RFP for Federal ESEA Implementation Support and Oversight OregonBuys Bid # S-58100-00017199

Attachment A

SAMPLE PROFESSIONAL SERVICES PRICE AGREEMENT

for

Federal ESEA Implementation Support and Oversight

This professional services Price Agreement (“Agreement”) is between the State of Oregon (the “State”) acting by and through its Oregon Department of Education (“ODE” or “Agency”) and ___________________________ (“Contractor”).

This Agreement sets forth the terms and conditions applicable to services that may be required under service orders issued between ODE and Contractor under this Agreement.

The parties agree as follows:

Article I Scope of Work; Definitions.

1.1 Contractor shall provide the services described in the Scope of Work, attached as

Exhibit A, and as more particularly described in any Service Order Contract (“SOC”) issued under this Agreement, for Federal ESEA Implementation Support and Oversight (“Services”). Contractor is responsible for providing the Services for the following Service domains: [Note to Proposers: The Service Domains will be updated to reflect the Domains that Proposer is awarded prior to Agreement signature.]

1. Monitoring Support (Programmatic and Fiscal)

2. Technical Assistance and Professional Learning for Continuous Improvement

3. Allocation Review and Support

4. Specialized and Emerging Needs (Flexible Task Orders; Available After

Award)

A detailed description of the required tasks and deliverables is listed in Exhibit A, Scope of Work (SOW).

1.2 This Agreement is not a guarantee that any purchases will be made or that SOCs will be issued.

1.3 This Agreement is not exclusive. ODE currently may have one or more professional services price agreements for the Services. ODE may request Services from Contractor or from any other contractor, and Contractor may provide Services to any third party, provided that Contractor may not sacrifice the quality of the Services provided to ODE for the benefit of another client. ODE may select contractor to perform Services from within its pool of agreement holders.

1.4 Each SOC creates a separate contract between Contractor and Agency. Each SOC incorporates and is subject to the terms and conditions of this Agreement, except as otherwise agreed by Contractor and ODE for the specific SOC. Each SOC is independent of all other SOC. ODE will not materially change or alter the terms, conditions or rates of the

Agreement, and any such changes or alterations to the terms, conditions or rates set forth in a specific SOC will not amend or change the terms, conditions or rates of the Agreement.

1.5 Definitions

Agreement has the meaning set forth in the introductory clause.

Business Day means a day other than a Saturday, Sunday or State Holiday.

Calendar Days means any day appearing on the calendar, whether a weekday, weekend day, national holiday, state holiday, or other day.

Contractor Personnel means all employees and agents of Contractor, all Subcontractors and all employees and agents of any Subcontractor, involved in the performance of Services.

Documentation means all generally available documentation relating to the Services, including all user manuals, operating manuals and other instructions, specifications, documents and materials, in any form or media, that describe any component, feature, requirement or other aspect of the Services, including any functionality, testing, operation or use thereof.

Key Personnel means any Contractor Personnel identified as key personnel in this Agreement or any Service Order Contract Statement of Work.

Loss means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers. “Losses” has a correlative meaning.

Professional Services means any and all professional services that Contractor provides to the State, including but not limited to general consultation services, project management services, discovery plan consultation, Service Order Contract means the contract through which ODE and Contractor will enter into to provide the Services.

State has the meaning set forth in the introductory clause.

Article II General Agreement Provisions

2.1 Effective Date. This Agreement is effective on the date it has been signed by all the parties and all required approvals have been obtained.

2.2 Term of Agreement. This Agreement expires on (Enter Date) (the “Term”), unless earlier terminated or extended according to its terms. Agreement termination does not extinguish or prejudice ODE’s right to enforce this Agreement with respect to any default by Contractor that has not been cured. The parties may extend the Term of this Agreement by mutual consent.

2.3 Term of Service Order Contract. SOCs may not extend more than two years beyond the final term of the Agreement.

2.4 Compensation. The Agency has established a fixed hourly rate of $150.00 per hour for Services performed under this Agreement. This rate applies to all Services Domains authorized under the Agreement. All compensation under Service Order Contracts issued pursuant to this Agreement shall be based on this fixed hourly rate. The hourly rate is fully burdened and includes all labor, overhead, administrative expenses, profit, and all other costs associated with performance of the Services, excluding Agency-approved reimbursable travel expenses.

There is no guarantee that any specific volume of Services or dollar amount will be authorized through Service Order Contracts issued under this Agreement

2.5 Agreement Documents. This Agreement consists of the following documents, which are incorporated by this reference, and are listed in descending order of precedence:

this Agreement less all exhibits, attached Exhibit A (Statement of Work), Exhibit B (Required Insurance), Exhibit C (Service Order Contract Template) and Exhibit D (Federal Terms and Conditions).

2.6 Amendments.

2.6.1 Amendments. Any amendments to this Agreement or a SOC will not be effective unless in writing, signed by the parties, and only after all approvals required by applicable law have been obtained.

2.6.2 Amendments to Service Order Contracts. ODE may amend a SOC to the extent permitted by this Agreement and applicable statutes and administrative rules.

2.7 Service Order Contract Requirements.

2.7.1 Negotiation. ODE will negotiate the Statement of Work, specifications, and schedule for SOCs and SOC amendments with Contractor.

2.7.2 Format. Each SOC must be in a form substantially similar to the template attached as Exhibit C. ODE will prepare, process and execute the SOC. Each SOC must indicate the maximum amount payable to Contractor, as negotiated by ODE and Contractor.

2.7.3 Statement of Work. The Statement of Work (“SOW”) must include a description of the Services to be performed by Contractor, a schedule for performance, and specific deliverables. All Services included in the SOW must be within the Scope of Services indicated in Article I and Exhibit A.

2.8 SOC Selection Methodology

From time to time during the Term of this Agreement, Agency may request Contractor to perform the Services described in the Scope of Work attached as Exhibit A.

2.8.1 This Agreement is not exclusive. The Agency may have one or more agreements with other contractors for some or all of the Services. Agency may request Services from Contractor or from any other contractor.

2.8.2 In the event multiple professional services price agreements are awarded, Agency shall use the following selection method to determine the contractor to whom to issue a SOC for Services:

2.8.2.1 Agency will identify a pool of potential contractors based on the following process: (1) determine availability of Contractors to complete work within required timeline; (2) when necessary, select from that group, the potential Contractors in closest geographic proximity to the location where services will be provided; (3) select from that group, the potential Contractors based on rotation of work within the pool of Contractors.

2.8.2.2 At Agency's option, Agency may further evaluate specialized skills and abilities of Contractor before issuing a Service Order.

2.8.2.3 Agency will coordinate directly with the selected Contractor for execution of the Service Order for the required Work.

2.8.2.4 Contractors shall submit responses to Agency within 48 hours of the Notice issuance or as otherwise set out in the Notice.

The Agency retains the sole discretion to select the contractor to whom to issue a SOC for the respective Services at issue.

Article III Terms and Conditions Applicable to Agreement and Service Order Contracts

The following provisions apply to and are incorporated into both the Agreement and any Service Orders.

3.1 Contractor Status. Contractor performs all Services as an independent contractor.

Contractor is not an “officer”, “employee”, or “agent” of the State, as those terms are used in ORS 30.265. Contractor is responsible for determining the appropriate means and manner of performing the Services.

3.2 Independent Contractor. Contractor certifies that it is an independent contractor as defined in ORS 670.600 and as described in IRS publication 1779, which is available at the following link: http://www.irs.gov/pub/irs-pdf/p1779.pdf.

3.3 Conflicts of Interest. If Contractor is currently performing work for the State or the federal government, Contractor, by signature to this Agreement, represents and warrants that: Contractor’s performance of Services under this Agreement or any SOC creates no potential or actual conflict of interest as defined by ORS 244 and no statutes, rules or regulations of the state or federal agency for which Contractor currently performs work would prohibit Contractor’s performance of Services under this Agreement.

3.4 Responsibility for Taxes and Withholding. Contractor is responsible for all federal or state taxes applicable to compensation or payments paid to Contractor under this Agreement and, unless Contractor is subject to backup withholding, AGENCY will not withhold from such compensation or payments any amount(s) to cover Contractor’s federal or state tax obligations. Contractor is not eligible for any social security, unemployment insurance or workers’ compensation benefits from compensation or payments paid to Contractor under this Agreement, except as a self-employed individual.

3.5 Tax Information. Throughout the duration of the Agreement and any Service Orders, Contractor shall submit an updated W-9 form (http://www.irs.gov/pub/irs-pdf/fw9.pdf) to ODE whenever Contractor’s backup withholding status or any other information changes.

3.6 Intended Beneficiaries. ODE and Contractor are the only parties to this Agreement and Service Order Contracts and are the only parties entitled to enforce their terms. Nothing in this Agreement or any SOC gives, is intended to give, or is construed to give or provide any benefit or right not held by or made generally available to the public, http://www.irs.gov/pub/irs-pdf/p1779.pdf http://www.irs.gov/pub/irs-pdf/fw9.pdf http://www.irs.gov/pub/irs-pdf/fw9.pdf whether directly, indirectly or otherwise, to third persons unless such third persons are individually identified by name in this Agreement or in a particular SOC and expressly described as intended beneficiaries of the terms of this Agreement and all SOCs.

3.7 Most Favorable Prices and Terms. Contractor agrees that the pricing in any Service Order is comparable to the pricing offered to other customers of Contractor purchasing the same or substantially similar quantities of Services under similar terms and conditions. If Contractor enters into any arrangement with another customer to provide the same or similar quantities of identical services under similar terms and conditions at more favorable prices, Contractor must offer those prices for any subsequent purchase. In no event may any change in pricing or other terms and conditions apply to previously purchased products or services.

3.8 Representations and Warranties.

3.8.1 Contractor represents and warrants to ODE that (a) Contractor has the power and authority to enter into and perform Service Orders issued under this Agreement, (b) Service Orders issued under this Agreement, when executed and delivered, are a valid and binding obligation of Contractor enforceable in accordance with their terms, (c) Contractor has the skill and knowledge possessed by well-informed members of its industry, trade or profession and Contractor will apply that skill and knowledge with care and diligence to perform the Services in a professional manner and in accordance with standards prevalent in Contractor’s industry, trade or profession, under similar conditions and circumstances, (d) Contractor shall, at all times during the term of this Agreement, be qualified, professionally competent, and duly licensed to perform the Services, (e) The Contractor Tax Identification and Certification are true and accurate as of the Effective Date, and Contractor will notify Agency in writing if any such data or certifications change during the term of this Agreement such that the Contractor Tax Identification or Certification are no longer true and accurate.

3.8.2 Warranties Cumulative. The warranties set forth in this Section are in addition to, and not in lieu of, any other warranties provided.

3.9 Ownership of Certain Work Product. Work Product that is required to be delivered to ODE as a deliverable (“Deliverable”) as agreed to under a SOC shall be the exclusive property of ODE. ODE and Contractor agree that Deliverables which are required to be delivered to and which are paid for by ODE shall be “work made for hire” of which ODE is the author within the meaning of the United States Copyright Act. If for any reason any such Deliverable(s) is not “work made for hire”, Contractor irrevocably assigns to ODE any and all of its rights, title, and interest in such Deliverable(s). Upon ODE’s reasonable request, Contractor shall execute such further documents and instruments necessary to fully vest such rights in ODE.

3.10 Confidentiality

3.10.1 Contractor acknowledges that Contractor and its employees or agents may, in the course of performing responsibilities under this Agreement, be exposed to or acquire communication, which is confidential, privileged communication not intended to be disclosed to third parties.

(a) Confidential Information. Contractor agrees that any State Data hosted by Contractor pursuant to this Agreement and all information of any form obtained by Contractor or its employees or agents in the performance of this Agreement is deemed “Confidential Information” of ODE and the State. Confidential Information does not include information which is or becomes (other than by disclosure by Contractor) publicly known.

(b) Strict Confidence. Contractor agrees to hold such Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such information for any purposes whatsoever other than the provision of Services to ODE; provided however, that in the event all or part of Contractor’s business is acquired, Contractor may transfer the State Data to the acquirer, subject to the acquirer’s compliance with the terms of this Agreement with respect to the State Data. Contractor agrees to advise each of its employees and agents of their obligations to keep such information confidential.

(c) Consumer Identity Theft Protection Act. Contractor shall comply with the Oregon Consumer Identity Theft Protection Act, ORS 646A.600 through 606A.628, to the extent applicable to this Agreement.

3.11 Contractor Intellectual Property. “Contractor Intellectual Property” Contractor Intellectual Property means any intellectual property owned by Contractor and developed independently from the Services provided pursuant to a SOC. Contractor retains ownership of all Contractor intellectual Property that Contractor delivers to ODE pursuant to the Services performed under this Agreement or a SOC. Contractor shall be the owner of all Work Product that is not “work made for hire” as identified in Section 3.9 above.

Contractor grants ODE a worldwide, royalty-free, perpetual license to us any and all Contractor Intellectual Property incorporated into any Work Product.

3.12 Third Party Intellectual Property. “Third Party Intellectual Property” means any intellectual property owned by parties other than ODE or Contractor.

3.13 Agency Intellectual Property; Data and Background Information. Agency owns all Agency Intellectual Property and Agency data and background information provided to Contractor pursuant to this Agreement and a SOC. ODE grants Contractor a non-exclusive, royalty-free, world-wide license to use, copy, display, distribute, transmit and prepare derivative works of ODE Intellectual Property and ODE data and background information only to fulfill the purposes of this Agreement and a SOC. ODE’s license to Contractor is limited by the term of the applicable SOC and the confidentiality obligations of this Agreement.

3.14 Publicity. Contractor may disclose the form and existence of this Agreement in advertising, press releases or other materials distributed to prospective customers, but shall not otherwise attempt to obtain publicity from its association with ODE or the State of Oregon, whether or not such disclosure, publicity or association implies an endorsement by ODE or the State of Oregon of Contractor’s Service, without the prior written consent of

ODE.

3.15 Indemnity.

3.15.1 CONTRACTOR SHALL DEFEND, SAVE, HOLD HARMLESS, AND

INDEMNIFY THE STATE OF OREGON, AND ODE AND THEIR OFFICERS,

EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS,

LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF ANY NATURE

WHATSOEVER, INCLUDING ATTORNEYS FEES, RESULTING FROM, ARISING OUT

OF, OR RELATING TO (I) THE ALLEGED NEGLIGENT OR WILLFUL ACTS,

OMISSIONS, OR ANY BREACH OF THIS AGREEMENT BY THE CONTRACTOR OR

ITS OFFICERS, EMPLOYEES, SUBCONTRACTORS, OR AGENTS UNDER THIS

AGREEMENT, OR (II) THE INFRINGEMENT OF ANY UNITED STATES PATENT,

COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY RIGHT OF

ANY THIRD PARTY BY CONTRACTOR’S DELIVERY OR AGENCY’S USE OF WORK

PRODUCT (EACH, AN “INDEMNIFIABLE LOSS”).

3.15.2 ODE SHALL PROMPTLY NOTIFY CONTRACTOR IN WRITING OF

ANY ACTION, CLAIM OR DEMAND OF WHICH THE STATE BECOMES AWARE AND

WHICH ODE REASONABLY EXPECTS TO RESULT IN AN INDEMNIFIABLE LOSS.

CONTRACTOR’S OBLIGATION UNDER THIS SECTION DOES NOT EXTEND TO ANY

INDEMNIFIABLE LOSS TO THE EXTENT CAUSED BY THE NEGLIGENCE OR

WILLFUL MISCONDUCT OF ODE, THE STATE OF OREGON, OR THEIR AGENTS,

OFFICIALS OR EMPLOYEES.

3.15.3 Control of Defense and Settlement. CONTRACTOR SHALL HAVE

CONTROL OF THE DEFENSE AND SETTLEMENT OF ANY CLAIM THAT IS SUBJECT

TO SECTION 3.15.1; HOWEVER, NEITHER CONTRACTOR NOR ANY ATTORNEY

ENGAGED BY CONTRACTOR MAY DEFEND THE CLAIM IN THE NAME OF THE

STATE OF OREGON OR ANY AGENCY OF THE STATE OF OREGON, NOR PURPORT

TO ACT AS LEGAL REPRESENTATIVE OF THE STATE OF OREGON OR ANY OF ITS

AGENCIES, WITHOUT FIRST RECEIVING FROM THE OREGON ATTORNEY

GENERAL, IN A FORM AND MANNER DETERMINED APPROPRIATE BY THE

ATTORNEY GENERAL, AUTHORITY TO ACT AS LEGAL COUNSEL FOR THE STATE

OF OREGON, NOR SHALL CONTRACTOR SETTLE ANY CLAIM ON BEHALF OF THE

STATE OF OREGON WITHOUT THE APPROVAL OF THE ATTORNEY GENERAL.

THE STATE OF OREGON MAY, AT ITS ELECTION AND EXPENSE, ASSUME ITS

OWN DEFENSE AND SETTLEMENT IN THE EVENT THAT THE STATE OF OREGON

DETERMINES THAT CONTRACTOR IS PROHIBITED FROM DEFENDING THE

STATE OF OREGON, OR IS NOT ADEQUATELY DEFENDING THE STATE OF

OREGON’S INTERESTS, OR THAT AN IMPORTANT GOVERNMENTAL PRINCIPLE

IS AT ISSUE AND THE STATE OF OREGON DESIRES TO ASSUME ITS OWN

DEFENSE.

3.15.4 Contractor Indemnity. To the extent the State is required under this Agreement to indemnify or hold Contractor harmless against claims brought by third parties against Contractor, the State’s obligation to indemnify is subject to the limitations of Article XI, section 7 of the Oregon Constitution and the Oregon Tort Claims Act, ORS 30.260 through 30.300.

3.16 Insurance. Contractor shall maintain insurance as set forth in Exhibit B.

3.17 Termination; State Data Disposition.

3.17.1 Termination by ODE for Convenience. At its sole discretion, ODE may terminate this Agreement for its convenience upon fifteen (15) days written notice to Contractor.

3.17.2 Termination by ODE for Cause. In addition to any other rights and remedies ODE may have under this Agreement, ODE may terminate this Agreement, in whole or in part, immediately upon written notice to Contractor, or at such later date as ODE may establish in such notice, upon the occurrence of any of the following events:

(a) Funding from federal, state, or other sources is not obtained and continued at levels sufficient to pay for Contractor’s Services;

(b) Federal or state laws, regulations, or guidelines are modified or interpreted in such a way that the performance of the Services under this Agreement is prohibited or the Agency is prohibited from paying for such Services from the planned funding source;

(c) Contractor no longer holds a license or certificate that is required for it to perform the Services; or

(d) Contractor commits any material breach or default of any covenant, warranty, obligation or certification under this Agreement, fails to perform the Services in conformance with the requirements and warranties provided herein, or so fails to pursue the Services as to endanger Contractor’s performance under this Agreement in accordance with its terms, and such breach, default or failure is not cured within ten (10) business days after delivery of ODE’s notice or such longer period as ODE may specify in such notice.

3.17.3 Termination by Contractor. Contractor may terminate this Agreement if Agency fails to pay Contractor any amount pursuant to the terms of this Agreement, and Agency fails to cure such failure within thirty (30) days after Contractor’s notice or such longer period as Contractor may specify in such notice.

3.17.4 Termination without Prejudice. Termination of this Agreement pursuant to this Section 3.17 shall occur without prejudice to any obligation or liabilities of either party already accrued prior to such termination.

3.18 Effect of Termination. Upon and after the termination or expiration of this Agreement for any or no reason:

3.18.1 Contractor shall (a) return to the State all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the State’s Confidential Information; (b) permanently erase the State’s Confidential Information from its computer systems; and (c) certify in writing to the State that it has complied with the requirements of this Section, in each case to the extent such materials are not required by Contractor for Transition Responsibilities, if any.

3.19 Records Maintenance; Access. Contractor shall maintain all financial records relating to this Agreement in accordance with generally accepted accounting principles. In addition, Contractor shall maintain any other records pertinent to this Agreement in such a manner as to clearly document Contractor’s performance. Contractor acknowledges and agrees that ODE, the Oregon Secretary of State’s Office, the federal government and their duly authorized representatives may have access to such financial records and other books, documents, papers, plans, records of shipments and payments and writings of Contractor that are pertinent to this Agreement, whether in paper, electronic or other form, to perform examinations and audits and make excerpts and transcripts. Contractor shall retain and keep accessible all such financial records, books, documents, papers, plans, records of shipments and payments and writings for a minimum of six (6) years, or such longer period as may be required by applicable law, following final payment and termination of this Agreement, or until the conclusion of any audit, controversy or litigation arising out of or related to this Agreement, whichever date is later.

3.20 Compliance with Applicable Law.

3.20.1 Compliance with Applicable Law. Contractor shall comply with all federal, state and local laws, regulations, executive orders and ordinances applicable to this Agreement.

3.21 Limitation of Liabilities.

3.21.1 EXCEPT FOR LIABILITY ARISING OUT OF OR RELATED TO (i) SECTION 3.15.1 (INDEMNITY), (ii) SECTION 3.10 (CONFIDENTIALITY), OR (iii) CLAIMS FOR PERSONAL

INJURY, INCLUDING DEATH, OR DAMAGE TO REAL PROPERTY OR TANGIBLE OR

INTANGIBLE PERSONAL PROPERTY ARISING FROM THE NEGLIGENCE, RECKLESS

CONDUCT OR INTENTIONAL ACTS OF CONTRACTOR, ITS OFFICERS, EMPLOYEES OR

AGENTS, CONTRACTOR'S LIABILITY FOR DAMAGES TO THE STATE FOR ANY CAUSE

WHATSOEVER IS LIMITED TO TWO TIMES THE MAXIMUM-NOT-TO-EXCEED AMOUNT OF

THE APPLICABLE SERVICE ORDER.

3.21.2 ODE AND CONTRACTOR ARE NOT LIABLE FOR (i) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES UNDER THIS AGREEMENT OR (ii) ANY DAMAGE

OF ANY SORT ARISING SOLELY FROM THE TERMINATION OF THIS AGREEMENT IN

ACCORDANCE WITH ITS TERMS. NOTWITHSTANDING THE FOREGOING, THE PARTIES

AGREE THAT LOSS OF DATA IS NOT A CONSEQUENTIAL DAMAGE.

3.22 Force Majeure. State and Contractor are not liable for delay or default caused by fire, riot, acts of God, terrorist acts, or other acts of political sabotage, or war, where such cause was beyond the reasonable control of the State or Contractor, respectively.

Contractor shall, however, make all reasonable efforts to remove or eliminate such a cause of delay or default and upon the cessation of the cause, diligently pursue performance of its obligations under this Agreement.

3.23 Survival. All rights and obligations shall cease upon termination or expiration of this Agreement, except for the rights and obligations set forth in Sections 2.2, 3.6, 3.8, 3.10, 3.15, 3.16, 3.18, 3.20, 3.21, 3.22, 3.26, 3.31, 3.32, and 4.5.

3.24 Time is of the Essence. Contractor agrees that time is of the essence under this Agreement.

3.25 Notice.

3.25.1 Except as otherwise expressly provided in this Agreement, any notices between the parties under this Agreement must be given in writing, via personal delivery, express courier, facsimile, e-mail, or United States Postal Service, postage prepaid, to Contractor or the ODE Agreement Administrator at the address or number set forth below, or to such other addresses or numbers as either party may hereafter indicate pursuant to this Section. Any notice so addressed and mailed is effective five days after mailing. To be effective against ODE, any notice transmitted by facsimile must be confirmed by the recipient by telephone to ODE’s Agreement Administrator.

3.25.2 Any notice or day-to-day communication sent by e-mail is deemed received when it is sent. The recipient of any notice sent by e-mail shall reply by e-mail to confirm receipt of such notice. Any notice delivered by facsimile is effective on the day the transmitting machine generates a receipt of a successful transmission, if transmission was during normal business hours, or on the next business day, if transmission was outside normal business hours of the recipient.

3.25.3 Any notice given by personal delivery is effective immediately, if made to the agreement administrators noted below.

IF TO ODE: IF TO CONTRACTOR:

Name: Liz Ross

Name:

Title: Director, Federal Systems Address: 255 Capitol St. NE, Salem, OR 97301 Phone: 503-400-5793 Email: Liz.Ross@ode.oregon.gov

Title:

Address Phone:

Email:

3.25.4 ODE may name a new Agreement Administrator via any proper notice under this section.

3.26 Severability. The parties agree that if any term or provision of this Agreement is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if this Agreement did not contain the particular term or provision held to be invalid.

3.27 Counterparts. This Agreement may be executed in several counterparts, all of which when taken together constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Agreement so executed constitutes an original.

3.28 Choice of Law; Designation of Forum; Federal Forum.

3.28.1 Choice of Law. The laws of the State of Oregon (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement.

3.28.2 Designation of Forum and Consent to Jurisdiction . Any party bringing a legal action or proceeding against any other party arising out of or relating to this Agreement shall bring the legal action or proceeding in the Circuit Court of the State of Oregon for Marion County. Each party hereby consents to the exclusive jurisdiction of such court, waives any objection to venue, and waives any claim that such forum is an inconvenient forum.

3.28.3 Federal Forum. Notwithstanding Section 3.28.2, if any Claims between Agency and Contractor arising from or relates to this Agreement shall be brought and conducted solely and exclusively within the Circuit Court of Marion County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then unless otherwise prohibited by law it shall be brought and conducted solely and exclusively within the United States District Court for the District of Oregon. Contractor hereby consents to the in personam jurisdiction of said courts and waives any objection to venue in such courts and waives any claim that such forum is an inconvenient forum. Nothing herein shall be construed as a waiver of the State’s sovereign or governmental immunity, whether derived from mailto:Liz.Ross@ode.oregon.gov the Eleventh Amendment to the United States Constitution or otherwise, or of any defenses to Claims or consent to jurisdiction based thereon.

3.29 Merger Clause; Waiver. THIS AGREEMENT AND ATTACHED EXHIBITS

CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE SUBJECT

MATTER HEREOF. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR

REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS

AGREEMENT. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS

AGREEMENT BINDS ALL PARTIES UNLESS IN WRITING AND SIGNED BY BOTH PARTIES,

OR ALL PARTIES, AS APPLICABLE, AND ALL NECESSARY STATE APPROVALS HAVE BEEN

OBTAINED. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, IS

EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN.

THE FAILURE OF ODE TO ENFORCE ANY PROVISION OF THIS AGREEMENT DOES NOT

CONSTITUTE A WAIVER BY ODE OF THAT OR ANY OTHER PROVISION. NO TERMS ON

CONTRACTOR’S WEBSITE, BROWSE-WRAP, SHRINK-WRAP, CLICK-WRAP OR OTHER

NON-NEGOTIATED TERMS AND CONDITIONS PROVIDED WITH ANY OF THE SERVICES,

OR DOCUMENTATION UNDER THIS AGREEMENT WILL CONSTITUTE A PART OR

AMENDMENT OF THIS AGREEMENT OR WILL BE BINDING ON THE STATE OR ANY

AUTHORIZED USER FOR ANY PURPOSE. ALL SUCH OTHER TERMS AND CONDITIONS

HAVE NO FORCE AND EFFECT AND ARE DEEMED REJECTED BY THE STATE AND THE

AUTHORIZED USER, EVEN IF ACCESS TO OR USE OF SUCH SERVICE OR

DOCUMENTATION REQUIRES AFFIRMATIVE ACCEPTANCE OF SUCH TERMS AND

CONDITIONS.

3.30 Contractor Certification.

Certification. The individual signing on behalf of Contractor hereby certifies under penalty of perjury that:

(a) the number shown on this form is Contractor’s correct taxpayer identification;

(b) Contractor is not subject to backup withholding because

(1) Contractor is exempt from backup withholding,

(2) Contractor has not been notified by the IRS that Contractor is subject to backup withholding as a result of a failure to report all interest or dividends, or

(3) the IRS has notified Contractor that Contractor is no longer subject to backup withholding;

(c) s/he is authorized to act on behalf of Contractor, s/he has authority and knowledge regarding Contractor’s payment of taxes, and to the best of her/his knowledge, Contractor is not in violation of any Oregon Tax Laws. For purposes of this certification, “Oregon Tax Laws” means a state tax imposed by ORS 320.005 to

320.150 (Amusement Device Taxes ), 403.200 to 403.250 (Tax For Emergency Communications), 118 (Inheritance Tax), 314 (Income Tax), 316 (Personal Income Tax), 317 (Corporation Excise Tax), 318 (Corporation Income Tax), 321 (Timber and Forest Land Taxation), 323 (Cigarettes and Tobacco Products Tax), and the elderly rental assistance program under ORS 310.630 to 310.706; and any local taxes administered by the Department of Revenue under ORS 305.620; and

(d) the supplied Contractor data is true and accurate.

Article IV Terms and Conditions Applicable to Service Order Contracts

4.1 ODE is not obligated to pay Contractor for any Services unless such Services are complete, conform to the specifications in the Statement of Work, and otherwise conform to the warranties and other terms of this Agreement.

4.2 Delivery, Invoices and Payment.

4.2.1 Delivery. Contractor acknowledges and agrees that payment is only due and payable for Services authorized by ODE and satisfactorily completed by Contractor.

Payments will occur only after ODE has determined that Contractor has completed, and ODE has accepted, the required Services for which payment is sought via a properly submitted and correct invoice.

4.2.2 Invoices. Contractor shall submit invoices, no more often than monthly, for Services performed to ODE for each SOC. Invoices must be sent to the following:

Federal Programs at FederalPrograms@ode.oregon.gov

Each invoice must describe all Services performed with particularity, itemize and explain all expenses for which Contractor claims reimbursement, if any, the dates of performance, and by whom such Services were performed, and must include the following information:

• Contract number.

• Service Order Contract number.

• School District and party information.

• Tasks and deliverables completed

• All records of communication with the subrecipient(s)

• Hours to complete tasks and deliverables.

• Contractor’s billing address.

4.2.3 Payment. Invoices must be sent to ODE at the address set forth in Section 3 of the Service Order, no more often than monthly. After ODE reviews the invoice and approves any undisputed amount for payment the invoice will be forwarded for payment. ODE shall make payments in accordance with ORS 293.462. Payment is due within 45 days of invoice approval. ODE shall use best efforts to timely review mailto:FederalPrograms@ode.oregon.gov and approve, or dispute, invoice or any portion thereof. The Contractor may not send reminders to ODE about payment, except in monthly invoices.

4.3 Subcontracts, Successors, and Assignments. Contractor shall not enter into any subcontracts for any of the Services required by this Agreement without ODE’s prior written consent. ODE’s consent to any subcontract shall not relieve Contractor of any of its duties or obligations under this Agreement. The provisions of this Agreement are binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns, if any. Contractor shall not assign, delegate or transfer any of its rights or obligations under this Agreement without ODE’s prior written consent.

4.4 Funds Available and Authorized; Payments; Debt Limitations.

4.4.1 Funds Available and Authorized. Contractor shall look only to the Agency for payment for Services. The Agency reasonably believes that, as of the Effective Date of the SOC, it has sufficient funds available and authorized for expenditure to finance the costs of the SOC within its biennial appropriation or limitation.

4.4.2 Payments. Contractor understands and agrees that the Agency’s payment of amounts under the SOC is contingent on the Agency receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow the Agency, in the exercise of its reasonable administrative discretion, to continue to make payments under this Agreement. In the event the Oregon Legislative Assembly fails to appropriate sufficient appropriations, limitations, allotments, or other expenditure authority to the Agency, ODE may terminate the SOC without penalty or liability to ODE.

4.4.3 Debt Limitations. Nothing in this Agreement may be construed to permit any violation of Article XI, Section 7 of the Oregon Constitution or any other law regulating liabilities or monetary obligations of the State of Oregon.

4.5 Responsibility of Contractor. Contractor is responsible for the professional quality (and technical accuracy, when applicable) of all Services. The rights and remedies of ODE provided for under the SOC are in addition to any other rights and remedies provided by law. If Contractor is comprised of more than one legal entity (for example, a joint-venture or partnership), each entity is jointly and severally liable under the SOC.

4.6 Service Order Contract Termination.

4.6.1 Termination by Mutual Consent. Contractor and ODE may terminate a SOC at any time, in whole or in part, by mutual written consent.

4.6.2 Contractor’s Right to Terminate for Cause. Contractor may terminate a

SOC by giving written notice to ODE if ODE fails to pay Contractor pursuant to the terms of the SOC and fails to cure within 14 Calendar Days after receipt of Contractor’s written notice, or such longer period of cure as Contractor may specify in such notice. Contractor may terminate a SOC, for reasons other than nonpayment, if ODE commits any material breach or default of any covenant, warranty, obligation or agreement under the SOC, fails to perform under the SOC within the times specified, or so fails to perform as to endanger Contractor’s performance under the SOC, and such breach, default or failure is not cured within 30 Calendar Days after Contractor’s notice to ODE, or such longer period as Contractor may specify in such notice.

4.7 Remedies.

4.7.1 In the event of termination pursuant to Section 4.6, Contractor’s sole remedy (except as otherwise required by applicable state or federal law) shall be a claim for the sum designated for performing the Services multiplied by the percentage of Services completed and accepted by ODE (with acceptance by ODE not to be unreasonably withheld) not to exceed any maximum not to exceed amount for any of the Services, less previous amounts paid and any claim(s) which ODE has against Contractor, except in the event of a termination under Section 4.6.2, where no payment will be due and payable for Services performed and goods provided or costs incurred after the last day of the current biennium, consistent with Section 4.4.

If previous amounts paid to Contractor exceed the amount due to Contractor under this subsection, Contractor shall pay all excess to the Funding Agency upon demand.

4.7.2 In the event of termination pursuant to Section 3.17, ODE shall have any remedy available to it in law or equity. If it is determined for any reason that Contractor was not in default under Section 3.17, the rights and obligations of the Parties shall be the same as if the SOC was terminated pursuant to Section 3.17.

4.8 Contractor’s Tender upon Termination/Retained Remedies of the Funding Agency. Upon receiving a notice of termination of the SOC, Contractor shall immediately cease all activities under the SOC, unless ODE expressly directs otherwise in such notice of termination. Upon termination of the SOC, Contractor shall deliver to ODE all documents, information, works-in-progress and other property that are or would be Deliverables had the SOC been completed. Upon ODE’s request, Contractor shall surrender to anyone ODE designates, all documents, information, research, works-in-progress, Work Product and other property, that are Deliverables or would be Deliverables had the SOC been completed, that are in Contractor’s possession or control and may be needed by ODE to complete the Work.

4.9 Requirements for all Service Order Contracts. Unless otherwise noted in a particular SOC, the standard specifications identified in the Attachments to Exhibit A, will apply.

4.10 Key Persons. Where noted, Contractor acknowledges and agrees that a significant reason ODE selected Contractor and is entering into a SOC is because of the special qualifications of its key personnel (“Key Persons”). Under the SOC, ODE is engaging the expertise, experience, judgment and personal attention of the Key Person. Neither Contractor nor the Key Person shall delegate performance of the Services such Key Person is required to provide under the SOC to any other employee or agent of Contractor unless ODE provides prior written consent to such delegation. Contractor shall not delegate, reassign, transfer or replace the Key Person to other duties or positions such that the Key Person is no longer available to provide ODE with the Key Person’s Services unless ODE provides prior written consent to such delegation, reassignment, transfer or replacement.

In the event Contractor requests ODE to consent to a delegation, reassignment, transfer or other replacement of the Key Person, ODE may interview and review the qualifications of the proposed substitute personnel before providing its consent or rejecting such replacement. Any such replacement must have substantially equivalent or better qualifications than the Key Person being replaced. Any replacement personnel approved by ODE will thereafter be deemed a Key Person for purposes of the SOC.

CONTRACTOR, BY EXECUTION OF THIS AGREEMENT, HEREBY ACKNOWLEDGES THAT

CONTRACTOR HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE

BOUND BY ITS TERMS AND CONDITIONS.

CONTRACTOR Oregon Department of Education

By:

By:

Signed Signed

Title:

Title:

Date:

Date:

EXHIBIT A

Scope of Work

To be negotiated with successful Proposer.

From time to time, ODE may request Services as described below through issuance of a Service Order Contract substantially in the form attached hereto as Exhibit A.

1. Domain One: Monitoring Support (Programmatic and Fiscal)

Contractors shall assist the Agency in conducting monitoring and oversight activities to ensure subrecipient compliance with applicable programmatic and fiscal requirements, including ESEA requirements and related federal and state rules and federal grants management requirements (including UGG and applicable EDGAR provisions). Domain 1 includes both programmatic monitoring and fiscal monitoring support, including risk assessment, desk and onsite reviews, internal controls and allowability analyses, development and resolution of findings, corrective action planning, and tracking of resolution timelines.

Monitoring activities Contractor may be asked to support include, but are not limited to:

a) Application review: review applications and amendments for competition awards, programmatic completeness, alignment with allowable uses and purpose of the respective Title program, as well as compliance with statutory requirements (including, but not limited to, consultation, set-asides, and school improvement requirements), or any combination thereof.

b) Risk assessment support: assist with collecting data for, administering, analyzing, and refining annual risk assessment processes, tools, and matrices.

c) Desk and onsite monitoring: review of documentation (e.g., programmatic evidence, budgets, claims, time-and-effort records, procurement documentation, equipment/property records, expenditure reports) against Agency monitoring tools; participation in interviews and visits as needed; preparation of draft monitoring summaries and findings.

d) Focused fiscal monitoring: conduct deeper reviews for higher-risk subrecipients, including internal controls, expenditure documents, and allowability analyses.

e) Findings and CAP development: develop findings of noncompliance, required corrective action plans (CAPs), and support tracking resolution timelines.

f) Equitable Services monitoring: review consultation documentation, affirmations, and equitable share calculations to ensure compliance with applicable ESEA requirements.

g) McKinney-Vento and Foster Care monitoring: targeted review of district policies and practices supporting these student groups.

Disproportionate impact compliance analysis: Analyze monitoring evidence using disaggregated data and inquiry designed to identify patterns of noncompliance or implementation barriers that may disproportionately affect student groups protected under federal civil rights laws, and summarize those patterns for Agency use in monitoring, TA planning, and corrective action support. Consider whether fiscal policies and practices may contribute to uneven resource distribution across schools or student groups and elevate patterns of concern to the Agency for consideration in findings, corrective action planning, or targeted technical assistance when appropriate.

2. Domain Two: Technical Assistance and Professional Learning for Continuous Improvement

Contractor shall provide technical assistance and professional learning that strengthens subrecipient capacity to implement federal programs effectively and sustain operational excellence through continuous improvement.

TA may be universal, targeted, or intensive, depending on subrecipient needs and Agency direction.

a) Universal TA and information dissemination: develop and deliver webinars and meetings, written guidance, FAQs, and training materials on programmatic and fiscal requirements.

b) Targeted TA to monitored subrecipients: provide individualized support during and after monitoring to address identified concerns and strengthen systems.

c) Intensive TA for high-need subrecipients: sustained engagement, coaching, and planning support to address patterns of concern.

d) Professional learning design and facilitation: design and facilitate meetings, convenings, workshops, and communities of practice for federal program staff.

e) School improvement and evidence-based practice support: provide resources and coaching aligned with evidence-based requirements, including the four tiers of evidence in ESEA § 8101(21), and support improvement cycles that strengthen implementation and outcomes.

f) Disproportionate impact TA and professional learning: Design and deliver TA and professional learning using culturally responsive practices and approaches that promote supportive, inclusive learning environments, with explicit attention to identifying and removing systemic barriers experienced by historically underserved students and communities.

3. Domain Three: Allocation Review and Support

Contractors shall provide support to the agency in their review of allocation practices, definitions of eligibility, and methodologies. This may include but is not limited to the following:

a) Conduct a review and comparison of state policies and practices with federal rules governing eligibility of subrecipients.

b) Make recommendations to agency leaders about what changes, if any, need to be made to mitigate risk and if necessary, develop a corrective action plan to support payment and reallocation of funds.

c) Conduct a review of allocation workbooks to ensure that workbooks are calculated effectively.

4. Domain Four: Specialized and Emerging Needs (Flexible Task Orders;

Available After Award)

This domain allows the Agency to issue SOCs for specialized work not included in other domains. Work under this domain will include the following but is not limited to:

a) Emerging legal requirements,

b) Federal Monitoring follow-up,

c) Policy development,

d) Data systems support,

e) Other time-limited initiatives.

EXHIBIT B

Insurance Requirements

Contractor shall obtain at Contractor’s expense the insurance specified in this Exhibit B prior to performing under this Contract and shall maintain it in full force and at its own expense throughout the duration of this Contract, as required by any extended reporting period or continuous claims made coverage requirements, and all warranty periods that apply.

Contractor shall obtain the following insurance from insurance companies or entities that are authorized to transact the business of insurance and issue coverage in the State of Oregon and that are acceptable to Agency. Coverage shall be primary and non-contributory with any other insurance and self-insurance, with the exception of Professional Liability and Workers’ Compensation. Contractor shall pay for all deductibles, self-insured retention and self-insurance, if any.

WORKERS’ COMPENSATION & EMPLOYERS’ LIABILITY

All employers, including Contractor, that employ subject workers, as defined in ORS 656.027, shall comply with ORS 656.017 and provide workers' compensation insurance coverage for those workers, unless they meet the requirement for an exemption under ORS 656.126(2).

Contractor shall require and ensure that each of its subcontractors complies with these requirements. If Contractor is a subject employer, as defined in ORS 656.023, Contractor shall also obtain employers' liability insurance coverage with limits not less than $500,000 each accident. If Contractor is an employer subject to any other state’s workers’ compensation law, Contactor shall provide workers’ compensation insurance coverage for its employees as required by applicable workers’ compensation laws including employers’ liability insurance coverage with limits not less than $500,000 and shall require and ensure that each of its out-of-state subcontractors complies with these requirements.

COMMERCIAL GENERAL LIABILITY:

Required Commercial General Liability Insurance covering bodily injury and property damage in a form and with coverage that are satisfactory to the State. This insurance shall include personal and advertising injury liability, products and completed operations, contractual liability coverage for the indemnity provided under this contract, and have no limitation of…