03.04 City Aquatic Programs Agreement1. SUBJECT
Agreement with Orange Regional Competitive Aquatics, a California non-profit
corporation, for the administration of City aquatic programs.
2. SUMMARY
A five-year program services agreement to administer swim lessons, a recreational swim
team, and a recreational water polo program on behalf of the City utilizing Orange Unified
School District high school pools.
3. RECOMMENDED ACTION
Approve agreement with Orange Regional Competitive Aquatics, and authorize the Mayor
and City Clerk to execute on behalf of the City.
4. FISCAL IMPACT
None.
5. STRATEGIC PLAN GOALS
Goal 3: Enhance and promote quality of life in the community
b: Deliver high quality and safe recreational, social, environmental, educational and
cultural services.
e: Develop and strengthen collaborative partnerships to enhance and promote the
quality of life programs, projects and services.
6. DISCUSSION AND BACKGROUND
Background
Aquatic programing is a core recreation element provided by the Community Services
Department. The City continues to administer and staff summer aquatic programing at
Hart Park Pool. Offerings include the very popular Learn -to -Swim classes. Although it is
cost prohibitive to maintain Hart Park Pool year-round, the need for Learn -to -Swim
lessons is a necessity to maintaining a safe community. To this end, the City has utilized
local high school pools, which operate year-round, to provide swim lessons in the fall and
ITEMS-1-4 1 4/14/2020
spring, as well as additional lessons in the summer months. In 2002, the City transitioned
from offering city staffed aquatic programs during the fall, spring and summer months at
the local high schools to partnering with Orange Regional Competitive Aquatics (ORCA)
to provide these programs at Orange Unified School District (District) facilities. This has
been a successful partnership for eighteen years.
Discussion
With the most recent agreement with ORCA expiring in March 2020, provided for
consideration is a new five-year program services agreement. Staff reconfirmed that
ORCA is the only local, sole source non-profit provider for aquatic programming in the
Orange community. In addition, the partnership with ORCA continues to be a successful
one, providing high quality programs and customer service. The program serves
approximately 600 participants each year and over the last eighteen years has served
over 10,800 participants.
With the City's desire to continue to provide the community with lifesaving swim lessons
and recreational aquatic programming during the fall, spring, and summer seasons, staff
is recommending approval of another five-year services agreement with ORCA, expiring
in March 2025.
Terms of the agreement include:
ORCA will offer Learn -to -Swim classes, as well as recreational swim team and
recreational water polo programs as pool space is available.
ORCA will follow all aquatic American Red Cross safety standards, certification
requirements, and guidelines.
ORCA will recruit, background check, hire, train, and supervise all program staff,
according to the City's standard.
ORCA will collect all registration fees.
ORCA will reimburse the City all City costs associated with the program.
City will obtain permission from the District for use of pool facilities.
City will publicize all programming in the Our Orange magazine and on social
media.
ORCA collects revenue on average of $40,000 annually. A portion of the revenue
collected is used to reimburse the City of all City costs associated with the agreement
which may include, but is not limited to billable staff time, marketing costs, and District
facility permit rental fees. Either party can terminate the agreement without cause, in
writing, at the end of any calendar year and with the termination effective at the end of
the following spring season.
7. ATTACHMENT
Program Services Agreement
ITEM 2 4/14/2020
PROGRAM SERVICES AGREEMENT
THIS PROGRAM SERVICES AGREEMENT (the "Agreement") is made at Orange,
California, as of (the "Effective Date"), by and between the CITY OF ORANGE,
a municipal corporation ("City"), and ORANGE REGIONAL COMPETITIVE AQUATICS, a
California nonprofit corporation ("ORCA"), who agree as follows:
ARTICLE 1
DEFINITIONS
Section I.I. Defined Terms. As used in this Agreement, the following terms shall have
the following meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
Aquatic Program Services" shall mean the services to be provided by ORCA, and the
responsibilities of ORCA, under Section 2.2 and Exhibit A of this Agreement.
Authorized Designee" shall mean, unless otherwise provided elsewhere in this
Agreement, City's Director of Community Services ("Director"). Unless otherwise provided
herein or unless the City Manager otherwise notifies ORCA, any matter to be approved or
disapproved by City or any action to be taken by City pursuant to this Agreement, shall be taken
by the Director.
Default" shall have the meaning given such term in Section 4.1 of this Agreement.
District" shall mean the Orange Unified School District and any assignee of or successor
to its rights, powers and responsibilities.
Facilities" shall mean Orange Unified School District pool facilities or any other facility
agreed upon by both Parties, or as Authorized Designee may designate from time to time. Facilities
includes the swimming pool area and associated parking.
Force Majeure" shall mean acts of God, fire, floods, storms, explosions, accidents,
epidemics, war, civil disorder, strikes or other labor difficulties, or any law, rule, regulation, order
or other actions adopted or taken by any federal or state government authority, or any other cause
not reasonably within a Party's control.
GAAP" shall mean generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principle Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as may be approved by a significant segment of the
accounting profession, which are applicable to the circumstances as of the date of determination.
ORCA" shall mean Orange Regional Competitive Aquatics, a California nonprofit public
benefit corporation, and any permitted assignee of or successor to its rights, powers and
responsibilities.
Party" shall mean either City or ORCA.
Registration Fees" shall mean the gross receipts received by ORCA from members of the
general public registering for the Aquatic Program Services.
Season" shall mean each of three periods during each calendar year for which Aquatic
Program Services will be offered by City to members of the general public: Spring Season,
Summer Season and Fall Season. The exact dates of each Season shall be determined by City and
will be dependent upon the dates the District permits City and ORCA to use the Facilities
Term" shall mean the five-year period commencing on the Effective Date of this
Agreement and expiring on the fifth anniversary of the Effective Date, unless sooner terminated
pursuant to any provision of this Agreement.
ARTICLE 2
AQUATIC PROGRAM SERVICES
Section 2.1 Independent Contractor.
A) ORCA is an independent contractor and not an employee of City. City shall have
the right to control ORCA only insofar as the result of ORCA's services rendered. City shall not
have the right to control the means by which ORCA accomplishes services rendered pursuant to
this Agreement.
B) ORCA shall provide to the reasonable satisfaction of City the Aquatic Program
Services set forth herein. As a material inducement to City to enter into this Agreement, ORCA
represents and warrants that it has thoroughly investigated and considered the scope of services
and fully understands the expectations and requirements in performing the work, including those
contained in Exhibit A, which are attached hereto and incorporated herein by reference. The
services which are the subject of this Agreement are not in the usual course of City's business and
City relies on ORCA's representation that it is independently engaged in the business of providing
such services, is experienced in performing the work and will follow the highest professional
standards in performance of the work. All services provided shall conform to all federal, state and
local laws, rules and regulations. ORCA agrees that any substitutes, agents, or employees shall
remain eligible for employment, under the express terms and conditions as contained herein.
Section 2.2 Aquatic Program Services. City agrees to make available to members of
the general public swimming lessons and the ability to participate in recreational swim teams
and/or water polo teams by publishing in the Fall, Spring and Summer issues of Our Orange the
opportunity for residents and non-residents of City to register for such recreational programs.
Priority registration will be given to City residents. ORCA agrees to operate and manage the
Aquatic Program Services and to provide the Aquatic Program Services described below and in
Exhibit A. The terms and conditions set forth in this Agreement shall control over any terms and
conditions in Exhibit A to the contrary.
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Section 2.3 Instructor Oualifications. All employees or agents of ORCA engaged in
the provision of services under this Agreement (collectively, "staff') shall be American Red Cross
Lifeguard certified prior to commencing service and shall maintain this certification for the
duration of their service under this Agreement. In addition, beginning in their second year of
service under this Agreement, all staff shall be certified in Title 22 "First Aid for Public Safety
Personnel" requirements. All staff will follow the highest professional standards in the
performance of the services. ORCA shall furnish Authorized Designee with copies of all such
certifications for all of its staff at least two (2) weeks prior to the performance of any of the services
under this Agreement.
Section 2.4 Use of the Facilities.
A) ORCA's performance of the Aquatic Program Services for each Season is
conditional and contingent upon City obtaining the prior and timely written approval from the
District to use the Facilities for each respective Season. City shall have full responsibility to obtain
permission from the District for the use of the Facilities. If for any reason a Facility is not available
to City for a particular Season, City is under no obligation to provide an alternate location. City
may opt, but is not required, to seek out an alternate Facility.
B) To ensure that ORCA will be able to offer Aquatic Program Services for each
Season and at each Facility permitted by the District, the Parties shall meet and confer and mutually
agree upon a schedule of program dates, times and Registration Fees not later than ninety (90)
days prior to the scheduled commencement date of Aquatic Program Services for the Season in
question. Once the District has approved the use of its Facilities and the Parties have mutually
agreed upon a schedule of program dates, times and Registration Fees, ORCA will deliver to City
copy for the advertisement to be include in Our Orange advertising the availability of the Aquatic
Program Services for the Season in question.
C) To the extent that City is unable for any reason to obtain the District's permission
to use any Facility for one or more Seasons during each year, ORCA agrees, nonetheless, to
provide Aquatic Program Services at such times and dates and at such Facilities (or Facility) as
are permitted by the District from time to time.
D) ORCA shall have the right to exclude those members of the general public not
registered for the Aquatic Program Services from and exclusively use, in accordance with all of
the terms, covenants and conditions set forth in this Agreement, the Facility or Facilities for the
Aquatic Program Services.
Section 2.5 Responsibilities of ORCA.
A) Coordination. City and ORCA will meet and confer from time to time to ascertain
and mutually agree upon Registration Fees, the timing of each Season, the number of classes
offered, registration procedures and all other information that Authorized Designee and ORCA
agree will be necessary for the successful operation and management of the Aquatic Program
Services.
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B) Cost Recovery Fees. ORCA shall have full responsibility to charge and collect
Registration Fees on behalf of City for each Season for any pool used to provide Aquatic Program
Services. ORCA shall administer the registration system including, but not limited to registration
and collection of Registration Fees.
City shall invoice ORCA (see sample invoice attached hereto as Exhibit C) to recover
seasonal costs, which may include but not be limited to:
District pool rental fees;
Marketing costs associated with the program, such as advertising in Our Orange,
Plaza banners, City website and other media outlets;
City staff time, City overhead for Recreation Services Coordinator, Pool
Manager, and/or Lifeguard or Swim Instructors.
Refunds for session participants, if any, shall be determined by ORCA in its sole discretion,
but must be accounted for on the Accounting Summary Sheet (see sample attached hereto as
Exhibit D). ORCA shall not issue any refunds once payment for that session is submitted to City.
No portion of the fees charged to session participants may be prorated on the basis of a participant
not being able or willing to attend all classes in a session.
C) Audit of Records. In accordance with GAAP and consistent with prudent business
practices, ORCA shall keep and maintain full and complete books of records and accounts in which
full and correct entries shall be made of all financial transactions and Registration Fees. The books
of record and accounts required to be kept shall not be destroyed for a period of two (2) years
following the termination of this Agreement. During the Term of this Agreement and for a period
of two (2) years after termination of this Agreement, ORCA shall permit City, its representatives,
agents or attorneys, (i) to inspect and examine, upon reasonable notice, books of account, records,
reports and other papers of ORCA, to make copies and take extracts thereof; and (ii) to discuss the
affairs, finances and accounts of ORCA with ORCA's accountants (and by this provision ORCA
hereby authorizes said accountants to discuss with City the finances and accounts of ORCA). Each
such inspection shall be at the expense of City. Notwithstanding the foregoing sentence, it is
understood and agreed by ORCA that all expenses incurred by ORCA, any officers and employees
thereof and the accountants thereof in connection with any such inspection shall be expenses
payable by ORCA and shall not be expenses of City.
D) Sign -In Sheets. ORCA shall provide sign -in sheets for all persons registered in the
Aquatic Program Services with hold harmless/release/assumption of risk provisions ("Release")
approved in advance by City in writing, and will ensure that each registrant signs and delivers his/
her individual Release to ORCA for safekeeping in its file. Any registrant failing or refusing to
sign the Release shall not be permitted by ORCA to use the Facilities under the Aquatic Services
Program. ORCA shall submit all registration records to City no later than thirty (30) days after
the conclusion of each Season session.
E) Staffing. ORCA shall provide any and all staff as may be required to render good
quality service, to the satisfaction of City. ORCA shall recruit, train, supervise and evaluate all
staff used for the rendition of services under this Agreement. ORCA shall schedule and assign its
staff in accordance with the minimum instructor/swimmer ratios set forth on Exhibit A hereto.
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Such persons shall be satisfactory to City as to their personal conduct, honesty, courtesy, health,
personal appearance and willingness to cooperate with City employees. In the event a staff
member is not satisfactory, as herein defined, City may furnish a written directive to ORCA to
correct the cause of its dissatisfaction. If ORCA does not correct said problem to the satisfaction
of City within thirty (30) days after said written directive is received, City may furnish a
subsequent written notice to ORCA requiring that said staff be excluded from providing further
services to City. All staff engaged in the services under this Agreement will at all times be
qualified as provided in Section 2.3, above.
F) Permits and Licenses. ORCA shall obtain at its sole expense any and all permits
or licenses that may be required in connection with its operations under and pursuant to this
Agreement including, but not limited to a City of Orange business license, health permits and the
certifications described in Section 2.3.
G) Signs and Advertisements. ORCA shall not place, construct or maintain on or
about the Facilities any signs without the prior written consent of City in each instance.
H) Concession Sales. ORCA shall not sell or permit the sale of (i) food or beverages,
ii) programs, magazines, and other publications, or (iii) other products, at the Facilities or from
vendors operating within the Facilities.
1) Equipment and Staff Swim Attire. Except for any equipment swimmers are
required to furnish for their own safety and convenience, ORCA shall provide all essential
equipment necessary, including a backboard for the rendition of its services hereunder. ORCA
staff shall wear solid colored, modest swimsuits and solid colored rash guards and optional hats.
Female instructors shall wear a solid colored one piece swimsuit and male instructors shall wear
solid colored trunks. No logo wear, other than the ORCA logo, shall be allowed.
J) Facilities Maintenance. ORCA shall keep the Facilities free of debris and in good
order at all times while its staff are at the Facilities and at such time as it leaves the Facilities each
day at the conclusion of its services.
K) City Rules. ORCA and its staff shall at all times abide by all Rules and Regulations
previously adopted or that may later be adopted by City and cooperate fully with City employees
in the performance of their duties.
L) Laws and Ordinances. ORCA shall conduct its business in accordance with all
laws, ordinances, rules and regulations applicable to such business as set forth by City, county,
state and federal governments.
M) Safety. With respect to the services being furnished by ORCA under this
Agreement, ORCA shall correct safety deficiencies and violations of safety practices immediately
and shall cooperate fully with City in the investigation of accidents occurring at the Facilities. In
the event of injury to a patron or customer, ORCA shall ensure that the injured person receives
prompt and qualified medical attention, and as soon as possible thereafter, it shall submit to City
an Accident Report Form.
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N) Background Checks/Screening. All personnel engaged in performance of this
work shall be employees of ORCA and as such shall be warranted to possess sufficient experience
and background clearance to perform this work at public facilities. ORCA is responsible for
conducting sufficient background checks before commencing work under this Agreement, to
ensure no employees performing work in City on behalf of ORCA, are listed on the National Sex
Offender Public Registry ("NSOPR"). ORCA shall monitor staff security records to ensure no
existing or new employees performing work under this Agreement are added to the NSOPR or
convicted of any crimes that would disqualify them from adhering to conduct conducive to public
safety. ORCA shalt conduct background checks for current/new employees consisting of drug
test, TB test, and Livescan fingerprints. Background checks for returning employees must consist
of an annual drug screening and a TB test.
0) Compliance with Immigration Laws.
1) ORCA represents and warrants that it:
a) Has complied and shall comply, in all respects, with all immigration
laws, regulations, statutes, rules, codes, and orders, including, without limitation, the Immigration
Reform and Control Act of 1986 (IRCA); and
b) Has not and will not knowingly employ any individual to perform
services under this Agreement who is ineligible to work in the United States or under the terms of
this Agreement; and
c) Has properly maintained, and shall at all times properly maintain,
all related employment documentation records including, without limitation, the completion and
maintenance of the Form I-9 for each of its employees; and
d) Has responded, and shall at all times respond, in a timely fashion to
any government inspection requests relating to immigration law compliance and/or Form I-9
compliance and/or worksite enforcement by the Department of Homeland Security, the
Department of Labor, or the Social Security Administration.
2) ORCA shall, upon request of City, provide a list of all employees working
under this Agreement and shall provide, to the reasonable satisfaction of City, verification that all
such employees are eligible to work in the United States. All costs associated with such
verification shall be borne by ORCA. Once such request has been made, ORCA may not change
employees working under this Agreement without written notice to City, accompanied by the
verification required herein for such employees.
3) ORCA agrees to indemnify and hold City, its officers, officials, agents and
employees harmless for, of and from any loss, including but not limited to fines, penalties and
corrective measures, City may sustain by reason of ORCA's failure to comply with said laws, rules
and regulations in connection with the performance of this Agreement.
Section 2.6. Compensation for Aquatic Program Services. The total compensation
payable to ORCA for the Aquatic Program Services shall be the amount to be retained by ORCA
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from the Registration Fees, as described in Section 2.5(B). Not less than thirty (30) days prior to
each anniversary of the Effective Date, Authorized Designee and the authorized designee of
ORCA shall meet to review and negotiate in good faith any request of either Party for the
modification of the compensation payable to ORCA for the succeeding year. If the Parties are
unable to agree upon any such modification prior to the commencement of the year in question,
either Party may terminate this Agreement by giving the other Party written notice which shall be
effective at the end of the Spring Season, in which event ORCA shall receive as compensation for
that Season the amount stipulated in Section 2.5(B), as the same may be amended from time to
time. A modification to the amount of compensation payable to ORCA shall not be deemed
approved until such modification is approved in writing by City.
ARTICLE 3
INSURANCE; INDEMNITY
Section 3.1 Workers' Compensation. ORCA shall carry employer's liability
insurance and workers' compensation insurance as required by law for the protection of its
employees during the progress of the work. ORCA understands that it is an independent contractor
and not entitled to any workers' compensation benefits under any City program.
Section 3.2 Commercial General Liability Insurance. ORCA shall maintain the
following minimum amount of comprehensive general liability insurance or commercial general
liability insurance: the greater of (1) One Million Dollars ($1,000,000) per occurrence; or (2) all
the insurance coverage and/or limits carried by or available to Instructor. Said insurance shall
cover bodily injury, death and property damage, shall not exclude participants (e.g., no spectator
liability policies allowed) and be written on an occurrence basis.
Section 3.3 Automobile Liability Insurance. ORCA shall maintain the following
minimum amount of automobile liability insurance: the greater of (1) a combined single limit of
One Million Dollars ($1,000,000); or (2) all the insurance coverage and/or limits carried by or
available to ORCA. Said insurance shall cover bodily injury, death and property damage for all
owned, non -owned and hired vehicles and be written on an occurrence basis.
Section 3.4 Additional Insured Endorsements. Each policy of general liability and
automobile liability shall provide that City, its officers, officials, agents and employees are
declared to be additional insureds under the terms of the policy, but only with respect to the work
performed by ORCA under this Agreement. A policy endorsement to that effect shall be provided
to City along with the certificate of insurance. In lieu of an endorsement, City will accept a copy
of the policy(ies) which evidences that City is an additional insured as a contracting party. The
minimum coverage required above, shall apply to City as an additional insured.
Section 3.5 Primary Insurance. The insurance policies maintained by ORCA shall be
primary insurance and no insurance held or owned by City shall be called upon to cover any loss
under the policy. ORCA will determine its own needs in procurement of insurance to cover
liabilities other than as stated above.
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Section 3.6 Other Insurance Requirements.
A) Before ORCA performs any work or prepares or delivers any materials, it shall
furnish certificates of insurance and endorsements, as required by City, evidencing the
aforementioned insurance coverages, which shall provide that the insurance in force will not be
canceled or allowed to lapse without at least ten (10) days' prior written notice to City.
B) All insurance maintained by ORCA shall be issued by companies admitted to
conduct the pertinent line of insurance business in the State of California and having a rating of
Grade A or better and Class VII or better by the latest edition of Best Key Rating Guide.
C) ORCA shall immediately notify City if any required insurance lapses or is
otherwise modified and cease performance of this Agreement unless otherwise directed by City.
In such a case, City may procure insurance or self -insure the risk and charge ORCA for such costs
and any and all damages resulting therefrom, by way of set-off from any sums owed Instructor.
D) ORCA agrees that in the event of loss due to any of the perils for which it has agreed
to provide insurance, it shall look solely to its insurance for recovery. ORCA hereby grants to
City, on behalf of any insurer providing insurance to either ORCA or to City with respect to the
services of ORCA herein, a waiver of any right to subrogation which any such insurer of said
ORCA may acquire against City by virtue of the payment of any loss under such insurance.
Section 3.6 Indemnity. To the fullest extent permitted by law, ORCA agrees to
indemnify, defend and hold City, its City Council and each member thereof, and the officers,
officials, agents and employees of City (collectively the "Indemnitees") entirely harmless from all
liability arising out of:
A) Any and all claims under workers' compensation acts and other employee benefit
acts with respect to ORCA's employees arising out of its work under this Agreement, including
any and all claims under any law pertaining to ORCA or its employees' status as independent
contractors; and
B) Any claim, loss, injury to or death of persons or damage to property caused by any
act, neglect, default, or omission other than a professional act or omission of ORCA, or person,
firm or corporation employed by ORCA, either directly or by independent contract, including all
damages due to loss or theft sustained by any person, firm or corporation including the
Indemnitees, or any of them, arising out of, or in any way connected with the work or services
which are the subject of this Agreement, including injury or damage either on or off City's
property; but not for any loss, injury, death or damage caused by the active negligence or willful
misconduct of City. ORCA, at its own expense, cost and risk, shall indemnify any and all claims,
actions, suits or other proceedings that may be brought or instituted against the Indemnitees on
any such claim or liability covered by this subparagraph, and shall pay or satisfy any judgment
that may be rendered against the Indemnitees, or any of them, in any action, suit or other
proceedings as a result of coverage under this subparagraph.
C) Except for the Indemnitees, the indemnifications provided in this Agreement shall
not be construed to extend any third party indemnification rights of any kind to any person or entity
which is not a signatory to this Agreement.
D) The indemnities set forth in this section shall survive any closing, rescission, or
termination of this Agreement, and shall continue to be binding and in full force and effect in
perpetuity with respect to ORCA and its successors.
ARTICLE 4
DEFAULT; REMEDIES
Section 4.1 Defaults. ORCA shall be in default ("Default") under this Agreement:
A) If it fails to pay any portion of City's Registration Fees or any other charge to City
for a period of ten (10) City business days after written notice from City; or
B) If it fails to perform or observe any of its obligations found in this Agreement and
such Default shall not have been remedied within ten (10) City business days after written notice
from City; or
C) If it fails to perform any other of its non -monetary obligations under this Agreement
for a period of thirty (30) calendar days after written notice from City; provided that if more than
thirty (30) calendar days are required to complete such performance, ORCA shall not be in default
if it commences such performance within the thirty (30) day period and thereafter diligently
pursues its completion. The notice required by this Section 4.1 is intended to satisfy any and all
notice requirements imposed by law on City and is not in addition to any such requirement.
D) If any of the following occurs: (i) ORCA makes a general assignment or general
arrangement for the benefit of creditors; (ii) a petition for adjudication of bankruptcy or for
reorganization or rearrangement is filed by or against ORCA and is not dismissed within thirty
30) days; (iii) a trustee or receiver is appointed to take possession of substantially all of ORCA's
assets or of its interest in this Agreement and possession is not restored to ORCA within thirty (30)
days; or (iv) substantially all of ORCA's assets or of its interest in this Agreement is subjected to
attachment, execution or other judicial seizure which is not discharged within thirty (30) days.
Section 4.2 Assignment of City of Orange Checking Account; Power of Attorney.
ORCA hereby assigns and transfers absolutely to City all of the Registration Fees on deposit in
the City of Orange Checking Account and hereby gives to and confers upon City the right, power
and authority to collect such Registration Fees upon the occurrence of any Default. ORCA hereby
irrevocably authorizes and appoints City its true and lawful attorney -in -fact, at the option of City,
at any time and from time to time following a Default, to demand, receive and enforce payment
and to sue, in its name or in the name of ORCA, for all such Registration Fees, and apply the same
to the obligations secured hereby; provided, however, that ORCA shall have the right to collect
such Registration Fees, and to retain and enjoy the same in accordance with the terms and
conditions of Section 2.5(B) of this Agreement, so long as a Default shall not have occurred
hereunder and be continuing. This assignment of Registration Fees is intended to be an absolute
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assignment from ORCA to City and not merely the passing of a security interest. The foregoing
power of attorney is coupled with an interest and cannot be revoked.
Section 4.3 Remedies. On a Default by ORCA, City may pursue any remedy and
recover any damages now or hereafter available to it under the laws or judicial decisions of the
State of California, including, termination of this Agreement pursuant to Article 5.
Section 4.4 Cumulative Remedies. City's exercise of any right or remedy shall not
prevent it from exercising any other right or remedy.
ARTICLE 5
TERMINATION
Section 5.1 Termination Without Cause. Either Party shall have the right to terminate
this Agreement at the end of any calendar year for any reason upon the giving of written notice,
which shall be effective at the end of the Spring Season following the giving of notice.
Section 5.2 Additional City Right to Terminate. At the option of City, and upon
written notice to ORCA, City shall have the right to terminate this Agreement, in whole or in part,
for any of the following reasons:
A) Upon the happening of all of the following:
1) Default by ORCA; and
2) The giving of written notice of such Default to ORCA by City; and
3) Failure of ORCA to cure such Default within thirty (30) days or such period
of time as stated in the notice of Default, whichever is longer.
B) Upon such time as ORCA becomes insolvent, is declared bankrupt, makes an
assignment for benefit of its creditors, elects to wind up and dissolve, or loses its status as a
nonprofit corporation, unless consented to in writing by City.
C) To the extent necessary to protect the welfare, health, safety or morals of the
residents of City, in the sole discretion of City.
Section 5.3 Force Maieure. If the performance of this Agreement by any Party is
delayed or prevented in whole or in part by Force Majeure, such Party shall be excused, discharged
and released of performance to the extent such performance or obligation is so delayed or
prevented by such occurrence without liability of any kind. Nothing contained herein shall be
construed as requiring any Party to accede to any demands or to settle disputes with labor or labor
unions, suppliers or other parties that such Party considers unreasonable.
Section 5.4 Effect of Termination. Nothing in this Agreement shall be held to prevent,
limit or otherwise reduce either Party's right to pursue damages against the other. Upon expiraton
or termination of this Agreement, ORCA shall, without further notice or action, have no further
license or right to use the Facilities and ORCA shall immediately vacate and remove any ORCA-
owned property. Following expiration or termination of the Term hereof, this Agreement shall be
of no further force and effect; provided, however, that no such expiration or termination shall
automatically affect any right of City and ORCA arising from the duties of the Parties that by
necessity must be completed after termination.
ARTICLE 6
MISCELLANEOUS
Section 6.1 Time is of the Essence. Time is of the essence with respect to the
performance of the duties contained in this Agreement.
Section 6.2 Governing Law. This Agreement shall be construed in accordance with
and governed by the laws of the State of California and ORCA agrees to submit to the jurisdiction
of California courts. Venue for any dispute arising under this Agreement shall be in Orange
County, California.
Section 6.3 Integration. This Agreement constitutes the entire agreement of the
parties. No other agreement, oral or written, pertaining to the work to be performed under this
Agreement shall be of any force or effect unless it is in writing and signed by both parties. Any
work performed which is inconsistent with or in violation of the provisions of this Agreement shall
not be compensated.
Section 6.4 Notices. Except as otherwise provided herein, all notices required under
this Agreement shall be in writing and delivered personally, by e-mail, or by first class U.S. mail,
postage prepaid, to each party at the address listed below. Either party may change the notice
address by notifying the other party in writing. Notices shall be deemed received upon receipt of
same or within three (3) days of deposit in the U.S. Mail, whichever is earlier. Notices sent by e-
mail shall be deemed received on the date of the e-mail transmission.
ORCA"
Orange Regional Competitive Aquatics
17853 Santiago Blvd. #107-265
Villa Park, CA 92861
Attn.: Jerry Olszewski, President
Telephone: 602-740-8338
E-Mail: jaolszewski@hotmail.com
CITY"
City of Orange
230 E. Chapman Avenue
Orange, CA 92866
Attn.: Director of Community Services
Telephone: 714-744-7264
E-Mail: bhagan@cityoforange.org
Section 6.5 Assignment. ORCA shall not voluntarily or by operation of law assign,
transfer or encumber all or any part of its interest in this Agreement without City's prior written
consent.
Section 6.6 Entire Agreement. This Agreement shall constitute the entire agreement
of the Parties hereto with respect to the subject matter hereof.
11
Section 6.7 Non -Waiver. The failure of any Party at any time to enforce a provision of
this Agreement shall in no way constitute a waiver of the provision, nor in any way affect the
validity of this Agreement or any part hereof or the right of such Party thereafter to enforce each
and every provision hereof.
Section 6.8 Nondiscrimination. ORCA shall not discriminate, in any way, against any
person because of race, color, religion, sex, national origin, mental or physical disability, or any
other basis prohibited by applicable law in connection with or related to the performance of this
Agreement and shall comply with the provisions of the State Fair Employment Practices Act: the
Federal Civil Rights Act of 1964, and all amendments; all administrative rules and regulations
issued pursuant to such acts. ORCA shall ensure that applicants are employed, and that employees
are treated during employment, without regard to their race, color, religion, sex, national origin,
mental or physical disability, or any other basis prohibited by applicable law. Such actions shall
include, but not be limited to the following: employment, upgrading, demotion or transfer,
recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of
compensation and selection for training, including apprenticeship. ORCA agrees to post in
conspicuous places, available to employees and applicants for employment, a notice setting forth
provisions of this nondiscrimination clause.
Section 6.9 Modification of Agreement. The terms, conditions and requirements of
this Agreement or any part hereof, may be amended, modified, revised, supplemented or deleted
only by mutual written agreement of the Parties.
Section 6.10 Successors and Assigns. This Agreement shall be binding upon each of
City and ORCA and their respective successors and assigns, and shall inure to the benefit of and
be enforceable by each of ORCA and City and their respective successors and assigns.
Section 6.11 Severability. If any terms or provisions of this Agreement shall be found
to be void or contrary to law, such term or provision shall, but only to the extent necessary to bring
this Agreement within the requirements of law, be deemed to be severable from the other terms
and provisions hereof, and the remainder of this Agreement shall be given effect as if the Parties
had not intended the severed term herein.
Section 6.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Signatures transmitted via facsimile and electronic mail shall have
the same effect as original signatures.
Remainder of page intentionally left blank; signatures on next page]
12
IN WITNESS of this Agreement, the Parties have entered into this Agreement as of the
year and day first above written.
ORANGE REGIONAL COMPETITIVE
AQUATICS, a California corporation
By:
Printed Name:
Title:
By:
Printed Name:
Title:
APPROVED AS TO FORM:
Mary E. Binning
Senior Assistant City Attorney
CITY OF ORANGE, a municipal
corporation
0
Mark A. Murphy, Mayor
ATTEST:
Pamela Coleman, City Clerk
13
EXHIBIT A
SCOPE OF SERVICES
Behind this sheet.]
EXHIBIT A
SCOPE OF SERVICES
ORCA will have at least one (1) lifeguard on duty at each Facility for every fifty (50)
members of the general public using a Facility for swimming lessons, recreational swim
teams and/or water polo teams. The lifeguard(s) will be present prior to any member of
the general public entering the premises of a Facility and will remain until all members
of the general public have vacated the premises of a Facility.
ORCA will have a pool manager on the deck at each Facility while members of the
general public are using a Facility for swimming lessons, recreational swim teams and/or
water polo teams to respond to questions from members of the general public and
participants in said programs, provide first aid, oversee swim lessons, and answer and
respond to the telephone.. The pool manager will be present prior to any member of the
general public entering the premises of a Facility and will remain until all members of
the general public have vacated the premises of a Facility.
ORCA will keep a telephone with the number publicized to members of the general
public on the pool deck at each Facility being used during program hours. Said telephone
shall have voicemail capability. ORCA shall return phone calls within 24 hours.
ORCA will follow, at a minimum, American Red Cross suggested guidelines for
swimming lessons, as stated in the most current edition of the Water Safety Instructor's
manual.
ORCA will keep and maintain appropriate first aid supplies on the pool deck at each
Facility while members of the general public are using a Facility.
ORCA will keep and maintain proper safety and rescue equipment including backboards
on the pool deck at each Facility while members of the general public are using a Facility.
ORCA will keep accident forms and incident forms on file at each Facility and will have
qualified staff fill them out completely in the case of each and every accident or incident
occurring at or on the premises of a Facility. ORCA shall submit copies of all accident
or incident reports to the Community Services Director or designee within 24 hours after
the occurrence of an accident or incident.
ORCA hereby acknowledges that it has read, reviewed and understands those provisions
of the Environmental Health Advisory Notice issued by the County of Orange Health
Care Agency/Environmental Health, a copy of which is available on the County's
website at http://www.ochealthinfo.com and is also attached hereto as Exhibit B and
incorporated herein, as they relate to the Aquatic Services Program.
Exhibit A- Page 1
ORCA shall adhere to the provisions of the Environmental Health Advisory Notice.
ORCA shall instruct its employees and representatives to read the Environmental Health
Advisory Notice and, whenever ORCA or any of its employees or representatives finds
feces, vomitus or a dead animal in a swimming pool, they shall instruct all pool users to
exit the pool(s) immediately and not allow anyone to enter the contaminated pool until
all of the steps set forth in said Environmental Health Advisory Notice have been
completed by the maintenance representative of the District.
If ORCA or one of its employees or representatives finds feces, vomitus or a dead animal
in a pool, ORCA shall immediately contact the District's maintenance representative,
who will be responsible for removing, eliminating and remediating any such
contamination in accordance with the procedures set forth in the Environmental Health
Advisory Notice. The District's maintenance representative shall be responsible for
determining when and if the Facilities may be reopened for use by members of the
general public. ORCA shall not reopen the affected pool(s) unless and until the District's
maintenance representative completes the pool closure procedures set forth in said
Environmental Health Advisory Notice and certifies to ORCA in writing that he/she has
done so and that the pool is then ready to be used by members of the general public.
ORCA shall establish a fecal accident log as required by the Environmental Health
Advisory Notice. ORCA shall notify Authorized Designee (or his/her designee)
promptly following ORCA's notification of the District's maintenance representative that
a Facility may be contaminated.
Exhibit A- Page 2
EXHIBIT B
ENVIRONMENTAL HEALTH ADVISORY NOTICE ISSUED BY THE COUNTY
OF ORANGE HEALTH CARE AGENCY/ENVIRONMENTAL HEALTH
Behind this sheet.]
HEALTH CARE AGENCY/PUBLIC HEALTH
M ENVIRONMENTAL HEALTH
09LIF04~
INFORMATIONAL BULLETIN
TO: Owners/Operators of Public Pools Located in the County of Orange
SUBJECT: Procedures Following a Contamination of a Public Pool by Feces, Drowning Incidents,
Vomitus or Dead Animals
Contamination of a pool can be of great public health concern and can most commonly occur from fecal accidents,
vomitus or dead animals. A drowning or a near drowning can cause an individual to become incontinent and thus
can also provide a source for contamination. It is essential that when any of these incidents occur that you as the
owner or operator act quickly to effectively mitigate any public health hazards stemming from the contamination of
your pool. Listed below are the procedures you must take to adequately protect the users of your pool.
Background:
Centers for Disease Control (CDC) revised the disinfection time required to kill pathogens, such as Cryptosporidium
crypto) from 9600 CT* to 15,300 CT with 2.0 parts per million (ppm) non -stabilized free chlorine. Crypto is a one -
celled parasite that can cause a gastrointestinal illness called cryptosporidiosis associated with diarrheal disease.
CDC further advises that non -stabilized free chlorine (either calcium hypochlorite or sodium hypochlorite) be used to
disinfect fecal accident contaminated pool water.
For All Fecal Accidents:
Have all pool users exit the pool. Maintain the pool closed for use while the sanitizing procedures are being
followed.
Remove all visible fecal material. Vacuuming stool from the pool is not recommended. If a pool water -
vacuuming device is used, the waste water must be discharged to the sewer, not back into the pool
recirculation system. Equipment used to remove visible fecal material is to be thoroughly cleaned and
sanitized prior to storage.
For Formed (solid) Stool:
If the fecal accident involves a formed stool (solid, not liquid), raise the free available chlorine concentration
of the pool water after removing the stool to 2 mg/L (parts per million) at a temperature of at least 770F (25°C)
and maintain the pH between 7.2 — 7.5 for at least 30 minutes before reopening the pool.
For Loose (diarrhea) Stool:
If the fecal accident involves diarrhea or a loose stool, raise the free available chlorine concentration to
20 mg/L (parts per million)t** at a temperature of at least 770F (25°C) and maintain the water's pH
between 7.2 — 7.5 for at least 12.75 hours to achieve a contact time (CT) value of 15,300. Crypto CT
inactivation values are based on killing 99.9% of Crypto. Per CDC recommendations, this level of
Crypto inactivation cannot be reached in the presence of 50 ppm chlorine stabilizer, even after 24
hours at 40 ppm free chlorine, pH 6.5, and a temperature of 77°F (25°C). Extrapolation of these data
suggest it would take approximately 30 hours to kill 99.9% of Crypto in the presence of 50 ppm or less
cyanuric acid, 40 ppm free chlorine, pH 6.5, and a temperature of 770F (25°C) or higher.
1241 E. DYER ROAD, SurrE 120, SANTA ANA, CA 92705-5611
Telephone: (714) 433-6000 / FAX: (714) 433-6423 Exhibit B- Page 1
www.odPoodinfo.com
For fecal accidents involving diarrhea or loose stool, backwash the filter after reaching the CT
inactivation value (after the 12.75 hours with 20 ppm). Be sure the effluent is discharged directly to the
sewer and in accordance with state or local regulations. Do not return the backwash through the filter.
Where appropriate, replace the filter media.
Additional Measures for all Fecal Incidents:
Ensure that the filtration system is operating while the pool reaches and maintains the proper free
chlorine concentration during the disinfection process.
Sanitizing of all pool interior surfaces and recirculation equipment will be required which would expose the
interior pool and pumping -filtration equipment surfaces to the 15,300 contact time" equivalent.
When the sanitizing -contact time period is completed, the pool can be re -opened for bathing provided excess
free chlorine levels are reduced to acceptable values, the pH is balanced as needed, the filter(s) are
recharged, and the recirculation system is operating.
Establishment of a fecal incident log is recommended. Document each fecal incident by recording the date
and the time of the event, whether it involved formed stool or diarrhea, and the free chlorine and pH levels at
the time or observation of the event. Before reopening the pool, record the free chlorine and the pH levels,
the procedures followed in response to the fecal incident (including the process used to increase chlorine
levels if necessary), and the contact time.
Vomiting in the pool while swimming is a common event. Often, vomiting results from swallowing too
much water, meaning that the vomit is probably not infectious. However, if the contents of the stomach
are vomited, it is important to act immediately. The germs most likely to be spread by vomit are
noroviruses (also known as Norwalk -like viruses). Respond to the vomit incident (when vomit contains
more than regurgitated water) as you would respond to a formed stool fecal incident. The time and
chlorine level combinations needed to kill noroviruses and Giardia are similar. Since killing Giardia is
the basis for CDC's formed fecal incident response recommendations, this protocol should be adequate
for disinfecting a potentially infectious vomit incident.
Smaller sized animals that are found dead in a pool do not necessarily pose a health risk to
swimmers. Many different types of domestic and wild animals — including skunks, birds, mice,
gophers, rats, snakes, frogs, and bats — are commonly found dead in pools. Most germs carried by
animals are killed by chlorine within minutes in a well -maintained pool.Y To help ensure healthy
swimming in a pool where a dead animal has been found and where the pool is not well maintained, the
following simple steps below must be followed to remove the animal and disinfect the water:
a) Close the pool to swimmers.
b) Put on disposable gloves.
c) Use a net or bucket to remove the dead animal from the pool.
d) Double bag the animal in plastic garbage bags.
e) Clean off any debris or dirt from the item used to remove the dead animal.
f) Remove gloves and place them in the garbage bags.
g) Close the garbage bags and place them in a sealed trash can to help keep wild animals away from the
dead animal.
h) Wash your hands thoroughly with soap and water immediately.
i) Raise the free chlorine concentration to, or maintain it at, 2 parts per million (ppm); maintain the pH
levels at 7.5 or less; keep the temperature at 770F (25°C) or higher. The free chlorine and pH should
remain at these levels for 30 minutes.
j) Confirm that the filtration system is operating properly during this time.
1241 E. DYER ROAD, $Urn: 120, SANTA ANA, CA 92705-5611
Telephone: (714) 433-6000 / FAX: (714) 433-6423 Exhibit B- Page 2
www.ocfoodinfo.com
k) Disinfect the item used to remove the dead animal by immersing it in the pool during the 30 minute
disinfection time.
Exception
Dead raccoons in pools, however, can pose a health risk to swimmers. Raccoons can be pests and can
spread germs to humans. It is important to keep raccoons out of your pool and watch for raccoon feces (poop)
in and around your pool. Raccoon feces can sometimes contain the eggs of a worm called Baylisascaris
procyonis, which can infect humans, particularly children, and cause severe neurologic illness. Because
Baylisascaris eggs are particularly tough, adding chlorine to the water will not kill them. If a lab test has
confirmed that the raccoon was infected with Baylisascaris or you don't know if the raccoon was infected
because the raccoon's feces were not tested, there are two options for cleaning your pool.
Remember to close the pool to swimmers until you have finished cleaning the pool.
Option 1:
a) Filter the pool for a minimum of 24 hours and then backwash the pool filter.
b) Put on disposable gloves to replace the filter media (if possible). Double bag the discarded
material in plastic garbage bags. Remove gloves and place them in the garbage bags. Wash
your hands thoroughly with soap and water afterwards.
Option 2:
c) Backwash the pool filter.
d) Drain and hose down the pool.
e) Put on disposable gloves to replace the filter media (if possible). Double bag the discarded
material in plastic garbage bags. Remove gloves and place them in the garbage bags. Wash
your hands thoroughly with soap and water afterwards.
f) Refill the pool.
Bird Droppings may contain many germs that can infect humans. Duck and goose droppings, in
particular, might contain germs such as E. coli, Salmonella, Campylobacter, or Cryptosporidium
crypto). Most germs in bird droppings are killed by chlorine within minutes in a well -maintained pool.
The germ Crypto, however, has a tough outer shell that allows it to survive for a long time in the
environment. Crypto can survive for days even in properly chlorinated pools. Respond to finding
numerous bird droppings in the pool as you would respond to a formed stool fecal incident.
Notes:
1. Fecal accident pool closure procedures are based on recommendations by the Centers for Disease
Control and Prevention. (http://www.edc.gov)
2. *The CT inactivation value is the concentration (C) of free chlorine in ppm multiplied by time (T) in
minutes (CT inactivation value = C x T). If you choose to use a different free chlorine concentration or
inactivation time, you must ensure that the CT inactivation values remain the same. To determine the
length of time needed to disinfect a pool after a diarrheal incident at 15 ppm, use the following formula:
C x T = 15,300. Solve for time: T = 15,300 = 15 ppm = 1020 minutes or 17 hours. It would take 17 hours
to inactivate Crypto at 15 ppm.
3. tMany conventional test kits cannot measure free chlorine levels this high. Use chlorine test strips that
can measure free chlorine in a range that includes 20-40 ppm (such as those used in the food industry)
or make dilutions with chlorine -free water when using a standard DPD test kit.
1241 E. DYER ROAD, SurrE 120, SANTA AIVA, CA 92705-5611
Telephone: (714) 433-6000 / FAX: (714) 433-6423 Exhibit B- Page 3
www.odoodinfo.com
4. **If a different free chlorine concentration or inactivation time is used, ensure that the CT inactivation
values always remain the same.
5. High levels of chlorine may damage pool equipment. Exercise caution or consult with an experienced
aquatic professional.
6. -oChlorine stabilizers include compounds such as cyanuric acid, dichlor, and trichlor.
7. # A well maintained pool is defined as one with a free chlorine concentration of at least 1.0 ppm and 1.5
ppm when using Cyanuric Acid, with a pH range of 7.2-8.0.
Please feel free to contact your inspector or contact the Pool Safety Program with -in Environmental Health at
714) 433-6000 between the hours of 8:00 a.m. and 5:00 p.m. during normal days of business or visit our website
at: http://ochealthinfo.com/pool .
Pool Fecal Bulletin
Rev. 11 /7/11
1241 E. DYER ROAD, SurTE 120, SANTA ANA, CA 92705-5611
Telephone: (714) 433-6000 / FAX: (714) 433-6423 Exhibit B- Page 4
www.odoodinfo.com
EXHIBIT C
SAMPLE INVOICE
Behind this sheet.]
June 26, 2020
Invoice# 1-2020
Quarterly/Seasonal Invoice
City of
ran ge
Community Services Department
BILL Orange Regional Competitive Aquatics
TO: 17853 Santiago Blvd. #107-265
Villa Park, CA 92861
SEASON/QUARTER
OUSD Pool Rental Fees:
Active Quarter): (Number of Days) x (Hours per Day)= Total Season Hours x $15 (Hourly Rate)= $
Total
Billable Staff Time:
Aquatics Coordinator: (Loaded Rate) x (Number of Hours Worked)= Total Staff Time
Marketing Materials:
Active Quarter) Our Orange Cost: $520 per page
Notes:
Please include the following forms/information with payment:
o Lesson offered
o Number of patrons served
o Number of refunds issued
Exhibit C- Page 1 SA,MPT,,F,
TOTAL AMOUNT DUE = $
EXHIBIT D
SAMPLE ACCOUNTING SUMMARY SHEET
Behind this sheet.]
Exhibit D
ORCA Accounting Summary - EXAMPLE
Session - Summer 2020
Location — Orange High School Pool
Fee Session 1- Session 1— Session 2 - Session 2 — Refunds Revenue
Registrations Lessons Registrations Lessons Issued Less refunds)
Date range) Taught Date Range) Taught
Group 60 10 2 16 2 1 1140
Semi -Private 85 25 7 32 8 2 4080
Private 245 5 5 3 3 0 2450
Rec Swim 160 22 1 NA NA 0 3460
Team*
Rec Water 160 25 1 NA NA 1 3560
Polo*
Swim 250 7 1 NA NA 0 1750
Team/Polo
Combo
Totals 87 16 51 13 3 16440
Please note the number of $20 sibling discounts issued. This should be reflected in the revenue total.
o Rec Swim Team = 3
o Rec Water Polo = 5
Notes:
Exhibit D- Page 1