Loading...
HomeMy WebLinkAboutGates Park Golf Shop-3/14/2011GOLF COURSE PRO SHOP AG EMENT This Golf Course Pro Shop Agreement (the "Agreement") is made and entered into as of JVIQ.,%h, 12/l ( , by and between the City of Water oo, Iowa ("City") and Nate Lubs Golf, Inc., d/b/a Gates Park Golf Shop ("Golf Pro"). In consideration of the mutual promises exchanged herein, forth below. 1. DEFINITIONS. Whenever used in this Agreement, these to Commission: Director: Golf Course: Golf Season: Pro Shop: Waterloo Leisure Services Waterloo Leisure Services Gates Park Golf Course Opening day through offic calendar year by the Com Gates Park Golf Course Pr 2. TERM OF AGREEMENT. This term of this Agreement shal and continue until and including December 31, 2013, unless termi Agreement. Upon commencement of this Agreement, the previou shall be terminated and superseded by this Agreement. 3. INDEPENDENT CONTRACTOR STATUS. The parties he Golf Pro is an independent contractor and is not an employee, age Golf Pro has no power or authority to enter into contracts or age in this Agreement determined the work to be done by Golf Pro, bu means by which it performs the work specified. City is not respon withhold, FICA or taxes of any kind from any payments it may m Agreement. Neither Golf Pro nor any of its employees shall be en employees of City are entitled to receive and shall not be entitled t unemployment compensation, medical insurance, life insurance, p or nature whatsoever on account of their work for City. Golf Pro compensating its employees. 4. ALTERNATE USE OF GOLF COURSE. City, acting throu designate golf courses for uses other than golf in order to maximi community -wide service. With that in mind, the Director shall, w' calendar days' notice to Golf Pro, designate any event to occur on deems necessary or proper for the public benefit or as a communi 5. PAYMENT BY GOLF PRO. In addition to other payments Pro shall pay City the sum of Sixteen Thousand and 00/100 Dolla Golf Pro may make said payment in installments no more than tw event payment in full shall be made on or before December 31 ea City and Golf Pro agree as set s shall be defined as follows: ommission irector I closing as determined each ission Shop commence on January 1, 2011 ated sooner pursuant to this agreement between the parties eby acknowledge and agree that t, partner, or joint venturer of City. ments on behalf of City. City has Golf Pro shall determine the legal ible for withholding, and shall not ke to Golf Pro under this itled to receive any benefits that workers compensation, nsion, or any benefits of any type hall be solely responsible for h the Director, retains the right to benefits to the public and provide h a minimum of fourteen (14) he Golf Course that the Director -wide service. s set forth in the Agreement, Golf s ($16,000) each calendar year. lye (12) times per year, and in any year. 6. CONCESSIONS AND SERVICES. A. Golf Pro shall be responsible for providing the ge Golf Course during the Golf Season. "Concessions" shall include beverages, riding cart rentals, services, and merchandise. B. Golf Pro shall retain all income from sale of Conc from the rental of lockers. C. Golf Pro must demonstrate and possess the ability the Pro Shop and to fulfill all duties of Golf Pro as set forth in this Pro shall annually (on or before July 1 of each year) deliver the fo to City: 1. A verified or certified financial statement that has the ability to pay all debts as they come du 2. In lieu of the statement required by paragraph Pro's primary lender setting forth the existenc that Golf Pro has with such lender and verifyi making all payments to the lender pursuant to borrowing arrangements between them. City may, at any time and from time to time, revie they relate to Golf Pro's operations relating to the Golf Course. S expense. Golf Pro shall fully cooperate in such review. 7. COLLECTION OF GOLF FEES. City shall retain all reven season tickets, except as otherwise provided in this Agreement. G fees, season ticket fees, and miscellaneous revenue as required by all procedures set by the Director or the Director's designee for th for recordkeeping. 8. INCENTIVE PAYMENTS. City agrees to make to Golf Pro in this Section 8. For purposes of this Section, the "18 -Hole Base rounds charged and collected in 2008, the "9 -Hole Base" is the nu charged and collected in 2008, and the "Four Year Average" is th 18 -hole, as applicable, daily fee rounds charged and collected in t preceding the year in which an incentive payment is to be made. by City within 45 days after the last day of each Golf Season. 18 -Hole Incentive. The incentive payment shall be an am daily fee round charged and collected in excess of the 18 -Hole Ba 18 -hole daily fee rounds charged and collected. For each 18 -hole collected in excess of such Four Year Average, the incentive pay $2.00 for each such round. ral public with concession at the ut not be limited to food, ssions and golfing lessons and nd financial solvency to operate Agreement. Toward this end, Golf lowing documents or information hows Golf Pro is not insolvent and , a written statement from Golf and amount of any line of credit g that Golf Pro is current on uch line of credit and other Golf Pro's financial records as ch review shall be at City's sole e from green fees and the sale of if Pro shall collect daily green he Director. Golf Pro shall follow collection and remittal of fees and he incentive payments provided for ' is the number of 18 -hole daily fee ber of 9 -hole daily fee rounds average of the number of 9 -hole or e four calendar years immediately 11 incentive payments shall be paid 11) unt equal to $1.00 for each 18 -hole e, up to the Four Year Average for aily fee round charged and ent shall be an amount equal to 9 -Hole Incentive. The incentive payment shall be an amo nt equal to $0.50 for each 9 -hole daily fee round charged and collected in excess of the 9 -Hole Bas; , up to the Four Year Average for 2 9 -hole daily fee rounds charged and collected. For each 9 -hole da in excess of such Four Year Average, the incentive payment shall each such round. Special Promotions Incentive. In addition to the above inc or Director's designee may agree on terms for other incentives fro 9. RESPONSIBILITIES OF THE CITY. In connection with t will be responsible for the following: A. Provide Golf Pro with such areas as are now exist used for the purpose of providing Concessions and services. City decrease the size of, or to alter any part of, the Pro Shop building. B. Make all ordinary or reasonable structural repairs upkeep of the Pro Shop building. C. Furnish tables, chairs, counters, and supplies, such and any other furnishings as it deems necessary. City will also fu restroom cleaning supplies. D. Provide the garbage pick up from outdoor recepta Pro Shop building. E. Provide Golf Pro with the use of a storage buildin Golf Course. F. Waive greens fees for two (2) tournaments sponso season. Golf Pro must request prior approval of these tournament qualify for a waiver, at least one of the tournaments must not be a during any of the previous three (3) golf seasons. G. Golf Pro shall have first right to salvage all lost go within the boundaries of the Golf Course, and upon salvage all su Golf Pro. 10. RESPONSIBILITIES OF GOLF PRO. A. The parties acknowledge that Nathaniel Lubs ("L principal of Golf Pro. The personal services that Lubs will provid Golf Course are a material inducement for City to enter this Age: acknowledge that, without the services to be provided by Lubs he Agreement with Golf Pro. Golf Pro agrees that it shall, at all time continue to employ Lubs as a key employee and officer of Golf P ceases to be an active employee of Golf Pro for any reason, or if interest in Golf Pro, then City may choose to terminate this Agree below. 3 ly fee round charged and collected e an amount equal to $1.00 for ntives, Golf Pro and the Director time to time. e operation of the Pro Shop, City g in the Pro Shop building to be eserves the right to increase or equired for maintenance and as scorecards, pencils, light bulbs, ish toilet paper and necessary les to be provided by City at the for motorized golf carts at the ed by the Golf Pro during each from City's Golf Manager. To epeat of a tournament conducted f balls from any body of water h balls shall be the sole property of . s") is a key employee and in operation of the Pro Shop and ent with Golf Pro, and the parties eunder, City would not enter this during the term of this Agreement, • . In light of the foregoing, if Lubs ubs ceases to own a controlling ent as set forth in Section 16 B. Golf Pro shall keep accurate accounts of ticket sal: conscientious and efficient service to the general public. Golf Pro to the Director at the beginning of each Golf Season and shall sup when employee changes are made. All such employees shall be hi discretion. Golf Pro agrees to make all decisions regarding the hir compliance with State and Federal laws requiring equal opportuni discrimination, segregation, or regard to an applicant's or employe origin, sex, age, handicap, or disability. C. Golf Pro shall keep the Pro Shop facility open and by the Director. Golf Pro shall, at the beginning of each Golf Sea changes are proposed, provide the Director with a schedule of pro be open. D. Golf Pro shall make no alterations, affixations, or Shop building or furnishings without first obtaining written appro E. Golf Pro shall be responsible for the operation, ca facilities and restrooms in the Pro Shop building. Golf Pro shall b necessary cleaning supplies for all areas of the Pro Shop, except f F. Golf Pro shall be responsible for keeping the imm free of litter and debris. G. Golf Pro shall be responsible for providing and m. to operate a food and beverage concession and for providing the o required to furnish pursuant to this Agreement. H. Golf Pro shall be responsible for providing and m each golf season from March through November, the minimum n the term of this Agreement shall be no less than thirty-six (36). I. Lubs shall be permitted reasonable time to particip professional activities, including schools and seminars which are Golf Pro's professional status. J. Golf Pro shall have the exclusive right to give gol Pro shall be solely responsible to set and collect fees for lessons. and high-level golf instruction for all groups and levels of players. that a solid developmental junior program is of the highest priori every effort to ensure the success of a junior program. However, school and college coaches to give instruction to their team memb authorized and scheduled by Commission staff. 4 s and deposits, and assure shall provide a list of its employees lement such list anytime thereafter ed and terminated at Golf Pro's ng or termination of employees in in employment without 's race, color, religion, national in operation during hours approved on, and thereafter when any osed hours when the Pro Shop will epairs to any part of the Pro al of the Director. and cleaning of locker room responsible for providing r the restrooms. diate area outside the Pro Shop intaining all equipment necessary her services that Golf Pro is intaining all golf carts. During ber of operable golf carts during to in golf tournaments and other ecessary to maintain and improve lessons at the Golf Course. Golf olf Pro shall provide competent Golf Pro understands and agrees to City, and to that end shall make olf Pro shall allow area high rs during team practices as K. Golf Pro shall be responsible to comply, and to op rate the Golf Course and Pro Shop in a manner that complies, with all applicable laws, rules, regulati s ns and orders of federal, state or local governing authority. 11. UTILITIES. A. Golf Pro will pay City twenty-five percent (25%) but not limited to heat, lights, water, and local telephone service at March through November, and thirty-seven and one-half percent ( months of December through February. City shall invoice Golf P Pro shall remit payment to City within fourteen (14) days. B. Golf Pro shall be responsible for long distance cal Pro Shop. Golf Pro may obtain expanded cable television service be responsible to pay for all inspection services provided by City. f all costs for utilities, including the Pro Shop during the months of 7.5%) of all such costs during the monthly for such costs, and Golf C. Golf Pro shall pay for all gasoline and/or electrical charge golf carts. Gasoline will be available through the Golf Co billed to Golf Pro on a monthly basis through the Commission of ten (10) days after mailing or delivery of the bill. Electrical servic through the Commission's local utility account (currently with Mi electrical service charges will be due ten (10) days from mailing o D. Golf Pro acknowledges that it has been fully appri Agreement with MidAmerican Energy, and Golf Pro agrees that i MidAmerican to keep Pro Shop energy efficient and consistent wi Golf Pro fails to cooperate with this provision, Golf Pro shall be s charges for utilities identified in paragraph A above. 12. INSURANCE AND BONDS. A. City will provide public liability, property damage Pro Shop structure through its policies. B. Golf Pro shall, at its own expense, procure and m the requirements of the Iowa worker's compensation laws. Golf proof of coverage at the beginning of each Golf Season. C. Golf Pro shall, at its own expense, procure and m insurance with one or more responsible companies that are author Iowa, in the annual aggregate amount of not less than Five Millio beginning of each Golf Season, Golf Pro shall provide the Directo with proof of such insurance coverage. made on by it or its staff at the t its own expense. Golf Pro shall service necessary to operate and/or rse maintenance shop pumps and ce. Payment for gasoline will be charges will be billed to Golf Pro American Energy). Payment of delivery to Golf Pro. ed of City's Energy Audit will fully cooperate with City and h City's Energy Audit Program. If lely responsible to pay for all and fire insurance coverages on the ntain insurance sufficient to meet ro shall provide the Director with intain casualty and liability zed to do business in the State of Dollars ($5,000,000.00). At the and City's insurance coordinator D. The Commission and City shall be named as addit policies Golf Pro is required to maintain pursuant to this Section 1 indemnify, defend, and hold harmless the Commission and City 5 onal insureds on the insurance 2. Furthermore, Golf Pro agrees to m and against (1) all claim, demand, cause of action, or damages of any type or nature relating bodily injury to or death of any person or persons, or any and all d by any act, omission, neglect, or wrong -doing of Golf Pro and/or i claim, demand, cause of action, or damages of any type or nature r existence of this Agreement, other than any claim, demand, cause hereto may have against the other for breach of the terms of this A insurance policies shall not be canceled or otherwise altered in an days' written notice delivered to the Director. E. Golf Pro shall, at its own expense, procure and ma minimum amount of $25,000 covering any loss or misuse of Golf fraudulent or dishonest act on the part of Golf Pro and any of its e the Director with proof of same at the beginning of each Golf Sea 13. SUPERVISION AND COOPERATION. to or arising from any and all mage to any property, occasioned s employees and/or (2) any and all lating to or arising from the f action, or damages that one party eement. The above-described way without at least thirty (30) ntain a fidelity bond in the ourse monies due to any ployees. Golf Pro shall provide on. A. Golf Pro shall work with the Director or the Direc or's designee to promote and provide the most efficient service for the golfers of the communi B. Golf Pro shall work with the Director or the Direc quality Pro Shop services, Concessions, merchandise, and marketi 14. PERFORMANCE REVIEW AND TERMINATION. Ci Course and other courses under its ownership is to provide high q to the general public and to provide value to taxpayers. To achiev cooperate with City in good faith for evaluation and review of all operations. Each calendar year during the term of this Agreement exercisable without cause or reason, to terminate this Agreement party no later than October 31 of the intent to terminate the Agree 31. 15. DISPUTE RESOLUTION. In the event either party claims have been breached by the other party, as an alternative to termin in Section 14 above, the party may request a conference by delive party. The written notice shall detail the violations alleged. A co Golf Pro will be arranged within ten (10) days of the date of notic may consent to in writing, and the parties shall in good faith make amicable solution. If the parties do not reach a mutually satisfact may exercise any remedies available to them under this Agreemen 16. TERMINATION FOR CAUSE. or's designee to provide the highest g. 's objective with respect to the Golf ality golfing facilities and services this end, Golf Pro agrees to spects of Golf Course facilities and either party shall have the right, y giving written notice to the other ent as of the following December hat provisions of this Agreement ion of this Agreement as set forth ing written notice to the other ference between the Director and , or such later date as the parties every reasonable effort to reach an resolution of the dispute, they and/or applicable law. A. In addition to the election to terminate this Agree ent as provided in Section 14 above, this Agreement may be terminated for cause by the Direct following events (each an "Event of Default"): 6 upon the occurrence of any of the 1. Death or incapacitating physical or mental from employment by Golf Pro, or his sale issued and outstanding ownership interest 2. Dishonesty or other conduct detrimental ti Commission or City by Golf Pro or its pri 3. Continuing inattention to or neglect of dut officers. 4. Insolvency or bankruptcy of Golf Pro. 5. Illegal conduct of Golf Pro or its principal 6. Golf Pro's failure to deliver the document 7. Failure of Golf Pro to maintain the insura 12 above. 8. Golf Pro's violation of state or local alcoh including but not limited to laws restrictin legal age. 9. The breach by Golf Pro of any other mate Termination may be immediate or upon advance notice, in the soli of any default shall not constitute or be construed as a waiver of a Director shall not be deemed to have waived the right to terminate until ninety (90) days have elapsed after the occurrence of such E B. Upon termination of the Agreement under this sec (30) days, surrender to City possession of all buildings and furnis subject to ordinary wear and tear. Within said period, Golf Pro sh belonging to it, or its affiliates, agents or permittees. Any persona persons that remains upon the premises after said 30 -day period s become the property of City, and City may use, retain or dispose • deems fit without incurring liability therefor to Golf Pro or any of 17. TRANSFER OR ASSIGNMENT. Golf Pro shall not transf sublet the privileges or premises without the prior written consent binding upon and inure to the benefit of the parties and the respec successors, and assigns of each. 18. NO LEASE. The parties acknowledge and agree that this A by Golf Pro of the Pro Shop, Golf Course, or any other real prope Agreement to be construed as a lease or rental agreement. The ri are personal and contractual in nature. 19. NO JOINT VENTURE. Nothing in this Agreement shall, o create or constitute any joint venture, partnership, agency, employ between the parties nor to create any liability for one party with re of the other party or any other person. 20. GENERAL. This Agreement represents the entire agreemen the subject matter hereof, superseding all prior or other agreemen 7 disability of Lubs, his termination f a controlling interest of the of Golf Pro. the best interests of the cipal officers. es by Golf Pro or its principal officers. required under Section 6.0 above. e or bonds required under Section 1 licensing and control laws, sales of alcohol to persons under al term of this Agreement. discretion of the Director. Waiver y other or subsequent default. for any given Event of Default ent of Default. ion, Golf Pro shall, within thirty ings in reasonable condition, 11 remove all personal property property of Golf Pro or other all be deemed abandoned and shall f said property in any manner it er person. r or assign this Agreement or of City. This Agreement shall be ive personal representatives, reement does not constitute a lease owned by City, nor is this is granted to Golf Pro hereunder shall be deemed or construed to, ent, or any other relationship pect to the liabilities or obligations between the parties with respect to or understandings relating thereto. This Agreement may not be modified except by the mutual writte consent of both parties. Time is of the essence in the performance of the terms of this Agreement. IN WITNESS WHEREOF, the parties have entered into t is Golf Course Pro Shop Agreement by their duly authorized representatives as of the date first set forth above. CITY OF WATERLOO, IOWA By: Dt. t t Mayor tAk-Djr Suzy Scha es, City Clerk Attest. - 8 NATE LU : S GOLF, INC. By: ;/ �,.;� - Nathan el L. Lubs, President STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) Acknowledged before me on ' _/ 7 — / / President of Nate Lubs Golf, Inc. STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) Acknowledged before me on rl', Notary Public Schares, as Mayer and City Clerk, respectively, of the City of , by Nathaniel L. Lubs, as JEANE DIEHL COMMISSION NO. 733174 MY COMMISSION EXPIRES by k and Suzy aterloo, Iowa. 9 72\064got - v>