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HomeMy WebLinkAbout2005-306 Contract - Robert Haney Jr. PERSONAL SERVICES CONTRACT FOR GOLF PROFESSIONAL SERVICE AT OAK KNOLL GOLF COURSE This agreement is made and entered this 15th day of June, 2005, by and between the Ashland Parks and Recreation Commission ("Commission") and Robert Haney ("Contractor"). Recitals: A. The City of Ashland, by and through the Commission, is the owner of Oak Knoll Golf Course ("the course"), which includes the land upon which the course is located and the buildings and other improvements made on the land. Among the improvement is a Pro Shop/Club House, further referred to in this agreement as "the premises" or the "Pro Shop." B. The services of a Class A PGA Professional in good standing are desired at Oak Knoll Golf Course so as to operate the Pro Shop and provide golf services at the course. C. The Commission wishes to retain Contractor to provide such services. Commission and Contractor agree as follows: 1. TERM OF AGREEMENT. The term of this agreement shall be for five years beginning on June 15. This agreement may be extended upon mutual agreement for and additional term of three years. 2. STATUS OF RELATIONSHIP. Contractor is an independent contractor and not an agent or employee ofthe Commission. Contractor shall have the complete responsibility for the performance of this contract. Contractor shall provide workers' compensation coverage as required in ORS Ch 656 for all persons employed to perform work pursuant to this contract and prior to commencing any work, Contractor shall provide Commission with adequate proof of workers' compensation coverage. Other requirements for insurance required by Contractor are located at section 7. Contractor is a subject employer that will comply with ORS 656.017. 3. GENERAL SCOPE OF SERVICE. 3.1 All services rendered by the PGA Pro shall be in accordance with PGA Code of Ethics. The services covered by this agreement shall be rendered by or under the supervision of Robert Haney, Contractor, who is a Class A PGA Pro, and who shall act as the Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page I representative in all communications or transactions with the Commission. Contractor will endeavor to honor reasonable specific requests of Commission with regard to assignment of Contractor's employees to perform services if the requests are consistent with sound business and professional practices. The PGA Pro or a qualified employee shall be present and available at the course during scheduled league and tournament play, during golfing events sponsored by the Ashland Parks and Recreation Department and shall be available during Pro Shop hours to assist the golfing public. 3.2 Contractor shall manage and operate the premises and shall provide for the operation of the course through the collection of green and practice range fees, annual memberships, merchandise sales, golf cart and pull cart rentals, club rentals, repair of golf equipment, assigning of starting times, marshaling of play on the course, scheduling tournaments and coordinating activities of the various golf associations. 3.3 Contractor shall ensure that an appropriate number of competent personnel are on duty on the premises to serve the public. The Contractor and staff will be responsible for promoting goodwill with the golfing public and treating the public in a courteous manner. The Contractor shall be responsible for supervising their work and shall pay them for their services at the Contractor's sole cost and expense. The Contractor shall comply with all pertinent laws, regulations, and procedures as the employer. Personnel employed by the Contractor shall not engage in conduct injurious to the interest of the Commission in having an efficient and successful operation at the course. 3.4 Contractor shall not conduct any other business or social activity on the premises, or use the premises for any other purpose without first having obtained the express written consent of the Commission. 3.5 Contractor shall conform to all applicable laws and regulations of any public authority affecting this concession and correct at Contractor's own expense any failure of compliance created through Contractor's fault or by reason of Contractor's use, but Contractor shall not be required to make any structural changes to effect such compliance. Contractor shall comply with all applicable state and local ordinances, including the City of Ashland Living Wage ordinance. 3.6 Contractor shall not cause or permit any Hazardous Substance to be spilled, leaked, disposed of, or otherwise released from, on or under the premises or the course. Contractor may use or otherwise handle only those Hazardous Substances typically and lawfully used or sold . Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 2 in the prudent and safe operation the business of a pro shop. Contractor may store such Hazardous Substances only in quantities necessary to satisfy Contractor's reasonably anticipated needs. Contractor shall comply with all Environmental Laws and exercise the highest degree of care in the use, handling, and storage of Hazardous Substances and shall take all practicable measures to minimize the quantity and toxicity of Hazardous Substances used, handled, or stored on the premises. Upon the expiration or termination of this Concession, Contractor shall remove all Hazardous Substances from the premises. The term Environmental Law shall mean any federal, state, or local statute, regulation, or ordinance or any judicial or other governmental order pertaining to the protection of health, safety, or the environment. The term Hazardous Substance shall mean any hazardous toxic, infectious, ignitable, reactive, corrosive, or radioactive substance, waste, and material as defined or listed by any Environmental Law and shall include, without limitation, petroleum oil and its fractions or derivatives. 3.7 Except as otherwise provided in this agreement, the Contractor shall have exclusive right on the course and shall be required: 3.7.1 To operate a full service golf shop on the premises as describes in the follow subsections. 3.7.2 To display, sell, rent, and otherwise supply and sell to the public golf goods, clothing, merchandise, golf equipment, power and pull golf carts. 3.7.3 The operate shop services on the premises for the repair and maintenance of golf clubs and other golfing equipment. 3.7.4 To give golf instruction to all groups and levels of public players and make charges therefore. The Contractor shall submit to the Director of Parks and Recreation by January 15 of each year a schedule of fees charged for golf lessons. 3.7.5 To operate a food service/restaurant on the premIses. 3.7.6 To operate the course in a manner as described in exhibit B "Phase 1 and Phase 2 Request for Proposals." Golf Prof~ssional Services Contract Page 3 Oak Knoll Golf Course - Bob Haney 3.8 Cooperation. Contractor shall cooperate with other concession uses at the course such as the restaurant in the use of common facilities. The term common facilities means those facilities within and about the clubhouse where the premises are located and the course for the non- exclusive use of Contractor in common with other authorized users and shall include, but not be limited to, sidewalks, planted areas, halls, stairways, decks, patios, open means of ingress and egress, restrooms, common reception area, parking areas and other similar areas. 3.8.1 Contractor shall be responsible for the cost of any repairs to the common facilities for damage caused by Contractor's negligence or intentional acts. 3.8.2 Contractor and all those having business with Contractor shall have the right to use and enjoy the common facilities for their intended purposes in common with the other concessions and others having business with them, subject to the terms of this agreement. 3.8.3 Contractor will comply and cause its customers, invitees, employees and agents to comply with all rules adopted by the Commission in connection with the use of the common facilities and with all supplements and amendments which the Commission may adopt. Should any dispute arise between Contractor and any other concession at the course concerning the common facilities, the Commission shall have sole authority to resolve such disputes and Contractor shall be bound by such resolution. 4. SPECIFIC SERVICES BY CONTRACTOR. The Contractor shall provide the following services in the management, operation, and supervision of the Pro Shop: 4.1 Pro Shop Hours: The Contractor shall keep the Pro Shop open according to the schedule set by the Commission. The following schedule of Pro Shop hours is an estimate of hours that the Pro Shop will be opening. The Pro Shop may be closed if the course is closed due to periods of inclement weather. Month January February March Hours 7:00 a.m. to 4:30 p.m. 7:00 a.m. to 4:30 p.m. 7:30 a.m. to 5:00 p.m. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 4 April May June July -August September October November December 7:30 a.m. to 6:00 p.m. 6:00 a.m. to 8:00 p.m. 6:00 a.m. to 8:30 p.m. 6:45 a.m. to 8:30 p.m. 6:45 a.m. to 8:30 p.m. 7:00 a.m. to 8:00 p.m. 7:30 a.m. to 6:00 p.m. 7:30 a.m. to 4:30 p.m. 7:30 a.m. to 4:30 p.m. 4.2 Staffing Hours: In scheduling work hours the Contractor will ensure that during the hours of operation of the course that competent staff will be on duty to assist the golfing public. 4.3 Janitorial Services: The Contractor shall provide for routine maintenance and janitorial services and supplies for the premises. The janitorial services shall include but not be limited to: cleaning of windows (cleanliness inside and outside), other interior furnishings, equipment and fixtures and maintenance of the public restrooms in the clubhouse. 4.4 Course Responsibilities. The Contractor shall provide adequate staff: 4.4.1 To collect all course and green and range fees; issue receipts for all fees and promptly transfer all fees to the Commission according to the procedures established by it. 4.4.2 To schedule starting times for dialing, league, and tournament play and to act as a starter of play. 4.4.3 For course marshaling of golf play. 4.4.4 For instruction and testing Juniors in the knowledge of golf rules and courtesies, as well as preparing, planning, and implementing Junior golfprogram and clinics. 4.4.5 Clean, maintain driving range tee box area and assure timely retrieval of range balls. 5. TAXES: UTILITIES. 5.1 Property Taxes. Contractor shall pay as due all taxes on its personal property located on the premises. Contractor shall pay as due all real property taxes levied against the premises. As used in this section, real property taxes include any fee or charge relating to the ownership, use, or occupancy of the premises. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 5 5.2 Contest of Taxes. Contractor shall be permitted to contest the amount of any tax or assessment as long as such contest is conducted in a manner that does not cause any risk that Commission's interest in the premises will be foreclosed for nonpayment. Commission shall cooperate in any reasonable manner with such contest by Contractor. 5.3 New Charges or Fees. If a new charge or fee relating to the ownership or use of the premises or the receipt of fees therefrom or in lieu of property taxes is assessed or imposed, then, to the extent permitted by law, Contractor shall pay such charge or fee. 5.4 Payment of Utilities Charges. Contractor shall pay when due all charges for services and utilities incurred in connection with the use, occupancy, operation, and maintenance of the premises, including but not limited to charges for fuel, water, gas, electricity, sewage disposal, power, refrigeration, air conditioning, telephone, and janitorial services. If any utility services are provided by or through Commission, charges to Contractor shall be comparable with prevailing rates for comparable services. If the charges are not separately metered or stated, Commission shall apportion the charges on an equitable basis, and Contractor shall pay its apportioned share on demand. 6. REPAIRS AND MAINTENANCE. 6.1 Commission's Obligations. The following shall be the responsibility of the Commission. 6.1.1 Repair and maintenance to the exterior of the structure. 6.1.2 Repairs and maintenance to the interior of the structure from normal use. 6.1.3 Repairs and maintenance to mechanical equipment. The Commission shall not be responsible for the obligations listed in this section 6.1; however, if repair or maintenance is required because of the negligence or willful conduct of the Contractor, his agents, employees, invitees, assignees, or sub-Contractors. 6.2 Contractor's Obligations. The following shall be the responsibility of the Contractor: 6.2.1 Repair and maintenance for all items associated with Bob's Golf Shop. 6.2.2 For the servicing ofthe outside grease trap adjacent to the building. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 6 6.2.3 For the repair and maintenance of items contained in Exhibit A (see attached) Restaurant Equipment. 6.2.4 All other repairs to the premises for which Commission is not required to-perform. 7. INSURANCE. Contractor shall obtain and maintain continuously in effect at all times during the term of this agreement, at Contractor's sole expense, the following insurance: 7.1 Comprehensive liability insurance. Contractor shall, at its own expense, at all times during the term of this agreement, maintain in force a comprehensive general liability policy including coverage for contractual liability for obligations assumed under this agreement, blanket contractual liability, products and completed operations, and owner's and contractor's protective insurance. The liability under each policy shall be a minimum of $500,000 per occurrence (combined single limit for bodily injury and property damage claims) or $500,000 per occurrence for bodily injury and $100,000 per occurrence for property damage. 7.1.1 Additional insureds. All policies shall include the City of Ashland and the Commission, their officers, elected officials, employees, and agents as additional insureds. 7.1.2 Primary insurance. The insurance shall be considered primary to any other insurance or self-insurance of the City of Ashland or Commission. 7.1.3 Insurance certificate. A certificate evidencing such insurance coverage shall be filed with the Commission prior the effective date of this agreement, and such certificate shall provide that such insurance coverage may not be canceled or reduced or changed in any way adverse to the City of Ashland or Commission without at least 30 days prior written notice to the Commission. The policy shall be continuous until canceled as stated above. If such insurance coverage is canceled or changed, Contractor shall, not later than 15 days prior to the termination or change in the insurance coverage, file with the Commission a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. In the event Contractor shall fail to furnish the Commission with the certificate of insurance required, Commission may secure the required insurance or self- insure at the sole cost and expense of Contractor, and Contractor agreed to reimburse Commission promptly for Golf Professional Services Contract Page 7 Oak Knoll Golf Course - Bob Haney the cost, plus ten percent of the cost for Commission administration. 7.2 Fire Insurance. The Commission shall keep the premises insured or self- insured at the Commission's-expense against fire and other risks covered by a standard fire insurance policy with an endorsement for extended coverage. Contractor shall bear the expense of any insurance insuring the property of Contractor on the premises against such risks but shall not be required to insure. 7.3 Waiver of Subrogation. Neither party shall be liable to the other (or to the other's successors or assigns) for any loss or damage caused by fire or any of the risks enumerated in a standard fire insurance policy with an extended coverage endorsement, and in the event of insured loss, neither party's insurance company shall have a subrogated claim against the other. This waiver shall be valid only if the insurance policy in question expressly permits waiver of subrogation or if the insurance company agrees in writing that such a waiver will not affect coverage under the policies. Each party agrees to use best efforts to obtain such an agreement from its insurer if the policy does not expressly permit a waiver of subrogation. 8. INDEMNIFICATION. Contractor agrees to defend, indemnify and save City, its officers, employees, and agents harmless from any and all losses, claims, actions, costs, expenses, judgments, subrogations, or other damage (including loss or destruction) to property, of whatsoever nature arising out of or incident to the performance of this agreement by Contractor (including but not limited to Contractor's employees, agents, and others designated by Contractor to perform work or services attendant to this agreement). Contractor shall not be held responsible for damages caused by the negligence of City. 9. DUTIES AND RESPONSIBILITIES OF COMMISSION 9.1 Course Responsibilities. The Commission shall have full complete responsibility for the year-round maintenance and care of all grounds, plants, trees, and other flora of any kind and description located on the course and further to see to the maintenance and care of all parking lots and maintenance buildings located on the grounds of the Commission. 9.2 Equipment Responsibility. The Commission shall keep in good repair all power carts owned by the Commission and rented by the Contractor. 9.3 Rules and Regulations. The Commission shall have the authority to, and the Contractor shall be required to comply with, the following: 9.3.1 Rules and regulations for the operation of the course and Pro Shop, including but not limited to: Golf Professional Services Contract Page 8 Oak Knoll Golf Course - Bob Haney rr I (a) The minimum number of hours of play for which the course is to be kept open each day and each week. (b) The minimum number of hours the Pro Shop is kept open each day and each week. (c) The amount of all fees, including but not limited to green fees, range fees, and power and pull cart rental fees. 9.3.2 Course closures and prevention of power carts on the course due to inclement weather conditions. 9.4 Commission Representative. The Parks and Recreation Director shall have the authority to act on behalf of the Commission in the administration and interpretation of this contract. 10. COMPENSATION. 10.1 The Contractor shall be entitled to the following sums - 18% of all green and range fees and power cart rental fees generated in a calendar year (January through December), revenue up to $400,000, 25% thereafter. Pre-paid annual memberships will be compensated at a constant percentage of 18% with no increase. Compensation for annual memberships will be paid when earned; i.e., on the calendar month following the purchase of an annual membership, and for each succeeding month for the duration of the membership, one-twelfth (1112) of the pre-paid annual membership fee will have been earned. 10.2 100% of all income received by the Contractor from golf lessons with the exception of those programs sponsored by the Ashland Parks and Recreation Department. 10.3 100% of all income from golf club repairs, golf club rentals, and pull cart rentals. 10.4 The Contractor will purchase and own all merchandise in the Pro Shop and receive 100% of all revenues generated from the Pro Shop. The Contractor will be responsible for all utilities, except for telephone service, connected with the Pro Shop and for all compensation for staff for the Pro Shop. 10.5 Contractor shall manage and operate the driving range, collection of fees, and be entitled to the following sum, 80% of all practice range fees. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 9 10.6 Contractor shall pay $800 per month for October through March and $1,000 per month for April through September for use of the concessions operations. 11 COLLECTION OF FEES BY Contractor 11.1 The Contractor shall cause to be delivered to the Commission on a daily basis or on a basis as established by the Commission, all monies collected due and owing to the Commission, or otherwise required to be transferred to the Commission. 11.2 The Contractor shall follow all record keeping and accounting procedures established by the Commission for the management and operation of this concession. The Commission will have the right to inspect all records maintained by the Contractor. 12. FIDELITY BOND. The Contractor shall continuously maintain at his expense a blanket fidelity bond covering collection of fees on the premises by the Contractor, or employees or subcontractors of the Contractor. The bond shall be an amount of $5,000. Proof ofthe above requirements must be provided to the Commission upon execution of an agreement. 13.ALTERATIONS PROHffiITIED. Contractor shall make no improvements or alterations on the premises of any kind without first obtaining Commission's written consent. All alterations shall be made in a good and workmanlike manner by licenses, bonded, and insured workers, and in compliance with applicable laws and building codes. As used in this section, "alterations" include, but are not limited to, the installation of computer and telecommunications wiring, cables, and conduit. All improvements and alterations performed on the premises by either Commission or Contractor shall be the property of Commission when installed unless the applicable Commission's consent provides otherwise. Improvements and alterations installed by Contractor shall, at Commission's option, be removed by Contractor and the premises restored unless the applicable Commission's consent provides otherwise. 14. DAMAGE AND DESTRUCTION. 14.1 Partial Damage. If the premises are partly damaged due to negligence of the Contractor, its agents, employees, and invitees, it will be the responsibility of the Contractor to repair all damages to property or equipment at the expense of the Contractor. 14.2 Destruction. If the premises are destroyed or damaged due to negligence of the Contractor, its agents, employees, and invitees, it will be the responsibility of the Contractor to repair all destroyed or damaged property or equipment at the expense of the Contractor. 15. ASSIGNMENT AND SUBLETTING. The Contractor may sublet the food service operation with the written approval ofthe Parks and Recreation Director. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 10 If the Contractor sublets the food service operation, the Contractor is still responsible for the premises and for all costs associated with the operation of the premises. Other than food service, no part of this agreement may be assigned, nor may a right of use or any portion of the premises be conferred on any third person by any other means, without the prior written consent of Commission. This provision shall apply to all transfers by operation oflaw. 16. DEFAULT. The following shall be events of default: 16.1 Default in Payments. Failure of Contractor to pay any sum due under this agreement or any sum collected by Contractor on behalf ofthe Commission within 10 days after it is due. 16.2 Default in Other Covenants. Failure of Contractor to comply with any term or condition or fulfill any obligation of this agreement (other than the obligations specified in section 16.1 within 20 days after written notice by Commission specifying the nature ofthe default with reasonable particularity. 16.3 Insolvency. Insolvency of Contractor; an assignment by Contractor for the benefit of creditors; the filing by Contractor of a voluntary petition in bankruptcy; an adjudication that Contractor is bankrupt or the appointment of a receive of the properties of Contractor; the filing of any involuntary petition of bankruptcy and failure of Contractor to secure a dismissal of the petition within 30 days after filing; attachment of or the levying of execution on this agreement and failure of Contractor to secure discharge of the attachment or release of the levy of execution within 10 days shall constitute a default. If Contractor consists of two or more individual entities, the events of default specified in this section 16.3 shall apply to each individual unless within 10 days after an event of default occurs, the remaining individuals produce evidence satisfactory to Commission and in the Commission's sole discretion that they have unconditionally acquired the interest of the one causing the default. If this agreement has been assigned in compliance with the requirements of section 15, the events of default so specified shall apply only to the assignee then exercising the rights of Contractor under the agreement. 17. REMEDIES ON DEFAULT. 17.1 Termination. In the event of a default, this agreement may be terminated at the option of Commission by written notice to Contractor. Whether or not the agreement is terminated by the election of Commission or otherwise, Commission shall be entitled to recover damages from Contractor for the default, and Commission may reenter, take possession of the premises, and remove any persons or property by legal action or Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page II by self-help with the use of reasonable force without liability for damages. 17.2 Award. Following termination, Commission may award this concession and in that connection may make any suitable alterations or refurbish the premises, or both, or change the character or use of the premises, but Commission shall not be required to award for any use or purpose other than that specified in the agreement or which Commission may reasonably consider injurious to the premises, or to any Contractor that Commission may reasonably consider objectionable. Commission may concession all or part of the premises, alone or in conjunction with other properties, for a term longer or shorter than the term of this agreement, upon any reasonable terms and conditions, including the granting of some form of occupancy for no fee or other fee adjustment. 17.3 Damages. In the event of termination following default, Commission shall be entitled to recover immediately, without waiting until the due date of any future fees or until the date fixed for expiration ofthe agreement term, the following amounts as damages: 17.3.1 The loss of fees from the date of default until a new Contractor is, or with the exercise of reasonable efforts could have been, secured and paying out. 17.3.2 The reasonable costs re-awarding the concession including without limitation the cost of any cleanup, refurbishing, removal of Contractor's property and fixtures, costs incurred under section 17.5, or any other expense occasioned by Contractor's default including but not limited to, any remodeling or repair costs, attorney fees, court costs, broker commissions, and advertising costs. 17.3.3 Any excess in fees and all of Contractor's other obligations under this agreement for the period commencing on the earlier of the date of trial or the date the concession is re-awarded, and continuing through the end of the term. The present value of future amounts will be computed using a discount rate equal to the prime loan rate of major Oregon banks in effect on the date of trial. 17.4 Right to Sue More Than Once. Commission may sue periodically to recover damages during the period corresponding to the remainder of the agreement term, and no action for damages shall bar a later action for damages subsequently accruing. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 12 17.5 Commission's Right to Cure Defaults. If Contractor fails to perform any obligation under this agreement, Commission shall have the option to do so after 30 days' written notice to Contractor. All of Commission's expenditures to correct the default shall be reimbursed by Contractor on Q~mand with interest at the rate of 12% per annum fromlhe date of expenditure by Commission. Such action by Commission shall not waive any other remedies available to Commission because of the default. 17.6 Remedies Cumulative. The foregoing remedies shall be in addition to and shall not exclude any other remedy available to Commission under applicable law. 18. REMOVAL AT EXPIRATION. 18.1 Condition of Premises. Upon expiration of this agreement or earlier termination on account of default, Contractor shall deliver all keys to Commission and return the premises in first-class condition and broom clean. Alterations constructed by Contractor with permission from Commission shall not be removed or restored to the original condition unless the terms of permission for the alteration so require. Contractor's obligations under this section shall be subordinate to the provisions of section 14 relating to damage or destruction. 18.2 Fixtures. All fixtures placed upon the premises during the term, other than Contractor's trade fixtures, shall, at Commission's option, become the property of Commission. If Commission so elects, Contractor shall remove any or all fixtures that would otherwise remain the property of Commission, and shall repair any physical damage resulting from the removal. If Contractor fails to remove such fixtures, Commission may do so and charge the cost to Contractor with interest at the rate of 12% per annum from the date of expenditure. 18.3 Prior to expiration or other termination of the agreement term, Contractor shall remove all furnishings, furniture, and trade fixtures that remain its property. If Contractor fails to do so, this shall be an abandonment of the property, and Commission may retain the property and all rights of Contractor with respect to it shall cease or, by notice in writing given to Contractor within 20 days after removal was required, Commission may elect to hold Contractor to its obligation of removal. If Commission elects to require Contractor to remove, Commission may effect a removal and place the property in public storage for Contractor's account. Contractor shall be liable to Commission for the cost of removal, transportation to storage, and storage, with interest at the rate of 12% per annum on all such expenses from the date of expenditure by Commission. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 13 19. TERMINATION FOR CAUSE. The Commission retains the right to terminate this contract and remove Contractor from the course and premises in the event Contractor is convicted of any crime associated with or arising out of the performance ofG()ntractor's duties under this contract, either prior to or~fter the execution of this contract. 20. TERMINATION WITHOUT CAUSE-PROBATIONARY PERIOD. A probationary period of 90 days will be applied to this contract. Contractor will remain under probation for a period of 90 days after the execution of this contract and this contract may be terminated by the Commission for any reason and at any time prior to the 90 day probation period expiring. The Commission is not required to provide any notice prior to termination of this contract during the probationary period. If Commission terminates the contract Contractor shall be paid for all fees earned and costs incurred prior to the termination date. Contractor shall not be entitled to compensation for lost profits. 21. MISCELLANEOUS. 21.1 Nonwaiver. Waiver by either party of strict performance of any provision ofthis agreement shall not be a waiver of or prejudice the party's right to require strict performance of the same provision in the future or of any other provision. 21.2 Attorney Fees. If suit or action is instituted in connection with any controversy arising out of this agreement, the prevailing party shall be entitled to recover in addition to costs such sum as the court may adjudge reasonable as attorney fees at trial, on petition for review, and on appeal. 21.3 Notices. Any notice required or permitted under this agreement shall be given when actually delivered or 48 after deposited in United States mail as certified mail addressed to the address first given in this agreement or to such other address as may be specified from time to time by either of the parties in writing. 21.4 Succession. Subject to the above-stated limitations on transfer of Contractor's interest, this agreement shall be binding on and inure to the benefit of the parties and their respective successors and assigns. 21.5 Entry for Inspection. Commission shall have the right to enter upon the premises at any time to determine Contractor's compliance with this agreement, to make necessary repairs to the premises, or to show the premises to any prospective Contractor, and in addition shall have the right, at any time during the last two months of the term of this agreement, to place and maintain upon the premises notices for opportunity for the concession. Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 14 21.6 Interest on Fees and Other Charges. Any fees or other payment required of Contractor, or sums collected by Contractor on behalf of the Commission, by this agreement shall, if not paid within 10 days after it is due, bear interest at the rate of 12% per annum (but not in any event at a rate greater than the maximum rate of interest permitted by law) from the due date until paid. In addition, if Contractor fails to pay any fees or other payment required by this agreement to be paid to the Commission or to pay sums collected by Contractor on behalf of Commission, within five days after it is due, Commission may elect to impose a late charge of five cents per dollar of the overdue payment to reimburse Commission for the costs of collecting the overdue payment. Contractor shall pay the late charge upon demand by Commission. Commission may levy and collect a late charge in addition to all other remedies available for Contractor's default, and collection of a late charge shall not waive the breach caused by the late payment. 21.7 Time of Essence. Time is of the essence of the performance of each of Contractor's obligations under this agreement. By By ASHLAND PARKS COMMISSION () IL .---" Don Robertson, Director City of Ashland Ashland Parks and Recreation Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 15 Exhibit A 1. Grill and Table Stand 2. Double Glass Door RefrigeratQI 3. Ice Machine and Bin 4. Sandwich Prep Table 5. Sink 6. Holbart Slicer Golf Professional Services Contract Oak Knoll Golf Course - Bob Haney Page 16