Template: Model Agreement for the Operation of an Online School Program

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Template: Model Agreement for the Operation of an Online School Program

Parties

[This section identifies the parties entering into the Agreement. It states District’s name and address and District’s legal name and address.]

This Agreement (“Agreement”) is by and between [______] (“District”), a Washington State municipal corporation located at [______], and [______] (“Provider”), and is entered into on [______] (the “Effective Date”).

The Agreement is for the operation of [______] (“Program”).

IN CONSIDERATION of the mutual promises as hereinafter set forth, the parties agree as follows:

Term, duration and renewal

[If this is a single term Agreement, use only the following subsection. Otherwise, use an initial term and subsequent terms (subsections (a) and (b) below) as applicable.]

The term of this Agreement shall be [______(__)] years [or other appropriate time period], commencing upon the Effective Date.

[–OR–]

a) This Agreement’s initial term shall be [______(__)] years [or other appropriate time period], commencing upon the Effective Date.

b) This Agreement’s term may be extended by [______(__)] additional [one (1)] year [or other appropriate time period] term[s], provided that the extensions shall be at District’s option and shall be effected by District giving written notice of its intent to extend this Agreement to Provider not less than [thirty (30)] calendar days [or other appropriate time period] prior to the then-current Agreement term’s expiration and Provider accepting such extension prior to the then-current Agreement term’s expiration. The total term of this Agreement shall not exceed [__] years [or other appropriate time period]. No change in terms and conditions shall be permitted during these extensions unless specifically agreed to in writing.

[–OR–replace subsection (b) above with the following.]

b) This Agreement’s term shall be automatically extended for [______(__)] additional [one (1)] year [or other appropriate time period] term[s] unless District terminates by giving written notice of its decision not to extend to Provider not less than [thirty (30)] calendar days [or other appropriate time period] prior to the then-current Agreement term’s expiration. No change in terms and conditions shall be permitted during these extensions unless specifically agreed to in writing.

Responsibilities of Parties

Responsibilities of Provider. [Insert descriptions of the services provided. For purposes of this Agreement, these should be called “Service or Services”.]

Unless otherwise indicated, all references to Provider under this section shall also include Provider’s employees, agents, or Subcontractors.

Responsibilities of District. The District shall have ultimate authority over the operation of the Program and will be responsible for monitoring the Provider’s performance under, and compliance with, the terms of this Agreement.

Management

District oversight. [Insert description of the District’s oversight, structure, and communications regarding the Program.]

District shall have the full power and authority to oversee the operation of the School. District hereby further agrees to cooperate with Provider in the performance of Provider’s duties and obligations under this Agreement and to take such reasonable actions and to execute and deliver all such agreements, documents or instruments as Provider may deem necessary or advisable, in Provider’s reasonable judgment, to enable Provider to perform its duties and obligations hereunder. Except as otherwise set forth in [the list of responsibilities], the District’s Superintendent has full power and authority to act on behalf of District in connection with the performance of this Agreement and the oversight of the School, subject to limitations on the Superintendent’s authority under Washington law or District policy.

Compliance

District policies and procedures. The parties agree that Program shall follow all District policies and procedures, including, but not limited to, the District graduation requirements and District calendar. [Note specifically any differences in policy or procedures for the Program.]

Program will be operated in compliance with relevant federal and state laws.

Contracting.The parties agree to abide by the provisions of RCW 28A.320.035 (“Contracting out — Board's powers and duties — Goods and services”) and WAC 392-121-188 (“Instruction provided under Agreement”).

No Child Left Behind. The parties acknowledge that Program must be operated in accordance with Title I of the Elementary and Secondary Education Act of 1965, as amended by No Child Left Behind Act of 2001 (NCLB), Pub. Law No. 107-110, 115 Stat. 1425, any and all state and federal regulations promulgated thereunder, and any subsequent amendments made thereto.

IDEA. The parties acknowledge that Program shall comply with the requirements of the Individuals with Disabilities Education Improvement Act of 2004, Pub. Law No. 108-446, 118 Stat. 2647, any and all state and federal regulations promulgated thereunder, and any subsequent amendments made thereto.

Compulsory attendance, admission, and course work. The parties acknowledge that Program shall comply with the provisions of RCW 28A.225, “compulsory school attendance and admission.” Program shall comply with the provisions of RCW 28A.230, “compulsory course work and activities.”

Annual instructional hours. Provider shall supply a program that does not adversely affect the District’s ability to comply with the annual instructional hour requirement as defined by WAC 180-16-200.

Alternative Learning Experience. Both parties agree to comply with WAC 392-121-182, “alternative learning experience requirements,” for students claimed under the Alternative Learning Experience (“ALE”) funding provisions.

Staffing. Provider shall staff Program at a level that ensures the District’s Certificated Instructional Staff (CIS) per 1,000 Student FTE ratio does not fall below 46:1000, as specified by WAC 392-127. [Staffing requirement removed by ESHB 2065 in 2011.]

[-OR- If the provider is not an institution of higher education.]

For the students served under this agreement, Provider shall maintain a ratio of CIS FTE to student FTE which is at least equal to the District’s basic education funding ratio for the grade level of the students being reported for basic education funding in accordance with WAC 392-121-188.

Multi-district online provider approval. If Provider is a “multi-district online course provider” or “multi-district online program provider” as defined by the Office of the Superintendent of Public Instruction (OSPI), the Provider must be approved by OSPI in accordance with chapter 392-502 WAC. The Provider is exclusively responsible for seeking and obtaining OSPI approval.

If the Program is considered a “multi-district online program” as defined by the Office of the Superintendent of Public Instruction (OSPI), the Program must be approved by OSPI in accordance with chapter 392-502 WAC. The District is responsible for seeking and obtaining OSPI approval, and the Provider agrees to comply with requests for information that relate to the approval process.

Exclusivity

District and Provider acknowledge that this arrangement is not exclusive and that Provider has the right to provide similar Services to other public or private schools or institutions. Such activities shall be kept separate from the activities of the Program.

Termination

Termination for Default

[Termination for Default – This section allows termination of the Agreement due to documented deficiencies in Provider’s or District’s performance.]If either District or Provider violates any material term or condition of this Agreement or fails to fulfill in a timely and proper manner its obligations under this Agreement, then the aggrieved party shall give the other party written notice of such failure or violation. The responsible party shall correct the violation or failure within [thirty (30)] calendar days [or other appropriate time period] or as otherwise mutually agreed in writing. If the failure or violation is not corrected, this Agreement may be terminated immediately by written notice from the aggrieved party to the other party. The option to terminate shall be at the sole discretion of the aggrieved party. District reserves the right to suspend all or part of the Agreement, withhold further payments, or prohibit Provider from incurring additional obligations of funds during investigation of any alleged Provider compliance breach and pending corrective action by Provider or a decision by District to terminate the Agreement.

In the event of termination of this Agreement by District, District shall have the right to procure the Services that are the subject of this Agreement on the open market and Provider shall be liable for all damages, including, but not limited to: (i) the cost difference between the original Agreement price for the Services and the replacement costs of such Services acquired from another Provider; (ii) if applicable, all administrative costs directly related to the replacement of this Agreement, such as costs of competitive bidding, mailing, advertising, applicable fees, charges or penalties, staff time costs; and, (iii) any other costs to District resulting from Provider’s breach. District shall have the right to deduct from any monies due to Provider, or that thereafter become due, an amount for damages that Provider will owe District for Provider’s default.

If the Failure to Perform is without the defaulting party’s control, fault, or negligence, the termination shall be deemed to be a Termination for Convenience.

This section shall not apply to any failure(s) to perform that results from the willful or negligent acts or omissions of the aggrieved party.

Termination for Convenience

[Termination for Convenience – This section allows the Agreement to be terminated when it is in District’s best interest.]

When, at the sole discretion of District, it is in the best interest of the District, District may terminate this Agreement in whole or in part, by [fourteen (14) calendar days or other appropriate time period] written notice to Provider. If this Agreement is so terminated, District is liable only for payments required by the terms of this Agreement for Services received and accepted by District prior to the effective date of termination.

Termination for Withdrawal of Authority

In the event that District’s authority to perform any of its duties is withdrawn, reduced, or limited in any way after the commencement of this Agreement and prior to normal completion, District may terminate this Agreement by [seven (7) calendar days or other appropriate time period] written notice to Provider. No penalty shall accrue to District in the event this section shall be exercised. This section shall not be construed to permit District to terminate this Agreement in order to acquire similar Services from a third party.

Termination for Non-Allocation of Funds

[If no periodic future payments are required under the Agreement, this clause may be omitted.]

If funds are not allocated to District to continue this Agreement in any future period, District may terminate this Agreement by [seven (7) calendar days or other appropriate time period] written notice to Provider or work with Provider to arrive at a mutually acceptable resolution of the situation. District will not be obligated to pay any further charges for Services including the net remainder of agreed to consecutive periodic payments remaining unpaid beyond the end of the then-current period. District agrees to notify Provider in writing of such non-allocation at the earliest possible time. No penalty shall accrue to District in the event this section shall be exercised. This section shall not be construed to permit District to terminate this Agreement in order to acquire similar Services from a third party.

Termination Procedure

In addition to the procedures set forth below, if District terminates this Agreement, Provider shall follow any procedures District specifies in District’s Notice of Termination.

Upon termination of this Agreement, District, in addition to any other rights provided in this Agreement, may require Provider to deliver to District any property or Work Product specifically produced or acquired for the performance of such part of this Agreement as has been terminated. The section titled Treatment of Assets shall apply in such property transfer.

Unless otherwise provided herein, District shall pay to Provider the agreed-upon Price, if separately stated, for the Services received by District, provided that in no event shall District pay to Provider an amount greater than Provider would have been entitled to if this Agreement had not been terminated. Failure to agree with such determination shall be a dispute within the meaning of the Disputes section of this Agreement. District may withhold from any amounts due Provider such sum as District determines to be necessary to protect District from potential loss or liability.

Provider shall pay amounts due District as the result of termination within thirty (30) calendar days of notice of the amounts due. If Provider fails to make timely payment, District may charge interest on the amounts due at one percent (1%) per month until paid in full.

“Work Product” as used in this Agreement shall mean data and products produced under this Agreement including, but not limited to, discoveries, formulae, ideas, improvements, inventions, methods, models, processes, techniques, findings, conclusions, recommendations, reports, designs, plans, diagrams, drawings, software, databases, documents, pamphlets, advertisements, books, magazines, surveys, studies, computer programs, films, tapes, and/or sound reproductions, to the extent provided by law.

Pricing, Invoice, and Payment

Pricing

[Pricing – This section describes the mechanism by which revenues derived from the Program will be allocated between District and Provider. It further establishes the conditions for Price increases and reductions, and notices thereof.]

Pricing. [Insert description of revenue sharing and other financial issues.]

Provider assumes the risk that its fees will not allow it to operate profitably nor to fully cover the costs of operation of the School during any given period and agrees that District shall bear no responsibility for any operating deficit that may occur at the School.

[If District wants to establish a maximum dollar amount that can be spent under the Agreement, use the following subsection; otherwise delete it.]

The total amount expended under this Agreement shall not exceed [______] dollars ($___) [Specify maximum dollar amount].

Provider agrees to provide the Services at the Prices set forth [below or in Schedule A]. Prices may not be increased during the initial term of the Agreement.

At least [one hundred twenty (120)] calendar days [or other appropriate time period] before the end of the then-current term of this Agreement, Provider may propose rate increases by written notice to District. Price adjustments will be taken into consideration by District when determining whether to extend this Agreement.