. 12-21
loss; a list of the types of data involved; the known or approximate date of the
loss; how such loss may affect the affected individual; what steps Contractor
has taken to protect the affected individual; what steps the affected individual
can take to protect himself or herself; contact information for major credit card
reporting agencies; and, information regarding the credit and identity
monitoring services to be provided by Contractor. MDHHS will have the option
to review and approve any notification sent to affected individuals prior to its
delivery. Notification to any other party, including but not limited to public media
outlets, must be reviewed and approved by MDHHS in writing prior to its
dissemination. The parties agree that any damages relating to a breach of this
Section 4.32 are to be considered direct damages and not consequential
damages.
f. State’s Governance, Risk and Compliance (GRC) platform. Contractor is
required to assist the State with its security accreditation process through the
development, completion and ongoing updating of a system security plan
using the State’s automated GRC platform, and implement any required
safeguards or remediate any security vulnerabilities as identified by the results
of the security accreditation process.
4.33 Non-Disclosure of Confidential Information
The parties acknowledge that each party may be exposed to or acquire
communication or data of the other party that is confidential, privileged
communication not intended to be disclosed to third parties.
a. Meaning of Confidential Information. For the purposes of this Contract, the
term “Confidential Information” means all information and
documentation of a party that:
1) Has been marked “confidential” or with words of similar meaning, at
the time of disclosure by such party;
2) If disclosed orally or not marked “confidential” or with words of similar
meaning, was subsequently summarized in writing by the disclosing
party and marked “confidential” or with words of similar meaning; or,
3) Should reasonably be recognized as confidential information of the
disclosing party.
The term “Confidential Information” does not include any information or
documentation that was or is:
1) Subject to disclosure under the Michigan Freedom of Information Act
(FOIA);
2) Already in the possession of the receiving party without an obligation of
confidentiality;
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Rev. 12-21
3) Developed independently by the receiving party, as demonstrated by
the receiving party, without violating the disclosing party’s proprietary
rights;
4) Obtained from a source other than the disclosing party without an
obligation of confidentiality; or,
5) Publicly available when received, or thereafter became publicly
available (other than through any unauthorized disclosure by, through,
or on behalf of, the receiving party).
For purposes of this Contract, in all cases and for all matters, State Data is
deemed to be Confidential Information.
b. Obligation of Confidentiality. The parties agree to hold all Confidential
Information in strict confidence and not to copy, reproduce, sell, transfer,
or otherwise dispose of, give or disclose such Confidential Information to
third parties other than employees, agents, or subcontractors of a party
who have a need to know in connection with this Contract or to use such
Confidential Information for any purposes whatsoever other than the
performance of this Contract. The parties agree to advise and require their
respective employees, agents, and subcontractors of their obligations to
keep all Confidential Information confidential. Disclosure to a
subcontractor is permissible where:
1) Use of a subcontractor is authorized under this Contract;
2) The disclosure is necessary or otherwise naturally occurs in
connection with work that is within the subcontractor's responsibilities;
and
3) Contractor obligates the subcontractor in a written contract to maintain
MDHHS's Confidential Information in confidence.
At MDHHS's request, any employee of Contractor or any subcontractor may
be required to execute a separate agreement to be bound by the provisions of
this Section.
c. Cooperation to Prevent Disclosure of Confidential Information. Each party
must use its best efforts to assist the other party in identifying and
preventing any unauthorized use or disclosure of any Confidential
Information. Without limiting the foregoing, each party must advise the
other party immediately in the event either party learns or has reason to
believe that any person who has had access to Confidential Information
has violated or intends to violate the terms of this Contract and each party
will cooperate with the other party in seeking injunctive or other equitable
relief against any such person.
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Amendment Number:2
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Rev. 12-21
d. Remedies for Breach of Obligation of Confidentiality. Each party
acknowledges that breach of its obligation of confidentiality may give rise
to irreparable injury to the other party, which damage may be inadequately
compensable in the form of monetary damages. Accordingly, a party may
seek and obtain injunctive relief against the breach or threatened breach
of the foregoing undertakings, in addition to any other legal remedies
which may be available, to include, in the case of MDHHS, at the sole
election of MDHHS, the immediate termination, without liability to MDHHS,
of this Contract or any Statement of Work corresponding to the breach or
threatened breach.
e. Surrender of Confidential Information upon Termination. Upon termination
of this Contract or a Statement of Work, in whole or in part, each party
must, within five calendar days from the date of termination, return to the
other party any and all Confidential Information received from the other
party, or created or received by a party on behalf of the other party, which
are in such party’s possession, custody, or control; provided, however,
that Contractor must return State Data to MDHHS following the timeframe
and procedure described further in this Contract. Should Contractor or
MDHHS determine that the return of any Confidential Information is not
feasible, such party must destroy the Confidential Information and must
certify the same in writing within five calendar days from the date of
termination to the other party. However, MDHHS’s legal ability to destroy
Contractor data may be restricted by its retention and disposal schedule,
in which case Contractor’s Confidential Information will be destroyed after
the retention period expires.
4.34 Data Privacy and Information Security
a. Undertaking by Contractor. Without limiting Contractor’s obligation of
confidentiality as further described, Contractor is responsible for
establishing and maintaining a data privacy and information security
program, including physical, technical, administrative, and organizational
safeguards, that is designed to:
1) Ensure the security and confidentiality of the State Data;
2) Protect against any anticipated threats or hazards to the security or
integrity of the State Data;
3) Protect against unauthorized disclosure, access to, or use of the State
Data;
4) Ensure the proper disposal of State Data; and
5) Ensure that all employees, agents, and subcontractors of Contractor, if
any, comply with all of the foregoing. In no case will the safeguards of
Contractor’s data privacy and information security program be less
stringent than the safeguards used by MDHHS, and Contractor must at
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Amendment Number:2
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Rev. 12-21
all times comply with all applicable State IT policies and standards,
which are available to Contractor upon request.
b. Audit by Contractor. No less than annually, Contractor must conduct a
comprehensive independent third-party audit of its data privacy and
information security program and provide such audit findings to MDHHS.
c. Right of Audit by the State. Without limiting any other audit rights of MDHHS,
MDHHS has the right to review Contractor’s data privacy and information
security program prior to the commencement of Contract Activities and from
time to time during the term of this Contract. During the providing of the
Contract Activities, on an ongoing basis from time to time and without notice,
MDHHS, at its own expense, is entitled to perform, or to have performed, an
on-site audit of Contractor’s data privacy and information security program. In
lieu of an on-site audit, upon request by MDHHS, Contractor agrees to
complete, within 45 calendar days of receipt, an audit questionnaire provided
by MDHHS regarding Contractor’s data privacy and information security
program.
d. Audit Findings. Contractor must implement any required safeguards as
identified by MDHHS or by any audit of Contractor’s data privacy and
information security program.
e. State’s Right to Termination for Deficiencies. MDHHS reserves the right, at its
sole election, to immediately terminate this Contract or a Statement of Work
without limitation and without liability if MDHHS determines that Contractor fails
or has failed to meet its obligations under this Section.
4.35 Reserved
4.36 Reserved
4.37 Records Maintenance, Inspection, Examination, and Audit
Pursuant to MCL 18.1470, MDHHS or its designee may audit Contractor to verify
compliance with this Contract. Contractor must retain and provide to MDHHS or
its designee and the auditor general upon request, all records related to the
Contract through the term of the Contract and for four years after the latter of
termination, expiration, or final payment under this Contract or any extension
(“Audit Period”). If an audit, litigation, or other action involving the records is
initiated before the end of the Audit Period, Contractor must retain the records
until all issues are resolved.
Within 10 calendar days of providing notice, MDHHS and its authorized
representatives or designees have the right to enter and inspect Contractor's
premises or any other places where Contract Activities are being performed, and
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examine, copy, and audit all records related to this Contract. Contractor must
cooperate and provide reasonable assistance. If financial errors are revealed, the
amount in error must be reflected as a credit or debit on subsequent invoices until
the amount is paid or refunded. Any remaining balance at the end of the Contract
must be paid or refunded within 45 calendar days.
This Section applies to Contractor, any parent, affiliate, or subsidiary organization
of Contractor, and any subcontractor that performs Contract Activities in
connection with this Contract.
4.38 Representations and Warranties
Contractor represents and warrants:
a. Contractor is the owner or licensee of any Contract Activities that it licenses,
sells, or develops and Contractor has the rights necessary to convey title,
ownership rights, or licensed use;
b. All Contract Activities are delivered free from any security interest, lien, or
encumbrance and will continue in that respect;
c. The Contract Activities will not infringe the patent, trademark, copyright, trade
secret, or other proprietary rights of any third party;
d. Contractor must assign or otherwise transfer to MDHHS or its designee any
manufacturer's warranty for the Contract Activities;
e. The Contract Activities are merchantable and fit for the specific purposes
identified in the Contract;
f. The Contract signatory has the authority to enter into this Contract;
g. All information furnished by Contractor in connection with the Contract fairly
and accurately represents Contractor's business, properties, finances, and
operations as of the dates covered by the information, and Contractor will
inform MDHHS of any material adverse changes;
h. All information furnished and representations made in connection with the
award of this Contract is true, accurate, and complete, and contains no false
statements or omits any fact that would make the information misleading and
that;
i. Contractor is neither currently engaged in nor will engage in the boycott of a
person based in or doing business with a strategic partner as described in 22
USC 8601 to 8606
A breach of this Section is considered a material breach of this Contract, which
entitles MDHHS to terminate this Contract under Section 4.24, Termination for
Cause.
4.39 Conflicts and Ethics
Contractor will uphold high ethical standards and is prohibited from:
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a. Holding or acquiring an interest that would conflict with this Contract;
b. Doing anything that creates an appearance of impropriety with respect to
the award or performance of the Contract;
c. Attempting to influence or appearing to influence any State employee by
the direct or indirect offer of anything of value; or
d. Paying or agreeing to pay any person, other than employees and
consultants working for Contractor, any consideration contingent upon the
award of the Contract.
Contractor must immediately notify MDHHS of any violation or potential violation
of these standards. This Section applies to Contractor, any parent, affiliate, or
subsidiary organization of Contractor, and any subcontractor that performs
Contract Activities in connection with this Contract.
4.40 Compliance with Laws
Contractor must comply with all federal, state and local laws, rules and
regulations.
4.41 Reserved
4.42 Reserved
4.43 Nondiscrimination
Under the Elliott-Larsen Civil Rights Act, 1976 PA 453, MCL 37.2101, et seq., the
Persons with Disabilities Civil Rights Act, 1976 PA 220, MCL 37.1101, et seq.,
and Executive Directive 2019-09, Contractor and its subcontractors agree not to
discriminate against an employee or applicant for employment with respect to
hire, tenure, terms, conditions, or privileges of employment, or a matter directly or
indirectly related to employment, because of race, color, religion, national origin,
age, sex (as defined in Executive Directive 2019-09), height, weight, marital
status, partisan considerations, any mental or physical disability, or genetic
information that is unrelated to the person’s ability to perform the duties of a
particular job or position. Breach of this covenant is a material breach of this
Contract.
4.44 Unfair Labor Practice
Under MCL 423.324, MDHHS may void any Contract with a Contractor or
subcontractor who appears on the Unfair Labor Practice register compiled under
MCL 423.322.
4.45 Governing Law
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This Contract is governed, construed, and enforced in accordance with Michigan
law, excluding choice-of-law principles, and all claims relating to or arising out of
this Contract are governed by Michigan law, excluding choice-of-law principles.
Any dispute arising from this Contract must be resolved in the Michigan Court of
Claims. Complaints against the State must be initiated in Ingham County,
Michigan. Contractor waives any objections, such as lack of personal jurisdiction
or forum non conveniens. Contractor must appoint an agent in Michigan to
receive service of process.
4.46 Non-Exclusivity
Nothing contained in this Contract is intended nor is to be construed as creating
any requirements contract with Contractor, nor does it provide Contractor with a
right of first refusal for any future work. This Contract does not restrict the State or
its agencies from acquiring similar, equal, or like Contract Activities from other
sources.
4.47 Force Majeure
Neither party will be in breach of this Contract because of any failure arising from
any disaster or acts of god that are beyond their control and without their fault or
negligence. Each party will use commercially reasonable efforts to resume
performance. Contractor will not be relieved of a breach or delay caused by its
subcontractors. If immediate performance is necessary to ensure public health
and safety, MDHHS may immediately contract with a third party.
4.48 Dispute Resolution
The parties will endeavor to resolve any Contract dispute in accordance with this
provision. The dispute will be referred to the parties' respective Contract
Administrators or Program Managers. Such referral must include a description of
the issues and all supporting documentation. The parties must submit the dispute
to a senior executive if unable to resolve the dispute within 15 business days. The
parties will continue performing while a dispute is being resolved unless the
dispute precludes performance. A dispute involving payment does not preclude
performance.
Litigation to resolve the dispute will not be instituted until after the dispute has
been elevated to the parties’ senior executive and either concludes that resolution
is unlikely or fails to respond within 15 business days. The parties are not
prohibited from instituting formal proceedings: (a) to avoid the expiration of statute
of limitations period; (b) to preserve a superior position with respect to creditors;
or (c) where a party makes a determination that a temporary restraining order or
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other injunctive relief is the only adequate remedy. This Section does not limit
MDHHS’s right to terminate the Contract.
4.49 Media Releases
News releases (including promotional literature and commercial advertisements)
pertaining to the Contract or project to which it relates must not be made without
the prior written approval of MDHHS, and then only in accordance with the explicit
written instructions of MDHHS.
4.50 Reserved
4.51 Entire Agreement and Order of Precedence
This Contract is the entire agreement of the parties related to the Contract
Activities. This Contract supersedes and replaces all previous understandings
and agreements between the parties for the Contract Activities. NO TERMS ON
CONTRACTOR’S INVOICES, ORDERING DOCUMENTS, WEBSITE, OR
OTHER NON-NEGOTIATED TERMS AND CONDITIONS PROVIDED WITH
ANY OF THE CONTRACT ACTIVITIES, OR DOCUMENTATION HEREUNDER,
EVEN IF ATTACHED TO THE STATE’S DELIVERY OR PURCHASE ORDER,
WILL CONSTITUTE A PART OR AMENDMENT OF THIS CONTRACT OR IS
BINDING ON THE STATE OR ANY AUTHORIZED USER FOR ANY
PURPOSE. ALL SUCH OTHER TERMS AND CONDITIONS HAVE NO FORCE
AND EFFECT AND ARE DEEMED REJECTED BY THE STATE AND THE
AUTHORIZED USER, EVEN IF ACCESS TO OR USE OF THE CONTRACT
ACTIVITIES REQUIRES AFFIRMATIVE ACCEPTANCE OF SUCH TERMS
AND CONDITIONS.
4.52 Severability
If any part of this Contract is held invalid or unenforceable, by any court of
competent jurisdiction, that part will be deemed deleted from this Contract and the
severed part will be replaced by agreed upon language that achieves the same or
similar objectives. The remaining Contract will continue in full force and effect.
4.53 Waiver
Failure to enforce any provision of this Contract will not constitute a waiver.
4.54 Survival
Any right, obligation or condition that, by its express terms or nature and context
is intended to survive, will survive the termination or expiration of this Contract;
such rights, obligations, or conditions include, but are not limited to, those related
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to transition responsibilities; indemnification; disclaimer of damages and
limitations of liability; State Data; non-disclosure of Confidential Information;
representations and warranties; insurance and bankruptcy.
4.55 Contract Modification
This Contract may not be amended except by signed agreement between the
parties. Notwithstanding the foregoing, no subsequent Statement of Work or
amendment executed after the effective date will be construed to amend this
Contract unless it specifically states its intent to do so and cites the section or
sections amended.
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FEDERAL PROVISIONS ADDENDUM
This addendum applies to purchases that will be paid for in whole or in part with funds
obtained from the federal government. The provisions below are required, and the language
is not negotiable. If any provision below conflicts with the State’s terms and conditions,
including any attachments, schedules, or exhibits to the State’s Contract, the provisions
below take priority to the extent a provision is required by federal law; otherwise, the order of
precedence set forth in the Contract applies. Hyperlinks are provided for convenience only;
broken hyperlinks will not relieve Contractor from compliance with the law.
1. Equal Employment Opportunity
If this Contract is a “federally assisted construction contract” as defined in 41 CFR Part
60-1.3, and except as otherwise may be provided under 41 CFR Part 60, then during
performance of this Contract, the Contractor agrees as follows:
a.The Contractor will not discriminate against any employee or applicant for
employment because of race, color, religion, sex, sexual orientation, gender
identity, or national origin. The Contractor will take affirmative action to ensure
that applicants are employed, and that employees are treated during employment
without regard to their race, color, religion, sex, sexual orientation, gender identity,
or national origin. Such action shall include, but not be limited to the following:
Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising;
layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. The Contractor agrees to post in conspicuous
places, available to employees and applicants for employment, notices to be provided
setting forth the provisions of this nondiscrimination clause.
b.The Contractor will, in all solicitations or advertisements for employees placed by
or on behalf of the Contractor, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex, sexual
orientation, gender identity, or national origin.
c.The Contractor will not discharge or in any other manner discriminate against any
employee or applicant for employment because such employee or applicant has
inquired about, discussed, or disclosed the compensation of the employee or
applicant or another employee or applicant. This provision shall not apply to
instances in which an employee who has access to the compensation information
of other employees or applicants as a part of such employee's essential job
functions discloses the compensation of such other employees or applicants to
individuals who do not otherwise have access to such information, unless such
disclosure is in response to a formal complaint or charge, in furtherance of an
investigation, proceeding, hearing, or action, including an investigation conducted
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by the employer, or is consistent with the Contractor's legal duty to furnish
information.
d.The Contractor will send to each labor union or representative of workers with
which he has a collective bargaining agreement or other contract or
understanding, a notice to be provided advising the said labor union or workers'
representatives of the Contractor's commitments under this section, and shall
post copies of the notice in conspicuous places available to employees and
applicants for employment.
e.The Contractor will comply with all provisions of Executive Order 11246 of
September 24, 1965, and of the rules, regulations, and relevant orders of the
Secretary of Labor.
f.The Contractor will furnish all information and reports required by Executive Order
11246 of September 24, 1965, and by rules, regulations, and orders of the
Secretary of Labor, or pursuant thereto, and will permit access to his books,
records, and accounts by the administering agency and the Secretary of Labor for
purposes of investigation to ascertain compliance with such rules, regulations,
and orders.
g.In the event of the Contractor's noncompliance with the nondiscrimination clauses
of this contract or with any of the said rules, regulations, or orders, this Contract
may be canceled, terminated, or suspended in whole or in part and the Contractor
may be declared ineligible for further Government contracts or federally assisted
construction contracts in accordance with procedures authorized in Executive
Order 11246 of September 24, 1965, and such other sanctions may be imposed
and remedies invoked as provided in Executive Order 11246 of September 24,
1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise
provided by law.
h.The Contractor will include the portion of the sentence immediately preceding
paragraph (1) and the provisions of paragraphs (1) through (8) in every
subcontract or purchase order unless exempted by rules, regulations, or orders of
the Secretary of Labor issued pursuant to section 204 of Executive Order 11246
of September 24, 1965, so that such provisions will be binding upon each
subcontractor or vendor. The Contractor will take such action with respect to any
subcontract or purchase order as the administering agency may direct as a
means of enforcing such provisions, including sanctions for noncompliance:
Provided, however, that in the event a Contractor becomes involved in, or is
threatened with, litigation with a subcontractor or vendor as a result of such direction
by the administering agency, the Contractor may request the United States to enter
into such litigation to protect the interests of the United States.
The applicant further agrees that it will be bound by the above equal opportunity clause
with respect to its own employment practices when it participates in federally assisted
construction work: Provided, that if the applicant so participating is a State or local
government, the above equal opportunity clause is not applicable to any agency,
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instrumentality or subdivision of such government which does not participate in work
on or under the contract.
The applicant agrees that it will assist and cooperate actively with the administering
agency and the Secretary of Labor in obtaining the compliance of contractors and
subcontractors with the equal opportunity clause and the rules, regulations, and
relevant orders of the Secretary of Labor, that it will furnish the administering agency
and the Secretary of Labor such information as they may require for the supervision of
such compliance, and that it will otherwise assist the administering agency in the
discharge of the agency's primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into any contract or
contract modification subject to Executive Order 11246 of September 24, 1965, with a
contractor debarred from, or who has not demonstrated eligibility for, Government
contracts and federally assisted construction contracts pursuant to the Executive Order
and will carry out such sanctions and penalties for violation of the equal opportunity
clause as may be imposed upon contractors and subcontractors by the administering
agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order.
In addition, the applicant agrees that if it fails or refuses to comply with these
undertakings, the administering agency may take any or all of the following actions:
Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance,
guarantee); refrain from extending any further assistance to the applicant under the
program with respect to which the failure or refund occurred until satisfactory
assurance of future compliance has been received from such applicant; and refer the
case to the Department of Justice for appropriate legal proceedings.
2. Davis-Bacon Act (Prevailing Wage)
If this Contract is a prime construction contract in excess of $2,000, the Contractor (and
its Subcontractors) must comply with the Davis-Bacon Act (40 USC 3141-3148) as
supplemented by Department of Labor regulations (29 CFR Part 5, “Labor Standards
Provisions Applicable to Contracts Covering Federally Financed and Assisted
Construction”), and during performance of this Contract the Contractor agrees as follows:
a.All transactions regarding this contract shall be done in compliance with the
Davis-Bacon Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of
29 C.F.R. pt. 5 as may be applicable. The contractor shall comply with 40 U.S.C.
3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.
b.Contractors are required to pay wages to laborers and mechanics at a rate not
less than the prevailing wages specified in a wage determination made by the
Secretary of Labor.
c.Additionally, contractors are required to pay wages not less than once a week.
3. Copeland “Anti-Kickback” Act
If this Contract is a contract for construction or repair work in excess of $2,000 where the
Davis-Bacon Act applies, the Contractor must comply with the Copeland “Anti-Kickback”
Act (40 USC 3145), as supplemented by Department of Labor regulations (29 CFR Part 3,
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“Contractors and Subcontractors on Public Building or Public Work Financed in Whole or
in Part by Loans or Grants from the United States”), which prohibits the Contractor and
subrecipients from inducing, by any means, any person employed in the construction,
completion, or repair of public work, to give up any part of the compensation to which he or
she is otherwise entitled, and during performance of this Contract the Contractor agrees
as follows:
a. Contractor. The Contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. § 3145,
and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are
incorporated by reference into this contract.
b. Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts
the clause above and such other clauses as FEMA or the applicable federal
awarding agency may by appropriate instructions require, and also a clause
requiring the Subcontractors to include these clauses in any lower tier
subcontracts. The prime contractor shall be responsible for the compliance by any
subcontractor or lower tier subcontractor with all of these contract clauses.
c. Breach. A breach of the contract clauses above may be grounds for termination
of the contract, and for debarment as a Contractor and Subcontractor as provided
in 29 C.F.R. § 5.12.
4. Contract Work Hours and Safety Standards Act
If the Contract is in excess of $100,000 and involves the employment of mechanics or
laborers, the Contractor must comply with 40 USC 3702 and 3704, as supplemented by
Department of Labor regulations (29 CFR Part 5), as applicable, and during performance
of this Contract the Contractor agrees as follows:
a. Overtime requirements. No Contractor or Subcontractor contracting for any part of
the contract work which may require or involve the employment of laborers or
mechanics shall require or permit any such laborer or mechanic in any workweek in
which he or she is employed on such work to work in excess of 40 hours in such
workweek unless such laborer or mechanic receives compensation at a rate not less
than 1 ½ times the basic rate of pay for all hours worked in excess of 40 hours in such
workweek.
b. Violation; liability for unpaid wages; liquidated damages. In the event of any
violation of the clause set forth in paragraph (1) of this section the Contractor and any
Subcontractor responsible therefor shall be liable for the unpaid wages. In addition,
such Contractor and Subcontractor shall be liable to the United States (in the case of
work done under contract for the District of Columbia or a territory, to such District or to
such territory), for liquidated damages. Such liquidated damages shall be computed
with respect to each individual laborer or mechanic, including watchmen and guards,
employed in violation of the clause set forth in paragraph (1) of this section, in the sum
of $27 for each calendar day on which such individual was required or permitted to
work in excess of the standard work week of 40 hours without payment of the overtime
wages required by the clause set forth in paragraph (1) of this section.
c. Withholding for unpaid wages and liquidated damages. The State shall upon its
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own action or upon written request of an authorized representative of the Department
of Labor withhold or cause to be withheld, from any moneys payable on account of
work performed by the Contractor or Subcontractor under any such contract or any
other Federal contract with the same prime contractor, or any other federally-assisted
contract subject to the Contract Work Hours and Safety Standards Act, which is held
by the same prime contractor, such sums as may be determined to be necessary to
satisfy any liabilities of such contractor or subcontractor for unpaid wages and
liquidated damages as provided in the clause set forth in paragraph (2) of this section.
d. Subcontracts. The Contractor or Subcontractor shall insert in any subcontracts the
clauses set forth in paragraph (1) through (4) of this section and also a clause requiring
the Subcontractors to include these clauses in any lower tier subcontracts. The prime
contractor shall be responsible for compliance by any subcontractor or lower tier
subcontractor with the clauses set forth in paragraphs (1) through (4) of this section.
5. Rights to Inventions Made Under a Contract or Agreement
If the Contract is funded by a federal “funding agreement” as defined under 37 CFR
§401.2 (a) and the recipient or subrecipient wishes to enter into a contract with a small
business firm or nonprofit organization regarding the substitution of parties, assignment or
performance of experimental, developmental, or research work under that “funding
agreement,” the recipient or subrecipient must comply with 37 CFR Part 401, “Rights to
Inventions Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements,” and any implementing
regulations issued by the awarding agency.
6. Clean Air Act and the Federal Water Pollution Control Act
If this Contract is in excess of $150,000, the Contractor must comply with all applicable
standards, orders, and regulations issued under the Clean Air Act (42 USC 7401-7671q)
and the Federal Water Pollution Control Act (33 USC 1251-1387), and during
performance of this Contract the Contractor agrees as follows:
Clean Air Act
1. The Contractor agrees to comply with all applicable standards, orders or regulations
issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq.
2. The Contractor agrees to report each violation to the State and understands and
agrees that the State will, in turn, report each violation as required to assure
notification to the Federal Emergency Management Agency or the applicable federal
awarding agency, and the appropriate Environmental Protection Agency Regional
Office.
3. The Contractor agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance provided by FEMA or
the applicable federal awarding agency.
Federal Water Pollution Control Act
1. The Contractor agrees to comply with all applicable standards, orders, or regulations
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issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C.
1251 et seq.
2. The Contractor agrees to report each violation to the State and understands and
agrees that the State will, in turn, report each violation as required to assure
notification to the Federal Emergency Management Agency or the applicable federal
awarding agency, and the appropriate Environmental Protection Agency Regional
Office.
3. The Contractor agrees to include these requirements in each subcontract exceeding
$150,000 financed in whole or in part with Federal assistance provided by FEMA or
the applicable federal awarding agency.
7. Debarment and Suspension
A “contract award” (see 2 CFR 180.220) must not be made to parties listed on the
government-wide exclusions in the System for Award Management (SAM), in accordance
with the OMB guidelines at 2 CFR 180 that implement Executive Orders 12549 (51 FR
6370; February 21, 1986) and 12689 (54 FR 34131; August 18, 1989), “Debarment and
Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or
otherwise excluded by agencies, as well as parties declared ineligible under statutory or
regulatory authority other than Executive Order 12549.
a.This Contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2
C.F.R. pt. 3000. As such, the Contractor is required to verify that none of the
Contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2
C.F.R. § 180.905) are excluded (defined at 2 C.F.R. § 180.940) or disqualified
(defined at 2 C.F.R. § 180.935).
b.The Contractor must comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt.
3000, subpart C, and must include a requirement to comply with these regulations
in any lower tier covered transaction it enters into.
c.This certification is a material representation of fact relied upon by the State. If it is
later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart
C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to the State,
the Federal Government may pursue available remedies, including but not limited
to suspension and/or debarment.
d.The bidder or proposer agrees to comply with the requirements of 2 C.F.R. pt.
180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and
throughout the period of any contract that may arise from this offer. The bidder or
proposer further agrees to include a provision requiring such compliance in its
lower tier covered transactions.
8. Byrd Anti-Lobbying Amendment
Contractors who apply or bid for an award of $100,000 or more shall file the required
certification in Exhibit 1 – Byrd Anti-Lobbying Certification below. Each tier certifies to the
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tier above that it will not and has not used Federal appropriated funds to pay any person or
organization for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, officer or employee of Congress, or an employee of a
Member of Congress in connection with obtaining any Federal contract, grant, or any other
award covered by 31 U.S.C. § 1352. Each tier shall also disclose any lobbying with non-
Federal funds that takes place in connection with obtaining any Federal award. Such
disclosures are forwarded from tier to tier up to the recipient who in turn will forward the
certification(s) to the awarding agency.
9. Procurement of Recovered Materials
Under 2 CFR 200.322, Contractors must comply with section 6002 of the Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act.
a.In the performance of this contract, the Contractor shall make maximum use of
products containing recovered materials that are EPA-designated items unless
the product cannot be acquired:
i. Competitively within a timeframe providing for compliance with the contract
performance schedule;
ii. Meeting contract performance requirements; or
iii. At a reasonable price.
b.Information about this requirement, along with the list of EPA- designated items, is
available at EPA’s Comprehensive Procurement Guidelines web site,
https://www.epa.gov/smm/comprehensive- procurement-guideline-cpg-program.
c.The Contractor also agrees to comply with all other applicable requirements of Section
6002 of the Solid Waste Disposal Act.
10.Additional FEMA Contract Provisions.
The following provisions apply to purchases that will be paid for in whole or in part with
funds obtained from the Federal Emergency Management Agency (FEMA):
a. Access to Records. The following access to records requirements apply to this
contract:
i. The Contractor agrees to provide the State, the FEMA Administrator, the
Comptroller General of the United States, or any of their authorized
representatives access to any books, documents, papers, and records of the
Contractor which are directly pertinent to this contract for the purposes of making
audits, examinations, excerpts, and transcriptions.
ii. The Contractor agrees to permit any of the foregoing parties to reproduce by any
means whatsoever or to copy excerpts and transcriptions as reasonably needed.
iii. The Contractor agrees to provide the FEMA Administrator or his authorized
representatives access to construction or other work sites pertaining to the work
being completed under the contract.
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In compliance with the Disaster Recovery Act of 2018, the State and the Contractor
acknowledge and agree that no language in this contract is intended to prohibit audits or
internal reviews by the FEMA Administrator or the Comptroller General of the United
States.
b. Changes.
See the provisions regarding modifications or change notice in the Contract
Terms.
c. DHS Seal Logo and Flags.
The Contractor shall not use the DHS seal(s), logos, crests, or reproductions of
flags or likenesses of DHS agency officials without specific FEMA pre-approval.
d. Compliance with Federal Law, Regulations, and Executive Orders.
This is an acknowledgement that FEMA financial assistance will be used to fund
all or a portion of the contract. The Contractor will comply with all applicable
Federal law, regulations, executive orders, FEMA policies, procedures, and
directives.
e. No Obligation by Federal Government.
The Federal Government is not a party to this contract and is not subject to any
obligations or liabilities to the State, Contractor, or any other party pertaining to
any matter resulting from the Contract.”
f. Program Fraud and False or Fraudulent Statements or Related Acts
The Contractor acknowledges that 31 U.S.C. Chap. 38 (Administrative Remedies
for False Claims and Statements) applies to the Contractor’s actions pertaining to
this contract.
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EXHIBIT 1
BYRD ANTI-LOBBYING CERTIFICATION
Contractor must complete this certification if the purchase will be paid for in whole or in part
with funds obtained from the federal government and the purchase is greater than $100,000.
APPENDIX A, 44 C.F.R. PART 18 – CERTIFICATION REGARDING LOBBYING
Certification for Contracts, Grants, Loans, and Cooperative Agreements
The undersigned certifies, to the best of his or her knowledge and belief, that:
1.No Federal appropriated funds have been paid or will be paid, by or on behalf of the
undersigned, to any person for influencing or attempting to influence an officer or
employee of an agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with the awarding of any Federal
contract, the making of any Federal grant, the making of any Federal loan, the entering
into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any Federal contract, grant, loan, or cooperative agreement.
2.If any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a Member of
Congress in connection with this Federal contract, grant, loan, or cooperative agreement,
the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to
Report Lobbying,” in accordance with its instructions.
3.The undersigned shall require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when
this transaction was made or entered into. Submission of this certification is a prerequisite
for making or entering into this transaction imposed by section 1352, title 31, U.S. Code.
Any person who fails to file the required certification shall be subject to a civil penalty of not
less than $10,000 and not more than $100,000 for each such failure.
Contract Number:MA180000000832
Amendment Number:2
PAGE 42 of 42
Rev. 12-21
The Contractor, County of Oakland, A Michigan Constitutional Corp., certifies or affirms
the truthfulness and accuracy of each statement of its certification and disclosure, if any. In
addition, the Contractor understands and agrees that the provisions of 31 U.S.C. Chap.
38, Administrative Remedies for False Claims and Statements, apply to this certification
and disclosure, if any.
________________________________________
Signature of Contractor’s Authorized Official
________________________________________
Name and Title of Contractor’s Authorized Official
________________________________________
Date