PROFESSIONAL SERVICES AND CONSULTING AGREEMENT

This Master Consulting and Professional Services Agreement (“Agreement”) is made as of [ENTER DATE] (the “Effective Date”) by and between the Board of School Commissioners of the City of Indianapolis (the “Board”), having offices at 120 East Walnut Street, Indianapolis, Indiana 46204“”, and [ENTER VENDOR’S LEGAL NAME] having offices at [ENTER VENDOR’S LEGAL ADDRESS] (“Consultant”).

RECITALS

AGREEMENT

1. Scope of Services. Consultant hereby agrees to provide the “”Services as outlined in Exhibit 1. Consultant shall furnish all personnel, services, labor, skills, materials, equipment, work, and other things necessary, usual, and customary to perform and complete the Services and such other services as are customarily furnished in connection therewith.

2. Fees and Payment Terms.

a. Fees. The Board, (following the submission of such written report(s) meeting the content requirements as specified, if any) and upon receipt of an invoice detailing fees and expenses, will pay to Consultant for the Services to be rendered under this Agreement, $________ per hour [or describe other payment terms as appropriate] up to but not to exceed a total amount of $_______________, which sum shall include all time spent performing Services, related expenses and travel.

b. Invoices. Consultant will submit an invoice [choose remittance method: [monthly] or [other time period as agreed with IPS].

c. Payment Terms. The Board, upon receipt and approval of an itemized invoice detailing actual hours worked, fees and expenses, will pay to Consultant within thirty (30) days from receipt of Consultant’s invoice.

d. Taxes. The Board is exempt from state, federal, and local taxes. The Board will not be responsible for any taxes levied on the Consultant as a result of this Agreement.

3. Additional Services. The parties agree that if additional services are required beyond those specified in Section 1 above, Consultant will notify the Board of such additional services prior to performing any additional services. It is further agreed that no additional compensation shall be due or payable on account of additional services unless such services have been specifically authorized in writing by the Board.

4. Term and Termination.

a. Term. This Agreement shall commence as of the Effective Date and shall continue for a period of [Contract start date] through [Contract end date] ,unless sooner terminated pursuant to this Section 4.

b. Termination for Convenience. The Board may terminate this Agreement for convenience upon thirty (30) days’ written notice.

c. Termination for Cause. This Agreement may be terminated by the Board as follows:

i. Material breach of the provisions of this Agreement by Consultant and such breach is incapable of cure or, with respect to a breach capable of cure, Consultant does not cure such breach within thirty (30) days after receipt of written notice from the Board;

ii. Consultant (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within sixty (60) business days or is not dismissed or vacated within sixty (60) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

iii. Effective immediately, in the event that funding is not appropriated or otherwise available to support continuation of this Agreement.

In the event of termination, Consultant shall be compensated for all properly performed Services rendered as billed and itemized prior to the date of termination.

5. Consultant’s Representations and Warranties. Consultant represents and warrants to the Board that:

a. it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement;

b. it is in compliance with, and shall perform the Services in compliance with, all applicable laws;

c. Consultant and Consultant’s personnel shall comply with all rules, regulations, and policies of the Board that are communicated to Consultant in writing, including security procedures concerning systems and data and remote access thereto, building security procedures and general health and safety practices and procedures;

d. the Board will receive good and valid title to all documents, work product, and other materials that are delivered to the Board hereunder or prepared by or on behalf of Consultant in the course of performing the Services (“Deliverables”), free and clear of all encumbrances and liens of any kind;

e. to Consultant’s knowledge, none of the Services, Deliverables, and the Board’s use thereof infringe or will infringe any intellectual property rights of any third party, and, (ii) as of the date hereof, there are no pending or, to Consultant’s knowledge, threatened claims, litigation, or other proceedings pending against Consultant by any third party based on an alleged violation of such intellectual property rights, in each case, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (x) any Board materials or any instruction, information, designs, specifications, or other materials provided by the Board to Consultant, (y) use of the Deliverables in combination with any materials or equipment not supplied or specified by Consultant, if the infringement would have been avoided by the use of the Deliverables not so combined, and (z) any modifications or changes made to the Deliverables by or on behalf of any person other than Consultant;

f. the Services and Deliverables will be in conformity in all material respects with all requirements or specifications stated in this Agreement for a period of one (1) year after completion of the Services; and

g. Consultant’s personnel (i) have the legal right to work in the United States; and (ii) the Board, at its sole cost and expense, shall have background checks conducted on such Consultant personnel as outlined by the Board.

h. Consultant shall comply with the Board’s equal employment opportunity policy and shall not discriminate in its employment practices or decisions on the basis of any protected status under applicable law. Consultant shall include a substantially similar equal employment opportunity clause in any subcontract related to this Agreement.

6. Ownership.

a. The Board is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the Deliverables, including all intellectual property rights therein. Consultant agrees, and will cause its personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for the Board. To the extent that any of the Deliverables do not constitute a “work made for hire”, Consultant hereby irrevocably assigns, and shall cause the Consultant personnel to irrevocably assign to the Board, in each case without additional consideration, all right, title, and interest in and to the Deliverables, including all intellectual property rights therein.

b. Upon the Board’s reasonable request, Consultant shall, and shall cause the Consultant’s personnel to, promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist the Board to prosecute, register, perfect, or record its rights in or to any Deliverables.

c. The Board and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to any documents, data, know-how, methodologies, software, and other materials provided to Consultant by the Board (the “Board Materials”), including all intellectual property rights therein. Consultant shall have no right or license to use any Board Materials except solely during the Term of this Agreement to the extent necessary to provide the Services to the Board. All other rights in and to the Board Materials are expressly reserved by the Board.

7. Indiana Public Contract Requirements. This Agreement is subject to Indiana law, including IC 20-26-5-4.1. This Agreement shall be governed exclusively by the laws of the State of Indiana, without regard to conflict-of-law principles. The District does not indemnify, defend, or hold harmless Vendor, Consultant, Contractor, or any third party. Any provision requiring the District to indemnify, defend, or hold harmless Vendor, Consultant, Contractor, or any third party, including for that party’s negligence, intentional acts, omissions, or those of its agents, employees, subcontractors, or independent contractors, is void and unenforceable. This Agreement shall not automatically renew, and any automatic renewal provision is void and unenforceable. In the event of conflict between this section and any other agreement, order form, purchase order, quote, online terms, incorporated document, vendor policy, or prior amendment, this section controls.

8. Independent Contractor. The parties agree that Consultant’s relationship to the Board shall be that of an independent contractor and not as an agent, employee, partner, or joint venture and that the employees or agents of Consultant shall not be deemed or construed to be employees of the Board for any purposes whatsoever.

9. Subcontracting. Consultant may not subcontract for the performance of any of its obligations under this Agreement without the prior written consent of the Board. When the term Consultant is used, unless the context clearly is otherwise, such term shall also include Consultant’s subcontractors.

10. Criminal History. Consultant hereby agrees to:

a. obtain and submit to Indianapolis Public Schools (“IPS”) for review an expanded criminal history (as defined by House Enrolled Act 1462) for him, her and/or for each of its employees, agents or subcontractors who is likely to have direct, ongoing contact with IPS students in connection with performing school-based contracted services; and

b. advise IPS, in writing, of Consultant’s criteria for screening employees who will perform work for IPS.

An expanded criminal history provided to the Board must be no more than three months old and must be obtained before the person begins to perform any work for IPS. Any information obtained from an expanded criminal history will be used in accordance with IC 10-13-3-29.

Consultant and all employees, agents or subcontractors of Consultant that have contracts to provide services to IPS are required by law to notify the Board if, during the course of that contract, Consultant or the employee is convicted in Indiana or in any other jurisdiction of any of the following offenses: murder; aggravated battery; kidnapping; criminal confinement; a sex offense under IC 35-42-4; carjacking; arson; incest; neglect of a dependent; child selling; contributing to the delinquency of a minor; an offense involving a weapon under IC 35-47 or IC 35-47.5; and offense relating to controlled substances under IC 35-48-4; and offense relating to material or a performance that is harmful to minors or obscene under IC 35-49-3; and offense relating to operating a motor vehicle while intoxicated under IC 9-30-5; an offense that is substantially equivalent to any of the offenses listed in this subsection in which the judgment of the conviction was entered under the law of any other jurisdiction; or an attempt to commit one of the foregoing crimes.

Consultant or the Consultant’s’ employees, agents, and/or subcontractors are responsible for all costs associated with obtaining the criminal histories.

11. Disclosure of Relationships. Consultant certifies and warrants that this Agreement and the Services provided hereunder will not be performed under the direct or indirect administrative control of or be reviewed or approved or paid for by any member of the Board, or any administrator, educator, agent or employee of the Board who stands in the relation or dependent to Consultant (as defined by IC 35-44-1-3) or who is otherwise related to Consultant by blood or by marriage, except as disclosed on Form A, attached and made part hereof. Any violation of this provision or failure to disclose the relationship shall be cause for immediate termination of the Agreement. Consultant shall complete and submit Form A (Disclosure of Relationships) prior to the Effective Date. Failure to complete this form will delay processing of this Agreement.

12. Supplier Diversity. Consultant and any subcontractor agree that they will review the IPS policy on Minority (MBE), Woman (WBE), Veteran (VBE), and Local Business Enterprise for Contractors and comply with such policy. Consultant shall complete and submit Form B (Utilization Statement) and Form C (Letter of Intent to Perform Services) prior to the Effective Date. Failure to complete these forms will delay processing of this Agreement.

Consultant shall advise the Board, not less frequently than monthly, of the status of its compliance with this section. Any and all changes in previously reported anticipated MBE, WBE and VBE utilization shall be reported to the Board promptly, in writing, with appropriate documentation and reasons.

13. Indemnification. Consultant shall defend, indemnify and hold the Board harmless from and against any and all liabilities, damages, losses, costs, or expenses of any nature, including all costs, expenses, and attorneys’ fees (“Claims”), arising out of Consultant’s or its employees’ performance of the Services or its obligations under this Agreement, to the extent that such Claims arise out of or are caused by (i) the breach of this Agreement; (ii) claim of personal injury, death or damage to property to the extent attributable to the negligence or intentional misconduct of the Consultant, its officers, employees, and agents for whom Consultant is legally liable in performing the Services under this Agreement, except to the extent such Claims are caused by the negligence or intentional misconduct of the Board; and (iii) a violation of law, ordinance or rule applicable to the Consultant or the Services, including permit and licensing requirements, tax obligations, worker’s compensation or unemployment regulations. ’

14. Force Majeure: Neither Party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control including, but not limited to, the following force majeure events“”: (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities (a “Force Majeure Event”). The Impacted Party shall promptly notify the other Party in writing, but in no event later than thirty (30) days from the occurrence of the Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event is minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of sixty (60) days following notice given by it, the other party may thereafter terminate this Agreement.

15. Insurance. Consultant shall maintain primary comprehensive general liability insurance, including bodily injury and property damage coverage in an amount no less than $ 3,000,000. The coverage minimum shall apply to specific and aggregate limits. The coverage shall protect against the acts or omissions of the Consultant, its officials, employees and agents. Evidence of insurance coverage for Consultant shall be promptly provided to the Board upon written request by the Board. Consultant shall immediately forward to the Board any notice of cancellation or nonrenewal of coverage that it receives from its insurer and shall provide immediate notice of any actual cancellation or nonrenewal. Consultant shall not refuse to submit a claim to its insurance carrier or fail to pursue insurance reimbursement in a manner that would reduce the Board’s indemnity rights under this Agreement.

16. E-Verify Certification. Pursuant to Indiana Code 22-5-1.7, any Consultant providing services to IPS certifies that it has enrolled in and is verifying the work eligibility status of all newly hired employees through the E-Verify program for the duration of this and any future contracts for services with IPS, unless and until the E-Verify program no longer exists. Consultant affirms that it does not knowingly employ or retain in its employ any unauthorized aliens, which includes any persons whose immigration status makes them ineligible to work for Consultant. Consultant requires all of its Subcontractors, before performing services under this Contract, in any amount, to provide to Consultant a certification that, at the time of certification, (a) Subcontractor does not knowingly employ or contract with any unauthorized aliens, meaning any persons whose immigration status makes them ineligible to work for Subcontractor, and (b) Subcontractor has enrolled in and is participating in the E-Verify program. Consultant certifies that it will keep on file these Subcontractor certifications referenced for the duration of any contract with Subcontractor to provide services under this or any future contract with IPS. This provision does not apply to Consultants who are self-employed and do not employ any employees or to any Consultant who is not providing services to IPS. Consultant shall complete and submit Form D (E-Verify Certification) prior to the Effective Date. Failure to complete this form will delay processing of this Agreement.

17. Consultant Not Suspended or Debarred. By signing this Agreement, Consultant certifies that the Consultant, its principals and/or sub-recipients are not suspended or debarred by the Federal Government, nor is any known suspension or debarment procedure pending. Consultant agrees to notify the Board in writing of any suspension or debarment, or potential suspension or debarment proceeding. Failure to report any suspension or debarment, or any potential suspension or debarment, will be sufficient cause to terminate this Agreement and report such termination to federal authorities. Consultant certifies that he/she has authorization to make such certification and to bind the Consultant to all representations herein. Consultant shall complete and submit Form E (Certification Not Suspended Debarred) prior to the Effective Date. Failure to complete this form will delay processing of this Agreement.

18. No Third-Party Beneficiaries. Nothing in this Agreement shall be construed to create or extend any rights to any third parties as third-party beneficiaries.

19. Time of the Essence. The Board and Consultant hereby agree that time is of the essence of this Agreement. Consultant shall commence performance of the Services as soon as practicable upon the execution of this Agreement and shall provide the Services contemplated herein as expeditiously as possible.

20. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Indiana.

21. Notices. Unless otherwise provided, all notices, consents or other communications required or permitted to be given under this Agreement must be in writing and will be deemed to have been duly given (a) when delivered personally, (b) three (3) business days after being mailed by first-class mail, postage prepaid, or (c) one (1) business day after being sent by a reputable overnight delivery service, postage or delivery charges prepaid, to the Parties at their respective addresses stated below.

If to the Board:

Attention: [__________], Chief Financial Officer

If to Consultant:

Attention: [__________]

22. Waiver. Any failure to insist upon strict compliance with any of the terms, covenants or conditions of this Agreement shall not be deemed a waiver of any such term, covenant or condition, nor shall any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies, nor shall any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances..

23. Severability. In the event that any provision of this Agreement is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of this Agreement, and the application of such provision in any other circumstances, shall not be affected thereby.

24. No Assignment. Except as otherwise provided herein, Consultant shall not assign, transfer or subcontract the whole or any part of this Agreement without the prior written consent of the Board. Consultant will not sell, assign, or pledge this Agreement as collateral for a loan or take any other action which may tend to encumber the direct contractual relationship between the Board and the Consultant without the express prior written consent of the Board.

25. Entire Agreement. This Agreement constitutes the entire agreement between the parties and no modifications shall be effective unless same is in writing and signed by the parties.

IN WITNESS WHEREOF, the parties have executed this Agreement at Indianapolis, Indiana, on the day first mentioned above.

THE BOARD OF SCHOOL COMMISSIONERS [CONSULTANT]

OF THE CITY OF INDIANAPOLIS

IPS ED or Chief Title

Date

EXHIBIT 1

SCOPE OF SERVICES

US.358444363.01

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