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Ohio Attorney Generals Model Contract For Executive Agencies Form. This is a Ohio form and can be use in Attorney General Office Statewide.
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9/04/07 Ver.
OHIO ATTORNEY GENERAL’S MODEL CONTRACT FOR EXECUTIVE AGENCIES
(OHIO REV. CODE § 109.96)
AGREEMENT
BETWEEN THE
[AGENCY NAME]
AND
[CONTRACTOR NAME]
THIS AGREEMENT is made and entered into effective this ____ day of _________,
20__ by and between the [Agency Name] (hereinafter “Agency”), [Street Address, City, State,
Zip], and [Contractor Name] (hereinafter “Contractor”), [Street Address, City, State, Zip].
WHEREAS, Agency desires to engage Contractor to [State what Contractor is doing for
Agency];
WHEREAS, [If applicable, insert language showing statutory authority to undertake this
agreement – example: Pursuant to Ohio Revised Code Section 1901.05, Agency may enter into
agreements with Contractors to effectuate the purposes for which Agency was created]; and
WHEREAS, Contractor desires to perform such services for Agency in accordance with
the terms and conditions prescribed by Agency;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and
agreements set forth herein, the parties hereto agree as follows:
ARTICLE I: NATURE OF CONTRACT
1.1
Contractor shall be employed as an independent contractor, to fulfill the terms of this
Agreement. It is specifically understood that the nature of the services to be rendered
under this Agreement are of such a personal nature that Agency is the sole judge of the
adequacy of such services. Agency thus reserves the right to cancel this Agreement
should Agency at any time be dissatisfied with Contractor’s performance of its duties
under this Agreement.
1.2
Agency enters into this Agreement in reliance upon Contractor’s representations that it
has the necessary expertise and experience to perform its obligations hereunder, and
Contractor warrants that it does possess the necessary expertise and experience.
1.3
Contractor shall perform services and Agency shall not hire, supervise, or pay any
assistants to Contractor in its performance under this Agreement. Agency shall not be
required to provide any training to Contractor to enable it to perform services required
hereunder.
1.4
In the event of a cancellation of this Agreement by Agency, Contractor shall be
reimbursed in accordance with Article VI, Termination of Contractor’s Services. All
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provisions of this Agreement relating to “confidentiality” shall remain binding upon
Contractor in the event of cancellation.
1.5
Agency may, from time to time, communicate specific instructions and requests to
Contractor concerning the performance of the work described in this Agreement. Upon
such notice and within [ten] days after receipt of instructions, Contractor shall comply
with such instructions and fulfill such requests to Agency’s satisfaction. It is expressly
understood by the parties that these instructions and requests are for the sole purpose of
performing the specific tasks requested to ensure satisfactory completion of the work
described in this Agreement. The management of the work, including the exclusive right
to control or direct the manner or means by which the work is performed, remains with
the Contractor. Agency retains the right to ensure that Contractor’s work is in conformity
with the terms and conditions of this Agreement. It is fully understood and agreed that
Contractor is an independent contractor and neither Contractor nor its personnel shall at
any time, or for any purpose, be considered as agents, servants, or employees of Agency
or the State of Ohio.
ARTICLE II: SCOPE OF SERVICES
2.1
Contractor shall [Description of services to be performed by Contractor].
2.2
Agency shall [Description of duties to be performed by Agency].
2.3
Contractor shall not discuss or disclose any information or material obtained pursuant to
its obligations under this Agreement without the prior written consent of Agency.
[Description of any other obligations of Contractor].
ARTICLE III: TIME OF PERFORMANCE
3.1
The services as stated in Article II, Scope of Services, shall be commenced on [Date] and
concluded on or before [Date].
3.2
This Agreement shall remain in effect until the work described in Article II, Scope of
Services, is completed to the satisfaction of Agency and until Contractor is paid in
accordance with Article IV, Compensation, or until terminated as provided in Article VI,
Termination of Contractor’s Services, whichever is sooner. This Agreement shall be
completed no later than the ______ day of ___________, 20__.
3.3
As the current General Assembly cannot commit a future General Assembly to
expenditure, this Agreement shall expire no later than [June 30, 2007/or end of current
biennium]. Agency may renew this Agreement on the same terms and conditions by
giving written notice prior to expiration. Such renewal shall begin at the start of the next
biennium and shall not extend beyond the expiration of the biennium in which the
renewal commences.
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3.4
It is expressly agreed by the parties that none of the rights, duties, and obligations herein
shall be binding on either party if award of this Agreement would be contrary to the terms
of Ohio Revised Code (“O.R.C.”) Section 3517.13, O.R.C. Section 127.16, or O.R.C.
Chapter 102.
ARTICLE IV: COMPENSATION
4.1
Agency shall pay Contractor for services rendered a total amount of $_______________.
4.2
The total amount due was computed according to the following cost schedule:
[Cost Schedule]
4.3
Under no circumstances shall the total amount due or payable to Contractor under this
Agreement as compensation exceed a total amount of $_________________.
4.4
Contractor shall not be reimbursed for travel, lodging or any other expenses incurred in
the performance of this Agreement.
4.5
Contractor shall submit an invoice for the compensation incurred consistent with Section
4.2 above, and each invoice shall contain a description of the services performed and total
hours worked. Upon receipt and approval of the invoice by Agency, a voucher for
payment shall be processed.
ARTICLE V: CERTIFICATION OF FUNDS
5.1
It is expressly understood and agreed by the parties that none of the rights, duties, and
obligations described in this Agreement shall be binding on either party until all relevant
statutory provisions of the Ohio Revised Code, including, but not limited to, O.R.C.
Section 126.07, have been complied with, and until such time as all necessary funds are
available or encumbered and, when required, such expenditure of funds is approved by
the Controlling Board of the State of Ohio, or in the event that grant funds are used, until
such time that Agency gives Contractor written notice that such funds have been made
available to Agency by Agency’s funding source.
ARTICLE VI: TERMINATION OF CONTRACTOR’S SERVICES
6.1
Agency may, at any time prior to the completion of services by Contractor under this
Agreement, suspend or terminate this Agreement with or without cause by giving written
notice to Contractor.
6.2
Contractor, upon receipt of notice of suspension or termination, shall cease work on the
suspended or terminated activities under this Agreement, suspend or terminate all
subcontracts relating to the suspended or terminated activities, take all necessary or
appropriate steps to limit disbursements and minimize costs, and, if requested by Agency,
furnish a report, as of the date of receipt of notice of suspension or termination,
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describing the status of all work under this Agreement, including, without limitation,
results, conclusions resulting therefrom, and any other matters Agency requires.
6.3
Contractor shall be paid for services rendered up to the date Contractor received notice of
suspension or termination, less any payments previously made, provided Contractor has
supported such payments with detailed factual data containing services performed and
hours worked. In the event of suspension or termination, any payments made by Agency
for which Contractor has not rendered services shall be refunded.
6.4
In the event this Agreement is terminated prior to its completion, Contractor, upon
payment as specified, shall deliver to Agency all work products and documents which
have been prepared by Contractor in the course of providing services under this
Agreement. All such materials shall become and remain the property of Agency, to be
used in such manner and for such purpose as Agency may choose.
6.5
Contractor agrees to waive any right to, and shall make no claim for, additional
compensation against Agency by reason of such suspension or termination.
6.6
Contractor may terminate this Agreement upon 30 days prior written notice to Agency.
ARTICLE VII: RELATIONSHIP OF PARTIES
7.1
Agency and Contractor agree that, during the term of this Agreement, Contractor shall be
engaged by Agency solely on an independent contractor basis, and Contractor shall
therefore be responsible for all Contractor’s business expenses, including, but not limited
to, employees’ wages and salaries, insurance of every type and description, and all
business and personal taxes, including income and Social Security taxes and
contributions for Workers’ Compensation and Unemployment Compensation coverage, if
any.
7.2
Contractor agrees to comply with all applicable federal, state and local laws in the
conduct of the work hereunder.
7.3
While Contractor shall be required to render services described hereunder for Agency
during the term of this Agreement, nothing herein shall be construed to imply, by reason
of Contractor’s engagement hereunder on an independent contractor basis, that Agency
shall have or may exercise any right of control over Contractor with regard to the manner
or method of Contractor’s performance of services hereunder.
7.4
Except as expressly provided herein, neither party shall have the right to bind or obligate
the other party in any manner without the other party’s prior written consent.
ARTICLE VIII: RECORD KEEPING
8.1
During performance of this Agreement and for a period of three years after its
completion, Contractor shall maintain auditable records of all charges pertaining to this
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Agreement and shall make such records available to Agency as Agency may reasonably
require.
ARTICLE IX: RELATED AGREEMENTS
9.1
The work contemplated in this Agreement is to be performed by Contractor, who may
subcontract without Agency’s approval for the purchase of articles, supplies,
components, or special mechanical services that do not involve the type of work or
services described in Article II, Scope of Services, but which are required for its
satisfactory completion. Contractor shall not enter into other subcontracts without prior
written approval by Agency. All work subcontracted shall be at Contractor’s expense.
9.2
Contractor shall bind its subcontractors to the terms of this Agreement, so far as
applicable to the work of the subcontractor, and shall not agree to any provision which
seeks to bind Agency to terms inconsistent with, or at variance from, this Agreement.
9.3
Contractor warrants that it has not entered into, nor shall it enter into, other agreements,
without prior written approval of Agency, to perform substantially identical work for the
State of Ohio such that the product contemplated hereunder duplicates the work called for
by the other agreements.
9.4
Contractor shall furnish to Agency a list of all subcontractors, their addresses, tax
identification numbers, and the dollar amount of each subcontract.
ARTICLE X: CONFLICTS OF INTEREST AND ETHICS COMPLIANCE
10.1
No personnel of Contractor or member of the governing body of any locality or other
public official or employee of any such locality in which, or relating to which, the work
under this Agreement is being carried out, and who exercise any functions or
responsibilities in connection with the review or approval of this Agreement or carrying
out of any such work, shall, prior to the completion of said work, voluntarily acquire any
personal interest, direct or indirect, which is incompatible or in conflict with the
discharge and fulfillment of his or her functions and responsibilities with respect to the
carrying out of said work.
10.2
Any such person who acquires an incompatible or conflicting personal interest, on or
after the effective date of this Agreement, or who involuntarily acquires any such
incompatible or conflicting personal interest, shall immediately disclose his or her
interest to Agency in writing. Thereafter, he or she shall not participate in any action
affecting the work under this Agreement, unless Agency shall determine in its sole
discretion that, in the light of the personal interest disclosed, his or her participation in
any such action would not be contrary to the public interest.
10.3
In accordance with Executive Order 2007-01S, Contractor, by signature on this
document, certifies: (1) it has reviewed and understands Executive Order 2007-01S, (2)
has reviewed and understands the Ohio ethics and conflict of interest laws, and (3) will
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take no action inconsistent with those laws and this order. Contractor understands that
failure to comply with Executive Order No. 2007-01S is, in itself, grounds for
termination of this contract and may result in the loss of other contracts with the State of
Ohio. Executive Order No. 2007-01S may be found by accessing the following website:
http://governor2.ohio.gov/Portals/0/ExecutiveOrder2007-01S.pdf.
ARTICLE XI: NONDISCRIMINATION OF EMPLOYMENT
11.1
Pursuant to O.R.C. Section 125.111, Contractor agrees that Contractor, any
subcontractor, and any person acting on behalf of Contractor or a subcontractor, shall not
discriminate, by reason of race, color, religion, sex, age, national origin, or disability
against any citizen of this state in the employment of any person qualified and available
to perform the work under this Agreement.
11.2
Contractor further agrees that Contractor, any subcontractor, and any person acting on
behalf of Contractor or a subcontractor shall not, in any manner, discriminate against,
intimidate, or retaliate against any employee hired for the performance of work under this
Agreement on account of race, color, religion, sex, age, national origin, or disability.
11.3
Contractor represents that it has a written affirmative action program for the employment
and effective utilization of economically disadvantaged persons and shall file a
description of the affirmative action program and a progress report on its implementation
with the equal employment opportunity office of the Department of Administrative
Services.
ARTICLE XII: RIGHTS IN DATA AND COPYRIGHTS/PUBLIC USE
12.1
Agency shall have unrestricted authority to reproduce, distribute and use (in whole or in
part) any reports, data or materials prepared by Contractor pursuant to this Agreement.
No such documents or other materials produced (in whole or in part) with funds provided
to Contractor by Agency shall be subject to copyright by Contractor in the United States
or any other country.
12.2
Contractor agrees that all deliverables hereunder shall be made freely available to the
general public to the extent permitted or required by law.
ARTICLE XIII: LIABILITY
13.1
Contractor agrees to indemnify and to hold Agency and the State of Ohio harmless and
immune from any and all claims for injury or damages arising from this Agreement
which are attributable to Contractor’s own actions or omissions or those of its trustees,
officers, agents, employees, subcontractors, suppliers, third parties utilized by Contractor,
or joint venturers while acting under this Agreement. Such claims shall include any
claims made under the Fair Labor Standards Act or under any other federal or state law
involving wages, overtime, or employment matters and any claims involving patents,
copyrights, and trademarks.
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13.2
Contractor shall bear all costs associated with defending Agency and the State of Ohio
against any claims.
13.3
In no event shall either party be liable to the other party for indirect, consequential,
incidental, special, or punitive damages, or lost profits.
13.4
[Contractor shall purchase and maintain liability insurance pursuant to Exhibit A,
attached hereto and incorporated herein. If liability insurance is to be carried by
Contractor, attach and initial Exhibit A]
ARTICLE XIV: COMPLIANCE WITH LAWS
14.1
Contractor, in the execution of duties and obligations under this Agreement, agrees to
comply with all applicable federal, state and local laws, rules, regulations and ordinances.
ARTICLE XV: DRUG FREE WORKPLACE
15.1
Contractor agrees to comply with all applicable federal, state and local laws regarding
smoke-free and drug-free work places and shall make a good faith effort to ensure that
none of its employees or permitted subcontractors purchase, transfer, use, or possess
illegal drugs or alcohol, or abuse prescription drugs in any way when they are engaged in
the work being performed hereunder.
ARTICLE XVI: CAMPAIGN CONTRIBUTIONS
16.1
Contractor hereby certifies that all applicable parties listed in Division (I)(3) or (J)(3) of
O.R.C. Section 3517.13 are in full compliance with Divisions (I)(1) and (J)(1) of O.R.C.
Section 3517.13.
ARTICLE XVII: ENTIRE AGREEMENT/WAIVER
17.1
This Agreement contains the entire agreement between the parties hereto and shall not be
modified, amended or supplemented, or any rights herein waived, unless specifically
agreed upon in writing by the parties hereto.
17.2
This Agreement supersedes any and all previous agreements, whether written or oral,
between the parties.
17.3
A waiver by any party of any breach or default by the other party under this Agreement
shall not constitute a continuing waiver by such party of any subsequent act in breach of
or in default hereunder.
ARTICLE XVIII: NOTICES
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18.1
All notices, consents, and communications hereunder shall be given in writing, shall be
deemed to be given upon receipt thereof, and shall be sent to the addresses first set forth
above.
ARTICLE XIX: HEADINGS
19.1
The headings in this Agreement have been inserted for convenient reference only and
shall not be considered in any questions of interpretation or construction of this
Agreement.
ARTICLE XX: SEVERABILITY
20.1
The provisions of this Agreement are severable and independent, and if any such
provision shall be determined to be unenforceable in whole or in part, the remaining
provisions and any partially enforceable provision shall, to the extent enforceable in any
jurisdiction, nevertheless be binding and enforceable.
ARTICLE XXI: CONTROLLING LAW
21.1
This Agreement and the rights of the parties hereunder shall be governed, construed, and
interpreted in accordance with the laws of the State of Ohio and only Ohio courts shall
have jurisdiction over any action or proceeding concerning the Agreement and/or
performance thereunder.
ARTICLE XXII: SUCCESSORS AND ASSIGNS
22.1
Neither this Agreement nor any rights, duties, or obligations hereunder may be assigned
or transferred in whole or in part by Contractor, without the prior written consent of
Agency.
ARTICLE XXIII: FINDINGS FOR RECOVERY
23.1
Contractor warrants that it is not subject to an “unresolved” finding for recovery under
O.R.C. Section 9.24. If this warranty is found to be false, this Agreement is void ab
initio and Contractor shall immediately repay to Agency any funds paid under this
Agreement.
ARTICLE XXIV: DEBARMENT
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24.1
Contractor represents and warrants that it is not debarred from consideration for contract
awards by the Director of the Department of Administrative Services, pursuant to either
O.R.C. Section 153.02 or O.R.C. Section 125.25. If this representation and warranty is
found to be false, this Agreement is void ab initio and Contractor shall immediately repay
to Agency any funds paid under this Agreement.
ARTICLE XXV: DECLARATION REGARDING MATERIAL
ASSISTANCE/NONASSISTANCE TO A TERRORIST ORGANIZATION
25.1
Contractor hereby represents and warrants to Agency that it has not provided any
material assistance, as that term is defined in O.R.C. Section 2909.33(C), to any
organization identified by and included on the United States Department of State
Terrorist Exclusion List and that it has truthfully answered “no” to every question on the
“Declaration Regarding Material Assistance/Non-assistance to a Terrorist Organization.”
Contractor further represents and warrants that it has provided or will provide such to
Agency and/or the Ohio Business Gateway (http://obg.ohio.gov/DMA2007.shtml) prior
to execution of this Agreement. If these representations and warranties are found to be
false, this Agreement is void ab initio and Contractor shall immediately repay to the
Agency any funds paid under this Agreement.
ARTICLE XXVI: ANTITRUST ASSIGNMENT
26.1
Contractor assigns to Agency all State and Federal antitrust claims and causes of action
that relate to all goods and services provided for in this Agreement.
ARTICLE XXVII: EXECUTION
27.1
This Agreement is not binding upon Agency unless executed in full.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers, as of the day and year first written above.
[Name]
[Agency Name]
[Title]
[Name]
[Contractor Name]
[Title]
By:_________________________________
Date:_______________________________
By:_________________________________
Date:_______________________________
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EXHIBIT A
In conjunction herewith, Contractor agrees, at its own cost, to procure and continue in
force at all times that this contract is in effect, in its name, general liability insurance against any
and all claims for injuries to persons or damage to property occurring or arising out of
Contractor's obligations set forth herein. Such insurance shall at all times be in an amount not
less than Five Hundred Thousand Dollars ($500,000) on account of bodily injury to or death of
one (1) person, and One Million Dollars ($1,000,000) on account of bodily injuries or death of
more than one person as a result of any one accident or disaster, and Two Hundred Fifty
Thousand Dollars ($250,000) for property damage in any one accident. Such insurance shall be
written by a company or companies authorized to engage in the business of general liability
insurance in the State of Ohio with an A.M. Best rating of at least "A" or be otherwise approved
in writing by Agency. A certificate reflecting the continuing coverage of all such policies
procured by Contractor in compliance herewith shall be delivered to Agency at least thirty (30)
days prior to the time such insurance is required to be carried by Contractor, and thereafter at
least thirty (30) days prior to the expiration of any policies. Such insurance shall name Agency
and the State of Ohio as additional insureds. Such policies shall bear an endorsement stating that
the insurer agrees to notify Agency not less than thirty (30) days in advance of any proposed
modification or cancellation of any such policy.
____________(initials)
Agency
__(initials)
Contractor
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