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HomeMy WebLinkAboutR-95-0772J-95-789 10/26/95 9 J_ 772 Z RESOLUTION NO. 4 A RESOLUTION, WITH ATTACHMENT, ACCEPTING THE PROPOSAL AND SELECTING BUNKERS OF MI.AMI, INC.,("BUNKERS") AS THE SOLE QUALIFIED RESPONDENT TO THE REQUEST FOR QUALIFICATIONS AUTHORIZED BY THE CITY COMMISSION PURSUANT TO RESOLUTION NO.94-584, ADOPTED JULY 26, 1994, FOR THE MANAGEMENT AND OPERATION, INCLUDING ANY REQUIRED CONSTRUCTION OR RENOVATION OF THE MUNICIPAL GOLF' COURSE FACILITY KNOWN AS MELREESE GOLF COURSE; AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH BUNKERS, IN SUBSTANTIALLY THE ATTACHED FORM, PROVIDED THAT THE AGREEMENT SHALL BE NULL AND VOID AND SHALL TERMINATE WITHOUT ANY LIABILITY TO THE CITY ON 'THE PART OF BUNKERS IN THE EVENT THAT THE ORDINANCE UNDER ITEM 33A OF THIS AGENDA IS NOT ADOPTED BY THE CITY COMMISSION ON OR BEFORE APRIL 30, 1996; FURTHER AUTHORIZING THE CITY MANAGER, DUE TO TIME CONSTRAINTS INHERENT IN THE TYPE OF RENOVATIONS CONTEMPLATED HEREIN, TO ENGAGE IN COMPETITIVE NEGOTIATIONS FOR. THE PROCUREMENT OF ALL SERVICES NECESSARY TO COMPLETE THE RENOVATIONS SUBJECT TO COMPLIANCE WITH APPLICABLE CITY CHARTER AND CODE PROVISIONS; ALLOCATING FUNDS FOR CONSTRUCTION OF THE IMPROVEMENTS, IN AN AMOUNT NOT TO EXCEED $3,900,000, FROM THE SUNSHINE STATE GOVERNMENTAL FINANCING COMMISSION, SECONDARY LOAN POOL. WHEREAS, the Melreese Golf Course is in dire need of renovation; and WHEREAS, the City ,Commission, pursuant to Resolution No. 94-584, adopted July, 26, 1994, authorized the issuance of a Request for Qualifications ("RFQ") in order to identify the most ATTACHMENT (S) CONTAINED CITY COMMISSI©N MEETING OF OCT 26199 Resolution No, 7 7 9. r� i qualified firm which could manage and operate the Melreese Golf Course and oversee its renovation; and WHEREAS, Bunkers of Miami, Inc., was the sole respondent to the RFQ and was deemed qualified to perform the required services; and WHEREAS, due to time constraints inherent in the type of renovation contemplated herein, the best method to procure the Course is that of competitive negotiations; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The proposal and selection of Bunkers of E Miami, Inc., as the sole qualified respondent to the Request for E Qualifications authorized by the City Commission pursuant to Resolution No. 94-584, adopted July 26, 1994, for the management 3 and operation, including any required construction or renovation, of the Municipal Golf Course facility known as Melreese Golf Course is hereby accepted. Section 3. The sum of up to $3,900,000 is hereby allocated for construction of proposed renovations to the Gulf Course facilities from Sunshine State Governmental Financing Commission, Secondary Loan Pool. 2- 95- 772 1 ` Section 4. The City Manager is hereby authorized to execute an agreement with Bunkers, in substantially the attached form, provided that the agreement shall be null and void and shall terminate without any liability to the City on the part of Bunkers in the event that the Ordinance under item 33A of this agenda is not adopted by the City Commission on or before April 30, 1996. Section 5. Further, due to time constraints inherent with the type of renovation contemplated in the attached agreement, the City Manager is hereby authorized) to engage in competitive negotiations for the procurement of services necessary to complete the renovations. Section 6. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 26th day of October, 1995. STEPH P. CLARK, MAYOR ATTEST: WALTER J. J, CITY CLERK PREPARED AND APPROVED BY: OLGA RAMIREZ- IJ S ASSI TANT CIT 'ATTORNEY W297:csk:ORS APPROVED AS TO FORM AND CORRECTNESS: A.. I ONES, III CIT A RNEY 1 The herein authorization is further subject to compliance with all reduircments that may be imposed by the City Attorney. including but not limited to those prescribed by applicable City Charter and Code provisions. -I- C9C_ 772 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM TO: Walter Foeman DATE April 4, 1996 FILE City Clerk SUBJECT. Melreese Contract FROM : Olga Ramirez-Seljas'� REFERENCES: Assistant City Attorney ENCLOSURES: The purpose of this memo is to clarify and correct an error regarding the effective date of the referenced agreement. The City Commission Meeting Summary for the meeting of October 26, 1995 erroneously stated that the Resolution approving the contract was being amended to make the effective date of the contract the same as the effective day of the Ordinance under Item 33A of the Agenda. Based on this information, the contract was dated as of the effective day of the Ordinance. A review of the transcript for the October 26, 1995 meeting, however, revealed the error. The Resolution approving the Melreese Contract was indeed amended, but the amendment was a proviso that "the agreement shall be null and void and shall terminate without any liability to the City in the event that the Ordinance under Item 33A of this Agenda is not adopted by the City Commission on or before April 30, 1996." The Ordinance was adopted and consequently the contract is in effect. { i ORS/et � m• 3=0 4 �T 95- 17 7a. MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT is made and entered into this day of , 1995, by and between the City of Miami, a municipal corporation (the "City") and Bunkers of Miami, a Florida .Joint Venture (the "Operator"). WITNESSETH WHEREAS, the City holds title to a golf course known as Melreese Golf Course (the "Property") located at 1802 N.W. 37 Avenue in the City and legally described in Exhibit "A" hereto; and WHEREAS, the City wishes to provide a golf course facility to the general public to be operated in accordance with professional standards and practices for which the Operator has submitted its qualifications and which qualifications have been accepted by the City; and WHEREAS, the Operator wishes to provide the City with the benefits of its knowledge, expertise and abilities in operating said golf course facility; NOW, THEREFORE, for and in consideration of the mutual promises, obligations, representations and covenants contained in this Management Agreement, and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, the City and Operator do hereby agree as follows: 1. DEFINITIONS. When used in this Agreement, the terms listed below will have the following meanings: "Affiliated Party" means any entity that has management, control or an ownership interest of five percent (5%) or more in the Operator, or which is managed, controlled or owned by five percent (5%) or more by Operator or by another party which also has management, control or an ownership interest of five percent (5%) or more in the Operator. "Agreement" means this Management Agreement. "Approved Subcontractor" means any entity contracted by the Operator to fulfill an obligation of the Operator. "Approved Subcontractor Fees" means those payments made by an Approved Subcontractor to the Operator. "City's Contribution" means an amount not to exceed $3,900,000.00 made available for renovation, repairs and replacement of the Golf Course Facilities. 95- 772 "Clubhouse" means the existing or planned permanent clubhouse located on the Golf Course Facilities. "Commencement Date" means the date of execution of this Agreement and approval by the City Commission. "Fiscal Year" means a period consisting of 365 days. For purposes of this Agreement, the First Fiscal Year shall commence on the Reopening Date and for the final year of the term, the Fiscal Year shall end on the 365th day of the 30th year after the Reopening Date. "Golf Course" means the portion of the Property (and all improvements thereon) upon which the eighteen (18) holes of the golf course, driving range and ancillary facilities are located. "Golf Course Facilities" means the Property and all existing and/or future improvements, equipment, furniture and fixtures located within the Property, including the Clubhouse. "Golf Course Sales & Income" means all gross sales associated with the Golf Course Facilities, including but not limited to gross sales derived from greens fees, cart fees, cancellation charges, driving range fees, trail fees, Approved Subcontractor Fees, reservation fees, locker rental, equipment rental, bag storage, equipment repair, charges for use of any pro shop/clubhouse space and all monies received from all sources excepting only: applicable sales taxes paid to a legal taxing authority, tips and gratuities paid by users of the facilities to service providers (so long as such tips and gratuities are not paid in lieu of sales), returns and allowances documented in accordance with procedures approved in advance and in writing by the City Manager, his designee or representative and fees paid for golf lessons and organized golfing schools provided, however, that employee discounts are not included and recognized as Golf Course Sales and Income. "Merchandise/Food and Beverage Income" means all monies received from Merchandise/Food and Beverage Sales excepting only applicable sales taxes paid to a legal taxing authority, tips and gratuities paid by users of the Facilities to service providers so long as such tips and gratuities are not paid in lieu of sales, returns and allowances documented in accordance with procedures approved in advance and in writing by the City Manager. All employee meals and discounts are included in the definition of Merchandise/Food and Beverage Income. "Net Operating Income" means the amount by which Golf Course Sales and Income plus Merchandise/Food and Beverage Income is greater than Operating Expenses during each Fiscal Year. "Net Operating Loss" means the amount by which Golf Course Sales and Income plus 2 9 5 - 772 Merchandise/Food and Beverage Income is less than Operating Expenses during each Fiscal Year. "Operating Expenses" means with respect to any Fiscal Year, all operating, maintenance and other costs and expenses incurred in connection with the operation of the Golf Course Facilities including, but not limited to, the Repayment of City's Contribution purchasing of supplies, leasing of eq dpment, maintenance and repair of the Golf Course Facilities, calculated in accordance with generally accepted accounting principles, costs of goods sold, salaries of all employees employed by Operator for the Golf Course Facilities and all appurtenant payroll expenses and fringe benefits and payroll taxes of every nature, charges (including supplies of every kind) for cleaning, security guard service, exterminating service, trash and disposal service, heat, air conditioning and utilities (including taxes thereon), water and sewer charges, charges pursuant to service contracts with independent contractors, charges for legal services, charges for accounting services, licenses and permit fees, insurance premiums, advertising and promotional fees, fidelity bonds, excluding any and all property taxes, including real and personal property taxes and assessments of every nature levied on the Golf Course Facilities. "Reopening Date" means the date on which the Golf Course Facilities are reopened to the public after completion of the renovations or ninety (90) days following the Completion Date, as defined in Paragraph 5.12 hereof, whichever occurs first. "Repayment of City's Contribution" means the stipulated amount of Two Hundred and Seventy -Five Thousand Dollars ($275,000.00) to be paid by Operator to City each year throughout the Term of this Agreement in accordance with the provisions of Paragraph 7 hereof. "Term" means the Initial Term and Renewal Term, collectively, as described in Paragraph 2 hereof. 2. TERM. 2.1 The term of this Agreement (the "Term") shall commence as of the Commencement Date and expire on the last day of the thirtieth Fiscal Year (the "Initial Term"). The City shall have the option to extend the Initial Term by two (2) additional terms of five (5) years each (each such additional term being referred to herein as the "Renewal Term") by giving written notice to Operator of its intention to do so at least 180 days prior to expiration of the then current term. 3. APPOINTMENT OF OPERATOR 3.1 City hereby engages Operator as an Independent Contractor and not as an employee of City, to operate, manage and maintain the Golf Course Facilities during the Term 3 in accordance with the terms and conditions set from herein, and Operator hereby accepts such engagement. In addition, the Operator shall act as City's Project Manager during the Construction Period and shall provide such expertise and guidance as appropriate and acceptable to the City Manager, accomplishing or overseeing the design and renovation of the Property on behalf of the City, and notifying the City Manager of any and all discrepancies in the design or work as intended or approved by City contract or the Citti' Manager. 3.2 The Operator acknowledges that Operator has been retained as contract manager only, and, as such, Operator shall have no interest in the Golf Course Facilities as owner, lessee or otherwise. All mineral rights and all land ownership rights are hereby reserved by the City. However, the City may contract with or through the Operator for development or use of such rights. The City agrees that no exploration of such minerals shall occur after completion of the Golf Course Facilities or sale of the Golf Course Facilities without the mutual written agreement of City and Operator. 4. OBLIGATIONS AND RESPONSIBILITIES OF OPERATOR 4.1 Fiscal Obligations 4.1.1 The Operating Budget for the Golf Course Facilities for the First Fiscal Year shall be as set forth in Exhibit "B" attached hereto and incorporated herein. 4.1.2. No later than sixty (60) days prior to the commencement of each Fiscal Year, commencing with the second Fiscal Year, Operator shall provide the City Manager with a copy of its proposed operating budget projecting all sales and expenses of the Golf Course Facilities for the next Fiscal Year. Such budget shall be reasonable in light of past operations and expenses and in light of projected operations for the coming Fiscal Year. Operator and City Manager shall then discuss such budget in good faith and Operator will consider any input from the City Manager. The City Manager shall approve or disapprove the budget within thirty (30) days of receipt of such proposed budget. In the event that the City Manager fails to approve or disapprove the budget within such thirty (30) days, then the budget shall be deemed approved. In the event the City Manager disapproves the Budget then he must submit to Operator the reasons for disapproval. Operator and City Manager shall use their best efforts to reach an agreement with respect to the proposed Budget. In the event the parties cannot reach an agreement, then the prior years budget shall be utilized with up to a five percent (5%) increase in the total budget as determined solely by Operator. 4.2 Operational Responsibilities 4.2.1 Operator shall operate and maintain the Golf Course Facilities in accordance with standards similar to those of other local public first-class daily fee golf course facilities. 4 95- 772 4.2.2 Operator shall hire and assign a full-time manager comparable to managers at similar public first-class daily fee golf courses. The manager shall be present at the Golf Course Facilities during normal business hours. At times when the full-time manager is absent, there shall be a designated assistant manager presctzt. The Operator agrees to supply the City with background information and telephone numbers for making contact with the manager and assistant manager. 4.2.3 The Operator shall hire, train, promote, fire and be responsible for all personnel matters of its employees at the Golf Course Facilities. The Operator shall be responsible for the conduct of its officers, directors, management and employees who shall conduct themselves in a manner so as not to cause civil or criminal charge and shall provide safe, courteous, honest and efficient service to patrons of the Golf Course Facilities. 4.2.4 The Golf Course Facilities shall be made available to the City on weekdays for up to four (4) special functions per year between April 15 - November 15 of each year. Such special functions may include up to one hundred and forty-four (144) players each. City and retired City employees playing golf at such special functions shall not be required to pay any greens fees, but shall pay the cost of cart fees, food and beverage and any merchandise provided by Operator. 4.2.5 The City Manager and Operator shall establish emergency procedures for the Golf Course Facilities and each operation thereon to be implemented in case of hurricane or other emergency. 4.2.6 Operator shall use its best efforts to ensure that all Approved Subcontractors shall be trained in their duties and shall be safe, courteous, helpful and efficient in carrying cut those duties. Further, Operator represents that all of its employees shall be so trained and shall perform their duties as herein required. 4.2.7 Operator shall abide by all laws, statutes, ordinances, rules, regulations and other enforceable issuance by bodies with legal jurisdiction, including but not limited to laws relating to discrimination, civil rights, health, safety and welfare of individuals. 4.2.8 All terms and conditions of this Agreement shall extend, to, be binding on and directly enforceable upon Approved Subcontractors, licensees and permittees as authorized under this Agreement. 4.2.9 In the event of assignment or subcontract by Operator of any of its obligations with respect to the Golf Course Facilities (which shall at all times be subject to City Manager's prior written approval), Operator will guarantee to the City the due performance of any and all such obligations. 4.2.10 Any property not owned by the City remaining at the Golf Course Facilities , more than thirty (30) days after termination or expiration of this Agreement shall be deemed, at the election of the City, to be (1) a gratuitous gift to the City or (2) removed from the Golf Course and stored or disposed of by the City at the cost of the Operator. 4.2.11 The Operator shall have the right to use all City -owned personal property at the Golf Course Facilities, and City agrees to make all such property available to Operator as of the Commencement Date. Any replacement or substitution of such personal property shall become City personal property upon replacement or Substitution. All City -owned personal property must be returned to the City in Its original condition, normal wear and tear excepted as appropriate during the term of this Agreement, upon expiration or termination of this Agreement. 5. RENOVATION OF GOLF COURSE FACILITIES 5.1 Renovation - Immediately following the Commencement Date, Operator shall initiate all action necessary to implement the following improvements (the "Improvements"): a. Renovate and rebuild greens, tees, fairways and roughs; b. Rebuild and renovate all sand bunkers (traps); C. Construct cart paths as planned; d. Install new automatic irrigation system; e. Evaluate existing golf course maintenance equipment and purchase additional equipment as needed to operate an 18 hole public golf course facility. £ Redesign golf course to enlarge facility to accommodate a state of the art practice range and family golf teaching center. g. Construct a new Clubhouse Facility including male and female locker rooms and shower facilities. The parties anticipate that on or about March 1, 1996 , the Golf Course will be closed in order to commence construction of the Improvements as provided for in this Agreement which shall be completed within the eighteen (18) months thereafter. 5.2 Fundingof f Improvements. Furniture, Fixtures and Equipment - The City shall provide the sum of Three Million Nine Hundred Thousand Dollars ($3,900,000.00) for the design and construction of the Improvements (the "Construction Costs") and for purchase of furniture, fixtures and equipment ("FF& E") in accordance with the Construction Budget approved by the City Manager. In the event that the Construction Costs and FF&E are less than C 95- 772 the amount of City's Contribution then the Operator may use up to Three Hundred and Ninety - Thousand Dollars ($390,000.00) to establish a Reserve Account for repair and replacement of Golf Course Facilities. In the event that a grant can be obtained by Operator or City, then the proceeds from such grant shall be used for the purposes set forth in the grant. grant application or any other legal purpose. All grant proceeds shall not be considered part of the City's Contribution. 5.3 Operator's Responsibilities During Renovation. In addition to all other duties and responsibilities set forth herein, the Operator shall have the following responsibilities during the Construction Period. as the term defined in Section 5.5 below. 5.3.1 Project Manager Operator shall act as the Project Manager during the planning, design and construction phases of the Improvements, subject to the terms and conditions established by law and by this Agreement. Operator's responsibilities include, but are not limited to, the following: a. Prepare for City's approval, a preliminary renovation plan and proposed schedule for the Improvements and proposed Construction Budget. b. Prepare all documentation necessary to obtain all permits and approvals needed to implement the renovations and construct the Improvements. C. Assist the City in the procurement of all services needed to implement the renovations and prepare, for City's approval, all contracts in connection therewith. d. Administer, subject to City's approval, all contracts for the construction of the Improvements. e. Provide technical advice and such other services as may be required by the City to complete the renovations. 5.3.2 Design Renovation of Golf Course. Operator shall be responsible for the design of the Golf Course and agrees to submit to the City Manager, for his approval, a design plan for the Golf Course, not later than five (5) months following the Commencement Date. In this connection, Operator represents and warrants that it possesses all qualifications and the necessary expertise to design the Golf Course and prepare all documents and instruments required in connection therewith. Operator further represents and warrants that the design of the Golf Course does not require the type of professional services described in Section 18-52.3 of the Code of the City of Miami and indemnifies and holds City harmless from and against any and all claims arising out of the design of the Golf Course and/or non- compliance with Section 18-52.3 of the Code. 7 95- 772 5.4 Contractina Methods and Procedures. Operator understands and agrees that the procurement of all services for the construction of the Improvements is subject to the Code of the City of Miami and represents and warrants that it is thoroughly familiar with and will strictly observe and comply Nvith all requirements contained therein. Due to several factors including: (a) weather considerations which require that the improvements be constructed during the "dry" season and (b) the importance of various factors (not only the lo,,vest price) in the awarding of contracts for the construction of the Improvements, the City has determined that it is more practical and advantageous for the City to use Competitive Negotiations in the procurement of the services required for the renovations as permitted by and in accordance Nvith Section 18-52.2 of the Code of the City of Miami. (Notwithstanding the foregoing, it is agreed that the competitive methods and procedures prescribed in Section 18-52.3 of the Code shall be used if the services described therein are required). In furtherance of the foregoing, the City and Operator shall, within forty-five (45) days following the Commencement Date, establish a three (3) member committee to implement the Competitive Negotiation Requirements established by the Code and make the appropriate recommendations to the City Manager. The Committee shall consist of a representative of the Department of Parks and Recreation of the City and a representative of the City's Asset Management Department both to be appointed by the City Manager and a third member appointed by Operator. Operator understands and agrees that all contracts procured in accordance with Section 18-52 shall be subject to City Commission approval. 5.5 Design and Construction Period - Operator shall take all necessary action to ensure that the design plan for the Golf Course be completed within five (5) months following the Commencement Date (the "Design Period"). The Improvements shall be completed during the fourteen (14) month period immediately following the Design Period (the "Redevelopment Period"). The Construction Period, which combines the Design Period and the Redevelopment Period, shall not exceed a total of nineteen (19) months from the Commencement Date, subject, however, to delays caused by Force Majeure as provided for in Section 17 of this Agreement or delays caused by the City. 5.6 Standards for Construction of Golf Course - The standard for the design and construction of the Golf Course Facilities shall be comparable to those of similar municipal golf courses in Dade County. All Improvements shall become the property of the City immediately upon being constructed. The construction of the Improvements shall be in accordance with the design development documents (the "Design Development Documents"), construction documents (the "Construction Documents") and schematic design documents (the "Schematic Design Documents"), (collectively the "Plans"), all of which shall be subject to the City's Manager's prior written approval. The approval by the City Manager of the design plans for the Golf 8 95- 7712 Course pursuant to this Section shall not relieve the Operator of any responsibilities in connection therewith. Specifically, Operator shall be responsible for the submission of such plans to the appropriate departments of the City or any other governmental authority having jurisdiction over them and for obtaining all building or other permits or approvals required by law. Operator acknowledges that any approval given by the City Manager pursuant to this Section shall not constitute an opinion or agreement by the City that such plans are sufficient or in compliance with any laws, codes or other applicable regulations, and no such approval shall impose or imply any liability on or waive any rights of the City. 5.7 Construction Budget - Within one hundred and fifty (150) days after the Commencement Date, Operator shall prepare and submit to the City, for its approval, a proposed Construction Costs and an FF&E Budget. The procurement of services and all amounts to be paid under each contract shall be made in strict adherence to the approved Construction Costs and FF&E Budget (the "Construction Budget"). All expenses in excess of the three million nine hundred thousand dollars ($3,900,000) shall be borne by Operator unless they have been approved, in advance, by the City Manager. 5.8 Changes in Plans and Specifications - All material changes or additions to the Plans shall be submitted to the City Manager for his approval, which may not be unreasonably withheld or delayed. Tine Operator may make changes and additions to the Plans without the City Manager's approval which are not substantial; provided, however, that in no event shall the City be required to pay any amounts in excess of the Construction Costs, unless the City Manager has previously approved such payment. 5.9 Procedures for Approval or Disapproval - Unless otherwise specifically provided for in the Agreement or in the Event of Force Majeure, any consent or approval required by Operator from the City Manager pursuant to the terms of this Agreement which has not been given or denied within twenty (20) business days following receipt of the request for consent and/or approval by the City Manager, shall be deemed to have been approved by the City Manager. In the event that the City Manager disapproves or qualifies his approval or consent within such twenty (20) business day period, said disapproval or qualification shall be in writing setting forth the reasons therefor. Any and all requests for consent and/or approval shall be accompanied by all documents and/or information necessary to permit an adequate evaluation of same by the City Manager and shall be sent by United States registered or certified mail, return receipt requested, postage prepaid or hand delivered to the City Manager's office. 5.10 Operator's Obligations where Construction Budget is Exceeded - In the event the Construction Budget is exceeded without City Manager's agreement to pay such excess or if Operator elects to make Improvements, tine costs of which exceed the Construction Cost then, at the City Manager's request and within five (5) business days thereafter, the Operator shall deposit in an account to be designated by the City Manager the amount required to pay such excess cost. 5.11 Right of Inspection During Construction of Improvements - During the Construction Period, the City may inspect, but shall have no duty or obligation to do so, the 0 95-- 772 construction of the Improvements and the materials being used or to be used in the performance of the work. If during construction of the Improvements, the City shall reasonably determine that the materials used or the construction of the Improvements do not substantially conform to the approved Plans , then the City may give written notices thereof to Operator specifying the nature of the deficiency. defect, or omission. Upon receipt of such tivritten notification. Operator shall, within thirty (30) days thereafter, take such steps as may be necessary to correct such defects, deficiencies or omissions unless Operator is granted an extension in writing by the City Manager or it is impossible to correct such defects within thirty (30) days in which case such defects must be corrected in a reasonable amount of time. Operator agrees to permit the City Manager or its designee(s) to enter the Golf Course Facilities at any time for any purpose the City deems necessary for the duration of this Agreement. 5.12 Construction Schedules and Completion Dates - In the event that Construction of the Improvements is not completed within twenty-four (24) months after the Commencement Date, the City may terminate this Agreement upon sixty (60) days written notice to Operator, unless the delay is caused by an event of Force Majeure or by actions or inaction of the City. In such event the period for completion of construction shall be extended by a time period commensurate with such delay. Construction of the Improvements shall be deemed completed upon the issuance of the appropriate certificate of completion, occupancy or its equivalent for the entire Golf Course Facilities. The date of such certificate shall be the "Completion Date". 5.13 Payments - Payments for services performed in connection with the Renovations shall be made in accordance with the corresponding agreement. 5.14 Construction Liens - Operator indemnifies and holds the City, its officials and employees, harmless from and against all claims for labor and materials in connection with supplies, equipment, improvements, repairs or alterations of the Golf Course Facilities and the cost of defending against such claims, including reasonable attorneys' fees. Ten Dollars ($10.00) is granted as separate and distinct consideration for this indemnity. 5.15 Bonds and Insurance - Construction of the Improvements shall not commence until Operator has secured and submitted to the City for approval all insurance policies and all performance and or payment bonds that may be required by the City, the City of Miami Code and/or Section 255.05, Florida Statutes, all in form and substance satisfactory to the City. 6. OPERATOR FEES AND LOSSES 6.1 Project Manager Fee: During the Construction Period , the City shall pay as part of the Construction Budget to Operator the sum of four thousand dollars ($4,000.00) per month, as Project Manager Fee (the "Project Manager Fee"). Additionally, Operator shall be entitled to receive ten percent (10%) of the monthly Golf Course Sales and Income and Merchandise/Food and Beverage Income, if any, as a management fee during the Construction Period. The Project Manager Fee shall not be deemed an Operating Expense but shall be part of the Construction Cost. For purposes of this Agreement "Construction Period" shall be the 10 rim period of time commencing on the Commencement Date and ending on the Reopening Date. 6.2 Design Fee: As compensation f'or the design of the Golf Course, the Operator shall be paid a Design Fee of Two Hundred Twenty Thousand Dollars ($220,000.00) (the "Design Fee"). The Design Fee shall be deemed part of the Construction Cost and shall be paid as follows: (a) 20% - Upon commencement of the Design Plan; (b) 30% - Upon City's approval of the Design Plans; (c) 30% - Upon commencement of Construction; and (d) 20% On the Completion Date. 6.3 Management Fee The Operator's management fee shall be equal to Net Operating Income during each Fiscal Year. Operator may project on a quarterly basis the Net Operating Income for the Fiscal Year and disburse such projected quarterly Net Operating Income to itself as its management fee. 6.4 Operator Losses The Operator shall be responsible for the payment of all Net Operating Losses. 7. REPAYMENT OF CITY'S CONTRIBUTION 7.1 The City shall be paid by Operator as an Operating Expense, the sum of Two Hundred and Seventy Five Thousand Dollars ($275,000.00) per year for each year during the term of this Agreement. The payments shall be made on a semi-annual basis and shall be One Hundred Thirty -Seven Thousand Five Hundred Dollars ($137,500.00) each. The first semi-annual payment shall be paid to the City 183 days after the commencement of the First Fiscal Year. Thereafter, a payment shall be made each 183 days later. 7.2 City Losses The City shall not be responsible for any Net Operating Losses. 8. EMINENT DOMAIN 8.1 In the event of a taking of the Golf Course Facilities by eminent domain, the following provisions shall apply: 11 95- 772 8.1.1. If less than all or substantially all of the Golf Course Facilities or any individual portions of the Golf Course Facilities are taken by any governmental or quasi -governmental body the City and Operator shall determine whether in its reasonable judgment the Golf Course Facilities (or the applicable portion thereof) can continue to be operated for its intended use. In the event the Operator decides to continue the operation of the Golf Course Facilities, then the Operator shall be entitled to use such portion of the proceeds of the condemnation award paid in connection with such taking as determined by the Operator and the City to be necessary to restore the remaining portions of the Golf Course Facilities (or the applicable portions thereof) and/or to make additional improvements as are necessary to continue the operation of the Golf Course Facilities (or the applicable portions thereof); 8.1.2. If all or substantially all of the Golf Course Facilities (or applicable portion thereof) are taken by any governmental agency this Agreement shall terminate and neither party shall have any further right or obligations hereunder. In such event the parties shall be entitled to a portion of the condemnation award based on the amount of damages resulting to each party by reason of such taking. In the event that a single award is made without separately determining the respective interests of the parties and the parties cannot agree as to their respective portions of the award within twenty (20) days after the final determination of the amount thereof, then the City and Operator agree to submit the matter to a court of competent jurisdiction for a final determination of their respective shares. 8.2 If the Golf Course is relocated for any reason, including condemnation, the Operator shall act as the City's Project Manager in the location, design and construction phases. The City shall execute a new contract with the Operator for management of the new site with the same Management Fee term as set forth herein. 9. USE AUTHORIZATIONS AND STANDARDS 9.1 Operator agrees that the Golf Course Facilities will be used by Operator as a golf facility with related golf activities, recreational amenities, hospitality facilities, and amusements, open to the general public upon the terms and conditions herein provided. 9.2 The Operator shall take such actions as may be necessary to promptly comply with any and all orders or requirements of any federal, state, county or municipal authority having jurisdiction over the Golf Course Facilities, issued in the exercise of such jurisdiction, with respect to the operation, management or maintenance thereof. Except in the case of an emergency, Operator shall not take any action in response to a governmental order or requirement without notifying the City Manager. The Operator shall not take any action with respect to any governmental order or requirement that City is contesting and has notified Operator of the same, or has notified Operator of its intention to contest; provided, however, that City shall proceed with all due diligence in contesting any such governmental order or requirement and shall use best efforts to prevent a shut-off of essential services to the Golf Course Facilities. 12 95- 772 9.3 The Operator shall, in the name of the Operator (and not in the name of the City), select, employ, supervise, and discharge all employees and personnel necessary for the operation and maintenance of the Golf Course Facilities. All such employees shall be employees or independent contractors of Operator and shall not in any event be deemed employees of the City. Operator shall be responsible for timely compliance Nvith all local, state and federal labor and tax laws, including, without limitation, OSHA, federal withholding tax laws. Worker's Compensation Insurance. FICA. MICA and federal and state unemployment insurance laws. 9.4 The Operator shall purchase or lease all materials necessary or desirable in Operator's reasonable iudgment and as approved in the Operating Budget by City Manager for the operation or maintenance of the Golf Course Facilities. The Operator agrees to use reasonable efforts to secure contracts with minority owned companies, where available and where cost, service level and quality are comparable to other companies. 9.5 The Operator shall make arrangements, negotiate and enter into contracts for exterminating services, vending services, HVAC, security, cleaning, landscaping, trash collection and such other services as Operator reasonably deems advisable for the operation of the Golf Course Facilities. The Operator agrees to use reasonable effort to secure contracts with minority owned companies, where available and where cost, service level and quality are comparable to other companies. The City shall cover under their blanket deposit, water, electricity, gas and telephone. 9.6 The Operator shall apply for, and use its best efforts to obtain and/or renew all licenses, permits, and certificates required in connection with the operation of the Golf Course Facilities, including a liquor license. If required by governmental authorities, licenses shall be obtained in the name of the City and all documents to be signed in connection with the application for such licenses shall be executed by the City. 9.7 The Operator shall bill, collect and administer all Golf Course Sales and Income and Merchandise/Food and Beverage Sales and shall cause to be instituted any and all legal actions and proceedings which Operator deems necessary and desirable to collect charges, fees, or other Golf Course Sales and Income and Merchandise/Food and Beverage Sales. 9.8 The Operator, subject to the City's and, where required, City Commissions approval, shall adopt, publish, and enforce rules, regulations, and policies for the operation and use of the Golf Course Facilities, including, without limitation, hours of operation, greens fees and other prices comparable with other first class public golf facilities, selection of tee times, dress code, conduct of players and the like. Subject to the City's and, where required, City Commissions approval, the Operator shall, be able to set and periodically change all golf related fees at the Golf Course Facilities except that City of Miami residents shall always have a minimum of a ten percent (10%) discount on greens fees and membership fees and retired City employees shall play free of a greens fee charge during designated times determined by Operator. 13 95- 772 9.9 The Operator shall provide or cause to be provided customary food, beverage, on - course service, restaurant, banquet, and bar service at the Golf Course Facilities, and such other services as may be approved by the City Manager. 9.10 The City shall advise the Operator promptly with confirmation, in writing, of the service upon the City of any suln[11o11s, subpoena or other similar legal document, including but not limited to letters,notices, and other communications setting forth or claiming an actual or alleged potential liability to the City, Operator or Approved Subcontractor(s) or the Golf Course Facilities and shall cooperate with Operator in connection with any legal proceedings arising out of Operator's management of the Golf Course Facilities. 9.11 The Operator shall advise the City promptly with confirmation, in writing, of the service upon the Operator of any summons, subpoena or other similar legal document, including but not limited to, letters, notices and other communications setting forth or claiming an actual or alleged potential liability or incurribrance to the City, Operator, Approved Subcontractor(s), or the Golf Course Facilities, and shall cooperate with the City in connection with any legal proceeding arising in connection with the operation of the Golf Course Facilities. 9.12 The Operator shall have the right, with specific prior approval of the City Manager to use Affiliated Parties in fulfilling its obligations hereunder, so long as use of the Affiliated Party is not more costly or otherwise detrimental to the City, in the City's sole discretion. 9.13 Notwithstanding anything to the contrary contained herein, Operator and City agree as follows with respect to operation of Golf Course Facilities: 9.13.1 The Golf Course Facilities shall be operated as a public facility open to all players upon payment of the applicable use fees. 9.13.2 Fees for the Golf Course Facilities shall be established by Operator, subject to City Manager's approval which shall not be withheld if such fees are comparable to other local first class golf courses. Fees charged at local first-class daily fee golf courses like, but not limited to, Key Biscayne golf course shall be deemed comparable. Operator shall have the exclusive right, without City Manager approval, to charge fees at any rate less than other local first-class daily fee golf courses. 9.13.3 With respect to material matters in connection with operation of the Golf Course Facilities, Operator agrees to operate the Golf Course Facilities according to a written program which shall list all activities which may significantly infringe upon availability of the public to use any facility or service at the Golf Course Facilities. City may deny the use of the Facilities for any activity that infringes upon public use. 9.14 Inspection. The City and its representatives shall have the right at all reasonable times to enter upon the Golf Course Facilities for the purpose of inspecting the same, provided, however, that City shall use all reasonable efforts not to disturb the management and operation 14 95- 772 of the Golf Course Facilities by Operator and persons then lawfully using the Golf Course Facilities. 10. INSURANCE AND INDEMNIFICATION 10.1 Throughout the Term, Operator shall, as an Operating Expense, obtain and maintain the following insurance or cause such insurance to be maintained with respect to the Golf Course Facilities: 10.1.1 Insurance against loss or damage by fire, flood, windstorm and other casualties, including vandalism and nialicious mischief, within the meaning of "extended coverage covering all buildings and contents, including the Clubhouse, located on the Property insuring one hundred percent (100%) of the full insurable value of all buildings and contents on the Property. The term "full insurable value" shall mean actual replacement value of the buildings and contents on the Property. This property coverage may have up to a five percent (5%) of "full insurable value" deductible. 10.1.2 Comprehensive general public liability insurance and providing for Completed Products coverage, Host Liquor and Liquor Legal liability as applicable for bodily injury, death or property damage occurring upon, in or about the Golf Course Facilities covering both Operator and City as insured, with minimum limits of five million dollars ($5,000,000.00) for bodily injury or death for any one occurrence or accident and one million dollars ($1,000,000.00) for property damage; and up to, in Operator's sole discretion, a ten thousand dollar ($10,000.00) deductible unless the Operator and City agree otherwise. 10.1.3 Worker's Compensation Insurance as required by Chapter 440, Florida Statutes. 10.1.4 Comprehensive Automobile coverage covering owned and hired vehicles with limits as set in Paragraph 10.1.2 above. 10.2 The Operator may obtain the aforementioned insurance and coverages as part of Operator's master policy naming Operator as insured or additionally insured if appropriate. 10.3 The Operator may elect to be included on any City insurance policy with coverages set forth above and pay to the City any actual increase in premium attributable to such coverages. 10.4 All policies required to be maintained under this Paragraph 10 shall, unless otherwise approved by the City Manager, be written by companies of recognized standing qualified to do business in the State of Florida and may be provided by a blanket policy covering the Golf Course Facilities portions thereof and other properties. Such policies shall contain waiver of subrogation clauses and shall provide that they may not be canceled without thirty (30) days' prior written notice to each insured. Operator shall furnish City with copies of the original 1F 95- 772 policies or certificates of insurance, together with evidence of payment of tliv premiums therefor, and thereafter Operator shall furnish City with evidence of the renewal of such policies and the payment of the preniiiinis therefor not less than thirty (30) days prior to the expiration date of such policies. The failure of Operator to provide such evidence, wiletller or not objected to by City, shall not be deemed a waiver of Operator's obligation to maintain the insurance required hereunder. City shall have the right to require higher or lower 1ninin1U111 linilts of coverage than those contained herein to the extent necessary to take into account the effects of inflation. costs of coverage, claim history of the industry or other reasonable cause during tile Tenn. Unless otherwise approved by the City Manager, all policies required above shall be issued by companies with no less than a rating of A as to management and rio less titan XV as to strength, as rated by Best's Key Rating Guide or as accepted by the City Manager. 10.4.1 All applicable proceeds froin the insurance coverage described in paragraph 10.1.1 hereof shall be applied in whole or in part to the restoration or replacement of the damaged or destroyed portions of the buildings and contents on the Property resulting in the payment of such insurance proceeds (tile "Restoration Work"). Any insurance proceeds remaining after the completion of the Restoration Work shall be put in an Operator's reserve account for repairs and replacement funding. 10.4.2 Operator shall indemnify and hold City harmless froin any and all claims, liability, losses, and causes of action (including attorneys' fees and court costs, whether in preparation for trial, at trial, or on appeal) which may arise out of the Operator's performance of this Agreement, except for damages caused solely by the negligence or willful misconduct of City. Operator shall defend all such suits, in the name of the City when requested by the City, and shall pay all costs and judgments which may issue thereon. The cost of such defence shall be deerned an Operating Expense. 10.5 The City shall be solely responsible for identifying funding any repairs and replacement of Golf Course Facilities which insurance proceeds are inadequate to properly fund any such repairs or replacements. The City shall fund within one hundred and eighty (180) days of notice from Operator such Golf Course Facilities repairs and replacements. 11. USE OF CITY OR GOLF COURSE FACILITIES' NAMES AND LOGO. The Operator may use the name and/or logo of the City or Golf Course Facilities only in connection with marketing operation of the Golf Course Facilities. The Operator shall use such names and logos in a tasteful manner and upon objection by the City shall immediately cease use of the naives or logos in the objectionable fashion. 12. EVENTS OF DEFAULT 12.1 The occurrence of any one or more of the following events shall constitute an Event of Default hereunder: 16 9 5 - 772 12.1.1 Default in the payment of any sum due under this Agreement which default continues for thirty(30) days after written notice thereof. 12.1.2 Default in the performance or observance of any of the material non -monetary terms, agreements, covenants or conditions of this Agreement, which default continues for forty-five (45) days after receipt of written notice thereof, provided that, if such default cannot reasonably be cured within forty-five (45) days, no Event or Default shall be deemed to occur so long as the defaulting party has commenced and is diligently implementing a cure within such forty-five (45) period and pursues such cure to a timely conclusion. 12.1.3 The application by any party hereto (or its corporate parent) for, or consent to, the appointment of a receiver, trustee, liquidator or custodian (or similar official) of it or of all or a substantial part of its assets, or if any party (or its corporate parent) shall (i) be unable, or admit in writing its inability to pay its debts as they mature, (ii) make a general assignment for the benefit of creditors. (iii) be adjudicated as bankrupt or insolvent, (iv) file for voluntary petition in bankruptcy or a petition or an answer seeking reorganization or any arrangement with creditors or to take advantage of any insolvency law, (v) file an answer admitting the material allegations of a petition filed against it in any bankruptcy, reorganization or insolvency proceeding; (vi) take any corporate action for the purpose of effecting any of the foregoing; or if an order, judgment, or decree shall be entered by any court of competent jurisdiction approving a petition seeking reorganization or appointing a receiver, trustee, liquidator or custodian (or other similar official) of any party hereto (or its corporate parent) or of all or a substantial part of its assets, and such order, judgment or decree shall continue unstayed and in effect for a period of ninety (90) consecutive days. 12.2 If any representation or warranty contained in this Agreement shall be false or misleading in any material respect, and the condition making such representation or warranty remain uncorrected for thirty (30) days after receipt of written notice hereof, the failure to correct such condition shall constitute an Event of Default; provided, however, that if such conditions cannot reasonably be corrected within thirty (30) days, no Event of Default shall be deemed to occur hereunder so long as the defaulting party has commenced and is diligently implementing a cure within such thirty (30) day period and pursues such a cure to a timely conclusion. 13. RIGHTS AND REMEDIES UPON THE OCCURRENCE OF AN EVENT OF DEFAULT. 13.1 Default by City. Upon the occurrence of any Event of Default by City, Operator may, at its option, either terminate this Agreement or sue for specific performance or exercise whatever other rights or remedies it may have at law or in equity. 13.2 Default by Operator. Upon the occurrence of any Event of Default by Operator, City may, at its option, either terminate this Agreement or sue for specific performance or 17 95- 772 exercise whatever other rights or remedies it may have at law or in equity. 14. REPRESENTATIONS AND WARRANTIES. 14.1 Without hnliting the representations, covenants and warranties of City contained elsewhere in this Agreement, as a material inducement for Operator to enter into this Agreement, City represents and warrants to Operator (and unless otherwise specified, such representations and warranties are true as of the date hereof and will continue and be effective at all times, as if continuously reiterated, during the term of this Agreement) that: 14.1.1 City is a political subdivision of the State of Florida duly incorporated under the laws and Constitution of the State of Florida. Subject to obtaining the approval of City Commission, City has full power and authority to execute and deliver this Agreement and all documents, if any, now or hereafter to be executed and delivered by it pursuant to this Agreement (collectively "City's Documents") and to perform all obligations arising Linder this Agreement and under City's Documents. This Agreement and City's Documents will each constitute the legal, valid and binding obligations of City, enforceable in accordance with their respective terms, covenants and conditions; 14.1.2 This Agreement and City's Documents do not and will not contravene any provision of the powers of City, any judgment, order, decree, writ or injunction, or any provision of any applicable law or regulation, and the delivery of this Agreement and City's Documents will not result in a breach of, constitute a default under, or require consent pursuant to any law or regulation or any credit agreement, lease, indenture, mortgage, deed of trust, purchase agreement, guaranty or other instrument to which City is a party or by which City is bound or affected; 14.1.3 Pursuant to all applicable laws, regulations, rules or ordinances promulgated, issued or enforced by any and all local, state or federal governmental bodies, agencies or organizations leaving any jurisdiction over the Golf Course Facilities, the Golf Course Facilities may be operated, maintained and used for golf course purposes and other related, ancillary or subordinate uses. 14.1.4 Some utilities necessary to operate and maintain the Golf Course Facilities may not be available within the Golf Course Facilities or at the boundary thereof in sufficient capacity to operate or conduct the uses described in paragraph 9.1.3 hereof. 14.1.5 Except as otherwise set forth in this Agreement, no person, group, association, entity or organization has any priority, rights, privileges, membership rights, or other entitlement to the Golf Course Facilities or the right to use the same, including any tenant's association, membership, organization, club or other similar entity. 14.1.6 The City has the necessary funds to re -design, manage the construction and construct the Golf Course Facilities upon the execution of this Agreement up to the 18 9 5 - 772 amount of the City's Contribution, 14.1.7 The Operator may charge fees for the Golf Course Facilities comparable to other local first class golf course facilities. 14.2 Without limiting the representations, covenants and warranties of Operator contained elsewhere in this Agreement, as a material inducement for City to enter into this Agreement, Operator represents and warrants to City (and unless otherwise specified, such representations and warranties are true as of the date hereof and will continue and be effective at all times, as If Continuously reiterated, throughout the term of this Agreement) that: 14.2.1 Operator is a joint venture duly authorized and in good standing under the laws of the State of Florida. Operator has full power and authority to execute and deliver this Agreement and all documents, if any, now or hereafter to be executed and delivered by it pursuant to this Agreement (collectively, "Operator's Documents") and to perform all obligations arising under this Agreement and under Operator's Documents. This Agreement and Operator's Documents will each constitute the legal, valid and binding obligations of Operator enforceable in accordance with their respective terms, covenants and conditions; and 14.2.2 This Agreement and Operator's Documents do not and will not contravene any provision of the powers of Operator, any judgment, order, decree, write or injunction, or any provision of any applicable law or regulation, and the delivery of this Agreement and Operator's Documents will not result in a breach of, constitute a default under, or require consent pursuant to any law or regulation or any credit agreement, lease, indenture, mortgage, deed of trust, purchase agreement, guaranty or other instrument to which City is a party or by which Operator is bound or affected. 15. QUIET ENJOYMENT. City covenants that, as long as Operator shall perform all of the terms and conditions contained herein on the part of Operator to be observed or performed, Operator may manage the Golf Course Facilities during the Term without molestation or hindrance by City or anyone claiming through City. 16. FORCE MAJEURE. Performance may be delayed and such delay shall not be deemed to be an event of default where it is the result of an event of Force Majeure (the "Event of Force Majeure"). Force Majeure shall include acts of God, weather or unusual severity, fire, earthquake, flood, lightning, hurricane, explosion, action of the elements, war (declared or undeclared), invasion, insurrection, riot, mob violence, sabotage, malicious mischief, acts of the public enemy, failure of transportation, strikes, lockouts, action of labor unions, other industrial disturbances, condemnation, public requisition and laws rules, regulations or orders of government, breakage 19 95- 772 or accident to equipment or machinery, confiscation or seizure by any government or public authority, or any other causes which are not due to any negligence on the part of Operator whether of the kind herein enumerated or otherwise that are not reasonably within the control of the party claiming the right to delay performance on account of such occurrence. A party claiming that delayed performance is the result of Force Majeurc shall give written notice of same to the other party as soon as possible but in no event later than twenty (20) days of the such Event of Force Majeurc causing the delay. 17. NOTICE. 17.1 Any notice, demand, consent, authorization, request, approval or other communication (collectively, "Notice") which any party is required or may desire to give to or make upon any other party pursuant to this Agreement shall be effective and valid only if in writing, signed by the party giving such notice, and delivered personally to the other party or sent by guaranteed courier or delivery service, or by registered or certified mail of the United States Postal Service, postage prepaid and return receipt requested, addressed to the other parties as follows (or to such other place as any party may by Notice to the others specify): To Ci City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 cc: City Attorney To Operator: I Bunkers of Miami, Inc. 2601 South Bayshore Drive, Suite 1600 Miami, Florida 33133 Attn: Charles DeLucca, Jr. Copies to: Christopher G. Korge, Esq. Hanzman, Criden, Korge, Hertzberg & Chaykin, P.A. Suite 2100 200 South Biscayne Boulevard Miami, Florida 33131 20 95- 772 17.2 Notice shall be deemed given when received but, if delivery is not accepted, on the earlier of the date delivery is refused or the third day after the same is deposited with the United States Postal Service. 18. REAL ESTATE AGENT. City and Operator represent and warrant to each other that neither they nor their affiliates have dealt with any real estate broker, salesman, finder or agent in connection with the transaction described herein. To the extent permitted by applicable law, each party agrees to indemnify, defend and hold the other harmless from and against all loss, eXpellSe (including attorneys' fees), damage and liability resulting from the claims of any broker or finder (or anyone claiming to be a broker or finder) resulting from any services claimed to have been rendered to the indemnifying party in connection with the transactions contemplated by this Agreement. 19. ASSIGNMENT. Except as otherwise specifically provided in this Agreement, no party hereto shall have the right to assign this Agreement or any of its rights or obligations hereunder, without the prior written consent of the other parties, which consent shall not be unreasonably withheld. Consent by the City shall be given by the City Manager. 20. NO THIRD PARTV BENEFICIARIES. This Agreement shall be for the sole benefit of the parties hereto, and no other person or entity shall be entitled to rely upon or receive any benefit from this Agreement or any provision hereof. 21. MODIFICATIONS. This Agreement may not be modified, discharged or changed in any respect whatsoever, except by a further agreement in writing duly executed by the City Manager and Operator. However, any consent, waiver, approval or authorization shall be effective if signed by the party granting or snaking such consent, waiver, approval or authorization. 22. NO WAIVER. No indulgence, consent to or waiver of any breach of any provision of this Agreement by any party hereto shall be construed as a consent to or waiver of any other breach of the same or any other provision hereof unless specifically acknowledged in writing by both parties. 23. SEVERABILITV. The invalidation or unenforceability in any particular circumstance of any of the 21 95- 772 provisions of this Agreement shall in no way affect any of the other provisions hereof, which shall remain in frill force and effect. 24. REMEDIES. All of the rights and remedies of any party under this Agreement and the Exhibits are intended to be distinct, separate and cumulative and no such right or remedy herein or therein mentioned is intended to be in exclusion of or a waiver of any of the others. 25. APPROVALS, Except as otherwise provided each party shall act promptly and reasonable in exercising its right to approve or disapprove any document, budget, proposal, report, selection, etc., submitted to it for approval under the terms of this Agreement. Unless a different time period is specifically provided for herein, if the party receiving a request for approval does not either approve or disapprove the request within thirty (30) days, then the request shall be deemed approved. 26. GOVERNING LAWMERSONS BOUND. This Agreement shall be construed and enforced in accordance with the laws of the State of Florida, and shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 27. NO AGENCY OF JOINT VENTURE. This Agreement shall not be construed as in any way establishing a partnership, joint venture, express or implied agency or employer -employee relationship between or among City and Operator, or City and Approved Subcontractor(s). 28. EXHIBITS. All recitals and all exhibits referred to in this Agreement are incorporated herein by reference and shall be deemed part of this Agreement for all purposes as if set forth at length herein. 29. ENTIRE UNDERSTANDING. This Agreement contains the complete and entire agreement among the parties respecting the transaction contemplated herein, and supersedes all prior negotiations, agreements, representations and understandings, if any, among the parties respecting such matters. 22 9 5 - 772 1 30. COUNTERPARTS. This Agreement may be executed by the parties hereto individually or in combination, in one or more counterparts, each of which shall be an original and all of which shall constitute one and the same Agreement. 31. ATTORNEYS'FEES. In the event of an action at law or in equity between the parties to enforce any provision of this Agreement, the unsuccessful party to such litigation shall pay to the successful party all costs, fees and expenses incurred by such successful party, and if such successful party shall recover a judgment in any such action or proceedings, such costs, fees and expenses shall be included in and as a part of such judgment. 32. CONDITIONS TO EFFECTIVENESS OF TMS AGREEMENT. This Agreement shall not become effective until such time as each of the following conditions precedent have occurred and thereafter shall be deemed effective upon the last date to occur of the following, (i) approval by the Operator and (ii) approval by the City Commission. 33. AUDIT RIGHTS. Through the term hereof and for a period of three (3) years thereafter, City shall have the right to audit the records of Operator pertaining to this Agreement. 34. C-QMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS. Both City and Operator shall comply with all applicable laws, ordinances and codes of Federal, State and Local governments. 35. AWARD OF AGREEME, NT. Operator warrants that it has not employed or retained any person employed by the City to solicit or secure this agreement and that it has not offered to pay, paid, or agreed to pay any person employed by City any fee, commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. , 36. INDEMNIFICATION. Operator shall indemnify, defend and save the City, its officers, employees and agents harmless from and against any and all such claims, liabilities, losses, and causes of action which may arise out of Operator's negligent act or omission or willful misconduct under this Agreement and, from and against any orders, judgments or decrees which may be entered, as a result of such acts of Operator and from and against all costs, attorneys' fees, expenses and 23 95- 772 10/19/95 THU 12:50 FAX 305 579 1229 HANZMAN CRIDEN ET AL liabilities incurred in defense of any such claims, or in the investigation thereof 37. CONFLICT OF INTERES'r. [a003 A. Operator covenants that no person under its employ who presently exercises any functions or responsibilities in connection with this Agreement has any personal financial interests, direct or indirect, with City. Operator further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereto. Any such conflict of interest(s) on the part of Operator, its employees or associated persons, or entities must be disclosed in writing to City. B. Operator is aware of the conflict of interest lays of the City of Miami (City of Miami Code Chapter 2, Article V), bade County, Florida (Dade County Code Section 2-11,1) and the State of Florida, and agrees that it shall fully comply in all respects with the terms of said laws and any future amendments thereto. 38. NONDISCRIMINATION. Operator agrees that it shall not discriminate as to race, sex, color, religion, age, marital status, handicap or national origin in connection with. its performance under this Agreement. 39. MINORITY PROCUREMENT COMPLIANCE. Operator acknowledges that it has been famished a copy of Ordinance No. 10538, the Minority Procurement Ordinance of the City of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. BUNKERS OF M AMI JOINT VENTURE Attest: ("Operator") Managing Partner Bunkers of Miami, Inc. Charles DeLucca, Jr., President 95- 772 10/19/95 THU 12:50 FAX 305 579 1229 HANZMAN CRIDEN ET AL 16 004 Attest: APPROVED AS TO FORM AND CORRECTNESS: A. Quinn Jonest(ly City Attorney APPROVED AS TO INSURANCE REQUIREMENTS: CITY OF MIAMI, a municipal corporation of the State of Florida ("City") By: t E)MBIT "B" t � p CITY nF MIAMI MELREESE GOLF CLUB Projected Annual Expenses General and Adrrdnigtrafive _ Annual Expense _ Advertisln 64,000.00 Automobile 96,000.00 Com mer O erations _� 02,000.00 Electric _ __ _ Equipment Rental __ _82.000.00 95.000.00 Insurance _ $ 34, 000.00 Legal and e�ccountinq $24,000.00 Miscellaneous 91,000.00 Office Supplies V 33.000.00 postage _ �3.000.00 Promotion _ $2,500.00 Repairs and Maintenance _ $2,000.00 Security System / Socurity 56,000,00 Stationary and Printing 53.000.00 Telephone $3,200.00 Subtotal ;101,700.00 Pa ell 3165.600.00 Total s267.300.00 Golf Course Maintenance Equipment Rental S6,000,00 Fertilizer *40,000.00 Chemicals s40,000.00 Fuel and Lubricants $17.000.00 Supplies 1 04,000.00 Grass, Seed, Soil and Sand 025.000.00 Insurance 9 20, 000.00 Water and Sewer 010.000.00 Equipment Repair s17.000.00 Golf Cart Repair $1,000.00 Irrigation Repair $1 3,000.00 Grounds Repair 67,000.00 Small Tools 62.500.00 Stationory and Print ln s500.00 Uniforms 31.800.00 Telephone $2,000.00 Elect rlc s 20,000, 00 Security System / Security $9.000.00 Miscellaneous 63,000.00 Subtotal s 237, 800.00 Payroll 6 326,208.00 Total a 564,008.00 Goff Operations and Driving Range Advzrtisinql a 14.000.00 Credit Card Cost $3,000.00 Electric 018.000.00 Golf Cart Lease t60,000.00 Insurance $25,000.00 Promotion 58,000.00 Driving Ran o Su lies 612.000.00 Rental Clubs t1,0c0.00 Stationaf •and Prinllnq 16,000.00 Su p11es $2.000.00 Uniforms 62,000.00 Telephone $4,000.00 Security System /Security v$ 9, 000.00 Water and Sewer _ 52,400.00 Subtotal 6164,400.00 Pa roll $272.256.00 Total 0436,656.00 �- 772 `r Food and Bever®ge Food and Bever®ge Advertisin Cash � Chine, Glass and Sil�arwara_ S400,0052,000.00 Cleaning Service ---- _ 00 Credit Card Cost -- $2,000.00 Electric -- _5_2,000 E4uipment Rentoi -- — s000.00 G2.000.00 62. Flowera and Dncorstion: _ _ ____ 52,000.00 Grounds and Landscapin _ — -- — --�--- Guest and Cleaning SupOios 02,000.00 s6,000.0U Insurance 414, 000.00 Kitchen and Bar Supplies *31000.00 Kitchen Ges �t4.000.00 Kitchen Laundry-- 52,000.00 Laundry and Ory Cleanin _ $2,000.00 Ucenso 1 $ 3,500.00 McnuF and Tickets $2,000.00 Miscellaneous 61,500.00 Music 1_ $1,00000 Paper and Disoosabios 63,000.00 Promotion ,000.00 Repairs and Maintenance $ 6,000.00 Securlty System / Security $12,000.00 5 oila a 1 0500.00 Tolophone $2.500.00 Uniform 42,000.00 Water and Sewer _ 47,000.00 Subtotal $110,a00,00 Payroll $108,408,00 Total 5278,808.00 Total Annual Expanses 61,546,772.00 CITY OF MIAMI MELREESE GOLF CLUB Projected Annual Payroll Hourly Rats Annual Earnings General & Adminivb ative 01rector of Mai katin Salary ; 32,000.00 1 Ganaral Manaipt _ 11_ Salarr $52,000.00 Memborahlp Seeiotary e 11.54 624,000.00 Sookkcaper _ 514.42 030,OOC.00 8138.000.00 Payroll Burden 00 20% 827.600.M Total _ 616S.600.00 Golf Operations and DiMng Range ^ Director of Golf Sala *30,000.00 Heed Golf Professional _ $alp 00.000.00 Tournament Coordinator Salary 618.000.00 Pro Shoo Ma meriCustom Cluh Maker _ Salary _ $24.000.00 Sales Clerk - Coohler 06.00 _ 612.400.00 Sates Clark - Coohlor 66.00 612.480.00 Starter 1 - Full Time t6.00 012.480.00 Starter II - Part Time $6.240.00 Cart Attondant 1 _$6.00 $5.00 $10.400.00 Can An9nd, nt 11 65.00 $10,400.00 Cart Attendant ilt 85.00 $10,400.00 Cart Attendant IV 85,00 610,&00.DO Maintenance i Cart arson 810.00 $20.000.00 Hanger I - Pert The 65.00 c5.200.00 Ran er 11 - Part Time $5.00 $5.200.00 DHOnq flange Attendant I . Pan Time $5.00 $5.2010.00 DriviN Rene Attendant 11 • Part Time 65.00 05.200.00 Subtotal $220.800.00 Payroll Durdon @ 20% 645.370.00 Total s272,25e.00 Fnod and Bevarsye Cher Manager Salary, 627.500,00 Caok 1 Salary $15.200.00 Co., II $8.00 S 16.640.00 Bartender $5.00 t 10,400.00 Bartender - Part Time 05.00 55.200.00 DLh---%her - Full Timo _ 65.D0 510,400.00 es Waitrs 63.00 $6,240.00 Waitress $3.00 I $6.240.00 Waitress $3.00 $6,240.00 Waitress $ 2.00 t 6.240.00 Busboy 55.00 '8.320.00 Busboy 55.00 58.320.00 Bevera a Gart Person ;5.00 _ 510,400.00 Subtotal $ 140.340.00 Payroll 8unlen @ 20% 328.068.00 Total t 168,408.o0 Gaff Course Maintenance Golf Course Su orintendent I $ale 'dO,DDO.00 ASE't Su rlmandort • $rav Tech.1 Swary S26.000.00 Mechanic $el 528.000.00 Equipment Operator 67.00 1 _ .14.560.00 E ui mart O orator $7.00 S 14.560.00 Equipment DDCratur _ t8.0o $16.640.00 Equipment Oparetor 88,00 1 :16.640.00 Equipment Oparetoi _ $8.00 s16,540,00 Equipment Operator 59.00 618,720.00 E ui mcnt 0 eretor MOO 818,720.00 ulpment0parazor S10.00 020.000.00 laborer :6.50 $13, 520.00 Laboror 56.50 a 13,520.00 Laborer $ 6, 50 S 13.520. DO Subtotal $271.840.00 Payroll Burden @ 20% 054.368.00 Total i $ 326, 208.00 Total Annual Payroll ;932,472,00 `�- 77 9 R CITY OF FLORIDA INTER -OFFICE MEMORANDUM 54 To : The Honorable Mayor and Members of the City Commission DATE October 17, 1995 FILE SUBJECT MelReese Golf Course s FROM REFERENCES Ces lio City a ger ENCLOSURES: RECOMMENDATION It is recommended that a resolution be passed accepting the proposal and selecting Bunkers of Miami, Inc. for the management and/or operation, including any required construction or renovation of the MelReese Golf Course. This resolution would also authorize the City Manager to execute an agreement with Bunkers of Miami, Inc. for this purpose and further authorize the City Manager to engage in competitive negotiations for the Procurement of all services necessary to complete the renovations subject to compliance with applicable City Charter and Code provisions. Also recommended is the allocation of funds for construction of improvements mentioned in the agreement not to exceed $3,900,000. BACKGROUND Resolution 94-584 was passed by the City Commission authorizing the City Manager to issue a Request for Qualifications to identify persons and/or firms suited for the management and/or operation of the MelReese Golf Course which is in dire need of renovation and improvements. Pursuant to this Request for Qualifications issued, only one (1) response was received and deemed qualified; Bunkers of Miami, Inc. Further, the sum of $3,900,000 will be allocated and required for the construction and renovations of the MelReese Golf Course improvements. The City of Miami and its residents will attain great benefits from this management agreement. • A guaranteed annual return of $275,000 • Quality management and operator • Improved golf course facility and clubhouse • Operator will guarantee any operating deficits J5�- 774 . t —HILL —___---_—___ti_—_—__------.---...__.__—_---_—_____—_ ID(S) OPENED: __OCTOBLR 28 _ 1994--- —2_00— 1—m---_____—_— TOTAL DIm_BOND_.S°r2 k BIDDER DID_AHOUNT CASSIHR'S_CHfiCK__— .LRS OF MIAMI _ E?,.,C.vCC4 1'i'.ir';'``" �". C'F i� +.•;'C .. 1}�;c?' C>'i..�.�._.�.___-_'� ;Ibex ter. j s n.�::,� i--; n :��;.t��^ r�� tl,—,,Dlicitcciic t. If any.------------ xxe lzc:cb t ie—_—--- —.____—__—_—_--- _.—s..._____ _._______._.___ _________________r________r_____ - - --------------- ------------------------------------ ________________; ---------------------------------------- _ ___________► ______________ _______________________ ----------------- L---------------------------------------- ---7 ----------- 1-------------------------------------- ---------------------------------- ----� - - ----- -------------------------r_—_ ______,---- I: ------------------------------------------------------- ----------------------------------------------------- ---------------------------------------------------------- --------------------------------------------------------- --------------- _________ ________________________r wv�& ��)' / _received (/_) envelopes on behalf of Be s,bn re/zeiving id ) rw p� ,VELO 4ENT AND HOUSING CONSERVATION on (City Department) SIGNED: CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM Matty Hirai DATE October 11, 1994 FILE City Clerk SUBJECT : Receipt of Proposals �' Melreese Golf Course Mari M. Perez OM Project Representative REFERENCES Department of Development and RFQ ENCLOSURES. Housing Conservation The attached Request for Qualifications (RFQ) for the management of the Melreese Golf Course was issued on October 7, 1994. Submissions, consisting of one Original and ten copies of the proposal and a $1,000 check, are due to your office October 28, 1994 at 2:00 p.m. I c7 r ?� ll7 .