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HomeMy WebLinkAboutExhibit 1THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT This THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (this "Third Amendment"), is entered into effective as of this day of , 2011 (the "Effective Date"), between the City of Miami, a Florida municipal corporation (the "City"), and Delucca Enterprises, Inc., a Florida corporation ("Delucca Enterprises" or "Provider"), as the permitted successor -in -interest to Charlie Delucca, Sr. RECITALS WHEREAS, the City engaged Charlie Delucca, Sr., to provide certain professional services in accordance with a Professional Services Agreement between the City and Charlie Delucca, Sr., dated June 1, 2004 (the "Professional Services Agreement"); WHEREAS, by . Amendment to the Professional Services . Agreement (the "First Amendment"), the City and Charlie Delucca, Sr., agreed to extend the term of the Professional Services Agreement from December 31, 2007, through September 30, 2008, under the same terms and conditions set forth in the Professional Services Agreement; WHEREAS, by Second Amendment to the Professional Services Agreement, effective as of January 1, 2008 (the "Second Amendment"), the City, Charlie Delucca, Sr., and Delucca Enterprises agreed, in pertinent part, as follows: i. To accept the assignment by Charlie Delucca, Sr., of his rights and obligations under the Professional Services Agreement to Delucca Enterprises, ii. To extend the term of the Professional Services Agreement, as amended, through and including September 30, 2011, iii. To adjust the compensation payable to Provider to equal $110,000 for the Fiscal Year of October 1, 2008, through September 30, 2009, $117,000 for the' Fiscal O7/O Year ending October 1, 2009, and increasing by an annual 3% cost of living adjustment with the first such increase to occur on October 1, 2009 (unless otherwise defined herein, all capitalized terms shall have the same meaning as defined in the Professional Services Agreement), iv. For the City to pay or reimburse all employees at the Golf Course Facilities pursuant to the Living Wage Ordinance, and v. To include the operation of any new clubhouse facility or other similar improvements to the Golf Course Facilities in the responsibilities of Provider, at the option of the City on such teiiiis as may be negotiated between the City and Provider; WHEREAS, after the date of the Second Amendment, the City constructed and opened a clubhouse and retail golf pro shop as part of the Golf Course Facilities; and WHEREAS, since the City's opening of the clubhouse and retail golf pro shop as part of the Golf Course Facilities, Provider has provided management supervision of the operations of those additional facilities as part of the Golf Course Facilities without any additional compensation for such services; and WHEREAS, the City and Provider have agreed to terms and conditions, including an incentive bonus, for the continued management supervision by Provider under the terms and conditions of this Agreement (the Professional Services Agreement, as amended by the First Amendment, the Second Amendment, and this Third Amendment, is referred to herein as this "Agreement"); NOW, THEREFORE, in consideration of the premises and the mutual covenants and obligations herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 2 1. RECITALS. The recitals set forth above are true and correct in all respects and are incorporated herein by this reference. 2. TERM. As of the Effective Date, the term of the Agreement is extended to continue through and including September 30, 2021, and may be extended for an additional five years through and including September 30, 2026, by mutual agreement of both parties evidenced by written election made by not later than June 1, 2026. 3. IMPROVEMENTS TO THE GOLF COURSE FACILITIES. Provider's responsibilities shall include the management supervision of the operations of the new clubhouse facility (including, without limitation, the restaurant and bar), the retail golf pro shop, and any golf learning center that may be added to the Golf Course Facilities (collectively referred to as the "Golf Course Facilities"). 4. COMPENSATION. In addition to the compensation payable to Delucca Enterprises pursuant to the Second Amendment, the City shall pay Provider additional bonus compensation for the increased responsibilities required by its management supervision of the operation of the Golf Course Facilities, including the new clubhouse, restaurant, bar, retail golf pro shop, and any golf leaming center, for the City, in an amount equal to ten percent (10%) of any gross revenues over Two Million Two Hundred Thousand Dollars (S2,200,000) derived from the operations of the Golf Course Facilities during each Fiscal Year of such operations beginning with the Fiscal Year ending September .30, 2011. The City shall not pay any additional incentive bonus for the increased responsibilities required by Provider's management supervision of the operation of the Golf Course Facilities for the Fiscal Year ending September 30, 2010 or for any other period prior to the Fiscal Year ending September 30, 2010. 3 5. ANNUAL BUDGET. Provider shall prepare and submit to the City Manager, on or before April 1 preceding each fiscal year a budget request pertaining to operating and capital expenditures for the Golf Course Facilities, which request shall not be implemented until approved by the City Manager. In the event that the City Manager fails to approve or modify the budget request in writing within thirty (30) days after submission by Provider, Provider may implement that budget request until the City Manager delivers to Provider any written modifications. Upon request of Provider, the City Manager will discuss with Provider any proposed modifications to each budget request before adopting the modification. The Golf Course Facility budget shall be prepared on official city budget forms in a format prescribed by the City Manager and shall be reviewed in a manner similar to that in which requests of other city departments are reviewed. Provider shall be prohibited from incurring any expenditure not specifically approved in the budget other than any ordinary and necessary expenses (such as cost of goods sold, labor, or Golf Course Facility maintenance or repair costs) paid or incurred because actual revenues have exceeded or will exceed revenues as projected in the budget request. 6. MISCELLANEOUS. The golf professionals employed at the Golf Course Facilities shall continue to be allowed to give private lessons and retain payments therefor, providing that the lessons in no way interfere with the golf professional's responsibilities as employees at the Golf Course Facilities. At all times during the term of this Agreement, there shall be commercial and automobile liability insurance coverage for the activities at the Golf Course Facilities in an amount and of a kind described in the Certificate of Liability Insurance dated April 18, 2011, attached as Exhibit A. The insurance policies shall include liability coverage for thegolf professionals and all guests and invitees of the Golf Course Facilities and 4 shall name as the insured or additional insured (i) the City, (ii) Provider, and (iii) Dade Amateur Golf Association, Inc. The insurance coverage shall not be decreased or otherwise reduced without the prior written approval of both the City of Miami Risk Department and Provider. 7. AMENDMENT OF AGREEMENT. Except as specifically modified by this Third Amendment, all the terms and conditions of the Professional Services Agreement as amended by the First Amendment and the Second Amendment shall remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date. ATTEST: Priscilla A. Thompson, City Clerk ATTEST: Print Name: APPROVED AS TO FORM AND CORRECTNESS: Julie O. Bru City Attorney 5 CITY OF MIAMI, a Florida municipal corporation By: Johnny Martinez, City Manager DELUCCA ENTERPRISES, INC., a Florida corporation By: Charlie Delucca, President APPROVED AS TO INSURANCE REQUIREMENTS: Calvin Ellis, Director Risk Management