SECOND AMENDMENT AND SECOND EXTENSION TO WATER TAXI OPERATING AGREEMENTSecond Amendment and Second Extension to Water Taxi OperatingAstrO nnerlt
(141
THIS CONTRACT renewal entered into this day of July, 2023,
by and between the CITY OF CLEARWATER, a Florida municipal corporation,
hereinafter referred to as "City," P.O. Box 4748, Clearwater, Florida 33758 and
Clearwater Ferry Services, Inc., 615 Pinellas Street, Clearwater, Florida, 33756, a
Florida corporation, hereinafter referred to as "the Corporation"
WHEREAS, the City issued Request for Proposals (RFP) No. 35-16, which is
incorporated by reference hereto as if fully stated herein, seeking an experienced,
appropriately equipped, staffed, licensed and insured water taxi service provider; and
WHEREAS, the Corporation was the winning bidder of RFP 35-16 and was
awarded a two-year initial contract ("the Contract") on November 18, 2016; and
WHEREAS, the City Council has authorized two additional extensions of the prior
agreement; and
WHEREAS, the Corporation presently offers the only public waterborne
transportation option that offers service between downtown Clearwater and Clearwater
Beach, thereby qualifying the Corporation for consideration as a sole source or single
source vendor; and
WHEREAS, the City desires to continue to support water taxi services connecting
various areas that are exclusively within Clearwater, and in particular desires to promote
safe and comfortable transit between Clearwater Beach and downtown Clearwater;
NOW THEREFORE, in consideration of the promises stated herein, the City and
the Corporation mutually agree as follows:
1. RECITALS
The recitals above are true and correct, and incorporated herein by reference.
2. PROVISION OF WATER TAXI SERVICE
FERRY -- SECOND AMENDMENT AND SECOND EXTENSION OF WATER TAXI OPERATING
AGREEMENT (June 2023).DOCX
The Corporation agrees to provide scheduled Water Taxi services connecting the
Areas detailed in "Exhibit A — Map of Service Locations," by following the Time and Route
Schedule in "Exhibit B. Both exhibits are attached and incorporated into this renewal,
and in the event of ambiguity between this Agreement and the Exhibits, this Agreement
shall prevail.
The Corporation shall at all times maintain at least two (2) vessels capable of
providing service at the locations described in "Exhibit A" and in furtherance of the Time
and Route Schedule described in "Exhibit B". However, the Corporation may provide only
one (1) vessel for up to seven (7) calendar days if the second vessel is temporarily
removed from service due to maintenance or other mechanical reasons. If the second
I is temporarily removed pursuant to this provision, the Corporation shall immediately
notify fires harbormaster of the removal, the reason for the removal, and anticipated
date on which service shall resume.
If more than seven (7) days elapse with only one (1) vessel servicing lova tions
described in "Exhibit A" or performing the routes described , in "Exhibit B," the City's
contribution shall be reduced by five hundred dollars ($500.00) for each Friday, each
Saturday, and each Sunday that only one (1) vessel is in service. This reduction in the
Ciy's contribution shall be reflected at the next annualized payment described in Section
4 of this agreement. If for any reason no vessels are providing the service required by
this agreement, the City's contribution shall instead be reduced by one thousand dollars
($1,000.00) for each Friday, each Saturday, and each Sunday that no vessels are
providing the service.
3. TIME OF PERFORMANCE
The Effective Date of this agreement shall commence on October 1, 2023, and
end September 30, 2033, unless terminated sooner by either party pursuant to Section 16
of this agreement. Both the services described in Section 2 of this agreement and the
Page 2 of 12
compensation descnbed in Section 4 of this agreement shall commence on the Effective
Date.
4. COMPENSATION
In return for providing the services described in *Exhibit B" at the locations
described in *Exhibft A," the City shall provide the annual compensation described in
"Exhibit C." As shown in Exhibit Cs* it is the intent of the parties for the City's contribution
to reduce gradually during a five year period and reach a zero level by October 1, 2028.
The parties expect the Corporation to achieve profitability within that time -frame, and to
become a thriving business that fills an important need within the City. As a result, the
parties expect the services described in Section 2 of this agreement to continue for the
entire duration of this agreement, including dates occuning after October 1, 2028.
5. NOTICES AND CHANGES OF ADDRESS
Any notice required or permitted to be given by the provisions of this Contract shall
be conclusively deemed to have been received by a party hereto on the date it is
electronically transmitted to either individual at the email address(es) provided below.
Clearwater Ferry Services, Inc.
Patricia Rodriguez
Trisha@ClearwaterFerry.com
City of Clearwater
Eric Gandy, Harbormaster
Eric.Gandy@MyCtearwater.com
Should the identity of the Corporation's president change, or should the Identity of the
City's Harbormaster change, the other party must be notified by email within a reasonable
time.
6. UCENSE TO USE CITY DOCKAGE AND UPLAND AREA
The City grants the Corporation a license to occupy and use the City's dockage
and adjacent upland area land reasonably related to the Corporation's provision of Water
Taxi Service, including all ingress, egress and approaches to and from such dockage and
upland area. The dockage and upland areas are those associated with and illustrated by
Page 3 of 12
"Exhibit A.* The City reserves the right to temporarily relocate operations from either the
Harbor or Beach Marina Landing as necessary, due to planned or unplanned infrastructure
repairs or improvements. Such relocation shall not persist longer than reasonably
necessary to accomplish the City's objective.
7. CORPORATION'S DUTIES RELATED TO CITY DOCKAGE AND UPLAND
AREA
The Corporation shall control and assume responsibility for the use, operation and
securdy of the Upland Area during Water Taxi Operating Hours, such responsibility
includes controlling access to the Upland Area and associated dockage, ticketing, guest
service functions, security, cleaning and general operational organization. The
Corporation shall continually evaluate the condition and suitability of the city dockage and
upland area for water taxi activities. The Corporation shall properly secure the city
dockage and upland area at the conclusion of daily ferry service. The Corporation shall
notify the City of any potential or actual hazardous conditions. The Corporation shall report
any damage it causes to the Marine and Aviation Department and be financially
responsible for any repairs necessary to correct any damage caused by the Corporation.
8. THE CITY'S DUTIES RELATED TO CITY DOCKAGE AND UPLAND
AREA
• At times other than Water Taxi Operating Hours, the City shall maintain the city
dockage and upland area in a clean and orderly condition. The Corporation shall
immediately notify the City if an unsafe condition exists at these locations. The City shall
be responsible for all maintenance and repairs to the city dockage and upland areas, but
the Corporation understands their financial obligations to reimburse the City for damage
caused by the Corporation. The City is under no obligation to repair city dockage or the
upland areas in the event that the City Council, in its sole discretion, determines that ft is
not in the City's best economic interest to repair such impacted areas due to substantial
Page 4 of 12
damage. The City will, however, take best efforts to avoid or mitigate substantial damage
to City dockage and upland areas.
9. PROHIBITED USE
The City dockage and associated upland area shall not be used by the Corporation
for any use other than the use necessary to provide Water Taxi services. No occupation
or alternative use shall be available to the Corporation which, at the sole discretion of the
City, is deemed hazardous, inconsistent with this Agreement, or increases the City's
liability.
10, PUBLIC RECORDS
IF THE CORPORATION HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, THE CORPORATIONS DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS CONTRACT. CONTACT THE CUTODIAN OF
PUBLIC RECORDS AT 727-562-4092, Rosernarie.Calernydearwater.com, 112 S.
Osceola Ave., Clearwater, FL 33756
The Corporation's agreement to comply with public records law applies specifically
to:
a) Keep and maintain public records required by the City of Clearwater
(hereinafter 'public agency") to perform the service being provided by the
Corporation hereunder.
b) Upon request from the public agency's custodian of public records,
provide the public agency with a copy of the requested records or allow the records
to be inspected or copied within a reasonable time at a cost that does not exceed
the cost provided for in Chapter 119, Florida Statutes, as may be amended from
time to time, or as otherwise provided by law.
c) Ensure that the public records that are exempt or confidential and
exempt from public records disclosure requirements are not disclosed except as
Page 5 of 12
authorized by taw for the duration of the contract term and following completion of
the contract if the Corporation does not transfer the records to the public agency.
d) Upon completion of the contract, transfer, at no cost, to the public
agency all public records in possession of the Corporation or keep and maintain
public records required by the public agency to perform the service. If the
Corporation transfers all public records to the public agency upon completion of
the contract, the Corporation shall destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure requirements. If.
the Corporation keeps and maintains public records upon completion of the
cons the Corporation shall meet all applicable requirements for retaining public
records. All records stored electronically must be provided to the pubic agency,
upon request from Ito pudic agency's custodian of public records, in a format that
is compatible with the information technology systems of the public agency.
e) A request to inspect or copy public records relating to a public
agency's contract for services must be made directly to the public agency. If the
public agency does not possess the requested records, the public, agency shall
immediately notify the Corporation of the request and the Corporation must provide
the records to the pubic agency or allow the records to be inspected or copied
within a reasonable time.
f) The Corporation hereby acknowledges and agrees that if the
Corporation does not comply with the public agency's request, for records, the
public agency shall enforce the contract provisions in accordance with the contract.
g) A Corporation who fails to provide the public records to the public
agency within a reasonable time may be subject to penalties under Section 119.10,
Florida Statutes.
Page 6 of 12
h) If a civil action is filed against a Corporation to compel production
of public records relating to a public agency's contract for services, the court shall
assess and award against the Corporation the reasonable costs of enforcement,
including reasonable attorney fees, it
1. The court determines that the Corporation unlawfully refused to comply
with the public records request within a reasonable time; and
2. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Corporation has
not complied with the request, to the public agency and to the Corporation.
i) A notice complies with subparagraph (h)2 if it is sent to the public
agency's custodian of public records and to the Corporation at the Corporation's
address listed on its contract with the public agency or to the Corporation's
registered agent Such notices must be sent by common carrier delivery service or
by registered, Global Express Guaranteed, or certified mail, with postage or
shipping paid by the sender and with evidence of delivery, which may be in an
electronic format.
j) A Corporation who complies with a public records request within 8
business days after the notice is sent is not liable for the reasonable costs of
enforcement.
11. RIGHT TO AUDIT AND PROVISION OF MONTHLY OPERATIONS REPORTS
The Corporation shall prepare, in accordance with generally accepted accounting
practice, accurate books of account, along with other records as required by law. All
records, including but not limited to tax retums, with respect to the Corporation's business
conducted pursuant to the prior Agreement dated November 18, 2016, shall be kept by
the Corporation and shall be available to the City for examination or audit during the term
Page 7 of 12
of this Agreement and for a period of five (5) years following the expiration or earlier
termination of this Agreement.
The Corporation shall also provide monthly operations reports, and such reports
shall include Water Taxi ridership numbers and also disclose the fare amount charged to
passengers.
12. INDEMNIFICATION AND INSURANCE
Subject to Section 768.28, Florida Statutes, the Corporation agrees to comply with
all terms, provisions, and requirements contained in Request for Proposal (RFP) No. 35-
16, Water Taxi Services, including, but not Limited to, S.25 — Indemnification/Liability, and
the Corporation agrees to designate the City as an additional insured under its own
insurance policy. RFP No. 35-16 is incorporated into this Renewal by reference. To the
extent there is any ambiguity between the terms of this Renewal and the terms of the RFP,
the terms of this Renewal prevail. Nothingherein shall be construed as consent by the
City to be sued by third, parties, or as a waiver or modification of the provisions or limits of
Section 768.28, Florida Statutes or the Doctrine of Sovereign Immunity.
13. TAXES, FEES, AND COSTS
The City shall not charge the Corporation fees for usage of the city dockage and
associated upland areas. The Corporation will be solely responsible for payment of its
own income and sales taxes. The Corporation's ' storage and fuel costs remain the
Corporation's responsibility.
14. CONSTRUCTION AND ALTERATION OF CITY DOCKAGE AND UPLAND
AREAS
The Corporation shall not make or permit to be made any alterations, additions,
improvement or changes to the city dockage or associated upland area nor permit the
Page 8 of 12
painting or placing of any signage, placards or other related advertising media without
obtaining prior written consent of the City, which shall be at the City's sole discretion.
15. ASSIGNMENT
The Corporation shall not have the right to assign, transfer, convey, sublet or
otherwise dispose of its license to utilize city dockage and associated upland areas or its
rights or obligations under this Agreement.
16. DEFAULT AND TERMINATION
Subject to the Corporation's right to notice and an opportunity to cure, as specified
herein, the Corporation shall be deemed in default of its obligations under this Agreement
upon the occurrence of any of the following:
a. The Corporation's failure to perform any covenant, promise, or
obligation contained in this Agreement or comply with the terms and
conditions of this Agreement;
b. The appointment of a receiver or trustee for all or substantially all
the Corporation's assets;
c. The Corporation's voluntary petition for relief under any bankruptcy
or insolvency law, or the filing of an involuntary bankruptcy petition
which is not dismissed within sixty (60) days;
d. The sale of the Corporation's interest under this Agreementby
execution or other legal process;
e. The seizure, sequestration, or impounding by virtue of or under
authority of any legal proceeding of all or substantially all of the
personal property or fixtures of the Corporation used in or incident
to its operations in providing the Water Taxi Service.
f. The Corporation making an assignment of its assets for the benefit
of creditors;
Page 9 of 12
g. Any sale, transfer, assignment, subleasing, concession, license, or
other disposition of this Agreement that is not authorized by this
agreement;
The City may immediately terminate this Agreement if a default pursuant to this
Agreement is not cured within thirty (30) days after receipt of notice from the City. In the
event of early termination of this Agreement due to the Corporation's default.
17. DAMAGE TO CITY DOCKAGE, ASSOCIATED UPLAND AREAS, AND
VESSELS
if any portions of the city dockage or associated upland areas are substantially
damaged by fire, humcane or other casualty, the City or the Corporation may elect to
repair or replace the affected facilities within thirty (30) days of the casualty or occurrence.
In the event the affected facilities are not repaired or replaced within thirty (30) days of the
casualty or occurrence or if neither the City or the Corporation elects to repair or replace
the affected facilities, either party may immediately terminate this Agreement.
Nothing contained herein shall limit the City's rights and remedies against the
Corporation for any such damage caused by the Corporation, its employees, agents or
contractors.
18. RELATIONSHIP OF PARTIES
The relationship between the Parties is that of licensor and licensee. In conducting
the Water Taxi Service hereunder, the Corporation shall act as an independent contractor
and not an agent of the City. The selection, retention, assignment and direction of the
Corporation's employees shall be the sole responsibility of the Corporation, and the City
shall not attempt to exercise any control over the daily performance of the duties of the
Corporation's employees.
19. NO EXCLUSIVE RIGHTS
Page 10 of 12
Nothing contained in this Agreement shall be construed to grant or authorize the
granting of exclusive right other than right of use of the city dockage and related upland
properties pursuant to the terms of this Agreement.
20. CONFORMANCE WITH LAWS
The Corporation agrees to comply with all applicable federal, state and local laws
during the life of this Contract.
21. ATTORNEY FEES
In the event that either party seeks to enforce this Agreement via legal action, then
the parties agree that each party shall bear its own attorney fees and costs.
22. GOVERNING LAW AND VENUE
The laws of the State of Florida shall govern this Contract, and any action brought
by either party shall lie in Pinellas County, Florida.
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of the
date set forth above.
Countersigned:
43‘CL
Brian Aung r.
Mayor
Appro d as to form:
David Margolis
City Attorney
By:
CITY OF CLEARWATER, FLORIDA
n er Poirrier
City Manager
Attest:
b4LIVLC6-)L"
Rosemarie Call
City Clerk
Page 11 of 12
4,ek.
Attest:
(Clearwater Ferry Services, Inc.)
By:
.,,6
P4c,wo01ri5vez
Title:QUke4
Pri
Name: Print Name:
Page 12 of 12