HomeMy WebLinkAboutML Golf Inc. - Golf Course Pro Shop Agmnt - 12/17/2018 GOLF COURSE PRO SHOP AGREEMENT
This Golf Course Pro Shop Agreement (the "Agreement") is made and entered into as of
r�►ier 19, 20 V3 , by and between the City of Waterloo,Iowa("City") and ML Golf,
Inc. ("Golf Pro"). In consideration of the mutual promises exchanged herein, City and Golf Pro
agree as set forth below.
1. DEFINITIONS. Whenever used in this Agreement, these terms shall be defined as follows:
Commission: Waterloo Leisure Services Commission
Director: Waterloo Leisure Services Director
Golf Courses: Gates Park Golf Course, Iry Warren Memorial Golf Course,
and South Hills Golf Course
Golf Season: Opening day through official closing as determined each
calendar year by the Commission
Pro Shops: The pro shop at each of the Golf Courses
2. TERM OF AGREEMENT. This term of this Agreement shall commence on January 1,
2019, and continue until and including December 31, 2023, unless sooner terminated pursuant to
this Agreement.
3. INDEPENDENT CONTRACTOR STATUS. The parties hereby acknowledge and agree
that Golf Pro is an independent contractor and is not an employee, agent, partner, or joint
venturer of City. Golf Pro has no power or authority to enter into contracts or agreements on
behalf of City. City has in this Agreement determined the work to be done by Golf Pro, but Golf
Pro shall determine the legal means by which it performs the work specified. City is not
responsible for withholding, and shall not withhold, FICA or taxes of any kind from any
payments it may make to Golf Pro under this Agreement. Neither Golf Pro nor any of its
employees shall be entitled to receive any benefits that employees of City are entitled to receive
and shall not be entitled to workers compensation, unemployment compensation, medical
insurance, life insurance, pension, or any benefits of any type or nature whatsoever on account of
their work for City. Golf Pro shall be solely responsible for compensating its employees.
4. ALTERNATE USE OF GOLF COURSE. City, acting through the Director, retains the
right to designate any Golf Course for uses other than golf in order to maximize benefits to the
public and provide community-wide service. With that in mind, the Director shall, with a
minimum of fourteen (14) calendar days' notice to Golf Pro, designate any event to occur on a
Golf Course that the Director deems necessary or proper for the public benefit or as a
community-wide service.
5. PAYMENT BY GOLF PRO. In addition to other payments as set forth in the Agreement,
Golf Pro shall pay City an annual sum as set forth below for each year during the term hereof:
2019 $57,000
2020 $57,000
2021 $60,000
2022 $63,000
2023 $66,000
Golf Pro may make said payment in installments no more than twelve (12)times per year, and in
any event payment in full for a given calendar year shall be made on or before December 31 of
that year.
6. CONCESSIONS AND SERVICES.
A. Golf Pro shall be responsible for providing the general public with Concessions at
the Golf Courses during the Golf Season. "Concessions" shall include but not be limited to food,
beverages, riding cart rentals, services, and merchandise.
B. Golf Pro shall retain all income from sale of Concessions and golfing lessons and
from the rental of lockers.
C. Golf Pro must demonstrate and possess the ability and financial solvency to
operate the Pro Shops and to fulfill all duties of Golf Pro as set forth in this Agreement. Toward
this end, Golf Pro shall annually(on or before July 1 of each year) deliver the following
documents or information to City:
1. A verified or certified financial statement that shows Golf Pro is not insolvent
and has the ability to pay all debts as they come due.
2. In lieu of the statement required by paragraph 1, a written statement from Golf
Pro's primary lender setting forth the existence and amount of any line of
credit that Golf Pro has with such lender and verifying that Golf Pro is current
on making all payments to the lender pursuant to such line of credit and other
borrowing arrangements between them.
City may, at any time and from time to time,review Golf Pro's financial records
as they relate to Golf Pro's operations relating to the Golf Courses. Such review shall be at
City's sole expense. Golf Pro shall fully cooperate in such review.
7. COLLECTION OF GOLF FEES. City shall retain all revenue from green fees and the sale
of season tickets, except as otherwise provided in this Agreement. Golf Pro shall collect daily
green fees, season ticket fees, and miscellaneous revenue as required by the Director. Golf Pro
shall follow all procedures set by the Director or the Director's designee for the collection and
remittal of fees and for recordkeeping.
8. INCENTIVE PAYMENTS. City agrees to make to Golf Pro the incentive payments
provided for in this Section 8. For purposes of this Section,the "Four-Year Average" is the
average of the number of regular 9-hole, regular 18-hole, or Monday/Tuesday/Wednesday half-
price special, as applicable, daily fee rounds charged and collected for all Golf Courses in the
four calendar years immediately preceding the year in which an incentive payment is to be made.
All incentive payments shall be paid by City within 45 days after the last day of each Golf
Season.
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18-Hole Incentive. The incentive payment shall be an amount equal to $1.00 for each 18-
hole daily fee round charged and collected for all Golf Courses in excess of the Four-Year
Average for 18-hole daily fee rounds charged and collected for all Golf Courses.
9-Hole Incentive. The incentive payment shall be an amount equal to $0.50 for each 9-
hole daily fee round charged and collected for all Golf Courses in excess of the Four-Year
Average for 9-hole daily fee rounds charged and collected for all Golf Courses.
Monday/Tuesday/Wednesday Incentive. The incentive payment shall be an amount equal
to $.25 for each Monday/Tuesday/Wednesday special round charged and collected for all Golf
Courses in excess of the Four-Year Average for such rounds charged and collected for all Golf
Courses.
Special Promotions Incentive. In addition to the above incentives, Golf Pro and the
Director or Director's designee may agree on terms for other incentives from time to time.
9. RESPONSIBILITIES OF CITY. In connection with the operation of the Pro Shop, City
will be responsible for the following:
A. Provide Golf Pro with such areas as are now existing in the Pro Shop buildings to
be used for the purpose of providing Concessions and services. City reserves the right to
increase or decrease the size of, or to alter any part of, the Pro Shop buildings.
B. Make all ordinary or reasonable structural repairs required for maintenance and
upkeep of the Pro Shop buildings.
C. Furnish tables, chairs, counters, and supplies, such as scorecards, pencils, light
bulbs, and any other furnishings as it deems necessary. City will also furnish toilet paper and
necessary restroom cleaning supplies.
D. Provide Golf Pro with the use of a storage building for motorized golf carts at
each Golf Course.
E. Golf Pro shall have first right to salvage and take ownership of all lost golf balls
from any body of water within the boundaries of a Golf Course.
F. Regularly pick up garbage that Golf Pro places in an approved receptacle.
10. RESPONSIBILITIES OF GOLF PRO.
A. The parties acknowledge that Nate Lubs and Monte Meyer("Pro Principals") are
key employees and principals of Golf Pro. The personal services that each Pro Principal will
provide in operation of the Pro Shops and Golf Courses are a material inducement for City to
enter this Agreement with Golf Pro, and the parties acknowledge that, without the services to be
provided by each Pro Principal hereunder, City would not enter this Agreement with Golf Pro.
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Golf Pro agrees that it shall, at all times during the term of this Agreement, continue to employ
each Pro Principal as a key employee and officer of Golf Pro. In light of the foregoing, if either
Pro Principal ceases to be an active employee of Golf Pro for any reason, or if either Pro
Principal ceases to own a controlling interest in Golf Pro, then City and Golf Pro shall
immediately and in good faith negotiate appropriate modifications to the terms of this Agreement
with the objective of protecting the interests of City in efficient and quality operation of the Golf
Courses and Pro Shops and the interest of Golf Pro in continuing to provide the services
contemplated by this Agreement.
B. Golf Pro shall keep accurate accounts of ticket sales and deposits, and assure
conscientious and efficient service to the general public. Golf Pro shall provide a list of its
employees to the Director at the beginning of each Golf Season and shall promptly update such
list thereafter when personnel changes are made. Golf Pro shall have discretion to hire and fire
its own employees, provided that Golf Pro shall make all such decisions in compliance with State
and Federal laws requiring equal opportunity in employment without discrimination or regard to
an applicant's or employee's race, color, creed, religion, national origin, sex, disability, or other
legally protected status.
C. Golf Pro shall keep each Pro Shop facility open and in operation during hours
approved by the Director. Golf Pro shall, at the beginning of each Golf Season, and thereafter
when any changes are proposed, provide the Director with a schedule of proposed hours when
each Pro Shop will be open.
D. Golf Pro shall make no alterations, affixations, or repairs to any part of a Pro
Shop building or furnishings without first obtaining written approval of the Director.
E. Golf Pro shall be responsible for the operation, care and cleaning of locker room
facilities and restrooms in each Pro Shop building. Golf Pro shall be responsible for providing
necessary cleaning supplies for all areas of the Pro Shops, except for the restrooms.
F. Golf Pro shall be responsible for keeping the immediate area outside each Pro
Shop free of litter and debris.
G. Golf Pro shall be responsible for providing and maintaining all equipment
necessary to operate food and beverage Concessions and for providing the other services that
Golf Pro is required to furnish pursuant to this Agreement. Golf Pro shall also be responsible to
perform, at recommended intervals but no less than once each season, cleaning of each grease
trap and kitchen exhaust hood and servicing of each kitchen exhaust hood fire suppression
system.
H. Golf Pro shall be responsible for providing and maintaining all golf carts. During
each golf season from March through November, Golf Pro shall be responsible for supplying
adequate numbers and types of golf carts to handle the golfing public's needs.
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I. Each Pro Principal shall be permitted reasonable time to participate in golf
tournaments and other professional activities, including schools and seminars which are
necessary to maintain and improve Golf Pro's professional status.
J. Golf Pro shall have the exclusive right to give golf lessons at the Golf Courses.
Golf Pro shall be solely responsible to set and collect fees for lessons. Golf Pro shall provide
competent and high-level golf instruction for all groups and levels of players. Golf Pro
understands and agrees that a solid developmental junior program is of the highest priority to
City, and to that end shall make every effort to ensure the success of a junior program. However,
Golf Pro shall allow area high school and college coaches to give instruction to their team
members during team practices as authorized and scheduled by Commission staff.
K. Golf Pro shall be responsible to comply, and to operate each Golf Course and Pro
Shop in a manner that complies, with all applicable laws, rules, regulations and orders of federal,
state or local governing authority.
L. Any person verified by Golf Pro to be an employee on the payroll of Golf Pro will
be eligible to receive from City's Leisure Services Department a golf pass to allow play during
the current Golf Season at any of the Golf Courses without payment of green fees.
M. Golf Pro shall pay City the sum of$30 per month for garbage collection costs at
each Pro Shop (i.e., $90 total per month).
11. UTILITIES.
A. Golf Pro will pay City twenty-five percent(25%) of all costs for utilities,
including but not limited to heat, lights, water, and local telephone service at the Pro Shops
during the months of March through November and fifty percent(50%) of all such costs during
the months of December through February. City shall invoice Golf Pro monthly for such costs,
and Golf Pro shall remit payment to City within fourteen(14) days.
B. Golf Pro shall be responsible for long distance calls made by it or its staff at any
of the Pro Shops. Golf Pro may obtain expanded cable television service at its own expense.
Golf Pro shall be responsible to pay for all inspection services provided by City.
C. Golf Pro shall pay for all gasoline and/or electrical service necessary to operate
and/or charge golf carts. Gasoline will be available through the Golf Course maintenance shop
pumps and billed to Golf Pro on a monthly basis through the Commission office. Payment for
gasoline will be due ten (10) days after mailing or delivery of the bill. Electrical service charges
will be billed to Golf Pro through the Commission's local utility account (currently with
MidAmerican Energy). Payment of electrical service charges will be due ten(10) days from
mailing or delivery to Golf Pro.
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D. Golf Pro acknowledges that it has been fully apprised of City's Energy Audit
Agreement with MidAmerican Energy, and Golf Pro agrees that it will fully cooperate with City
and MidAmerican to keep each Pro Shop energy efficient and consistent with City's Energy
Audit Program. If Golf Pro fails to cooperate with this provision, Golf Pro shall be solely
responsible to pay for all charges for utilities identified in paragraph A above.
12. INSURANCE AND BONDS.
A. City will provide public liability, property damage and fire insurance coverages on
each Pro Shop structure through its policies.
B. Golf Pro shall, at its own expense,procure and maintain insurance sufficient to
meet the requirements of the Iowa worker's compensation laws. Golf Pro shall provide the
Director with proof of coverage at the beginning of each Golf Season.
C. Golf Pro shall, at its own expense, procure and maintain casualty and liability
insurance with one or more responsible companies that are authorized to do business in the State
of Iowa, in the annual aggregate amount of not less than Five Million Dollars ($5,000,000.00).
At the beginning of each Golf Season, Golf Pro shall provide the Director and City's Insurance
Coordinator with proof of such insurance coverage.
D. The Commission and City shall be named as additional insureds on the insurance
policies Golf Pro is required to maintain pursuant to this Section 12. Said insurance policies
shall not be canceled or otherwise altered in any way without at least thirty(30) days' written
notice delivered to the Director. Furthermore, except to the extent caused by or arising from the
gross negligence or willful misconduct of the Commission or City, Golf Pro agrees to indemnify,
defend, and hold harmless the Commission and City from and against any and all claims,
demands, causes of action, costs, expenses, penalties, fines, fees, damages, or liabilities of any
type or nature whatsoever, including but not limited to reasonable attorneys' fees and expenses,
relating to or arising from (1) bodily injury to or death of any person or persons, or damage to or
loss of any property, occasioned by any act, omission, neglect, or wrong-doing of Golf Pro, its
employees and agents, and (2)the performance or material breach of this Agreement.
E. Golf Pro shall, at its own expense,procure and maintain a fidelity bond in the
minimum amount of$75,000 covering any loss or misuse of Golf Course monies due to any
fraudulent or dishonest act on the part of Golf Pro or any of its employees. Golf Pro shall
provide the Director with proof of same at the beginning of each Golf Season.
13. SUPERVISION AND COOPERATION.
A. Golf Pro shall work with the Director or the Director's designee to promote and
provide the most efficient service for the golfers of the community.
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B. Golf Pro shall work with the Director or the Director's designee to provide the
highest quality Pro Shop services, Concessions, merchandise, and marketing.
14. PERFORMANCE REVIEW AND TERMINATION. City's objective with respect to the
Golf Courses is to provide high quality golfing facilities and services to the general public and to
provide value to taxpayers. To achieve this end, Golf Pro agrees to cooperate with City in good
faith for evaluation and review of all aspects of the facilities and operations for each Golf Course.
Each calendar year during the term of this Agreement, either party shall have the right,
exercisable without cause or reason, to terminate this Agreement by giving written notice to the
other party no later than October 31 of such party's intent to terminate the Agreement as of the
following December 31.
15. DISPUTE RESOLUTION. In the event either party claims that provisions of this
Agreement have been materially breached by the other party, as an alternative to termination of
this Agreement as set forth in Section 14 above, such party may request a conference by
delivering written notice to the other party. The written notice shall detail the violations alleged.
A conference between the Director and Golf Pro will be arranged within ten (10) days of the
date of notice, or such later date as the parties may consent to in writing, and the parties shall in
good faith make every reasonable effort to reach an amicable solution. If the parties do not reach
a mutually satisfactory resolution of the dispute, they may exercise any remedies available to
them under this Agreement and/or applicable law.
16. TERMINATION FOR CAUSE.
A. In addition to the election to terminate this Agreement as provided in Section 14
above, this Agreement may be terminated for cause by the Director upon the occurrence of any of
the following events (each an"Event of Default"):
1. Following the death or incapacitating physical or mental disability of a Pro
Principal, his termination from employment by Golf Pro, or his sale of a
controlling interest of the issued and outstanding stock or equity interests
of Golf Pro, City and Golf Pro are unable to agree on reasonable terms to
modify this Agreement as required by Section 10.A, within 90 days after
beginning such negotiations;
2. Dishonesty or other conduct detrimental to the best interests of the
Commission or City by Golf Pro or its principal officers;
3. Continuing inattention to or neglect of duties by Golf Pro or its principal
officers;
4. Insolvency or bankruptcy of Golf Pro;
5. Illegal conduct of Golf Pro or its principal officers;
6. Insolvency of Golf Pro or Golf Pro's failure to deliver the documents
required under Section 6.0 above;
7. Failure of Golf Pro to maintain the insurance or bonds required under
Section 12 above; or
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8. The breach by Golf Pro of any other material term of this Agreement.
Termination may be immediate or upon advance notice, in the sole discretion of the Director.
Waiver of any default shall not constitute or be construed as a waiver of any other or subsequent
default. Director shall not be deemed to have waived the right to terminate for any given Event
of Default until at least ninety(90) days have elapsed after the occurrence of such Event of
Default.
B. Upon termination of the Agreement under this section, Golf Pro shall, within
thirty (30) days after receiving written notice of termination, surrender to City the possession of
all buildings and furnishings in reasonable condition, subject to ordinary wear and tear. Within
said period, Golf Pro shall remove all personal property belonging to it, or its owners, officers,
affiliates, agents or permittees. Any personal property of Golf Pro or other persons that remains upon
the premises after said 30-day period shall be deemed abandoned and shall become the property of
City, and City may use, retain or dispose of said abandoned property in any manner it deems fit
without incurring liability therefor to Golf Pro or any other person.
17. TRANSFER OR ASSIGNMENT. Golf Pro shall not transfer or assign this Agreement or
sublet the privileges or premises without the prior written consent of City. This Agreement shall
be binding upon and inure to the benefit of the parties and the respective personal
representatives, successors, and assigns of each.
18. NO LEASE. The parties acknowledge and agree that this Agreement does not constitute a
lease by Golf Pro of any Pro Shop, Golf Course, or any other real property owned by City, nor is
this Agreement to be construed as a lease or rental agreement. The rights granted to Golf Pro
hereunder are personal and contractual in nature.
19. NO JOINT VENTURE. Nothing in this Agreement shall, or shall be deemed or construed
to, create or constitute any joint venture, partnership, agency, employment, or any other
relationship between the parties nor to create any liability for one party with respect to the
liabilities or obligations of the other party or any other person.
20. GENERAL. This Agreement represents the entire agreement between the parties with
respect to the subject matter hereof, superseding all prior or other agreements or understandings
relating thereto. This Agreement may not be modified except by the mutual written 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 this Golf Course Pro Shop
Agreement by their duly authorized representatives as of the date first set forth above.
[signatures on next page]
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CITY OF WATERLOO, IOWA ML GOLF, INC.
By: n-C L`�_ By: '1�
Quentin Hart, Mayor Nathaniel L. Lubs, President
Attest: By:
Kelley Felc 1 , City Clerk Monte G. Meyer, Vice Pr dent
STATE OF IOWA )
ss.
BLACK HAWK COUNTY )
This record was acknowledged before me on J ��� p , by Nathaniel
L. Lubs and Monte G. Meyer as President and Vice President, respectively, of ML Golf, Inc.
"`•. MADONNA WELSH
s COMMISSION NO.782884
MY cor.
IaS10o ,3 Notary Public
STATE OF IOWA )
) ss.
BLACK HAWK COUNTY )
This record was acknowledged before me on ����y1ti / I l ai O, by Quentin
Hart and Kelley Felchle as Mayor and City Clerk, respectively, of the City of Waterloo, Iowa.
oTp1Al•
NANCY HIGBY
s
_ - COMMISSION NO.788229
MY CO MISSION EXPIRES
o w
2- -Notary-Notary Public j
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