Third Party Contract Agreement

CONTRACT The Ohio Manufactured Homes Commission (“Commission”) and the ______________________________________________________________, a third party inspection agency (“Inspection Agency”), hereby enter into this Contract as of this ___ day of __________ 2007. WHEREAS, Section 4781.06 of the Ohio Revised Code and Rule 4781-7-05 of the Ohio Administrative Code authorize the Commission to contract for manufactured home installation inspection services; and WHEREAS, Section 4781.06 of the Ohio Revised Code and Rule 4781-7-05 of the Ohio Administrative Code authorize the Commission to contract for plan review and inspection services; and WHEREAS, the Commission and the Inspection Agency desire to enter into a Contract for the Inspection Agency to furnish manufactured home installation inspection services to the Commission and to provide manufactured homes inspections and plans examination in an effort to assure compliance with the State of Ohio Manufactured Homes Installation Standard and in accordance with Section 4781.04 of the Ohio Revised Code and Chapter 4781-6 of the Ohio Administrative Code; and WHEREAS, the services to be performed by the Inspection Agency are of a technical and professional nature; WHEREAS, the Inspection Agency intends that its services be rendered pursuant to the defenses afforded under the Public Duty Doctrine as set forth in Ohio law; NOW, THEREFORE, in consideration of mutual promises, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Commission and the Inspection Agency agree as follows: 1. SCOPE OF SERVICE Subject to the terms and conditions set forth in this Contract and the attached exhibits (such exhibits are deemed to be a part of this Contract as if fully set forth herein), the Inspection Agency shall conduct manufactured home installation inspection services and plans review and specifications for the Commission and the public, as described herein a. The Inspection Agency shall conduct manufactured homes installation inspections on behalf of the Commission and shall review plans and specifications (both without enforcement). Such inspection authority 1 conveyed to the Inspection Agency by this Contract shall be pursuant to the authority conveyed to the Commission by Chapter 4781 of the Ohio Revised Code (“O.R.C.”). b. Consistent with professional standards of care, the Inspection Agency shall provide manufactured homes installation inspections, and review plans and specifications within the authorized area as determined by the Commission and in accordance with O.R.C. Chapter 4781 and Chapter 4781-6 of the Ohio Administrative Code (“O.A.C.”). The Inspection Agency shall not waive any standard or requirement of the laws or rules. c. The Inspection Agency shall examine plans and specifications for proposed manufactured home installation work as required by the Commission, the Ohio Manufactured Homes Installation Standards, O.A.C. Chapter 4781-6, and any and all other related laws and ordinances. Such examination and plan approval pertains only in general to technical compliance as specifically provided for in sections 2701 and 106.1.1 (9) of the Ohio Building Code. Any part of the plans or specifications that are observed to be in violation of the laws or rules shall not be approved. d. The Inspection Agency shall advise applicants on the requirements, but shall not perform design services, of any nature, for the completion of inadequate applications. e. The Inspection Agency shall issue permits, certificates of approval, and Ohio Manufactured Homes Installation Inspection Seals when the manufactured homes installation complies with applicable regulations, ordinances, and statutes. f. The Inspection Agency shall perform inspections of manufactured home installations including, but not limited to, footing inspections, electrical inspections and final inspections. Such service shall be provided on a nonbiased basis, first come-first served without regard to type or extent of work, but within normal scheduling. g. On request by the Commission, the Inspection Agency shall provide the Commission with a written report of findings, recommended corrective measures, and make itself available for consultation in writing orders to correct manufactured home installation defects, in accordance with the Ohio Manufactured Homes Installation Standards, O.A.C. Chapter 4781-6. h. The Inspection Agency shall provide the appropriate regional gas and electric companies with copies of the certificates of approval of manufactured home installation work, including the electrical work, when new services are required. 2 2. TERM This Contract shall be effective from July 1, 2007 to June 30, 2008, inclusive, unless terminated under Section 4 below or renewed by written agreement of the Parties. 3. FEES AND PAYMENT FOR SERVICES The Inspection Agency shall charge fees for inspections and other services performed under the authority of this Contract, in accordance with the Manufactured Homes Inspection Fee Schedule, as that schedule may be amended from time to time by regulation or ordinance. The Manufactured Home Installation Inspection Fee Schedule is attached hereto as Exhibit A and incorporated herein by reference. All subsequent amendments to the schedule shall likewise be attached hereto. The Inspection Agency shall be compensated solely through fees for the services to be provided by the person requesting the inspection or review of plans and/or specifications. Fees shall be payable directly to the Inspection Agency and shall be charged in accordance with the Manufactured Home Installation Inspection Fee Schedule, as specified herein. The cost to the Commission under this contract is zero, unless the Commission requests the Inspection Agency to conduct an inspection or review of plans or specifications. The Third Party shall purchase an Inspection Seal from the Commission at the cost of Seventy-five dollars ($75.00) per inspection seal to be affixed to each manufactured home which has been inspected by the Third Party and found to be in compliance with the Ohio Manufactured Home Installation Standards and O.A.C. Chapter 4781-6. The Inspection Agency shall provide a monthly report to the Commission accounting for all inspection seals in their possession as well as all inspection seals affixed to homes by the Inspection Agency. 4. TERMINATION A. For Convenience This Contract may be terminated by either party upon notice, in writing, delivered upon the other party, one hundred and eighty (180) days prior to the effective date of termination. B. Mutual Termination The parties may mutually agree, in writing, to terminate this Contract at any time. 3 C. For Cause In the event of a material breach of this Contract by the Inspection Agency, the Commission may terminate this Contract upon sixty (60) days prior written notice to the Third Party specifying the nature of the breach, provided however, that the Third Party shall have an opportunity to cure such breach within sixty (60) days after receiving such notice. In the event the Inspection Agency corrects the cause giving rise to the notice within sixty (60) days of the notice required above, as determined sufficient by the Commission, in its sole reasonable discretion, the cause of termination shall be deemed void and the Contract shall continue in effect. If the breach is not cured, the Inspection Agency shall immediately cease all performance under this Contract upon receipt of the notice of termination from the Commission. The Commission shall not require the Inspection Agency to continue performance under this Contract upon receipt of the notice of termination. For the purposes of this Contract, material breach shall mean an act or omission which violates or contravenes an obligation required under this Contract and which by itself or together with one or more other breaches, has substantial negative effect on, or thwarts, the purpose of this Contract. A material breach shall not include an act or omission which has a trivial or negligible effect on the quality of the services to be delivered under this Contract, in the reasonable opinion of the non-breaching party. In the event of a dispute or alleged breach, the parties hereto shall first attempt in good faith to resolve the matter prior to termination. 5. LEVEL OF SERVICES AND EMPLOYEE CERTIFICATION The services shall be performed in a professional manner by qualified employees of the Inspection Agency. The Third Party covenants and warrants that all of its plans examination personnel and all of its Inspection Agencies performing examination and inspection services are, and shall at all times be, fully qualified and certified under the provisions of Ohio law, and shall hold all required Certificate(s) of Competency from both the Ohio Board of Building Standards and the Commission. 6. EMERGENCY SERVICE Throughout the term of this Contract, the Inspection Agency shall maintain a list of personnel that may be available in the event of an emergency. 4 The Inspection Agency shall cooperate and work with the Commission in the preparation of a disaster mitigation plan. The Inspection Agency shall review such plan no less frequently than annually, in order to establish that all names and contact information are current. 7. RETENTION OF RECORDS All records and documents, including applications, plan review, job progress, and inspection records shall be retained and made available by the Inspection Agency to the Commission. These documents shall be provided by the Inspection Agency in accordance with the policy of the Commission. The Inspection Agency shall retain all records and documents for ten (10) years in form and format as instructed by the Commission. 8. CONFLICT OF INTEREST This Contract does not preclude, prevent, or restrict the Inspection Agency from obtaining and working under an additional contractual arrangement(s) with other parties aside from the Commission, so long as such contractual work in no way impedes the Inspection Agency’s ability to perform the services required under this Contract. The Inspection Agency warrants that at the time of entering into this Contract, it has no interest in, nor shall it acquire any interest, direct or indirect, in any contract which will impede its ability to perform the services under this Contract. The Inspection Agency shall comply with all state ethics rules, regulations and laws. By signing this Contract the Inspection Agency certifies to be in compliance with these provisions. 9. ASSIGNMENT This Contract shall not be assigned by the Inspection Agency without the prior written approval of the Commission. The Inspection Agency may not subcontract any of the services agreed to in this Contract without the express written consent of the Commission. All subcontractors are subject to the same terms, conditions, and covenants contained within this Contract. The Inspection Agency shall notify the Commission within three (3) business days when the Inspection Agency knows, or should have known, that a subcontractor is out of compliance or unable to meet contract or licensing requirements. Should this occur, the Inspection Agency shall immediately implement a process whereby the subcontractor is immediately brought into compliance or the subcontractor’s contract with the Inspection Agency is terminated. The Inspection Agency is responsible for making direct payment to all subcontractors for any and all services provided by such subcontractor. 5 10. COOPERATION WITH THE COMMISSION The Inspection Agency shall promptly, and in good faith, cooperate with the Commission in the need for legal action in cases which are unresolved. Such legal action shall be initiated by the Commission based on the information and cooperation of the Inspection Agency. At the request of the Commission, the Inspection Agency shall make itself reasonably available for pre-trial conferences, and shall testify in any judicial proceeding or interpretation of disputes involving manufactured home installation work arising from the performance of the services described herein. 11. COMPLAINTS The Inspection Agency shall provide prompt and courteous services to the public. All complaints regarding the Inspection Agency’s operations, service or personnel received by the Inspection Agency shall be promptly reported to the Commission in writing. All complaints regarding the Inspection Agency’s operations, services, or personnel received by the Commission, shall be passed to the Inspection Agency for prompt, complete and appropriate resolution with the complainant and to the reasonable satisfaction of the complainant. Results of such activities need not be reported back to the Commission. The Inspection Agency shall promptly notify the Commission in writing of any threatened or pending claims or lawsuits arising from, or incident to, any services performed by the Inspection Agency to the Commission or the public under this or any prior Contract. In addition, upon request of the Commission, the Inspection Agency shall promptly furnish copies of all documents related to such threatened or pending claims and lawsuits. 12. REPORTS No later than the last day of each month, the Inspection Agency shall submit a monthly report of the prior month’s activities to the Commission. Such report shall detail the sale of the Inspection Seal, the Inspection Agency’s receipts, expenses, plan examination and inspection activities and all other activities of the Inspection Agency within the Commission’s jurisdiction, wherever performed, in such form and substance as required by the Commission. In addition, the Inspection Agency shall supply the Commission with any information reasonably requested by the Commission in writing. The Inspection Agency shall supply the Commission with a report of open permit applications at least semi-annually, or upon request of the Commission. 6 13. INSURANCE, INDEMNIFICATION AND HOLD HARMLESS A. Indemnification and Hold Harmless To the fullest extent permitted by law, the Inspection Agency shall indemnify and hold harmless the Commission and its employees, officials, agents and volunteers from liability, losses, claims, suits, actions, administrative proceeding, regulatory proceedings/hearings, expenses, judgments, (of any party involved in the subject of this Contract), reasonable attorney’s fees, court costs, defense costs or other injury or damage, whether actual, alleged or threatened, resulting from injury or damages of any kind whatsoever to any business, entity or person (including death), or damage to property (including destruction, loss of, loss of use of resulting without injury damage or destruction) of any nature whatsoever, arising out of any negligent action or negligent inaction of the Inspection Agency, its subcontractor(s), the Inspection Agency or its subcontractor’s employees and agents, assigns, and those designated by the Inspection Agency to perform the work or services encompassed by this Contract. This indemnity shall continue in full force and effect notwithstanding the termination of this Contract, whether by expiration of time, by operation of law or otherwise. B. Insurance The Inspection Agency shall procure and maintain for the duration of this Contract the following insurance: insurance against claims for injuries to persons or damages to property which may arise from, or in connection with, the Inspection Agency’s services as described in this Contract (commercial general liability); auto liability; and umbrella/excess insurance. Further, the Inspection Agency shall procure and maintain for the duration of this contract ,worker’s compensation and Employer’s Liability (Ohio Stop Gap) Insurance. The cost of all insurance shall be borne by the Inspection Agency. Insurance shall be purchased from a company licensed to provide insurance in Ohio. Insurance is to be placed with an insurer provided an A.M. Best rating of no less than A:VII. The Inspection Agency shall purchase the following coverage and minimum limits: 1. Commercial General Liability Insurance policy with coverage contained in Insurance Services Office Occurrence Form CG 00 01 10 93 or equivalent with limits of at least $1,000,000 per occurrence and $1,000,000 in the aggregate and at least $300,000 coverage in legal fire damage. Coverage will include: a. b. Additional insured endorsement Blanket contractual liability 7 c. d. e. f. 2. Broad form property damage Severability of interests Personal injury Joint venture as named insured (if applicable) Business auto liability of at least $1,000,000 combined single limit, on all owned, leased and hired automobiles. Umbrella and excess liability insurance policy with limits of a least $1,000,000 per occurrence and in the aggregate, above the commercial general and business auto primary policies and containing the following coverage: a. b. c. d. e. f. g. h. Additional insured endorsement Pay on behalf of wording Concurrency of effective dates with primary Blanket contractual liability Punitive damages coverage (where not prohibited by law) Aggregates: apply where applicable in primary Care, custody and control – follow form primary Drop down feature 3. 4. Worker’s Compensation insurance at the statutory limits required by Ohio Revised Code and Employer’s Liability coverage of at least $1,000,000 per accident for bodily injury or disease for individuals employed by the Inspection Agency. Additional Insurance Provisions 1. The Commission and its employees, officials, agents and volunteers shall be endorsed as additional insured’s on the commercial general, business auto, umbrella/excess and employer liability policies. C. 8 2. The Inspection Agency shall declare any self-insured retention to the Commission pertaining to liability insurance. The Inspection Agency shall provide a financial guarantee satisfactory to the Commission guaranteeing payment of losses and related investigations claims administration and defense expenses for any self-insured retention. 3. If the Inspection Agency provides any of the insurance coverage required by this Contract under a “claims-made” basis, the Inspection Agency shall provide evidence of either of the following for each type of insurance which is provided on a claims-made basis: unlimited extended reporting period coverage which allows for an unlimited period of time to report claims from incidents that occurred after the policy’s retroactive dates and before the end of the policy period (tail coverage), or; continuous coverage from the original retroactive date of coverage. The original retroactive date of coverage means original effective date of the first claims-made policy issued for a similar coverage while the Inspection Agency was under contract with the Commission. 4. The Inspection Agency shall require all insurance policies in any way related to the work and secured and maintained by the Inspection Agency to include endorsements stating each underwriter will waive all rights of recovery, under subrogation or otherwise, against the Commission. The Inspection Agency shall require of subcontractors, by appropriate written Contracts, similar waivers each in favor of all parties enumerated in this section. 5. The Inspection Agency and the Commission agree to fully cooperate, participate, and comply with all reasonable requirements and recommendations of the insurers and insurance brokers issuing or arranging for issuance of the policies required herein, in all areas of safety, insurance program administration, claim reporting and investigating, and audit procedures. 6. The Inspection Agency’s Insurance coverage shall be primary insurance with respect to the Commission and its employees, officials, agents and volunteers. Any insurance maintained by the Commission shall be excess of the Inspection Agency’s insurance and shall not contribute to it. 7. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be cancelled or materially changed except after thirty (30) days’ prior written notice given to: Ohio Manufactured Homes Commission, 5650 Blazer Parkway, Suite 100, Dublin, Ohio 43017 9 8. The Inspection Agency shall furnish the Commission with original certificates and amendatory endorsements effecting coverage required by this clause. All certificates and endorsements are to be received by the Commission before the Contract commences. The Commission reserves the right at any time to require complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by these specifications. 9. Maintenance of the proper insurance for the duration of this Contract is a material element of the contract. Material changes in the required coverage or cancellation of the coverage shall constitute a material breach of the Contract. 10. If any or all of the work or services contemplated by this Contract are subcontracted, the Inspection Agency shall ensure the subcontractor(s) comply with all insurance requirements contained herein. 14. GOVERNING LAW This Contract, including any modifications, amendments, or alterations, shall be governed by the laws of the State of Ohio and only Ohio courts shall have jurisdiction over any action or proceeding concerning the Contract and/or performance hereunder. 15. INTEGRATION AND MODIFICATION This Contract 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 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. 16. SEVERABILITY The provisions of this Contract are severable and independent, and if any such provision shall be unenforceable in whole or in part, the remaining provisions and any partially enforceable provision, to the extent enforceable in any jurisdiction, shall, nevertheless, be binding and enforceable. 10 17. SURVIVAL OF TERMS In addition to provisions that expressly provide for survival following expiration or termination of this Contract, those provisions which by their very nature are incapable of being performed or enforced prior to the expiration or termination of this Contract or which suggest at least partial performance or enforcement following such expiration or such termination, shall survive any such expiration of termination of this Contract. 18. DISPUTES The Inspection Agency shall submit any dispute regarding all applicable code requirements, code interpretations and fees, to the Commission for decision and resolution. Disputes of a technical nature shall follow the normal adjudication and appeals process pursuant to O.R.C.Chapter 119. 19. NON-DISCRIMINATION The Inspection Agency certifies that it is an equal opportunity employer and shall remain in compliance with state and federal civil rights and nondiscrimination laws and regulations, including but not limited to Title VI, and Title VII of the Civil Rights Act of 1964 as amended, the Rehabilitation Act of 1973, the Americans with Disabilities Act, the Age Discrimination Act of 1975, the Age Discrimination in Employment Act, as amended, and the Ohio Civil Rights Law. During the performance of this Contract, the Inspection Agency shall not discriminate against any employee, contract worker, or applicant for employment because of race, color, religion, sex, sexual orientation, national origin, ancestry, disability, Vietnam-era veteran status, age, political belief or place of birth. The Inspection Agency shall take affirmative action to ensure that during employment, all employees are treated without regard to race, color, religion, sex, sexual orientation, national origin, ancestry, disability, Vietnam-era veteran status, age, political belief or place of birth. These provisions apply also to contract workers. Such action shall include, but is not limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising, layoff, or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Inspection Agency shall post in conspicuous places, available to employees and applicants for employment, a notice stating that the Inspection Agency complies with all applicable federal and state non-discrimination laws. The Inspection Agency, or any person claiming through the Inspection Agency, shall neither establish, nor knowingly permit, any such practice or practices of discrimination or segregation in reference to anything relating to this Contract, or in reference to any contractors or subcontractors of the Inspection Agency. 11 20. AMENDMENTS Any matters or items not covered under the terms of this Contract, or in the ordinances of the Commission, including work, fees, projects, inspections, review, or other matters, may be separately agreed upon by the parties hereto in writing. 21. RIGHTS IN DATA AND COPYRIGHTS/PUBLIC USE The Commission shall have unrestricted authority to reproduce, distribute and use (in whole or in part) any reports, data or materials prepared by the Inspection Agency pursuant to this Contract. No such documents or other materials produced (in whole or in part) with funds provided to the Inspection Agency by the Commission or any other person in performance with this agreement shall be subject to copyright by the Inspection Agency in the United States or any other country. All deliverables hereunder shall be made freely available to the general public to the extent required by law. 22. COMPLIANCE WITH LAWS The Inspection Agency in the execution of duties and obligations hereunder agrees to comply with all applicable federal, state and local laws, rules, regulations and ordinances. 23. NOTICES Any information or notice required to be given in writing under this Contract shall be effective upon receipt at the addresses listed below. For purpose of notice, the addresses of the parties shall be as follows: If to Commission: David E. Zofko, P.E., Executive Director Ohio Manufactured Homes Commission Suite 100 5650 Blazer Parkway Dublin, OH 43017 If to the Inspection Agency: Name, Title Company name Address Address City, OH 4zip# 12 24. PERFORMANCE EVALUATION AND IMPLEMENTATION OF PROGRAMS Each calendar year the Commission shall conduct a Performance Evaluation of the Inspection Agency’s services to the Commission and to the public for the preceding year. The form and content of the evaluation shall be determined by the Commission for the purposes of fairly evaluating the Inspection Agency’s performance under the Contract and the Inspection Agency’s performance of services to the public. The annual Performance Evaluation shall be conducted beginning April 1st and ending May 1st of each year. Written results of the Performance Evaluation shall be forwarded to the Inspection Agency no later than May 31st of each year. The Commission and the Inspection Agency shall meet no later than June 15th of each year, to discuss said evaluation. In addition to the annual performance evaluation, the Inspection Agency shall meet with the Commission at times reasonably requested by the Commission in writing. The parties agree to work cooperatively to develop and implement programs, including but not limited to customer satisfaction surveys, staff training, and work flow re-engineering. 25. COMPUTER PROCESSING The Inspection Agency shall update its computer system and programs upon any reasonable request by the Commission in order to exchange data information more efficiently between the Commission and the Inspection Agency. 26. CONTRACT ADMINISTRATION The Commission’s representative for this Contract is David Zofko, Executive Director, who shall serve as the primary contact during the term of this Contract and unless otherwise provided by law, shall have the authority to act on the Commission’s behalf as described herein. The Inspection Agency’s representative for this Contract is __________________,_________(title)___________, who shall serve as the primary contact during the term of this Contract and shall have the authority to act on the Inspection Agency’s behalf as described herein. 27. This Agreement may be signed in counterparts and is effective upon the completion of signatures. 13 IN WITNESS WHEREOF, the Commission by virtue of O.R.C. Section 4781, and the Inspection Agency, by its ___(title)___, ____(name)_____, have hereunto subscribed their names on this ______ day of _______, 2007. OHIO MANUFACTURED HOMES COMMISSION: INSPECTION AGENCY NAME: By:________________________________ Dan Rolfes, Commission Chair By:___________________________ (Name), (Title) APPROVED AS TO FORM: RECOMMENDED: By:________________________________ Cheryl Hawkinson, Assistant Attorney General By:___________________________ David E. Zofko, P.E., Executive Director 14