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HomeMy WebLinkAboutPSA - First & Second AmendmentsSECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT This SECOND AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT (this "Amendment" is entered into this AUQt15� ), $ day of 2008, but is effective as of January 1, 2008 (the "Effective Date"), between the City of Miami, a Florida municipal corporation (the "City"), and Charlie Delucca, an individual resident of Miami -Dade County, Florida, and Delucca Enterprises, Inc., a Florida corporation ("Delucca Enterprises"), as the permitted successor -in -interest to Charlie Delucca. RECITALS WHEREAS, the City engaged Charlie Delucca to provide certain professional services in accordance with a Professional Services Agreement between the City and Charlie Delucca, dated June 1, 2004 (the "Agreement"); WHEREAS, Charlie Delucca has assigned his rights and obligations under the Agreement to Delucca Enterprises and the City, by execution hereof, consents to said assignment; and WHEREAS, the City and Delucca Enterprises want to extend the term and amend certain portions of the Agreement pursuant to this Amendment as of the Effective Date; 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: 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, 201.1. 3. IMPROVEMENT'S TO GOLF COURSE FACILITY. Provider's responsibilities shall include the operation of any new clubhouse facility or other similar improvements that may be made to the Golf Course Facilities, at the option of the City on such terms as may be negotiated between the City and Delucca Enterprises. 4. COMPENSATION. From the Effective Date through September 30, 2008, the amount of annual compensation payable by the City to Provider shall be One Hundred Ten Thousand Dollars ($1 10,000.00). For the Fiscal Year of October 1 —2008, through September 30, 2009 (each twelve month p'erio-d from October 1 through September 30, is referred to herein as a "Fiscal Year"), the amount of annual compensation shall equal One Hundred Seventeen Thousand Dollars ($1 17,000.00). The amount of annual compensation payable during each Fiscal Year thereafter shall be increased by an annual three percent (3%) cost of living adjustment with the first such increase to occur on October 1, 2009. Annual compensation shall be payable in equal monthly installments. Notwithstanding anything in this paragraph to the contrary, any compensation received by Charlie Delucca from the City with respect to the Agreement for services rendered during the period that begins on or after the Effective Date shall be deemed to have been received by or for the benefit of Delucca Enterprises. 5. LIVING WAGE ORDINANCE. Effective on the Effective Date, the wages and salaries paid to all employees at the Golf Course Facilities shall be subject to the provisions of City Code, Article X, §§ 18-556, et seq., providing living wage requirements for service contracts and City employees (the "Living Wage Ordinance"), ors:Document 110929.Delucca.FMAL 2 and the City shall adjust its budget and payments for the operations of the Golf Course Facilities accordingly. 6. CITY'S ACCEPTANCE OF SUCCESSOR As of the Effective Date, the City, by execution of this Amendment, accepts Delucca Enterprises as the Provider under the Agreement, and Delucca Enterprises shall be, and hereby is substituted as, Provider under the Agreement as amended by this Amendment. 7. . AMENDMENT OF AGREEMENT. Except as specifically modified herein-, all the terms and conditions of the Agreement shall' remain in full force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the Effective Date. ATTEST: riscilla A. ompson, City Clerk ATTEST: Print Name: APPROVED AS TO FORM AND CORRECTNESS: CITY 1 MIAMI, a Florida muni By: oration Pedro G. Hem e-z, City Manager DELUCCA ENTERPRISES, INC., aFloridaco r: �,n By: ,�� Charlie Deluc Charlie Delucca, i paragraph 6 dividua i APPROVED AS','0 IN CE REQUIREMENTS :. Julie O. Bru, City Attorney ors:Document 110929.Dclucca.FINAL 3 LeeMri Brehm Risk Management Director y as to AMENDMENT TO THE PROFESSIONAL SERVICE AGREEMENT WITH CHARLIE DELUCCA This amendment is made this day of , 2007, by The City of Miami and Mr. Charlie Delucca, to extend the expiration date of the Professional Services Agreement between the City of Miami and Charlie Delucca, dated June 1, 2004 (The "Agreement") from December 31, 2007 through September 30, 2008 under the same terms and conditions set forth in the Agreement. ATTEST: 4a4-41-‘1-) Priscilla A. Thompson, City Clerk APPROVED AS TO FORM AND CORRECTNESS: 2 Julie O. Bru / Charlie DeLucc City Attorney % an individual CITY OF a Flori By: AMI, ipai corporation Pedro G. Hernandez, City Manager APPROVED AS;TO INS cE REQUIREMENTS: / c/ /Le•eAnn Brehm � disk Management Director ('Fr t2.3 (1_ CORPORATE ACTION BY UNANIMOUS WRITTEN CONSENT OF THE SOLE SHAREHOLDER AND SOLE DIRECTOR OF • DELUCCA ENTERPRISES, INC. The undersigned, being the sole shareholder and sole director of DELUCCA ENTERPRISES, INC., a Florida corporation (the "Company"), does hereby adopt, and consent in writing to the adoption of, the following corporate resolution: Charlie Delucca, Sr., is hereby authorized and directed (i) to execute and deliver one or more original copies of the Second Amendment to Professional Services Agreement between Charlie Delucca, individually, the Company, and the City of Miami, in the form and substance approved by the City Commission, and (ii) to execute any other documents or instruments in furtherance thereof. IN WITNESS WHEREOF, the undersigned, constituting the sole shareholders and the sole director of the Company, has executed the foregoing Corporate Action for the purpose of giving his heir written consent thereto. CHARLIE DELUCA, as sole shareholder and director 1. PROFESSIONAL SERVICES AGREEMENT This Agreement is entered into this day of , 2004 (but effective as of the date the City of Miami takes over Control and management of the Melreese Golf Course pursuant to the Settlement Agreement between the City of Miami and Bunkers of Miami, a Florida Joint Venture, et al) by and between the City of Miami, a municipal corporation of the State of Florida ("City") and Charlie Delucca, an individual ("Provider"). TERMS: This Agreement shall commence on the effective date hereof, and TERM: continue through and including December 31, 2007. 2. SCOPE OF SERVICE: A. Provider agrees to provide the Services as specifically described, and subject to the special terms and conditions set forth in Attachment "A" hereto, which by this reference is incorporated into and made a part of this Agreement. B. Provider represents and warrants to the City that: (i) it possesses all qualifications, licenses and expertise required for the performance of the Services; (ii) it is not delinquent in the payment of any sums due the City, including payment of permit fees, occupational licenses, etc., nor in the performance of any obligations to the City, (iii) all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) the Services will be performed in the manner described in Attachment "A". 3. COMPENSATION: The amount of compensation payable by the City to Provider shall be One Hundred Ten Thousand Dollars ($110,000.00) payable monthly in equal increments. 4. OWNERSPIIP OF DOCUMENTS: Provider understands and agrees that any infoiiiiation, document, report or any other material whatsoever which is given by the City to Provider or which is otherwise obtained or prepared by Provider pursuant to or under the terms of this Agreement is and shall at all times remain the property of the City. Provider agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of City, which may be withheld or conditioned by the City in its sole discretion. 5. • PUBLIC RECORDS: Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 6. COMPLIANCE WITH FEDERAL STATE AND LOCAL LAWS: Pro v i der understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and Provider. agree to comply with and observe all applicable federal, state and local laws, rules, regulations, codes and ordinances, as the may be amended from time to time. 7. DEFAULT: If Provider fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Provider shall be in default. Upon the occurrence of a default hereunder, which default is not cured permanently within ten (10) days after receipt of written notice thereof, the City, in addition to all remedies available to it by law, may immediately, upon written notice to Provider, terminate this Agreement whereupon all payments, advances, or other compensation paid by the City to Provider while Provider was in default shall be immediately retumed to the City. If a default is cured but recurs at any time after cure, the Aareeinent may be terminated by written notice to the provider with no further cure available. Provider understands and agrees that teirniination of this Agreement under this section shall not release Provider from any obligation accruing prior to the effective date of termination. 8. RESOLUTION OF CONTRACT DISPUTES: Provider understands and agrees that all disputes between Provider and the City based upon an alleged violation of the terms of this Agreement by the City shall be submitted to the City Manager for his/her resolution, prior to Provider being entitled to seek judicial relief in connection therewith. In the event that the . amount of compensation hereunder exceeds Four Thousand Five Hundred Dollars ($4,500.00), the City Manager's decision shall be approved or disapproved by the City Commission. Provider shall not be entitled to seek judicial relief unless: (i) it has first received City Manager's written decision, approved by the City Commission if the amount of compensation hereunder exceeds Four Thousand Five Hundred Dollars ($4,500.00); or (ii) a period of sixty (60) days has expired, after submitting to the City Manager a detailed statement of the dispute, accompanied byall.. supporting documentation (ninety (90) days if City Manager's decision is subject to City Commission approval); or (iii) City has waived compliance with the procedure set forth in this section by written instruments, signed by the City Manager. 9. CITY'S TERMINATION RIGHTS: The City shall have the right to terminate this Agreement, upon the occurrence of an event of default hereunder, as provided for in paragraph 7 above. In such event, the City shall not be obligated to pay any amounts to Provider and Provider shall reimburse to the City all amounts received while Provider was in default under this Agreement. In the event City terminates this Agreement without cause, it shall be required to pay Provider the balance of all amounts that would be paid to Provider during the remaining term of this Agreement without any reduction or set-off of any kind. The parties acknowledge that this provision constitutes part of the consideration received by Provider in connection with the overall settlement of pending litigation. 10. ASSIGNMENT: This Agreement shall not be assigned in any way by Provider. 11. NOTICES: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the.. other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO PROVJDER: TO THE CITY: Charlie Delueca. 1802 NW 37 Avenue Miami, Florida 33125 12. MISCELLANEOUS PROVISIONS: A< This Agreement shall be construed and enforced according to the Iaws of the State of Florida. B. Ti•tle and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Agreement be unenforceable Alejandro Vilarello 444 SW 2' Avenue Suite 945 Miami, FL 33130-1910 Should any provision, paragraph, sentence, word or phrase contained in this determined by a court of competent jurisdiction to be invalid, illegal or otherwise under the Iaws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto. F. Provider shall be allowed to give private",lessons .and,,retain paymentstherefor. providing that those lessons in no way interfere with any of Provider's responsibilities under this Agreement. Provider acknowledges, however, that this privilege to give private lessons is given as a courtesy and may never serve directly or indirectly as a basis for a claim for damages against the City of Miami. G. Provider ,also expressly acknowledges that the City of Miami may close or otherwise cease golf related operations at the course at any time prior to December 31, 2007, without breaching any obligation to Provider. In the event that Provider has not been terminated for cause but the City determines it no longer needs or desires the services of Provider, the City of Miami would continue to have an obligation to pay Provider the compensation set forth in paragraph 3 above. Provider would not:be entitled.. to any damages against the City of Miami except for the compensation set forth in paragraph 3 above in the event of any breach of this Agreement by the City of Miami. 13. INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, Provider shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Provider further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Provider. 14e "ENTIRE AG EEMENT: This instrument and its attachments coristiNte; the:sale and only agreement of theparties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. By riscilla A. Thompson, City Cl ATTEST: APPROVED AS TO, F Iv1;AND ,. CORRECTNESS: r AIejand'ro, larello, City fro -rile City tt ney CITY O. :Ard a Bneivicip corpora. i Joe' 1A r oJa;"City Manager / •Fr. CIi'arlie D� cca, an individual ATTACHMENT "A" SCOPE OF SERVICES I. GENERAL PROVISIONS: The services that are the subject matter of this Agreement (the "Services") consist of "golf course operation" services. 1. Obligations of Provider as Operator: 1.1 Fiscal` Obligations 1:1:1 ' Golf; course operation services will be provided directly by the Provider and for the purposes of this ATTACHMENT the. term "Provider" shall be synonymous with the term "Operation." ' 1.1.2 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 of the coming Fiscal Year. 1.2 Operations Responsibilities: 1.2.1 .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. 1.2.2 Operator shall act as a full-time manager comparable to managers at similar public first-class daily fee golf courses. The Operator agrees to supply the City with information and telephone numbers for making contact with the Operator. 1.2.3 The Operator shall hire and train all City employees at the Golf Course Facilities. The Operator shall provide safe, courteous, hones and efficient service to patrons of the Golf Course Facilities. 1.2.4 The Operator shall prepare emergency procedures for the Golf Course Facilities and each operation thereon to be implemented in case of hurricane or other emergency. These procedures will be submitted to. the City Manager for approval. 1 2 5 ,. ,Operator shall use its best efforts to ensure that all Golf Course :employees and approved subcontractors shall be trained in their duties and shall be safe, courteous, helpful and efficient in carrying out those duties. 1.2.6 Operator shall abide by the laws, statutes, ordinances, rules, regulations and other enforceable issuance by bodies with legal jurisdiction, including but not limited to law relating to discriniination, civil rights, health, safety and welfare of individuals. 1.2.7 Any property not owned by the City remaining at the Golf Course Facilities more than thirty (30) days after terrnination 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.