HomeMy WebLinkAboutOverture Learning - District 93 Contract SignedEDUCATIONAL SERVICES AGREEMENT
This EDUCATIONAL SERVICES AGREEMENT ("Agreement") is made and entered into by and be
tween Bonneville Joint School District No. 93 ("District"), and OVERTURE LEARNING, LLC, an
Idaho limited liability company ("Overture Learning"), as of the date signed by the Parties below. This
Agreement shall replace and supersede all prior agreements, oral or written, as ofthe effective date here
of.
1. Terms of Contract
a. Effective Date -This Agreement shall commence as of September 4, 2018 for the 2018-2019 aca
demic year.
b. Term and Renewal -This agreement shall be for the term ofone (1) academic year beginning on
the Effective Date and ending on June 30th of the calendar year following. This agreement shall
automatically renew each year for an additional term of one academic year (July 1st through June
30th) ifnot otherwise terminated by either party by written notification ofintent to terminate giv
en to the other party no later than March I st of any applicable academic year.
2. Description of Responsibilities for Overture Learning, LLC
a. Student Recruitment -Recruit students in grades K-8 as distance learning students registered with
the District. New student(s) may be added to replace student(s) who cancel registration in the
program during the academic year in an effort to allow enrollment numbers to remain constant.
b. Registration and Enrollment -Collect and maintain all student registration information, forms,
and required documentation (collectively "Registration Packet"). Provide a copy ofeach student's
complete Registration Packet to the District.
c. Mentoring -Provide teachers licensed according to requirements of the state to serve as mentors
to parents of students. Mentors will assist in providing suggestions and guidance to parents in
areas ofcurriculum, educational materials/resources, and methods ofteaching in an effort to as
sist parents in the education of their student(s). Mentors will regularly review student educational
plans and progress reports with parents.
d. Progress Reports -Maintain progress reports of each student's progress and submissions and pro
vide access for teachers/mentors and the District to review such progress and submissions.
e. State Required Assessments and Testing -Coordinate, schedule, and arrange for administration of
state required testing. Where students live within the District's physical boundaries, such assess
ments and testing may be provided by the District as arranged with Overture.
f. Expenses -Overture is solely responsible for the expenses of its services and responsibilities un
der this Agreement.
g. Employment ofPersonnel -Overture is responsible for the hiring, training, and payment ofli
censed teachers and other administrative staff to carry out its responsibilities under this Agree
ment and in accordance with applicable state law.
h. Confidentiality ofRecords -Maintain the confidentiality ofpersonnel, students, and other records
in accordance with applicable state law. Overture is not responsible to maintain records for stu
dents once they have discontinued enrollment in the program.
3. Description of Responsibilities ofthe District
a. General Oversight -The District is responsible for the monitoring of Overture's performance and
compliance with the terms ofthis Agreement and implementation ofprocedures consistent with
applicable District policies.
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b. Special Education -The District will provide special education and 504 services to any student(s)
who do or may qualify for such services in accordance with federal and state requirements. The
District will be responsible for the expenses ofproviding these services (such as speech, physical,
and/or occupational therapy) including assessments and other evaluations so long as total number
ofstudents receiving special education and 504 services does not exceed l 0% ofthe total number
ofstudents enrolled in the program. Ifthis number exceeds 10%, the District and Overture will
reevaluate this provision and adjust it as needed by way ofwritten amendment to this Agreement.
c. Transcripts, Cumulative Files and Grade Reports -The District is responsible to request, obtain,
store, and manage student transcripts and files. The District is responsible to maintain any records
required beyond or outside of the cunent academic year.
4. EnroIJment
a. Final enrollment information and packets will be provided to the District no later than October 5,
2018.
b. Each year that the Agreement continues without written termination, final enrollment information
will be due to the District on the first Friday in October.
5. Fees, Invoicing, and Payment
a. Fees -For each student enrolled by the enrollment date provided in Section 4, the District shall
pay Overture an amount of$4,000 per student in grades 1-8 and $2,000 per Kindergarten student.
b. Invoicing and Payment -After submission offinal enrollment information, Overture will provide
an invoice of60% ofthis total amount for payment within 14 calendar days of the invoice date.
Overture Learning will provide invoices for the remaining 40% of this total as follows: monthly
from January through April (l0% per month) and the District will make payment within 14 cal
endar days of the invoice date. The monthly invoice amount will be adjusted based on any stu
dents who cancel enrollment prior to this date.
c. Interest -The District agrees to pay as invoiced by the dates mentioned above. The District agrees
to pay interest in the amount ofone percent (1%) per month (12% annually) on an amounts more
than 10 calendar days overdue. In the event that any action is undertaken to collect amounts due
hereunder, the District agrees to pay, in addition to fees and interest, all costs ofsuch collection
action.
d. Location ofPayment -All payments made hereunder will be made payable to Overture Learning,
LLC or its designated Affiliate at the address set forth herein or other such address provided by
Overture in writing.
6. Relationship ofParties -Overture is not a division or any part of the District. The District is a body
corporate authorized under State law and is not a division or any part ofOverture. The relationship
between the parties was developed and entered into through anus-length negotiations and is based
solely on the terms ofthis Agreement. Overture will operate as an independent contractor to the Dis
trict and will be responsible for delivering the services required by this Agreement. Nothing herein
will be construed to create a partnership orjoint venture by or between the District and Overtme. Nei
ther party will be the agent ofthe other except to the extent otherwise specifically provided by this
Agreement. Neither party will represent to third parties any ability to bind the other to any duty im
posed by contract, other than this Agreement or as othexwise agreed in writing.
7. Proprietary Information -Except for items that are readily available to educational entities or in the
public domain, all of the materials, methods, lists, cunicula, names, processes, technologies, trade
marks, trade names and other items, tangible or intangible, registered or unregistered, used by Over
ture Learning, LLC in delivery of the Program services are the property ofOverture Learning, LLC
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or used by Overture Learning, LLC under authority ofthe legal owner thereof and shall be consid
ered confidential or proprietary information ("Proprietary Information") Neither the District, nor its
owners, directors, employees, agents or affiliates shall have any right or authority to use the Propri
etary Information for its own purpose by virtue of this Agreement, both during or after the termination
or expiration ofthis Agreement.
8. Termination
a. Termination for Breach -Either party may terminate this Agreement at any time for cause with
ninety (90) days' prior written notice to the other party. Termination for cause may be used ifa
party breaches any material term or fails to fulfill any material condition, term, provision, repre
sentation, warranty, covenant or obligation contained in this Agreement and fails to cure the same
within ninety (90) days after receiving written notification from the terminating party. Upon ter
mination ofthis Agreement pursuant to this Section, the non-breaching party shall be entitled to
seek any remedies to which it shall be entitled at law or in equity.
b. Tennination Upon Loss ofAuthority -This Agreement will terminate immediately upon the ter
mination ofthe District's operating authority.
c. Termination in the Event of Certain Changes in Policies ofthe Idaho State Department of Educa
tion or the District. Overture may terminate this Agreement effective immediately upon written
notice to District in the event that the Idaho State Department ofEducation or District adopts or
amends a policy, in each case without the prior written consent of Overture, the effect ofwhich
could reasonably be determined to require Overture to materially increase the level of services
required hereunder or which materially increases the financial risk to Overture arising from its
performance hereunder.
d. Change in Applicable Law -Ifany change in applicable state law that is enacted after the date
hereof could reasonably be expected to have a material adverse effect on the ability of either party
to carry out its obligations hereunder, such party, upon written notice to the other party (which
notice may be given at any time following enactment of such change in applicable state law,
whether or not such change is effective on the date ofsuch enactment or is effective at a later
date), may request renegotiation ofthis Agreement. Such renegotiation will be undertaken in
good faith. Ifthe parties are unable to renegotiate and agree upon revised terms within one hun
dred twenty (120) days after such notice ofrenegotiation, then either party may provide ninety
(90) day written notice of termination ofthis Agreement.
e. Effects ofTermination:
i. Except as otherwise agreed by the parties in writing, termination shall not relieve either party
ofany obligation for payments due to the other party as ofthe date of termination or other
obligations that continue upon termination as provided in this Agreement.
ii. In the event this Agreement is terminated for a breach by Overture prior to the end of a given
academic year, the parties shall calculate the Fee as ofthe end of such academic year as ifthis
Agreement had not been terminated. The parties shall then prorate those amounts to the date
oftermination ofthis Agreement, and District shall pay Overture the prorated amount within
30 days ofthe effective date of termination.
ni. In the event this Agreement is terminated by the District for any reason other than a breach by
Overture prior to the end ofits Term, the District shall pay to Overture any fees due under the
current term ofthis Agreement. Such amount shall be due and payable within 60 days of the
effective date oftermination. Late payments shall be subject to interest charges as identified
in Section S(c) above.
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9. Limitation on Liability -Except i.n connection with its indemnity obligations, neither party shall be
liable for any indirect, consequential, exemplary, incidental, special, or punitive damages including
without limitation lost savings, lost funding, lost revenues, lost sales, lost profits, lost opp01tunity
costs, business interruptions, delay damages, damages for third party claims, lost or destroyed data, or
any other economic loss, ofany type or nature or for events or circumstances beyond the party's con
trol, even ifthe party has been advised ofthe possibility ofsuch damages or loss.
10. Assignment -Except as otherwise provided in this Agreement, neither party may assign or delegate
any rights or obligations under this Agreement without the prior written consent of the other party.
Except as prohibited by applicable state law, Overtw·e may assign all of its rights and obligations un
der this Agreement to any person or entity that controls Overture, is controlled by Overture, or is un
der common control with Overture, or to any successor in interest that acquires all or substantially all
ofthe assets ofOverture. Overture, upon notice to the District, may delegate the performance ofits
duties hereunder to any person or entity but shall remain responsible for the performance, in accor
dance wi.th the terms ofthis Agreement, ofany services performed by its delegates, except notice
shall not be required when Ove1ture delegates its obligation to provide materials or curricula to third
parties in the normal course ofbusiness.
11. Indemnity-The party charged with indemnifying and/or defending under this Section (the "Indemni
fying Party") shall conduct the defense in any such third party action arising as described herein and
the party claiming the benefits ofthis Section (the "Indemnified Party") promises to cooperate with
such defense, provided the Indemnifying Party reasonably consults with the Indemnified Party on any
settlement (subject to the consent requirement in the last sentence ofthis paragraph). Not
withstanding the foregoing, the Indemnified Party may, at its own expense, assist in such defense if it
so chooses, provided that the Indemnifying Party shall be entitled to control such defense and all ne
gotiations relative to the settlement ofany such claim. Any settlement that would admit any liability
on the part ofthe Indemnified Party shall require such Indemnjfied Party's prior written consent.
a. Indemnification ofDistrict -Overture agrees to indemnify, defend, and save and hold the District
and its employees, officers, directors, trustees, subcontractors, and agents, their respective succes
sors and permitted assigns, harmless against any and all claims, demands, suits, or other forms of
liability including without limitation costs and reasonable attorneys' fees (each a "Claim") that
may arise out of, or by reason of, any (a) breach ofany representation or warranty, covenant or
agreement made or to be performed by Overture pursuant to this Agreement, (b) noncompliance
by Overture with any Applicable Law in connection with District's operations, but excluding any
claims that arise from conduct undertaken in accordance with the District's instructions, proce
dures or written polfoies or in accordance with the written policies of the State Board ofEduca
tion, except where such instructions arise from and are in accordance with specific advice or ex
plicit recommendations provided by Overtme, and (c) act or omission ofOverture or any of its
employees, officers, directors, trustees, subcontractors or agents in connection with its perfor
mances, limitations and obligations hereunder that results in injury, death, or loss to person or
property except to the extent any Claim arises out ofactions or omissions ofthe District.
b. Indemnification ofOverture -The District agrees to indemnify, defend, and save and hold Over
ture and each affiliate ofOverture and all of their respective employees, officers, directors,
trustees, subcontractors, and agents, their respective successors and permitted assigns, harmless
against any and all claims that may arise out of, or by reason of, any (a) breach or any representa
tion or warranty, covenant or agreement made or to be performed by the District pursuant to this
Agreement, (b) noncompliance by the District with any Applicable Law in connection with Dis
trict's operations, and (c) act or omission of the District or any ofits employees, officers, direc
tors, trustees, subcontractors or agents in connection with the District's operations that results in
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injury, death, or loss to person or property except to the extent any Claims arise out of actions or
omissions ofOverture.
c. Insurance -Each party shall carry appropriate insurance, including general liability, with mini
mum coverages and limits as required from time to time for govermnental/quasi-governmental
entities (currently $1,000,000 per occurrence/$3,000,000 aggregate) and workers compensation
coverage in amounts no less than required by law.
12. Representations and Warranties
a. Overture hereby represents and warrants to the District:
i. Organization and Good Standing -Overture is a limited liability company duly organized,
validly existing, and in good standing under the law of the State of Idaho.
IL Authorized to Conduct Business -Overture is and at all times shall be registered and autho
rized to do business in the State ofIdaho.
iii. Compliance of Educational Products and Services with applicable law -The educational
products and services provided by Overture Leaming, LLC in fulfillment of its responsibili
ties under this Agreement comply with, and shall at all times during the term ofthis Agree
ment, comply with Applicable Law, including the standards for curriculum as issued by the
State Board of Education.
iv. Power and Authority -Overture has full power and authority to execute and deliver this
Agreement and to perfonn its obligations hereunder. This Agreement has been duly autho
rized and executed by Overture and constitutes the valid and legally binding obligation of
Overture, enforceable against Overture in accordance with its tenns, except as such enforce
ability may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, and other laws of general applicability relating to or affecting creditors' rights
and by general principles of equity.
b. The District hereby represents and warrant to Overture:
i. The District is a public school entity in the State ofldaho.
1i. Power and Authority -The District has full power and authority to execute and deliver this
Agreement and to perfonn its obligations hereunder. This Agreement has been duly autho
rized and executed by the District and constitutes the valid and legally binding obligation of
the District, enforceable against the District in accordance with its terms and conditions, ex
cept as such enforceability may be limited by bankruptcy, insolvency, reorganization, morato
rium, fraudulent conveyance, and other laws ofgeneral applicability relating to or affecting
creditors' rights and by general principles of equity.
ui. Authority Under Applicable Law -The District has the authority under Applicable Law (i) to
contract with a corporate entity to perfonn the services, (ii) to execute, deliver, and perform
this Agreement and (iii) to incur the obligations provided for under this Agreement.
iv. Compliance of Educational Program with Applicable Law -The District's educational pro
gram complies with, and the District will ensure that it will continue to comply with the poli
cies and requirements ofthe State Board ofEducation and applicable state law.
13. Governing Law -The laws of the State ofldaho without regard to its conflict oflaws provisions will
govern this Agreement, its construction, and the determination of any rights, duties, and remedies of
the parties arising out of or relating to this Agreement.
14. Entire Agreement -This Agreement, including any Addenda and Exhibits hereto (all ofwhich con
stitute part of this Agreement), constitute the entire agreement ofthe parties with respect to the sub-
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ject matter hereof, and supersedes all previous oral and written, and all contemporaneous oral negoti
ations, commitments, agreements and understandings relating hereto.
15. Counterparts, Facsimile Transmissions -This Agreement may be executed in counterparts, each of
which will be deemed an original, but both ofwhich will constitute one and the same instrument.
Each party may rely on facsimile signature pages as ifsuch facsimile pages were originals.
16. Notices -All notices and other communications required by the terms ofthis Agreement will be in
writing and sent to the parties hereto at the addresses set forth below (and such addresses may be
changed upon proper notice to such addressees). Notice may be given by (i) certified or registered
mail, postage prepaid, return receipt requested, (ii) reputable overnight carrier, postage prepaid, (iii)
facsimile (with confirmation of transmission by sender's facsimile machine), or (iv) personal delivery
(with written receipt confirming such delivery). Notice will be deemed to have been given (i) two
days after mailing as described in clauses (i) and (ii) ofthe foregoing sentence, (ii) on the date ofper
sonal delivery or (iii) on the date oftransmission ofa facsimile ifon a business day during normal
business hours (or, ifnot, the next succeeding business day). Electronic mail does not constitute offi
cial notice under this Agreement. The addresses of the parties are:
For Overture Learning, LLC : PO Box 182, Montpelier ID 83254
For District: 3497 N Ammon Rd, Idaho Falls ID 83401
17. Amendment -This Agreement will not be altered, amended, modified, or supplemented except in a
written document executed by the parties.
18. Waiver -No waiver ofany provision ofthis Agreement will be effective unless in writing, nor will
such waiver constitute a waiver of any other provision ofthis Agreement, nor will such waiver consti
tute a continuing waiver unless otherwise expressly stated.
19. Scverability -The parties intend that each provision hereofconstitute a separate agreement between
them. Accordingly, the provisions hereofare severable and in the event that any provision ofthis
Agreement shall be deemed invalid or unenforceable in any respect by a court ofcompetent ju risdic
tion, the remaining provisions hereofwill not be affected, but will, subject to the discretion ofsuch
court, remain in full force and effect, and any invalid or unenforceable provision will be deemed,
without further action on the part ofthe parties, amended and limited to the extent necessary to render
the same valid and enforceable and reflect the intent ofthe parties.
20. Successors and Assigns - This Agreement will be binding upon and inure to the benefit ofthe parties
and their respective successors and permitted assigns.
21. Survival ofTermination -All representations, warranties, and indemnities made in this Agreement
will survive termination of this Agreement.
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9/13/2018 Jennifer Goostrey