HomeMy Public PortalAbout2007.10.25 Signed Contract for Allan MorrisonMcCALL MUNICIPAL GOLF COURSE
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
THIS AGREEMENT, made and entered into this ), day of October, 2007, 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 906 Bay Colt, 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, 2012, 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 1 of 20
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 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. 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: (1) any and all information
necessary to perform an audit, including payroll data; and (2) profit and
loss infoiiiiation for Restaurant operations. The City Treasurer has
authority to require additional data and to establish the form in which the
data must be submitted.
9. 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;
10. City Treasurer: The Treasurer of the City of McCall, as appointed by the
McCall City Manager, pursuant to McCall City Code § 1-9-9;
11. 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
corning 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 2 of 20
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.
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.
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, and the City's portion of
Restaurant income.
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.
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 including daily fees, seasonal
pass fees, trail fees, locker fees and fees, if any established for City -owned
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 3 of 20
public cart storage. All fees, excluding applicable sales tax, shall be
remitted to the City or its designee the first business day following receipt.
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 in conformity with the regulations adopted by the City during the
Season as determined 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 not less than 750
hours for the Season as required to enforce golf course rules and
regulations; provided, however, the City reserves the right to assume
directly the responsibility for employment and supervision of the
marshals; in such event, the management fee 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
e) Trail Fees
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 4 of 20
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 Ball
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; no greens fees are chargeable for these approved
tournaments, provided that a surcharge may be required by the City of
each participant in the amount of $10.00 per tournament round, which
includes sales tax, to a maximum of $20 per player per event. No
surcharge will be charged for participants in the Junior Amateur. 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. All 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. 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.
4. The Professional shall cooperate with the conduct of the McCall Amateur
"Calcutta."
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October 11, 2007 PAGE 5 of 20
5. 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.
6. 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.
7. 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 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 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 6 of 20
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;
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 deteicuine 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;
g) To comply with all terms of the Special Use (Conditional Use)
Permit for the golf clubhouse, insofar as 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 AM until 7:00 PM. 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 -
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 7 of 20
j)
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 its discretion close the Restaurant. The
Professional shall obtain at its own expense any menus not on site;
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 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 budget figure is
$2,500.00, 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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 8 of 20
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 5th;
operating hours prior to June 1 and subsequent to September 5th 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. Responsibility for
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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 9 of 20
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.
E. Maintenance
1. The Professional shall be responsible for routine cleaning of the areas for
which the Professional has facility responsibility 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 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 10 of 20
g)
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 cleaning of
restrooms, storage and locker areas.
c) Grounds: The Professional shall police daily or as necessary the
Clubhouse grounds, putting green, parking lot and practice range
tee area, collecting and disposing of any litter accumulation.
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. The exhaust hood system and the
fire suppression system are the City's responsibility.
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, normal wear and tear excluded. The facility shall
acquire and maintain at an A rating upon any inspection by
authorized governmental agencies.
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 otherwise required, including electrical, plumbing and any structural
matters, upkeep of landscaping, turf conditions and paving.
V. FEES:
A. Compensation
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 11 of 20
1. Fixed fee compensation. In consideration of the professional services
being rendered and utilities being paid, as well as the management,
operation and maintenance of the City facilities as set forth in this
Agreement, the Professional shall receive an annual management fee of
Zero dollars.
2. The City shall advance the Professional $150,000 to operate the
Restaurant. This advance shall be paid in equal amounts every 2nd and 4th
Friday according to the following monthly schedule: February $10,000,
March $10,000, April $10,000, May $30,000, June $30,000, July $30,000,
August $10,000, September $10,000 and October $10,000. The advance
shall be repaid by 100% of restaurant receipts up to the $150,000.
Payment is contingent on the Professional providing the reports required
under this agreement. Compensation is based on the calendar year.
3. Bonus Compensation — Restaurant. In the event total revenues from the
Clubhouse rents and Restaurant sales exceed $150,000, the Professional
and the City shall split the excess revenues on a basis of 10% to the City,
90% to the Professional for amounts between $150,000 and $209,999.
Clubhouse and Restaurant revenues at or above $210,000 shall be split 5%
to the City and 95% to the Professional.
4. Bonus Compensation — Golf Operations. In the event that golf operations
revenue (i.e. greens fees, season passes, trail fees, and locker rentals)
exceed $500,000 and Clubhouse rents and Restaurant sales exceed
$175,000, the Professional and the City shall split the excess golf
operation revenue on a basis of 92% to the City and 8% to the
Professional. If golf operations revenue exceeds $530,000 and restaurant
sales exceed $175,000, the Professional and the City shall split the golf
operation revenue above $530,000 on a basis of 80% the City and 20% to
the Professional. The Professional will be granted, upon written request,
early payment of restaurant advance, in an amount equal to 90% of actual
restaurant sales.
B. 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. The annual fixed fee schedule for the balance of the
term following the completion of the first year's operation, may be renegotiated to
a maximum adjustment of 5% up or down.
C. 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 discounts, for green fees, season passes, trail fees, locker rentals, refunds and
reimbursements, restaurant sales, alcoholic beverage sales, clubhouse rental, and
approved tournament round surcharge. The Professional shall provide supporting
documentation as determined by the City with all payments made.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 12 of 20
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.
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.
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.
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 painting, draperies and floor coverings
with prior written approval of the City Manager. The actual cost 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 13 of 20
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.
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.
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.
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
teiiiis:
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 14 of 20
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, drunkenness on the job, or gross failure
to perform according to the terms of this Agreement.
2. Should the City 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 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 teiniinate 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 teiiiiination shall be submitted
in writing to the Professional at least 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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 15 of 20
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 restaurant advance account must be made to balance with
receipts paid to the City. If the City has advanced more to the Professional than he
has paid them with receipts, then he must pay the City the difference. If the
Professional has paid into the City more than the city has advanced, the City must
pay the Professional the difference.
F. 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 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 90 days 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 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 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
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 16 of 20
c) The third party evaluator(s) shall have 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 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 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 peiiiiitted], 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";
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 17 of 20
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 two (2) years from the date of the termination of this Agreement (the
"Covenant Tenn"), 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. The
Covenant shall terminate (i) upon the expiration of the Covenant Term; (ii) if and
to the extent that the protected Business shall be abandoned without sale or
transfer to a successor or assign; or (iii) upon the mutual written agreement of
City, on the one hand, and the Professional, on the other hand.
C. 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.
D. Effectiveness of Agreement. The parties agree that this Agreement shall not be
effective or binding between the parties until the Execution Date.
E. Remedies. The Professional (i) acknowledges that this Covenant is an integral
part of, and a condition to the obligations of City under this Agreement, (ii)
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, (iii) 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 (iv)
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.
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 18 of 20
X. EXECUTION:
This Agreement is executed for the City by the Council President, attested to by the City
Clerk, with the imprinted seal of the City and executed by Allan Morrison, the
Professional.
DATED this 6.---day of October, 2007.
Allan Morrison
DATED this c; day of October, 2007.
ATTEST:
1/CA:611
Fred Qu
CITY OF MCCALL
Valle County, Idaho
Don Bailey, Council President
K, CC veAvt,
oti, Cad,
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 PAGE 19 of 20
STATE OF IDAHO )
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County of Valley )
On this day of October, 2007, 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 eitt c�°4eiefi �,, first above written.
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STATE OF IDAHO )
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County of Valley )
NOTARY PU$�LIC FOR IDAHO
Residing at f 7/1c idi
My Commission Expires: 11. ,2/
On this day of October, 2007, before me, the undersigned, a Notary Public in and
for said State, personally appeared Don Bailey, Council President 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.
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NOTARY PUBLIC ODAHO
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My Commission Expires: /0.2 1 /
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007
PAGE 20 of 20
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
EXHIBIT A
RESTAURANT INVENTORY
ITEM QUANTITY VALUE TOTAL
ASSORTED PLATES AND BOWLS 1 600 600
ASSORTED SILVERWARE 1 800 800
DOUBLE DOOR FREEZER 1 • 2500 2500
LIQUOR STORAGE RACK 1 200 200
BUSS TUBS 4 20 80
DOUBLE STEAM TABLE 1 300 300
WINE/WATTER/BAR GLASSES 1 800 800
POTS/PANS/UTENSILS 1 1000 1000
WOODEN TRAY CADDY 1 75 75
BAR TRAYS 5 10 50
WAFFLE IRON 1 60 60
COFFEE MAKER (SHACK) 1 50 50
MICROWAVE OVEN (SHACK) 1 150 150
SERVING CARTS 3 125 375
4 FOOT PLASTIC TABLES 5 50 250
8 FOOT PLASTIC TABLES 15 100 1500
LIFETIME PLASTIC CHAIRS 77 • 25 1925
MOP BUCKET 1 100 100
VISA MACHINE 1 600 600
PORTABLE BAR 1 800 800
CANDY RACK/CHIP HANGERS 3 15 45
CHAFFING DISHES 10 80 800
COOKIE SHEETS 13 5 65
TELEVISOINS 3 150 450
SAMSUNG BIG SCREEN T V 1 3000 3000
CASH REGISTERS 2 200 400
CUTTING BOARDS 6 15 90
PEPER MILL 1 45 45
PLASTIC SERVING BASKETS 125 1 125
4 SLICE TOASTER 2 200 400
FOOD PROCESSOR 1 150 150
KITCHEN AID MIXER 1 600 600
SMALL BEER COOLERS 20 10 200
LARGE COOLERS 5 • 35 175
PELLET BAR-B-QUE 2 1500 3000
CHRISTMAS VILLAGE 1 600 600
ST. NICK/CHRISTMAS DECORATIONS 1 450 450
THANKSGIVING DECORATIONS 1 100 100
DELI MEAT SLICER 2 600 1200
DUTCH OVEN ROASTERS 3 100 300
UPRIGHT FREEZER 2 600 1200
UPRIGHT FREEZER/FRIDGE 2 400 800
SALAD BAR/SERVING STATION 1 800 800
SERVING TRAYS CHROME + PLASTIC 10 10 100
BOOSTER CHAIRS 2 20 40
SOUPCROOK 1 200 200.
AIR POTS COFFEE 3 25 75
MENU HOLDERS 50 1 50
27675
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 EXHIBIT A PAGE 1 of 4
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
EXHIBIT A
PRO SHOP INVENTORY
ITEM
QUANTITY VALUE TOTAL
SECURITY CAMERA SYSTEM 1 125 125
FLOOR SAFE 1 800 800
OFFICE DESK, AND CABINETS 1 2000 2000
COPY MACHINE 1 500 500
POINT OF SALE SYSTEM 1 30,000 30000
CABINETS 4 500 500
KITCHEN DESK 1 150 150
2 WAY RADIOS 6 75 450
CHECK IN COUNTER 1 600 600
RANGE TOKENS 800 0.85 680
RANGE BALLS 30,000 0.4 12000
RANGE SHACK 1 2000 2000
RANGE BALL PICKER 1 1800 1800
RANGE MATS 15 250 3750
RANGE SHAG BAGS 10 35 350
RANGE BALL BASKETS 60 6 360
LARGE RANGE BALL BASKETS 10 20 200
BALL WASHER RED 1 350 350
BALL WASHER GREY 1 600 600
POWER WASHER 1 500 500
AIR COMPRESSOR 2 250 500
PULL CARTS 32 50 1600
RENTAL SETS 30 200 6000
MERCHANDISE FIXTURES 1 1500 1500
4 CAMERAS, MONITOR, VIDEO 1 800 800
RANGE BALL TOKEN DISPENSER 1 3500 3500
PORTABLE AIR TANK 1 100 100
SHOP VAC 2 100 200
SMALL FLOOR JACK 1 75 75
CLUB GRIPPING STATION 1 100 100
6-12 VOLT BATTERY CHARGER 1 300 300
GAS CANS 2 15 30
PORTABLE AIR BLOWER 1 100 100
MECHANIC ROLLER STOOL 1 50 50
DISTILLED WATER STATION 1 300 300
CARPET STEAM CLEANER 1 300 300
ASSORTED TOOLS AND PARTS 1 1000 1000
VACUUMS 7 125 875
PLASTIC STORAGE BINS 7 25 175
HANDYMAN JACK 1 100 100
2001 CLUB CAR ELECTRIC 25 1600 40000
1994 E-Z GO ELECTRIC 18 800 14400
1996 CLUB CAR GAS 10 1000 10000
2000 YAMAHA GAS 1 1100 1100
1999 CLUB CAR ELECTRIC 15 1200 18000
2000 CLUB CAR ELECTRIC 15 1400 21000
2002 CLUB CAR ELECTRIC 2 2000 4000
E-Z GO UTILITY WITH CAGE 1 2500 2500
CLUB CAR UTILITY WITH CAGE 1 9000 9000
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 EXHIBIT A PAGE 2 of 4
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
EXHIBIT A
1997 E-Z GO WITH COVER 1 1200 1200
CLUB CAR (EAST) 1 1200 1200
BEVERAGE CARTS 2 10000 20000
NETTING NORTH END OF DRIVING RANGE 1 4500 4500
CREDIT CARD MACHINE 1 800 800
223020
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 EXHIBIT A PAGE 3 of 4
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
EXHIBIT A
Inventory Valuation Summary
Dept # Department
7 Accessories
20 Bags
17 Balls
99 Bar-B-Que
22 COMBO SET
18 Gloves
73 Grips
19 Hats, Caps & Visors
24 Irons
29 Ladies Wear
27 Mens Wear
21 Pull Carts Retail
25 Putters
28 Shoes
26 Wedges
23 Woods
Printed: 10/24/2007 10:54:18 AM
Qty in Stock
867
12
264
21
15
328
219
135
28
150
400
2
20
80
14
77
Value
$4, 643.76
$1,013.00
$1,428.14
$210.00
$1,987.50
$2,476.71
$849.15
$1,378.59
$2,518.00
$3,481.85
$7,637.43
$286.00
$1,212.64
$3,768.57
$444.65
$8,037.21
Sold Value
$8,338.11
$1,499.88
$2,162.95
$399.00
$2,449.00
$4, 346.50
$1,704.95
$2,719.60
$4,729.70
$5,748.10
$16,389.73
$442.94
$1,852.80
$6,895.40
$732.94
$12,404.85
Note: these totals do not include any Inventory Items with Qty in Stock < 1
Page 1
A Szen Corp Repot
AGREEMENT FOR PROFESSIONAL GOLF SERVICES
October 11, 2007 EXHIBIT A PAGE 4 of 4