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					STATE OF NORTH CAROLINA
                                                            MEMORANDUM OF AGREEMENT
COUNTY OF WAKE

       THIS AGREEMENT, made and entered into this the                 day of                  , 2012,

by and between the Town of Fuquay-Varina, a North Carolina municipal corporation,

(hereinafter the “Town”) and the Fuquay-Varina Athletic Association, Inc., a North Carolina

non-profit corporation, (hereinafter “FVAA”).

                                       WITNESSETH:

       WHEREAS, the Town and FVAA desire to work cooperatively towards a goal of

providing for the recreational needs of the citizens of the both the citizens of Fuquay Varina and

the surrounding area inasmuch as each entity possesses certain capabilities, personnel and

facilities permitting them to achieve this goal.

       WHEREAS, the Town makes significant capital and financial investment in acquiring,

operating and maintaining recreational facilities. And, the Town continuously invests in the

maintenance and operation of such facilities as well as making plans for future facilities.

       WHEREAS, the parties acknowledge FVAA’s stated mission of providing Program

Administration (as defined hereinbelow) and that FVAA is a capable entity to register

participants, collect fees, recruit and train coaches and volunteers, organize participants into

teams, schedule all team play, purchase uniforms and equipment for each recreational sport, hire

and pay for officials for games, solicit and obtain private funding from sponsors for each

recreational sport, and administer league play in each recreational sport (hereinafter “Program

Administration”).

       WHEREAS, the Town and FVAA desire to establish an alliance by which the Town

provides use of such recreational facilities and FVAA provides Program Administration so as to



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produce affordable recreational youth athletic programming that will enhance the quality of life

for both the citizens in the Fuquay-Varina and the surrounding area.

         WHEREAS, the parties hereto acknowledge that the Town’s investment in recreation

programming and recreation facilities is for the benefit of participants who reside in the

corporate limits of the Town and their families inasmuch as the costs of such facilities is

underwritten by ad valorem tax revenues paid by said families and others that pay a “facilities

use fee” to the Town of Fuquay Varina for privileges.

         Whereas the parties hereto acknowledge the FVAA is an independent nonprofit

organization in an alliance with the Town of Fuquay Varina to administer athletic programs for

both the citizens of Fuquay Varina and the surrounding area.

         WHEREAS, the parties hereto acknowledge the Town’s provision of recreational athletic

facilities to FVAA permits FVAA to accommodate participants in Fuquay-Varina recreational

youth athletic programs as provided herein.

         WHEREAS, the parties further acknowledge that the emphasis of youth athletic programs

sponsored by the Town is for the recreational enjoyment of the children playing each particular

sport.

         WHEREAS, the provision of recreational athletic facilities by the Town as set out herein

shall be for the sole use and benefit of youth athletic programs in which children play in

recreational leagues or activities where practices, games, and any post-regular season

tournaments (hereinafter “Rec–Teams”) are played primarily in Fuquay-Varina. At present, the

following are “Rec Teams” participating in the FVAA:




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                                    FVAA Rec Teams

    Sport         Age Begin        Age End       League name     League Name     League Name

   Soccer            U4              U15             Rec

   Baseball          4U              18U             Rec           All Stars         Select

   Softball          4U              18U             Rec

   Football          5U              12U             Flag           Tackle

  Basketball         6U              15U             Rec

  Volleyball         8U              18U             Rec

 Cheerleading        5U              14U             Rec




       WHEREAS, youth athletic activities that encompass special designation or differentiation

(hereinafter “Non-Rec – Teams”) does not constitute a recreational youth athletic program for

which the Town will provide use of recreational facilities free of charge. At present, the

following are “Non Rec” teams participating through the FVAA:

                           FVAA “Non Rec” Teams

    Sport         Age Begin        Age End       League Name     League Name     League Name

   Soccer            U10             U18             PDP           Challenge        Classic

   Baseball          8U              15U           Predators         Crush

   Softball          8U              18U            Bombs

  Basketball         9U              17U             AAU

  Volleyball         n/a              n/a

 Any such use of Town recreational facilities for Non-Rec – Teams shall be secured by FVAA

pursuant to Town policies related to the use of Town recreational facilities as implemented by

the Director of the Parks and Recreation Department (hereinafter “Director”). In all cases, the

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use of Town recreational facilities for Non Rec-Team programs shall not have priority over any

other requested uses.

       NOW THEREFORE, for and in consideration of one and no/100 dollars ($1.00) and

other good and valuable consideration, the receipt and sufficiency of which is hereby

acknowledged, the parties hereto agree as follows:

   1. Recitation and Preamble. All language hereinabove set out (hereinafter “Recitation and

       Preamble”) is incorporated herein by reference as if set out verbatim, and shall be part of

       the terms and conditions of this Agreement to be performed by the parties.

   2. Recreational Youth Athletic Programs. The recreational youth athletic programs subject

       to this Agreement shall include basketball, volleyball,    baseball,   softball,   football,

       cheerleading, and soccer as well as any other sports programs approved for play by the

       FVAA Board of Directors and the Town Manager.

               Ages for each individual league within each sport shall be agreed upon by the

       Town and the FVAA. However, no individual who has reached their eighteenth (18th)

       birthday before the beginning of play in a particular sport season shall be allowed to

       participate in a recreational youth athletic program.

               In order for the Town to properly manage and coordinate its recreational athletic

       facilities, the Town will determine the availability of facilities for use by FVAA and

       other organizations for Rec-Teams and Non-Rec – Teams.            In accordance with the

       provisions of this agreement With the expectation the FVAA will fulfill its

       responsibilities under this agreement the Town will provide a Master Facility schedule(s)

       to FVAA by November 1st of any given year for the season that begins in the following




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      calendar year. For example, the Town will provide the schedule for Rec-Team seasons

      and Non-Rec – Team seasons that are due to begin in 2013 by November 1, 2012.

   3. Participant Registration. FVAA will register participants for each sport. Within ten

      business days of the end of team selection , the FVAA will provide the following written

      information to the Town:

          a. the number of registered participants in each age group in each sport;

          b. the number of teams in each league of each sport;

          c. the address of each registered family household

   4. Participant Fees. All participant fees charged by FVAA shall be accounted for by each

      individual sport.

             FVAA shall also collect, for the Town, from each participant “Rec” family a

      Facilities Use Fee (hereinafter “Facilities Use Fee”) and FVAA shall pay over the same

      to the Town in a timely manner. The “per family rec” Facilities Use Fee shall be

      collected annually from each out of town participant family at the time of registration in a

      rec sport with the FVAA. For “Non Rec” participants, there will be a “per participant/

      per “Non Rec” sport” facilities use fee paid by each “Non Rec” participant. The amount

      of the Facilities Use Fee shall be as provided in Paragraph 5 herein.

             FVAA shall also collect from each participant family a Facilities Use Fee

      (hereinafter “Facilities Use Fee”) and FVAA shall pay over the same to the Town in a

      timely manner. The “per family” Facilities Use Fee shall be collected from each out of

      town participant family at the time of annual membership registration with the FVAA.

      There will be an additional “per team” facilities use fee paid by each Non Rec team on a




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      per team basis. . The amount of the Facilities Use Fee shall be as provided in Paragraph

      5 herein

   5. Facilities Use Fee Schedule. The purpose of the Facilities Use Fee is to charge a fee for

      the maintenance and upkeep of the Town’s recreation facilities used by the FVAA

      programs.




      The Facilities Use Fees shall be as follows:

                           Annual Perper Family Rec Facilities Use Fee

            --For each In Town family membership there will be no rec facilities use fee
         --For each Out of Town family membership a $25.00 rec facilitiesty use fee will be
                                           charged



             Annual Perper Team Participant/ per Sport Non Rec Facilities Use Fee
             --Each Non Rec team will pay an annual facilities use fee of $500 per team.
        --For each In Town family participant there will be a $25.00 facilities use fee charged
          --For each Out of town family participant there will be a $100.00 facilities use fee
                                               charged




              The above fees may be changed by the Town annually pursuant to its fee schedule

      adopted as part of the annual municipal budget.

   6. Discounted Fees for Financial Hardships. In exchange for the Town granting the FVAA

      non-assignable concession rights (which include the use of Town concession facilities at

      no charge) for Rec-Team and Non-Rec – Team activities, the FVAA shall reserve an

      adequate sum to provide discounted fees to participants who reside in the corporate limits


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      of the Town who demonstrate a financial hardship to pay the full participant fee amount.

      The Town and FVAA will agree on the criteria for qualification for discounted fee(s).

   7. Scheduling. In order to permit proper management of facilities and turf surfaces of

      fields, the FVAA executive director (or their designee) shall meet with the Parks and

      Recreation Director (or his designee) to discuss all practices, games, and post-regular

      season tournaments needed for Rec-Team and Non-Rec – Team activities.               After

      receiving the aforesaid information from FVAA’s executive director (or their designee)

      and the number of participants and teams in each league in each sport, the Parks and

      Recreation Director (or his designee) will prepare a Master Facility Schedule (hereinafter

      “Master Facility Schedule”) in consultation with the FVAA Executive Director (or his

      designee) for participants and teams (Rec-Teams and Non-Rec – Teams) to follow. The

      Master Facility Schedule will provide time slots and locations for games and practices for

      Rec-Teams and Non-Rec – Teams. The Town Parks and Recreation Director (or their

      designee) agrees to meet with the FVAA executive director ( or their designee) to set the

      Master Facility Schedule.

             Additionally, all practice and game schedules will be posted on the Town’s web

      site. No variations from the Master Facility Schedule will occur without approval of the

      Parks and Recreation Director (or their designee). After setting the Masters Facilities

      schedule with the Parks and Rec Director (or their designee), the FVAA is permitted to

      make changes as needed within their assigned schedule.        Any changes made by the

      FVAA within their assigned schedule are done so without the guarantee that the Town

      can make the needed set up changes. at their own risk but the town With reasonable




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      notification, the Town will attempt to reset facilities to accommodate FVAA changes

      when possible.

             No activities other than duly approved and scheduled games and practices shall be

      conducted on Town recreation facilities. The FVAA respectfully requests that no other

      sports team or sports organization will have priority over the FVAA schedule.

   8. FVAA Responsibilities. FVAA shall:

          a. Place all Rec-Team and Non-Rec – Team activities within the Master Facility

             Schedule time slots developed by the Parks and Recreation Director (or their

             designee) and the FVAA Executive Director (or their designee)for Rec-Teams

             and Non-Rec - Teams.

          b. Collect membership and Sports participation fees

          c. Prior to publication of any schedule to its members or use of any facilities by any

             participant, submit to the Parks and Recreation Director    all practice, game and

             tournament schedules to insure they comport with the Town’s Master Schedule.

          d. Recruit, assign, and train volunteers to serve as coaches, scorekeepers, concession

             workers, and other important volunteer roles to the success of the recreation

             program.

          e. For the safety of participants, perform criminal history checks on all coaches and

             other volunteers that will be involved with participants in the program.

          f. Provide competent officials for games.

          g. Provide necessary uniforms and equipment for games.

          h. Monitor the activities of each game to insure compliance with good

             sportsmanship and fair play.



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          i. Assist field and gym supervisors in spectator compliance with good

             sportsmanship and the rules and regulations governing the use of Town

             recreational facilities.

             The aforementioned items contained in paragraph 6(a) – 6(i) are collectively

      referred to as “League Administration”.

   9. Town Responsibilities Regarding League Administration.           The Town’s obligations

      regarding League Administration are the following:

          a. The Town will provide field and gym supervisors to monitor activities at Town

             recreational facilities for compliance of use, compliance of good sportsmanship

             by participants and spectators, and facilitate the use of lights, restrooms,

             concession stands, and other components of Town facilities.

          b. The Town will control, maintain and prepare all athletic fields to FVAA

             specifications as needed for Rec-Team and Non-Rec – Team athletic play.

          c. The Town and FVAA will formulate and provide all start and end dates for all

             sport seasons (this will be provided November 1st of each year for the following

             calendar year of athletics) allowing for changes due to weather and other factors

             outside of FVAA control.

          d. The Town will confirm the number of games and practices for each sport.

          e. The Town will provide to FVAA a list of facilities which will be available for

             each Rec-Team and Non-Rec – Team practices and games. The Town will also

             designate sports games and practices to be played at each facility.

          f. The Town will create, maintain and control the Master Facility Schedule. .




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   10. Facilities for Recreational Youth Athletic Programs. Subject to the performance of all

      terms and conditions herein by FVAA, the Town will:

          a. Provide and maintain, at its expense, all recreational facilities used for the Rec-

              Team and Non-Rec - Team programs under this Agreement, subject to the terms

              of this Agreement and limitations imposed on the Town’s limited facilities.

          b. Prepare all recreational facilities to FVAA specifications used for practices and

              games in the manner customary for that sport (i.e. drag and line ball fields, set up

              soccer goals, set up score tables and basketball backboards to proper height and

              position).

          c. Provide FVAA at no charge with access to concession facilities to operate

              concessions at Town recreation facilities to raise funds during approved periods.

              FVAA is not permitted to assign this right to third parties. subject to notification

              and approval of the Town Manager (out). As a condition precedent to providing

              concession facilities, FVAA or its approved designee shall leave each facility

              clean (according to Town standards). If FVAA elects not to operate concessions

              by December 31st of each year, then the town can operate the concessions at their

              choosing.

          d. Provide FVAA with approved office space and storage space pursuant to a lease

              to be approved by the Town’s Board of Commissioners.

          e. Make repairs to recreational facilities within a reasonable period of time.

              Requests for work repairs must be submitted to Town Parks and Rec Director in

              writing.

   11. Financial Accountability.



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             a. In order to make provisions for the use of the Town’s publicly owned

                recreational facilities, FVAA shall produce to the Town each year its annual

                budget (for the upcoming budget year) and financial statement (from the

                preceding year).     Such annual budget and financial statements shall be

                finalized and delivered to the Town within forty five (45) days of the close of

                FVAA’s fiscal year (eq. December 31st).          Such budget and financial

                statements shall be signed by the President and Treasurer as being true and

                accurate in all respects.

             b. In accordance with FVAA Bylaws, every 3 years FVAA shall produce an

                audit to the Town of Fuquay-Varina Board of Commissioners according to the

                following:

                 i. Such audit shall be performed according to generally accepted accounting

                    principles for applicable tax-exempt non-profit organizations by a

                    Certified Public Accountant licensed to practice in the State of North

                    Carolina. Said audit must be received and accepted by the FVAA Board

                    of Directors.

                ii. Such audit shall detail the income and expenditures for each sport per

                    year.

               iii. Such audit shall be finalized and delivered to the Town within forty five

                    (45) days subsequent to FVAA Board of Directors Approval. Audit will

                    be delivered to Town no later than June 30th, with a 30 day extension if

                    requested by the FVAA.




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   12. Insurance. FVAA agrees that it will at all times during the term hereof, at its own

      expense, maintain and keep in force general liability insurance covering any and all

      claims for bodily injury, death or property damage occurring in, on or about the

      recreational facilities in coverages acceptable to the Town and in amounts of

      $1,000,000.00 per occurrence, $2,000,000.00 aggregate. FVAA shall produce evidence

      or a certificate of such insurance and coverages contemporaneously with the execution of

      this Agreement.

   13. Notices.   All notices and other communications required or permitted to be given

      hereunder shall be in writing and shall be mailed by certified or registered mail, postage

      prepaid, or by Federal Express, Airborne Express, or similar overnight delivery service,

      addressed as follows:


              If to FVAA:           Fuquay-Varina Athletic Association, Inc.
                                    C/o Director and President
                                    525 North Main Street
                                    Fuquay-Varina, North Carolina 27526

              If to Town:           Town of Fuquay-Varina
                                    c/o Town Manager
                                    401 Old Honeycutt Road
                                    Fuquay-Varina, North Carolina 27526

              With copy to:         Parks and Recreation Director
                                    Town of Fuquay-Varina
                                    401 Old Honeycutt Road
                                    Fuquay-Varina, North Carolina 27526

              Notice shall be deemed to have been given upon receipt. Refusal of delivery shall

      be deemed receipt.

   14. Modification. No modification of this Agreement shall be valid or binding unless such

      modification is in writing, duly dated and signed by both parties.



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   15. Full Agreement. This Agreement contains the entire agreement of the parties, and all

      prior communications, oral or written, are without any force and effect as it is the specific

      intent of the parties that this Agreement alone sets forth the terms on which the parties

      have mutually agreed. Each party specifically agrees that it enters into this Agreement

      based on its own understanding of the terms hereof and does not rely, in whole or in part,

      on any interpretation or representation of the other party.

   16. Assignment. Neither this Agreement nor the performance of any obligation herein can be

      assigned without the express written consent of the parties hereto.

   17. Binding Effect. It is mutually understood and specifically agreed that this Agreement is

      binding upon and inures to the benefit of the Town’s and FVAA’s successors, heirs,

      assigns, tenants, lessees and sublessees of the parties hereto.

   18. Governing Law. This Agreement shall be interpreted and construed in accordance with

      the laws of the State of North Carolina.

   19. Indemnification. FVAA and its members, officers, employees, guests and invitees shall

      indemnify and hold harmless the Town and its officials, employees, agents and elected

      officials from and against any and all claims for damage of any kind (including, but not

      limited to, damage or injury to the person or property of anyone or any entity arising

      from any act, omission or performance of or non-performance of any obligations or any

      term or condition under this Agreement) occasioned or caused by FVAA’s respective

      members, volunteers, employees, agents, contactors, subcontractors, guests or invitees,

      including, but not limited to, the defense or pursuit of any claim or any action or

      proceeding with respect thereto; and in case any action or proceeding is brought against

      the Town by reason of any such matter, then in such event, the undersigned, upon notice



May 23, 2012 incorporating changes from meeting but before cleaned up copy                Page 13
         from the Town, shall defend the Town, its officials, employees, agents and elected

         officials, at FVAA’s expense by counsel reasonably satisfactory to the Town. The Town

         need not have first paid any such claim in order to be so indemnified. This indemnity

         shall expressly survive the expiration or termination of this Agreement.

         20. Indemnification. The Town and its officials, elected officials, officers, employees,

         and agents shall indemnify and hold harmless the FVAA and its members, directors,

         employees, agents, and volunteers from and against any and all claims for damage of any

         kind (including, but not limited to, damage or injury to the person or property of anyone

         or any entity arising from any act, omission or performance of or non-performance of any

         obligations or any term or condition under this Agreement) occasioned or caused by the

         Town’s respective officials, elected officials, officers, employees, agents, contactors,

         subcontractors, guests or invitees, including, but not limited to, the defense or pursuit of

         any claim or any action or proceeding with respect thereto; and in case any action or

         proceeding is brought against the FVAA by reason of any such matter, then in such

         event, the undersigned, upon notice from the FVAA, shall defend the FVAA, its

         members, directors, officials, employees, agents, and volunteers, at the Town’s expense

         by counsel reasonably satisfactory to the FVAA. The FVAA need not have first paid any

         such claim in order to be so indemnified. This indemnity shall expressly survive the

         expiration or termination of this Agreement.

   20.

   21. Counterparts. This Agreement may be executed in one or more counterparts.

   22. Breach. Non-compliance with any provision of this agreement by either party shall

         constitute a breach. The waiver by any of the Parties of any breach or violation of any



May 23, 2012 incorporating changes from meeting but before cleaned up copy                  Page 14
      terms or provisions of this Agreement by any other party hereto shall not operate as a

      waiver of any other breach or violation.

   23. Severability. If any provision herein is deemed void or unenforceable by a court of

      competent jurisdiction, such provision shall be severed from this Agreement and the

      remaining provisions shall be valid, enforceable and binding between the parties.



   24. Term of Agreement & Termination. The term of this Agreement shall be for one year

      and shall renew automatically for successive one-year periods unless either party hereto

      provides written notice terminating the Agreement at least ninety (90) days prior to the

      expiration of the then one-year term.

   25. Headings. The captions and headings throughout this Agreement are for convenience

      and reference only and the words contained therein shall in no way be held to define or

      add to the interpretation, construction or meaning of any provision of this Agreement.

   26. No Partnership, Joint Venture.     This Agreement does not create any obligation or

      relationship such as a partnership, joint venture or other similar legal relationship

      between the parties. Any correspondence or other references to “partners” or other

      similar terms will not be deemed to alter, amend or change the relationship between the

      parties hereto unless there is a formal written agreement specifically detailing the rights,

      liabilities and obligations of the parties as to a new, specifically defined legal

      relationship.

   27. Waiver. Any waiver from time to time of any provision hereunder will not be deemed to

      be a full waiver of such provision or waiver of any other provision hereunder. Any

      waiver shall not prejudice any remedy available to the party(ies).



May 23, 2012 incorporating changes from meeting but before cleaned up copy                Page 15
                           {See following page for signatures.}




May 23, 2012 incorporating changes from meeting but before cleaned up copy   Page 16
       IN WITNESS WHEREOF, this Agreement has been executed the day and year first

above written.

                                    Fuquay-Varina Athletic Association, Inc.


                                                                               (SEAL)
                                    By:
                                    Title: President


                                    TOWN OF FUQUAY-VARINA


                                    By:
                                    Title: Town Manager

Attested:


Rose H. John, Town Clerk



       (SEAL)



This instrument has been pre-audited in the manner
required by the Local Government Budget & Fiscal
Control Act.



Carla Morgan, Finance Officer
Town of Fuquay-Varina, NC




May 23, 2012 incorporating changes from meeting but before cleaned up copy         Page 17
STATE OF NORTH CAROLINA

COUNTY OF WAKE

I, a Notary Public, certify that                                personally came before me
this day and acknowledged that he is President of Fuquay-Varina Athletic Association, Inc. and
that he, as President being authorized to do so, executed the foregoing on behalf of the
corporation. Witness my hand and official seal, this the        day of                 , 2012.

My Commission Expires:                                                           Notary Public




STATE OF NORTH CAROLINA

COUNTY OF WAKE

I, a Notary Public of the County and State aforesaid, certify that
          personally came before me this day and acknowledged that he is Town Manager of
Town of Fuquay-Varina, a municipal corporation, and that by authority duly given and as the act
of the corporation, the foregoing instrument was signed in its name by its Town Manager , sealed
with its corporate seal and attested by Rose H. John as its Town Clerk . Witness my hand and
official stamp or seal, this                   day of                , 2012.

My Commission Expires:                                                           Notary Public




May 23, 2012 incorporating changes from meeting but before cleaned up copy             Page 18

				
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