CONTRACTS:
WHAT SHOULD BE
INCLUDED &
WHAT SHOULD BE
AVOIDED.
Crotzer & Ormsby, LLC
Kathryn B. Forster
130 S. Bemiston, Ste. 300
St. Louis, Missouri 63105
(314) 726-3040
kforster@crotzerormsby.com
CONTRACT BASICS – DOS
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All Contracts should be in writing and dated.
All Contracts shall be within scope of District’s 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
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Breach; By either Party - upon notice (30, 60 or 90 days in
writing)
• Cure
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Period to cure before terminate
CONTRACT BASICS – DOS, CONTINUED
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Independent Contractor
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Applicable Law to Govern
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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
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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.
Assignment upon consent of District.
Amendments
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May be amended only by written instrument signed by both parties.
CONTRACT BASICS – DOS, CONTINUED
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Insurance
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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
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Contracting Party shall defend and save harmless the District, its officers,
agents and employees from any loss, liability, claim, damage and
expense, including reasonable attorney’s 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.
CONTRACT BASICS – DOS,
CONTINUED
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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.
CONTRACT BASICS – DOS,
CONTINUED
Specific for Public School Districts:
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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.
CONTRACT BASICS – AVOID
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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
PERSONNEL CONTRACTS
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.
PERSONNEL CONTRACTS
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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.
PERSONNEL CONTRACTS – PERMANENT
TEACHERS
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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.
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CONSTRUCTION CONTRACTS
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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.
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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.
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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.
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AIA Contracts can be amended: Remove arbitration and
mediation to avoid additional cost.
CONSTRUCTION MANAGEMENT
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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.
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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.
PROFESSIONAL SERVICES
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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.
COMPETITIVE BIDDING
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When a decision to contract out has been made, school leaders
should:
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Develop requests for proposals (RFPs) using
independent resources and advice rather than a
vendor’s 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 contractor’s performance with other
districts and the appropriate state agency. It is
important to look beyond the references on the
vendor’s list.
COMPETITIVE BIDDING, CONTINUED
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Examine the contractor’s plans and guarantees regarding the
district’s 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 district’s 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
vendor’s 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 district’s own
operation
COMPETITIVE BIDDING – LEGAL
COMPLIANCE
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 district’s 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.
COMPETITIVE BIDDING –
LEGAL
COMPLIANCE
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.
QUESTIONS?
Crotzer & Ormsby, LLC
130 S. Bemiston, Ste. 300
St. Louis, Missouri 63105
(314) 726-3040
kforster@crotzerormsby.com