HomeMy Public PortalAbout2012.11.29 Golf Pro AgreementMcCALL MUNICIPAL GOLF COURSE
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
THIS AGREEMENT, made and entered into this 29 day of November, 2012, by and between the
CITY OF McCALL, IDAHO, (the "City") a Municipal Corporation, organized and existing
under the laws of the State of Idaho, and Allan Morrison, whose address is 308 Camp Road,
McCall, Idaho, hereinafter called ("the Professional").
WITNESSETH:
WHEREAS, the City owns a Twenty -Seven (27) hole golf course and clubhouse and desires to
contract for five (5) years ending October 31, 2017, for the operation thereof by the Professional
upon the terms and conditions hereinafter set forth;
NOW THEREFORE, the parties do hereby mutually agree as follows:
I. QUALIFICATIONS OF PROFESSIONAL:
Professional shall be a Class A member of the Professional Golf Association (PGA) in good
standing for the duration of this agreement. All services rendered shall be in conformity with the
PGA Code of Ethics.
II. GENERAL CONDITIONS:
A. Definitions:
1. Professional: Allan Morrison;
2. City: The City of McCall, Valley County, Idaho;
3. Season: The official golf season shall run from May 1 through October 31. The length
of the Season may be adjusted as weather permits.
4. Golf Advisory Committee: The Golf Course Advisory Committee, as established by
the McCall City Council, pursuant to McCall City Code § 1-10-1.
5. Course: McCall Municipal Golf Course
6. Data: In addition to other data required to be provided in this Agreement, the
Professional upon request from the City Treasurer or City Manager, shall provide
data relevant to the operation and success of the business. The City may withhold
payment to the Professional if the required Information is not provided. This data
shall be deemed confidential in nature, with disclosure limited to the City Treasurer,
the City Manager, the City Auditors, and City Council. Public disclosure shall be
exempt pursuant to Section 9-340 Idaho Code, unless otherwise consented to by the
Professional. At any time discussion of the data referred to herein is required between
the City Council and the Professional, such discussion by the City Council would be
open to the public. Therefore, it is understood that the Professional will request an
executive session with the City Council to hold this discussion in private. Failure to
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November 29, 2012 PAGE 1 of 18
request an executive session will be deemed to be consent by the Professional for
public disclosure of such data discussed.
7. Golf Course Revenue: Revenue for the purposes of this agreement is gross income,
before credit card discounts or sales tax.
8. Golf Operations Income: Any revenue collected directly related to the operations of
the Golf Course such as green fees, season passes, trail fees, locker rentals, seasonal
pass fees, approved tournament round surcharge including daily fees, and any
established fees for City -owned public cart storage.
9. Restaurant Operations Income: Any revenue collected directly related to the
operations of the restaurant including all revenue associated with selling or serving
food or beverage (including alcoholic beverage).
10. Information: In addition to other data required to be provided in this Agreement, the
Professional shall upon request submit the following minimum information to the
City Treasurer:
a. Any and all information necessary to perform an audit, including payroll data; and
b. Profit and loss information for Restaurant operations
The City Treasurer has authority to require additional data and to establish the form in
which the data must be submitted.
11. City Manager: The City Manager of the City of McCall, as appointed by the McCall
City Council, pursuant to McCall City Code § 1-7-1;
12. City Treasurer: The Treasurer of the City of McCall, as appointed by the McCall City
Manager, pursuant to McCall City Code § 1-9-9;
13. City Auditors: The independent financial auditors of the City of McCall, employed by
the City pursuant to Idaho Code § 67-450B;
B. The Professional shall be an independent contractor and not an employee of the City.
C. The Professional shall be solely responsible for hiring, training and supervising all
assistants, marshals, starters and such other employees as are necessary to satisfactorily
perform his duties under this agreement.
D. The Professional shall attend all meetings of the Golf Advisory Committee. The
Professional is entitled to reasonable vacations, one or more of which may conflict with
such a meeting.
E. The Professional shall meet periodically with the City Manager and the Golf Course
Superintendent in order to maintain effective communications and enhance the quality of
overall operation and maintenance of the City's Golf Course and Golf Club House.
F. The Professional and Golf Course Superintendent shall propose to the City Council
recommended changes in the fee structure following each season for the coming year.
The Professional and Superintendent are required to facilitate at least one meeting with
the Golf Advisory Committee when formulating the fee structure recommendation. The
Professional shall request approval from the City Manager for any temporary changes in
the adopted fees to allow for discounts to help increase play during underutilized times.
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November 29, 2012 PAGE 2 of 18
G. The Professional shall conform his conduct to all applicable laws and regulations,
including but not limited to, payment of payroll taxes, provision of worker's
compensation coverage, and obtaining and maintaining all necessary business licenses.
H. The Professional's responsibility shall extend throughout the Season at the Course and
such period of time immediately prior and subsequent as are necessary to prepare for
seasonal operations and to conclude each season's activities.
I. The Professional shall, at his expense, maintain such records as are directed by the City
Treasurer so as to provide meaningful cost and revenue data on the major elements of his
operations, including revenue and expense breakouts for each major element of his
operation. This shall include at a minimum, cost -revenue data for the 1) practice range, 2)
pro shop merchandising, including costs of goods, 3) Restaurant operations, 4) daily and
seasonal passes and trail fees, and 5) cart and equipment rentals.
J. The Professional shall remit to the City on the next business day all receipts owed to the
City along with summary reports. These receipts include all income derived from green
fees, season pass sales, trail fees, locker fees. Income received from credit card payments
is not received for purposes of determining the date for remittance to the City until the
credit card processor deposits the charges to the Professional's checking account.
K. The Professional shall remit to the City once per week the City's portion of Restaurant
income. Income received from credit card payments is not received for purposes of
determining the date for remittance to the City until the credit card processor deposits the
charges to the Professional's checking account.
L. All services and facilities shall be offered and operated on a non-discriminatory basis to
all members of the public in conformance with the fees and rules established by the City
of McCall.
M. The City Manager, or his designee, shall be the City's representative for the
administration of this contract.
N. The Professional may at his expense install and provide equipment, appliances, fixtures,
or other improvements to areas under the Professional's control with the prior written
approval of the City Manager. Unless otherwise agreed to, all items installed by the
Professional under this section will become the property of the City upon the expiration
of this Agreement, unless removed by the Professional prior to that date; if the
Professional thus removes any appliance, fixture or improvement installed by him, he
shall at his expense return and reinstall any stored City equivalent. The City shall add
improvements made under this section to the items subject to buy out by the
Professional's successor.
III. PROFESSIONAL SERVICES:
A. Duties - Control of Golf Play
1. The Professional shall be responsible for collecting and remitting all fees associated
with play at the City's Course generally called Golf Operations Income, including
daily fees, seasonal pass fees, trail fees, locker fees and fees, if any established for
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November 29, 2012 PAGE 3 of 18
City -owned public cart storage. All fees, excluding applicable sales tax, shall be
remitted to the City or its designee the first business day following receipt. Income
received from credit card payments is not received for purposes of determining the
date for remittance to the City until the credit card processor deposits the charges to
the Professional's checking account. The Professional is responsible for paying
collected sales tax to the State of Idaho.
2. The Professional shall accept tee time reservations and schedule regular play during
the Season in conformity with the regulations adopted by the City. Seasonal and life
passes, as well as City employee passes, shall be honored for play.
3. The Professional shall monitor play and players upon the course so as to ensure
timely progression of play, observation of golf etiquette and preservation of turf
conditions. Toward this end the Professional shall provide vehicles for and employ
golf course marshals for the Season as required to enforce golf course rules and
regulations. In order to facilitate the hiring of these golf course marshal(s), the
Professional is authorized to provide complimentary golf, up to the monetary value of
two annual season passes, to the golf course marshal(s). If such complimentary golf is
provided as part of the employment of golf course marshal(s), the Professional shall
annually report to the City the value of the complimentary golf provided, and the
number of hours of marshalling received. Additionally the City reserves the right to
assume directly the responsibility for employment and supervision of the marshals; in
such event, the sums retained by the Professional under this contract shall be subject
to adjustment to reflect any reduction in costs to the Professional.
4. The Professional shall provide an adequate supply of high quality score cards and
pencils sufficient for play during the Season. The Professional can include advertising
on the score cards to defray costs.
5. The Professional shall have the authority to remove or prohibit anyone from the
course who willfully violates course rules, regulations or accepted golf etiquette; such
decisions may be appealed in writing to the City which shall set a hearing within
sixteen (16) days of receipt of the appeal. The City's decision on such matters shall be
final. Appeals shall be mailed to: City Clerk, City of McCall, 216 East Park Street,
McCall, Idaho, 83638. A valid appeal must be received not later than fifteen (15)
calendar days after the event or incident.
6. Course rules and regulations and playing fees shall be established and approved by
the City Council, and shall be published and posted by the Professional together with
locker rental, cart storage and trail fees in a conspicuous place at the Golf Course
Clubhouse and filed with the City Clerk.
7. It is agreed that at a minimum the data to be maintained by the Professional is the
following:
a. Daily Tee Sheet Log
b. Marshall Payroll Records
c. Season/Discount Pass Sales
d. Prepaid Tournament Entrants
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e. Trail Fees
f. Locker Fees
g. Season Pass holder's names and addresses
B. Duties — Tournaments
1. The approved annual tournament schedule shall include conduct of the following:
a. McCall Amateur
b. McCall Chapman
c. McCall Pro -Am
d. Two Man Best Ball
e. Two Lady Best Ba11
f. Two Man Scramble
g. Idaho BSU Tournament (or comparable event)
h. The McCall Seniors Tournament
i. McCall Senior Pro -Am
2. The Professional shall be responsible for setting the actual dates of tournament play.
Proposed changes to the above schedule of approved tournaments shall be first
submitted by the Professional to the Golf Advisory Committee for review and
recommendation prior to submission to the City Council for possible action; if
approved by resolution it shall be deemed incorporated in this agreement by
reference. The Professional shall so manage tournaments as to assure that no less than
nine (9) holes of the golf course remain available for public play during tournaments
unless approved in writing by the City Manager. A11 twenty-seven (27) holes may be
used for the two days of 2 Man Best Ball, the McCall Amateur tournament, and the 2
Man Scramble.
3. No greens fees are chargeable for the approved tournaments listed at B.1. above,
provided that a surcharge will be paid to the City for each participant in the amount of
$15.00 per tournament round, which includes sales tax, to a maximum of $30 per
player per event. No surcharge will be charged for participants in the Junior Amateur.
4. The Professional shall also be responsible for scheduling convention tournaments,
men's and women's golf association tournaments and league play and such other
tournaments, including convention related play, as can be reasonably accommodated
at the golf course considering weather, seasonality, course playing conditions and
utilization by season pass holders.
5. The Professional shall cooperate with the conduct of the McCall Amateur "Calcutta."
6. The Professional shall maintain an adequate inventory of golf equipment, accessories
and apparel so as to guarantee a reasonable selection of merchandise as prizes for
tournament review.
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November 29, 2012 PAGE 5 of 18
7. The Professional shall maintain a waiting list for all tournaments and make available
a copy of the list to the City at the conclusion of each tournament.
8. The Professional shall maintain a participant list for all tournaments, to include
contact information for each player, and make available a copy of the list to the City
at the conclusion of each tournament.
C. Duties - Instruction
1. The Professional, or a PGA Assistant, shall conduct a junior golf clinic of no less than
10 hours in length for at least ten (10) area youth between nine (9) and fifteen (15)
years old. Scheduling shall be coordinated with the City's Recreation Department. In
the event that reasonable recruitment efforts are undertaken and the Professional fails
to locate sufficient numbers of youth to undertake these lessons, failure to achieve
this provision of the agreement shall not be cause for termination provided the
Professional is able to document the recruitment efforts. Participant cost shall not
exceed $25, which will be used to offset Professional's costs of conducting the clinic.
2. Instructional staff shall be made available for private instruction in conjunction with
the Practice Range. The Professional and his staff have the exclusive right to
instruction at Course, and may set their own rates.
D. Duties - Storage/Locker Area
1. The Professional shall be responsible for the operation of the club and cart storage
and locker area within the lower level of the Clubhouse facility. This shall include
policing and cleaning the storage and locker areas generally. The Professional shall
allocate the lockers and storage area in an equitable manner, collect all established
fees, and remit same as provided above to the City.
E. Duties — Restaurant and Bar
1. The Professional shall have the exclusive right to operate the Restaurant, which shall
include performing the following duties, as well as other duties necessarily implied
herein:
a. To hire, fire, and supervise all Restaurant employees engaged in the operation of
the business of the Restaurant, to include bartenders, wait persons, bus and
cleaning persons (except such as are furnished by caterers contracting with
persons reserving the building for an event, provided the Professional approves
use of the facility for a catered event); to be responsible for salaries and benefits
and ensure compliance with all state and federal labor laws including FICA, state
and federal income tax withholding, unemployment insurance and workman's
compensation insurance;
b. To furnish the City with a Certificate of Insurance evidencing Workman's
Compensation Insurance for its employees; to provide $500,000 single limit
insurance in the following categories: general liability, products (food and drink),
maintenance, and liquor liability; to provide $10,000 cash loss, theft or
embezzlement bond or insurance; and to provide a Certificate of Insurance
evidencing such insurance and the naming of the City as an additional insured on
all such policies;
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November 29, 2012 PAGE 6 of 18
c. If the Professional elects to accept credit cards, to request proof of identity of the
cardholder submitting the card if that identity is not already known;
d. To provide the necessary food, beverages and consumable supplies used in the
business of Restaurant and to operate the bar;
e. To determine the prices to be charged for food and drink served in Restaurant,
none of which prices shall be stated to include sales tax;
f. To do no act which in any way implies that the Professional has any interest in the
beverage dispensary licenses applicable to the Restaurant, which are and will
remain the property of the City or are issued by and revocable by the City;
To comply with all terms of the Special Use (Conditional Use) Permit for the golf
clubhouse, insofar as it relates to operations of the Restaurant;
h. To make available each month a profit and loss statement for the Restaurant
operations in form and content satisfactory to the City Treasurer, including a full
statement of expenses with supporting receipts, and proof of payment of
unemployment insurance, payroll taxes and withholding, and workman's
compensation insurance; and not later than sixty days after the end of operations
for each year of this Agreement, to furnish a complete financial report to the City
to include balance sheets, and profit and loss statements, in form and content
satisfactory to the City Treasurer;
i. To, at a minimum, operate the Restaurant in June, July, August, and September
from 9:00 a.m. until 7:00 p.m. The balance of the Season the Restaurant shall be
operated with the intent of satisfying golfer needs while maintaining a positive
cash flow. The Professional is responsible for handling all bookings and
coordinating services; arranging and paying for telephone, garbage, lights, heat,
water, and sewer as necessary for clubhouse use, during the period of this
Agreement; to handle all reservation -making for the use of the Restaurant or
Clubhouse; and to inspect the premises daily to ensure that the heating and other
systems are functional. During the times, if any, that the Course is closed by
weather or other causes beyond the Professional's control; the Professional may
in his discretion close the Restaurant. The Professional shall obtain at his own
expense any menus not on site;
j. To provide fresh drinking water to golfers at no less than 5 locations on the
Course using City provided containers;
k. To reasonably ensure employees and patrons do not smoke while in the building;
1. To reasonably ensure that employees do not consume alcohol while working;
m. To ensure all employees are dressed professionally, are clean, courteous, efficient,
and neat in appearance and are health certified (T.B., etc.), for food handling and
preparation;
n. USE OF PREMISES BY THE CITY FOR MEETINGS: The City may use a
portion of the restaurant for meetings without charge. Said meetings will not be
deemed to cause a disruption to the Professional. Notice of such meetings shall be
g.
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given by the City as soon as they are scheduled and such meetings will be
rescheduled by the City if prior reservations have been made of Clubhouse use.
F. Duties - Other
1. The Professional, in cooperation with the McCall Men's and Women's Golf
Associations, shall provide for sanctioned handicapping in coordination with the
USGA to include collection and payment of fees. The Professional shall also
coordinate league play and tournament play activities with both organizations.
2. The Professional shall make himself available to the City's Golf Advisory Committee
for information and consulting purposes so as to facilitate their duties as advisors to
the City Council of the City. The Professional shall likewise cooperate with the Golf
Course Superintendent so as to deal appropriately with Course conditions and
tournament play.
3. The Professional shall assist the Golf Advisory Committee and the Golf Course
Superintendent in the development and implementation of a marketing plan for
promoting, advertising and developing play at the Course; the cost associated with
this shall be borne by the City subject to their review and prior approval. The initial
annual City budget figure is $4,000.00, subject to change on an annual basis. The
marketing plan shall include, in addition to a proposed budget, targeted objectives and
a summary of planned activities designed to progress towards these objectives.
4. The Professional shall cooperate with the City's Auditors.
IV. FACILITY OPERATIONS AND MAINTENANCE:
A. Pro Shop
1. The Professional shall have exclusive right to operate the area set aside as a pro shop
within the Clubhouse for the purpose of displaying and merchandising golf and
sporting equipment, accessories, and apparel. The Professional shall maintain a level
of inventory throughout the season sufficient to permit an adequate selection for
patrons of the Course, including tournament players. Daily and seasonal golf passes,
as well as cart, club and locker rentals shall be available through the Pro Shop.
2. The Professional shall provide staff and operate the Pro Shop so as to maximize play
available to the golfing public, course conditions and weather permitting.
3. The Professional shall, at a minimum, keep the Pro Shop open and staffed from 7:00
a.m. to 9:00 p.m., each day from June 1 through September 5; operating hours prior to
June 1 and subsequent to September 5 shall be based on hours playable due to
weather and daylight.
4. The Professional shall maintain through -out the playing season a Pro Shop telephone
(634-7200) and will cover the costs of one line for call in purposes. In addition, the
Professional shall make arrangements for an answering system in the off-season. The
phone number is the property of the City.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 8 of 18
B. Practice Range
1. The Professional shall have exclusive right to operate the area set aside as a practice
range for the use of the golfing public. The Professional shall likewise be entitled to
exclusively conduct golf instruction at the range for remuneration. Instruction shall be
made available to individuals and groups, PGA qualified instructors shall be available
at reasonable times.
2. The Professional shall be responsible for providing quality range balls, baskets and
clubs in sufficient numbers to assure their availability throughout the season and may
charge fees for their use. Collecting, cleaning and disbursing the balls shall likewise
be the Professional's responsibility. Portable tee mats may be made available at such
time as are necessary to permit use of the range when use of the turf tee area is
undesirable. Permanent tees, other than natural turf may be installed at the
Professional's expense. Likewise, any structures or facilities used for storage or
disbursing of range balls shall be subject to City Manager approval. If approved,
they are included in the Professional's buy-out as herein provided.
3. Turf upkeep and mowing is not the responsibility of the Professional.
4. The Professional shall be responsible for policing the tee area of the practice range, as
well as the maintenance of any equipment utilized by him in conjunction with the
operation of the practice range.
C. Clubhouse and Restaurant
1. The Professional accepts the Restaurant in its present condition, after complete
inspection of the same. The Professional shall furnish the City a dated inventory,
signed by the Professional, of all equipment and fixtures found by the Professional at
the Restaurant when taking inventory in anticipation of possession. The Professional
may remove City -owned fixtures and appliances at the Professional's expense, and
replace them with equal or better also at its expense, provided the Professional first
obtains the written consent of the City Manager as to the change and as to storage or
disposition of City property.
2. The Professional may, at its sole discretion, offer complimentary staff meals, and
complimentary food and beverage to select guests as a promotional tool.
D. Club/Cart Rentals
1. Rental of powered and pull carts, bags/clubs - The Professional shall provide, each
day the course is open, at least fifty (50) golf carts, electrically powered carts
preferred, all in good repair, for rental to golf course patrons. The Professional shall
pay all expenses related to said carts, and shall receive all rental income for his own
account. Rental rates for use of equipment shall be determined by him.
2. This right to rent carts, bags and clubs shall be exclusive.
3. The Professional shall have exclusive rights to lost ball/water ball concession.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 9 of 18
E. Maintenance
1. The Professional shall be responsible for routine cleaning of all areas of the
Clubhouse and Restaurant and as otherwise detailed below. The Professional shall
report any problem with building maintenance and utilities to the Golf Course
Superintendent. The Professional has no authority to contract for parts or services for
building maintenance or utilities. The City shall perform all maintenance and City
shall perform such maintenance as soon as is reasonably practical. The City shall
coordinate its maintenance with the Professional's operation.
a. Inspection: The Professional shall make or cause to be made a daily physical
inspection of the Clubhouse and adjacent grounds, including the parking lot,
putting green, and practice range tee area, reporting any unusual or unsafe
conditions to the Golf Course Superintendent immediately.
b. Clubhouse: The Professional shall provide janitorial services for the Clubhouse.
These shall include, but not be limited to cleaning of windows, shampooing and
cleaning carpets, and, as necessary, cleaning of restrooms, storage, and locker
areas.
c. Grounds: The Professional shall, as necessary, see that the Clubhouse grounds,
putting green, parking lot, and practice range tee area, are policed and that any
litter accumulation is collected and disposed of.
d. Equipment Maintenance and Repair: The Professional shall be responsible for
routine cleaning of City owned fixtures and equipment used by the Professional
and shall secure approval from the City Manager prior to hiring out that service or
purchasing replacement parts for such item. This includes routine cleaning (but
not repair) and inspection of the exhaust hood system.
e. Restaurant: The Professional shall ensure that the facility is kept clean and
attractive, including maintaining upstairs lobby, deck and restrooms as well as
providing towels, tissue, soap and other supplies, to include cleaning all furniture,
fixtures and appliances devoted to Restaurant use, including the interior walls and
floor coverings. The facility shall acquire and maintain at least an A rating upon
any inspection by authorized governmental agencies. The Central District Health
Department shall be requested to make its annual inspection sometime during
May, June, July or August.
f. Utilities: The Professional shall assume full responsibility and expense for all
private telephone service, electrical or gas cart service, and routine cleaning of
cart storage areas. The Professional shall also assume responsibility of his
personal taxes, merchant invoices, and all other liabilities with respect to his
operation of the clubhouse and restaurant.
Supplies: The Professional shall provide at his expense, supplies and tools
necessary for carrying out his maintenance responsibilities, including light bulbs,
soap, paper products and like consumables.
2. The City shall be responsible for all facility and ground maintenance and repair not
otherwise required to be performed by the Professional, including maintenance of
g.
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November 29, 2012 PAGE 10 of 18
building siding, roofing, windows, decking, stairways, etc. as well as routine cleaning
and inspection of the fire suppression system, electrical, plumbing and any structural
matters, upkeep of landscaping, turf conditions, and paving.
V. FEES:
A. A11 Golf Operations Income will be collected by the Professional on behalf of the City.
The Professional shall remit to the City the full amount collected (less credit card
processing fees), for green fees, season passes, trail fees, locker rentals, and approved
tournament round surcharge, and refunds and reimbursements for the same. The
Professional shall provide supporting documentation as determined by the City with all
payments made.
B. The Professional shall remit to the City two percent (2%) of all Restaurant Operations
Income which shall be used to fund repairs and maintenance to the Clubhouse as outlined
in IV.E.2. above. The Professional shall provide supporting documentation as determined
by the City with all payments made.
C. Golf Operations Bonus Compensation: In the event that Golf Operations Income exceeds
$500,000 and Restaurant Operations Income exceeds $225,000, the Professional and the
City shall split Golf Operations Income greater than $500,000 on a basis of 92% to the
City and 8% to the Professional. If Golf Operations Income exceeds $530,000 and
Restaurant Operations Income exceed $225,000, the Professional and the City shall split
the Golf Operations Income greater than $530,000 on a basis of 80% the City and 20% to
the Professional.
D. If either party to this Agreement believes that a change in the annual compensation would
be justified, they shall submit a request for renegotiation supported by a justification.
E. The parties to this Agreement shall at all times comply with the covenants relating to the
obligations issued by the City to finance improvements to the Course. To the extent of
any conflict between the terms of this Agreement and the provisions of the City's
covenants relating to its obligations, the covenants relating to the obligations shall
prevail.
VI. CITY'S GENERAL OBLIGATIONS:
A. The City shall maintain the Course, including practice range, to its own standards. This
does not preclude advice from the Professional on such matters, but such advice does not
obligate the City to take action.
B. The City shall determine the official opening and closing days each season, as well as any
necessary closures during such season. The decision to close shall be made by the City.
The susceptibility of the course to damage from play, personal safety of the golfers, and
the like shall be the criteria upon which such decisions shall be made. Inclement weather
conditions alone shall not constitute grounds for closure unless its degree or duration
gives rise to the adverse consequences outlined.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 11 of 18
C. The City does not guarantee an uninterrupted supply of water, or electric current; nor
does the City guarantee uninterrupted service in providing any utilities. The City shall not
be liable to the Professional for any loss, damage, cost or expense which may result from
the interruption or failure of any utility services.
D. The City shall obtain all liquor licenses at the City's expense, and shall keep them in
effect at the City's cost, for the duration of this Contract.
E. The City shall conduct the annual patron satisfaction survey required by V. B. above.
VII. MISCELLANEOUS:
A. This agreement is assignable, only upon the City's prior written consent and approval.
The City shall not unreasonably withhold such consent.
B. The Professional, at his expense, may make improvements to the pro shop, the
Clubhouse, and/or the Restaurant, such as kitchen fire suppression system and exhaust
hood, painting, draperies and floor coverings with prior written approval of the City
Manager. The actual cost, less depreciation, of any such approved expenditure shall be
included in the Professional's buy out.
C. Each party to the Agreement shall bear the risk of loss to the individually owned fixtures,
equipment, inventory, or structures. Each shall obtain and maintain such casualty
insurance as they deem desirable or appropriate to protect against the risks involved,
whether damage, theft, or other loss.
D. Persistent difficulties with the public, as evidenced by public complaints which are
detrimental to the Golf Course operation, shall be deemed cause for not renewing the
agreement or cause for termination. Public complaints about the operation of concessions
or the golf play activity shall be deemed those submitted in writing, signed, and
addressed as follows: City Clerk, City Hall, 216 East Park Street, McCall, Idaho, 83638.
Such complaints shall be copied to the Professional and entered into a file in the City
Clerk's office and shall be considered at the Agreement renewal time or if action to
terminate this Agreement is commenced.
E. The parties to this Agreement shall not conduct or suffer or permit others to conduct any
golfing business activity (e.g. manufacturer's demonstration day) on the Course except as
specifically enumerated herein, unless it is agreed by both parties that it is mutually
beneficial.
F. The Professional shall not engage in any form of unlawful activity on the premises of the
Course, and shall not permit or condone any such activity by employees, customers, or
others. If observing illegal conduct by employees, customers, or others, the Professional
shall report the matter to the police. In that connection, the Professional shall reasonably
attempt to provide a drug -free workplace and shall promptly discharge any employee
found to be engaging in any unlawful activity or sexual harassment.
G. Golf play activities and concessions shall be operated in a business -like manner and,
unless addressed by the terms of this Agreement, the Professional shall have the right to
conduct these businesses otherwise unhindered by the City.
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November 29, 2012 PAGE 12 of 18
H. Business financial information furnished to City by the Professional shall be confidential
and protected from disclosure as allowed under I.C. § 9-340. Such information may be
made available by City to the City Manager, City Treasurer, City Attorney, and City
Auditors. In the event of termination of this Agreement by either party, the most recent
two years of financial data shall be provided by the Professional to the top five incoming
candidates as identified by the City. If the Professional is unavailable, the City will
release the summary information relating to sales and expenses.
I. This Agreement contains all agreements of the parties. All prior negotiations and
discussions, and all prior agreements if any, are merged into and extinguished by this
Agreement.
J. The Golf Course Superintendent and his staff, the Professional, his spouse, his children,
and his staff shall be exempt from paying greens fees. Additionally, the Professional may
provide complimentary rounds to visiting professionals or to other parties as a marketing
tool, provided the round is reported as such. The City Manager may limit the number of
complimentary rounds. The City Manager may provide free or discounted season passes
in support of charitable organizations on a limited basis.
K. Negotiations for a renewal or extension of this agreement shall begin, if at all, during the
fourth year of this agreement. Either party may initiate negotiations by submitting a
written request to negotiate served on the other party.
VIII. TERMINATION:
A. The parties hereto agree that this agreement is for a term of five (5) years. Should the
City seek to terminate the Professional, it may do so only upon the following terms:
1. Termination shall not be allowed without a material breach on the part of the
Professional. Material breaches include, but are not limited to, sexual harassment,
racial discrimination, intoxication or substance abuse on the job, or gross failure to
perform according to the terms of this Agreement.
2. If the City should allege a breach of a material term of this Agreement, the first step
in the process shall be for the City to provide the Professional written notification of
the alleged breach and the names and substance of the witnesses which have
convinced them that such a material breach has occurred. The City is not required to
take every criticism or opinion from any person to them as an actionable material
breach. If, however, the allegation is deemed material, the City and the Professional
shall submit the issues to the City Manager. If the City Manager does not find a
material breach, the matter shall be deemed final. If the City Manager finds a material
breach, the Professional shall be placed on one month probation to allow him to cure
or remedy, to the best of his ability, the alleged breach.
3. For a second or subsequent alleged material breach the parties shall submit the issues
to non -binding mediation. The mediator shall be a person upon whom the City and
the Professional can both agree. If the mediator finds no material breach, the matter
shall be deemed final. If, however, the mediator finds a material breach, the City shall
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 13 of 18
have the option of going on to the arbitration for termination as set forth below, or to
fashion some other remedy which it finds acceptable.
4. The procedure required for termination of the Professional for a material breach of
this Agreement shall be for parties to submit the same to binding arbitration. In that
respect, should the City seek to terminate the Professional, the City shall select one
arbiter, the Professional shall select one arbiter, and the two selected arbiters shall
select a third arbiter. The matters which the City contends justify the termination shall
be submitted in writing to the Professional at least thirty (30) days in advance of the
arbitration panel selection commencing. Upon selecting the arbitration panel, the
parties shall provide testimony in accordance with the rules of arbitration as adopted
in Idaho at the time.
5. The parties acknowledge the difficult position of the Professional in dealing with the
public and agree not to seek mediation for matters which are not clearly material
breaches of the Agreement or which are not the direct fault of the Professional.
B. The Professional may terminate this Agreement with thirty (30) days written notice for
any non-payment by the City, or for other material cause or breach of the terms of this
Agreement. In such event, the City has ten (10) days from receipt of the Professional's
notice of termination to cure the defects in such notice.
C. In the event the Professional is unable to perform due to death, physical disability or
mental incapacity, this Agreement shall be deemed terminated.
D. In the event of non-performance by either party of non -material terms of this Agreement,
the other shall provide written notice of the basis of non-performance; the notified party
shall have thirty (30) days to cure the default. If it is not cured within that period, the
parties agree to meet and try to come to an agreement as to how to handle the problem.
Non-performance of non -material terms of the Agreement is not grounds for termination.
E. Upon termination, the City agrees to require any successor to buy out the Professional, or
his guardians, heirs or estate, as the case may be, for on -hand Professional -owned
inventory and fixtures, equipment and golf carts, except for distressed or damaged
merchandise, and approved capital improvements as follows (a list of said inventory,
fixtures, equipment and golf carts is attached hereto as Exhibit A):
1. Buy-out as used herein means a cash payment in full, not on terms;
2. On hand inventory - actual cost;
3. Fixtures, equipment and golf carts, approved capital improvements - the fair market
value as agreed to by the successor and Professional or representatives, provided
those items were either purchased as part of the Professional's initial buy out
obligation or purchased with the written approval of the City and identified as subject
to buy out upon termination;
4. The time limits for buy-out are as follows:
a. The Successor and Professional shall have ten (10) calendar days following the
appointment of a proposed Successor to negotiate the value of the buy-out. The
appointment of a proposed Successor shall not be in excess of ninety (90) days
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 14 of 18
from the date of termination unless otherwise extended by the Professional. If the
appointment is not extended, the time period for the following buy-out provisions
shall commence between the City and the Professional on the ninety-first (91st)
day following termination; and
b. If the Successor, (or city if applicable), and the Professional are not able to reach
an agreement over the values within the foregoing ten (10) day period, they have
a total of 7 calendar days thereafter to agree on one or more, (up to 3), third
parties to determine the values of all disputed items; and
c. The third party evaluator(s) shall have fourteen (14) days from the date of their
selection to place a value on all disputed items. The values so determined are
binding on the Successor (or City if applicable); and
d. The Professional shall have five (5) days from the date of his receipt of the final
valuation to agree or reject the values; and
e. If the Professional accepts the valuation, the successor has fifteen (15) days to pay
for the same in cash (no terms). If the successor is unable to comply, the City
agrees to fulfill this obligation; and
f. If the Professional does not accept the valuation within the time set forth above,
the City and the Successor are relieved of their respective duties to require a
successor to purchase the inventory, fixtures, equipment, golf carts, and approved
capital improvements.
5. The Professional and Successor (or City if applicable) shall split evenly the cost of
the valuators.
6. If the Professional seeks to sell the Professional -owned inventory, fixtures, equipment
or golf carts to someone other than a successor contractor, the City shall have a first
right of refusal and has the option to purchase all, but not some, of the above
mentioned items. The right of first refusal applies to any sale by the Professional to a
third party within 14 days of the finality of the foregoing buy-out procedure. Should
the Professional not desire to sell, he has no obligation to provide the City with a first
refusal.
IX. COVENANT NOT TO COMPETE:
A. Grant of Covenant. Within the geographic area and during the time period set forth in
Section IX.B hereof, the Professional shall not (unless acting as an employee of City or
with City's prior written consent):
1. Accept employment or conduct business as a golf Professional for or on behalf of any
golf course within the prohibited geographic area. Employment or business as used
herein shall mean any activity by the Professional, directly or indirectly, whether or
not for compensation (as proprietor, partner, stockholder [except that a less than one
percent (1 %) ownership interest in a public corporation shall be permitted], officer,
director, agent, employee, consultant, trustee, affiliate, individual, or otherwise), with
or for any golf course, and will include the conduct of any business, activity, advise,
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 15 of 18
assistance, or the like which is, or as a result of the engagement or participation of the
Professional, would become, competitive with, or adverse to, the City's golf business.
The City's golf business shall herein be referred to as the "Protected Business";
2. Permit his name or any derivation thereof to be used by or in connection with any
business or activity (even if without compensation) competitive or adverse in any
respect with the Protected Business, whether by way of advertising, solicitation,
promotion or otherwise;
3. Solicit or divert, or attempt to call on, solicit or divert, any customer or client
(whether presently or potentially a client or customer) of the Protected Business with
whom he became or becomes acquainted during his involvement with the Protected
Business, or otherwise, either for himself/itself or for any other person, firm, entity,
LLC, partnership, or corporation; or
4. Induce or attempt to induce any person who is an employee, agent or consultant of the
Protected Business to leave the employ of the Protected Business; or
5. Assist or participate in any manner whatsoever with a friend, relative, or acquaintance
with any golf activity which could be competitive or adverse in any respect, material
or not, with the Protected Business.
B. Scope of Covenant. The Covenant granted in Section A shall remain in effect for a period
of one (1) year from the date of the termination of this Agreement (the "Covenant
Term"), and shall preclude the Professional from carrying on any activity described in
Section A, including the normal evolution thereof, anywhere within the Counties of
Boise, Idaho, Valley or Adams, in the State of Idaho.
C. The Covenant shall terminate
1. Upon the expiration of the Covenant Term;
2. If and to the extent that the protected Business shall be abandoned without sale or
transfer to a successor or assign; or
3. Upon the mutual written agreement of City on one hand, and the Professional on the
other hand.
D. Payment for Covenant.
1. Covenant Fee. The consideration for this Covenant is the contractual terms hereof
which both parties deem of significant importance to warrant the Covenant.
E. Effectiveness of Agreement. The parties agree that this Agreement shall not be effective
or binding between the parties until the Execution Date.
F. Remedies. The Professional:
1. Acknowledges that this Covenant is an integral part of, and a condition to the
obligations of City under this Agreement;
2. Acknowledge that the City is relying on the promise of the Professional to refrain
from any activity which would or could be damaging to City's business in any way;
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 16 of 18
3. acknowledges that a breach, no matter how minor, of the Covenant contained herein
will result in irreparable and continuing damage to City and the Protected Business
for which there will be no adequate remedy at law; and
4. Agrees that in the event of any breach of the Covenant, City shall be entitled to
injunctive relief, in addition to any other and further relief as may be proper.
X. EXECUTION:
This Agreement is executed for the City by the Mayor, attested to by the City Clerk, with the
imprinted seal of the City and executed by Allan Morrison, the Professional.
DATED this Z-7day of /.(( ._ Gam-__, 2012.
DATED this `% day of Al
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BessieJo Wagner, Cit,
Allan Morrison
2012.
CITY OF MCCALL
Valley County, Idaho
Donald C. Bailey, Mayor
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 17 of 18
STATE OF IDAHO )
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County of Valley )
On this j day of >c-loviw , 2012, before me, the undersigned, a Notary Public in and for
said State, personally appeared Allan Morrison, known or identified to me to be the person
whose name is subscribed to the within instrument, and acknowledged to me that he executed the
same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year in this certiAe.41064rst above written.
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STATE OF IDAHO )
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County of Valley )
�'J� -kTv---
NOTARY PUBLIC TOR IDAHO
Residing at Xie (!ei
My Commission Expires: ? - 4.71-- ,? o/ 7
On this day of--) , 2012, before me, the undersigned, a Notary Public in and for said
State, personally appeared Donald C. Bailey, Mayor of the City of McCall, known or identified
to me to be the person whose name is subscribed to the within instrument, and acknowledged to
me that he executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and
year in this certificate first above written.
NOTARY PUBLIC ' 013,1 AHO
Residing at )7-71 "G;0,0--)
My Commission Expires: i-►-lJ //
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 29, 2012 PAGE 18 of 18