Amendment No.3 to Van Daalen Tennis, LLC Agreement ?o(q- 31o27
AMENDMENT NO. 3
TO VAN DAALEN TENNIS, LLC ONE (1)YEAR PILOT
AGREEMENT TO PROVIDE PROGRAMMING AT THE
CITY'S MIAMI BEACH TENNIS CENTER
This Amendment No. 3 ("Amendment") to the Agreement, dated August 30, 2017, to
provide Programming at the City's Miami Beach Tennis Center, by and between the City of Miami
Beach, Florida, a municipal corporation organized and existing under the laws of the State of
Florida, having its principal place of business at 1700 Convention Center Drive, Miami Beach,
Florida 33139 (the"City"), and Van Daalen Tennis, LLC, a Florida limited liability company, having
its principal place of business at 15051 Royal Oaks Lane, Apt. 1604, North Miami, Florida 33181
("CONTRACTOR"), is entered into this (3 day of N tw,i , 2019.
RECITALS
WHEREAS, on July 26, 2017, the Mayor and City Commission adopted Resolution
Number 2017-29936, accepting the written recommendation of the City Manager and waiving, by li
5/7th vote, the competitive bidding requirement, finding such waiver to be in the best interest of
the City; and approving, in substantial form, a one (1) year pilot agreement between the City and
Van Daalen Tennis, LLC ("CONTRACTOR"), for programming at the City's "Miami Beach Tennis
Center" (the "Center"); and
WHEREAS, on August 30, 2017, the City and Van Daalen Tennis, LLC. ("Contractor")
executed the One (1) Year Pilot Agreement (the "Agreement")to Provide Tennis Programming at
the City's North Shore Tennis Center, now known as the "Miami Beach Tennis Center" (the
"Center"); and
WHEREAS, on April 11, 2018, the Mayor and City Commission referred Item C4F to the
Finance and Citywide Projects Committee ("FCWPC") to discuss a term extension for 6 months
of the Agreement for the Contractor to provide programming following the completion of the
scheduled construction projects at the "Center"; and
WHEREAS, on April 11, 2018, the Mayor and City Commission adopted Resolution No.
2018-30279, changing the name of "North Shore Tennis Center" to the "Miami Beach Tennis
Center"; and
WHEREAS, at the May 2, 2018, Parks and Recreational Facilities Advisory Board
meeting, the board passed the following motion: "The Parks and Recreational Facilities Board
motions to favorably recommend a term extension of six months after the completion of the
scheduled construction projects at the Miami Beach Tennis Center for Van Daalen Tennis, LLC
to include the amendments made to the agreement as discussed at our Board meeting"; and
WHEREAS, at the May 18, 2018 FCWPC, the Committee made a favorable motion to
approve amendments to the Agreement, including: (1) extending the term to a date that is six
months after completion of the scheduled construction projects at the Center, which would extend
the expiration of the term to a date in December of 2019; (2) updating the name of the Center;
and (3) amending other provisions to keep the Agreement relating to club baskets and light fees,
Contractor's contribution to the Education Compact fund, uses of the courts for City sponsored
special events; and
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WHEREAS, on June 6, 2018, the Mayor and City Commission adopted Resolution No.
2018-30330, accepting the recommendation of the Finance and Citywide Projects Committee, at
its May 18, 2018 meeting, and approving Amendment No. 1 to the Agreement, including the
following modifications to the Agreement:
(1) Acknowledging the term extension of six months at the completion of the scheduled
construction projects at the Miami Beach Tennis Center for Van Daalen Tennis, LLC;
(2) Acknowledging the Contractor's education compact fund contribution, in an amount of
$500.00;
(3) providing for the addition of language related to identifying the Center as the Miami
Beach Tennis Center;
(4) Adding language addressing light fees and club baskets;
(5) Adding language regarding payment to Contractor for the City's summer sports
specialty camp;
(6) Updating the tennis software provider; and
(7) Providing the City with utilization of courts for City produced tennis related special
events and/or City sponsored special events to be added to the scope of the
Agreement; and
WHEREAS, at the April 10, 2019, City Commission Meeting, City staff updated the City
Commission with respect to the opening of the Center, which is slated to occur during late Spring
or Summer of 2020, and that prior to the end of the term, the Administration would be bringing
forward a procurement item so that the Agreement may be competitively bid; and
WHEREAS, at the April 10, 2019, City Commission Meeting, Resolution No. 2019-
30776 was passed approving Amendment No. 2 to the pilot agreement to adjust the Contractor's
programming and management fee from $500,000.00 to a not to exceed amount of$750,000.00
per year during the term of the Agreement to correspond to the programming demands; and
WHEREAS, at the July 19, 2019, Finance and Citywide Projects Committee meeting, a
motion was made to have the Parks and Recreation Department amend the Agreement of the
Center, providing programming at the City's Miami Beach Tennis Center, to shift the responsibility
and costs associated with the operation of the Center to the Contractor; and
WHEREAS, this shift in responsibilities would yield an annual savings to the City in the
approximate sum of$182,000.00; and
WHEREAS, on July 31, 2019, the Mayor and City Commission adopted Resolution No.
2019-30923, accepting the recommendation of the Finance and Citywide Projects Committee
meeting of July 19, 2019 to amend the Agreement transferring, the responsibility for payment of
operational and personnel expenses at the Center from the City to the Contractor; and
WHEREAS, on October 16, 2019, the Mayor and City Commission adopted Resolution
No. , accepting the City Manager's recommendation and waive, by 5/7ths vote,
the competitive bidding requirement, finding such waiver to be in the best interest of the City, and
approve, in substantial form, Amendment No 3 to the one year pilot agreement with Van Daalen
Tennis, LLC (Contractor), dated August 30, 2017, to provide tennis programming at the Miami
Beach Tennis Center(Center); said amendment, in material part: (1) fixing the expiration date of
the Agreement as September 30, 2020 and including two (2) successive one (1) year renewal
terms, at the City's option; (3) shifting the responsibilities and costs associated with the operation
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of the Center from the City to Contractor; (4) changing the financial terms to provide for payment
to the City of: (i) a minimum monthly guarantee payment of $3,500 for the one-year period
commencing on January 1, 2020 (year one), with the minimum monthly guarantee increasing by
$500 for each renewal term, plus (ii) a monthly payment equal to 5% of the gross revenues, which
becomes payable once the total cumulative gross revenues for a particular contract year exceeds
$700,000, with the gross revenue accrual resetting at the beginning of each subsequent contract
year; and further authorize the Mayor and City Clerk to execute the final amendment.
NOW THEREFORE, in consideration of the mutual promises and conditions contained
herein, and other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the City and CONTRACTOR hereby agree to amend the Agreement as follows:
1. ABOVE RECITALS.
The above recitals are true and correct and are incorporated as part of this Amendment.
2. MODIFICATIONS.
The Agreement is hereby amended (deleted items struck through and inserted items underlined)
as follows:
(A) Section 1 (Term) is hereby deleted in its entirety and replaced with the following:
SECTION 1. TERM
1.1 The Initial Term of this Agreement commenced on August 1, 2017 and shall expire on
September 30, 2020. The City Manager shall have the right, at its sole option and
discretion, to extend this Agreement for two (2) successive one (1) year terms (each a
"Renewal Term"), by giving written notice to the City Manager of such intention not less
than ninety (90) days prior to the expiration of the Initial Term or any exercised Renewal
Term. The Initial Term and any successive Renewal Term, if approved by the City
Manager, may collectively be referred to, herein as the "Term".
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, IF THE CITY
DETERMINES,AT ANY TIME DURING ANY TERM HEREUNDER,THAT IT IS IN THE
BEST INTEREST OF THE CITY TO TERMINATE THIS AGREEMENT, THE CITY
MAY, ACTING THROUGH THE CITY MANAGER, TERMINATE THIS AGREEMENT,
WITHOUT PENALTY OR CAUSE, IN THE CITY'S SOLE DISCRETION, UPON
NINETY(90) DAYS'WRITTEN NOTICE OF INTENT TO TERMINATE GIVEN TO THE
CONTRACTOR.
A Contract Year shall refer to the period from October 1st to September 30th of a given
year.
(B) Subsection 2.2 of the Agreement is hereby amended to read as follows:
2.2 The City has employed the CONTRACTOR, and CONTRACTOR agrees, to
manage and operate the tennis program and the Pro Shop at the Center,
pursuant to the terms and conditions set forth herein. The City shall continuo
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software system; maintaining the courts and overall facilities of the Center;
CONTRACTOR. The CONTRACTOR shall be responsible for the following
duties at the Center: opening and closing the Center; staffing and operating
the front desk; maintaining the reservation software system; maintaining the
courts and overall facilities of the Center; collecting all revenues for the Center
including, without limitation, all programming fees (including revenue from the
Pro Shop), membership fees and court fees; providing court maintenance
personnel; providing facility maintenance personnel; and will assist the public
in scheduling tennis programs and instruction.
(C)A new Subsection 2.3 is hereby added to the Agreement to read as follows:
2.3 CONTRACTOR accepts the Center "As Is" where is condition. The City will
not have an obligation to improve or change the condition of the Center at
anytime during the Term. The City is currently in the process of refurbishing
the Café, constructing an enclosure and improving outside restrooms ("City's
Construction Project"). The City makes no warranties or representations as
top the quality of the improvements, which completed improvements will be
accepted"As Is" by CONTRACTOR. CONTRACTOR further releases the City
from any business interruption or loss of revenue relating directly or indirectly
from the City's Construction Project.
(D) Section 4 of the Agreement is hereby deleted in its entirety and replaced with the
following:
SECTION 4. FEES AND REPORTS
4.1 CONTRACTOR Payment
In consideration of the rights granted the CONTRACTOR pursuant to this Agreement, and
CONTRACTOR'S further agreement and acknowledgement to perform and furnish the
management and operational services, professional skills and qualified personnel,
systems, and materials consistent with the management and operations of other first-
class, high quality public tennis center, the City and CONTRACTOR herein agree that the
CONTRACTOR shall collect and maintain (in accordance with generally acceptable
accounting principles) on behalf of the City, all revenues, generated at and from the Center
including, but not limited to, all memberships, tennis instruction, lessons and clinics; court
rental fees, sales, equipment rental, pro shop sales, and the sale and operation of food
and beverage concessions.
All said revenues collected by the CONTRACTOR shall be deposited into an account of
the CONTRACTOR, established pursuant to this Agreement, and to be maintained solely
for the sole and exclusive purpose(s) of the management, operation and maintenance of
the Center, pursuant to this Agreement (including, without limitation, to pay for all
budgeted operational expenses arising from the management or operation of the Center
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pursuant to this Agreement). Interest accrued in the account shall be part of the operating
income.
CONTRACTOR shall submit, within twenty-five (25) days following the close of each
month, copies of records and reports related to the receipts and expenditures with respect
to all expenses and revenues generated during such month at the Center. Such records
and reports shall be in a form satisfactory to the City's Chief Financial Officer, and shall
include a comparison of revenues and expenses for the two (2) months prior to the report
being submitted. The City shall have no obligation whatsoever to reimburse
CONTRACTOR for any cash flow deficiencies.
CONTRACTOR, upon receipt thereof from the depository bank, shall submit to the City
copies of all deposits, withdrawals, and bank statements concerning the account
established for the Center pursuant to this subsection 4.2. Additionally, there shall be a
reconciliation of all accounting within 15 working days following the completion of each
Agreement year during the Term hereof.
4.1.1 Notwithstanding anything to the contrary in this Subsection 4.1, the City
shall, without limitation, be paid by wire transfer from the established bank
account to the City's account, on the last work day of each month during the Term
of this Agreement, the following amounts:
(A) A minimum monthly guaranteed payment of $3,500.00 ("Minimum
Guarantee" or "MG") for year 1 (one) of the Agreement. The minimum
monthly guarantee will be increased by $500 for each "Renewal Term"; and
(B) In addition to the Minimum Guarantee, within fifteen days from the last day
of each month, the City shall be entitled to an additional monthly payment,
based upon a percentage of the total Gross Revenues (as defined herein)
as it cumulatively accrues during each Contract Year("Contract Year Gross
Revenues"), due upon the Contract Year Gross Revenues exceeding the
threshold of $700,000.00 ("Percentage Gross" or "PG"), as determined by
the Contract Year Gross Revenues accrued as of the last day of each
month, as follows: a payment equal to 5% of Contract Year Gross Revenue
when said Contract Year Gross Revenues exceed the total sum of
$700,000.00. Commencing January 1st of each Contract Year, Contract
Year Gross Revenues reset to zero and start to accrue again for the
purposes of calculating PG
4.1.2 The term "gross revenues" or"revenues", as used herein, is understood to
mean all income, whether collected or accrued, derived by the CONTRACTOR
under the privileges of this Agreement, including, without limitation, tennis
instruction, lessons and clinic, court rental fees, sales, equipment rental, pro shop
sales, tournaments and tournament registration fees, and the sale and operation
of food and beverage concessions, excluding amounts of Federal, State, or City
sales tax, or other tax, government imposition, assessment, charge or expense of
any kind, collected by the CONTRACTOR pursuant to this Agreement, and
required by law to be remitted to the taxing or other government authority.
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4_2 During the Term of this Agreement, CONTRACTOR shall prepare and submit to the City,
prior to October 1st of each fiscal year (or portion thereof) that is within the Term, a
proposed, detailed line-item annual operating budget for the Center, in compliance with a
format reasonably requested by the City's Chief Financial Officer. CONTRACTOR shall
also prepare and submit, prior to October 1st of each fiscal year(or portion thereof) that is
within the Term, a cash flow budget, based on its submitted operating budget for such
fiscal year. The operating budget and the cash flow budget shall be approved by the Chief
Financial Officer, with such modifications as the Chief Financial Officer shall make.
4.3 The CONTRACTOR shall provide a monthly activity report/revenue report which shall be
submitted to the City by the 25th day of each month. The monthly reports shall include,
but not be limited to, the following information:
a comprehensive description of the work performed, profit/loss reports for
clinics, tournaments, lessons, etc. detailing revenues generated in the prior
month, expenses incurred in the prior month, and other performance
measures as determined by the City;
a a work plan to adequately address Continuous Quality Improvement goals
in the CONTRACTOR's management plan;
n a maintenance plan to adequately address court and facility maintenance
in the CONTRACTOR's management plan and as it relates to the
maintenance subcontractor Welch for a timely schedule of court
refurbishments and overall court maintenance; and
(D) the City reserves the right to add or modify the items required in the monthly
report, as the City deems necessary, in its sole and reasonable discretion,
in order to adequately monitor performance of the CONTRACTOR.
4.4 Sales and Use Tax.
Payment of any required Florida State Sales and Use Tax shall be the responsibility of
CONTRACTOR.
4.5 Taxes, Assessments, and Utilities
4.5.1 CONTRACTOR agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon CONTRACTOR and with and/or against the
Center, except as provided in subsection 4.5.2, by reason of this
Agreement or by reason of the business or other activities of
CONTRACTOR upon or in connection with the Center. CONTRACTOR will
have the right, at its own expense, to contest the amount or validity, in
whole or in part, of any tax and/or assessment by appropriate proceedings
diligently conducted in good faith.
CONTRACTOR may refrain from paying a tax or assessment to the extent
it is contesting the assessment or imposition of same in a manner that is in
accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, CONTRACTOR shall be
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responsible for such delinquency charges, in addition to payment of the
contested tax and/or assessment, if so ordered.
CONTRACTOR, shall also pay for any fees imposed by law for licenses or
permits for any business or activities of CONTRACTOR at the Center under
this Agreement.
The CITY shall be responsible for payment of utilities used by, for, or on
behalf of the operations contemplated herein including, telephone, basic
cable, electricity, and water and sewer.
4.5.2 Procedure if Ad Valorem Taxes Assessed.
Notwithstanding Subsection 4.5, the parties agree that the operations
contemplated herein are intended for public purposes and, therefore, no ad
valorem taxes should be assessed by the Miami-Dade County Tax
Appraiser. If, however, said taxes are assessed, City and CONTRACTOR
agree that CONTRACTOR shall be responsible for real estate taxes which
are assessed against the Center. If the entire City folio, where the center is
located, is assessed and the Miami-Dade County Tax Appraiser does not
identify which portion of the City folio relates to the CONTRACTOR's Area,
CONTRACTOR shall be responsible for its proportionate share,
determined by dividing the square footage of the Center, by the square
footage for the City folio where the Center is located. In such case, either
party may terminate the Agreement, upon providing the other party with
ninety days written notice.
4.6 Maintenance and Examination of Records.
CONTRACTOR shall maintain current, accurate, and complete financial records on an
accrual basis of accounting related to its operations pursuant to this Agreement. Systems
and procedures used to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, by the City Manager upon
reasonable prior request and during normal business hours. Such records and accounts
shall include a breakdown of revenues, expenses, and profit and loss statements.
CONTRACTOR shall maintain accurate receipt-printing cash registers or a like alternative
at the Center which will record and show the payment for every sale made or service
provided at the Center; and such other records shall be maintained as would be
reasonably required by an independent CPA in order to audit a statement of annual
revenues and profit and loss statement pursuant to generally accepted accounting
principles.
4.7 Inspection and Audit.
CONTRACTOR shall maintain its financial records pertaining to its operations for a period
of three (3) years after the conclusion of any contract year and such records shall be open
and available to the City Manager or his designee, as deemed necessary by the City
Manager or his designee.
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CONTRACTOR shall maintain all such records at its principal office, currently located at
15051 Royal Oaks Lane, Apt. 1604, North Miami, Florida 3318. At the City's request, in
connection with any inspection or audit format, all such records shall be relocated, at
CONTRACTOR'S expense, to a location in Miami Beach, within ten (10) days' written
notice from the City.
The City, through its internal auditor or an independent auditor,shall be entitled to audit
CONTRACTOR'S records pertaining to its operation as often as it deems reasonably
necessary throughout the term of this Agreement, and three (3) times within the three (3)
year period following termination of the Agreement, regardless of whether such li
termination results from the natural expiration of the term or for any other reason. The
City shall be responsible for paying all costs associated with such audits, unless the
audit(s) reveals a deficiency of five percent (5%) or more in CONTRACTOR'S statement
of revenues for any year or years audited, in which case CONTRACTOR shall pay to the
City, within thirty (30) days of the audit being deemed final (as specified below), the cost
of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus
interest; provided, however, the audit shall not be deemed final until CONTRACTOR has
received the audit and has had a reasonable opportunity to review the audit and discuss
the audit with the City. Nothing contained within this Section shall preclude the City's audit
rights for resort tax collection purposes. CONTRACTOR shall submit, within sixty (60)
days from the end of each calendar year, an audited annual statement of revenues, in a
form consistent with generally accepted accounting principles.
It is CONTRACTOR'S intent to stay informed of comments from and suggestions by the
City regarding CONTRACTOR'S performance under the Agreement. Within thirty (30)
days after the end of each contract year, CONTRACTOR and City shall meet to review
CONTRACTOR's performance under the Agreement for the previous contract year. At
the meeting, CONTRACTOR and City may discuss quality, operational, maintenance and
any other issues regarding CONTRACTOR's performance under the Agreement.
(E) Subsection 5.1 of the Agreement is hereby amended to read as follows:
5.1 CONTRACTOR agrees that during the Term of this Agreement, Martin Van Daalen shall
have active, ongoing direct participation in the day to day operation, maintenance and
management of the Center. In the event that the CONTRACTOR, or otherwise ceases to
participate in the day to day operation, maintenance, and management of the Center
pursuant to this Agreement, then the City, at its sole option, may terminate this Agreement
for cause pursuant to Section 15. In the alternative, should the City not opt to terminate
this Agreement as provided therein, the City shall have prior written approval as to any
replacement of the Principal subsequently offered by the CONTRACTOR.
In connection with the performance of its responsibilities hereunder, CONTRACTOR may
hire Personnel (as defined in Subsection 3.4 herein), who will be the Personnel of the
CONTRACTOR and not of the City, and who will be subject to a background Check
Process, as set forth in Subsection 3.4 herein, at the expense of the CONTRACTOR.
CONTRACTOR shall provide an adequate number of Personnel and man-hours in order
to perform the services required under this Agreement. CONTRACTOR shall select the
number, function, compensation, including benefits (if any), and may, at its discretion and
at any time, adjust or revise the terms and conditions relating to such Personnel, in order
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to ensure an adequate number of Personnel and man-hours to the satisfaction of the City
Manager or his designee. The CONTRACTOR must provide the City with a copy of the
Personnel Contract detailing the terms of employment for coaches, instructors,
maintenance and office personnel. It is the expectation of the City that all of the
CONTRACTOR'S personnel are paid in a timely and consistent manner based on the
detailed specifications of the Personnel Contract.
(F) Subsection 7.8 of the Agreement is hereby amended to read as follows:
7.8 Management of the Pro-Shop
CONTRACTOR, at its own cost and expense, shall be responsible for purchasing and
stocking the Pro-Shop with appropriate tennis products, including but not limited to snacks,
strings, racquets, apparel, and beverages. Notwithstanding anything contained in Section
7, or in the Agreement, CONTRACTOR's food and beverage service shall be subject to
and shall not under any event, conflict with, or otherwise violate, the City's exclusive
vending contract with Coca-Cola Refreshments USA, Inc. b/b/a Florida Coca-Cola Bottling
Company and Coca-Cola North America, a division of the Coca-Cola Company ("Coca-
Cola Contract") and the City's exclusive vending contract with Bettoli Trading Corp.
("Bettoli Contract") (collectively referred to herein as "City Vending Contracts"); copies of
which are attached hereto and made a part hereof as composite Exhibit D. All monthly
income from the Pro-Shop shall be collected by the City and treated as part of the monthly
gross programming revenues. The City will not be responsible for the purchasing,
inventory, ordering, delivery or security of such products.
Furthermore, the "Premises" shall include the tennis center café area which
CONTRACTOR will manage and operate upon completion of the café construction proiect.
The tennis center café operation and management terms and conditions will be
determined by the City Manager at the completion of the construction project.
(G)Subsection 8.2 of the Agreement is hereby by amended to read as follows:
8.2 Building and Facility Maintenance.
The City further acknowledges that the CONTRACTOR shall not be required to improve,
repair, restore, refurbish, or otherwise incur any expense in improving or changing the
condition of the Center, except for all costs in connection with the fulfillment of this
Agreement including, without limitation; costs in connection with the maintenance of the
programming equipment and any costs relating to damage to the Facility caused as a
result of CONTRACTOR'S negligence.
The City shall maintain all electrical, HVAC, plumbing and foundation and structural
systems, roofs, exterior walls, and sports lighting at the Center at its sole cost, and in its
sole discretion as to mean, manner and methods used for such maintenance.
The City will maintain the grass and landscaped areas in those portions surrounding the
Center and within the Center. - - _ - • - - -- _ •- -_ - _ •-- - -_ --- _ -
the upkeep of the tennis courts to include: CONTRACTOR will be responsible for all costs
in connection with operating the Center (i.e. office supplies, internet, etc.); costs in
connection with the maintenance of the equipment; costs in connection with the upkeep
of the tennis courts, to include surface clay purchase; and costs in connection with the
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daily maintenance and janitorial services of the Center including, without limitation, the
following
(A) Windscreens
(B) Clay
(C) Nets (includes hardware)
(D) Lines (includes hardware)
(E) Algae and Weeds on courts
(F) Restrooms (clean and stocked)
(G) Pro Shop and facility cleanliness
(H) Litter Control
(I) Water coolers, ice, water and cups on the courts for patron use.
CONTRACTOR agrees to assist in helping to ensure the facility remains clean and tidy.
City shall have the sole discretion as to the means, manner and methods utilized for
aforestated maintenance.
(H)Subsection 8.3 of the Agreement is hereby amended to read as follows:
8.3 Courts and Related Facilities Maintenance Standards.
The City CONTRACTOR shall comply with minimum standards set forth for the
underground watering systems, as set forth by the builder of the Center (Welch Tennis).
The City shall conduct monthly maintenance inspections to ensure courts are up to
industry standards. The CONTRACTOR will be responsible for corrective actions when
identified within a reasonable amount of time based on industry standards for such repairs,
or immediate corrective action shall be taken when it addresses life safety issues. If court
maintenance deficiencies are found by City staff, the City may require court inspections
from an outside vendor at the expense of the CONTRACTOR. The City will advise the
CONTRACTOR of the findings and the CONTRACTOR must promptly respond to the
findings in writing, addressing all findings including an action plan and time line for
correcting any discrepancies identified in said findings. It is further understood that upon
the request of the City, CONTRACTOR shall periodically, or upon the City's written
request, provide the City Manager or his designee, with a maintenance report in a format
approved by the City.
(I) Subsection 8.4 of the Agreement is hereby amended to read as follows:
8.4 Equipment.
The CONTRACTOR must purchase and maintain, at its own cost and expense, all
materials, labor, and any and all equipment required to operate tennis programming and
maintenance at the Center. Such equipment to be included as part of the
CONTRACTOR's expense are:
(A) Ball Caddies
(B) Tennis Balls
(C) Racquets
(D) String
(E) Water Cooler
(F) Stringing Machine
(G)Ball Machine
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(H) Clothing Racks for Display
The City has supplied the Center with the following equipment that will be left for the
CONTRACTOR at the Center in "as is" condition:
(A) Blowers
(B) Trimmers
(C) Hot/Water/Pressure Washing
(D)Trash cans
(E) Brooms and Pans
(F) Rakes
(G)Giliberti
(H) Court grooming materials (i.e. Aussie Sweeps, rollers, etc.)
(I) Benches
(J) Umbrellas
(K) Outdoor Furniture
(L) Televisions
(M)Stringing Machine
(N) Ball Machine
In the event any of the CONTRACTOR'S equipment or materials are lost, stolen, or
damaged, they shall be replaced or repaired at the sole cost and expense of the
CONTRACTOR in no more than five (5) days from date of loss, or if not possible, within
such time frame, as promptly as reasonably possible, but in no event to exceed fifteen
(15) days. The CONTRACTOR shall maintain, in accordance with the manufacturer's
specifications and maintenance requirements, all equipment, whether City owned or
owned by the CONTRACTOR, herein specified and purchased. All equipment shall be
kept clean, fully functional and free of damage. With respect to the Ice Machine utilized by
the entire park (North Shore Park), CONTRACTOR is permitted to access ice from the
machine. If the Ice Machine is not operable for any given reason, it will be the responsibility
of the CONTRACTOR to purchase ice at the CONTRACTOR'S expense. Any equipment
purchased by CONTRACTOR with the revenues from the operation of the Center shall
remain property of the City at all times. Any equipment purchased by CONTRACTOR
with CONTRACTOR's own funds shall remain the property of CONTRACTOR.
(J) Section 10 of the Agreement is hereby amended to read as follows:
10. Fines and Penalties.
The City reserves the right to levy fines against the CONTRACTOR when the City
determines that CONTRACTOR is not meeting the necessary work requirements. The
following table below depicts areas where fines will be levied:
Work Activity Grace Period
Quality of Operations 24 hours
Personnel Shortages 4 hours
Personnel Payroll 24 hours
Personnel External Instruction 24 hours
Personnel Dress Code 8 hours
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Reporting 24 hours
Payments 24 hours
Equipment Deficiencies 72 hours
Supplies 8 hours
Program Management 24 hours
Communications 48 hours
Life Safety Maintenance 2 hours
Fines for failures to complete corrective action for any of the work activities listed above
are as follows:
- $100 after failing to complete corrective action after two (2) notifications
- $200 after failing to complete corrective action after three (3) notifications
- $500 after failing to complete corrective action after four (4) notifications
If additional time is required to complete corrective action, a written request must be
submitted for approval to the City prior to the end of the grace period. The basis for the
implementation of fines and penalties includes but is not limited to the following:
a. Quality of Operations — Inability to provide service in a workmanlike and
professional manner; failure to conform to professional and industry
standards; unable to provide maintenance services in a manner in clean
orderly and safe condition; and inability to meet the City's established
tennis court maintenance standards in accordance with the Tennis Court
Manufacturer's standards and guidelines for hydro-courts or other similar
tennis court system.
b. Personnel Shortages — Failure to provide a staffing plan that meets the
maintenance coverage requirements of the service area, and/or failure to
provide the necessary on-site personnel in accordance to the staffing plan.
c. Personnel Payroll—Failure to pay personnel in a timely manner and based
on the terms specified in the Personnel Contract.
d. Personnel External Instruction —CONTRACTOR is responsible for
ensuring that any external instruction engaged in by personnel must be
such as to not directly or indirectly compete with the Tennis Center's
business which includes private coaching and/or instruction at other City-
owned neighborhood tennis courts.
e. Personnel Dress Code — Failure of 'employees to meet uniform
requirements, including wearing clean uniforms.
f. Reporting — Failure to submit required maintenance and financial reports
on due dates.
g. Payments — Failure to submit required monthly payments and thresholds
on due dates.
h. Equipment Deficiencies — Inability to fully operate; in non-functional
condition; in state of disrepair and or visibly damaged; lacking
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maintenance; and not generally maintained and in clean condition.
Supplies — Failure to provide the supplies necessary for the proper
execution of the program or maintenance service specified.
j. Program Management _ Failure to implement a comprehensive
management program to respond to City and/ or stakeholder requests for
services and maintenance issues covered by the Contract.
k. Communications — Failure to submit an approved communications plan
addressing routine, scheduled, and emergency maintenance and repair
activities, and failure to provide timely notifications as previous prescribed.
Safety Regulations— Failure to adhere to OSHA's most recently published
Safety and Health Regulations and general Occupational Safety. and
Health Standards.
3. RATIFICATION.
Except as amended herein, all other terms and conditions of the Agreement shall remain
unchanged and in full force and effect. In the event there is a conflict between the provisions of
this Amendment and the Agreement, the provisions of this Amendment shall govern.
• IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their appropriate officials, as of the date first entered above.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
Page 13of14
FOR CITY: CITY OF MIAMI BEACH, FLORIDA
ATTEST:
By:
Rafae E. Granado, City Clerk Dan Gelber, Mayor
/ 13 )k
Date
FOR CONTRACTOR: VAN DAALEN TENNIS, LLC
ATTEST:
By:
sire i rogramming
veda- C WodArAnfiRei:- .4(//046ee Martin Van Daalen
Print/Napie and Title Print Name
VA-7 lq
Date
,
INOORP ORATED,
APPROVED AS TO
FORM & LANGUAGE
& FORE CUTION
Page 14 of 14 dQ1,.01cc2. r 6
City Attorney " I Date