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 1 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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. 2 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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, 3 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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 4 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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 5 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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. 6 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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 7 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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 8 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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:_______________________________ 9 American LegalNet, Inc. www.FormsWorkflow.com 9/04/07 Ver. 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 10 American LegalNet, Inc. www.FormsWorkflow.com