HACC WORKKEYS AGREEMENT

Transcription

1 HACC WORKKEYS AGREEMENT Agreement made and entered this day of, 2016, by and between the School District of the City of Harrisburg, with a principal office located at 1601 State Street, Harrisburg, PA ( School District or District ), and Harrisburg Area Community College, a Pennsylvania community college with a principal office located at, Harrisburg, Pennsylvania ( HACC ). PURPOSE FOR AGREEMENT The purpose for this Agreement is for the District to retain HACC to conduct a pilot ACT WorkKeys Program ( Program ) for student workforce assessments for eight (8) District students to provide career readiness input, education and certification. HACC and the District, with the intent to be legally bound, agree as follows: A. SCOPE OF SERVICES. 1. HACC will conduct the Program, including eight (8) WorkKeys/KeyTrain assessments and related training, in accordance with the Proposal for Harrisburg High School ACT/WorkKeys Pilot Partnership with HACC and ACT WorkKeys attached to this Agreement as Exhibit A and incorporated into this Agreement ( Services ). 2. The sessions and related training shall occur on locations selected and designated by the District. 3. There shall be two (2) sections for the assessments and training. 4. Each assessment and training session shall be 3.5 hours. 5. The training schedule of events is as follows: a. WorkKeys, National Career Readiness Certificate (NCRC) test. b. Keytrain-Modules. c. WorkKeys, National Career Readiness Certificate (NCRC) test. 6. HACC will give students who satisfactorily complete the Program Certificates of Completion in the form of National Career Readiness Certificates (NCRC). B. TERMS OF PAYMENT 1. Upon satisfactory completion of the Services, the District shall pay HACC Sixty-Five and No Hundredths Dollars ($65.00) for each assessment which assessments shall total eight (8) 1

2 in number. There shall be no compensation to HACC for preparation or travel or any other costs or expenses related to its performance of this Agreement. 2. HACC shall invoice the District for the amounts set forth herein. Any expenses incurred shall be HACC's responsibility. As an independent contractor HACC shall not be entitled to receive any compensation, commissions, any fringe or other benefits, including workers compensation coverage and insurance of any nature, which the District provides to its employees, other than those expressly provided for in this Agreement. 3. The District shall send payment to HACC at the following address:. 4. Payment is not due until the District receives a proper invoice containing HACC's federal tax identification number. 5. Notwithstanding any other payment provisions of this Agreement, the District reserves the right to withhold payments for HACC's failure to perform as agreed in this Agreement. C. TERM AND TERMINATION OF AGREEMENT. 1. This Agreement will commence on January 25, 2016 and will end on March 1, 2016 ( Term ). 2. Either party to this Agreement may terminate it at any time during the Term upon written notice to the other party. In the event of termination, the District will pay HACC for the Services 2

3 HACC satisfactorily performed, as determined solely by the District, through the date of termination. D. HACC DUTIES. During the Term, HACC will promptly perform or provide to the District the following: 1. Signing and delivery of this Agreement. 2. Information pertinent to students who participate in the Program, such as test scores and evaluations. 3. Instructors. 4. Laptop computer, CD with PowerPoint, DVD, tools and other equipment needed for the performance of the Services. 5. Assistance in the development, identification and selection of students to participate in the Program as well as in the understanding of ACT and WorkKeys materials. 6. Assistance with marketing, advertising and planning including the provision of brochures for District teachers, students and others as determined by the District. 7. Certificates of Completion, calculators, pencils and tools as needed. 8. Performance of the Services with due diligence and in a timely, competent, and professional manner and in accordance with the highest professional standards. 9. HACC shall comply with all laws, rules, regulations and orders as they relate or pertain to this Agreement. 10. HACC shall not discriminate against any person for employment on the basis of race, national origin, sex, disability, age, religion, ancestry, or any other legally-protected classification in accordance with all state and federal laws. E. HACC S REPRESENTATIONS AND WARRANTIES. HACC represents and warrants that: 1. All employees and agents that will perform services under this Agreement have not been convicted of any felonies and are properly licensed if a license is necessary for their duties. All employees and agents that will perform services under this Agreement have not been convicted of any crimes for fraud, bribery, molestation, or sexual misconduct. 3

4 2. All employees and agents that will perform services under this Agreement are qualified to do so. 3. It is in full compliance with all laws, rules, regulations, and orders including but not limited to applicable state and federal regulations in screening prospective and current employees. 4. It has the full capacity and authority to perform the services specified in this Agreement. 5. It is not under any outstanding agreement or obligation which directly or indirectly conflicts with or prevents it from performing under this Agreement, that this Agreement does not constitute a breach of any obligation that it has to a third party, and that it will not enter into any conflicting agreement during the Term or any extensions or renewals of the Term. F. DISTRICT S DUTIES. During the Term, the District will promptly perform or provide to HACC the following: 1. Provided that HACC is not in breach of any of the terms and conditions of this Agreement, adherence to the payment requirements set forth in this Agreement. 2. A schedule and student information. 3. Compliance with all laws, rules, regulations and orders as they relate and pertain to this Agreement. G. WORK PRODUCT. Except for HACC s proprietary and legally protected information and materials, all work product pursuant to this Agreement will be owned by the District. H. BACKGROUND CHECKS. 4

5 Before starting any of the Services, all of HACC s personnel and each of HACC s and any subcontractor s employees, officers, agents, servants, volunteers or subcontractors who will have direct contact with minor children or District students while performing any of the Services, must submit to the District the originals of current criminal history background check reports processed by the Commonwealth of Pennsylvania within one (1) year prior to HACC s starting the Services, child abuse history clearance reports, and Federal Bureau of Investigation criminal history record information for each of its employees, officers, agents, servants, volunteers or subcontractors who will have direct contact with minor children or District students while performing any of the Services. I. CONFIDENTIALITY. HACC shall keep in strictest confidence all information acquired in connection with this Agreement that the District designates as confidential or proprietary. The District may provide HACC with access (orally, visually or otherwise) to confidential, proprietary, and highly sensitive information relating to the District, which may include, without limitation, information pertaining to the business, operations, finances, employees, students and parents of the District (collectively, Confidential Information ). HACC acknowledges that from time to time the District may disclose Confidential Information to HACC in order to enable HACC to engage in the services described in this Agreement. HACC recognizes and agrees that the unauthorized disclosure of Confidential Information could be harmful to the District. Consequently, HACC agrees not to use, at any time, any Confidential Information for HACC's own benefit or for the benefit of any person, entity, or company other than the District, or to disclose, either directly or indirectly, any Confidential Information to any person who is not a current employee of the District authorized to receive such Confidential Information, except in the performance of the Services described in this Agreement, at any time prior or subsequent to the termination of this Agreement, without the express, written consent of the District. HACC acknowledges that any and all documents, including documents containing Confidential Information and are marked as such, furnished by the District or otherwise acquired or developed by HACC in connection with this Agreement (collectively, District Materials ) shall at all times be the sole property of the District. Upon the termination of this Agreement, HACC shall return to the District or destroy any and all District Materials that are in HACC s possession, custody, or control, whether in hard copy written or electronic form. The provisions of this Section I shall survive termination or expiration of this Agreement. The parties acknowledge that the unauthorized access to or dissemination of school student records is prohibited under State and federal law. HACC shall comply with the Family Education Rights and Privacy Act of 1974 and any other applicable State and federal laws and regulations regarding the privacy of student records. J. INDEPENDENT CONTRACTOR. HACC is an independent contractor and, subject to the terms of this Agreement, shall have the sole right to supervise, manage, operate, control and direct the performance of the Services and HAAC s duties under this Agreement. Accordingly, HACC shall be responsible for payment of all taxes including federal, state and local taxes arising out of HACC's activities in accordance with this Agreement, including by way of illustration but not limitation, federal and state income 5

6 tax, Social Security tax, unemployment insurance taxes, and any other taxes or business license fees as required. HACC does not have the power or authority to bind the District in any capacity. No joint venture, partnership, agency, employer-employee, principal agent or similar relationship between the District and HACC is created in or by this Agreement. Neither party may assume or create obligations on the other party's behalf, and neither party may take any action that creates the appearance of that authority. HACC shall retain control over its employees and agents and HACC's employees and agents shall not be considered common law employees of the District. Notwithstanding anything to the contrary stated in this Agreement, with respect to the Patient Protection and Affordable Care Act of 2010 and the guidance issued thereunder by the Internal Revenue Service, the U.S. Treasury Department, the U.S. Department of Labor, and the U.S. Department of Health and Human Services, and, in particular, Section 4980H of the Internal Revenue Code of 1986, as amended, those persons performing services for HACC on behalf of the District shall not be considered common law employees of the District. HACC specifically acknowledges and understands that, as an independent contractor, HACC is not entitled to health benefits, vacation days, sick days, pension benefits, unemployment compensation, workers compensation, disability benefits, insurance, or other benefits that may now, or in the future, be provided to District employees. K. INDEMNIFICATION 1, HACC shall indemnify, pay the cost of defense of and hold harmless the District, its officers, employees, agents and the members of the School Board from and against any and all losses, costs including litigation and settlement costs, compensatory education costs and counsel fees and expenses, claims, suits, actions, damages, liability and expenses for or on account of loss of life, bodily injury, personal injury, including death, damage to property, contamination or adverse effects on the environment, to the extent arising out of the following: the negligence or intentional misconduct of HACC or any of HACC s employees, agents, contractors and subcontractors; HACC s failure to pay any contractors or suppliers; any breach of this Agreement by HACC; any infringement or violation by HACC of any proprietary right including patent, copyright, trademark, service mark and trade secret; or any of HACC s activities in connection with this Agreement. This indemnity shall not cover, and HACC shall not be liable to the District for, any losses, costs, claims, suits, actions, damages, liability and expenses that the District may suffer or incur as a result of the negligence or willful acts of the District. 2. This Section K is independent of whether or not HACC has insurance and it is not limited by the Pennsylvania Workers Compensation Act. This Section K shall apply, particularly, but not exclusively, to the claims of HACC and all of its contractors and subcontractors, and all of their respective officers, agents, representatives and employees, against the District, its officers, employees and agents, and the members of the District s School Board. 3. If, at any time, the District becomes involved in a dispute or receives notice of a claim or is involved in litigation concerning the Services provided by HACC under this Agreement, the resolution of which requires the services or cooperation of HACC, and HACC is not otherwise obligated to indemnify and defend the District pursuant to the provisions of this 6

7 Section J, HACC agrees to provide such services and to cooperate with the District in resolving such claim or litigation as part of the services under this Agreement. 4. If HACC receives notice of a legal claim against it in connection with this Agreement, HACC shall submit appropriate written notice of such claim to its insurance carrier within the time frame required for submission of claims by the applicable insurance policy and, within ten (10) business days following receipt of notice of the claim, give notice of the claim to the District. L. INSURANCE 1. Throughout the term of this Agreement, HACC shall maintain, at its own expense, adequate insurance coverage regarding its activities in connection with this Agreement including the following: a. Commercial General Liability. Commercial General Liability coverage, on an occurrence basis, including Contractual Liability, with limits not less than the following: $2,000,000 General Aggregate (including bodily injury/and or property damage); $2,000,000 Products Completed Operations Aggregate; $1,000,000 Per Occurrence; ($1,000,000 Personal Injury; and a Sexual Molestation and Child Abuse Endorsement. b. Automobile Liability. Automobile coverage with limits not less than $1,000,000 Combined Single Limit for all owned autos and/or hired/non-owned autos. c. Workers Compensation and Employers Liability. Workers Compensation Coverage for its employees with limits not less than the statutory limits for the State of Pennsylvania; and Employers Liability coverage with limits of $100,000 Each Accident Bodily Injury by Accident. d. Excess Umbrella Liability. Excess/Umbrella Liability coverage in an amount not less than $10,000,000 per occurrence. The Excess/Umbrella Policy shall schedule all underlying liability coverages required under this Agreement unless a separate $10,000,000 limit is maintained for Professional Liability. e. Professional Liability/Educators Liability/Malpractice/Errors and Omissions Insurance. Professional Liability/Educators Liability/Malpractice/Errors and Omissions Insurance with limits not less than the following: (i) $3,000,000 General Aggregate; (ii) $3,000,000 Per Occurrence. Any such Professional Liability should include Employment Practices Liability including 3rd party employment practices. 2. HACC is solely responsible for meeting all of HACC's insurance needs. HACC agrees that it is not insured by or under the insurance policies of the District. HACC shall obtain and maintain, at it's own expense, all insurance that it is required by law to carry in connection with the Services described in this Agreement. 3. All insurance policies required by this Agreement shall be primary and noncontributory with regard to the District s policies, and shall be maintained in full force and effect for the Term of this Agreement or any extension or renewal of the Term. Each policy shall contain the 7

8 provision that HACC shall provide thirty (30) days prior written notice given to the District in the event of cancellation, non-renewal, or material change to the insurance coverages. HACC shall provide a certificate of insurance evidencing all insurance coverages as outlined below, for review by the District, at least seven (7) working days prior to the execution of this Agreement. Upon request from the District, HACC shall promptly provide to the District certified copies of all insurance policies required by this Agreement. The insurance companies indicated as the carriers on the insurance certificates, shall be authorized to do business in the Commonwealth of Pennsylvania, shall have a Best rating no less than A. The District and its School Board, officers, employees, and agents shall be named as Additional Insureds on all of HACC s insurance policies. 4. The insurance requirements set forth in this Agreement are not intended and shall not be construed to modify, limit or reduce HACC s indemnification obligations set forth in this Agreement or limit HACC s liability to the limits of the policies of insurance required to be maintained by this Agreement. M. NOTICES/ADDRESSES. All notices shall be in writing. The addresses of the parties are as follows: If to HACC: If to the District: Harrisburg School District 1601 State Street Harrisburg, PA Attention: Chief Financial Officer N. LIMITATIONS ON LIABILITY. No individual official, employee, or agent of the District or member of the District s School Board shall have any direct or indirect personal liability under or in connection with this Agreement. The District is a local agency and at all times retains its statutory immunity defense as provided by the laws of the Commonwealth of Pennsylvania. 42 Pa. C.S.A. 8501, O. CONTRACTOR S OBLIGATIONS. The existence of any contract or subcontract between HACC and another party shall not change the obligations of HACC to the District. HACC shall be fully responsible for its subcontractors, and all subcontractors shall be bound by the same terms and conditions as HACC under this Agreement, including without limitation, non-discrimination, warranties, confidentiality, maintenance and preservation of records and audit by government representatives. The District shall have no obligations to any subcontractors of HACC. Each subcontract shall contain a provision to the effect that subcontractor shall have no recourse to the District for any payment under the subcontract, and a provision that the subcontract is subject to the terms and 8

9 conditions of this Agreement. P. SEVERABILITY. In the event that any section, paragraph or term of this Agreement shall be determined to be invalid or unenforceable by any competent tribunal for any reason, the remainder of this Agreement shall be unaffected thereby and shall remain in full force and effect. If any section, paragraph, or term of this Agreement is adjudged to any extent to be invalid or unenforceable by any competent tribunal, that section, paragraph, or term will be deemed modified to the extent necessary to make it enforceable. Q. AMENDMENT. This Agreement may be amended only by mutual written agreement of the District and HACC. R. GOVERNING LAW. This Agreement is made under, governed by, and will be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania without regard to any conflict of laws provisions. S. JURISDICTION AND VENUE. The District and HACC agree that all legal proceedings relating to the subject matter of this Agreement shall be maintained in the Court of Common Pleas of Dauphin County, Pennsylvania, or, if applicable, the United States District Court of the Middle District of Pennsylvania, and that jurisdiction and venue for all of those proceedings shall lie exclusively within those Courts. T. ENTIRE AGREEMENT. This Agreement contains the entire agreement between the District and HACC regarding its subject matter and relating to the rights granted and the obligations assumed in it, and supersedes all previous communications, representations or agreements, either written or oral, between the District and HACC, and not incorporated in this Agreement. No waiver, alteration or modification of any of the provisions of this Agreement shall be binding on any party to it unless in writing and signed by the party against whom enforcement of such waiver, alteration or modification is sought. The language of all parts of this Agreement shall in all cases be construed according to its fair meaning and not strictly for or against any of the parties. U. AUDIT. HACC shall maintain records that relate to the expenses for services performed under this Agreement for a period of four (4) years from the date of final payment, and shall make these 9

10 records available to the District and its representatives at reasonable times and with reasonable notice to Consultant. V. WAIVER OF BREACH. No waiver by either the District or HACC of a breach of any provision of this Agreement shall be construed to be a waiver of any breach of any other provision. No delay in acting by either the District or HACC with regard to any breach of any provision shall be construed to be a waiver of any such breach. W. PUBLICITY. HACC shall not issue any media release, press release, or public announcement, including any promotional or marketing materials or presentations, relating to this Agreement or its subject matter without the prior written consent of the District. X. ASSIGNMENT. HACC agrees that the Services are personal services of HACC. HACC shall not assign this Agreement, or any part of this Agreement, or delegate performance of this Agreement, without the prior written consent of the District, which consent the District may grant, withhold, condition or delay in its sole discretion. Any purported assignment in violation of this provision shall be void and of no effect. The District s consent to an assignment shall not release the assignor from any liability accrued or thereafter accruing under this Agreement. Any assignment shall be in writing and shall contain an express assumption by the assignee of all liability accrued or thereafter accruing under this Agreement. Consent by the District to any assignment shall not be deemed a course of conduct, dealing or performance with respect to any other assignment or proposed assignment. For purposes of this Section X, an assignment includes the following: the acquisition of HACC, or a controlling interest in it, through an asset sale or a corporate or other merger; the appointment of a receiver or bankruptcy trustee for HACC; and the transfer of this Agreement in any bankruptcy or other insolvency-related proceeding. A receiver or trustee of or for HACC in any federal or state bankruptcy, insolvency or other proceeding concerning HACC shall comply with the requirements set forth in this Agreement, including but not limited to this Section X. Y. FORCE MAJEURE. Neither the District nor HACC shall be liable if the performance of any part or all of this Agreement is prevented, delayed, hindered or otherwise made impracticable or impossible by reason of any strike, flood, riot, fire, explosion, war, act of God, sabotage, accident or any other casualty or cause beyond the control of either the District or HACC, and which cannot be overcome by reasonable diligence and without unusual expense. Z. AUTHORIZATION OF AGREEMENT. The District and HACC each represent and warrant to the other that execution of this Agreement has been duly authorized and that this Agreement constitutes a valid and enforceable 10

11 obligation of each according to its terms and in accordance with the laws of the Commonwealth of Pennsylvania. This Agreement shall not be valid unless and until the District s School Board approves it. AA. HEADINGS. The headings and any other captions contained in this Agreement are for convenience and reference only, and they shall not, expressly or by implication, limit, define, extend or construe the terms or provisions of this Agreement. BB. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party to the Agreement whose signature appears on it, and all of which shall together constitute one and the same instrument. This Agreement shall be binding when one or more of its counterparts individually or taken together, shall bear the signatures of all of the parties to this Agreement as the signatories. Delivery of an executed counterpart of this Agreement by facsimile or electronic mail shall have the same binding effect as delivery of an executed original. 11

12 CC. NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement shall be construed to create or extend any rights to any third parties as third-party beneficiaries to this Agreement. DD. BINDING AGREEMENT. This Agreement shall be binding upon the District and HACC and, their respective successors and assigns. EE. TIME. Time is of the essence of this Agreement. With the intent to be legally bound, the District and HACC, by their authorized representatives, execute this Agreement to be effective as of the date first stated in this Agreement. WITNESS OR ATTEST: HARRISBURG AREA COMMUNITY COLLEGE By: Title: By: Name: Title: Date: WITNESS OR ATTEST: HARRISBURG SCHOOL DISTRICT By: Title: By: Name: Title: Date: 12

13 EXHIBIT A PROPOSAL FOR HARRISBURG HIGH SCHOOL ACT/WORKKEYS PILOT PARTNERSHIP WITH HACC AND ACT WORKKEYS [To be attached] 13