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HomeMy WebLinkAbout10-07-2020 MOU with SLCUSD for District Learning Fee PaymentPage 1 of 6 MEMORANDUM OF UNDERSTANDING CHILD CARE PROVIDER (San Luis Coastal Unified School District) THIS MEMORANDUM OF UNDERSTANDING (“MOU”) is executed on ________________ (“Execution Date”) by and between the SAN LUIS COASTAL UNIFIED SCHOOL DISTRICT (“District”) and CITY OF SAN LUIS OBISPO (“Provider”). District and Provider are referred to individually as a “Party” and collectively as the “Parties.” RECITALS A. WHEREAS, on March 4, 2020, Governor of California proclaimed a State of Emergency as a result of the novel coronavirus (“COVID-19”) outbreak. B. WHEREAS, on July 17, 2020, the Governor ordered schools in designated counties, including the County of San Luis Obispo, to commence school with distance instruction only in order to minimize the further spread of COVID-19, leaving many parents in the community without child care. C. WHEREAS, District owns the real property and facilities located at Bishops Peak Elementary School, CL Smith Elementary School and Sinsheimer Elementary School that are not currently being used for in person instruction as a result of the Governor’s order. D. WHEREAS, Provider desires to operate a child care centers at these schools including outdoor play areas, outdoor eating areas, assigned communal and adult restrooms, and rooms leased to the City (collectively referred to as the “Premises”) to provide child care services for community members located in the District’s attendance area (“Services”) during the COVID-19 emergency. E. WHEREAS, District recognizes the benefits the Services will provide to the community, including District’s students and their families during this time, and desires to assist Provider in facilitating the Services as set forth herein. F. WHEREAS, District is authorized to contract with Provider to carry on any program or activity, or may otherwise act in any manner not in conflict with or inconsistent with, or preempted by, any law and is not in conflict with the purposes for which school districts are established. NOW, THEREFORE, in consideration of the promises and the mutual covenants and agreements set forth herein, the Parties agree as follows: AGREEMENT 1. Incorporation of Recitals. The Recitals above are true and correct and are incorporated as though fully set forth herein. 2. Purpose. The purpose of this MOU is to facilitate the Services by Provider in order to provide childcare services for community members located in the District’s attendance area. Provider represents and warrants that it is properly skilled and licensed to provide the Services. Provider further represents that it has consulted with local health officials and agrees to comply with all applicable public health guidelines regarding COVID-19 in providing the Services. District agrees Page 2 of 6 to grant to Provider a license to occupy and use the Premises in order to provide the Services, as provided herein. 3. Parent/Guardian Waiver. As soon as reasonably practicable after the Execution Date, Prior to providing the Services, Provider shall require that the parent or guardian of each child sign a waiver releasing the District from liability containing at least the provisions of the form attached hereto as Exhibit A. District acknowledges that Provider also requires the parent or guardian of each child to sign an assumption of the risk and waiver releasing the Provider from liability for any and all injuries related to the child’s participation in the Services program. Provider shall deliver signed copies of the District’s waiver for each student who participates in the Services to the District for file retention purposes. 4. Health Guidelines. In providing the Services set forth in this MOU, Provider agrees to follow all local, state, and federal public health guidelines regarding human protection from COVID-19, including, but not limited to, social distancing, face coverings, contact tracing, and health screening (the “Guidelines”) unless an exception to the face covering or any other applicable guideline applies to a child receiving the Services. The Guidelines to follow are located at various sites, including, but not limited to: a. https://covid19.ca.gov/ b. https://www.cdc.gov/coronavirus/2019-ncov/index.html c. https://www.emergencyslo.org/en/covid19.aspx d. https://www.cdss.ca.gov/inforesources/community-care-licensing To the extent the Guidelines contradict one another, or require additional or different protocols from one another, the Provider shall adhere to the San Luis Obispo County Public Health Department’s guidelines in rendering the Services. 5. Cost of Services. District agrees to provide Provider with an amount up to $100 per student per week for eligible students (students who are enrolled in district schools). The District will pay Provider on a monthly basis upon receipt of documentation demonstrating student eligibility. Provider shall be responsible for all other costs associated with operating the Services, including but not limited to the salary of the child care providers. 6. Term. This MOU shall commence on the Execution Date, and shall continue through the conclusion of state mandated remote learning due to the COVID-19 emergency, unless earlier terminated by either party. 7. Termination. This MOU may be immediately terminated by either Party without cause upon seven (7) days’ notice to the other Party. Additionally, this MOU shall terminate immediately if required to comply with direction from state or local health officials. 8. Grant of License. The District, as licensor, hereby grants to Provider, as licensee, a non-exclusive license (the “License”) for the mutual benefit of the community and children and families served by both the District and Provider. Pursuant to the License, Provider shall have the non-exclusive right to use the Premises, subject to the terms and conditions herein, for the purpose of providing the Services. The License is granted in exchange for the covenants expressed in this MOU, including Provider’s covenant to provide the Services for the benefit of the community and District’s students, Provider’s promise to indemnify District, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Nothing herein shall limit or otherwise restrict District’s ability use the remainder of the School. Page 3 of 6 9. Use of Premises. Provider shall use the Premises for the purpose of providing the Services. Provider shall not use the Premises for any other purpose, except as provided herein, without the express written consent of the District. Provider shall comply with all applicable federal, state, and local laws and regulations with respect to Provider’s use of the Premises, as those laws and regulations may change from time to time. Provider shall conduct its activities without causing waste, vandalism, or a nuisance at the Premises. Provider shall be responsible for maintaining the Premises in a clean and sanitary manner, including by sanitizing the Premises as recommended by applicable public health guidance and/or directives related to COVID-19. District will provide Provider with the appropriate keys and Provider shall be responsible to ensure that the Premises are properly secured, maintained, and kept in good repair. 10. Licensed “As-Is.” The Premises are licensed to Provider, and Provider accepts the Premises, in its existing “As-Is” condition on the date of this License. Provider also accepts the Premises subject to all existing easements, licenses, and any other recorded or unrecorded encumbrances. Provider shall be responsible to provide any routine maintenance or repairs to the Premises as necessary to provide the Services. 11. Utilities. District shall provide the following utilities at no cost to Provider: routine janitorial services, electricity, water, sewer, and trash. 12. Alterations. Provider shall be solely responsible for making any improvements required to comply with the Guidelines. Such improvements shall be subject to approval by the District. No other alterations or improvements shall be made to the Premises by Provider without the advance and express written consent of District, and upon such terms and conditions as District may require. 13. Premises Inspection. During normal business hours, District may enter and inspect the Premises for compliance under the MOU. Such entry shall not unreasonably interfere with the activities being conducted by Provider. District shall have keys to unlock all doors in the Premises and the right to enter by any means necessary in an emergency. 14. Assumption of Risk. Provider recognizes that there is presently a significant element of risk of COVID-19 transmission when any group of people gathers. Provider has reviewed and understands the risks reflected in the local, state, and federal alerts and guidelines, including, but not limited to, the links above. Provider assumes all risks, known and unknown, arising from use and occupancy of the Premises, including risks from exposure to COVID-19. Provider assumes full responsibility for any sickness, hospitalization, bodily injury, death, loss of personal property, quarantines, and all related costs and expenses of any person arising from use and occupancy of the Premises unless caused by the sole gross negligence, recklessness, intentional torts, or illegal acts by the District and its agents, officers, contractors, or employees. District acknowledges that Provider requires the parent or guardian of each child to sign an assumption of t he risk and waiver form assuming full responsibility and risk for any injury, including transmission of COVID-19, related to the child’s participation in the Services. 15. Waiver and Release of Claims. To the fullest extent permitted by law, Provider releases District, its affiliated campuses, and their governing boards, affiliates, subsidiaries, divisions, administrators, directors, officers, employees, agents, and volunteers (collectively referred to herein as the “District”), from and against all claims and causes of action, for any injury or harm of any kind which may arise from or out of the Provider’s use and occupancy of the District facility, including the risks from exposure to COVID-19. This release is intended to discharge the District against any and all liability arising out of or connected in any way with the Provider’s use and Page 4 of 6 occupancy of the Premises, even though that liability may occur or arise out of the negligence or carelessness on the part of the District. However, this release is not intended to discharge the District against liability arising out of or connected in any way to the Provider’s use and occupancy of the Premises if the liability occurs or arises out of the sole gross negligence, recklessness, intentional torts, or illegal acts by the District and its agents, officers, contractors, or employees. No representations, statements, or inducements, oral or written, apart from the foregoing written statement, have been made. 16. Indemnification. Provider agrees to indemnify, defend, and hold harmless District and its governing board, members of its governing board, agents, officers, and employees from and against any and all claims, demands, lawsuits or other proceedings, bodily injury, property damages, personal injury, and other liabilities and damages, including attorneys’ fees and costs, arising out of Provider’s alleged or actual omission, act or negligence, in the performance or failure to perform its obligations under this MOU. The indemnity, defense, and hold harmless obligations set forth herein shall survive the termination of this MOU for any alleged or actual omission, act or negligence, in the performance or failure to perform its obligations under this MOU that occurred during the term of this MOU. The scope of Provider’s duty to indemnify also includes losses arising from or otherwise related to exposure to the COVID-19. 17. Protecting the Confidentiality of Student Information and Safety of Students. For purposes of this Section, “Confidential Student Information” shall mean and include any Pupil Records, as defined by Education Code section 49073.1, personally identifiable information and materials related to any student, and any other information protected by law, including without limitation the California Education Code, the Protection of Pupil Rights Amendment (PPRA), Children’s Online Privacy Protection Act (COPPA), the Family Educational Rights and Privacy Act (FERPA), and the Student Online Personal Information Protection Act (SOPIPA). Provider shall maintain the confidentiality of any Confidential Student Information and shall: a. Not use or further disclose Confidential Student Information except as permitted by this MOU and applicable law; b. Use appropriate safeguards to prevent the use or disclosure of Confidential Student Information; c. Report to the District any use or disclosure of Confidential Student Information of which Provider becomes aware that would violate the terms of this MOU; and d. Ensure that Provider personnel, and any other agents, officers, or employees to whom it delegates any function, service, or activity performed under this MOU, and to whom it discloses Confidential Student Information received from, or created or received by Provider, agree to the restrictions and conditions provided in this Section with respect to any Confidential Student Information. e. Provider shall at all times comply with the fingerprinting and criminal background investigation requirements of the California Education Code section 45125.1 and the tuberculosis certification requirements of Education Code section 49406. 18. Insurance. Provider shall secure and maintain in force during the term of this MOU liability insurance including but not limited to (i) comprehensive general liability insurance with limits of not less than $1,000,000; (ii) commercial automobile liability insurance with limits not less than $1,000,000; and (iii) worker’s compensation insurance as required by Labor Code section 3200, et seq. All insurance maintained pursuant to this Section shall provide coverage for organic pathogens and viruses, including but not limited to claims related to COVID-19. Neither the existence of any of the insurance coverage required under this MOU nor the minimum coverage limits specified Page 5 of 6 herein with respect to any such coverage shall be deemed to limit or restrict in any way Provider’s liability arising under this MOU. 19. Notice. Whenever under this MOU one Party is required or permitted to give notice to the other, such notice will be in writing and deemed given upon the earlier of personal delivery, receipt of email, or five (5) calendar days after such notice is mailed by registered or certified United States mail, return receipt requested, postage prepaid to the individual at the address identified with the signatures below. 20. Effect of Termination. Upon termination of the MOU, Provider shall return the Premises to its original condition, normal wear and tear excepted. Provider shall clean and sanitize the Premises in accordance with recommended public health directives and/or guidance prior to returning the Premises to District. All authorized improvements to the Premises shall remain the sole property of the District. Termination or expiration of this MOU shall not release Provider from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions, or events happening prior to such termination or expiration, or thereafter in case by the terms of this MOU it is provided that anything shall or may be done after termination or expiration thereof. 21. Integration/Entire Agreement of Parties. This MOU constitutes the entire agreement between the Parties and supersedes all prior discussions, negotiations, and agreements, whether oral or written. This MOU may be amended or modified only by a written instrument executed by both Parties. 22. Severability. If any provision of this MOU is determined by a court or tribunal of competent jurisdiction to be void, voidable, or unenforceable as a matter of law, then such provision shall be deemed deleted and all other remaining provisions of this MOU shall otherwise remain in full force and effect. 23. Waiver. No waiver by either Party of any provision of this MOU shall constitute or be deemed a waiver of any other provision hereof or of any subsequent breach of the same or any provision hereof. 24. Interpretation. This MOU shall be construed as a whole, according to its fair meaning, and not strictly for or against either Party hereto. The captions to the sections in this MOU are included for convenience only, and are not intended and shall not be deemed to modify or explain any of the terms contained herein. 25. Relationship of the Parties. The Parties agree that their agents and employees in the performance of this MOU are not, for any purpose, officers or employees or agents of the other Party. 26. Signature Authority. Each Party has the full power and authority to enter into and perform this MOU, and the person signing this MOU on behalf of each Party has been properly authorized and empowered to enter into this MOU. 27. Counterparts. This MOU and all amendments and supplements to it may be executed in counterparts, and all counterparts together shall be construed as one document. Signatures transmitted by facsimile and/or electronic signatures shall be deemed original signatures. 28. Governing Law and Venue. This MOU shall be construed and interpreted in accordance with the laws of the State of California. Venue shall be in the Superior Court of California, County of San Luis Obispo, or the U.S. District Court, as appropriate. Page 6 of 6 IN WITNESS WHEREOF, the Parties hereto have executed this MOU on the date indicated below. SAN LUIS COASTAL UNIFIED SCHOOL DISTRICT By: ___________________________________ Name: Ryan Pinkerton Title: Asst. Superintendent of Business Services Address: 1500 Lizzie Street San Luis Obispo, CA 93401 Telephone: (805) 549-1331 Email: rpinkerton@slcusd.org CITY OF SAN LUIS OBISPO By: ________________________________ Name: Derek Johnson Title: City Manager Address: 990 Palm Street San Luis Obispo, CA 93401 Telephone: (805) 781-7100 Email: djohnson@slocity.org EXHIBIT A TEMPLATE PARENT WAIVER FORM Child Name: ____________________________ Date of Birth:____________ Parent/Guardian Name:___________________ Phone Number:_______________________ Emergency Contact:______________________ Phone Number:______________________ Parent/Guardian acknowledges and agrees as follows: 1. Supervised child care services (the “Services”) are offered on a first come, first served basis. If the number of children participating reaches the permitted capacity, no additional children will be authorized to utilize these Services. 2. These Services are provided by the City of San Luis Obispo. Although the Services are offered on property owned by San Luis Coastal Unified School District (“District”), Parent/Guardian acknowledges that the District is not involved or otherwise responsible for providing the services. 3. Parent/Guardian will, on a daily basis, conduct a wellness check of his/her child and ensure that the child does not have a temperature and is free of all symptoms of COVID-19, as set forth in Guidance issued by the California Department of Public Health (“CDPH”). If the child exhibits symptoms of COVID-19 or has a temperature of 100.4 degrees or higher, the child shall not return within the time recommended by the San Luis Obispo County Public Health Department. 4. While on District property, Parent/Guardian’s child shall follow all applicable social/physical distancing protocols, shall wear a face covering in compliance with the CDPH’s July 17, 2020 “Guidance For the Use of Face Coverings” (and all applicable updates to this CDPH guidance), and must abide by all other COVID- 19 health and safety protocols in place at the worksite. 5. Parent/Guardian releases District from all responsibility and liability related to Parent/Guardian’s child and agrees to indemnify, defend and hold the District harmless from any claims, causes of actions, actions, liabilities, and costs that may arise out of or result from the child care. Parent/Guardian assumes all obligations for any medical, financial and other costs/liabilities that are sustained by the child related to utilizing these services. 6. Parent/Guardian has been advised of certain inherent risks that cannot be eliminated regardless of the care taken to avoid injuries or illness to their child during this public health crisis and Parent/Guardian assumes the risk of such injury or illness. 7. The provision of Services may be terminated with limited prior notice. 8. Parent/Guardian agrees that this waiver, indemnity, and assumption of risks agreement is intended to be as broad and inclusive as permitted by the law of the State of Ca lifornia and that if any portion is held invalid, it is agreed that the remainder of this agreement shall continue in full legal force and effect. Parent/Guardian’s signature below indicates that Parent/Guardian has read, understands, and agrees to abide by these conditions at all times. Parent/Guardian understands that they are giving up substantial rights, including their right to sue. Parent/Guardian acknowledges that they are signing the agreement freely and voluntarily, and intend by the below signature to be a complete and unconditional release of all liability to the greatest extent allowed by law. Signature: Date: