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JOHNSON GOLF MANAGEMENT, INC., PLAINTIFF V. TOWN OF DUXBURY, AND NORTH HILL ADVISORY COMMITTEE, CONSISTING OF MICHAEL DOOLIN , CHAIRMAN , SCOTT WHITCOMB , ROBERT M. MUSTARD , JR ., MICHAEL MARLBOROUGH , ANTHONY FLOREANO , MICHAEL T. RUFO , THOMAS K. GARRITY , RICHARD MANNING , W. JAMES FORD , AND GORDON CUSHING (EX OFFICIO ) Defendants
AFFIDAVIT OF DOUGLAS W. JOHNSON IN SUPPORT OF MOTION FOR INJUNCTIVE RELIEF
I am president and treasurer of the plaintiff, Johnson Golf Management, Inc. I have more than thirty five years experience in the golf industry. Since 1988 I have been operating Johnson Golf Management, Inc., a golf management company which manages and maintains golf courses, both public and private. Since 1988 I have been involved in submitting more than seventy five proposals to municipalities concerning their municipally owned golf courses. On January 8, 2009 my company submitted a Proposal to the Town of Duxbury to maintain and operate the North Hill Country Club.
Before filing the present Motion For Injunctive Relief in this matter, my attorney
reviewed the public records of the Town of Duxbury pertaining to the Request For Proposals for operation and maintenance of the North Hill Country Club Golf Course. The RFP provided that all proposals were due on or before January 9, 2009. 3. On Thursday January 15, 2009, I was informed that the Town of Duxbury had elected to award the contract for the North Hill Golf Course to CALM Golf, Inc. 4. On Friday January 16, 2009 and Tuesday, January 20, 2009, my attorney, Stephen R. Follansbee went to the Town Manager’s Office at the Duxbury Town Hall to review the public records pertaining to the RFP process. He spoke to the Town Manager who allowed him to review the proposals and the evaluations. 5. The Town Manager, Mr. Richard Mac Donald also provided my attorney with a copy of the “Award of the Contract” dated January 15, 2009. [Copy attached hereto marked Exhibit “A”] 6. On information and belief, having reviewed the evaluations, the proposals and the award letter, my attorney marked certain documents and submitted a written request for copies. 7. On information and belief, in its proposal, signed under the pains and penalties of perjury by Mr. Charles Lanzetta, CALM Golf states the following in its proposal: “CALM Golf has entered into and been awarded many previous and present contracts throughout its six years in existence.” The Proposal further states that CALM Golf has a present contract at the Rockland Golf Course which provides revenue of XXX per year. For a “contact reference” at Rockland, CALM Golf names Mr. Charlie Lanzetta 781-878-5836 Ext. 13. 8. According to the Award letter, the evaluators and the Chief Procurement Officer mistakenly concluded that CALM Golf was currently operating the Rockland Golf Course 2
and that it had done so for the past five years. 9. 10. Calm Golf does not now, nor has it ever, operated the Rockland Golf Course. Mr. Charles Lanzetta, an individual identified as a secretary and director of Calm Golf, is also an officer of a Massachusetts business corporation known as C.P. & L., Inc. [Copies of Annual Reports of CALM and C. P.& L. are attached hereto marked Exhibits “B” and “C”] 11. The Rockland Golf Course is a private, 18 hole, par 3 course located in Rockland, Massachusetts. C.P.& L. does lease nine holes of the Rockland Golf Course from the owner of the Rockland Golf Course, The Trust For Public Land, 33 Union Street, Boston, Massachusetts. [Copy of Lease Modification attached hereto marked Exhibit “D”] 12. C.P. & L. is in bankruptcy, having filed its second voluntary petition for bankruptcy on March 28, 2008. The bankruptcy is pending as Docket No. 08-12193-HJB in the United States Bankruptcy Court, Massachusetts District, Eastern Division. 13. Mr. Richard MacDonald, the chief procurement officer in Duxbury, in his Award Letter bases his decision in part upon the following facts: a. b. c. d. e. f. Calm Golf is currently managing a golf course Evaluator Studley notes that Calm currently manages Rockland and has been in business since 1978 Calm’s experience at Rockland confirms its ability to run North Hill Calm has sufficient financial information to be considered the most advantageous proposer for the Town This award is predicated on a turn-key time frame that requires the facility to be fully operative in early 2009 Financial data provided must give the Town confidence that the Proposer could administer a significant business such as North Hill
In order to achieve a rating of Highly Advantageous in the area of Relevant Experience, 3
the RFP required that the proposer be currently managing at least two municipal golf course operations. 15. In order to achieve a rating of Advantageous in the area of Relevant Experience, the RFP required that the proposer be currently managing at least one golf course and it must have three years experience operating such a course. 16. CALM Golf, having never managed any golf course for an entire season should have received a rating of “Unacceptable” in the category of Relevant Experience. 17. In order to achieve a rating of Highly Advantageous in the area of Organizational Capability, the RFP required that the Director of Golf/General Manager have at least three years managing a municipal golf course operation. It further requires the on site superintendent to have three years experience as a superintendent together with experience with the Rainbird Maxi V Irrigation System. 18. CALM Golf and its proposed personnel have at most several months experience managing a municipal golf course. On information and belief, the superintendent proposed by CALM Golf is Mr. Ryan Anderson. Mr. Anderson does not have the requisite three years experience as a golf course superintendent. On information and belief, according to the resume supplied to the Town of Duxbury by CALM Golf, Mr. Anderson has a total of three months as an “Interim Superintendent” from October 2005 to December, 2005. Most recently, Mr. Anderson has been employed as an assistant superintendent at the Harmon Golf Learning Center in Rockland, Massachusetts. Giving CALM Golf’s proposal the benefit of every doubt, the absolute highest score it could achieve in the category of Organizational Capability would have been “Advantageous.” 4
In order to achieve a rating of Highly Advantageous in the area of Maintenance Equipment/Staff, the RFP required that the proposer demonstrate for three years or more “a proven ability to maintain more than one golf course.”
In order to achieve a rating of Advantageous in the area of Maintenance Equipment/Staff, the RFP required that the proposer demonstrate for three years or more “a proven ability to maintain a single golf course.”
CALM Golf, having never managed even one golf course for a full year should have received a rating of “Unacceptable” in the category of Maintenance Equipment/Staff.
In order to achieve a rating of Highly Advantageous in the area of Financial Information, the RFP required that the proposer submit financial statements which were independently audited by a Certified Public Accountant.
CALM Golf submitted unaudited “compiled” financial statements showing no income for the past three years and no assets of any significance. On information and belief, CALM’s accounting firm specifically stated that it did not perform an audit and that the disclosures required by management were omitted in the materials provided to the accounting firm.
On information and belief, in the financial information provided by CALM Golf in its proposal, Calm reported the following: a. Total Revenue 2005 b. Total Revenue 2006 c. Total Revenue 2007 d. Total Assets 2005 e. Total Assets 2006 -0-0-04,411.92 1,336.92
The draft contract for the North Hill Golf Course, which was included in the Town of Duxbury’s Request for Proposals, includes the following provision: 5
12 A. Default by Bankruptcy “It shall be a default under this Agreement if Manager: a) Shall be declared bankrupt or insolvent according to the law, or if any assignment shall be made for the benefit of creditors.” 1
In view of the analysis provided in the Award Letter of Mr. MacDonald, it is clear that C.P. & L. Inc., the company which actually does manage nine holes at the Rockland Golf Course would not have been favorably looked upon as a proposer in the North Hill RFP Process.
The above statements are made under the pains and penalties of perjury except for those items based upon information and belief and as to those items, I believe them to be true..
Dated: January 20, 2009 _______________________________ Douglas W. Johnson
Article 12 A Default by Bankruptcy, page 19 RFP 6
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