HomeMy Public PortalAbout2017.08.10 Professional Golf Services Agreement - Allan MorrisonMcCALL MUNICIPAL GOLF COURSE
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
THIS AGREEMENT, made and entered into this 10th day of August, 2017, 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, 2022, 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 r~ferred to herein is required betwee~
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
request an executive session will be deemed to be consent by the Professional for public
disclosure of such data discussed.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 1of17
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. 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: The City Treasurer has authority to require additional data and to establish the
form in which the data must be submitted.
10. 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;
11. City Treasurer: The Treasurer of the City of McCall, as appointed by the McCall City
Manager, pursuant to McCall City Code § 1-9-9;
12. 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.
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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE2 of17
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) daily and seasonal passes and trail
fees, and 4) 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. 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.
L. The City Manager, or his designee, shall be the City's representative for the administration
of this contract.
M. 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.
For the term of this agreement, the Professional will be granted, under the terms of this
agreement, sole use of the Clubhouse facility space outlined within Exhibit 1 to this
agreement.
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 City-
owned public cart storage. All fees, excluding applicable state 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 3of17
sales tax to the State of Idaho. In addition, the Professional shall remit monthly all
applicable Local Option taxes
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, c~ 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
e. Trail Fees
f. Locker Fees
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November 28, 2017 PAGE4of17
g. Season Pass holder's names and addresses
B. Duties -Tournaments
1. The approved annual tournament schedule shall include the following:
a. McCall Amateur
b. McCall Chapman
c. McCall Pro-Am
d. Two Man Best Ball
e. Two Lady Best Ball
f. Two Man Scramble
g. The McCall Seniors Tournament
h. The Golf Pro is authorized to operate two additional tournaments each year.
Each of these additional tournaments shall be approved by the City Manager
after receipt and .consideration of a recommendation by the McCall Golf Course
Advisory Committee.
2. The Professional shall be responsible for setting the actual dates of tournament play.
Proposed additions or 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.
Except as otherwise provided in this paragraph, 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. All twenty-seven (27) holes may be 1:1Sed for the two full days of 2 Man Best
Ball, and 2 Man Scramble. All twenty-seven (27) holes may be used for two (2) half
days for the McCall Chapman Tournament. All twenty-seven (27) holes may be used
for two full days and until 2 PM on the third day for the McCall Amateur Tournament.
3. No greens fees are chargeable for the approved tournaments listed at B. l. above,
provided that a surcharge will be paid to the City for each participant in the amount of
$16.00 per tournament round, which includes sales tax, to a maximum of $32 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
tournaments.
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November 28, 2017 PAGE 5of17
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 -Other
1. 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 and maintenance,; to provide $10,000 cash
loss, theft or embezzlement bond or insurance; and to provide a Certificate oflnsurance
evidencing such insurance and the naming of the City as an additional insured on all
such policies;
2. To provide fresh drinking water to golfers at no less than 5 locations on the Course
using City provided containers;
3. To reasonably ensure that individuals employed by the Professional and patrons do not
smoke while in the Clubhouse. Smoking will be allowed at authorized smoking
locations adjacent to the Clubhouse Facility;
4. To ensure that employees do not consume alcohol beverages or other intoxicants while
working;
5. 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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES_
November 28, 2017 PAGE 6of17
6. 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.
7. 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 marketing
plan shall include, in addition to a proposed budget, targeted objectives and a summary
of planned activities designed to progress towards these objectives.
8. The Professional shall cooperate with the City's Auditors.
IV. FACILITY OPERA TIO NS 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 8:00 p.m., each weekday, Monday through Friday, from June I through
September 5 and 7:00 a.m. to 9:00 p.m. each weekend day, Saturday and Sunday, from ·
June 1 through September 5. Operating hours on federal holidays shall be 7:00 a.m.
until 9:00 p.m. 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.
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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 7of17
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
1. The Professional accepts his portion of leased Clubhouse, as defined within Exhibit 1
of this agreement, in its present condition, after complete inspection of the same. 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.
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 balJ.fwater ball concession.
E. Maintenance
1. The Professional shall be responsible for routine cleaning of leased areas of the
Clubhouse 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, other than routine
cleaning services such as carpet and window cleaning, 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.
2. 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.
3. Clubhouse: The Professional shall provide janitorial services for the Professional's
leased area of Clubhouse as defined in Exhibit 1 to this agreement. These shall include,
but not be limited to cleaning of windows no less than once per month during the golf
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 8of17
season, shampooing and cleaning carpets no less than once per year or as needed, and,
as necessary, storage, and locker areas.
4. 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.
5. 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.
6. Utilities: The Pr~fessional 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. The
Professional will be responsibility for expenses associated with electric, water and
sewer utility, and trash services as outlined below.
a. Electric Service: The City will pay in full all monthly invoices for electric
services serving the Clubhouse then later invoice a proportional cost allocated
to the Professional as defined within this paragraph. During the period of each
year w4en the Golf Course is open for use by the public, the Professional will
be responsible for fifty percent (50%) of the monthly invoiced amount for
electric service. If the clubhouse restaurant is operated when the Golf Course is
closed each year, then the Professional will be responsible for thirty percent
(30%) of electric cost during the closure period. If the restaurant is not operated
when the Golf Course is closed each year, then the Professional is responsible
for fifty percent (50%) of the cost during this period. The aforementioned
percentages will be pro-rated to the date of opening or closure of the Golf
Course and/or restaurant.
b. Water and Sewer Utility: The Professional will be responsible for fifty percent
(50%) of total water and fifty percent (50%) of total sewer utility expense,
which includes base rate and usage, associated to ·the Golf Course clubhouse.
c. Trash Option 2. The Professional will provide and pay for trash services at the
Clubhouse facility suitable for services being provide under the terms of this
agreement. The City Manager will have sole authority to deem. services as
suitable. Provision of trash services can be negotiated and split, if desired by
the Professional, with the operator of the restaurant facility.
d. The Professional, City of McCall, or lessee of the McCall City Golf Restaurant
may request, in writing, a review of the utility cost share outlined above. Any
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 9of17
amendments to this agreement to alter the cost share outlined below must be
agreed upon and approved by the City of McCall, Golf Professional, and
operator or lessee of the McCall City Golf Course Restaurant.
7. 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.
8. 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
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. All 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. Golf Operations Bonus Compensation: In the event that the Golf Operations Income
exceeds $540,000 annually but less than or equal to $615,000 annually, the Professional
shall receive a bonus payment of $3,000.00. In the event that the Golf Operations Income
exceeds $615,000 annually, the City shall split Golf Operations Income greater than
$615,000 on a basis of 90% to the City and 10% to the Professional to be paid in addition
to the $3,000.00 mentioned above. Either party to this contract may request re-negotiation
of this bonus formula by written notice to the other party not more than 150 days, but at
least 60 days, prior to the third anniversary of the date of execution of this agreement. Any
amendment of this bonus provision shall be set forth in writing in an addendum to this
agreement. In the event that both party requests re-negotiation and no agreement can be
reached within 60 days after negotiations begin, the parties shall proceed to mediation with
each party paying one-half of the cost of mediation. The mediation shall be conducted by
a professional who maintains mediation as part of a regular professional practice or
business. Selection of the mediator shall be conducted by both parties first attempting to
agree upon a mediator and if that is unsuccessful the parties shall each submit the names
of two mediators which names shall be placed in a hat or other opaque container from
which the City Clerk shall select the mediator by drawing a name. Mediation must be
complete not later than 30 days after the mediator is selected unless the parties otherwise
agree.
C. 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.
D. 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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
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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.
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.
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 and Clubhouse
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 within the portion of the Clubhouse allocated for the
sole use of the Professional. 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 11of17
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.
H. Business financial information furnished to City by the Professional shall be confidential
and protected from disclosure as allowed under l.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 prior to end of the five ( 5) year term, 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 it
that such a material breach has occurred. The City is not required to take every criticism
or opinion from any person to it 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 m~tter 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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 12of17
3. For a second or subsequent alleged material breach the parties shall submit the issues
to non-binding arbitration. The mediator shall be a person upon whom the City and the
Professional can both agree and in the absence of agreement shall be selected at random
from a panel of independent neutral arbitrators selected by the City Attorney. The
arbitrator may be a retired judge, a practicing attorney, or an active or retired golf
professional. If the arbitrator finds no material breach, the matter shall be deemed final.
If, however, the arbitrator finds a material breach, the City shall 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 arbitrator,
the Professional shall select one arbitrator, and the two selected arbitrators shall select
a third arbitrator. 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 or as set by the panel of arbitrators.
5. The parties acknowledge the difficult position of the Professional in dealing with the
public and agree not to seek arbitration for matters which are not clearly material
breaches of the Agreement or which are not within the control 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 !s 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 or upon expiration of the term of this agreement and no replacement or
renewal of this agreement with the Professional, 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 13of17
items were either purchased as part of the Professional's initial buy in obligation or
purchased with the written approval of the City and identified as subject to buy out
upon termination by inclusion on Exhibit A or addenda thereto;
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
from the date of termination or expiration of the term of this agreement 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 or
expiration; 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. Unless otherwise agreed in writing by the Professional and the S~ccessor (or
City if applicable), 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 but the acceptance or rejection must be
for the entire list of items to be sold as a whole, or retained as a whole; 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 purchase the
inventory, fixtures, equipment, golf carts, and approved capital improvements
and the same shall be removed from the Golf Course within thirty (30) days
thereafter or at such other time as may be mutually agreed between the
Professional a.Ild the Successor (or City if applicable).
g. The Professional and Successor (or City if applicable) shall split evenly the cost
of the evaluators. . .
h. 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:
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 14of17
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 of Valley and Adams Counties.
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, 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". Provided, however, that for the purposes of this
covenant, private individual or small group golf instruction conducted personally by
the Professional shall not be considered "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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28, 2017 PAGE 15of17
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;
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.
DATEDthis /~ dayof ~/ '2017.
STATE OF IDAHO )
: SS
County of Valley )
On this _J5_ day of ~.sf , 2017, before me, the undersigned, a Notary Public in and for
said State, personally~eared 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 certificate first above written. ~ ............ ,,
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AGREEMENT FOR PROF~~LF SERVICES
November 28, 2017 · PAGE 16of17
DATEDthis £dayof ~sf' '2017.
ATTEST:
STATEOFIDAHO )
: SS
County of Valley )
CITY OF MCCALL
Valley County, Idaho
On this~ day of !Jwifdf, 2017, before me, the undersigned, a Notary Public in and for said
State, personally app~kie J. Aymon, 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.
, ........... . ,,,••'ii TAN ,,,,, i"~~<¢ ~ .... ()~~' .. ,. OTARY PUBL C FOR IDAHO
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AGREEMENT FOR PROFESSIONAL GOLF SERVICES
November 28 , 2017 PAGE 17of1 7
Exhibit 1 – Golf Pro Facility Premises
Pro Shop, Office, and Pro Storage: 1,088 Square Feet
Additional Golf Pro Storage Room (“East Storage Room”): 147 Square Feet
First Floor Storage Room, Locker Room, and Restrooms: 1,050 Square Feet
First Floor Golf Cart Storage and Office: 3,905 Square Feet