LICENSE AND AGREEMENT FOR COMMERCIAL FERRY SERVICE
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LICENSE AND AGREEMENT
THIS LICENSE AND AGREEMENT by and between the CITY OF CLEARWATER, a
municipa 1 corporation of the State of Florida, hereinafter referred to as "CITY,"
and CLEARWATER FERRY SERVICE, INC., a Florida Corporation, of Pinellas County,
Florida, hereinafter referred to as "OPERATOR;"
WITNESSETH;
WHEREAS, the CITY desires to provide a ferry service to be used for the
convenience and enjoyment of its citizens and visitors; and
WHEREAS, the CITY desires to have such service load and unload passengers
at a dock faci 1 ity to be constructed by OPERATOR and located at the western
termination of Drew Street in Clearwater Harbor near the downtown Clearwater
waterfront as illustrated in the attached diagrams of the area labelled "Exhibits
A" and "A-I" through "A-5," inclusive, attached hereto and made a part hereof;
and
WHEREAS, the OPERATOR has been authorized by the City Commission to provide
the ferry service to the CITY.
NOW THEREFORE, in consideration of the conditions and mutual covenants
herein contained, the parties do hereby agree as follows:
CITY AGREES:
1. To authorize, license and permit OPERATOR to operate a commercial
ferry service in Clearwater Harbor from the dock site area described in Exhibit
A for a term as hereinafter provided in paragraph 24 in accordance with the
minimum routing schedule attached hereto as Exhibit "B."
2. To not authorize, license or permit the operation of a competing
ferry service similar to the service authorized herein to be provided by OPERATOR
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in Clearwater Harbor from the dock site identified in this License and Agreement
during the initial term or any extension thereof. However, it is understood that
vessels berthed in the commercial area of the Municipal Marina where chartering
activity takes place and which provide chartering service are not to be included
in this restriction.
3. To provide a docking facility at the end of Bay Esplanade more
particularly described as:
Commencing at the northeast corner of Lot 7, Block 8.7
of Mandalay Replat Unit 5, as recorded in Plat Book 20,
page 48, of the Pub 1 i c Records of Pine 11 as County,
Florida; thence run southerly along the east property
line of Block 87 of said Mandalay Replat 241.0 feet, to
a point of beginning; thence, continue southerly, along
said line 15.0 feet; thence run easterly, perpendicular
to sa i d property 1 i ne 25.0 feet; thence norther 1 y ,
parallel to said property line 15.0 feet; thence
westerly, perpendicular to said property line 25.0 feet,
to the point of beginning.
4. To make available at its Marina during the initial term of this
License and Agreement at no expense to Operator wet storage slips for OPERATOR'S
ferry boats in actual service, not to exceed three (3) in number.
OPERATOR AGREES:
5. To provide and operate a sufficient number of boats to provide the
agreed ferry service within Clearwater Harbor with a minimum of two passenger
carrying vessels in accordance with the minimum routing schedule attached hereto
as Exhibit "B." These passenger carrying vessels will be designed to be able
to navigate the waters of Clearwater Harbor, St. Joseph's Sound and pass under
the bridges over the Memorial Causeway.
6. To make stops at the Drew Street Dock, Clearwater Beach Recreation
Center and Sea Stone Docks (if and when this facility becomes available) and
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such other locations within Clearwater Harbor as requested by the CITY and
subsequently agreed to by OPERATOR.
7. To manage, operate, direct, superintend and promote the use of said
ferry service to the best of its ability and in compliance with all Federal,
State and Local laws and regulations.
8. To employ at its own expense qualified and licensed personnel as
required by the U.S. Coast Guard for the safe and efficient operation of vessels
used in the ferry operation.
9. To obtain at its own expense all required and necessary licenses
and permits to operate a ferry service and comply with all laws and regulations
of the United States of America, the State of Florida, County of Pinel las, and
the City of Clearwater, Florida, including but not limited to, business
operations, marine safety, sign regulations, and serving of food and beverages
to the public.
10. To provide adequate lighting, directional signs and such other
equipment and facilities as may be necessary to protect the safety of passengers
boarding and disembarking said dock and ferry vessels.
11. To maintain at its own cost the Drew Street dock area in a clean
and orderly manner and provide at its own cost for waste and trash collection
and disposal.
12. To provide at its own cost all utilities required for operation of
the ferry service including, but not limited to electricity, gas, water, sewage
and telephone.
13. To berth no more than three (3) vessels at the City's Marina and
none at the service points including the Drew Street Dock unless prior written
approval is granted by the City's Harbormaster.
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14. To provide Workers' Compensation Insurance (including Jones Act and
Longshoremen and Harborworkers I Act requ i rements) for its emp 1 oyees to the
maximum statutory limits and pay all Federal, State and Local taxes as may be
assessed. Certificates of insurance for this coverage must be provided to the
City. All such policies must be endorsed to provide the City with sixty (60)
days of notice of cancellation and/or restriction.
15. To indemnify and hold harmless the CITY from any and all damages,
loss, or liability occurring by reason of any injury of person or property
occasioned by any act or omission, neglect or wrongdoing of the OPERATOR or any
of its officers, agents, representatives, guests, employees, invitees, or
persons contracting with the OPERATOR and will, at its own cost and expense
defend and protect the CITY against any and all such claims or demands which
may be claimed to have arisen as a result of or in connection with the
performance of this License and Agreement. OPERATOR shall evidence this section
of this License and Agreement to the CITY with a Certificate of Insurance Form
attached to and made part of th i s Li cense and Agreement and sha 11 pro v i de
liability insurance coverage with limits of at least $1,000,000.00 per each
occurrence for bodily injury; $1,000,000.00 each occurrence for property
damage, with a combined single catastrophe limit of $1,000,000.00 for bodily
injury and property damage combined, such insurance to name the CITY as an
additional insured.
16. To refrain, directly or indirectly, from any verbal sales or
solicitation of any type on City-owned property or the use of loudspeakers from
City-owned property.
17. To provide City a copy of each inspection report issued in
accordance with Section 509, Florida Statutes within fifteen (15) days of
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receipt thereof.
18. To not begin or terminate ferry service at the City Marina under
any set of circumstances, except Operator may transport passengers to and from
the City Marina solely to board The Admiral or any substitute dinner cruise boat
operated by or affiliated with Operator.
19. To provide the CITY with a schedule of operations and charges to be
approved in writing by the CITY.s Manager with any changes in said schedule or
charges to be submitted to the CITY's Manager for prior written approval.
20. To not transfer any interest in this License and Agreement (whether
by assignment or otherwise) without the prior written consent of the CITY.
21. To not discriminate against any person in employment or in the
provision of services under the agreement because of race, color, religion, age,
sex or national origin.
22. To provide monthly reports showing total amounts collected for ferry
service along with the total number of customers served and to provide upon
request of the City Manager or his designee all figures on customer usage and
gross revenues received for ferry service during any given period of time and
to permit a review by the City Auditor of standard accounting records to verify
such information.
23. To not serve alcoholic beverages aboard any boat engaged at the time
in the operation of ferry service within Clearwater Harbor, as provided for in
this Agreement.
24. To pay 50% of the construction costs of any docking facilities
constructed by the City on Clearwater Beach and to repair or replace any damages
caused by the OPERATOR to the Clearwater Beach docking facilities provided by
the City.
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THE PARTIES AGREE:
25. The initial term of this License and Agreement shall begin and end
at the same time as the Ground Lease between the parties hereto unless sooner
terminated as herein provided. OPERATOR may extend this License and Agreement
for one (1) further period of five (5) years by giving CITY notice in writing
of OPERATOR'S intention to do so at any time prior to the expiration of the
initial term of this License and Agreement.
26. The OPERATOR and its patrons shall have the right to use the parking
facilities provided at the Drew Street dock site in common with the public.
27. If at any time during the term hereof, the performance of the
Agreement by either party hereto is materially interrupted, hampered, or
interfered with by reason of fire, casualty, lockout, strike labor conditions,
unavoidable accident, Act of God, or for any other reason beyond the control of
sa i d party, then in any of sa i d events th is Li cense and Agreement sha 11 be
deemed suspended during such period of interruption or interference. If such
suspension should continue for a period of ninety (90) days, then and in such
event either party may terminate this License and Agreement upon ten (10) days
written notice to the other party.
28. This License and Agreement may be cancelled and terminated by CITY
for any of the following reasons:
(a) When in the opinion of the City Manager of CITY, inferior service
is being offered by OPERATOR;
(b) When the terms of the minimum financial commitments are not being
met by OPERATOR;
(c) When any other good and valid reason exists that in the opinion of
the City Manager of CITY might detract from and not be in the best interest of
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City and its residents.
(d) For default of OPERATOR as to any part of this License and Agreement
or as to any part of the Ground Lease between the parties of the same date.
(e) For any municipal need as provided by the CITY'S Charter.
(f) For beginning or terminating ferry service at the City Marina or
allowing customers to use the ferry service from the City Marina, provided,
however, the transportation of passengers to and from The Admiral cruise boat
or any other cruise boat affiliated with OPERATOR shall not cause any
cancellation or termination of this License and Agreement.
(g) Should CITY desire to terminate this License and Agreement for any
of the reasons stated in paragraphs (a), (b), (c), or (d) above, CITY shall
first give OPERATOR written notice of such default with allowance thereafter of
thirty (30) days' time for OPERATOR to correct such default before terminating
this License and Agreement.
(h) Should CITY desire to cancel this License and Agreement for the
reasons set forth in paragraph (e) or (f) above, CITY shall give OPERATOR ten
(10) days' notice and this License and Agreement shall be cancelled at the end
of such period.
29. This License and Agreement shall automatically terminate without any
notice or action on the part of CITY or OPERATOR upon the happening of any of
the following events:
a) The termination and cancellation for any reason of the Ground Lease
of even date between CITY and OPERATOR;
b) The filing by or against OPERATOR pursuant to any statute of the
United States or of any state, of a petition in bankruptcy or insolvency or for
reorgan i zat i on or arrangement of indebtedness, or for the appo i ntment of a
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trustee or receiver for all or any portion of OPERATOR'S property, or if an
assignment by OPERATOR is made for the benefit of its creditors or if an
execution seizure, levy, or attachment is made on any of its property.
(c) OPERATOR vacates, abandons or terminates the ferry service.
30. The CITY may perform periodic inspection of all facilities,
premises, equipment and operating procedures to determine that such are being
maintained and operated properly and the OPERATOR agrees to make such
improvements as are reasonably required by the CITY.
31. At the end of the term, the OPERATOR shall cease ferry operations
from the Drew Street dock facility and at all other passenger points within
Clearwater Harbor.
32. Should any section or part of any section of this License and
Agreement be rendered void, invalid, or unenforceable by any court of law for
any reason, such determination shall not render void, invalid or unenforceable
any other section or any part of any other section of the License and Agreement.
33. That since actual damages which might be sustained by OPERATOR by
reason of the breach by CITY of this License and Agreement by a cancellation or
termination of said License and Agreement without just cause are uncertain and
would be difficult to ascertain, it is therefore further agreed and understood
between the parties that the total sum not to exceed $165,000.00, or a lesser
amount substantiated by paid invoices representing the costs of the improvements
made by OPERATOR less accumulated depreciation as provided for in Section 5.04
(3) of the Lease between the parties would be a reasonable and just compensation
for any such breach, and CITY hereby agrees to pay and OPERATOR hereby agrees
to accept such sum as liquidated damages, and not as a penalty, in the event of
any such breach, and the parties further agree that loss of profits from
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OPERATOR'S business shall not be included as an element of damages.
34. Any notice required to be given to a party under this License and
Agreement shall be given to the City's City Manager, P.O. Box 4748, Clearwater,
Florida 34618 and to OPERATOR at P.O. Box 3335, Clearwater, Florida 34640.
Either party may change the place of giving notice by a written communication
to the other party hereto.
35. This License and Agreement shall be governed by and interpreted in
accordance with the laws of the State of Florida.
36. This License and Agreement together with the Ground Lease between
the parties of the same date constitutes the entire agreement between the CITY
and the OPERATOR regarding a ferry service between the parties and no change
will be valid unless made in a supplemental written agreement, executed and
approved by the parties hereto.
Dated this 2nd day of August, 1989.
~ed:
CITY OF CLEARWATER, FLORIDA
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Ron H. Rabun
City Manager
By:
Rita Garvey
Mayor-Commissioner
Approved as to form
and correctness'
Attest:
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M. A. Galbraith,
City Attorney
Acting
ATTEST:
CLEARWATER FERRY SERVICE, INC.
BY:
MUI t2, ~Aor-'
Secretary
By:~dA~
Its ut 0 i~ea Off i cer
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EXHIBIT A
TO
LICENSE AND AGREEMENT
BETWEEN
CITY OF CLEARWATER
AND
CLEARWATER FERRY SERVICE, INC.
DREW STREET FERRY DOCK
PROJECT DESCRIPTION
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For Project Description, see Exhibits A-I through A-5 inclusive, attached
hereto and made a part hereof.
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NOTE:
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EXHIBIT B
TO
LICENSE AND AGREEMENT
BETWEEN
CITY OF CLEARWATER
AND
CLEARWATER FERRY SERVICE, INC.
MINIMUM ROUTING SCHEDULE
Round trips will be provided from 10:00 a.m. until 5:00 p.m. from March
1, through October 31. A minimum of six round trips must be provided, visitation
and weather permitting. Peak service trips will be provided during spring break
each year and the Friday before all holiday weekends plus each and every weekend.
Peak service days will provide daily round trips from 9:00 a.m. to 5:30 p.m.
Operation of the Ferry Service between November 1, and February 28, will be by
mutual consent of OPERATOR and CITY. At the completion of the first four (4)
months of operation, the Ferry Service days and times of operation will be
evaluated as to continuity and feasibility. At the completion of eight (8)
months of operation the Ferry Service will again be evaluated to insure that
service is adequate and operates smoothly. If adjustments are needed, they will
be made by mutual agreement at the end of the first year of operation.