CENTRAL MEDIATION CENTER 47107 APPENDIX B.pdf

Appendix B: Contract for Services Revision date: April 2026 Page 1 of 1

NEBRASKA DEPARTMENT OF EDUCATION

CONTRACT

This Contract is made by and between the Nebraska Department of Education, hereinafter called “NDE”, and

Central Mediation Center (Name of Contractor) Doing Business As [if using a business or other name]

514501 , hereinafter called “Contractor”; collectively “the Parties”.

Address Book Number (ABN)

The Contractor and NDE agree as follows:

1. Contract Term:

This Contract is in effect from 10/1/2026 or the date signed by both Parties, whichever is later, through 9/30/2027 unless otherwise terminated as provided herein.

2. Scope of Services by Contractor:

a. The Contractor is to perform the following specific activities, deliverables or other services under this Contract:

i. Mediation Services

a. Mediation Definition: Mediation is defined as both parties at the table with a mediator working towards agreement of issues to mediated/resolved. Mediation can be billed at $150 per hour.

Any pre and post mediation work including but not limited to individual planning, phone calls, emailing parties, documentation time, or anything else required or necessary in order complete the above defined Mediation is to be billed at $35 per hour. This mediation covers only infants, toddlers, children and students birth to 21 who have or a suspected of having a disability as defined in 92 NAC 52 and 92 NAC 51.

b. Provide Case Management for any dispute about special education services which will include the following: (1) mediation services provided by the Contractor, a center approved by the Office of Dispute Resolution (ODR), which includes referral, intake, contacting interested parties, arranging mediation sites and meetings, actual mediation sessions and caucuses; preparing agreements and other documents; data collection; follow up services; and, evaluation by all parties to include distribution of surveys provided by NDE for all mediators and session participants; (2) any additional time and effort for opened cases that do not get scheduled for mediation (persuading parties to come to the table after referral & intake, providing information about mediation to the parties and encouragement and support for decision to mediate); and

(3) reporting all such activities to NDE, ODR, and the Nebraska Mediation Association (NMA).

i. The mediation process is voluntary for both the parents and the school.

ii. Mediation may not be used to deny or delay a parent’s right to a due process hearing, filing of a state complaint, or any other parent right.

iii. The Contractor must make mediation available to resolve disputes relating to special education, which may include issues such as: identification, evaluation, placement, and provision of a free appropriate public education to the child.

1. As provided in 34 C.F.R. § 300.140(b), a parent who has enrolled his or her child in a nonpublic school has the right to use mediation regarding identification and evaluation. Mediation is not available regarding the provision of services to any particular parentally-placed private school child with disabilities whom an LEA has agreed to serve because there is no individual right to services for such children under the IDEA.

iv. The Contractor must document all the following items:

1. Agreement to Mediate: This documentation must indicate that both parties: (a) understand that mediation is voluntary; (b) agree to enter mediation; (c) agree to

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Revision date: April 2026 Page 2 of 1 abide by the procedures and guidelines for special education mediations; (d) agree that the mediator will not make decisions regarding the disputed issues; and

(e) understand that agreements must be in writing and are legally binding and enforceable in a state or federal court. Each party must sign this documentation indicating their agreement. The documentation signed by the representative of the public agency must indicate that the representative has decision-making authority for the public agency.

2. Confidentiality Notice: This documentation must indicate that both parties have been notified of the following: (a) discussions during mediation are confidential;

(b) they may not call the mediator or anyone associated with the mediator as a witness in any judicial, administrative, or arbitration proceeding regarding the mediated dispute; (c) they may not subpoena or demand the production of any records, notes, work product, or other written information of the mediator.

3. Prepare, for the parties who have resolved their complaints, a written document that will serve as a legally binding agreement that sets forth the resolution reached and that:

a. Includes the resolution of each issue for which agreement was reached;

b. States that all discussions that occurred during the mediation process shall be confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding;

c. Is signed by both the parent and a representative of the agency who has the authority to bind such agency indicating that the agreement is legally binding on them or the agency they represent; and

d. Is enforceable in any State court of competent jurisdiction or in a district court of the United States.

v. Mediation is conducted by a qualified, impartial mediator who is trained in effective mediation techniques and knowledgeable in statutes and regulations relating to the provision of special education and related services. NDE employees may not serve as a mediator for special education disputes in Nebraska. Additionally, employees of the school district or approved cooperative that is involved in the education of the child or staff of an agency involved in the care of or providing direct services to the child who is the subject of the mediation process may not serve as a special education mediator.

Others who have a real or perceived conflict of interest may also not serve as special education mediators.

vi. Each approved mediation center maintains a list of qualified mediators and appoints the special education mediator.

vii. NDE is responsible for the costs of mediation. The Contractor may not charge any part of mediation to the parties.

c. Prepare summary reports of data, including analysis of special education mediation components, for the NDE, ODR and NMA; The reports of summary data for NDE must include the number of requests for special education mediation, the number of actual mediations held, and the number of mediations that resulted in either full agreement, partial agreement, or no agreement;

d. Conduct periodic review and evaluation of this contract, including all mediators conducting special education mediation and mediation outcomes associated with this contract and share results with NDE;

e. Coordinate, as needed, with NDE staff regarding the appropriate application of the mediation option as relates to existing NDE complaint or due process procedures.

f. Maintain current list of special education qualified mediators.

ii. Outreach/Training

a. Provide outreach and training services to promote the Special Education Mediation Option.

Statewide or local outreach/training may be provided to any of the potential stakeholders involved with Special Education disputes, including: school administrators, classroom teachers, parents and parent organizations, ESU’s and other related service providers. At least two (2) outreach activities should be conducted by each Mediation Center per contract year. New and ongoing special education mediator training will be provided by the Contractor as needed and determined by the parties to this contract.

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b. Subcontractor(s) may be used.

c. All outreach and training services require prior approval by NDE including approval of subcontractor(s). Email approval is acceptable.

iii. Conduct all mediation activities in accordance with the Individuals with Disabilities Education Act (20

U.S.C. 1415) (IDEA 2004) including the confidentiality provisions of that section as well as the Family Educational Rights and Privacy Act (FERPA, 34 CFR Part 99) and NDE Rule 51, section 009.02, and NDE Rule 52, section 009.05.

b. The specific date(s) and time(s) of activities/services are:

10/1/2026 through 9/30/2027 per a timeline as agreed between NDE and Contractor. Any additional timeline changes may be made as needed subject to agreement of the Parties by written contract amendment.

Mediation must be provided as soon as reasonably possible, following a request. Specific dates and times of Outreach/Training are to be determined by the Contractor.

c. The specific location(s) where activities/services are to be performed are:

Mediation must be provided at a location that is convenient for both parties in the dispute. A neutral location is preferred. Specific locations of Outreach/Training are to be determined by the contractor.

d. The Contractor supplies the following resources required to carry out and fulfil the requirements under this scope of services (state “Nothing” if not applicable):

All required materials, labor and other resources required to successfully complete the requirements as defined within the scope of services of this Contract.

e. The Contractor is to pay the following expenses or compensation to the following third-party individuals or entities (state “None” if not applicable):

None.

f. Miscellaneous terms are (state "None" if not applicable):

i. Compliance with the Family Education Rights & Privacy Act (FERPA):

Contractor understands that it may receive, be provided with and/or have access to information provided by NDE that is or may be considered personally identifiable information from students’ education records (“PII”) in the course of performing its duties under the Contract.

NDE represents and warrants that is has the authority and all the rights necessary to disclose PII and may disclose PII to Contractor under the provisions of FERPA at 34 C.F.R. 99.31(a)(1)(i)(B) regarding disclosures to contractors, and Contractor is hereby authorized to receive and use PII from NDE’s Nebraska school districts that has been determined as necessary for the performance of the Contract. The laws and regulations of the Family Education Rights & Privacy Act (FERPA) (20 USC 1232g; 34 C.F.R. Part 99), and, when applicable, the Individuals with Disabilities in Education Act (IDEA) (20 U.S.C. §§1400 et seq., 34 C.F.R. 300 et seq.)prohibit re-release of this information by Contractor unless authorized under those laws.

In accordance with this law and these regulations, Contractor agrees to keep this PII confidential, to keep PII secure at all times, to not allow any of its employees, officers or agents to access this information unless it is necessary and appropriate to accomplish the duties provided for in the Contract, and to return PII as directed by NDE. Any records that contain PII that come into the possession of Contractor are to be destroyed when no longer needed for the purposes of carrying out the Contract with NDE. Contractor understands that in the event it fails to comply with this Contract, NDE may terminate any existing Contract(s) with contractor immediately and that such failure shall be considered a breach of any such existing Contract.

ii. Other Terms:

Mediation definition: Mediation is defined as both parties at the table with a mediator working towards agreement of issues to mediated/resolved.

See attachments I, II, and III which are incorporated into this contract.

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3. Consideration:

NDE agrees to pay Contractor up to $2500 for the services provided under this Contract as described in Section 2 (not including FICA or Workers’ Compensation contributions, when applicable) plus expenses of up to $500 as stated in 3c.

a. Funding

Source of Funds Amount Percentage Source Name/Grant Name and Number

Services:

Federal Case-Dependent IDEA Part B Funds Federal Case-Dependent IDEA Part C Funds

Expenses:

Federal 50% IDEA Part B Funds Federal 50% IDEA Part C Funds

b. The method, budget, invoicing, schedule, and supporting documentation shall be as follows:

i. Method of Consideration:

Deliverables Received

Rate/Fee Based

Actual Cost / Allowable Expenditures Incurred

Other:

ii. Budget:

The final budget outlined below is made part of this Contract. The Contractor agrees to stay within the budgeted consideration. Any change requires a Contract amendment.

Mediation definition: Mediation is defined as both parties at the table with a mediator working towards agreement of issues to mediated/resolved.

See also attachments I, II, and III which are incorporated into this contract.

Case Management

Mediation can be billed at $150 per hour. Any pre and post mediation work including but not limited to individual planning, phone calls, emailing parties, documentation time, or anything else required or necessary in order complete the above defined Mediation is to be billed at $35 per hour.

i. A fee of $150 per hour of mediation will be paid to Contractor upon submittal of billing statements. Payment will be made for actual hours of mediation; hourly rate is based upon two mediators per session.

i. Opened cases that do not get scheduled for mediation as well as case management

ACCOUNT CODE

IF APPLICABLE

AMOUNT

DATE TO

ISSUE PO

SUBLEDGER

BUSINESS UNIT OBJECT CODE SUBSIDIARY # TP

13888864.541500

$2,500.00 13884964.541500

13888864.574600 $250.00

13884964.574600 $250.00

Revision date: April 2026 Page 5 of 1 duties outlined in section 2a of this contract, will be paid at $35 per hour for intake and scheduling services incurred on those cases. Case management duties may be billed for up to 10 hours. More than 10 hours may be billed with prior written approval by NDE. The Contractor is responsible for requesting, obtaining, and attaching to the billing request the prior written approval for an excess of 10 hours.

ii. Billing for Mediation Services form (Attachment III) will be used for requesting payment for any activities listed under Scope of Services, Section A.

Outreach and Training

iii. Billing for Outreach & Training Services form (Attachment II) will be used to request payment for any activities described under Scope of Services.

iv. Outreach and training will be billed according to the type of outreach or training, the level of training, and/or number of participants as set forth under Mediation Outreach and Training Fee Schedule (Attachment I).

iii. Contractor Indirect Cost Rate

Not Applicable (no indirect costs budgeted under section 3(a)(ii)

The Contractor has an Indirect Cost Rate Agreement approved by the Federal Government:

The period covered by the agreement is from Enter start date to Enter end date.

The approving Federal agency is Enter Federal Agency.

The Indirect Cost Rate is Insert percentage.

The Contractor is not a State, local government, or Indian tribe, and is using the de minimus rate of 15% of modified total direct costs (MTDC) in compliance with 2 CFR 200.414(f).

iv. Invoicing:

Invoices for payments must be submitted by the Contractor to Nicole Leafty at nicole.leafty@nebraska.gov requesting the services with sufficiently detailed supporting documentation required to issue payment. Expenditures which occur before or extend beyond the term of this Contract are prohibited. The terms and conditions included in the Contractor’s invoice shall be deemed to be solely for the convenience of the Parties. No terms or conditions of any such invoice shall be binding upon NDE, and no action by NDE, including without limitation the payment of any such invoice in whole or in part, shall be construed as binding or estopping NDE with respect to any such term or condition, unless the invoice term or condition has been previously agreed to by NDE as an amendment to the Contract.

v. Invoicing Schedule:

Invoicing must be submitted per the schedule below. The Contractor shall have thirty (30) days from the end date of the Contract to submit a final invoice for expenditures, marked as “FINAL”, which shall include all outstanding amounts which are payable to Contractor as of the end date of the Contract.

Invoices must be submitted within a reasonable timeframe.

vi. General Administrative Expenses

General Administration Expenses shall mean those expenses related to overall administration, including (but not limited to) salaries, wages, employer’s share of social security and Medicare taxes, workers’ compensation, unemployment insurance, and employer-provided health, dental, or vision insurance premiums of contractor staff or others engaged in management, implementation, sourcing, monitoring, evaluating and reporting.

The following limits apply to reimbursements for General Administrative Expenses: wages, per employee, shall be limited to a 40-hour work week; the employer’s share of social security taxes and Medicare taxes on wages shall be limited to 7.65% of gross wages; the employer’s share of employer-provided health, dental, or vision insurance premiums, which shall not exceed the

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vii. Required Supporting Documentation to Accompany Invoicing

The following documentation shall be required [where applicable]:

a) Deliverables Received Report: All invoices must be accompanied by a “Documentation of Results of Mediation” report that has been signed by all parties. Invoices will be considered invalid without one.

b) Personnel Expenses: submit a copy of the paycheck stub or payroll record showing hourly rate and hours worked, date and location. Submit a copy of Federal Form 941 if requesting reimbursement of the employer’s share of social security and Medicare taxes or other proof of taxes paid.

c) Supply and Operating Expenses: submit a copy of the detailed invoice or receipt.

d) Travel Expense: submit a copy of the detailed, itemized receipt for food, hotel, and public transportation expenses. Submit a log for mileage reimbursement of business miles and purpose for the travel.

e) Contractual Expenses: submit a copy of the detailed invoice and image of the cancelled check or proof of payment.

f) Personal Property Expenses: submit a copy of the detailed invoice (listing make, model, and serial number of item) and image of the cancelled check or proof of payment.

g) Telephone/Internet: submit a copy of the detailed bill; landline telephone, cell phone services, and internet are reimbursable only if the service contract is billed to the Contractor.

viii. Reimbursement Rate Same-day meals and lodging expenses are not permitted for reimbursement. Travel must be at least two days (overnight) and the destination at least 60 miles from the workplace to be eligible for reimbursement. Reimbursement for meals and lodging for overnight travel will be reimbursed at the actual cost of said expenses except that this reimbursement shall be capped at the Federal rate per meal for food and per day for lodging. Alcohol reimbursement is prohibited.

Mileage may be reimbursed for both same-day and overnight travel at the current standard IRS mileage rate. Travel logs are required, which include the following information: starting point and destination, number of miles driven, and purpose of the trip.

Automobile rentals, airfares, and taxi/shuttle transportation will be reimbursed at the actual reasonable cost. A bank card receipt that displays only the total cost of the transportation expense is not sufficient documentation.

ix. Unauthorized Expenses Contractor will not be reimbursed for unauthorized expenditures, including, but not limited to:

a) Recognition expenses such as prizes, plaques, awards, certificates, or trophies.

b) Late fees on invoices.

NDE shall reserve the right to withhold payment, in full or in part, until said deliverable(s) have been reviewed and accepted by NDE as adequately completed under the agreed scope of services of this Contract. NDE shall have forty-five (45) calendar days to pay after a valid and accurate invoice has been received and accepted by NDE.

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c. The Contractor is to be paid the following expenses at the rates specified and not to exceed the total amount stated below (state "Not Applicable" if appropriate): Any expenses that NDE will pay through direct billing must be identified separately.

Note: Although payments for direct-billed expenses are not made directly to the contractor, the amount is to be included in the total of expenses for NDE accounting purposes.

See the above section regarding language for mediation, outreach, and training fees.

4. Written Agreement:

a. Amendment:

This Contract may be modified only by written amendment, executed by both Parties. No alteration or variation of the terms and conditions of this Contract shall be valid unless made in writing and signed by the Parties.

b. Integration/Entire Agreement:

The documents listed below (“contract documents”) shall be deemed to form the Contract in its entirety with respect to the matters set forth herein, and shall be construed together in accordance with the provisions of this section:

i. Standard Addenda incorporated herein by Section 5 of this Contract;

ii. Miscellaneous terms contained within Section 2)f) of this Contract;

iii. Other clauses contained within this Contract text (including any Amendment(s) to the text executed in writing between the Parties);

iv. “Employee/Employer Addenda” incorporated herein by Section 6 of this Contract (if Employee/Employer Relationship is selected ONLY); and

v. Any attachments or other contract documents specifically incorporated by reference in the Contract text as if fully set forth therein.

Any prior or contemporaneous representations, promises, or statements by the Parties, which are not incorporated herein, shall not serve to vary, or contradict the terms set forth in this Contract.

c. Controlling Documents:

In the event of any discrepancy, conflict, inconsistency, ambiguity and/or uncertainty between the provisions contained in the contract documents, the order of precedence shall be in accordance with the contract documents listed in Section 4)b).

d. Severability:

Should any part, term or provision of this Contract be determined to be invalid, the remainder of this Contract shall not be affected, and the same shall continue in full force and effect.

e. Survival:

All provisions hereof that by their nature are to be performed or complied with following the expiration or termination of this Contract, shall survive the expiration or termination of this Contract.

5. Standard Addenda:

NDE and Contractor agree to comply with all contract terms contained in the attachment labeled "Standard Addenda to NDE Contract" (hereinafter” Standard Addenda”). The terms of the attached Standard Addenda are incorporated into this Contract as if fully set forth herein.

6. Employee/Independent Contractor status:

Contractor under this Contract shall be regarded as having the following status (select one only):

Employer/Employee Relationship (attach Employee/Employer Addenda to Contract ONLY if selected)

The following paragraph of this Contract is only applicable when ‘Employer/Employee Relationship’ is selected:

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NDE and Contractor agree to comply with all contract terms contained in the attachment labeled "Employee/Employer Addenda to NDE Contract" (hereinafter ”Employee/Employer Addenda”). The terms of the attached Employee/Employer Addenda are incorporated into this Contract as if fully set forth herein.

Independent Contractor

The following two paragraphs of this Contract are only applicable when ‘Independent Contractor’ is selected:

This Contract does not create an employer/employee relationship between the Contractor and NDE. It is the Parties' intention that the Contractor be an independent contractor and not an NDE employee for all purposes, including, but not limited to, the application of the Fair Labor Standards Act minimum wage and overtime payments, Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue code, any Nebraska revenue and taxation law, the state workers' compensation law, and the state unemployment insurance law.

The Contractor agrees it is a separate and independent enterprise from NDE, that it has a full opportunity to find other business, that it has made its own investment in its business, and that it shall utilize a high level of skill necessary to perform the work. This Contract is not to be construed as creating any joint employment relationship between the Contractor and NDE, and NDE will not be liable for any obligation incurred by the Contractor, including, but not limited to, unpaid minimum wages and/or overtime premiums.

7. Citizenship Attestation

(This section shall only apply to, and must be completed by, Individuals and Sole Proprietorships.

Contractor understands and agrees that lawful presence in the United States is required in order to contract with a state agency and the Contractor may be disqualified or the Contract terminated if such lawful presence cannot be verified as required by Neb. Rev. Stat. §4-108.

If the Contractor indicates on the below United States Citizenship Attestation Form that they are a qualified alien as defined under the federal Immigration and Nationality Act, the Contractor agrees to provide to NDE the US Citizenship and Immigration Services documentation required to verify the Contractor’s lawful presence in the United States using the Systematic Alien Verification for Entitlements (SAVE) Program. Receipt of this documentation is required for this Contract to be effective.

United States Citizenship Attestation Form For the purpose of complying with Neb. Rev. Stat. §§ 4-108 through 4-114, I attest as follows:

I am a citizen of the United States.

— OR —

____ I am a qualified alien under the federal Immigration and Nationality Act, my immigration status and alien number are as follows: , and I agree to provide a copy of my USCIS documentation upon request.

I hereby attest that my response and the information provided on this form and any related application for public benefits are true, complete, and accurate and I understand that this information may be used to verify my lawful presence in the United States.

(Note: The Contractor’s signature on this Contract also serves as the signature for the United States Citizenship Attestation Form, when applicable.)

8. Notices

Notices shall be in writing and shall be effective upon receipt by the receiving party. Any written notices issued

Revision date: April 2026 Page 9 of 1 by a party to this Contract shall be sent by U.S. Mail, postage prepaid, and/or via e-mail to the following addresses:

FOR CONTRACTOR:

Terrin Williams Executive Director

Central Mediation Center 412 W 48th Street Kearney, NE 68845 twilliams@centralmediationcenter.com

FOR NDE:

Jim Ageton IDEA Part B Specialist

Nebraska Department of Education 500 S 84th Street, 2nd Floor (physical address) PO Box 94987 (mailing address) Lincoln, NE 68509-4987 jim.ageton@nebraska.gov

Either party may change the individual to be notified under this section by notifying the other party in writing as outlined above.

9. Signatures of the Parties to this Contract:

This Contract is valid only when signed by both Contractor and NDE, including the Commissioner/Deputy Commissioner of NDE when required.

IN WITNESS WHEREOF, the undersigned hereby attests and affirms that they have lawful authority to sign this document on behalf of the Party, and by executing this Contract, they are binding the Party to the terms of this Contract.

FOR CONTRACTOR: FOR NDE:

Print Name of Contractor NDE Office Administrator Signature (And title if contractor is other than an individual)

Contractor Signature Date

Commissioner/Deputy Commissioner Signature (Required for all contracts $10,000 or more)

Date

The maximum amount of this Contract is $3000. This includes a contract amount for services provided under this Contract of $2500, a FICA contribution of $0, a Workers’ Compensation contribution of $0, and as stated in 3c, expenses of $500.

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STANDARD ADDENDA TO NDE CONTRACT

The following articles shall form the terms and conditions of this Standard Addenda:

I. Governing Law and Jurisdiction:

This Contract shall in all respects be governed by and construed in accordance with the laws of the State of Nebraska, without giving effect to the conflicts of laws provision thereof. Any legal proceedings against the state are to be brought in an appropriate State of Nebraska administrative or judicial forum and in accordance with Nebraska law.

II. Authority to Contract:

The Parties represent and warrant that they have full right, power and authority to enter into and perform their obligations under this Contract, and that the persons signing this Contract are duly authorized to enter into this Contract on their behalf.

III. Sovereign Immunity:

As a state agency of the State of Nebraska, NDE reserves all immunities, defenses, rights or actions arising out of the State’s sovereign status or under the Eleventh Amendment to the United States Constitution.

No waiver of the State’s immunities, defenses, rights, or actions shall be deemed to exist by reason of NDE’s entry into this Contract.

IV. Non-discrimination:

The Contractor shall comply fully with all applicable local, state and federal law regarding civil rights, including but not limited to, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq.; the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq.; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101 et seq.; the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq.;

the Age Discrimination Act of 1975, 42 U.S.C. §§ 6101 et seq.; the Nebraska Fair Employment Practice Act, Neb. Rev. Stat. §§ 48-1101 to 48-1125; the Nebraska Age Discrimination in Employment Act, Neb.

Rev. Stat. §§ 48-1001 to 48-1010; the Equal Pay Act of Nebraska, Neb. Rev. Stat. §§ 48-1219 to 48-1227.01;

the Nebraska Act Providing Equal Enjoyment of Public Accommodations, Neb. Rev. Stat. §§ 48-1219 to 48-1227.01 and 84-917; and the Nebraska Fair Housing Act, Neb. Rev. Stat. §§ 20-301 to 20-344, in that there shall be no discrimination against any employee who is employed in the performance of this Contract, or against any applicant for such employment, because of age, color, national origin, race, religion, creed, disability, or sex. This provision shall include, but not be limited to, employment, promotion, demotion, transfer, recruitment, layoff termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Contractor further agrees to insert a similar provision in all subcontracts for services allowed under this Contract.

If the contractor is entering into a Contract with NDE for operation of any educational program or activity that is authorized or extended by the United State Department of Education, contractor shall comply with Title IX of the Education Amendments Act of 1972 (20 U.S.C. 1681 et seq.), regarding the prohibition of the following: the exclusion of any person from participation in, denying the benefits of, or subjection to discrimination in any such program or activity on the basis of sex.

V. Compliance with Law:

The Parties shall comply with all other applicable Federal, State, County and Municipal laws, ordinances, and rules and regulations in the performance of this Contract. This may include, but is not limited to, confidentiality requirements for the particular information being accessed or the data being shared, as may be more fully set forth herein.

Should any section or provision of this Contract be declared illegal or unenforceable by a court of competent jurisdiction, the remainder of this Contract, or the application of such a provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall be valid and enforceable, to the greatest extent permitted under law.

VI. Contract Termination:

This Contract may be terminated under the following circumstances:

a. NDE and the Contractor, by mutual written agreement, may terminate the Contract at any time;

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b. NDE, in its sole discretion, may terminate the contract for any reason upon thirty (30) calendar days written notice to the Contractor as defined in Section 8 of this contract. However, if a longer notice period is specified under Section 2f (“Miscellaneous Terms”) of this contract then the notice period shall be as modified in the Miscellaneous Terms. Such termination shall not relieve the Contractor of warranty or other service obligations incurred under the terms of the Contract. In the event of termination, the Contractor shall be entitled to payment, determined on a pro rata basis, for products or services satisfactorily performed or provided;

c. In the event that Contractor is in breach of this Contract per Art. VII (Breach of Contract) of the Standard Addenda, NDE may, at its discretion, terminate this immediately upon receipt of written notice by the Contractor (as defined in Section 8 of this contract);

d. In the event that NDE determines, per Art. XI. (Unavailability of Funding) of the Standard Addenda, that funds to finance this Contract become unavailable, either in full or in part, due to reductions of State and/or Federal funds, either party may terminate this Contract immediately upon receipt of written notice by the receiving party that said funds to finance this Contract have become unavailable, either in full or in part;

e. NDE reserves the right to terminate this Contract if a Contractor or its subcontractor is being considered for, presently being, or becoming debarred, suspended, ineligible or excluded from contracting with any state or federal entity, or otherwise listed on the governmentwide exclusions in the System for Award Management (SAM).

f. In the event of the occurrence of a Force Majeure event as described in Art. XII (Force Majeure) of the Standard Addenda;

g. NDE may terminate the contract immediately for the following reasons:

i) If directed to do so by State statute;

ii) Contractor has made an assignment for the benefit of creditors, has admitted in writing its inability to pay debts as they mature, or has ceased operating in the normal course of business;

iii) A trustee or receiver of the Contractor or of any substantial part of the Contractor’s assets has been appointed by a court;

iv) Fraud, misappropriation, embezzlement, malfeasance, misfeasance, or illegal conduct pertaining to performance under the contract by its Contractor, its employees, officers, directors, or shareholders;

v) An involuntary proceeding has been commenced by any Party against the Contractor under any one of the chapters of Title 11 of the United States Code and

(1) the proceeding has been pending for at least sixty (60) calendar days; or (2) the Contractor has consented, either expressly or by operation of law, to the entry of an order for relief; or (3) the Contractor has been decreed or adjudged a debtor;

vi) A voluntary petition has been filed by the Contractor under any of the chapters of Title 11 of the United States Code;

vii) Contractor intentionally discloses confidential information, including but not limited to, information protected under the provisions of the Family Educational Rights and Privacy Act of 1974 (FERPA) (20 USC 1232g; 34 C.F.R. Part 99);

viii) Contractor has or announces it will discontinue support of the deliverable(s); or

ix) In the event funding priorities have changed.

h. Contracts that create an employer-employee relationship may be terminated immediately by NDE in the event that:

i) NDE determines that the results of any background checks reveal information about the contractor that NDE determines is an unacceptable result for the continuation of the employment relationship;

ii) NDE determines that the contractor engaged in any behavior or activity that is cause

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iii) NDE determines that the contractor has failed to perform satisfactorily.

[Note: The provision at part h. of this article applies only to Contracts deemed to create an Employee/Employer relationship per Section 6 of this Contract.]

VII. Breach of Contract:

If Contractor anticipates breaching the Contract, the Contractor shall immediately give written notice to NDE. The notice shall explain the breach or potential breach, a proposed cure, and may include a request for a waiver of the breach if so desired. NDE may, in its discretion, temporarily or permanently waive the breach. By granting a waiver, NDE does not forfeit any rights or remedies to which NDE as a State agency is entitled by law or equity, or pursuant to the provisions of the Contract. Failure to give immediate notice, however, may be grounds for denial of any request for a waiver of a breach.

Allowing time to cure a failure or breach of contract does not waive the right to immediately terminate the contract for the same or different contract breach which may occur at a different time.

If the Contractor breaches this Contract, NDE may, at its discretion, terminate the Contract immediately, in full or in part, upon written notice to the Contractor. NDE shall pay the Contractor only for such performance as has been properly completed and is of use to NDE. In case of breach by the Contractor, NDE may, without unreasonable delay, make a good faith effort to make a reasonable purchase or contract to purchase goods in substitution of those due from the Contractor. NDE may recover from the Contractor as damages the difference between the costs of covering the breach.

Notwithstanding any clause to the contrary, NDE may also recover the contract price together with any incidental or consequential damages defined in U.C.C. Section 2-715, but less expenses saved in consequence of Contractor’s breach, or, in case of default of the Contractor, NDE may contract the service from other sources and hold the Contractor responsible for any excess cost occasioned thereby.

Settlement for Contract termination may be negotiated between the Parties based upon specified deliverables completed by the Contractor and accepted and usable by NDE. Settlement shall be based on the date of termination notice if the Contractor initiates termination or the identifiable percentage effort expended by the Contractor if NDE initiates termination.

VIII. Prohibition against Advance Payment:

Pursuant to Neb. Rev. Stat. § 81-2403(3), “[n]o goods or services shall be deemed to be received by an agency until all such goods or services are completely delivered and finally accepted by the agency.”

IX. State of Nebraska Prompt Payment Act:

Payment will be made by NDE in compliance with the State of Nebraska Prompt Payment Act (See Neb. Rev. Stat. §§81-2401 to 81-2408). The State may require the Contractor to accept payment by electronic means such as ACH deposit.

In no event shall the State be responsible or liable to pay for any goods and services provided by the Contractor prior to the Effective Date of the Contract, and the Contractor hereby waives any claim or cause of action for any such goods or services.

X. Taxes:

NDE, as a state agency of the State of Nebraska, is not required to pay taxes and assumes no such liability as a result of this Contract. Contractor may request a completed copy of the Nebraska Department of Revenue – Nebraska Resale of Exempt Sale Certificate for Sales Tax Exemption (Form 13) for their records, if required.

XI. Unavailability of Funding:

Due to possible future reductions in State and/or Federal funds, NDE cannot guarantee the continued availability of funding of this Contract notwithstanding the consideration stated above.

In the event funds to finance this Contract become unavailable, either in full or in part, due to such reductions, NDE may terminate the Contract or reduce the consideration upon notice in writing to the Contractor. Said notice shall be delivered by certified mail (return receipt requested), by electronic mail to the NDE representative listed in Section 8 (“Notices”), or in person (with proof of delivery).

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NDE shall be the final authority as to determining the availability of funds. The effective date of such Contract termination or reduction in consideration shall be the actual effective date of the elimination or reduction of funding. In the event of a reduction in consideration, the Contractor may cancel this Contract effective the date of the proposed reduction upon provision of advance written notice to

NDE.

In the event of unavailability of funding as determined by NDE, NDE shall have the right to issue a 'stop work' order to Contractor in writing. Contractor agrees that if a stop work order is issued to Contractor by NDE in relation to this contract, Contractor shall immediately cease all work described in the scope of services and shall not resume work of any kind in relation to said deliverables under the Contract unless expressly directed to by NDE. Said notice shall be delivered by certified mail (return receipt requested), by electronic mail to the NDE representative listed in Section 8 (“Notices”), or in person (with proof of delivery). Upon receipt of such notice by the Contractor, the stop work order shall be deemed to be in effect, and NDE shall not be liable for payment for any work carried out by Contractor under this Contract during any time period when the stop work order is in effect.

XII. Force Majeure:

If the performance of either party of any obligation is prevented, restricted or interfered with by causes outside such party’s reasonable control, and the party is unable to carry out its obligation(s) and provides the other party prompt written notice thereof, the obligation(s) of such party may be suspended or cancelled effective immediately, to the extent necessary, as a result of such event.

Events include acts of God, fire, explosion, health epidemic or pandemic, storms, national emergencies, riots, civil unrest and the outbreak of war. The Parties may negotiate a resolution due to cancellation of this Contract due to force majeure, based upon specified deliverables completed by the Contractor and accepted and usable by NDE.

XIII. Assignability of Contract:

The Contractor agrees not to assign or transfer any interest, rights, or duties in this Contract to any person, firm, or corporation without the express prior written authorization of NDE, unless otherwise provided for in Section 2f (“Miscellaneous Terms”) of this Contract.

XIV. Independent Agency:

NDE is an independent agency within the State of Nebraska. The Contract does not create a business partnership or joint venture under Nebraska law, or any joint entity as set forth in the Interlocal Cooperation Act, Neb. Rev. Stat. §§ 13-801 et seq.

XV. Self-Insurance:

As an agency of the State of Nebraska, NDE is self-insured for any loss and the State of Nebraska purchases excess insurance coverage pursuant to Neb. Rev. Stat. § 81-8,239.01 (Reissue 2008). If there is a presumed loss under the provisions of this Contract, Contractor may file a claim with the State of Nebraska Office of Risk Management pursuant to Neb. Rev. Stat. §§ 81-8,296 thru 81-8,306 for review by the State Claims Board. The State retains all rights and immunities under the State Miscellaneous (Neb.

Rev. Stat. §§ 81-8,294 thru 81-8,301), Tort (Neb. Rev. Stat. §§ 1-8,209 thru 81-8,235), and Contract Claim Acts (Neb. Rev. Stat. §§ 8,302 thru 8,306), as outlined in Neb. Rev. Stat. § 81-8,209 et seq., and under any other provisions of law and accepts liability under this Contract to the extent provided by law.

XVI. Technology Access Requirements:

All contracts that include provisions of technology products, systems, and services, including data, voice, and video technologies, as well as information dissemination methods, for the State of Nebraska shall comply with Section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. §794d) and its implementing standards adopted and promulgated by the U.S. Access Board, as well as the Nebraska Technology Access Standards adopted pursuant to Neb. Rev. Stat. §73-205. The Nebraska Technology Access Standards are available for viewing at NDE and online at the Nebraska DAS Material Division website, and are incorporated into this contract as if fully set forth therein. Any web content or mobile applications developed pursuant to such contracts shall also comply with Level A and Level AA success criteria and conformance requirements specified in WCAG 2.1 as required by 28 CFR Part 35 Subpart H.

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XVII. Drug-Free Workplace:

The Contractor certifies that they operate a drug-free workplace and during the terms of this Contract will be in compliance with the provisions of the Drug-Free Workplace Act of 1988, 41 U.S.C. 81.

XVIII. Subcontractors.

The Contractor agrees that no subcontractors shall be utilized in the performance of this Contract without the prior written authorization of NDE, unless otherwise provided for in Section 2f (“Miscellaneous Terms”) of this Contract.

XIX. Federal Immigration Verification System Requirement:

The Contractor is required and hereby agrees to use a federal immigration verification system to determine the work eligibility status of new employees physically performing services within the State of Nebraska. A federal immigration verification system means the electronic verification of the work authorization program authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 8 U.S.C. 1324a, known as the E-Verify Program, or an equivalent federal program designated by the United States Department of Homeland Security or other federal agency authorized to verify the work eligibility status of a newly hired employee.

XX. Intellectual Property Rights:

NDE retains the right to copyright and/or other intellectual property rights of any materials produced under this Contract unless otherwise provided for in Section 2f (“Miscellaneous Terms”) of this Contract.

If the Contract is federally funded, the federal awarding agency reserves a royalty-free, nonexclusive, and irrevocable license to reproduce, publish or otherwise use, and to authorize others to use, for Federal Government purposes:

a. Copyright and/or other intellectual property rights in any work developed under the contract; and

b. Any rights of copyright and/or other intellectual property rights to which NDE purchases ownership with federal funding support.

XXI. Ownership:

The Contractor agrees that no authority or information gained through the existence of and performance under this Contract will be used to obtain financial gain for the Contractor, for any member of the Contractor's immediate family, or for any business with which the Contractor is associated except to the extent provided by the Contract.

The Contractor further agrees that any deliverable produced, developed, prepared, created or modified under the terms of this Contract shall become the property of NDE, unless otherwise provided for in Section 2f (“Miscellaneous Terms”) of this Contract.

In the event that data is collected in the performance of the scope of services and/or deliverables under this Contract, such data shall be owned by NDE, not the Contractor, unless otherwise provided for in Section 2f (“Miscellaneous Terms”) of this Contract. If Contractor wishes to publish research using such data, they shall first obtain NDE approval in writing and acknowledge in their publication that the research was funded through NDE.

XXII. Requirements for Contracts involving Presentations/Workshops

The following provisions apply to Contracts in which the contractor makes a presentation or conducts a workshop:

a. The contractor will provide copies of all materials used in the workshop to staff in advance of, or immediately following, the workshop. In the case of copyrighted materials, the contractor must clearly identify the materials that are copyrighted and specify conditions/limitations of distribution;

b. The contractor gives permission to NDE to create audiovisual (AV) recordings all presentations.

Subsequent use of AV recordings by NDE will only be for quality control and archive purposes and not for future training activities, unless otherwise specifically provided for in Section 2f (“Miscellaneous Terms”) of this Contract;

c. The contractor and/or speakers will clearly distinguish their personal opinions from NDE positions.

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XXIII. Proprietary Information:

The contents of this Contract, and all documentation provided therein, become the property of the State of Nebraska and the data becomes public information when the Contract is executed. Per Neb.

Rev. Stat. §84-602.04(4)(a), beginning July 1, 2014, a copy of all State contracts active on or after January 1, 2014 that are the basis for an expenditure of state funds will be made publicly available on a web site maintained by the Nebraska Department of Administrative Services. The web site data base will also include any amendments to such contracts and any documents incorporated by reference in such contracts. The web site will also contain a database that includes copies of all expired contracts which were previously included in the database of active contracts.

If the Contractor wishes to have any information withheld from the public, such information must fall within the definition of proprietary information contained within Nebraska’s public record statutes.

Proprietary information is defined as trade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary and commercial information which if released would give advantage to business competitors and serve no public purpose (Neb. Rev. Stat. §84-712.05(3)).