Contract

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OHIO WESLEYAN UNIVERSITY

Summer

Camp/Conference

Agreement

CONFERENCE SERVICES
University Hall, Room 003
61 South Sandusky Street
Delaware, Ohio 43015

 

Parties:

THIS AGREEMENT dated this day of * , * , 2004 by and between Ohio Wesleyan University, an Ohio not-for-profit corporation, Delaware, Ohio, hereinafter referred to as the "University" and « 2», hereinafter referred to as « 1».

Recitals:

« 1» has proposed to the University to operate a * -day overnight camp/conference, while paying the University compensation for the use of University facilities. The University has agreed to that arrangement all on the terms and conditions hereinafter set forth.

Terms:

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter contained, the parties agree as follows:

ARTICLE I

USE OF THE FACILITIES

1.1 Number of Participants and Staff. « 1» estimates that there will be participating in the camp/conference (the "Participants") the number shown on Exhibit A, Part II hereto. « 1» estimates that the number of staff persons in the camp/conference (the "Staff") will be as shown on Exhibit A, Part II hereto. « 1» will keep the University advised from time to time if that estimate changes in any substantial manner. « 1» will advise the University in the event the camp/conference has filled all available spaces with registrants. « 1» will advise the University of its final estimate no later than 30 days prior to the first day of the camp/conference and will provide the University with a "guaranteed number" of Participants and Staff as to the camp/conference no later than 14 days prior to the first day of such camp/conference. « 1» understands that the minimum billing for residence hall space, food services, and facility usage will be based on the "guaranteed number" of Participants and Staff.

1.2 Staff Requirements. « 1» agrees that any youth, seventeen (17) years and under inclusive, must be accompanied by and under the supervision of adult counselors employed or associated with « 1». Said adult counselors must be college enrolled students or at least twenty-two (22) years of age. Said adult counselors will be employed in a ratio to youth of not less than one (1) counselor to ten (10) youth staying overnight in the residence halls. Said adult counselors must be qualified, of good character, and live in the residence hall(s) with the youth. It is further agreed that adult counselors shall be present in each residence hall and at all meals at such times that youth are scheduled or expected to be present in a hall or at a meal. Failure to provide said adult counselors present in residence halls and at all meals is a material breach of this agreement. Said breach can result in the immediate suspension of the program with monies due and immediately payable.

1.3 Residence Halls. Based on « 1»'s estimate of the number of Participants and Staff set forth in Exhibit A, Part II hereto, the University will make available to « 1» for its use, the residence hall space depicted in Exhibit B hereto and the housing services described therein, subject to the terms and conditions set forth therein. The designation of residence hall is tentative. The University reserves the right to change the residence hall space made available to the camp/conference Participants and Staff up to one week prior to the first arrival date.

(a) Prior to or during the camp/conference, none of the built-in or other furniture in the said residence hall space shall be moved or rearranged.

(b) During the camp/conference, there shall be hours of "quiet time" every day from 12:00 o'clock midnight until 7:00 o'clock a.m., during which no activities shall be scheduled and no activities shall be permitted. During these quiet hours, the Participants shall be in bed or doing quiet things in their rooms.

(c) During the camp/conference, the common areas in the said residence hall space will be shared by the Participants with the Participants in another camp/conference.

(d) At the conclusion of the camp/conference, « 1» shall restore the said residence hall space to its condition prior to the camp/conference, ordinary wear and tear excepted; and, if « 1» fails to do so, then « 1» shall be solely responsible and pay for the cleaning, maintenance, and, or, repair costs to restore the said residence hall space to its condition prior to the camp/conference.

1.4 Meals. Based on « 1»'s estimates of the number of Participants and Staff set forth in Exhibit A, Part II, the University's food service vendor will provide food service as described in Exhibit C hereto.

1.5 Prohibitions. « 1» shall not permit the use, possession, sale, or storage of any alcoholic beverages or any illegal substances in or on any facilities or property owned by the University.

1.6 Facilities. The University hereby agrees to permit « 1» to use the facilities depicted in Exhibits B, C, D, and E hereto (the "Facilities") for conducting the above mentioned camp/conference during the period described in Exhibit A, Part I hereto. Each such period is defined as a "Camp/Conference Period."

ARTICLE II

USE OF THE UNIVERSITY'S NAME

2.1 Use of the Name. In connection with the camp/conference « 1» may use the name Ohio Wesleyan University or "OWU" only in the following manner:

(a) The name may be used in information mailed to campers/conference Participants and Staff, or prospective campers/conference Participants and Staff, on « 1»'s promotional material and literature, only to identify the location of the camp/conference. All materials shall bear the legend in a conspicuous place, the owner/operator of the camp/conference, that said camp/conference is not affiliated with or operated or supervised by Ohio Wesleyan University, or some similar legend approved in writing by the University. « 1» will show the University actual examples or drawings of all materials bearing the Ohio Wesleyan University name prior to production in order to obtain the University's prior written consent.

(b) « 1» shall not use the name and logo of the University on uniforms for campers/conference Participants and Staff. « 1» shall not sell or distribute any products on which are placed the name and/or logo of the University.

ARTICLE III

FEES

3.1 Room/Board/Facilities Fees. For the use of facilities, residence hall space, and provision of the food services « 1» shall pay to the University the sum depicted in Exhibits B, C, D, and E.

3.2 Commuter Fees. Each and every camp/conference Participant and Staff designated as a "commuter" (one participating in the camp/conference, but not staying overnight in a residence hall) will be charged a $5.00 fee for facility use. The $5.00 facility use fee for commuters does not preclude the Athletic Facilities fee set forth in Exhibit D.

3.3 Payment of Fees. « 1» shall pay the University with respect to each camp/conference a $1,000 nonrefundable deposit at the signing of this contract. Said deposit will be applied to the invoice balance at the conclusion of the camp/conference. The full amount of the Room/Board/Facilities Fee set forth in Section 3.1 is due and payable no later than thirty (30) calendar days following the last day of such camp/conference or date of invoice. Interest will be charged at 1½% per month on any unpaid balance not received by the University within thirty (30) days after date of invoice. The minimum invoice will be based on the "guaranteed number" given to the University's Conference Services Manager 14 days prior to the first day of the camp/conference; however, the invoice will be higher should the actual number of Participants and Staff exceed the "guaranteed number."

3.4 Room and Meal/Key Card Guarantee. « 1» agrees to pay the University $25.00 for any room key or meal/key card not returned to the University at the conclusion of the camp/conference. « 1» is responsible for informing Participants and Staff of this policy prior to the first day of the camp/conference.

3.5 Additional Fees. Within 30 days after conclusion of the camp/conference, « 1» shall pay to the University amounts equal to the:

(a) Cleaning, maintenance, and, or, repair costs described in section 1.3 d. hereinabove; and,

(b) Replacement costs of all personal property belonging to the University that is lost, stolen, damaged, or destroyed during the camp/conference; and,

(c) Costs of repairing damages to the University's fixtures or real estate that are proximately caused by the acts or omissions of « 1», the Staff, and or, the Participants during the camp/conference.

ARTICLE IV

OPERATION OF THE CAMP/CONFERENCE

4.1 Equipment and Personnel. « 1» is responsible for insuring that all necessary safe and supervised equipment and supplies are on hand and available for the camp/conference. Except as expressly set forth in Exhibits B, C, D,and E, « 1», the Staff, and the Participants are not authorized to use any equipment of the University, whether or not any such equipment is accessible to Participants or Staff on the University's premises. « 1» is responsible for hiring, training, supervising, appropriate levels, qualification and quality of Staff for the camp/conference. « 1» is responsible for providing the University with a camp/conference schedule 30 days prior to the first day of the camp/conference to assure accurate scheduling of Facilities and equipment.

4.2 Policies and Curriculum. « 1» is responsible for insuring legal, adequate, and appropriate curriculum and written policies in connection with the camp/conference. The University shall be given copies of all such curricula and policies, which shall be in conformance with the policies of the University, 30 days prior to the first day of the camp/conference.

4.3 Rules and Regulations. « 1» will comply with all laws and all reasonable instructions the University may choose to give regarding the use of the Facilities or any property of the University in connection with the activities contemplated by this Agreement.

ARTICLE V

INDEPENDENT CONTRACTOR

5.1 « 1» acknowledges that it is an independent contractor in connection with use of the premises. In accordance with its status as an independent contractor, « 1» covenants and agrees that it will conduct itself consistent with such status, that neither « 1», nor its officers, employees or agents shall hold themselves out or claim to be officers or employees of the University; and that neither « 1», nor its officers, employees or agents shall make any claim, demand or application to or for any right or privilege applicable to an officer or employee of the University, including but not limited to, Worker's Compensation coverage, Unemployment Insurance Benefits, Disability Benefits, Social Security coverage or retirement membership credit.

ARTICLE VI

INSURANCE

6.1 Required Coverage. At all times during the term of this Agreement, « 1», at its own expense, shall have and keep in force the insurance coverage indicated by check marks below:

X (a) General Liability (Comprehensive or Commercial Form)

- $1,000,000 each occurrence
- $2,000,000 aggregate

__(b) Liquor Liability (where use includes the sale or providing of alcoholic beverages)

- $1,000,000 each occurrence
- $1,000,000 aggregate

__(c) Automobile Liability Owned, hired and nonowned autos (Symbol "1" on Business Auto Policies)

Combined Single Limit for Bodily Injury and Property Damage
- $1,000,000 each accident

X (d) Excess "Umbrella" Liability Combined Single Limit for Bodily Injury and Property Damage

- $1,000,000 each occurrence

_(e) Professional Liability ( where services of a professional nature are to be provided)

- $1,000,000 per occurrence
- $1,000,000 aggregate

X (f) Workers' Compensation and Employers' Liability Statutory coverage complying with the Ohio Workers' Compensation Law

6.2 Insurer Acceptable to Colleges. All insurance carriers providing the above coverage for « 1» must be licensed to do so in the state of Ohio and must be otherwise acceptable to the University.

6.3 Additional Insured. Ohio Wesleyan University must be named as an Additional Insured under all policies listed in Sections 6.1(a) and (d) hereof.

6.4 Certificates of Insurance. « 1» agrees to provide the University with Certificates of Insurance satisfactorily evidencing the required coverage which also provides that prior to policy cancellation, nonrenewal or material change, the insurer will give the University 30 days advance written notice. All Certificates of Insurance must be provided to and approved by the University's Conference Services Manager no less than thirty (30) days prior to use of the University's facilities under this Agreement.

6.5 Occurrences Basis. It is expressly understood and agreed by « 1» that the Insurance requirements specified above contemplate the use of occurrence liability forms. If claims-made coverage is evidenced to satisfy any of these requirements, « 1» may be required to comply with some additional requirements.

ARTICLE VII

TAXES

7.1 « 1» agrees to be responsible for and pay all taxes, fees, assessments, charges or withholdings of any nature whatsoever, together with all penalties, additions to tax or interest thereon, imposed against the University or « 1» arising out of or resulting from any activities contemplated by this Agreement, including but not limited to the operation of the camp/conference (the "Taxes"); provided, however, Taxes shall not include taxes based on or measured by the net income, gross income, or gross receipts of the University. In the event any reposts or returns are required to be made with regard to any Taxes, « 1» shall prepare and file timely such reports or returns.

ARTICLE VIII

BOOKS AND RECORDS

8.1 Books and Records. « 1» will keep adequate financial records of its activities which relate to the camp/conference, including but not limited to reports of revenues and expenses, profits and losses, all in accordance with Generally Accepted Accounting Practices. « 1» will also keep adequate records of a non-financial nature as may be agreed by the University and « 1», but which will at a minimum include the names, addresses, medical information, insurance information and persons to call in the event of an emergency for each Participant.

8.2 Inspection. « 1» will cooperate with and will permit any duly authorized representative of the University to be present at and inspect the activities and Facilities associated with the camp/conference, including residence halls. Such inspection shall be conducted in the company of a designated representative of « 1», providing an emergency situation (i.e., fire, mechanical failure, etc.) does not necessitate the University needing immediate access to the facility. Further, the University may enter any building or room at any time to make required repairs and complete work orders. Additionally, « 1» will permit the University to make reasonable inspection of the books and records of « 1» which are kept in connection with the camp/conference.

ARTICLE IX

INDEMNIFICATION

9.1 Indemnification. « 1» shall be responsible for, and hereby jointly and severally indemnify the University and hold them and their Trustees, officers, employees, agents, successors and assigns harmless, at all times, from, against and in respect of:

(a) all liabilities, obligations, and claims of every kind and nature whatsoever, at any time existing or asserted, whether or not accrued, whether fixed, contingent or otherwise arising out of or by reason of the operation of the camp/conference pursuant to this Agreement; and

(b) all losses, damages and deficiencies resulting from any failure or breach of any representation or warranty, or any breach or nonfulfillment of any covenant or agreement, of « 1» made in this Agreement; and

(c) all losses, damages and deficiencies arising out of or by reason of activities or actions of any participant in the camp/conference (The assessment of the cost of repairs or replacements for any such damage or loss shall be determined by the University, and a representative of « 1» shall be permitted to inspect the damages and losses in question, if requested.); and

(d) all actions, suits, proceedings, claims, demands, assessments, judgments, fines, penalties, amounts paid in settlement, costs and expenses (including reasonable attorneys' fees and expenses) incident to any of the foregoing, including actions, suits, proceedings, claims and demands asserted by the University against « 1».
9.2 Indemnification Procedure. The University shall give notice to « 1» of any demand for indemnification under Section 9.1, stating in reasonable detail the nature thereof. If any such demand arises out of a claim made against the University by any person or entity not party to this Agreement or affiliated with a party to this Agreement, such notice shall also state whether the University (1) has made payment in full of the claim, (2) has compromised and made payment of the compromised claim, or (3) disputes the claim and intends to defend against it. If the University shall defend against the claim, « 1» shall cooperate with the University in such defense, shall make available to the University all records and other materials reasonably required by the University in such defense, and shall have the right to participate in such defense, but the University shall at all times control such defense. If the University does not intend to defend against the claim and have not made payment in full of the claim or compromised and made payment of the compromised claim, then within 15 days after the University's notice is given, « 1» shall either (i) make payment in full of the claim, (ii) compromise and make payment of the compromised claim, or (iii) notify the University that they dispute the claim and intend to defend against it. If « 1» shall defend against the claim, the University shall cooperate with them in such defense, shall make available to them all records and other materials reasonably required by them in such defense, and shall have the right to participate in such defense, but « 1» shall at all times control such defense.

ARTICLE X

GENERAL PROVISIONS

10.1 Survival of Representations, Warranties and Covenants. The several representations, warranties and covenants of the parties herein contained, and the provisions hereof which by their terms are to be performed after end of the camp/conference period, including but not limited to the indemnification provisions in Article IX hereof, shall survive the end of the camp/conference period and shall be effective regardless of any investigation which may have been or may be made at the time by or on behalf of the party to whom such representations, warranties, covenants and agreements are made.

10.2 Amendment and Waiver. This Agreement may be amended only by a writing executed by each of the parties hereto. No waiver of compliance with any provision or condition hereof, and no consent provided for herein, shall be effective unless evidenced by an instrument in writing duly executed by the party sought to be charged therewith. No failure on the part of any party to exercise, and no delay in exercising, any of its rights hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by any party of any right preclude any other or future exercise thereof or the exercise of any other right.

10.3 Assignment. No party shall assign or attempt to assign any of its rights or obligations under this Agreement without the prior written consent of each of the other parties hereto.

10.4 Notices, Etc. Each notice, report, demand, waiver, consent and other communication required or permitted to be given hereunder shall be in writing and shall be sent either by registered or certified first-class mail, postage prepaid and return receipt requested, or by telecopier, addressed as follows:

If to the University: Director of Summer Conferences, Ohio Wesleyan University, 61 South Sandusky Street, UN 003, Delaware, Ohio 43015

If to « 1»: « 2»

Each such notice and other communication given by mail shall be deemed to have been given when it is deposited in the United States mail in the manner specified herein, and each such notice and other communication given by telecopier shall be deemed to have been given when it is so transmitted and the appropriate answer back is received. Any party may change its address for the purpose hereof by giving notice in accordance with the provisions of this Section 10.4.

10.5 Binding Effect. Subject to the provisions of Section 10.3, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. This Agreement creates no rights of any nature in any Person not a party hereto.
10.6 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio applicable to agreements made and to be performed entirely within such state.

10.7 Effect of Agreement. This Agreement sets forth the entire understanding of the parties, and supersedes any and all prior agreements, arrangements and understandings, written or oral, relating to the subject matter hereof.

10.8 Reformation of Agreement. If any court of competent jurisdiction shall determine any provision of this Agreement is unreasonable or unenforceable for any reason then: (i) such provision shall not be deemed null and void but shall be reformed by such court to the minimum extent necessary to make it enforceable and (ii) all other provisions of this agreement shall remain in full force and effect.

10.9 Headings; Counterparts. The Article and Section headings of this Agreement are for convenience of reference only and do not form a part hereof and do not in any way modify, interpret or construe the intention of the parties. 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.

IN WITNESS WHEREOF both parties agree to the terms and conditions stated in this Agreement and to the following estimated fees for conducting the herein described Camp/Conference Period for « 1».