AttachmentA_SamplePriceAgreementFinal~1.docx

Contract Number:

Contractor Name:

SAMPLE PROFESSIONAL SERVICES PRICE AGREEMENT

SPECIAL EDUCATION INDIVIDUALIZED EDUCATION PROGRAM (“IEP”) COMPLAINT RESOLUTION SERVICES

This professional services price agreement (“Agreement”) is between the State of Oregon (the “State”) acting by and through its Department of Administrative Services, Procurement Services (“DAS PS”) on behalf of 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 Service Order Contract under this Agreement (“SOC”), for Complaint Resolution Services (“Services”). Services shall include the following:

Complaint Resolution Services Interviewing parents, students, staff and others about the complaint. These will at times need to be in-person.

Writing correspondence to school districts, parents or others.

Consulting with employees of Agency.

Reviewing student records and other documents.

Organizing the record evidence from an investigation.

Preparing and delivering a Request for Response and draft order with findings of fact supported by the evidence, conclusions, a discussion of the conclusions, and corrective action when appropriate.

A detailed description of the required tasks and deliverables 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 master 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.

Individualized Education Program (“IEP”) Meeting Facilitation means a non-adversarial dispute prevention and resolution service in which a neutral third-party guides participants through a facilitated IEP meeting process, to assist IEP team members in developing a mutually agreeable IEP that meets the needs of the student and preserves the relationship between the parent and the school district so that formal dispute resolution options are not necessary.

Key Personnel means any Contractor Personnel identified as key personnel in this Agreement or any Service Order 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 document through which ODE and Contractor will enter into a contract 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 XXXX 2023, or 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 XXXX 20XX (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 (2) years beyond the final term of the Agreement.

2.4 Compensation. Agency shall compensate Contractor at a rate of $150.00 per hour for Services provided under a SOC, subject to the terms and conditions of this Master Agreement and the SOC. There is no guarantee that any specific amount of Services or overall dollar amounts will be assigned via SOC 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 (the Scope of Services), Exhibit B (Required Insurance), and Exhibit C (Service Order Contract Template).

2.5 Amendments.

2.5.1 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.

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

2.6 Service Order Contract Requirements.

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

2.6.2 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.

2.6.3 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.

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 publication1779, 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 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, ODE 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, 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.

3.8.3 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 information of any form obtained by Contractor or its employees or agents in the performance of this Agreement is deemed “Confidential Information” of the Agency. 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 in the provision of Services; Contractor agrees to advise each of its employees and agents of their obligations to keep such information confidential.

(c) Oregon Consumer Information Protection Act. Contractor shall comply with the Oregon Consumer Information Protection Act (OCIPA), ORS 646A.600 through 606A.628, to the extent applicable to this Agreement. All “Personal Information”, as that is defined in OCIPA is Confidential Information under this Agreement.

(d) Family Educational Rights and Privacy Act (FERPA). In the course of providing services under this Agreement, Contractor may have access to student education records that are subject to the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, et seq., and may also have access to Early Intervention and Early Childhood Special Education records that are subject to Individuals with Disabilities Education Act (IDEA) 20 U.S.C 1400 et seq and the regulations promulgated under each Act. Such information is considered confidential (and is Confidential Information under this Agreement) and is therefore protected. To the extent that Contractor has access to “education records” under this Contract, it is deemed a “school official,” as each of these terms are defined under FERPA. Vendor agrees that it shall not use education records for any purpose other than in the performance of this Contract. Except as required by law, Contractor shall not disclose or share education records or Early Intervention Records with any third party unless permitted by the terms of this Contract or to subcontractors who have agreed to maintain the confidentiality of the education records to the same extent required of Contractor under this Contract.

(e) Breach Notification. In the event Contractor or its subcontractors or agents discover or are notified of an incident or a breach of Confidential Information, including a failure to comply with Contractor’s confidentiality obligations under this Contract, Contractor shall notify the State’s Contract Administrator (or delegate) immediately, and in no event more than 24 hours following discovery or notification of the incident or breach. If the State determines that an incident or breach requires notification of Agency clients, or other notification required by law, the State will have sole control over the notification content, timing, and method, subject to Contractor’s obligations under applicable law.

(f) Requests for Agency Confidential Information. In the event Contractor receives a third-party request for Agency Confidential Information, including any electronic discovery, litigation hold, or discovery searches, Contractor shall first give Agency notice and provide such information as may be reasonably necessary to enable Agency to protect its interests.

(g) Background Check. Contractor may be required to, if deemed necessary by the Agency, to submit and pass a background check. If a background check is required, Agency will provide the details in their SOC.

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 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. Contractor shall secure on Agency’s behalf a license to Third Party Intellectual Property provided to Agency by Contractor pursuant to the Services necessary for Agency to use the Deliverables.

3.13 Agency Intellectual Property. Agency owns all Agency Intellectual Property 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 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 DOJ 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 3.18.1; 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.

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;

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 2.4, 3.1, 3.2, 3.6, 3.8, 3.9, 3.10, 3.13, 3.15, 3.16, 3.18, 3.19, 3.20, 3.22, 3.26, 3.28, 3.29, 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.

Name:

Title:

Address:

Phone:

Fax:

Email:

Name:

Title:

Address

Phone:

Fax:

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. Any claim, action, suit or proceeding (collectively, “Claim”) between ODE (or any other agency or department of the State) and Contractor that arises from or relates to this Agreement must be brought and conducted solely and exclusively within the Circuit Court of the State of Oregon for Marion County. ODE and Contractor hereby consent to the exclusive jurisdiction of such court, waive any objection to venue, and waive any claim that such forum is an inconvenient forum.

3.28.3 Federal Forum. Notwithstanding Section 3.28.2, if a claim must be brought in a federal forum, then it must be brought and adjudicated solely and exclusively within the United States District Court for the District of Oregon. This section applies to a claim brought against the State of Oregon only to the extent Congress has appropriately abrogated the State of Oregon’s sovereign immunity and is not consent by the State of Oregon to be sued in federal court. This section is also not a waiver by the State of Oregon of any form of immunity, including but not limited to sovereign immunity and immunity based on the Eleventh Amendment to the Constitution of the United States.

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 DOJ TO ENFORCE ANY PROVISION OF THIS AGREEMENT DOES NOT CONSTITUTE A WAIVER BY DOJ 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.

(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.

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:

· Master Contract Number

· Service Order Number

· Agency’s Contract Number

· Invoice Date

· Invoice Period

· Project Contact

· Invoice Amount

· Description of the Services performed in accordance with Section 1.1 of the Price Agreement to include the number of hours to complete the Services.

· Itemized expenses

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 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 Funding Agency for payment for Services. The Funding 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 Funding Agency’s payment of amounts under the SOC is contingent on the Funding Agency receiving appropriations, limitations, allotments or other expenditure authority sufficient to allow the Funding 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 Funding 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 3.20.2, 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 3.20.2, the rights and obligations of the Parties shall be the same as if the SOC was terminated pursuant to Section 3.20.1.

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, and shall complete all Transition Responsibilities in Section 3.20.6, 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.

4.9.1 Unless otherwise noted in a particular SOC, the standard specifications identified in the Attachments to Exhibit A, will apply.

4.9 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.

4.10 SOC SELECTION PROCESS

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

4.10.2 This Master 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.

4.10.3 In the event multiple Master Agreements are awarded, Agency shall use the following selection method to determine the contractor to whom to issue a SOC for Services:

4.10.3.1 Agency will issue an electronic notice (the “Notice”) to all contractors holding a Master Agreement for the Services for the category of services required by Agency. The Notice shall include, at a minimum, the following:

· A description of the school district, any legal representation involved, main issues, and any other pertinent information.

· Contractor response and submission requirements.

· Contractor evaluation and award or selection process.

4.10.3.2 Contractors shall submit responses to Agency within 12 hours of the Notice issuance or as otherwise set out in the Notice.

· If 2 or more contractors respond to the same Notice, Agency will use a rotational process to determine the awarded contractor, unless there is a conflict - for example, if one of the responding contractors previously was employed by an attorney that is now involved in the case. If Contractor does have a conflict, the Contractor will not be chosen for that particular SOC.

· Of the Contractors who respond to the Notice, Agency will take the following into consideration:

· How recently a Contractor has provided the Services.

· Who may have availability pertaining to any special details with the request (for example, a time constraint or special knowledge set).

While this is generally how facilitator selection works, there are occasions where both parties jointly request a particular contractor in its initial request for a facilitated IEP meeting. When this happens, the Agency tries to honor the request.

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

ODE

By:

By:

Signed

Signed

Title:

Title:

Date:

Date:

DAS PROCUREMENT SERVICES

APPROVED BY THE DEPARTMENT OF JUSTICE

By:

By:

Signed

Signed

Title:

Title:

Date:

Date:

EXHIBIT A

Scope of Services

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 C.

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:

|X| 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 coverage to designated premises, project or operation. Coverage shall be written on an occurrence basis in an amount of not less than $1,000,000.00 per occurrence. Annual aggregate limit shall not be less than $2,000,000.00.

AUTOMOBILE LIABILITY INSURANCE:

|X| Required |_| Not required Automobile Liability Insurance covering Contractor’s business use including coverage for all owned, non-owned, or hired vehicles with a combined single limit of not less than $1,000,000.00 for bodily injury and property damage. This coverage may be written in combination with the Commercial General Liability Insurance (with separate limits for Commercial General Liability and Automobile Liability). Use of personal automobile liability insurance coverage may be acceptable if evidence that the policy includes a business use endorsement is provided.

PROFESSIONAL LIABILITY:

|X| Required |_| Not required Professional Liability insurance covering any damages caused by an error, omission or any negligent acts related to the services to be provided under this Contract by the Contractor and Contractor’s subcontractors, agents, officers or employees in an amount not less than $1,000,000.00 per claim. Annual aggregate limit shall not be less than $2,000,000.00. If coverage is on a claims made basis, then either an extended reporting period of not less than 24 months shall be included in the Professional Liability insurance coverage, or the Contractor shall provide Continuous Claims Made Coverage as stated below.

EXCESS/UMBRELLA INSURANCE:

A combination of primary and excess/umbrella insurance may be used to meet the required limits of insurance.

ADDITIONAL INSURED:

All liability insurance, except for Workers’ Compensation, Professional Liability, and Network Security and Privacy Liability (if applicable), required under this Contract must include an additional insured endorsement specifying the State of Oregon, its officers, employees and agents as Additional Insureds, including additional insured status with respect to liability arising out of ongoing operations and completed operations, but only with respect to Contractor's activities to be performed under this Contract. Coverage shall be primary and non-contributory with any other insurance and self-insurance. The Additional Insured endorsement with respect to liability arising out of your ongoing operations must be on ISO Form CG 20 10 07 04 or equivalent and the Additional Insured endorsement with respect to completed operations must be on ISO form CG 20 37 07 04 or equivalent.

WAIVER OF SUBROGATION:

Contractor shall waive rights of subrogation which Contractor or any insurer of Contractor may acquire against the Agency or State of Oregon by virtue of the payment of any loss.