12 - 009 Contract Review Checklist

Contract Review Checklist (Note: You may print out this document and fill it in; paragraph numbers coincide with those used in the Procedure 12-010: Contract Guidance and Boilerplate Clauses)
Task				Check
1.	General Information
	1.1	Contract Description:		c
	1.2	Institution Department:		c
	1.3	Other Party to Contact:		c
	1.4	Date Reviewed		c
2.	Initial Review
	2.1	Review contract in its entirety		c
	2.2	Ensure that all attachments and exhibits referred to in the contract are attached or available for review		c
	2.3	Discuss background facts and circumstances with person or administrator most closely involved		c
3.	Identification of Parties
	3.1	Is the Institution properly identified		c
	3.2	Is the other party properly identified		c
	3.3	Are abbreviated descriptions of the parties throughout the contract consistent		c
4.	Recitals
	4.1	State qualifications of the other party		c
	4.2	State expectations and understandings of the Institution		c
5.	Term and Termination
	[Beware of contracts with fixed terms and no-fault termination in the same document]
	5.1	Is there a clearly ascertainable starting and ending date		c
	5.1	5.1.1	Is a "no-fault" termination prior to a specific ending date appropriate? If so, is the method of notice clear	c
	5.2	Provisions for renewal		c
	5.2	5.2.1	At the Institution's option or by mutual agreement	c
6.	Other Termination Provisions
	6.1	Termination upon happening of an event		c
	6.2	Termination upon payment of stipulated sum		c
	6.3	Automatic termination		c
	6.4	Termination for unsatisfactory performance Events of default clauses		c
		6.4.1	Does the contract provide for termination in the event of default If so, does it apply with equal force to both parties If there is a disparity, does the purpose of the contract justify it	c
		6.4.2	Are events of default described with clarity and specificity	c
		6.4.3	Is there a provision for written notification of default to the defaulting party	c
		6.4.4	Is there a curative provision Does it cure default upon initiation of curative action Or does it require that curative action be completed before default	c
7.	Consideration
	7.1	Adequacy of consideration		c
	7.2	Is the consideration stated properly and accurately		c
	7.3	If cash payments are to be made, does the contract specify when and where payments are due		c
	7.4	If cash payments are due to the Institution, will it constitute unrelated business income		c
8.	Duties and Obligations
	8.1	Are the parties' obligations clear		c
	8.1	8.1.1	Does the description of a duty or obligation require an explanatory justification	c
	8.2	Are there clear time limits or expected time frames		c
	8.3	Is the Institution able to fulfill on the timetable required		c
	8.4	Are any duties or obligations implied and not clearly assigned		c
	8.5	Are any obligations conditional upon a triggering event		c
	8.5	8.5.1	Is the triggering event defined clearly	c
	8.6	Is the location of the performance of each duty and obligation adequately identified		c
	8.7	Is each duty and obligation described with sufficient clarity so that the parties know how it will be performed		c
9.	Indemnification
	9.1	Indemnification by other party to cover:		c
	9.1	9.1.1	Institution's governing board, officers, faculty, staff, students, employees, agents, contractors, volunteers	c
10.	Arbitration Clause/ADR
	10.1	Scope of arbitration/ADR clause		c
	10.1	10.1.1	Does it cover the whole contract or only certain kinds of disputes	c
	10.2	Are the particular rules of arbitration identified and acceptable		c
11.	Force Majeure Clause
11.	11.1	If present, does the contract address delay in performance caused by force majeure or suspension of payments		c
12.	Insurance
	12.1	Types of insurance required		c
	12.2	Minimum insurance specified		c
	12.3	Company acceptable to Institution		c
	12.4	Does it provide for proof of insurance		c
	12.5	Does it provide that failure to maintain insurance is an event of default		c
	12.6	Institution as a named insurer, not just a certificate holder		c
13.	Confidentiality Clause
	13.1	Is it enforceable under state law		c
	13.2	Does it impose a confidentiality requirement on a non-contracting party		c
14.	Remedies Clause
	14.1	Does the contract clearly specify the only remedies available		c
	14.2	Does it provide for liquidated damages		c
	14.2	14.2.1	Are they related to the actual facts of the contract	c
	14.3	Does it provide for cumulative remedies		c
	14.4	Does it provide for damages other than actual, i.e., consequential, exemplary, etc.		c
	14.5	Does it provide for recovery of attorney's fees, court costs, etc.		c
15.	Public Institutions
	15.1	Other contracting party gives assurance that:		c
		15.1.1	Is not controlled by a State legislator	c
		15.1.2	Is not employing any employee of the Institution	c
		15.1.3	Will comply and cooperate with applicable Freedom of Information Act (FOIA) provisions	c
		15.1.4	No fee was paid to secure this Agreement	c
16.	Merger or Entire Agreement Clause (eliminates effect of any oral or "side" agreements)
17.	Severability Clause
18.	Choice of Law and Venue
19.	Assignment Clause
	19.1	Permitted or not		c
	19.1	19.1.1	If so, binding or not on successors	c
20.	Notice
	20.1	Be sure to include necessary "with copies to"		c
	20.2	Any documents to be incorporated by reference		c
21.	Gender-Neutrality
22.	No Personal Liability
23.	Non-discrimination by Both Parties
23.	23.1	ADA Compliance		c
24.	Other Party Qualified to do Business in the State
25.	Record All Agreements Concerning Real Estate
26.	Relationship of the Parties; Independent Contractor, not Partner, Agent, or Joint Venture
27.	No Use of Institution Name Without Written Permission
28.	Time of the Essence
29.	Waiver
30.	Execution
	30.1	Is signature page in proper format		c
	30.2	Does person signing have authority		c
	30.3	Are there representations of authority		c
	30.4	Provide space for the date of each signature, but clarify "effective date," whether "date of last signature," or "as contained in this agreement"		c
	30.5	Should the contract be notarized		c

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