Contracting Your Camp for Third Party Use: Legal and Practical Issues in Use Agreements

by Charles R. "Reb" Gregg and Catherine Hansen-Stamp

Many camps allow the use of their facilities by outside parties ("user group"1) — that is, groups and individuals other than customary and traditional campers. These user groups and their events vary greatly — an afternoon wedding and reception, a corporate conference, a family reunion, or an extended stay by another outside group. Arrangements may call for not only the use of camp facilities but the services of camp employees, and participation in certain regular camp activities.

These arrangements allow the camp to maximize use of its facility, and increase its revenues, particularly during the off season when its regular camp programs are not in session. However, significant challenges come with the benefits of this type of facilities use. This category of camp visitors requires special consideration because their activities, and the camp environment, will expose them — and the camp administration — to risks that are markedly different from those present in the traditional camp experience.

As a result, it is important that the parties understand and document, in a written agreement, precisely (for example) what is to take place, where, when, under whose supervision, and ultimately, who is responsible, should there be disappointment, injury, or other loss. This article addresses the issues of these arrangements and the elements to consider in a written agreement between a camp and user group. Thoughtful consideration in developing these agreements will hopefully eliminate or greatly reduce surprises, disappointments . . . and liabilities.

It can be easy to find a user group eager to use your camp facilities for a weekend retreat, or a multi-day or even multi-week stay — particularly if you have a well-kept facility in a scenic area. The more challenging issue is how to define the relationship, to determine, for example, who is responsible for what and other key issues. Use of a written agreement between the parties is valuable for two basic reasons:

  1. It documents the parties' understanding of their respective responsibilities and important details of the arrangement before the event begins. This "information exchange" is good business — increasing the understanding between the parties, and hopefully minimizing the risk that incidents may occur during the event.
  2. It allows the parties to address their respective liability to each other, in the event of an incident during the program or otherwise. Liabilities can arise in the event one party fails to perform some aspect of the agreement, or, in the event of damage to the camp's property, or injury or death to a participant, staff member, or volunteer during the program.

The ACA-Accreditation Standards2 ("ACA Standards") provide a general description of the camp/user group arrangement and note certain key provisions that either must be addressed (for accredited camps or those seeking accreditation) or should be considered. The ACA standards advise, importantly, that a camp entering into a user group arrangement should work with informed legal counsel to craft a written agreement that takes into consideration relevant and applicable state law.3

Written Agreement — Relevant Components

One basic premise: the document should include the elements of an enforceable contract. Generally: 1) a mutual agreement, a "meeting of the minds"; 2) consideration; 3) legal competency (that the parties are legally "competent" to contract — e.g., age or mental capacity); and 4) that the purpose of the agreement is not prohibited by law. Courts will also consider whether there is equality of bargaining power (including freedom from coercion).

Key Components
Consider the following key components in your written agreement:

Title
The document should be titled accurately. The ACA-accreditation standards refer to "lease," "rental," or "use agreement or contract." Another title used in these types of arrangements is "facilities use" agreement. Confer with your legal counsel to determine the most appropriate title for your document. The bottom line is that regardless of the title, the contents of the document should accurately describe the agreement between the parties on the specific arrangement.

Consideration
Consideration is something of value which is exchanged for a promise made. A contract without adequate consideration may be found unenforceable. Although value moving between the parties is usually apparent, it is customary to state that value. In use agreements (and other contracts), consideration is often expressed as the "promises and covenants contained in the (this) agreement, and other valuable consideration." Part of the consideration is clearly the fee paid by the user group.

Defining Terms
It may be necessary or convenient to define, or at least clarify, terms used frequently in the document. This doesn't necessarily mean a separate "definition of terms" section. Clarification can be achieved in the text of the agreement. A good example might be a definition or identification of the parties, and "property" or "facilities" to be used by the user group (and importantly, any restrictions or limits on use, which should be identified somewhere in the agreement). Definition of the term "program" or "event" might be necessary.

Brief Description of the Event
A brief description of the event; i.e., what the scheduled use is — location, dates, etc. (This may also be reflected in an attachment.)

Beginning and Ending Point of Event
When does the program begin and end? The arrival and departure dates are important, of course. However, the parties should also be clear regarding the actual beginning and ending point of the event. This serves to identify when each parties' respective responsibilities (in regard to the event) begin and end. For example, is the camp responsible for picking up the group at an airport or bus terminal? Does the event begin at the point of pick-up? Or, does it begin when the user group arrives at the camp facilities? Sometimes, incidents occur in the travel phase — getting to and from the event location. Accurate identification of these details can be key.

Responsibilities and Services Provided by Each Party
The camp is offering its facilities for use by the group and is often providing the user group access to a variety of activities. In many cases, camp staff provide supervision or instruction for certain activities, serve meals, or provide other support for the user group. The user group, too, can be expected to take on a variety of responsibilities. In fact, overall supervision of the event and the conduct of the user group should generally be the responsibility of the user group "leaders," unless responsibility is specifically assigned to the camp and its staff.

This section of the written agreement can be broken down into "responsibilities and services provided" by each party. Important aspects to address include:

  1. What activities are being offered to the user group — that is, what will they be allowed to do at the facility? May they access, for example, the climbing wall, challenge course, water front, or swimming pool? Will camp staff be supervising or instructing in regard to any or all of these activities? It is critical to detail what activities are (and are not) offered to the user group, and whether or not camp staff will be supervising or instructing any or
    all activities.
  2. What facilities and services are provided by the camp? Examples include use of cabins, bedding, meals, and meeting rooms.
  3. Either here, or in some part of the agreement, the camp should specify those parts of the camp facilities or premises which are available to the user group, and should take care to specify those which are off limits. The camp may require, for example, that no unaccompanied minors be allowed at the waterfront, or that each occupant of a water craft wear a personal floatation device. Some of these restrictions may be appropriately put in a "rules and regulations" section (see Camp Rules and Regulations). Finally, some of these issues may be addressed in the camp's orientation for user groups conducted on the premises (for example, discussion of the physical boundaries of the property, or placement of "restricted area" or "no trespassing" signs) and/or in a release or waiver form signed by participants before the beginning of the event (see Participant Agreements on page 4).4
  4. Responsibility for participant supervision — during both organized or unorganized activities, free time, and nighttime. Again, the camp may agree to supervision of certain activities, particularly if the camp is offering its staff to, for example, supervise waterfront or equine activities, challenge course use, or lead a backpacking trip. However, as mentioned above, unless supervision is specifically agreed to by the camp and its staff, supervision should be identified as the user group's responsibility. It is critical that this aspect of the program be clearly described in
    the agreement.
  5. Responsibility for medical issues — the relevance of these issues will depend upon the nature of the activity or event.5 Issues may include collection of pertinent medical or health information and screening (including consideration of and staff for special services or accommodations [e.g., for those with disabilities]), written consent to treat participants, provision of medical supplies, first aid, emergency response, transportation, and evacuation. Again, the allocation or assignment of responsibilities should be clearly described.
  6. Transportation — who is responsible for transportation in and around camp property, into town, or otherwise?
  7. User group minimum or maximum group size, group "count" before arrival, or other special needs or details.
  8. ACA standards require that the user group attend a mandatory orientation at camp, to understand the camp's safety policies and regulations.6 Such a provision could be listed here, under user-group responsibilities. The scope of any orientation will depend, of course, on the nature and duration of the event. A descriptive handout may be sufficient, in lieu of a formal orientation session.
  9. Catch all — it is difficult to list all the potential responsibilities that may enter into this type of arrangement. Because the user group generally takes on a large measure of responsibility when it uses the camp facilities, this section of the document might include a "catch all" for the user group — that any aspect of the event or use of camp property not specifically identified in the agreement as the camp's responsibility, is the responsibility of the user group.

Damage to or Loss of Property
Address any policy regarding user-group damage to camp property (which might be defined to include premises, facilities, and equipment), cleaning of facilities before departure, and responsibility for loss or damage to user-group participants' property (e.g., personal belongings).

Payment Terms, Including Required Deposit, Cancellation, and Refund
How will the camp be compensated for the use, and what are the payment terms? Is there a minimum "facilities" fee? Is the group committed to a minimum number of participants? These and related matters should be clearly set out in the agreement.

Independent Contractor Relationship
It is important to define in the agreement that the parties are independent of one another, and not acting as each other's agents or employees. Identifying this relationship between the parties is significant, as the parties want to conduct themselves independently, in order to respect each other's separate responsibilities and liabilities. The parties' words and conduct should be consistent with the written agreement, or liability may be expanded or changed. Work with your legal counsel to understand these important concepts and to integrate appropriate language, consistent with applicable state law.

Camp Rules and Regulations
A description of pertinent camp rules and regulations should be included in this section (e.g., restrictions on use
of the property, rules about use or possession of drugs, smoking or drinking, swimming, transportation, etc.).

Participant Agreements
Depending upon the duration of the stay, and exposure to hazards, staff competencies and activities, the camp may insist on individual releases or waiver7 forms from members of the user group.8 It would be unusual for a camp to expect afternoon or evening wedding guests to sign a release. The hazards are minimal, the duration of the stay is brief, and the participation of the camp and its staff is limited. On the other hand, if a user group expects to be on the premises for an extended period, to rely on camp staff significantly, to use the waterfront facility, the archery range, the challenge course or water slide, for example, a release or waiver signed by the participants (or by their parents or guardians if they are minors) would be quite in order. It may be appropriate to ask the user group (in the written agreement with its representative) to be in charge of obtaining participant (and parent/s of minors) signatures on these forms, and returning those to the camp, sometime before the start of the event.

Insurance Requirements
Customarily the camp will require the user group to have or obtain liability insurance for the event and, in addition, may require that the camp be named an "additional insured" on that policy. Special care must be taken in these additional insured arrangements, because that status may have unintended consequences. The camp must seek the advice of legal counsel, and a trusted insurance professional regarding the protection afforded by the policy and its endorsement. Generally speaking, the camp will want to be a "primary insured" under the policy, without right of subrogation against it. The camp should insist on seeing a copy of the endorsement, properly identifying the coverage which is provided to it. Requiring insurance is an important way to "back up" the user group's indemnity obligation (see below).

Importantly, the camp should communicate with its own liability insurance representative to assure that its activities with user groups are properly understood and covered by the camp's existing policy. A camp's insurance representative is usually an appropriate individual to review the insurance requirements for user groups.

Liability Issues
Having identified the camp's and the user group's respective areas of responsibility, the document should reflect the parties' agreement regarding legal responsibility, in the event of an injury or other loss. By way of example: if the agreement assigns to the user group the responsibility for conduct and supervision of all activities, an injury arising from those activities should be the responsibility of the user group. The agreement should provide that the user group indemnifies (protects and defends, including the payment of any liabilities, costs and attorneys' fees, etc.) the camp (and its owners, staff, etc.) from any claim against the camp because of such injury. The camp, correspondingly, may accept legal responsibility for claims arising from aspects of the event assigned to it — for example, during times when the camp has agreed to supervise a backpacking trip, or supervise use of the camp climbing wall. Or, the parties might consider it fair to hold the camp responsible for hidden hazards or defects in the facility or premises — a broken porch railing, for example. The camp may agree either to limit the user group's indemnity responsibility or actually agree to indemnify the user group for claims arising out of the camp's area of responsibilities. This concept of "indemnity" is common throughout the United States and is a means by which parties may allocate legal responsibility between themselves. Work with your legal counsel to assist you in crafting these provisions, consistent with applicable state law. You may negotiate these provisions differently for different types of user groups (for example, the indemnity agreement for a facilities rental, where there is little or no camp involvement, will probably be different from the indemnity agreement in an arrangement where the camp provides the user group access to a variety of activities and facilities and provides some direct supervision).

Other Provisions
Other important provisions might include:

  1. How or under what circumstances the agreement might be terminated, voluntarily or otherwise;
  2. A "severability clause," describing that a provision found unenforceable shall not invalidate the agreement;
  3. A provision describing that this is the entire agreement between the parties;
  4. A provision specifying the law to be applied to the agreement;
  5. A provision calling for mediation and determining costs to be born by the parties, in the event of a dispute over the agreement; and
  6. A provision describing that each party should have workers' compensation insurance for their respective employees, as required by law.

Parties' Signatures and Date
A place for the parties' signatures and date, potentially prefaced with a statement that the parties have "read and understand the agreement," as well as the parties' acknowledgment that the agreement is binding upon them.

Conclusion

A camp should approach the variety of arrangements it may enter into with user groups in the same pragmatic and thoughtful way that it organizes and manages its mainstream camp programs. Take time to think through the issues with your lawyer and insurance representative, and develop a written agreement that clearly and accurately reflects arrangements that your organization makes with different user groups. Doing so will not only clarify the understanding between the camp and user group, but hopefully, minimize the risk of incidents, and decrease potential legal exposure.

This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.

© 2005 Charles R. "Reb" Gregg and Catherine Hansen-Stamp

 

References
1 'User Group' is the term used in the ACA-Accreditation Standards for Camp Programs and Services, 1998 ('ACA Standards'), to collectively define these outside parties (see, e.g., p. 13 and 192).
2 The ACA Standards note the value of these user contracts and a variety of key provisions to include in these types of documents. See, e.g., p. 13, p. 192, p. 222 (relevant standards noted for 'lease/rental' arrangement), p. 227.
3 Id., p. 222 & 227. Legal counsel should also consider application of the ACA Standards as they apply to the camp's specific arrangements (for accredited camps, or those seeking accreditation).
4 See ACA Standards, PD 5, p. 105.
5 See ACA Standards, HW 21 – 23, pp. 68-70.
6 See ACA Standards, OM21, p. 84.
7 'Release' or 'waiver' is a general term used to signify an agreement, signed by a participant, or the parent of a minor participant, before the event. The document can include a description of activities, an acknowledgement and assumption of risks, a release and indemnity provision, and other important content, oftentimes dictated by specific state law. Camps should work with their legal counsel to craft these documents, consistent with their own operation, and any applicable state law.
8 These forms can provide the camp with another layer of liability protection (in addition to the user group's indemnity agreement/insurance) in appropriate cases, as well as serve as a productive way to relay important information to user-group participants.

Originally published in the 2005 Winter issue of The CampLine.

Your rating: None Average: 1 (1 vote)
Tags: