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Contracting with User Groups/Rental Groups, Revisited
Be sure you understand your state's laws regarding contracts and liability. Seek legal advice prior to developing your user group contract.
Previously in CampLine,1,2 we have discussed issues pertaining to a camp’s arrangement to allow third parties (non-traditional campers) to use its premises. The ACA Accreditation Process Guide3 (“ACA Process Guide”) refers to these persons or groups as “user groups.” In a typical transaction, a user group may use all or a part of the camp’s premises and staff, but the primary responsibility for the well-being of the group remains with the group and its leaders.4
ACA Process Guide Standards (“ACA Standards”) in the Health and Wellness, Operations Management, and other sections of the ACA Process Guide address these user group arrangements, and the 2007 ACA Accreditation Standards Resource CD-ROM contains further information.5
Stressed economic times have made the prospect of renting to user groups more appealing than in past years. In any economic climate, however, contracting with user groups can be a valuable resource and can produce revenue in non-traditional camp seasons if carefully managed.
As we have noted, potential user groups might include anything from events of only several hours’ duration to extended retreats and conferences. An organized city youth group may wish to conduct its own “camp” for a week or more. As attractive as the prospects are for revenue generation and exposure of the camp to the public, there are traps for the unwary. The purpose of this article is to remind camp managers of those traps, and suggest some strategies for avoiding them.
As with any new venture, before the camp decides to offer its premises and staff to third parties, it should asses the plan from a risk management perspective, by asking the following: Why do this? Is third-party use of our camp consistent with the camp’s core values and reputation? Can the camp manage the risks of hosting events and populations with which it may not be familiar? Do the camp properties offer particular challenges that may require special precautions?
The camp must understand that these visitors may not be traditional campers with a demonstrated loyalty to the camp — through family histories or otherwise. Will existing liability and other insurance policies cover this new use of the properties and challenges to its staff? Since the uses may occur outside traditional camp seasons, where will the camp turn for appropriate staffing? These and other issues can be addressed by careful planning and the advice of professionals. The camp is the “host,” and entitled to set the ground-rules for any visit or use. But before embarking on the adventure of third-party use, the camp must understand the challenges and its own limitations in meeting them, and set its requirements accordingly in negotiating and documenting the agreement.
Take another look at our Winter 2008 CampLine article on this subject, “Contracting with User Groups and Outside Providers: Legal and Practical Issues,” for a broad view of these issues. We will narrow our focus in this article to target a few current concerns, as expressed by ACA staff and others.
Camp / User Group Arrangements
Drawing on discussions at the most recent Insurance Roundtable conference session, including an expressed concern that some camps are not sufficiently attentive to practices and policies related to user groups, it was suggested that we address the following areas in this article:
- What are the insurance issues?
- Who is responsible for whom, what, where, and when, related to the use or visit (important elements of the user agreement)?
- What are the other important elements of the agreement, including how to stress user group / chaperone responsibilities?
We assume the camp has property and general liability insurance coverage, at least for its traditional camp operations, sufficient to address reasonably anticipated claims and losses that may arise out of its operations. Before inviting third-party use, the camp must determine that it has coverage for claims that may arise out of such use of the camp and involvement of its staff.
Be sure the insurance agent understands the anticipated user group use, how responsibilities for the visiting group members will be allocated between the camp and user group, and the nature of the agreement with the user group. The agent will be interested in what protection the camp seeks from the user group in the event of a loss or other claim; and his or her advice should be sought regarding if and how the camp might rely on the visiting group’s insurance to protect it (the camp) from claims. The agent will discuss with management the possibilities of the camp being named an additional insured on the user group’s liability policy, and the limitations of the protection provided by that strategy. If, in the agreement with the user group, the camp will be called upon to protect (indemnify) the visitor group from a certain category of claims (arising out of some aspect of the visit that is the responsibility of the camp, for example), the camp will want assurance that such an indemnity agreement will be covered by its insurance. Be very precise in describing the responsibilities — and corresponding liabilities — of the user group and the camp. For example: Is the camp liable for an accident which occurs on its grounds before the announced commencement of the visit? (A recent incident involved the drowning of a group member who arrived “early” and was unsupervised in his exploring of the camp grounds and waterfront.)
Proper insurance may provide some protection against claims, but more important is the prevention of claims; and more important than the prevention of claims is the prevention of injuries and other losses. No camp experience — traditional or otherwise — is risk free. A quality camp program will reduce the chances of losses, and in the context of third-party use, the quality program will assiduously define and allocate — between the camp and the user group — responsibilities for the maintenance and well-being of the group members.
The camp must be clear about supervisory responsibilities — in the camp / user group agreement, in written material furnished to the visiting group and its members before the visit, and in the indispensable orientation of the group and it leaders before activities commence. The camp must instruct its staff to not become involved beyond the limits of supervision and participation assigned to them.
Of course, the areas of responsibility will vary with the use. Responsibilities for a wedding and reception are not the same as those related to a triathlon event, mini-camp, or corporate retreat. Nevertheless we can offer the following: Be clear in assigning responsibilities between the camp and user group and require consultation if there is any uncertainty. It is to the camp’s advantage to describe the duties of the camp precisely (for example, leading or participating in the supervision of certain activities, meals and lodging, providing meeting rooms and other areas, and use of equipment and facilities) and provide that, otherwise, the group members and their leaders have full responsibility for the welfare and supervision of the group. Supervision issues will predictably be a part of a claim that arises from the third-party use, and there should be little doubt, after the fact, about whose supervision is being challenged.
The User Agreement
What we have written above presumes that the camp will enter into a formal agreement with the user group executed by an authorized representative of the group. What should such an agreement include? A camp, whether accredited or not, should work with their legal counsel in crafting these agreements and reviewing applicable ACA standards and any applicable state law as they consider specific arrangements with user groups. The following provides some general thoughts.
The title is important. Is this a “lease,” a “rental,” or a “facilities use agreement”? Or something else? The title should reflect the intent of the parties. The terms used may have special legal significance. “Visitor’s Use Agreement” is an option that may give you the flexibility you need in addressing the various issues, without pinning you down to the duties of a landlord or social host, for example. Discuss this with your legal counsel, of course, to consider regarding local law on the subject.
The agreement must identify the parties to the agreement (the camp and the user group) and be signed by persons authorized by each party to do so.
Certain terms might require definition or explanation. What is meant by “camp premises,” for example? What is the “waterfront”? Will “camp hours” be observed? Do the parties intend any distinction between duties owed to persons actively participating in certain events and those who are merely visitors or chaperones?
If the camp wishes to limit the size of the user group, the agreement should say so.
The nature of the event should be described — what will be happening during the visit?
When does the “visit” officially begin (with the commencement of the orientation?) and when will it officially end? These “markers” are important in establishing the period of the camp’s responsibility, and those limitations should be made clear. Expectations regarding early arrivals or “holdovers” should be clearly described. The camp may choose to disclaim any responsibilities for such persons. The camp may choose to simply turn away early arrivals and escort visitors off the premises at the end of the visit.
Specify the cost of the event and the method of payment. Will there be an advance payment of some or all of the total amount? May the agreement be terminated or cancelled, and if so, under what circumstances? Will a refund be paid? Will special fees be charged for certain activities — the challenge course or horseback riding, for example? The group should be required to pay for any property damaged by a member.
The agreement must describe the facilities, equipment, services, and staff that the camp will provide, and importantly, as noted above, the respective responsibilities of the parties — visitor or camp — with respect to the anticipated use. The agreement may specifically disclaim camp responsibility for certain matters — discipline, for example — but expressly reserve the right to expel from the camp any person determined by camp management to be a threat to themselves or others, or whose conduct reflects negatively upon the camp.
Will the health center and its staff be available to the visitors? Will the camp provide any level of medical care? If such care is the responsibility of the visitor, what qualifications does the camp expect of the care giver?
What areas of the camp will be available to the user group? Will access to certain areas of the camp be prohibited or limited? Is the waterfront, pool, challenge course, or remote or otherwise hazardous area of the camp premises “off limits” or to be used only under certain conditions and with described supervision? If, for example, a lifeguard is required for water activities, or a trained specialist is required for the climbing wall or other facilities or equipment, who is responsible for obtaining those services and what credentials are required?
Will the camp provide security for the premises? For the visitors? Around the clock? The visitors must be advised during orientation of security practices and policies, and the limits of what the camp will provide.
As mentioned previously, who is responsible for supervision — whether day or night (cabin) supervision, or supervision of some or all activities? To the extent user group representatives (paid staff or volunteers) are responsible for any areas of supervision, it should be clearly described. To the extent the camp is responsible for facilitating or supervising activities, security, or discipline, the administration must understand the skills required and provide the necessary competencies. The camp administration must understand that the participants may be adults or otherwise not traditional summer campers with whom the usual staff (and probably management) is most familiar. Specific training and staff with new skills may be required for certain visits. As mentioned earlier, if supervisory responsibilities are shared or split between the user group and camp, the details of this “split” should be carefully described in the agreement, so there is no confusion during the event — or after the fact — regarding who is supposed to be charge.
Most importantly, having described the respective responsibilities of the camp and the user group leaders, the agreement should specifically provide who will bear the legal liability for an injury or other loss suffered by a visitor (or the camp). These matters are best dealt with by mutual or reciprocal “indemnities” — a concept with which your legal counsel should be familiar. An indemnity is an agreement to protect another from claims of a certain type. For example: The user group might agree to indemnify the camp against claims arising from an activity of the user group over which the camp has no control or supervisory responsibilities. The camp might agree to provide its own indemnity, for claims arising from defects in the grounds, or other issues the camp has agreed to take responsibility for in the user agreement.
As mentioned previously, will the user group be required to have insurance, or to add the camp as an additional insured? Will that be reciprocal? These areas should be considered.
Will the participants (including user group staff and parents or guardians of minor participants) be asked to sign a participant agreement containing a waiver or release, forgiving the camp, in advance, for an injury or other loss which occurs? And will that agreement include protection from even the negligent acts of camp staff members? State laws vary on the applicability of agreements of release and indemnity, and the advice of legal counsel must be sought regarding these matters.
Other provisions might include an agreement regarding what law will be applied to a dispute (presumably the laws of your state, not including those laws which might make applicable the laws of another jurisdiction); where a suit, if it is brought, must be filed; identifying that if one provision of the agreement is found unenforceable, the remainder of the provisions will be enforced; or other relevant provisions. (In these days of camera cell phones, it is also a good idea to deny any responsibility for the use of photos taken by others.)
The ACA Standards address user groups. OM 18 describes the user agreement. OM 19 discusses user group responsibilities and the orientation of the group, and refers to HW 24, regarding health care planning.
HW 23 sets out requirements for emergency care personnel, and HW 24 and 25 cover health care planning and certain health information pertaining to visitors.
PD 5 covers certain conditions for the “use, safety guidelines, supervision requirements, warnings, or restrictions for program activities, equipment, and facilities” available to the user group. PD 20 and OM 8 discuss the camp’s orientation of user groups to the camp.
HR 9 addresses the camp’s need to inform the user group of appropriate supervision ratios and procedures.
The Accreditation Standards Resource CD-ROM (at OM 18A and 18B) includes a sample user agreement and outline. A sample release form is discussed and provided (at PD 5 and 11).
CAUTION: These forms are offered for illustrative purposes only and any variation of them should be used only after consulting with legal counsel familiar with your camp and applicable law. The reader may access other ACA resources through Section 11 of the CD-ROM.
These materials (and the concepts they cover) should be required reading — or re-reading — for camp management interested in third-party use.
In conclusion: Your camp will owe certain duties to a visitor. The interests of the camp and its supporters are best served if you shape those duties strategically, as you wish them to be, not as some judge or jury might impose them on you. As always, seek competent legal counsel in negotiating and documenting these relationships.
*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.
*©2010 Charles R. “Reb” Gregg and Catherine Hansen-Stamp
Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713- 982-8415 or e-mail firstname.lastname@example.org; www.rebgregg.com.
Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail email@example.com; www.hansenstampattorney.com.
1. “Contracting with User Groups and Outside Providers: Legal and Practical Issues,” Charles R. Gregg and Catherine Hansen-Stamp, Winter 2008 CampLine; available at www.ACAcamps.org/campline/2008feb
2. “Contracting Your Camp for Third Party Use: Legal and Practical Issues in Use Agreements,” Charles R. Gregg and Catherine Hansen- Stamp, Winter 2005 CampLine; available at www.ACAcamps.org/campline/w-2005/contracting-your-camp-for-third-party-use
3. This resource available at www.ACAcamps.org/accreditation/07accred-standards
4. ACA Process Guide, definitions pp.19, 22, and 303–304. Supervisory responsibilities though, may vary widely, depending upon the camp’s arrangement with the user group — emphasizing the need to carefully articulate the parties’ respective responsibilities in the agreement.
5. This resource available at www.ACAcamps.org/accreditation/07accred-standards