HomeMy WebLinkAboutExhibit 1 9/15/11THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT
This THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (this
"Third Amendment"), is entered into effective as of this
day of , 2010 (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
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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 terms 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:
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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 learning center, for the City, in an amount equal to ten percent (10%) of
any gross revenues over Two Million Two Hundred Thousand Dollars ($2,200,000) 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.
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 the golf professionals and all guests and invitees of the Golf Course Facilities and
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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
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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