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C ONTRACTS : W HAT SHOULD BE INCLUDED & W HAT SHOULD BE AVOIDED. Crotzer & Ormsby, LLC Kathryn B. Forster 130 S. Bemiston, Ste. 300 St. Louis, Missouri.

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Presentation on theme: "C ONTRACTS : W HAT SHOULD BE INCLUDED & W HAT SHOULD BE AVOIDED. Crotzer & Ormsby, LLC Kathryn B. Forster 130 S. Bemiston, Ste. 300 St. Louis, Missouri."— Presentation transcript:

1 C ONTRACTS : W HAT SHOULD BE INCLUDED & W HAT SHOULD BE AVOIDED. Crotzer & Ormsby, LLC Kathryn B. Forster 130 S. Bemiston, Ste. 300 St. Louis, Missouri 63105 (314) 726-3040

2 C ONTRACT B ASICS – D OS All Contracts should be in writing and dated. All Contracts shall be within scope of Districts powers or as expressly authorized by law. Contract in name of District not in the name of individual schools or employees. Superintendent or designee to execute contracts. (Purchases that may exceed $25,000 must have prior Board approval unless emergency provisions are applicable.) Term Purpose Payment Termination Reasons Breach; By either Party - upon notice (30, 60 or 90 days in writing) Cure Period to cure before terminate

3 C ONTRACT B ASICS – D OS, CONTINUED Independent Contractor Each party shall perform its responsibilities hereunder as an independent contractor, and nothing herein shall create any association, partnership or joint venture between the parties or an employer-employee relationship. No agent, employee or servant of either party shall be, or shall be deemed to be, the employee, agent or servant of the other party, and each party shall be solely and entirely responsible for its acts and the acts of its agents, employees and servants. Applicable Law to Govern The laws of Missouri shall be employed in and govern the interpretation of all of the terms and conditions of contracts. Venue for any disputes hereunder shall be had in the City or County where District is located. Assignments Assignment upon consent of District. Amendments May be amended only by written instrument signed by both parties.

4 C ONTRACT B ASICS – D OS, CONTINUED Insurance Contracting party at its sole expense, will secure prior to executing the contract: (i) commercial general liability insurance covering itself, its respective employees, contractors and agents, with commercially reasonable limits and (ii) appropriate workers compensation insurance as required by state law. Contracting party should also ensure that sub-contractors and employees of subcontractors are likewise covered for general liability, workers' compensation and malpractice. Indemnification Contracting Party shall defend and save harmless the District, its officers, agents and employees from any loss, liability, claim, damage and expense, including reasonable attorneys fees, arising from or attributable to any acts or omissions of indemnifying Party, its officers, agents and employees in performing its obligations under this Agreement, including without limitation for violation of proprietary rights, copyrights, or rights of privacy, arising out of a publication, translation, reproduction, delivery, performance, use or disposition of any data furnished under the Agreement or based on any libelous or other unlawful matter contained in such data.

5 C ONTRACT B ASICS – D OS, CONTINUED Sovereign Immunity Sovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance purchased pursuant to the provisions of contract and in such amount and for such purposes provided in any self-insurance plan duly adopted by the District. Compliance with Laws Contracting party to comply with all District Policies and Regulations, state and/or federal laws. Integration The contract represents the entire integrated agreement between the District and the Contracting Party, and supersedes all prior negotiations, representations or agreements, either written or oral.

6 C ONTRACT B ASICS – D OS, CONTINUED Specific for Public School Districts: Student Information Contracting party acknowledges that it shall now, and in the future may, have access to and contact with confidential information of students. Both during the term of this Agreement and thereafter, Contracting Party covenants and agrees to hold such information in trust and confidence and to exercise diligence in protecting and safeguarding such information, as well as any other information protected from public disclosure by federal or state law or by the policies or procedures of the District. Further, Contracting party covenants and agrees that it will not disclose any confidential information to any third party except as may be required in the course of performing services for the District hereunder or by law. Finally, Contracting party covenants and agrees that any access to the confidential information of any student shall be in compliance with the Family Education Rights and Privacy Act ("FERPA"). Background Checks All Personnel providing services under the contract that may in any way come into contact with students must undergo background checks consistent with those used by the District and state-licensed facilities; all such checks must be performed and passed prior to any Personnel providing any services hereunder. At a minimum, checks hereunder shall include a Department of Family Services background check, a criminal background check, and fingerprinting.

7 C ONTRACT B ASICS – A VOID Do not artificially divide purchases to avoid bidding requirements or design bid specifications to favor a particular provider. Do not purchase supplies or materials from a staff member of the District; or from a member of the household of the staff member. Do not purchase supplies, materials or services from a member of the Board of Education; or from a member of his/her household; or from a firm in which he/she holds a major interest. Do Not Waive Sovereign Immunity Avoid Limitations of Liability

8 P ERSONNEL C ONTRACTS Employment contracts are to be in writing and signed by the employee, the Board president and the Board secretary. Contracts will include the amount of annual compensation and the days of service.

9 P ERSONNEL C ONTRACTS Teacher contracts are to be made by order of the Board of Education; shall specify the number of months school is to be taught and the wages per month to be paid; shall be signed by the teacher and the President of the Board, or a facsimile signature of the president may be affixed at his discretion; and the contract shall be attested by the Secretary of the Board by signature or facsimile. The Board of Education shall not employ one of its board members as a teacher; nor shall any person be employed as a teacher who is related within the fourth degree to any board member, either by consanguinity or affinity, where the vote of the board member is necessary to the selection of the person.

10 P ERSONNEL C ONTRACTS – P ERMANENT T EACHERS Every indefinite contract shall contain the following provisions in substantially the following form: It is hereby agreed by and between (teacher name), the teacher, and the Board of Education of the School District, the employer, that the teacher, beginning on the (date) shall serve in the employ of the Board of Education and its successors for a term of (the number of school months of the school year in the school district) for an annual compensation of (dollar amount) to be paid to the teacher in equal installments according to local school board regulations less the contributions required by law. It is further agreed by the parties hereto that this contract shall continue in force from year to year, until modified or terminated in accordance with the provisions of sections 168.102 to 168.130, RSMo, and any amendments thereto prior to the date of this contract.

11 C ONSTRUCTION C ONTRACTS All facilities construction projects which exceed an expenditure of $15,000 shall be advertised and competitive bids solicited according to state law only after the plans and specifications have been approved by the Board of Education. In order to protect the Board of Education, each bidder may be required to submit, with his bid, a bidder's bond in an amount determined by the estimated cost of the project. The Board reserves the right to reject any or all bids and accept that bid which appears to be in the best or all bids, or any part of any bid. Any bid may be withdrawn prior to the scheduled time for the opening of bids. Any bid received after the time and date specified shall not be considered. AIA Contracts can be amended: Remove arbitration and mediation to avoid additional cost.

12 C ONSTRUCTION M ANAGEMENT Construction management services may be used by the Board of Education in the preconstruction phrase or the construction phase of a public works project or in both phases. Refer to state law, specifically Sections 8.675 – 8.687 of the Missouri Revised Statutes. Furthermore, the Board of Education shall not award a contract for construction management services on a negotiated basis to any construction manager (or a firm that controls, is controlled by or shares common ownership or control with the construction manager), if such construction manager: 1. Guarantees, warrants or otherwise assumes financial responsibility for the work of others on the project; 2. Provides the district with a guaranteed maximum price for the work of others on the project; or 3. Furnishes or guarantees a performance or payment bond for other contractors on the project. If 1-3 apply, the contract for construction management services must be let by competitive bidding, as in the case of contracts for construction work.

13 P ROFESSIONAL S ERVICES Present provisions of law notwithstanding, in the procurement of architectural, engineering or land surveying services, each agency which utilizes architectural, engineering or land surveying services shall encourage firms engaged in the lawful practice of their professions to annually submit a statement of qualifications and performance data to the agency.

14 C OMPETITIVE B IDDING When a decision to contract out has been made, school leaders should: Develop requests for proposals (RFPs) using independent resources and advice rather than a vendors model contract or specification materials. Have an outside expert in the service area as well as legal counsel review the RFP and the proposals. Assure that sufficient quality control measures are in the contract. For example, effective monitoring, dispute resolution procedures, cost penalties and provisions for contract cancellation must be explicit, clear and free of excessive conditions. Check the contractors performance with other districts and the appropriate state agency. It is important to look beyond the references on the vendors list.

15 C OMPETITIVE B IDDING, CONTINUED Examine the contractors plans and guarantees regarding the districts existing, new, and future employees. Determine whether a cost reduction will come at the expense of employees and the social wellbeing of the community. In the districts cost analysis, determine what new costs the district may incur as a result of contracting out. For example, will the district have to hire a program monitor, buy supplies, or provide maintenance? To avoid unanticipated and unbudgeted bills, check the vendors cost estimates on staffing, wages, inflation, energy costs and the like for reasonableness. Assure that such costs are appropriately capped. Ascertain if the thresholds for additional billed services are realistic and fairly priced. Check cancellation provisions to prevent the district from being held captive to a contractor. Districts should avoid selling assets like kitchen equipment and bus fleets, which would effectively prevent their return to the districts own operation

16 C OMPETITIVE B IDDING – L EGAL C OMPLIANCE 1.) All construction projects that may exceed an expenditure of $15,000 shall be advertised in a newspaper of general circulation and competitively bid, in accordance with law, and may also be advertised in business, trade or minority newspapers or using other modes of communication such as the districts website. Bid specifications and contracts for construction projects will include all elements required by law including, but not limited to, prevailing wage, mandatory training, excessive unemployment restrictions, mandatory affidavits regarding the employment of authorized labor, and bonding requirements when applicable. See §§ 107.170, 177.086, 285.530, 290.210 -.340, 290.550 -.580, 292.675, RSMo. 2.) Architectural, engineering and land surveying services must be selected in accordance with Board policy and law. See §§ 8.285 -.291, RSMo. 3.) Construction management services must be advertised and selected in accordance with Board policy and law. See §§ 8.675 -.687, RSMo. 4.) The district must competitively bid auditing services and select an auditor who meets the qualifications set by the Department of Elementary and Secondary Education (DESE). See 5 C.S.R. 30-4.030.

17 C OMPETITIVE B IDDING – L EGAL C OMPLIANCE 5.) Health and life insurance contracts will be competitively bid at least every three (3) years. See § 67.150, RSMo. 6.) General liability and other forms of insurance contracts will be competitively bid as required by Missouri Statutes §§ 376.696, 537.620, RSMo. 7.) Depositories of district funds will be competitively bid at least every five (5) years. See §§ 165.201 -.291, RSMo. 8.) Transactions with Board members or employees, or businesses they own, will only be conducted as required by law and Board policy. See §§ 105.454, 105.458, 171.181, RSMo. 9.) As a condition for the award of a contract to provide the district services in excess of $5,000, the provider must submit a sworn affidavit and documentation affirming enrollment in a Federal Work Authorization Program (FWAP) as required by law and Board policy. See § 285.530, RSMo.

18 Q UESTIONS ? Crotzer & Ormsby, LLC 130 S. Bemiston, Ste. 300 St. Louis, Missouri 63105 (314) 726-3040

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