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HomeMy WebLinkAboutExhibit 1THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT This THIRD AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT ("Third Amendment"), is entered into effective as of October 1, 2011 ("Effective Date"), between the City of Miami, a Florida municipal corporation ("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 ("Professional Services Agreement"); WHEREAS, by Amendment to the Professional Services Agreement ("First Amendment"), the City and Charlie Delucca, Sr., agreed to extend the tern of the Professional Services Agreement from December 31, 2007, through September 30, 2008, under the same terns and conditions set forth in the Professional Services Agreement; WHEREAS, by Second Amendment to the Professional Services Agreement, effective as of January 1, 2008 ("Second Amendment"), the City, Charlie Delucca, Sr., and Delucca Enterprises agreed, in pertinent part, as follows: i. To accept the assigmnent 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 S 1-10,000 for the Fiscal Year of October 1, 2008, through September 30, 2009, S117,000 for the Fiscal Year ending October 1, 2009, and increasing by an annual 3% 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: 7 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, tennis courts, and a family golf learning center currently under construction to be added to the Golf Course Facilities (collectively referred to as the "Golf Course Facilities"). 4. COMPENSATION. As of the Effective Date, the annual compensation payable to Delucca Enterprises pursuant to the Second Amendment shall equal Two Hundred Thousand and No/100 Dollars (S200,000.00) increased by an annual three (3%) during any Fiscal Year of the City in which the General Employees, Police Employees, Fire Rescue Employees, and Sanitation Employees of the City receive any cost of living or across-the-board pay increase ("Base Compensation"). The City shall also pay Provider additional incentive compensation ("Incentive Compensation") for the increased responsibilities required by Provider's management supervision of the operation of the Golf Course Facilities, including the new clubhouse, restaurant, bar, retail golf pro shop, tennis courts, and family golf learning center, in an amount equal to thirty percent (30%) of any Net Operating Surplus .derived from the operations of the Golf Course - Facilities during each Fiscal Year of such operations • ("Net Operating Surplus") beginning with the Fiscal Year ending September 30, 2012. For purposes 3 hereof, the Net Operating Surplus shall equal the excess of (i) the total gross revenues received by the City during each fiscal year from the operations of the Golf Course Facilities (reduced by any and all sales taxes and retailers excise taxes added to and separately stated from the sales price of merchandise or services and collected from customers and by any credits or refunds to customers), over (ii) the total direct expenses (including the Base Compensation) incurred in the operations of the Golf Course Facilities (excluding Capital Outlay, Repair and Maintenance for City Parks other than the Golf Course Facility, Professional Services for the annual certified audit,. and 'Incentive Compensation, if any) as approved through the City's regular Budget process. The amount of the Net Operating Surplus shall be determined annually under generally accepted accounting principles, consistently applied, pursuant to an annual audit of the Golf Course Facilities to be conducted by a firm of independent certified public accountants unanimously selected by Provider and the City ("Accountants"). The Accountants shall certify the amount of the Net Operating Surplus to the City and Provider as part of the Accountant's annual audit report. The City shall pay Provider any Incentive Compensation within thirty (30) business days after the Accountant's delivery of the audit report to the City. 5. ANNUAL BUDGET. Provider shall prepare and submit to the City Manager, on or before February 28 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. 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 Facilities 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 4 expenditure not specifically approved in the budget other than any ordinary and necessary expenses (such as cost of goods or services sold and labor 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 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. 5 IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date. ATTEST: CITY OF MIAMI, a Florida municipal corporation By: Priscilla A. Thompson, City Clerk Johnny Martinez, City Manager ATTEST: DELUCCA ENTERPRISES, INC., a Florida corporation By: Print Name: Charlie Delucca, President APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Julie O. Bru City Attorney 6 Calvin Ellis, Director Risk Management