DYS Terms and Conditions- Updated.docx

STANDARD TERMS AND CONDITIONS

1. DEPARTMENT OF ADMINISTRATIVE SERVICES (DAS) OR CONTROLLING BOARD APPROVAL: If DAS or Controlling Board approval is required, this Contract shall not be valid and enforceable until appropriate approvals are received.

2. CERTIFICATE OF AVAILABLE FUNDS: Notwithstanding any other provision of this Contract, and in accordance with Section 126.07 of the Revised Code of Ohio, this Contract shall not be valid or enforceable, unless and until the Director, Office of Budget and Management first certifies that there is a balance in the appropriation, not already obligated to pay existing obligations. Contractor understands that availability of funds is contingent on appropriations made by the Ohio General Assembly or by funding sources external to the State of Ohio, such as federal funding. If the Ohio General Assembly or the external funding source fails at any time to continue funding ODYS for the payments due under this Contract, this Contract will be terminated as of the date funding expires without further obligation of ODYS or the State of Ohio.

3. NATURE OF CONTRACT: It is fully understood and agreed that the Contractor is an independent contractor and is not an agent, servant or employee of ODYS or the State of Ohio. The Contractor must receive ODYS written approval prior to entering into any subcontract or joint venture for the delivery of services required by this Contract. If the Contractor enters into any agreement with a subcontractor, the Contractor is ultimately responsible for any and all actions or omissions by the subcontractor in the delivery of services under this contract. Throughout the term of this contract, the Contractor shall provide ODYS with copies of all current licensure, certification, and/or accreditation, including any renew or re-issuance thereof, for any employee or subcontractor, providing services under this contract.

The Contractor agrees that while operating in an ODYS facility the contractor and/or any employee or subcontractor of the contractor, shall follow all applicable rules and regulations for that facility.

Except as expressly provided herein, neither party shall have the right to bind or obligate the other party in any manner without the prior written consent of the other party.

4. NONDISCRIMINATION: Pursuant to O.R.C., Section 125.111, the Contractor agrees that Contractor, any subcontractor, and any person acting on behalf of the Contractor or subcontractor, will not discriminate, by reason of race, color, religion, sex, age, disability, as defined in ORC 4112.01, national origin, or ancestry against any citizen of this state in the hiring of any person qualified and available to perform the work under this contract. Contractor further agrees that Contractor, any subcontractor, and any person acting on behalf of Contractor or subcontractor shall not, in an manner, discriminate against, intimidate, or retaliate against any employee hired for the performance of work under this contract on account of race, color, religion, sex, age, disability as defined in ORC 4112.01, national origin, or ancestry.

The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices, setting forth the provisions of this nondiscrimination clause. The Contractor and any Subcontractor shall state in all solicitations or advertisements for employees placed by, or on behalf of, the Contractor that it is an equal opportunity employer and shall incorporate the requirements of this Section in all of its contracts for any of the performance of work under this contract.

The Contractor agrees that it has a written affirmative action program for the employment and effective utilization of economically disadvantaged persons, as defined in Ohio Revised Code, Section 122.71. Annually, the contractor agrees to 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.

5. TAXES: The Contractor affirms that it is not delinquent in the payment of any applicable federal, state, and local taxes and agrees to comply with all applicable Federal, State and Local laws in the performance of the work hereunder.

The Contractor accepts full responsibility for payment of all taxes, including and without limitation, unemployment compensation, insurance premiums, all income tax deductions, social security deductions, and any and all other taxes or payroll deductions required for all employees engaged by the Contractor in the performance of the work authorized by this Contact. The contractor must provide workers compensation for their employees and submit proof upon request. ODYS and the State of Ohio shall not be liable for any taxes under this Contract.

Additionally, the State of Ohio, ODYS is exempt from state, county, and transit sales taxes for services and goods supplied to and billed directly to ODYS.

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6. GOVERNING LAW: This Contract and any claims arising in any way out of this Contract shall be governed by the laws of the State of Ohio and the United States. Any provision of this Contract prohibited by the law of Ohio shall be deemed void and of no effect. Any litigation arising out of or relating in any way to this Contract or the performance hereunder shall be brought only in the courts of Ohio, and the Contractor hereby irrevocably consents to such jurisdiction.

7. SUSPENSION AND TERMINATION, BREACH AND DEFAULT:

I. Contract Termination: If Contractor fails to perform any one of its obligations under this Contract, it will be in default and ODYS may terminate this Contract in accordance with this section. The termination will be effective on the date delineated by ODYS.

i. Termination for Default. If Contractor's default is unable to be cured in a reasonable time, ODYS may terminate the Contract by written notice to the Contractor.

ii. Termination for Persistent Default. ODYS may terminate this Contract by written notice to Contractor for defaults that are cured but are persistent. "Persistent" means three or more defaults. After ODYS has notified Contractor of its third default, ODYS may terminate this Contract without providing Contractor with an opportunity to cure, if Contractor defaults for a fourth time. The four defaults are not required to be related to each other in any way.

iii. Termination for Endangered Performance. ODYS may terminate this Contract by written notice to the Contractor if ODYS determines that the performance of the Contract is endangered through no fault of ODYS.

iv. Termination for Financial Instability. ODYS may terminate this contract by written notice to Contractor if a petition in bankruptcy or similar proceeding has been filed by or against the Contractor.

v. Termination for Delinquency, Violation of Law. ODYS may terminate this Contract by written notice, if it determines that Contractor is delinquent in its payment of federal, state or local taxes, workers' compensation, insurance premiums, unemployment compensation contributions, child support, court costs or any other obligation owed to a state agency or political subdivision. ODYS also may cancel this Contract, if it determines that Contractor has violated any law during the performance of this Contract. However, ODYS may not terminate this Contract if the Contractor has entered into a repayment agreement with which the Contractor is current.

vi. Termination for Subcontractor Default. ODYS may terminate this contract for the default of the Contractor or any of its subcontractors. The Contractor will be solely responsible for satisfying any claims of its subcontractors for any suspension or termination and will indemnify ODYS for any liability to them. Subcontractors will hold ODYS harmless for any damage caused to them from a suspension or termination. The subcontractors will look solely to the Contractor for any compensation to which they may be entitled.

vii. Termination for Failure to Retain Certification. Pursuant to O.R.C. Section 123.151 and 123.152 of the Revised Code, ODYS may certify businesses for participation in state sponsored business assistance programs. After certification is obtained it is the responsibility of the Contractor to maintain certification. If the Contractor is awarded a contract pursuant to a certification program and fails to renew its certification and/or is decertified, ODYS may immediately cancel the contract.

viii. Termination for Convenience. ODYS may terminate this Contract for its convenience after issuing written notice to the Contractor. If the termination is for the convenience of ODYS, the Contractor will be entitled to compensation for any Deliverable that the Contractor has delivered before the termination. Such compensation will be the Contractor's exclusive remedy in the case of termination for convenience and will be available to the Contractor only after the Contractor has submitted a proper invoice for such, with the invoice reflecting the amount determined by ODYS to be owing to the Contractor.

ix. Termination, Effectiveness, Contractor Responsibilities. The notice of termination whether for cause or without cause will be effective as soon as Contractor receives it. Upon receipt of the notice of termination, Contractor will immediately cease all work on the Project, if applicable, and refuse any additional orders and take all steps necessary to minimize the costs the Contractor will incur related to this Contract. The Contractor will immediately prepare a report and deliver it to

ODYS. The report must detail either the work completed at the time of termination or the orders received and not processed prior to termination, and if applicable, the percentage of the Project's completion, estimated time for delivery of all orders received prior to termination, any costs incurred by the Contractor in doing the Project to date and any deliverables completed or partially completed but not delivered to ODYS at the time of termination. Any and all work, whether completed or not, will be delivered to ODYS along with the specified report. However, if delivery in that manner would not be in ODYS's interest, then the Contractor will propose a suitable alternate form of delivery.

II. Contract Suspension. If Contractor fails to perform any one of its obligations under this Contract, it will be in default and ODYS may suspend rather than terminate this Contract where ODYS believes that doing so would better serve its interest.

In the case of a suspension for ODYS’s convenience, the amount of compensation due to the Contractor for work performed before the suspension will be determined in the same manner as provided in this section for termination for ODYS’s convenience or the Contractor may be entitled to compensation for work performed before the suspension, less any damage to ODYS resulting from the Contractor’s breach of this Contract or other fault.

The notice of suspension, whether with or without cause, will be effective immediately on the Contractor’s receipt of the notice. The Contractor will immediately prepare a report and deliver it to ODYS as is required in the case of termination.

8. MODIFICATION TO SERVICES: ODYS and the Contractor agree that any change in the rate(s) or type(s) of service shall require written agreement by both parties.

9. RECORDS RETENTION: The Contractor shall maintain independent books, records, documents, and papers involving all transactions relative to the performance of this Contract which reflect any and all direct and indirect costs expended in the performance of this contract in a manner consistent with generally accepted accounting principles in the performance of services required by this contract.

Youth case files and material filed or referenced under a youth's name shall be maintained according to the retention schedule established by ODYS.

The Contractor shall, for each subcontract authorized by ODYS, in excess of twenty-five hundred dollars ($2,500.00), require its subcontractor(s) to agree to the same provisions of this article.

All of the above records, books, documents, papers, case files, etc. shall be retained for seven (7) years unless ODYS approves a shorter retention period, in writing. The Contractor may apply for such authorization after the fiscal year in which the final entry was made. In addition, all of the above documents shall be made available at all reasonable times during the period of their required retention by authorized Federal, State and ODYS personnel. The Contractor agrees to be responsible for the costs of any audit in which it is determined that the Contractor violated, in any material respect, any provision of Federal, and State or local law.

10. DISCLOSURE OF INFORMATION: Contractor agrees that neither it, nor its designees or sub-contractors, will use or disclose any information concerning ODYS youth for any purpose unless necessary to the administration of ODYS or Contractor's responsibilities under this Contract. The Contractor agrees to obtain the written consent of ODYS prior to disclosure of youth records unless otherwise ordered by a court of competent jurisdiction.

11. LIMITATION OF LIABILITY: The State's liability for damages, whether in contract or in tort, shall not exceed the total amount of compensation payable to the Contractor under the ODYS “Contract and Agreement”, “Compensation of Services” article, above, or the amount of direct damages incurred by the Contractor, whichever is less. In addition, the Contractor agrees that ODYS and the State of Ohio and any funding source for this contract are held harmless and immune from any and all claims for injury or damages arising from this contract which are attributable to the Contractor’s own actions or omissions or those of its trustee, officers, employees, subcontractors, suppliers, and other third parties while acting under this contract. 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. Contractor agrees to bear all costs associated with defending against any such claims or legal actions when requested by ODYS or State to do so. In no event will ODYS be liable for any indirect or consequential damages, including loss of profits, even if ODYS knew or should have known of the possibility of such damages. To the extent that ODYS is a party to any litigation arising out of or relating in any way to this Contract or the performance thereunder, such an action shall be brought only in a court of competent jurisdiction in Franklin County, Ohio.

12. INSURANCE: Contractor agrees to maintain, at its own cost, automobile, fleet, and commercial general liability insurance.

13. CONFLICTS OF INTEREST/ETHICS: Contractor represents, warrants and certifies that it and its employees engaged in the administration or performance of this Contract are knowledgeable of and understand the Ohio Ethics and Conflict of Interest laws including but not limited to Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Contractor further represents, warrants, and certifies that neither Contractor nor any of its employees will do any act that is inconsistent with such laws.

14. ENTIRE AGREEMENT: The Contract, when signed by both parties, along with any attachments and the Request for Proposal and Response (if an RFP process was used), constitutes the entire agreement between the parties herein. No rights herein will be waived, unless specifically agreed upon in writing by the parties hereto. This Contract supersedes any and all previous agreements, whether written, or oral, between the parties. A waiver by any party of any breach or default by the other party under this Contract shall not constitute a continuing waiver by such party of any subsequent act in breach of or in default hereunder.

15. NOTICES: Except as specifically provided otherwise, all notices, consents and communications hereunder shall be given in writing, and be either hand carried or sent by certified mail, return receipt requested, to the respective addresses on the signature page of this document

16. SEVERABILITY: The provisions of this Contract are severable and independent. If any provision of this contract be deemed unenforceable by a court of competent jurisdiction in whole or in part, the remaining provisions of this contract and any partially enforceable provisions, to the extent enforceable, shall, nevertheless, be binding and enforceable.

17. SUCCESSORS AND ASSIGNS: Except as provided in this paragraph, neither this Contract nor any rights hereunder may be assigned or transferred in whole or in part by either party, without the prior written consent of the other party. The work contemplated in this contract is to be performed by the Contractor, who may subcontract without ODYS approval for the purchase of articles, supplies, components or special mechanical services that do not involve the type of work or services described in Exhibit A but which are required for its satisfactory completion. The Contractor should notify ODYS, in advance, of any of these subcontracts or joint ventures. All work subcontracted shall be at the expense of the Contractor.

18. DRUG FREE WORKPLACE: The Contractor agrees to require that all its employees, while working on state property, will not purchase, transfer, use or possess illegal drugs or alcohol or abuse prescription drugs in any way.

19. CHILD SUPPORT: The Contractor agrees to cooperate with the Ohio Department of Job and Family Services and any Ohio Child Support Enforcement Agency (CSEA) in ensuring that any person performing services hereunder meets child support obligations established under state law. Further, by executing this agreement the Contractor certifies present and future compliance with any court order for the withholding of support, which is issued pursuant to Chapters 3119, 3121, 3123 and 3125 of the Ohio Revised Code.

20. OWNERSHIP: ODYS shall have unrestricted authority to reproduce, distribute and use (in whole or in part) any reports, data or materials prepared by the Contractor, subcontractor or any person acting on behalf of the contractor pursuant to this agreement. No such documents or other materials produced (in whole or in part) with funds provided to the Contractor by ODYS shall be subject to copyright by the Contractor in the United States or any other country. The Contractor agrees that all deliverables hereunder shall be made freely available to the general public to the extent required by law.

21. FIREARMS RESTRICTION: The Contractor agrees that the Contractor, any Subcontractor, and /or any person acting on behalf of the Contractor or Subcontractor, will not possess or maintain the presence of any firearm in or on any premise used in the delivery of residential services of youth. The Contractor agrees to apply, in writing, within ten (10) days of the Contractor’s execution of this contract for a written waiver of this provision from ODYS Director in the event that this provision would create an economic hardship (e.g. an employer, such as a police department, requires a foster parent who is also a police officer to carry a firearm as a requirement of his/her employment) or would otherwise be unreasonable.

22. OTHER APPLICABLE LAW: The Contractor is required to comply with O.R.C., Chapter 4115 "Wages and Hours on Public Works" as required by law. The Contractor shall meet State of Ohio requirements for certification, licensure and registration where applicable. Contractor shall be required to provide proof of such certification, licensure and registration and to provide any renewal certification, licensure and registration.

The Contractor shall comply with the provisions as specified in the O.R.C., Section 109.572 regarding criminal records check and fingerprinting and maintain adequate records thereof.

In the performance of this contract, the Contractor agrees to comply with all Federal, State, and Local laws and the Ohio Administrative Code.

ODYS is subject to O.R.C. 149.43 “Availability of Public Records”, and therefore any documents, which are a part herein, shall be disclosed as required by law.

23. NOTICE TO RETIREES: A retiree cannot continue to receive benefits and work as an independent contractor under a contract for any period of time for the employer from which they retired. This prohibition is applicable regardless of the number of hours or days actually worked.

24. UNRESOLVED FINDINGS FOR RECOVERY: Contractor affirmatively represents and warrants to ODYS that it is not subject to a finding or recovery under ORC 9.24, or that it has taken the appropriate remedial steps required under ORC 9.24 or otherwise qualifies under that section. Contractor agrees that if this representation and warrant is deemed to be false, the Contract shall be void ab initio as between the parties to this Contract, and any funds paid by ODYS hereunder shall be immediately repaid to ODYS, or an action for recovery may be immediately commenced by ODYS for recovery of said funds.

25. SWEATSHOP FREE: By the signature affixed to this ITB/RFP, Bidder/Offerer certifies that all facilities used for the production of the supplies or performance of services offered in the bid/RFP are in compliance with applicable domestic labor, employment, health and safety, environmental and building laws. This certification applies to any and all suppliers and/or subcontractors used by the Bidder/Offerer in furnishing the supplies or services described in the bid/RFP and awarded to the Bidder/Offerer. If DAS receives a complaint alleging non-compliance with sweatshop free requirements, DAS may enlist the services of an independent monitor to investigate allegations of such non-compliance on the part of the Contractor, any sub-contractors or suppliers used by the Contractor in performance of the Contract. If allegations are proven to be accurate, the Contractor will be advised by DAS of the next course of action to resolve the complaint and the Contractor will be responsible for any costs associated with the investigation. Items that will be considered in an investigation include, but are not limited to standards for wages, occupational safety and work hours.

26. EXECUTIVE ORDER REQUIREMENTS:

PROHIBITION OF THE EXPENDITURE OF PUBLIC FUNDS FOR OFFSHORESERVICES. No State Cabinet Agency, Board or Commission will enter into any contract to purchase services provided outside of the United States or that allows State data to be sent, taken, accessed, tested, maintained, backed-up, stored, or made available remotely outside (located) of the United States, unless a duly signed waiver from the State has been attained. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid for services the Contractor performs outside of the United States for which it did not receive a waiver. The State does not waive any other rights and remedies provided to the State in the Contract.

Further, no State agency, board, commission, State educational institution, or pension fund will make any purchase from or investment in any Russian institution or company. Notwithstanding any other terms of this Contract, the State reserves the right to recover any funds paid to Contractor for purchases or investments in a Russian institution or company in violation of this paragraph. The provisions of this paragraph will expire when the applicable Executive Order is no longer effective.

The Contractor must complete the Contractor/Subcontractor Affirmation and Disclosure Form affirming the Contractor understands and will meet the requirements of the above prohibition. During the performance of this Contract, if the Contractor changes the location(s) disclosed on the Affirmation and Disclosure Form, Contractor must complete and submit a revised Affirmation and Disclosure Form reflecting such changes.

27. PRISON RAPE ELIMINATION ACT (PREA): If this Contract is for residential services, the contractor shall comply with all Federal PREA standards per the National PREA Resource Center.

28. BACKGROUND CHECKS: A Background check (LEADS) shall be completed on any individual contractor and may be run on anyone coming into the facility to provide services, prior to the contracted services being performed. Information obtained from the background check shall be used to determine whether a contract may be awarded

In Witness whereof the parties have signed this contract and agreement on the dates