HomeMy WebLinkAboutContract #: 855 - From: 07-27-2015 To: 06-30-2016 - Northwest Evaluation Association - North Andover School Departmentl
NORTH ANDOVER SCHOOL DEPARTMENT
CONTRACT
�65
DATE: JULY 27, 2015
This Contract is entered into on, or as of, this date by and between the North Andover School
Department (the "School"), and
Contractor: Northwest Evaluation Association
Address: 121 NW Everett Street
Portland Oregon, 97209
Telephone Number: 503.624.1951
Fax Number: 503.639.7873
1. This is a Contract for the procurement of the following: SW license for Measures of Academic
Progress® (MAP®) and supplement the terms and conditions under the Master Subscription
Agreement linked in the Schedule A that was executed on July 16, 2015 by the School.
2. The Contract price to be paid to the Contractor by the North Andover School Department is:
$17,325.00
3. Payment will be made as follows: upon successful delivery of the product and within the
standard payment practice of the Town of North Andover.
4. Definitions:
4.1 Acce tp ance: All Contracts require proper acceptance of the described goods or services
by the North Andover School Department. Proper acceptance shall be understood to
include inspection of goods and certification of acceptable performance for services by
authorized representatives of the School to insure that the goods or services are complete
and are as specified in the Contract.
4.2 Contract Documents: All documents relative to the Contract including (where used)
Instructions to Bidders, Proposal Form, General Conditions, Supplementary General
Conditions, General Specifications, Other Specifications included in Project Manual,
Drawings, Contractor's Master Subscription Agreement linked in the Schedule A, and all
Addenda issued during the bidding period. The Contract documents are complementary,
and what is called for by any one shall be as binding as if called for by all. The intention
(Rev 5-2007) Contract by and between North Andover School Department and Page I
of the document is to include all labor and materials, equipment and transportation
necessary for the proper performance of the Contract.
4.3 The Contractor: The "other party" to any Contract with the School. This term shall (as
the sense and particular Contract so require) include Vendor, Contractor, Engineer, or other
label used to identify the other party in the particular Contract. Use of the term "Contractor"
shall be understood to refer to any other such label used.
4.4 Date of Substantial Performance: The date when the work is sufficiently complete, the
services are performed, or the goods delivered, in accordance with Contract documents, as
modified by approved Amendments and Change Orders.
4.5 Goods: Goods, Supplies or Materials.
4.6 SubContractor: Those having a direct Contract with the Contractor. The term includes
one who furnished material worked to a special design according to the Drawings or
Specifications of this work, but does not include one who merely furnishes material not so
worked.
4.7 Work: The services or materials contracted for, or both.
Term of Contract and Time for Performance:
This Contract shall be fully performed by the Contractor in accordance with the provisions of the
Contract Documents on or before _June 30, 201 unless extended pursuant to a provision for extension
contained in the Contract documents at the sole discretion of the Town, and not subject to assent by the
Contractor, and subject to the availability and appropriation of funds as certified by the Town
Accountant. The time limits stated in the Contract documents are of the essence of the Contract.
6. Subject to Appropriation:
Notwithstanding anything in the Contract documents to the contrary, any and all payments which the
School is required to make under this Contract shall be subject to appropriation or other availability of
funds as certified by the Town Accountant. In the absence of appropriation, this Contract shall be
immediately terminated without liability for damages, penalties or other charges.
7. Permits and Approvals:
Permits, Licenses, Approvals and all other legal or administrative prerequisites to its performance
of the Contract shall be secured and paid for by the Contractor.
Termination and Default:
8.1 Without Cause. The School may terminate this Contract on seven (7) calendar days' notice
when in the best interests of the School by providing notice to the Contractor, which shall be
in writing and shall be deemed delivered and received when given in person to the Contractor,
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or when received by fax, express mail, certified mail return receipt requested, regular mail
postage prepaid or delivered by any other appropriate method evidencing actual receipt by
the Contractor. Upon termination without cause, Contractor will be paid for services
rendered to the date of termination.
8.2 For Cause. If the Contractor is determined by the School to be in default of any term or
condition of this Contract, the School may terminate this Contract on seven (7) days' notice
by providing notice to the Contractor, which shall be in writing and shall be deemed delivered
and received when given in person to the Contractor, or when received by fax, express mail,
certified mail return receipt requested, regular mail postage prepaid or delivered by any other
appropriate method evidencing actual receipt by the Contractor.
8.3 Default. The following shall constitute events of a default under the Contract:
1) any material misrepresentation made by the Contractor to the School; 2) any failure to
perform any of its obligations under this Contract including, but not limited to the
following: (i) failure to commence performance of this Contract at the time specified in
this Contract due to a reason or circumstance within the Contractor's reasonable control,
(ii) failure to perform this Contract with sufficient personnel and equipment or with
sufficient material to ensure the completion of this Contract within the specified time
due to a reason or circumstance within the Contractor's reasonable control, (iii) failure
to perform this Contract in a manner reasonably satisfactory to the School, (iv) failure
to promptly re -perform within a reasonable time the services that were rejected by the
School as unsatisfactory, or erroneous, (v) discontinuance of the services for reasons not
beyond the Contractor's reasonable control, (vi) failure to comply with a material term
of this Contract, including, but not limited to, the provision of insurance and non-
discrimination, (vii) any other acts specifically and expressly stated in this Contract as
constituting a basis for termination of this Contact, and (viii) failure to comply with any
and all requirements of state law and/or regulations, and Town bylaw and/or regulations.
9. The Contractor's Breach and the School's Remedies:
Failure of the Contractor to comply with any of the terms or conditions of this Contract shall be
deemed a material breach of this Contract, and the North Andover School Department shall have
all the rights and remedies provided in the Contract documents, the right to cancel, terminate, or
suspend the Contract in whole or in part, the right to maintain any and all actions at law or in equity
or other proceedings with respect to a breach of this Contract, including damages and specific
performance, and the right to select among the remedies available to it by all of the above.
From any sums due to the Contractor for services, the School may keep the whole or any part of
the amount for expenses, losses and damages incurred by the School as a consequence of procuring
services as a result of any failure, omission or mistake of the Contractor in providing services as
provided in this Contract.
10. Statutorompliance:
10.1 This Contract will be construed and governed by the provisions of applicable federal, state
and local laws and regulations; and wherever any provision of the Contract or Contract
(Rev 5-2007) Contract by and between North Andover School Department and Page 3
documents shall conflict with any provision or requirement of federal, state or local law
or regulation, then the provisions of law and regulation shall control. Where applicable
to the Contract, the provisions of the General Laws are incorporated by reference into this
Contract, including, but not limited to, the following:
General Laws Chapter 30B — Procurement of Goods and Services.
General Laws Chapter 30, Sec. 39, et seq: - Public Works Contracts.
General Laws Chapter 149, Section 44A, et seq: Public Buildings Contracts.
10.2 Wherever applicable law mandates the inclusion of any term and provision into a
municipal contract, this Section shall be understood to import such term or provision into
this Contract. To whatever extent any provision of this Contract shall be inconsistent
with any law or regulation limiting the power or liability of cities and towns, such law or
regulation shall control.
10.3 The Contractor shall give all notices and comply with all laws and regulations bearing on
the performance of the Contract. If the Contractor performs the Contract in violation of
any applicable law or regulation, the Contractor shall bear all costs arising therefrom.
10.4 The Contractor shall keep itself fully informed of all existing and future State and National
Laws and Municipal By-laws and Regulations and of all orders and decrees of any bodies
or tribunals having jurisdiction in any manner affecting those engaged or employed in the
work, of the materials used in the work or in any way affecting the conduct of the work.
If any discrepancy or inconsistency is discovered in the Drawings, Specifications or
Contract for this work in violation of any such law, by-law, regulation, order or decree, it
shall forthwith report the same in writing to the School. It shall, at all times, itself observe
and comply with all such existing and future laws, by-laws, regulations, orders and
decrees; and shall protect and indemnify the North Andover School Department, the Town
of North Andover, and its duly appointed agents against any claim or liability arising from
or based on any violation whether by him or its agents, employees or subcontractors of
any such law, by-law, regulation or decree.
11. Conflict of Interest:
Both the School and the Contractor acknowledge the provisions of the State Conflict of Interest
Law (General Laws Chapter 268A), and this Contract expressly prohibits any activity which shall
constitute a violation of that law. The Contractor shall be deemed to have investigated the
application of M.G.L. c. 268A to the performance of this Contract; and by executing the Contract
documents the Contractor certifies to the School that neither it nor its agents, employees, or
subcontractors are thereby in violation of General Laws Chapter 268A.
12. Certification of Tax Compliance
This Contract must include a certification of tax compliance by the Contractor, as required by
General Laws Chapter 62C, Section 49A (Requirement of Tax Compliance by All Contractors
Providing Goods, Services, or Real Estate Space to the Commonwealth or Subdivision).
(Rev 5-2007) Contract by and between North Andover School Department and Page 4
13. Discrimination
The Contractor will carry out the obligations of this Contract in full compliance with all of the
requirements imposed by or pursuant to General Laws Chapter 151B (Law Against
Discrimination) and any executive orders, rules, regulations, and requirements of the
Commonwealth of Massachusetts as they may from time to time be amended.
14. Assignment:
Assignment of this Contract is prohibited, unless and only to the extent that assignment is
provided for expressly in the Contract documents.
15. Condition of Enforceability Against the School:
This Contract is only binding upon, and enforceable against, the School if. (1) the Contract is
signed by the School Superintendent or its designee; and (2) endorsed with approval by the Town
Accountant as to appropriation or availability of funds; and (3) endorsed with approval by the
Town Counsel as to form.
16. Corporate Contractor:
If the Contractor is a corporation, it shall endorse upon this Contract (or attach hereto) its Clerk's
Certificate certifying the corporate capacity and authority of the party signing this Contract for
the corporation. Such certificate shall be accompanied by a letter or other instrument stating that
such authority continues in full force and effect as of the date the Contract is executed by the
Contractor. This Contract shall not be enforceable against the North Andover School Department
unless and until the Contractor complies with this section.
The Contractor, if a foreign corporation, shall comply with the provisions of the General Laws,
Chapter 181, Sections 3 and 5, and any Acts and Amendments thereof, and in addition thereto,
relating to the appointment of the Commissioner of Corporations as its attorney, shall file with
the Commissioner of Corporations a Power of Attorney and duly authenticated copies of its
Charter or Certificate of Incorporation; and said Contractor shall comply with all the laws of the
Commonwealth.
17. Liability of Public Officials:
To the full extent permitted by law, no official, employee, agent or representative of the Town
of North Andover shall be individually or personally liable on any obligation of the Town under
this Contract.
18. Indemnification:
The Contractor shall indemnify, defend and save harmless the School, the Town of North
Andover„ the Town's officers, agents and employees, from and against any and all damages,
liabilities, actions, suits, proceedings, claims, demands, losses, costs, expenses, recoveries and
judgments of every nature and description (including reasonable attorneys' fees) that directly
arise in whole or in part out of or in connection with the work being performed or to be performed,
(Rev 5-2007) Contract by and between North Andover School Department and Page 5
or out of any act or omission by the Contractor, its employees, agents, subcontractors, material
men, and anyone directly or indirectly employed by any of them or anyone for whose acts any of
them may be liable.. The Contractor further agrees to reimburse the School for damage to its
property directly caused by the Contractor, its employees, agents, subcontractors or material men,
and anyone directly or indirectly employed by any of them or anyone for whose acts any of them
may be liable, including damages caused by his, its or their use of faulty, defective, or unsuitable
material or equipment, unless the damage is caused by the School's negligence or willful
misconduct. The existence of insurance shall in no way limit the scope of the Contractor's
indemnification under this contract. Notwithstanding the foregoing, the indemnification
obligations of the Contractor is limited to the limitations of liability section under the Master
Subscription Agreement.
19. Workers Compensation Insurance:
The Contractor shall provide by insurance for the payment of compensation and the furnishing
of other benefits under Chapter 152 of the General Laws of Massachusetts (The Worker's
Compensation Act) to all employees of the Contractor who are subject to the provisions of
Chapter 152 of the General Laws of Massachusetts.
Failure to provide and continue in force such insurance during the period of this Contract shall
be deemed a material breach of this Contract, shall operate as an immediate termination thereof,
and Contractor shall indemnify the School for all losses, claims, and actions resulting from the
failure to provide the insurance required by this Article.
The Contractor shall furnish to the School evidence of such insurance prior to the execution of
this Contract before the same shall be binding on the parties thereto, except if specifically waived
by the School.
20. Documents, Materials, Etc.
Any materials, reports, information, data, etc. given to or prepared or assembled by the
Contractor under this Contract are to be kept confidential and shall not be made available to any
individual or organization by the Contractor (except agents, servants, or employees of the
Contractor) without the prior written approval of the School, except as otherwise required by
law. The Contractor shall comply with the provisions Chapter 66A of the General Laws of
Massachusetts as it relates to public documents, and all other state and federal laws and
regulations relating to confidentiality, security, privacy and use of confidential data.
Any materials produced in whole or in part under this Contract shall not be subject to copyright,
except by the School, in the United States or any other country. The School shall have
unrestricted authority to, without payment of any royalty, commission, or additional fee of any
type or nature, publicly disclose, reproduce, distribute and otherwise use, and authorize others to
use, in whole or in part, any reports, data or other materials prepared under this Contract.
All data, reports, programs, software, equipment, furnishings, and any other documentation or
product paid for by the School shall vest in the School at the termination of this Contract. The
Contractor shall at all times, during or after termination of this Contract, obtain the prior written
approval of the School before making any statement bearing on the work performed or data
(Rev 5-2007) Contract by and between North Andover School Department and Page 6
collected under this Contract to the press or issues any material for publication through any
medium.
21. Audit, Inspection and Recordkeeping
At any time during normal business hours, and as often as the School may deem it reasonably
necessary, there shall be available in the office of the Contractor for the purpose of audit,
examination, and/or to make excerpts or transcript all records, contracts, invoices, materials,
payrolls, records of personnel, conditions of employment and other data relating to all matters
covered by this Agreement.
22. Payment
The School agrees to make all reasonable efforts to pay to the Contractor the sum set forth in the
Contractor's bid or proposal within thirty (30) days of receipt of an invoice detailing the work
completed and acceptance from the School of the work completed.
23. Waiver and Amendment
Amendments, or waivers of any additional term, condition, covenant, duty or obligation
contained in this Contract may be made only by written amendment executed by all signatories
to the original Agreement, prior to the effective date of the amendment.
To the extent allowed by law, any conditions, duties, and obligations contained in this Contract
may be waived only by written Agreement by both parties.
Forbearance or indulgence in any form or manner by a party shall not be construed as a waiver,
nor in any manner limit the legal or equitable remedies available to that party. No waiver by
either party of any default or breach shall constitute a waiver of any subsequent default or breach
of a similar or different matter.
24. Forum and Choice of Law
This Contract and any performance herein shall be governed by and be construed in accordance
with the laws of the Commonwealth. Any and all proceedings or actions relating to subject
matter herein shall be brought and maintained in the courts of the Commonwealth or the federal
district court sitting in the Commonwealth, which shall have exclusive jurisdiction thereof. This
paragraph shall not be construed to limit any other legal rights of the parties.
25. Notices
Any notice permitted or required under the provisions of this Contract to be given or served by
either of the parties hereto upon the other party hereto shall be in writing and signed in the name
or on the behalf of the party giving or serving the same. Notice shall be deemed to have been
received at the time of actual service or three (3) business days after the date of a certified or
registered mailing properly addressed. Notice to the Contractor shall be deemed sufficient if sent
(Rev 5-2007) Contract by and between North Andover School Department and Page 7
to the address set forth in the Contract and to the North Andover School by being sent to the
School Superintendent, 1600 Osgood, North Andover, Massachusetts 01845.
26. Binding on Successors:
This Contract shall be binding upon the Contractor, its assigns, transferees, and/or successors in
interest (and where not corporate, the heirs and estate of the Contractor).
27. Complete Contract:
This instrument, together with its endorsed supplements, and the other components of the
contract documents, constitutes the entire contract between the parties, with no agreements other
than those incorporated herein.
28. Supplemental Conditions:
The foregoing provisions apply to all contracts to which the North Andover School Department
shall be a party. One of the following "Supplements" must be "checked" as applicable to this
Contract, shall be attached hereto, and shall in any event apply as the nature of the Contract
requires. The Supplement contains additional terms governing the Contract:
[ x ] GOODS
SUPPLEMENT "G" - Applicable to Contracts for the procurement of Goods
(governed by the provisions of General Laws Chapter
30B)
[ ] SERVICES
SUPPLEMENT "S" - Applicable to Contracts for the procurement of Services
(governed by the provisions of General Laws Chapter
30B)
[ ] CONSTRUCTION
SUPPLEMENT "C" - Applicable to Contracts for Construction
(Rev 5-2007) Contract by and between North Andover School Department and Page 8
IN WITNESS WHEREOF the parties have hereto and to two other identical instruments set forth
their hands the day and year first above written.
THESCHOOL
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Divi ' Department Head
Contract Manazer
School
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THE CONTRACTOR
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Company
Signature 'Date
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Print Name & Title
CERTIFICATION AS TO AVAILABILITY OF FUNDS:
Town ccountant bate
(Rev 5-2007) Contract by and between North Andover School Department and Page 9
SUPPLEMENT "G"
1. This form supplements the general provisions of the Contract between the Town of North
Andover and Northwest Evaluation Association, which Contract is a contract for the
procurement of goods.
2. "Goods" shall mean Goods, Supplies, or Materials, as described in the Contract.
3. Change Orders:
Change orders may not increase the contract price by more than twenty-five percent (25%),
in compliance with General Laws Chapter 30B, § 13.
4. This Contract for purchase includes the following delivery, installation or setup
requirements:
Dated: I i 11011
THE TOWN OF NORTH ANDOVER
By:llilA
Supe r
eAaent
THE CON CTOR
By: C�&
(Rev 5-2007) Supplement "G" to Contract between the Town of North Andover Page 1
and
CERTIFICATE OF VOTE
At a duly authorized meeting the Board of Directors of the Northwest Evaluation
Association held on July 1, 2013 it was
VOTED, THAT
Geri Cohen CFO
(Name) (Officer)
of Northwest Evaluation Association be and hereby is authorized to execute contracts and bonds
in the name and on behalf of said Northwest Evaluation Association, and affix its corporate seal
hereto; and such execution of any contract or obligation in the name of Northwest Evaluation
Association on its behalf by such officer under seal of Northwest Evaluation Association, shall be
valid and binding upon Northwest Evaluation Association.
I hereby certify that I am the clerk of the above named Northwest Evaluation Association
and that Geri Cohen is the duly elected officer as above of said
Northwest Evaluation Association, and that the above vote has not been amended or rescinded and
remains in full force and effect as the date of *''�� ---*r--*
(Date)
Certification of the Corporate Clerk
CERTIFICATIONS
CERTIFICATE OF NON -COLLUSION
The undersigned certifies under penalties of perjury that this bid or proposal has been made and
submitted in good faith and without collusion or fraud with any other person. As used in this
certification, the word "person" shall mean natural person, business, partnership, corporation,
committee, union, club or other organization, entity, or group of individuals.
Signature_9ea— Date /
Geri Cohen CFO Northwest Evaluation Association
Print Name & Title Company Name
CERTIFICATE OF TAX COMPLIANCE
Pursuant to Chapter 62C of the Massachusetts General Laws, Section 49A (b), I
Geri Cohen , authorized signatory for Northwest Evaluation Association
Name of individual Name of contractor
do hereby certify under the pains and penalties of perjury that said contractor has complied with
all laws of the Commonwealth of Massachusetts, and the Town of North Andover, relating to
taxes, permit or other fees, reporting of employees and contractors, and withholding and
remitting child support.
aA / / / 5 -
Signature Date