Ohio Buys Personal Services Agreement example.pdf

Page 1 of 31 ODNR Legal Form Rev. Jul. 21, 2021

ATTACHMENT ONE

Attachment one is an example of a DNR contract. The Ohio Department of Natural Resources reserves the right to change the contract Terms and Conditions, prior to a contract award.

Apparent awardee will be required to sign a contract with the Ohio Department of Natural Resources.

EXAMPLE ONLY

ATTACHMENT ONE

Attachment one is an example of a DNR contract. The Ohio Department of Natural Resources reserves the right to change the contract Terms and Conditions, prior to a contract award.

Apparent awardee will be required to sign a contract with the Ohio Department of Natural Resources.

EXAMPLE ONLY

PERSONAL SERVICES AGREEMENT

This Agreement is between the OHIO DEPARTMENT OF NATURAL RESOURCES (“ODNR”), with offices located at 2045 Morse Road, Building _, Columbus, Ohio 43229, and NAME OF CONTRACTOR (“Contractor”) with offices located at Street Address, City, State ZIP, a Type of Business Entity organized and in good standing under the laws of the State of _________.

The parties agree as follows:

I. NATURE OF AGREEMENT

A. Contractor shall be engaged as an independent contractor to fulfill the terms of this Agreement and to act as a contractor to ODNR. It is specifically understood that the nature of the services to be rendered under this Agreement are of such a personal nature that ODNR is the sole judge of the adequacy of such services.

B. ODNR 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.

C. Contractor shall perform the services to be rendered under this Agreement and ODNR shall not hire, supervise, or pay any assistants to Contractor in its performance of services under this Agreement. ODNR shall not be required to provide any training to Contractor to enable it to perform services required hereunder.

II. SCOPE OF WORK

A. Contractor shall perform the services (the “Work”) set forth in the attached Exhibit I, Scope of Work, which is incorporated as part of this Agreement.

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B. In order to facilitate the Work, ODNR shall provide the resources set forth in Exhibit I, Scope of Work.

III. TIME OF PERFORMANCE

A. The Work shall be commenced on or after the date of an approved purchase order.

B. The Work shall be concluded on or before Termination Date, and this Agreement shall terminate on the earlier to occur of: (i) the date on which the Work is completed to the satisfaction of ODNR or (ii) the date on which this Agreement is terminated as provided in Article VI, Termination of Contractor’s Services.

C. OPTION 1 – Two-year term (repeat in Exhibit I) Notwithstanding the foregoing, as the current General

Assembly cannot commit a future General Assembly to expenditures, this Agreement shall in any event expire no later than June 30, 2021. ODNR may renew this Agreement once on the same terms and conditions by giving written notice prior to expiration. Such renewal shall begin July 1, 2021, and shall terminate June 30, 2023, unless sooner terminated as set forth herein.

OPTION 2 – One-year term with option to renew for second year (repeat in Exhibit I) Notwithstanding the foregoing, this Agreement shall expire no later than End Date of Biennium. ODNR may renew this Agreement for an additional one-year term on the same terms and conditions by giving written notice prior to expiration. As the current General Assembly cannot commit a future General Assembly to expenditures, this Agreement and any renewal shall in any event expire no later than June 30, 2021.

D. 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 (“R.C.”) §§ 3517.13, 127.16, or R.C. Chapter 102.

IV. COMPENSATION

A. ODNR shall pay Contractor no more than $###,###,###.## for the Work.

B. The total amount due and its manner and schedule of payment shall be computed according to the cost schedule established in Exhibit I, Scope of Work.

C. OPTION 1 – No Travel (Delete Exhibit II and re-number subsequent Exhibits) Contractor shall not be reimbursed for travel, lodging, or any other expenses incurred in the performance of the Work.

OPTION 2 – Travel Reimbursement (Include Exhibit II) Contractor shall be reimbursed for the Contractor’s reasonable, actual, and necessary travel, lodging, and other travel-related expenses incurred in the performance of the Work to the extent that such reimbursement is in the best interest of the state.

1. Only travel expenses that are pre-approved by ODNR, will be reimbursed.

2. Travel expenses shall be reimbursed under the same rules and conditions that apply to state employees under Ohio Administrative Code (“O.A.C.”) 126-1-02, pursuant to the Ohio Office of Budget and Management (“OBM”) Travel Policy, attached as Exhibit II.

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3. If it is not possible to follow the OBM Travel Policy, with prior written approval of ODNR, Contractor shall be reimbursed pursuant to the federal rates for reimbursement in the continental United States.

4. Meals shall not be reimbursed unless overnight travel is both critical and essential.

D. Contractor must receive a purchase order from ODNR prior to filling an order or performing any of the

Work.

E. After Contractor receives a purchase order, Contractor shall submit an Insert Invoice Frequency (quarterly, monthly, etc.) invoice for the Work performed consistent with this Article IV, Compensation. Each invoice shall contain an itemization of the Work performed, including dates the Work was performed and total hours worked, if required by Paragraph B., above, the location or address where the Work was performed, and the sum due at that time pursuant to this Agreement. All invoices shall contain Contractor's name and address and purchase order number. Invoices are to be sent to Ohio Shared Services via email to invoices@ohio.gov, by fax to 614-485-1039, or by mail to P. O. Box 182880, Columbus, Ohio 43218-2880.

After receipt and approval by ODNR of a proper invoice, as defined in O.A.C. 126-3-01(A)(5), payment will be made pursuant to O.A.C. 126-3-01. Incomplete invoices may be returned unprocessed, delaying payment.

F. In the event that any customer of Contractor negotiates a lower fee structure for the Work or comparable services Contractor shall promptly notify ODNR and shall extend the lower negotiated rate to ODNR retroactively to the first date the lower rate was offered to another customer.

V. CERTIFICATION OF FUNDS / NON-APPROPRIATION

A. 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, R.C. § 126.07, have been met, 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 ODNR gives Contractor written notice that such funds have been made available to ODNR by ODNR’s funding source.

VI. TERMINATION OF CONTRACTOR’S SERVICES

A. ODNR may, at any time prior to completion of the Work, suspend or terminate this Agreement with or without cause by giving written notice to Contractor.

B. In the event that the Work includes divisible services, ODNR may, at any time prior to completion of the Work, by giving written notice to Contractor, suspend or terminate any one or more such portions of the Work.

C. 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 ODNR, furnish a report, as of the date Contractor receives notice of mailto:invoices@ohio.gov mailto:invoices@ohio.gov

Page 4 of 31 ODNR Legal Form suspension or termination, describing the status of all Work, including, without limitation, results, conclusions resulting therefrom, and any other matters ODNR requires.

D. Contractor shall be paid for services rendered up to the date Contractor receives notice of suspension or termination, less any payments previously made, provided Contractor has supported such payments with detailed factual data containing Work performed and hours worked. In the event of suspension or termination, any payments made by ODNR for which Contractor has not rendered services shall be refunded.

E. In the event this Agreement is terminated prior to completion of the Work, Contractor shall deliver to

ODNR all work products and documents which have been prepared by Contractor in the course of performing the Work. All such materials shall become and remain the property of ODNR, to be used in such manner and for such purpose as ODNR may choose.

F. Contractor agrees to waive any right to, and shall make no claim for, additional compensation against

ODNR by reason of any suspension or termination.

G. Contractor may terminate this Agreement upon ninety (90) days’ prior written notice to ODNR.

VII. RELATIONSHIP OF PARTIES

A. Contractor shall be responsible for all of its own business expenses, including, but not limited to, computers, email and internet access, software, phone service, and office space. Contractor will also be responsible for all licenses, permits, 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, unless payment for any such item is specifically provided for herein or in the purchase order.

B. While Contractor shall be required to render services described hereunder for ODNR during the term of this Agreement, nothing herein shall be construed to imply, by reason of Contractor’s engagement hereunder as an independent contractor, that ODNR 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.

C. 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.

D. 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 ODNR or the State of Ohio.

E. For any employees or subcontractors working onsite at any ODNR location, Contractor understands that these employees or subcontractors are subject to a background check conducted by ODNR. Such a background check may include criminal records, tax records, driving records, and verification of academic credentials or degrees. ODNR may also conduct drug testing, field investigation, and polygraph examinations of certain employees of the Contractor or its subcontractors, if ODNR believes such action is necessary. ODNR reserves the right to refuse access to the job site at any time if ODNR determines in its discretion that Contractor’s employee or subcontractor presents a potential security threat or if there is a change in the results of the background check at any time during the completion of the Work.

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VIII. RECORD KEEPING

A. During performance of this Agreement and for a period of three (3) years after its completion, Contractor shall maintain auditable records of all charges pertaining to this Agreement and shall make such records available to ODNR as ODNR may reasonably require.

B. Contractor shall, for the purpose of compliance with R.C. § 145.036, provide ODNR with a list of all individuals who will provide personal services under this Agreement, but only if Contractor has no more than four employees.

IX. RELATED AGREEMENTS

A. All Work is to be performed by Contractor, who may subcontract without ODNR’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 Exhibit I, Scope of Work, but which are required for satisfactory completion of the Work.

1. Contractor shall not enter into subcontracts related to the Work without prior written approval by ODNR. All subcontracted work shall be at Contractor’s expense.

2. Contractor shall furnish to ODNR a list of all subcontractors, their addresses, tax identification numbers, and the dollar amount of each subcontract.

B. 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 ODNR to terms inconsistent with, or at variance from, this Agreement.

C. Contractor warrants that it has not entered into, nor shall it enter into, other agreements, without prior written approval of ODNR, to perform substantially identical work for the State of Ohio such that the Work duplicates the work called for by the other agreements.

X. RIGHTS IN DATA AND COPYRIGHTS/PUBLIC USE

A. ODNR 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 ODNR shall be subject to copyright by Contractor in the United States or any other country. If Contractor has reason to believe that use of a specified item is subject to patent or copyright protection, Contractor shall immediately notify

ODNR.

B. Contractor agrees that all original works created under this Agreement shall be made freely available to the general public to the extent permitted or required by law until and unless specified otherwise by ODNR. Any requests for distribution received by Contractor shall be promptly referred to ODNR.

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XI. CONFIDENTIALITY

A. Contractor shall not discuss or disclose any Confidential Information, defined in Exhibit IV, obtained pursuant to its obligations under this Agreement without the prior written consent of ODNR.

B. Contractor acknowledges that this Agreement is subject to the requirements, conditions, and restrictions set forth in IRS Publication 1075 (the “Publication”). The IRS may from time to time revise, amend, or replace the Publication, which is available online at: (http://www.irs.gov/pub/irs-pdf/p1075.pdf). The terms set forth in the attached Exhibit III are fully incorporated as part of this Agreement.

C. The Contractor agrees not to use advertising, news releases, sales promotions, or other publicity matters relating to any product or service furnished by the Contractor wherein ODNR’s name is mentioned, or language used from which a connection with ODNR may be reasonably inferred, without the prior written consent of ODNR.

D. Any obligations under this Agreement regarding confidentiality are subject to applicable law, including the Ohio Public Records Act set forth in R.C. Chapter 149. The disclosure of records by ODNR pursuant to the Ohio Public Records Act shall not be a breach of this Agreement, and shall not constitute a waiver of Contractor’s obligations under this Article XI as to any records disclosed pursuant to a request for public records.

XII. LIABILITY

A. Contractor agrees to indemnify and hold ODNR 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, employees, subcontractors, suppliers, third party agents, 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.

B. Contractor shall bear all costs associated with defending ODNR and the State of Ohio against any claims.

C. In no event shall either party be liable to the other party special damages, which include lost profits.

D. In conjunction herewith, Contractor agrees, at its own cost, to procure and continue in force at all times that this Agreement is in effect, in its name, the following insurance coverages:

1. Workers’ Compensation Insurance, as required by Ohio law, and, if some of the Work will be done outside Ohio, the laws of the appropriate state(s) where the Work will be performed. The Contractor shall also maintain employer’s liability insurance with at least a $1,000,000 limit.

2. Commercial general liability insurance for bodily injury, personal injury, wrongful death and property damage. The defense cost shall be outside of the policy limits. Such policy shall designate the State of Ohio as an additional insured, as its interest may appear. The policy shall also be endorsed to include a blanket waiver of subrogation. At a minimum the limits shall be:

$1,200,000 General Aggregate $2,000,000 Products/Completed Operations Aggregate

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$1,000,000 Per Occurrence Limit $100,000 Fire Legal Liability $10,000.00 Medical Payments

3. Commercial Automobile Liability Insurance with a combined single limit of $500,000.

4. Where applicable, professional liability insurance covering all staff with a minimum limit of

$1,000,000 per occurrence and $3,000,000 aggregate. If the Contractor’s policy is written on a “claims made” basis, the Contractor shall provide ODNR with proof of continuous coverage at the time the policy is renewed. If for any reason the policy expires, or coverage is terminated, the Contractor must purchase and maintain “tail” coverage through the applicable statute of limitations.

5. Where applicable, builder’s risk insurance covering the Work with a minimum limit equal to the compensation for the Work as set forth in Article IV.

Such insurance shall be written by a company or companies with an A.M. Best rating of at least “A” or be otherwise approved in writing by ODNR. The policy shall be endorsed to provide ODNR with a 30-day prior written notice of cancellation or material change to the policy. It is agreed that the Contractor’s Commercial General Liability Policy shall be primary over any other insurance coverage. Certificates for Workers’ Compensation and proof of insurance must be provided to ODNR. The certificate(s) must be in a form that is reasonably satisfactory to ODNR as to the contents of the policies and the quality of the insurance carriers.

E. To the fullest extent permitted by applicable law, Contractor waives all rights against ONDR and its agents and employees for damages to the extent covered by any insurance, except rights to the proceeds of that insurance. All policies shall accomplish the waiver of subrogation by endorsement or otherwise.

F. Contractor hereby grants to ODNR a waiver of any right to subrogation which any insurer of said

Contractor may acquire against ODNR by virtue of the payment of any loss under such insurance.

Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not ODNR has received a waiver of subrogation endorsement from the insurer.

XIII. ANTITRUST ASSIGNMENT

A. Contractor assigns to ODNR all state and federal antitrust claims and causes of action that relate to all goods and services provided for in this Agreement.

XIV. CONTRACTOR’S STATUTORY OBLIGATIONS

A. PREVAILING WAGES. Contractor shall comply with the prevailing wage requirements described under R.C. Chapter 4115 that include, without limitation, the requirements described under this section. If the Work is subject to payment of prevailing wage rates, the Contractor shall:

1. Pay to laborers and mechanics performing the Work the prevailing wage rates of the Project locality, as determined by the Ohio Department of Commerce, Wage and Hour Bureau;

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2. Post in a prominent place readily accessible by all workers on the site, a legible listing of the current classifications of laborers, workers, and mechanics employed under this Agreement;

3. Ensure that the rates posted are current and remain posted in legible condition during the period of this Agreement; and not be entitled to an increase in compensation on account of an increase in prevailing wage rates, except as otherwise provided by applicable law.

The Contractor may access the Ohio Department of Commerce, Wage & Hour Bureau at its website, https://wagehour.com.ohio.gov/w3/webwh.nsf/wrlogin/?openform, to obtain the current wage rates.

B. COMPLIANCE WITH LAWS. Contractor, in the execution of its duties and obligations under this Agreement, agrees to comply with all applicable federal, state, and local laws, rules, regulations, and ordinances.

C. DRUG-FREE WORKPLACE. 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 while engaged in the Work provided for in this Agreement.

D. NONDISCRIMINATION OF EMPLOYMENT. Pursuant to R.C. § 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, sexual orientation, age, disability, military status as defined in R.C. § 4112.01, national origin, or ancestry against any citizen of this state in the employment of any person qualified and available to perform the Work. 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 the Work on account of race, color, religion, sex, sexual orientation, age, disability, military status, national origin, or ancestry.

E. USE OF MBE AND EDGE VENDORS. Revised Code § 125.081 requires state agencies to set aside purchases for Minority Business Enterprises (“MBE”) and Executive Order 2008-13S encourages use of Encouraging Diversity, Growth and Equity (“EDGE”) businesses. ODNR encourages Contractor to purchase goods and services from Ohio-certified MBE and EDGE vendors.

F. CONFLICTS OF INTEREST. No personnel of Contractor who exercise any functions or responsibilities in connection with the review or approval of this Agreement or carrying out of any of the Work shall, prior to the completion of the Work, voluntarily acquire any personal interest, direct or indirect, that is incompatible or in conflict with the discharge and fulfillment of his or her functions and responsibilities with respect to the carrying out of the Work. 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 ODNR in writing. Thereafter, he or she shall not participate in any action affecting the Work, unless ODNR shall determine in its sole discretion that, in light of the personal interest disclosed, his or her participation in any such action would not be contrary to the public interest.

G. OHIO PUBLIC EMPLOYEES RETIREMENT SYSTEM RETIRANT. If Contractor is a PERS Retirant, as defined by R.C. § 145.38, Contractor shall notify ODNR of such status in writing prior to the commencement of Work.

Notices pursuant to this Paragraph M shall be sent to ODNR’s Director of Human Resources by mail at https://wagehour.com.ohio.gov/w3/webwh.nsf/wrlogin/?openform https://wagehour.com.ohio.gov/w3/webwh.nsf/wrlogin/?openform

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2045 Morse Rd., Building D-1, Columbus, Ohio 43229, by fax at ________________, or by email at ___________________________. ODNR shall not be responsible for any changes to Contractor’s retirement benefits that may result from entering into this Agreement. Contractor acknowledges and agrees any of its individual employees providing personal services under this Agreement are not public employees for the purposes of R.C. Chapter 145. ODNR will not make contributions to the public employees’ retirement system on behalf of any individuals employed by Contractor, or its subcontractors or other agents. Contractor certifies that it is an employer with five or more employees as defined as a “business entity” in R.C. § 145.037(A) for the purposes of the application of R.C. Chapter 145, or that it has completed the necessary forms and returned them to ODNR if Contractor is an employer with no more than four (4) employees.

XV. CONTRACTOR’S REPRESENTATIONS AND WARRANTIES

A. AFFIRMATIVE ACTION PROGRAM. Contractor represents that it has a written affirmative action program for the employment and effective utilization of economically disadvantaged persons pursuant to R.C. § 125.111(B) and has filed an Affirmative Action Program Verification form with the Equal Employment Opportunity and Affirmative Action Unit of the Department of Administrative Services.

B. ETHICS COMPLIANCE. Contractor represents, warrants, and certifies that it and its employees engaged in the administration or performance of this Agreement are knowledgeable of and understand the Ohio ethics and conflict of interest laws. Neither Contractor nor any of its employees will do any act that is inconsistent with such laws.

C. QUALIFICATIONS TO DO BUSINESS. Contractor affirms that it has all of the approvals, licenses, or other qualifications needed to conduct business in Ohio and that all are current. If Contractor becomes disqualified from conducting business in the state of Ohio for any reason at any time during the term of this Agreement, Contractor will immediately notify ODNR in writing and will immediately cease performance of the Work.

D. CAMPAIGN CONTRIBUTIONS. Contractor hereby certifies that neither it, nor any person described in R.C.

§ 3517.13 (I) or (J), nor the spouse of any such person, has made, as an individual, within the two previous calendar years, one or more contributions to the governor or the governor’s campaign committees totaling in excess of the limitations specified in R.C. § 3517.13.

E. FINDINGS FOR RECOVERY. Contractor warrants that it is not subject to an “unresolved” finding for recovery under R.C. § 9.24.

F. STATE OF OHIO DEBARMENT. 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 R.C. §§ 153.02 or 125.25.

G. FEDERAL GOVERNMENT DEBARMENT AND SUSPENSION. Should a federal government or entity provide a source or the entire source of funding and payment for this Agreement, this section applies. Contractor represents and warrants that it is not debarred from consideration for contract awards under 2 CFR 180.

If, for any reason, the Contractor and/or any of its principals becomes disqualified from conducting business in the United States during the term of this Agreement, or if Contractor and/or any of its principals becomes subject to any reportable event outlined in Section 872 of Public Law 110-417 (41 U.S.C. 2313), Contractor shall both immediately notify ODNR in writing and cease performance of work.

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Failure to provide such notice in a timely fashion as required by the federal funding authority shall void this Agreement and may be sufficient cause for the State or the federal funding agency to debar the Contractor from future state contracting opportunities as may be permitted by state or federal law, guidance for which is provided at 2 CFR Sections 180 and 200.212.

H. EXPENDITURES OF PUBLIC FUNDS ON OFFSHORE SERVICES. The Contractor affirms to have read and understands Executive Order 2019-12D and shall abide by those requirements in the performance of this Agreement. Contractor shall complete Exhibit V. Notwithstanding any other terms of this Agreement, ONDR 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. ODNR does not waive any other rights and remedies provided ODNR in this Agreement.

I. REPAYMENT. If the representations and warranties in Paragraphs C, D, E, F, or G of this Article XV are found to be false, this Agreement is void ab initio and Contractor shall immediately repay to ODNR any funds paid under this Agreement.

J. BOYCOTTING. Pursuant to R.C. § 9.76, Contractor hereby declares that it is not boycotting any jurisdiction with whom the State of Ohio can participate in open trade, including the nation of Israel, and will not do so during the term of this Agreement.

XVI. MISCELLANEOUS

A. CONTROLLING LAW. 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. Contractor consents to jurisdiction in a court of proper jurisdiction in Franklin County, Ohio.

B. WAIVER. 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.

C. SURVIVAL. The provisions of Articles IV, VI, VIII, X, XI, XII, XIII and XV(I), (M), (N), (O) hereof shall survive the termination or expiration of this Agreement.

D. SUCCESSORS AND ASSIGNS. 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 ODNR.

E. NOTICES. Except to the extent expressly provided otherwise herein, all notices, consents, and communications required hereunder (each, a “Notice”) shall be in writing and shall be deemed to have been properly given when: 1) hand delivered with delivery acknowledged in writing; 2) sent by U.S.

Certified mail, return receipt requested, postage prepaid; 3) sent by overnight delivery service (Fed Ex, UPS, etc.) with receipt; or 4) sent by fax or email. Notices shall be deemed given upon receipt thereof, and shall be sent to the addresses first set forth above. Notwithstanding the foregoing, notices sent by fax or email shall be effectively given only upon acknowledgement of receipt by the receiving party. Any party may change its address for receipt of Notices upon notice to the other party. If delivery cannot be made at any address designated for Notices, a Notice shall be deemed given on the date on which delivery at such address is attempted.

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F. CONFLICT. In the event of any conflict between the terms and provisions of the body of this Agreement and any exhibit hereto, the terms and provisions of the body of this Agreement shall control.

G. HEADINGS. 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.

H. SEVERABILITY. 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.

I. ENTIRE AGREEMENT. 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. This Agreement supersedes any and all previous agreements, whether written or oral, between the parties.

J. EXECUTION. This Agreement is not binding upon ODNR unless executed in full, and is effective as of the last date of signature by ODNR.

K. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument.

L. ELECTRONIC SIGNATURES. Any party hereto may deliver a copy of its counterpart signature page to this

Agreement electronically pursuant to R.C. Chapter 1306. Each party hereto shall be entitled to rely upon an electronic signature of any other party delivered in such a manner as if such signature were an original.

[SIGNATURE PAGE FOLLOWS]

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Each party is signing this Agreement on the date stated below that party’s signature.

CONTRACTOR OHIO DEPARTMENT OF NATURAL RESOURCES

NAME OF CONTRACTOR DIVISION/OFFICE OF DIVISION/OFFICE NAME

SECOND LINE, IF NECESSARY

By: By:

Printed Name: Printed Name:

Title: Title:

Date: Date:

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EXHIBIT I

Scope of Work

I. WORK DESCRIPTION

A. OBJECTIVE AND SCOPE

B. WORK MANAGEMENT

C. DELIVERABLES

D. WORK RISK IDENTIFICATION AND MITIGATION

II. COMPENSATION

A. NOT TO EXCEED

B. PAYMENT SCHEDULE

C. TRAVEL (See Exhibit II)

III. WARRANTY

Contractor warrants to ODNR that all materials and equipment furnished under this Agreement shall be new and of good quality unless otherwise required or permitted by the Agreement, that the Work shall be free from defects not inherent in the quality required or permitted, and that the Work shall conform to the requirements of the Agreement.

IV. CHANGES TO SCOPE OF WORK

ODNR may order changes in the Work without invalidating the Agreement. A change in the Work shall be governed by a change order in the form of a contract amendment. Contractor shall not proceed with any change in the Work without ODNR’s prior written authorization. Upon execution of an amendment, Contractor shall perform all changes in the Work under the applicable provisions of the Agreement and any amendments, and the Contractor shall proceed promptly with the change unless otherwise provided in the amendment. The amendment will govern any changes to the Work, changes to the fees owed to Contractor, and any changes to the time for completion of the project. By signing an amendment, Contractor irrevocably certifies that the elements of the amendment are completely satisfied, and waives all rights, if any, to seek further adjustment of the fees owed or the time for completion of the Work, or both, at a later date with respect to the associated change in the Work including without limitation on account of the “cumulative impact” of the associated change in the Work in combination with one or more other changes in the Work.

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EXHIBIT II

Ohio Office of Budget and Management Travel Policy

126-1-02 Rates and requirements for reimbursement of travel expenses of state agents.

(A) Definitions

(1) "Compensation" means payment for services rendered, whether made on an hourly, per diem, salaried, or fee basis but does not include reimbursement of travel expenses.

(2) "Headquarters" means the office address at which a state agent has his/her primary work assignment.

(3) "Continental U.S. travel" means travel within the continental United

States, including the lower forty-eight states, excluding Hawaii and Alaska.

(4) "International travel" means travel outside of the continental United States, including Hawaii and Alaska.

(5) "Reimbursable travel expenses" means those expenses which are actually incurred as a necessary part of approved travel. In addition to lodging, meals, per diem, and mileage, it includes:

(a) Miscellaneous transportation expenses such as parking charges, road tolls, and other reasonably incurred transportation expenses directly related to authorized travel, provided such expenses are listed separately on a state agent's travel expense reimbursement request;

(b) Commercial transportation expenses paid by the state agent such as taxi cabs, automobile rental, airfare, ferries, subways, bus, trains, and other commercial transportation providers;

(c) Registration fees paid by the state agent for professional events such as conferences, seminars, and meetings;

(d) Miscellaneous business expenses such as telephone, facsimile, internet, and other similar charges paid by the state agent for official state business;

(e) Miscellaneous living expenses such as laundry, dry cleaning, personal telephone calls, and postage.

(6) "State agency" means every organized body, office, or agency established by the laws of the state for the exercise of any function of state government which uses money that has been appropriated to it directly, but does not include the general assembly, supreme court, court of appeals, court of claims, any agency of these, or any state university or college as defined in division (A)(1) of section 3345.12 of the Revised Code.

(7) "State agent" means any officer, member, or employee of a state agency whose compensation is paid, in whole or in part, from state funds but does not include any volunteer serving without compensation.

(8) "Travel at state expense" means travel expenses which are paid from moneys appropriated directly to a state agency by the general assembly, but does not include travel by a state agent where expenses are paid pursuant to rule 102-3-08 of the Administrative Code.

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(9) "Receipt" means the original document, or electronic copy of the document, provided by a service provider or merchant that indicates the merchant's name, date of purchase, transaction amount, and line item detail identifying the service or goods provided.

(10) "Supporting documentation" means documents that validate expense claims to include, but not limited to the following:

(a) Conference material provided by the conference organizer.

(b) Formal meeting agenda provided by the meeting organizer.

(c) Currency exchange rate as evidenced by a foreign currency exchange receipt, bank or credit card statement, or the exchange rate issued by an authoritative source such as "OANDA" (http://www.oanda.com/ currency/historical-rates/) for the travel period. Expenses shall be recorded on the travel expense report in U.S.

dollars. Reimbursements authorized by this rule will be made in U.S. dollars. The original itemized receipt and the currency exchange rate documentation described in this rule is required.

(d) State agency authorizations.

(11) "Conference" means a prearranged gathering with a formal agenda, for consultation or exchange of information or discussion that benefits the state, such as seminars, trainings, meetings, and other professional events.

(12) "Paid travel status" means the designation given to a state agent who is traveling on behalf of the state and is in an active pay status.

(B) Authority for travel and reimbursement

(1) Authority for travel

All state agents traveling at state expense or on paid travel status must be authorized prior to travel by the head of a state agency or his/her designee. Travel may be authorized only for official state business and only if the state agency has the financial resources to reimburse the state agent for travel expenses. State agents who are traveling at state expense or who are on paid travel status must, at all times, use prudent judgment in the use of state resources, incurring only those expenses necessary to carry out the official business of the state.

(2) Reporting requirements

(a) A state agent who has traveled at state expense and is requesting reimbursement by a state agency of his/her travel expenses shall report his/her travel expenses as prescribed by the office of budget and management. A state agent shall submit the travel expense reimbursement request within sixty days of the last date of travel. This time frame may be extended by the head of the state agency or his/her designee if mitigating circumstances exist, but in no case may this time frame exceed ninety days from the last date of travel, unless the terms of an applicable collectively bargained agreement differs, in which case that agreement's provision controls. A completed request for travel expense reimbursement may be denied by the office of budget and management for reasons including, but not limited to, a state agent's failure to submit the request in a timely, accurate, or truthful manner.

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(b) A state agent shall obtain and provide all receipts and supporting documentation required by this rule.

(c) At no time shall a state agent claim or be reimbursed more than is allowable under this rule.

(3) Approval of travel

When the head of a state agency or his/her designee approves of a state agent's travel, such action constitutes certification that the reimbursement of such state agent's travel expenses is proper. The head of a state agency or his/her designee may require any reasonable form of verification of an expense if he/she determines that additional verification is necessary for this certification or if required receipts are not available.

(4) Reimbursement of expenses

A state agent shall be reimbursed for his/her travel expenses as authorized by this rule upon approval by the head of a state agency or his/her designee. Reimbursement for travel expenses shall be via direct deposit to the same financial institution and account that the state agent has designated for receipt of the balance of his/her compensation in accordance with section 124.151 of the Revised Code.

(5) Submission of receipts

As specified by the office of budget and management, original or a legible electronic copy of receipts shall be submitted to the office of budget and management.

(6) Direct payment

At the agency's discretion, a state agency may make direct payment to a supplier who provides travel services for the state agent, in lieu of reimbursing the state agent for his/her travel expenses. A direct payment shall comply with the applicable rates and requirements specified in this rule.

(C) Transportation

The head of a state agency or his/her designee shall, subject to the discretion of the office of budget and management, determine the appropriate mode or modes of transportation to be utilized by a state agent.

(1) Travel by state motor vehicles

Travel by state-owned or leased motor vehicle is authorized only for state agents and for other parties who are properly designated by a state agency and endorsed onto insurance coverage through the department of administrative services. Reimbursement is authorized for incurred service expenses necessary to the efficient and safe operation of a state-owned or leased motor vehicle.

(2) Travel by privately owned automobile

Travel by privately owned automobile is authorized only if the owner thereof is insured under a policy of liability insurance complying with the requirements of section 4509.51 of the Revised Code. Reimbursement of mileage expenses incurred on state business is authorized at a rate up to the internal revenue service's business standard mileage rate, within the discretion of the director of the office of budget and management. The reimbursement rate for mileage expenses incurred on state business may not fall below forty-five cents per mile, unless the

Page 17 of 31 ODNR Legal Form internal revenue service's business standard mileage rate falls below forty-five cents per mile, in which case the director may lower the reimbursement rate below forty-five cents per mile. The director of the office of budget and management will review the appropriate mileage reimbursement rate on a quarterly basis.

A state agent shall not be reimbursed for mileage commuting from his/her residence to his/her headquarters nor from his/her headquarters to his/her residence. If a state agent is required to report to a location other than his/her headquarters, the state agent will only be reimbursed for the distance from his/ her residence to the alternate location less the state agent's normal commute distance. For example, if a state agent's normal commute from his/her residence to his/her headquarters is ten miles, and a state agent's commute from his/her residence to his/her authorized destination is thirty miles, the state agent shall only be reimbursed for twenty miles.

Travel expense reports shall indicate all intermediate destinations (i.e., specify intermediate towns and cities but not stops within a town or city) between the commencement and termination of travel as well as all vicinity mileage after arrival at destination. Reimbursement shall be made to only one of two or more state agents traveling in the same privately owned automobile .

(3) Travel by commercial transportation

(a) Travel by commercial transportation is authorized at the lowest available rate. When any segment of travel by commercial transportation exceeds eight hours, the head of the state agency may authorize business class travel for the state agent.

(b) State funds shall not be expended to pay for unused reservations with commercial transportation unless the state agency is satisfied that failure to cancel or use the reservation was unavoidable. State agency authorization shall be required as supporting documentation.

(c) Travel within the state of Ohio by common air carrier at the lowest available rate is authorized for elected officials, directors, assistant directors, deputy directors, board and commission members, and heads of state agencies. State employees not listed in this paragraph are authorized to travel within the state of Ohio by common air carrier at the lowest available rate only if flying is more economical than other modes of travel.

(d) Reimbursement is authorized for automobile rental if automobile rental is more economical than any other mode of transportation or if the state agent's destination is not easily accessible by any other mode of transportation. The state agent must purchase liability insurance and loss damage waiver for accidents arising out of the operation or use of the automobile and include that cost in determining whether the automobile rental is the most economical mode of transportation.

(4) Required receipts for transportation expenses

Except as otherwise provided, receipts are required for all service expenses incurred in connection with the operation of state-owned automobiles, all commercial transportation expenses, and all miscellaneous transportation expenses exceeding ten dollars.

(D) Meal, incidental, and miscellaneous expenses within the continental U.S.

(1) Restrictions and reimbursement per diem

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Meals and incidental per diem for state agents is authorized only when overnight lodging is required. State agents may receive per diem for meal and incidental expenses in accordance with the per diem rates established by the U.S. general services administration (www.gsa.gov), which is based on the lodging location. Per diem is designed to offset the additional cost of travel, not to entirely pay for the state agent's meal and incidental expenses. The amount of per diem shall be adjusted on departure and return days based upon the time of departure and return.

The standard meal and incidental expenses allowance is based on a full day of official travel (twenty-four hours) within the continental U.S. Where overnight lodging is required and where a state agent is on travel status for less than a full day, the meal and incidental expenses rate for the departure and return days shall be pro-rated as follows:

(a) Twenty-five per cent of the standard meal and incidental expenses allowance if the state agent is on travel status for less than six hours;

(b) Fifty per cent of the standard meal and incidental expenses allowance if the state agent is on travel status for six hours but less than twelve hours;

(c) Seventy-five per cent of the standard meal and incidental expenses allowance if the state agent is on travel status for twelve hours but less than eighteen hours;

(d) One hundred per cent of the standard meal and incidental expenses allowance if the state agent is on travel status for eighteen hours but less than twenty-four hours.

(e) Notwithstanding the restrictions provided in paragraph (D)(1) of this rule, where a state agency elects to schedule a state agent to travel out of state by air travel and schedules a return flight for the same day, meals and incidental per diem is authorized; however, the meal and incidental expenses shall be pro-rated as provided in paragraphs (D)(1)(a) to (D)(1) (d) of this rule.

(2) Incidental expenses included in the per diem allowance are listed as follows and are thus not separately reimbursable:

(a) All gratuities given to porters, baggage carriers, bellhops, hotel maids, flight attendants, ship attendants, taxi drivers, wait staff and all other services related to the hospitality industry;

(b) Any transportation between places of lodging or business and places where meals are taken, if suitable meals cannot be obtained at the temporary lodging or business site;

(c) Mailing costs associated with filing travel reimbursement requests.

(3) A receipt shall be required for any single miscellaneous business expenses charge over ten dollars. State agents shall first use any free internet or phone services prior to incurring these expenses.

(4) If the state agent is in overnight status in the continental U.S. for more than one week, including a weekend, miscellaneous living expenses will be reimbursed when such expense is reasonable as determined by the head of the state agency or his/her designee. Receipts shall be required for all miscellaneous living expenses.

(E) Meal, incidental, and miscellaneous expenses outside the continental U.S. (international)

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(1) A state agent traveling outside the continental U.S., assigned to a…