Motion-Secondary: JAYDEN BELL VS. BING CHEN ET AL

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                                1 || LEWIS BRISBOIS BISGAARD & SMITH LLP
SHAWN A. TOLIVER, SB# 148349 ELECTRONICALLY
2|| E-Mail: Shawn. Toliver@lewisbrisbois.com FILED
CHERIE J. EDSON, SB# 208598 eatin
3 E-Mail: Cherie.Edson@lewisbrisbois.com County of San Francisco |
333 Bush Street, Suite 1100
4 || San Francisco, California 94104-2872 98/01/2017,
Telephone: 415.362.2580 BY: SANDRA SCHIRO
5 || Facsimile: 415.434.0882 Deputy Clerk
6 || Attorneys for Defendants
SAN FRANCISCO UNIFIED SCHOOL
7 || DISTRICT and YOUNG MEN’S CHRISTIAN
ASSOCIATION OF SAN FRANCISCO
8 || (erroneously sued as YMCA SF NMTC., INC.)
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SAN FRANCISCO,
12
13 || JAYDEN BELL, by and through his guardian CASE NO. CGC 15 549077
ad litem, SHERECE BELL,
14 DECLARATION OF LINDA GRIFFITH
Plaintiff, IN SUPPORT OF MOTION FOR
15 SUMMARY JUDGMENT
vs.
16 Date: October 20, 2017
BING CHEN; TONG WU; CITY AND Time: 9:30 a.m.
17 || COUNTY OF SAN FRANCISCO; SAN Dept.: 302
FRANCISCO UNIFIED SCHOOL Reservation No. 07311020-09
18 |] DISTRICT; YMCA SF NMTC., INC.; and Action Filed: November 20, 2015
DOES 1-50, Trial Date: January 16, 2018
19
Defendants.
20 oe
21 DECLARATION OF LINDA GRIFFITH
22 I, Linda Griffith, declare as follows:
23 1. I am the Vice President of Risk Management and Legal Affairs for the Young

24 || Men’s Christian Association of San Francisco (hereinafter “YMCA”). As such, I have personal

25 || knowledge of the facts set forth herein, and if called as a witness to testify thereto, I could

26 || competently and truthfully do so.

27 2. The YMCA entered into an Afterschool Program and Services Agreement with the
LEWIS 28 || San Francisco Unified School District (hereinafter “SFUSD”) for fiscal year 2014-2015

BRISBOIS
BISGAARD 4832-4814-2154.1

SMITH LLP DECLARATION OF LINDA GRIFFITH IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT(hereinafter “Afterschool Program Agreement”). I signed the Afterschool Program Agreement on
behalf of the YMCA on June 18, 2014. A true and correct copy of the Afterschool Program
Agreement is attached hereto as Exhibit A.

3. Per the Afterschool Program Agreement, the YMCA agreed to provide
supplemental educational programs for students at Visitacion Valley Elementary School.

4. The Afterschool Program provided by the YMCA at the Visitacion Valley
Elementary School is not a licensed childcare program. It is a government funded afterschool
enrichment program, with strict requirements imposed by the SFUSD for attendance and
programming. SFUSD received funding from the California Department of Education and/or the
Department of Children, Youth and their Families for the Afterschool Program at the Visitacion
Valley Elementary School. See Appendix A, Scope of Services at pp. 16-25, to the Afterschool
Program Agreement attached as Exhibit A.

5. SFUSD required the YMCA Afterschool Program provided at the Visitacion
Valley Elementary School to include an educational and literacy element, an educational
enrichment element, and a physical activity element.

6. The YMCA’s Afterschool Program is held on the Visitacion Valley Elementary
School campus at the conclusion of the regular school day until 6:00 p.m. The elementary school
students must agree to attend the program five days per week. Early release from the Afterschool
Program is permitted if the student has an appointment or special need to leave early. Parents or
authorized persons pick their students up at the end of the Afterschool Program, unless a student’s
parent or guardian signs the Visitacion Valley ES YMCA Afterschool Program Permission to
Walk Home form.

7. The YMCA’s Afterschool Program at Visitacion Valley Elementary School is not
open to the general public. It is open to all enrolled students at Visitacion Valley Elementary
School subject to capacity. Participation in the program is voluntary. To the best of my
knowledge, there are low cost or free alternatives to the YMCA Afterschool Program at Visitacion
Valley Elementary School in the same area.

Ml

4832-4814-2154.1

2
DECLARATION OF LINDA GRIFFITH IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTLew!

BRISBOI
s ee

8. Based upon my knowledge of the alleged accident involving Jayden Bell and
review of the YMCA’s documents, plaintiff Jayden Bell signed up to participate in the YMCA’s
Afterschool Program at Visitacion Valley Elementary School for the 2014-2015 school year.

9. As part of the membership application for participation in the Afterschool Program,
plaintiff's mother, Sherece Bell signed a Release and Waiver of Liability and Indemnity
Agreement and Consent for Medical Treatment form (hereinafter “Release and Waiver of
Liability”) on or about August 17, 2014. Attached hereto as Exhibit B is a true and correct copy
of the Release and Waiver of Liability executed by Sherece Bell.

10. Based upon my knowledge of the alleged accident involving Jayden Bell and
review of the YMCA’s documents, Sherece Bell also signed the Visitacion Valley ES YMCA
Afterschool Program Permission to Walk Home form to allow Jayden Bell to have permission to
sign himself out and walk home from the Afterschool Program. Attached hereto as Exhibit C is a
true and correct copy of the Visitacion Valley ES YMCA Afterschool Program Permission to
Walk Home form executed by Sherece Bell.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on June 21, 2017, at San

Francisco, California.

TRA GRIFFITH ///7

u

4832-48 14-2154.1

3
DECLARATION OF LINDA GRIFFITH IN SUPPORT OF MOTION FOR SUMMARY JUDGMENTSFUSD AFTERSCHOOL PROGRAM AGREEMENT

EXHIBIT A

A840-6190-7736 1SFUSD ~ Afterschool Program and Services Agreement ~ FY 2014-2015

AFTERSCHOOL PROGRAM AND SERVICES AGREEMENT
FOR FISCAL YEAR 2014-2015

This Afterschool Program and Services Agreement for Fiscal Year 2014-2015 “Agreement” as defined below) is
dated for convenience May 19, 2014 and is entered into by and between Mission YMCA (hereinafter “Contractor’) and the
San Francisco Unified School District (hereinafter “District” or “SFUSD").

RECITALS

Whereas, the District desires Contractor to serve, for a consideration, as the lead agency to provide
supplemental educational programs and ensure provision of compliant quality program services for students at its
Visitacion Valley Elementary School under the federal, state, and/or local grant funding indicated in Appendix A
and:

Whereas, Contractor represents itself able and, for a consideration, willing to provide supplemental
programming and services at as detailed in this Agreement, and, Contractor further represents that it is not
acting solely as a fiscal agent, and is not acting as a fiscal agent for another organization, entity,
incorporated or unincorporated association related to the delivery of supplemental programming and
services described in this Agreement and that Contractor understands and agrees that, the personal
performance by Contractor of the provision of supplemental programming and services described in this
Agreement is a material part of the consideration,

Therefore, the Parties hereby enter into this Agreement for Contractor to provide, for a consideration,
supplemental programming and services pursuant to the terms of this Agreement. This Agreement attaches and
incorporates by reference as though fully set forth herein the following documents: Approved Board of Education
Resolution; General Terms and Conditions; Appendix A - Scope of Services; Attachment 1 - School Site
Supplemental Program Summary; Attachment 2 ~ Weekly Supplemental Program Schedule; Appendix B -—
Supplemental Program Budget; Attachment 3 - Supplemental Program Budget Detail; completed W-9 Form; and
completed Criminal Background Clearance/Tuberculosis Clearance Written Certification Form (collectively, the
“Agreement’). The following documents shall also be attached to this Agreement: Copy of required Insurance
Certificates and Endorsements (See Section 10 for Insurance Certificate and Endorsement requirements).

A. TERM OF THE AGREEMENT! EFFECTIVE DATE OF AGREEMENT

Subject to Section 1 of the attached General Terms and Conditions, the term of this Agreement shall be the term of
the fiscal year (July 1 to June 30) in which this Agreement is executed for services to be provided by Contractor
under this Agreement.

Notwithstanding the foregoing, this Agreement shall become effective only upon approval in writing by the District's
Board of Education, proper execution by the parties, and certification by the District's Chief Financial Officer as to
the availability of funds,

B. SERVICES CONTRACTOR AGREES TO PERFORM

Contractor agrees to perform the services provided for in the attached Appendix A (“Scope of Services’).
Contractor agrees that its services and compensation will be subject to the evaluation and monitoring procedure in
the attached Appendix A and as provided elsewhere in this Agreement.

C. COMPENSATION

Page 1 of 29SFUSD — Afterschool Program and Services Agreement — FY 2014-2015

Compensation to Contactor shall not exceed li
pice ees as detailed in Appendix B Attachmeni: Program Budget Detail ("Attachment 3")
of this Agreement. Contractor must comply with all payment conditions, and any other conditions imposed by the

District to receive payment for services, Payments shall be made upon satisfaction of all conditions, and approval
by the District's Site, Department Head or Director of the Student Support Services Department, in the District's
sole discretion, that the services, set forth in Appendix A (“Scope of Services") of this Agreement, have been
tendered satisfactorily, and in a professional and timely manner in accordance with this Agreement. If the District
and Contractor mutually agree that the scope of work in Appendix A must be amended or modified, the
Compensation may also be amended or modified provided that there is a prior written modification to the
Agreement in accordance with Section 25 (“Modification of Agreement”) of the General Conditions and a Board
Resolution authorizing sald increase(s). It shall be the responsibility of the Contractor to ensure that the total
approved amount of the Agreement Is not exceeded, Any work performed in excess of said amount shall not be
compensated. In no event shall the District be llable for Interest or late charges for late payments.

Total Payment. District shall pay only for the services rendered by Contractor pursuant to this Agreement. District
shall not pay any additional sum for any expense or cost whatsoever incurred by Contractor in rendering services
pursuant to this Agreement. District shall make no payment for any extra, further, or additional service beyond
what is spacifically authorized this Agreement,

{n no event shall Contractor submit any invoice for an amount in excess of the not-to-exceed amount of
compensation provided for pursuant to this Agreement, unless this Agreement is modified by a properly executed
and approved amendment to this Agreement pursuant to Section 25 ("Modification of Agreement’).

Payment of Taxes. Contractor is solely responsible for the payment of employment taxes incurred under this
Agreement, and any similar fedaral or state taxes.

Page 2 of 29SFUSD — Afterschool Program and Services Agreement ~ FY 2014-2015

GENERAL TERMS AND CONDITIONS
TO THE AFTERSCHOOL PROGRAM AND SERVICES AGREEMENT

1. AVAILABILITY OF FUNDS: BUDGET AND FISCAL PROVISION; TERMINATION IN THE EVENT OF NON-

APPROPRIATION

a.

d.

8.

This Agreement is subject to the budget and fiscal policies, regulations and practices of the District, and
approval and appropriation of funds for this Agreement. Charges will accrue only after prior written
authorization is provided by the District's Board of Education, proper execution of this Agreement by the
parties, and certification by the Chief Financial Officer as to the availability of funds.

The amount of the District's obligation hereunder shall not at any time exceed the amount herein stated or
established by any amendment or District review.

The District has no obligation to renew this Agreement after expiration of its term. If funds are
appropriated for a portion of a fiscal year, this Agreement will terminate, without penalty, at the end of the
term for which funds are appropriated, In the event there are additional funds remaining, Contractor shall
promptly return such funds to District. Contractor shall not carryover funds from fiscal year to fiscal year.
Any excess payments, funds, transfers, uneamed or excessive disbursements, reimbursements or
expenditures of any kind received by or on behalf of Contractor from or on behalf of District shall be
promptly retumed to District, at no cost to District within sixty (60) days of receipt of said funds or within
sixty (60) days of conclusion of the fiscal year in which said funds were received, whichever is earlier.
Contractor's assumption of risk of possible non-appropriation is part of the consideration for this
Agreement.

This Section controls against any and ail other provisions of this Agreement.

2 AGREEMENT EVALUATION FEE; DISTRICT RETENTION

a.

Where the services to be provided by Contractor under this Agreement have been designated as
Evaluation Level IV on a Board Resolution, Contractor understands and agrees that a contract evaluation
fee of up to five percent (5%) of the total Agreement amount (including, but not limited to, payments for
services and expenses) may be assessed by the District on this Agreement. The monies collected
through this fee will be used to monitor and evaluate similar agreements to guarantee that the promised
services are provided in a timely and effective manner.

This evaluation fee shall apply only to those Agreements in excess of two thousand five hundred dollars
($2,500.00). The fee may be deducted from the District funds encumbered to pay Contractor at any time
during or following the term of the Agreement and this Section shall survive the termination or expiration of
this Agreement. If the parties later amend this Agreement to increase payments to Contractor, those
increases will also be subject to the 5% assessment.

Contractor further agrees that District, at its option, may retain up to 5% of the total Agreement amount
from Contractor. Such funds shall be kept by District exclusive of any administrative fee that District is
legally allowed to charge pursuant to any federal law, state law, or any grant agreement.

3. DISALLOWANCE

a.

If Contractor claims or receives payment from the District for a service, reimbursement for which is later
disallowed by the State of California or United States Government, Contractor shall promptly refund the
disallowed amount to the District upon the District's request. At its option, the District may offset the
amount disallowed from any payment due or to become due to Contractor under this Agreement or any
other Agreement.

By executing this Agreement, Contractor certifies that Contractor is not suspended, debarred or otherwise
excluded from participation in federal or state programs. Contractor acknowledges that this certification of
eligibility to receive state or federal funds is a material term of this Agreement.

4, SUBMITTING FALSE CLAIMS; MONETARY PENALTIES

Pursuant to Govemment Code §12650 et. seq., any person, including a contractor, subcontractor or a consultant,
who submits a false claim, invoice, or request for reimbursement ("false claim’), shall be liable to the District for
three times the amount of damages that the District sustains because of the false claim. A person who commits a
false claim act violation shall also be liable to the District for the costs of a civil action brought to recover any of

Page 3 of 29SFUSD — Afterschool Program and Services Agreement - FY 2014-2015

those penalties or damages, and may be liable to the District for a civil penalty of up to ten thousand collars
($10,000) for each false claim. A person will be deemed to have submitted a false claim to the District if the

person:

a. knowingly presents or causes to be presented to an officer or employee of the District, a false claim for
payment or approval,

b. knowingly makes, uses, or causes to be made or used a false record or statement to get a false claim
paid or approved by the District;

c. conspires to defraud the District by getting a false claim allowed or paid by the District;

d. has possession, custody, or control of public property or money used or to be used by the District and
knowingly delivers or causes to be delivered less property than the amount for which the person receives
a certificate or receipt;

e is authorized to make or deliver a document certifying receipt of property used or to be used by the District
and knowingly makes or delivers a receipt that falsely represents the property used or to be used;

f knowingly buys, or receives as a pledge of an obligation or debt, public property from any person who
lawfully may not sell or pledge the property;

g. knowingly makes, uses, or causes to be made or used a false record or statement to conceal, avoid, or
decrease an obligation to pay or transmit money or property to the District; or

h. is a beneficiary of an inadvertent submission of a false claim to the District, subsequently discovers the
falsity of the claim, and fails to disclose the false claim to the District within a reasonable time after
discovery of the false claim.

5. PAYMENT DOES NOT IMPLY ACCEPTANCE OF WORK
No payment shall in any way lessen the liability of Contractor to remedy or replace unsatisfactory work, service,
equipment, or materials, if the unsatisfactory character of such work, service, equipment or materials was not
detected at the time of payment. Service, materials, equipment, components, or workmanship that do not conform
to the requirements of this Agreement may be rejected by the District and in such case must be remedied or
replaced by Contractor without delay at no additional cost to the District.

6. QUALIFIED PERSONNEL
Work under this Agreement shall be performed only by competent personnel under the supervision of and in the
employment of Contractor or under written subcontract with Contractor pursuant to Section 19 (“Subcontracting”)
herein. Contractor will comply with the District's reasonable requests regarding assignment of personnel, but all
personnel, including those assigned at the District's request, shall be supervised by and under the direction of the
Contractor. Contractor shall commit adequate resources to complete this Agreement's scope of work.

T RESPONSIBILITY FOR COMPLIANCE WITH DISTRICT FACILITIES USE PERMIT PROCESS
A Contractor seeking to use a District facility must obtain an approved Facilities Use Permit from the Real Estate
Office of the District's Facilities Department prior to any such use. Contractor shall be responsible for complying
with District's Facilities Use Permit requirements in the performance of this Agreement, and shall comply with all
District processes and procedures for obtaining approval to utilize District sites or property, including applying for
and obtaining an approved Facilities Use Permit from the Real Estate Office of the District's Facilities Department.

8 AXES
Contractor shall pay all taxes levied in connection with this Agreement, or the services delivered pursuant hereto.

9. INDEPENDENT CONTRACTOR
a. Contractor or any agent or employee of Contractor shall be deemed at all times to be an independent
contractor and not an employee of the District. Contractor shall be wholly responsible for the manner in
which it performs the services required of it under this Agreement. Nothing contained in this Agreement
shall be construed as creating an employment or agency relationship between the District and Contractor
or its agents and employees. If any governmental authority should, nevertheless, determine that
Contractor is an employee, then the District's payment obligations hereunder shall be reduced so that the
aggregate amount of payments directly to Contractor and to the applicable governmental authority does

Page 4 of 29SFUSD — Alterschool Program and Services Agreement ~ FY 2014-2015

b.

not exceed the maximum amount specified in this Agreement. Contractor shall refund any amounts
necessary to effect such reduction.
Contractor shall complete and file with the District the attached W-9 form,

10, INSURANCE

a.

Without in any way limiting Contractor's liability pursuant to the “Indemnification” section of this
Agreement, Contractor shall procure and maintain during the full term of this Agreement the following
insurance amounts and coverage:

1) Comprehensive General Liability Insurance with limits not less than $1,000,000 (one million
dollars) each occurrence and $2,000,000 (two million dollars) in the aggregate for Bodily Injury
and Property Damage (including coverage for claims of sexual abuse and molestation). A waiver
of the requirement that CGL coverage include sexual abuse and molestation coverage may be
requested through the District's Contracts Office provided that Contractor will have no contact
with District students in the performance of this Agreement as provided for in Section 22
{Criminal Background Check; Subsequent Arrest Notification”) herein. The parties understand
and agree that the District shall rely upon the representations that the Contractor shall make in
any such waiver.

2) Automobile Liability Insurance with limits not less than $1,000,000 (one million dollars) each
occurrence Combined Single Limit for Bodily Injury and Property Damage, including Owned,
Non-Owned and Hired automobiles. A waiver of the Automobile liability insurance requirements
may be requested by Contractor through the District's Contracts Office provided that Contractor
will not use any automobile in the performance of this Agreement. The parties understand and
agree that the District shall rely upon the representations that the Contractor shall make in any
such waiver.

3) Workers’ Compensation Insurance, with Employer's Liability limits not less than $1,000,000 (one
million dollars) each accident. A waiver of the workers’ compensation insurance requirements
may be requested by Contractor through the District's Contracts Office provided that Contractor
is a sole proprietor with no employees. The parties understand and agree that the District shall
rely upon the representations that the Contractor shall make in any such waiver.

All policies shall be written on an occurrence basis, except as otherwise provided for in this subsection.

Coverage may be provided on a claims-made form, provided that the following requirements are met:

1) The retroactive coverage date shall be shown, and shall commence before the beginning of any
Contractor operations and/or performance under this Agreement.

2) Contractor shall maintain the required coverage throughout the term of this Agreement and,
without lapse, and provide Certificates of Insurance to the District upon request for a period of
three (3) years beyond the expiration or termination of this Agreement, such that should
occurrences during the Agreement term give rise to claims made after expiration or termination
of the Agreement, such claims shall be covered.

3} If coverage is cancelled or non-renewed, and not replaced with another claims-made form with a
retroactive date prior to the beginning of any Contractor operations and/or performance under
this Agreement, Contractor shall purchase an extended reporting period for a minimum of three
(3) years after the expiration or termination of the Agreement.

4) If requested by the District, a copy of the policy’s claims reporting requirement, or any other
policy documents, shall be provided to the District.

Comprehensive General Liability policy must provide the following:

1) Name as Additional Insured the San Francisco Unified School District, its Board, officers and
employees.

2) That such policy is primary and non-contributory to any other insurance available to the
Additional Insured, with respect to any claims arising out of this Agreement and that such policies
apply separately to each insured against who claim is made or suit is brought.

All policies shall provide thirty (30) days advance written notice to the District of cancellation, non-renewal

or reduction in coverage to the following office:

Contracts Office
135 Van Ness Street, Room 102

Page 5 of 29SFUSD — Afterschool Program and Services Agreement ~ FY 2014-2015

41.

12,

San Francisco, CA 94102
Should any of the required insurance be provided under a form of coverage that includes a general annual
aggregate limit or provides that claims investigation or legal defense costs are included in such general
annual aggregate limit, such annual aggregate limit shali be double the occurrence or claims limits
specified above.
The insurance requirements under this Agreement shall be the greater of (1) the minimum limits and
coverage specified in this Agreement, or (2) the broader coverage and maximum limits of coverage of any
insurance policy or proceeds available to the Named Insured. It is agreed that these insurance
requirements shall not in any way act to reduce coverage that is broader or that includes higher limits. No
fepresentation is made that the minimum insurance requirements stated hereinabove are sufficient to
cover the obligations of the Contractor under this Agreement.
Waiver of Subrogation. Contractor agrees to waive subrogation with respect to each insurance policy
maintained under this Agreement. When required by an insurer, or if a policy condition does not permit
Contractor to enter into a pre-loss agreement to waive subrogation without an endorsement, then
Contractor agrees to notify insurer and obtain such endorsement. This requirement shall not apply to any
policy which includes a condition expressly prohibiting waiver of subrogation by the insured or which voids
coverage should the Contractor enter into a waiver of subrogation on a pre-loss basis. Contractor shall
promptly notify District of any such express prohibition or condition in any applicable policy which may
void coverage,
Should any required insurance lapse during the term of this Agreement, requests for payments originating
after such lapse shall not be processed until the District receives satisfactory evidence of reinstated
coverage a5 required by this Agreement, effective as of the lapse date. If insurance is not reinstated, the
District may, at its sole option, terminate this Agreement effective on the date of such lapse of insurance.
Before commencing any operations under this Agreement, Contractor must provide the District with the
certificates of insurance, and additional insured endorsement, with insurers satisfactory to the District,
evidencing all coverages set forth above, and shall fumish complete copies of policies promptly upon the
District's request. Contractor also understands and agrees that the District may withhold payment for
services performed for any violations of the insurance provisions of this Agreement.
Approval of the insurance by the District shall not relieve or decrease the liability of Contractor hereunder.

INDEMNIFICATION

Contractor shall indemnify and hold harmless the District, its Board, officers, employees and agents from, and if
requested, shall defend them against all liabilities, obligations, losses, damages, judgments, costs or expenses
(including legal fees and costs of investigation) (collectively "Losses’) arising from, in connection with or caused by:

a.

b.

e

personal injury or property damage caused, directly or indirectly, by any act or omission of Contractor, its
subcontractors or either's agent or employee; or

Contractor's failure to timely and promptly reimburse and/or refund any excess payments, funds,
transfers, uneamed or excessive disbursements, reimbursements or expenditures of any kind received by
or on behalf of Contractor from or on behalf of District; or

any infringement of patent, copyright, trademark, trade secret or other proprietary right caused by
Contractor, its subcontractors or either’s agent or employee. Notwithstanding the foregoing, Contractor
shall have no obligation under this Section with respect to any Loss that is caused solely by the active
negligence or willful misconduct of District and is not contributed to by any act or omission (including any
failure to perform any duty imposed by law) by Contractor, its subcontractors or either's agent or
employee.

Contractor, on behalf of itself and all parties claiming under or through it, hereby waives all rights of
subrogation and contribution against the District with respect to those Claims as to which District is
indemnified, except for such Claims which are the result of District's sole negligence or willful misconduct.
The provisions of this Section shall survive the termination or expiration of this Agreement,

DISTRICT LIMITATION OF LIABILITY TO AMOUNT OF AGREEMENT

DISTRICT'S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE
PAYMENT PROVIDED FOR IN SECTION C (‘COMPENSATION’) OF THIS AGREEMENT. DISTRICT
SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL

Page 6 of 29SFUSD ~ Afterschool Program and Services Agreement ~ FY 2014-2015.

DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN CONNECTION WITH THIS
AGREEMENT.

13, DEFAULT: REMEDIES

a.

Each of the following shall constitute an event of default ("Event of Default’) under this

Agreement:

1) Contractor fails or refuses to perform or observe any term, covenant or condition
contained in this Agreement.

2) Contractor (A) is generally not paying its debis as they become due, (B) files, or
consents by answer or otherwise to the filing against it of a petition for relief or
reorganization or arrangement or any other petition in bankruptcy or for liquidation or to
take advantage of any bankruptcy, insolvency or other debtors’ relief law of any
jurisdiction, (C) makes an assignment for the benefit of its creditors, (D) consents to the
appointment of a custodian, receiver, trustee or other officer with similar powers of
Contractor or of any substantial part of Contractor's property, (E) takes action for the
purpose of any of the foregoing, or (F) is the subject of any order of a court or
government authority related to the Federal Bankruptcy Act.

On and after any Event of Default, the District shall have the right to exercise its tegal and

equitable remedies, including, without limitation, the right to terminate this Agreement for cause

upon ten (10) days’ written notice pursuant to Section 13 ("Termination") or to seek specific
performance of all or any part of this Agreement. In addition, District shall have the right (but no
obligation) to cure (or cause to be cured) on behalf of Contractor any Event of Default;

Contractor shall pay to the District on demand all costs and expenses incurred by the District in

effecting such cure, with interest thereon from the date of incurrence at the maximum rate then

permitted by law. The District shall have the right to offset from any amounts due to Contractor
under this Agreement or any other agreement between District and Contractor all damages,
losses, costs, or expenses incurred by the District as a result of such Event of Default due from

Contractor pursuant to the terms of this Agreement.

All remedies provided for in this Agreement may be exercised individually or in combination with

any other remedy available hereunder or under applicable laws, rules, regulations. The

exercise of any remedy shall not preclude or in any way be deemed to waive any other remedy.

14. TERMINATION FOR CONVENIENCE

a.

It is expressly understood and agreed that if an Event of Default under this Agreement, this
Agreement may be terminated for cause by the District and all the Contractor's rights hereunder
ended. Termination for cause shall be upon ten (10) days written notice, and no work will be
undertaken by Contractor after receipt of the notice of termination for cause, with the exception
of actions necessary to effectuate the termination as provided for in this Section,

It is further understood and agreed that the District may terminate this Agreement for the
District's convenience and without cause at any time by giving the Contractor thirty (30) days
written notice of such termination.

Upon receipt of any notice of termination of this Agreement, Contractor shall commence and
perform, with diligence, all actions necessary on the part of Contractor to effect the termination
of this Agreement on the date specified by District in a manner that minimizes the liability of
Contractor and District to third parties as a result of termination. All such actions shall be
subject to prior approval by District and shall include, without limitation: canceling orders,
assigning interests to the District, settling outstanding liabilities and claims, securing and safe-
guarding District property, and halting or completing services in the manner specified by the
District.

In no event shall District be liable for costs incurred by Contractor or any of its subcontractors
after the effective date of termination, except for those costs specifically approved by the
District as necessary to effect the termination in a manner acceptable to the District. Such non-
recoverable costs include, but are not limited to, anticipated profits on this Agreement, post-
termination employee salaries, post-termination administrative expenses, post-termination
overhead or unabsorbed overhead, attorneys’ fees or other costs relating to the prosecution of
a Claim or lawsuit, prejudgment interest.

Within thirty (30) days after the effective date of termination, the Contractor will submit an
itemized invoice detailing the unpaid costs incurred for the services rendered pursuant to this

Page 7 of 29

llSFUSD ~ Afterschool Program and Services Agreement —FY 2014-2015

Agreement up to the effective date of termination. The District's payment obligation under this
Section shall survive termination of this Agreement. Upon payment of approved charges under
such invoice by the District, the District shall be under no further obligation to the Contractor,
monetarily or otherwise.

15. CONFLICT OF INTEREST

a Conflict of interest Standards. The following is a brief overview of conflict of interest laws and policies.
Contractor is responsible to know, and comply with, the full requirements of the law.

(1) Under the California Political Reform Act (CPRA), codified in part as Government Code section
41090 and sequential, and section 87100 and sequential: No public official shall make, participate
in making, or in any way attempt to use his or her official position, to influence a contract on
behalf of the public agency when he or she knows, or has reason to know, that he or she has a
personal financial interest in that contract.

(2) Government Code section 1090 defines “making” a contract broadly to include actions that are
preliminary or preparatory to the selection of a contractor such as but not limited to: involvement
in the reasoning, planning, and/or drafting of scopes of work, making recommendations, soliciting
bids and requests for proposals, and/or participating in preliminary discussions or negotiations.
(Cal. Govt. Code § 1090)

(3) SFUSD Board Policy 3850 provides: “That no Board Member or employee of the San Francisco
Unified School District, except persons engaged in the performance of contracts as early
retirants or consultants under the approved federally assisted programs, may participate in
bidding or have any interest, direct or indirect, in any contract made by or on behalf of the Schoo!
District within two (2) years after the termination of a Board Member's term in office or the
termination of employment with the School District. Except as herein provided, any contract or
other transaction entered into for or on behalf of the School District, in violation of the terms
herein provided, shall be void and unenforceable against the School District.” (SFUSD Board
Policy 3850)

(4) State law limits the amount of gifts that may be received by public officials from a single source
during a calendar year. The gift limit is $440 per source per calendar year (effective January 1,
2013 through December 31, 2014). (See e.g. Cal. Govt Code 89503; 2 CCR 18940.2. See also
www. fppc.ca.gov)

(5) State law prohibits, with limited exceptions, certain former local public officials from appearing
before their former public agency for the purpose of influencing a governmental decision for 12
months from the date the former employee left that public agency. (Cal. Govt. Code § 87406.3)

(6) State law bars a public agency employee from making governmental decisions regarding an
organization which is engaged in employment negotiations with that public agency employee.
(Cal. Govt. Code § 87407)

(7) Contractors and their representatives may be required to disclose economic interests that they
hold that could foreseeably be affected by the exercise of their public duties. If applicable,
Contractors/representatives must submit a disclosure filing called a Statement of Economic
Interests or “Form 700." (Cal. Govt. Code §§ 81000-91015; SFUSD Board Rules and Procedures
9270, ‘Conflict of Interest Code")

b. Obligations of Contractor. It is the obligation of the Contractor, as well as any subcontractors, to
determine whether or not participation in a contract may constitute a conflict of interest. While the District
staff maintains records regarding the award and execution of contracts, it does not have access to specific
information conceming which entities, partners, subcontractors or team members perform specific work on
these contracts. A conflict of interest or an unfair advantage may exist without any knowledge of the
District. The determination of the potential for a conflict must be made by the Contractor. Contractor is
responsible to notify the District immediately if it finds that a potential conflict may exist.

c. Consultation with Counsel. The District strongly advises any Contractor, and any proposing/ bidding
firm, to consult with its legal counsel to determine whether a conflict of interest may exist. It is the
responsibility of a Contractor, or a proposing/bidding firm, to make that determination.

d, Consequences of a Violation. Any contract made in violation of Section 1090 is void and cannot be
enforced. When Section 1090 is violated, a government agency is not obligated to pay the Contractor for
any goods or services received under the void contract. The government agency can seek repayment

Page 8 of 29SFUSD ~ Afterschool Program and Services Agreement - FY 2014-2016

from the Contractor of any amounts already paid, and refer the matter to appropriate authorities for

prosecution. Additional consequences may also apply.

e Disclosure Requirement. Contractor will submit to the District a list of all of Contractor's employees
(including owners) who are also current SFUSD Board members or employees, or former SFUSD Board
members or employees in the last two years. Contractor will submit the attached “Contractor's Disclosure
Form Regarding SFUSD Officials.” Contractor will update this form with SFUSD, as needed, during the
term of this Agreement. Exception: Public agencies that provide contract services to the District are not
subject to this disclosure requirement.

£ Compliance with Gift Limits. Contractor will abide by legal gift limits and use good judgment, discretion
and moderation when offering gifts, meals or entertainment or other business courtesies to District
Officials, and in order not to place District officials in conflict with any specific gift restrictions: (1) No
Contractor or representative thereof shall offer, give, or promise to offer or give, directly or indirectly, any
money, gift or gratuity to any District contracting or procurement official at any time. (2) No Contractor or
representative thereof shall offer or give, directly or indirectly, any gifts in a calendar year to a District
official which exceed the allowable gift limit. (See ¢.g. Cal. Govt Code 89503; 2 CCR 18940.2. See also
www.fppc.ca.gov)

Q. Employment Negotiations. Prior to engaging in employment negotiations with a District employee (e.g. a
job interview or discussion of a job offer), Contractor shalt notify that District employee's supervisor of
Contractor's interest in hiring said employee, so that, if applicable, and if practicable, a full separation may
be established between the public employee and any governmental decisions regarding that Contractor.

h. Contractor Certification. In signing this Agreement, Contractor certifies that it will comply with conflict of
interest laws and regulations, and SFUSD Board Policies. Contractor acknowledges that it is familiar with
these provisions; certifies that it does not know of any facts that constitute a violation of such provisions;
and agrees to promptly notify the District if it becomes aware of any such facts during the term of this
Agreement,

i, File Statement of Economic Interests (“Form 700”) as Applicable. Contractors and their
representatives may be required to disclose any economic interests they hold that could foreseeably be
affected by the exercise of their public duties. (Govt. Code §§ 81000-91015; SFUSD Board Rules and
Procedures 9270 “Conflict of Interest Code”) This filing, called a Statement of Economic Interests or “Form
700,” aides public officials to ensure they do not make or participate in making any governmental decision
in which they have a financial interest.

(1) Applicability. Contractors/representatives are considered public officials and must file a Form 700
only if they qualify as “Consultants." Under SFUSD’s Conflict of Interest Code, “Consultant”
means any natural person who provides, under contract, information advice, recommendation or
counsel to an agency, department, officer, or commission, provided, however, that a “Consultant”
shall not include a person whom:

A. Conducts research and arrives at conclusions with respect to his or her rendition of
information, advice, recommendation or counsel independent of the control and
direction of the agency or of any agency official, other than normal contract monitoring;
and

B. Possesses no authority with respect to any agency decision beyond the rendition of
information, advice, recommendation or counsel.

(2) Filing Deadlines, Contractors/representatives required to file a Form 700 shall submit a filing: (a)
ten days prior to commencement of work with SFUSD; (b) yearly thereafter by the April 1st
annual due date; and (c) upon termination of work with SFUSD.

(3) Interests to Be Disclosed. Contractors/representatives required to file a Form 700 shall disclose
only income, investments and business positions in: (a) business entities that manufacture or sell
supplies, books, machinery or equipment of the type utilized or purchased by SFUSD and for
which the Contractor/representative is a manager or director, and/or in (b) business entities that
are contractors or subcontractors engaged in the performance of work services of the type
utilized or purchased by SFUSD and for which the Contractor/representative is a manager or
director.

(4) Filing Process. Form 700 must be received by SFUSD's Contracts Office by the timelines
provided herein, in order to be considered properly filed.

Page 9 of 29SFUSD ~ Afterschool Program and Services Agreement - FY 2014-2015

(5) Disqualification. Consultants/Representatives who must file financial disclosure statements, like
other public officials under the CPRA, are subject to disqualification when they encounter
decision-making that could affect their financial interests. Contractors and their representatives
shall be responsible for ensuring that they take the appropriate actions necessary in order not to
violate applicable laws and SFUSD policies.

16. PROPRIETARY OR CONFIDENTIAL INFORMATION OF DISTRICT; STUDENT INFORMATION

a

Contractor understands and agrees that, in connection with this Agreement, the Contractor may have
access to proprietary or confidential information which may be owned or controlled by the District and that
such information may contain proprietary details, the disclosure of which to third parties will be damaging
to the District, its employees or students. Contractor also understands and agrees that the disclosure of
such information may violate state and/or federal law and may subject the Contractor to civil liability.
Consequently, Contractor agrees that all information disclosed by the District to the Contractor shall be
held in strict confidence and used only in performance of the Agreement, unless disclosure is required by
{aw or court order. Contractor shall exercise the same standard of care to protect such information as is
used to protect its own proprietary or confidential information.

Contractor shall comply at all times with the requirements of the Family Educational Records Privacy Act
("FERPA") and relevant state law regarding the confidentiality and handling of student records, including
but not limited to California Education Code sections 49073 and sequential. Contractor shall only access
student information pursuant to prior written parental consent, legitimate educational interest in performing
duties on behalf of SFUSD under this Agreement, or other provisions of federal and state law permitting
access to confidential student information. Contractor shall not use student data for any purposes other
than those provided for in this Agreement. Contractor shall not re-disclose confidential student information
unless pursuant to federal and state law.

Use of Student Data for Studies. Consistent with state and federal law as detailed in Subsection (b) of this
Section, Contractor understands and acknowledges that use of student data by Contractor for purposes
other than those authorized under this Agreement, such as for Contractor's own research studies or
program evaluation, requires approval by the District's Office of Research, Planning, and Accountability
(‘RPA’). Not every application for the use of student data is approved by RPA due to resource limitations,
lf Contractor wishes to receive, gather or use student data for purposes other than those authorized under
this Agreement, then prior to receiving, gathering or using any student data for such purposes, Contractor
will complete and submit a Research Application to RPA and await approval or denial from RPA. If RPA
approves Contractors Research Application, Contractor must also execute a Data Use and Confidentiality
Agreement (‘DUA’) with RPA. Only if the Contractor submits a Research Application to RPA that is
approved by RPA, and Contractor then fully executes a DUA with RPA, may the Contractor receive,
gather or use student data for purposes other than those authorized under this Agreement, such as
Contractor's own research studies or program evaluation.

The provisions of this Section shall survive the termination or expiration of this Agreement.

17. OWNERSHIP OF RESULTS
Any plans, specifications, studies, reports, memoranda, computation sheets, data files and other

materials in any form or media prepared by Contractor in connection with services performed under this
Agreement shall be the property of and be promptly transmitted to the District.

18, AUDIT AND INSPECTION OF RECORDS

Contractor agrees to maintain and to permit the District to audit, examine and make copies, excepts or
transcripts of all records including without limitation accurate accounting books and records, invoices,
timesheets, documents, reports, student records, payroll and personnel records, and other materials and
data related to Contractor's performance of this Agreement, whether funded in whole or in part under this
Agreement. . The Contractor shall maintain such records and data in an accessible location and
condition for a period of not less than five (5)_years after a final payment under this Agreement or until
after final audit has been completed, whichever is later.

Page 10 of 29

14SFUSD ~ Afterschool Program and Services Agreement ~ FY 2014-2015

19.

20.

21,

22.

SUBCONTRACTING

Contractor is prohibited from subcontracting this Agreement or any services provided pursuant to this Agreement
without the prior written consent of the District, pursuant to Section IIl{g) (‘Use of Subcontractor”) of Appendix A of
this Agreement.

ASSIGNMENT
It is understood and agreed that the services to be performed by the Contractor under this Agreement are personal
in character and neither this Agreement, nor any duties or obligations hereunder, shall be assigned or delegated by
the Contractor without the prior written consent of the District.

NON-DISCRIMINATION

Contractor agrees that it shall not discriminate on the basis of sex, race, religious creed, national origin, age,
marital status, sexual orientation, gender, AIDS/ARC/HIV status, or disability, in its performance under this
Agreement.

CRIMINAL BACKGROUND CHECKS; SUBSEQUENT ARREST NOTIFICATION
a Criminal Background Check

(1) Contractor is required to comply with the criminal background check provisions of
Education Code Section 46125.1. Contractor will conduct criminal background checks
through the California Department of Justice (CDO4J), including both CDOJ and Federal
Bureau of Investigation (FB!) background checks, for all Contractor employees, agents,
and volunteers assigned to the District, and will certify that no employees, agents, or
volunteers who have been convicted of serious or violent felonies as specified, will
have contact with District pupils pursuant to this Agreement. This prohibition does not
apply to an employee, agent or volunteer who has obtained a certificate of rehabilitation
and pardon pursuant to Californi