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HomeMy WebLinkAboutGolf Pro Shop - Agreement - 1/17/2006 (3) GOLF COURSE PRO SHOP AGREEMENT This Golf Course Pro Shop Agreement (the "Agreement") is made and entered into as of , 2006,by and between the City of Waterloo, Iowa("City") and Monte eyer Pro op, Inc. ("Golf Pro'). In consideration of the mutual promises exchanged herein, City and Golf Pro agree as set forth below. I. DEFINITIONS. Whenever used in this Agreement, these terms shall be defined as follows: Commission: Waterloo Leisure Services Commission Director: Waterloo Leisure Services Director Golf Course: South Hills Golf Course Golf Season: Opening day through official closing as determined each calendar year by the Commission Pro Shop: South Hills Golf Course Pro Shop II. TERM OF AGREEMENT. A. This term of this Agreement shall commence on January 1, 2006, and continue until and including December 31, 2008, unless sooner terminated pursuant to this Agreement. B. By mutual written consent of the parties, this Agreement may be renewed upon the same terms and conditions and for the same duration as set forth herein. III. 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. IV. ALTERNATE USE OF GOLF COURSE. City, acting through the Director, retains the right to designate golf courses 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 the Golf Course that the Director deems necessary or proper for the public benefit or as a community-wide service. V. PAYMENT BY GOLF PRO. In addition to other payments as set forth in the Agreement, Golf Pro shall pay City the sum of Thirteen Thousand Two Hundred and 00/100 Dollars ($13,200) each calendar year. Golf Pro may make said payment in installments no more than twelve (12) times per year, and in any event payment in full shall be made on or before December 31 each year. VI. CONCESSIONS AND SERVICES. A. Golf Pro shall be responsible for providing the general public with concession at the Golf Course 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 Shop 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 Course. Such review shall be at City's sole expense. Golf Pro shall fully cooperate in such review. VII. COLLECTION OF GOLF FEES. City shall retain all revenue from green fees and the sale of season tickets, except as set forth in Section VII below. 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 for the collection and remittal of fees and for recordkeeping. VIII. INCENTIVE PAYMENTS. City agrees to make to Golf Pro the incentive payments provided for in this Section VIII. For purposes of this Section, the "18-Hole Base" is the number of 18-hole daily fee rounds charged and collected in 2005, the"9-Hole Base" is the number of 9-hole daily fee rounds charged and collected in 2005, and the "Four Year Average" is the average of the number of 9- hole or 18-hole, as applicable, daily fee rounds charged and collected 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. 18-Hole Incentive. The incentive payment shall be an amount equal to $1.00 for each 18- hole daily fee round charged and collected in excess of the 18-Hole Base, up to the Four Year Average for 18-hole daily fee rounds charged and collected. For each 18-hole daily fee round charged and collected in excess of such Four Year Average, the incentive payment shall be an amount equal to $2.00 for each such round. 9-Hole Incentive. The incentive payment shall be an amount equal to $0.50 for each 9- hole daily fee round charged and collected in excess of the 9-Hole Base, up to the Four Year Average for 9-hole daily fee rounds charged and collected. For each 9-hole daily fee round charged and collected in excess of such Four Year Average, the incentive payment shall be an amount equal to $1.00 for each such round. IX. RESPONSIBILITIES OF THE 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 building 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 building. B. Make all ordinary or reasonable structural repairs required for maintenance and upkeep of the Pro Shop building. C. Furnish tables, chairs, counters, and supplies, such as scorecards, pencils, light bulbs, and toilet paper, and any other furnishings as it deems necessary. 3 D. Provide the garbage pick up from outdoor receptacles to be provided by City at the Pro Shop building. E. Provide Golf Pro with the use of a storage building for motorized golf carts at the Golf Course. F. Golf Pro shall have first right to salvage all lost golf balls from any body of water within the boundaries of the Golf Course, and upon salvage all such balls shall be the sole property of Golf Pro. X. RESPONSIBILITIES OF GOLF PRO. A. The parties acknowledge that Monte Meyer("Meyer") is a key employee and principal of Golf Pro. The personal services that Meyer will provide in operation of the Pro Shop and Golf Course 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 Meyer hereunder, City would not enter this Agreement with Golf Pro. Golf Pro agrees that it shall, at all times during the term of this Agreement, continue to employ Meyer as a key employee and officer of Golf Pro. In light of the foregoing, if Meyer ceases to be an active employee of Golf Pro for any reason, or if Meyer ceases to own a controlling interest in Golf Pro, then City may choose to terminate this Agreement as set forth in Article XVI below. 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 supplement such list anytime thereafter when employee changes are made. All such employees shall be hired and terminated at Golf Pro's discretion. Golf Pro agrees to make all decisions regarding the hiring or termination of employees in compliance with State and Federal laws requiring equal opportunity in employment without discrimination, segregation, or regard to an applicant's or employee's race, color, religion, national origin, sex, age, handicap, or disability. C. Golf Pro shall keep the 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 the Pro Shop will be open. D. Golf Pro shall make no alterations, affixations, or repairs to any part of the 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 rest rooms in the Pro Shop building. City will provide reasonable janitorial supplies for Golf Pro's use. F. Golf Pro shall be responsible for keeping the immediate area outside the Pro Shop free of litter and debris. 4 G. Golf Pro shall be responsible for providing and maintaining all equipment necessary to operate a food and beverage concession and for providing the other services that Golf Pro is required to furnish pursuant to this Agreement. H. Meyer 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. I. Golf Pro shall have the exclusive right to give golf lessons at the Golf Course. 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. XI. 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 Shop. City shall invoice Golf Pro monthly for such costs, and Golf Pro shall remit payment to City within fourteen (14) days. Payments will begin with the April 2006 billings. B. Golf Pro shall be responsible for long distance calls made on by it or its staff at the Pro Shop. 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 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. 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 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. 5 XII. INSURANCE AND BONDS. A. City will provide public liability, property damage and fire insurance coverages on the 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 XII. Furthermore, Golf Pro agrees to indemnify, defend, and hold harmless the Commission and City from and against(1) all claim, demand, cause of action, or damages of any type or nature relating to or arising from any and all bodily injury to or death of any person or persons, or any and all damage to any property, occasioned by any act, omission, neglect, or wrong-doing of Golf Pro and/or its employees and/or(2) any and all claim, demand, cause of action, or damages of any type or nature relating to or arising from the existence of this Agreement, other than any claim, demand, cause of action, or damages that one party hereto may have against the other for breach of the terms of this Agreement. The above-described insurance policies shall not be canceled or otherwise altered in any way without at least thirty(30) days' written notice delivered to the Director. E. Golf Pro shall, at its own expense, procure and maintain a fidelity bond in the minimum amount of$25,000 covering any loss or misuse of Golf Course monies due to any fraudulent or dishonest act on the part of Golf Pro and any of its employees. Golf Pro shall provide the Director with proof of same at the beginning of each Golf Season. XIII. 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. 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. 6 XIV. PERFORMANCE REVIEW AND TERMINATION. City's objective with respect to the Golf Course and other courses under its ownership 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 Golf Course facilities and operations. 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 during the month of October of the intent to terminate the Agreement as of the following December 31. XV. DISPUTE RESOLUTION. In the event either party claims that provisions of this Agreement have been breached by the other party, as an alternative to termination of this Agreement as set forth in Section XIV above,the party may request a conference by delivering written notice to the other party. The written notice shall detailing 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. XVI. TERMINATION FOR CAUSE. A. In addition to the election to terminate this Agreement as provided in Section XIV above, this Agreement may be terminated for cause by the Director upon the occurrence of any of the following events: 1. Expiration of the term of this Agreement; 2. Death or incapacitating physical disability of Monte Meyer, his termination from employment by Golf Pro, or his sale of a controlling interest of the issued and outstanding stock of Golf Pro; 3. Dishonesty or other conduct detrimental to the best interests of the Commission or City by Golf Pro or its principal officers; 4. Continuing inattention to or neglect of duties by Golf Pro or its principal officers; 5. Insolvency or bankruptcy of Golf Pro; or 6. Illegal conduct of Golf Pro or its principal officers. 7. Insolvency of Golf Pro or Golf Pro's failure to deliver the documents required under Section VI(C) above. 8. Failure of Golf Pro to maintain the insurance or bonds required under Section XII above. 9. The breach by Golf Pro of any other material term of this Agreement. 7 B. Upon termination of the Agreement under this section, Golf Pro shall, within thirty(30) days, surrender to City possession of all buildings and furnishings in reasonable condition, subject to ordinary wear and tear. XVII. 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. XVIII. 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. WHEREFORE, the parties have entered into this Golf Course Pro Shop Agreement as of the date first set forth above. CITY OF WATERLOO, IOWA MONTE MEYER PRO SHOP, INC. By' By: C Timothy ley, Maypr Monte G. Meyer,&Tesildent Attest: Nancy cker "y Clerk STATE OF IOWA ) ) ss. BLACK HAWK COUNTY ) Signed before me on n u� o` e , 2006, by Monte G. Meyer as President of Monte Meyer Pro Shop, Inc. p JEANE DIEHL COMMISSION N0.733174 otary Public Y CoOMMISSIONQEXPIRES 8 STATE OF IOWA ) ) ss. BLACK HAWK COUNTY Signed before me on , 2006 by Timothy J. Hurley and Nancy Eckert as Mayor and City CIA, respecti ly, of the City of Waterloo, Iowa. Not ry Public Cyt 9