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Concession Agreement between CMB & Poseidon Ferry LLC CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND POSEIDON FERRY LLC FOR THE TURNKEY IMPLEMENTATION, MANAGEMENT, OPERATION (INCLUDING DOCK OPERATIONS) AND MAINTENANCE OF A WATERBORNE TRANSPORTATION SERVICES PILOT PROGRAM INDEX Contents SECTION 1.TERM AND CITY SUBSIDY. 5 SECTION 2.CONCESSION AREA 6 SECTION 3. USE(S). 7 3.1 Water Taxi Services 7 3.1.1 Approved Use of Concession Area. 7 3.1.3 No Parking Privileges 8 3.1.4 Plan of Operation 8 3.1.5 Program Vessels 9 3.1.5.1 Ownership of Program Vessels 9 3.1.6 Hours of Operation and Water Taxi Destinations 9 3.1.7 Price Schedules. 10 3.1.8 City Commission Approval in Connection with Expansion of the Program. 10 3.1.9 Oversight 11 SECTION 4. MARKETING AND PROMOTION. 11 4.1 City's Non-Monetary Contribution to Program. 11 SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS AND REPORTS 12 5.1 Maintenance of Records. 12 5.2 Quarterly Report of Gross Receipt 12 5.3 Quarterly Performance Meeting 13 5.4 Reporting Requirements 13 SECTION 6. INSPECTION AND AUDIT. 13 SECTION 7.TAXES,ASSESSMENTS, LICENSES. 14 7.2 Procedure If Ad Valorem Taxes Assessed. 14 7.3 Licenses. 14 SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. 14 8.1 Concessionaire's Employees. 14 8.2 City Manager's designee. 15 SECTION 9. IMPROVEMENTS MAINTENANCE REPAIR and OPERATION 15 9.1 Improvements 15 SECTION 10. INSURANCE. 17 SECTION 11. INDEMNITY 20 2 SECTION 12. FORCE MAJEURE. 21 12.2 Labor Dispute. 21 12.3 Waiver of Loss from Hazards. 22 SECTION 13. DEFAULT AND TERMINATION. 22 13.9 Termination for Convenience of the City 24 13.10 City Manager Emergency Powers. 24 SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY 25 SECTION 15.ASSIGNMENT 26 SECTION 16.SPONSORSHIPS 26 SECTION 17. NO IMPROPER USE 26 SECTION 18. NOTICES 27 SECTION 19. LAWS. 28 19.2 Governing Law. 28 19.3 Equal Employment Opportunity. 28 SECTION 20. MISCELLANEOUS. 30 20.12 No Waiver. 32 20.13 No Third Party Beneficiary. 32 20.14 No Lien. 32 SECTION 21. LIMITATION OF LIABILITY. 32 SECTION 22.VENUE/WAIVER OF JURY TRIAL. 33 Exhibit 1.Concession Area 34 Exhibit 2. Plan of Operation 38 Exhibit 3.Concept Plan for Vessels 40 Exhibit 4. Fares for Water Taxi Services 42 3 CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND POSEIDON FERRY LLC FOR THE TURNKEY IMPLEMENTATION, MANAGEMENT, OPERATION (INCLUDING DOCK OPERATIONS) AND MAINTENANCE OF A WATERBORNE TRANSPORATION SERVICES PILOT PROGRAM THIS CONCESSION AGREEMENT (the "Agreement") made on • , 2024 ("Effective Date"), between the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida, having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter called the "City"), and POSEIDON FERRY LLC, a Florida limited liability company, with offices at 400 SE 2nd Street, Miami, FL 33131 (hereinafter called "Poseidon" or "Concessionaire"). WITNESSETH WHEREAS, traffic congestion in the causeways between the mainland and Miami Beach is an ongoing problem that impacts the quality of life for residents; and WHEREAS, water taxi service can provide a convenient and reliable alternative mobility option both for tourists and commuters traveling daily to and from the mainland and Miami Beach; and WHEREAS, on November 29, 2020, Poseidon launched a cross-bay passenger water taxi/ferry service (the "Prior Service") providing connectivity to and from the Hyatt Regency located at 400 SE 2 Avenue in Downtown Miami and the Bentley Bay Marina located at 520 West Avenue in Miami Beach; and WHEREAS, the Prior Service was privately owned and operated by Poseidon with no public subsidy from Miami-Dade County, the City of Miami, or the City; and WHEREAS, on December 31, 2022, Poseidon suspended the Prior Service due to low ridership and concerns with the long-term feasibility of the service given the lack of a public subsidy; and WHEREAS, on June 28, 2023, the City Commission adopted Resolution No. 2023-32644, waiving, by 5/7th vote, the formal competitive bidding requirement in Section 2-367(e) of the City Code, finding such waiver to be in the best interest of the City, and accepting the recommendation of the Finance and Economic Resiliency Committee, at its May 24, 2023 meeting, directing the City Administration to (1) negotiate a one (1) year agreement beginning in fiscal year ("FY") 2024 with Poseidon Ferry, LLC to provide a cross-bay passenger water taxi/ferry service pilot program ("Pilot Program") between Miami Beach and Downtown Miami; (2) identify funding for a potential operating subsidy; (3) identify locations where operations will be conducted; and (4) define the City contribution, and fare structure for the Pilot Program; and WHEREAS, the implementation of the Pilot Program is contingent upon 1) City Commission approval of a budget enhancement in the proposed FY 2024 operating budget in the 4 amount of$600,000, to fund a subsidy representing approximately 50% of the annual operation and maintenance costs of the proposed water taxi/ferry service based on Poseidon's business model and 2) Poseidon securing all necessary permits and licenses for operating water taxi/ferry operations associated with the Pilot Program; and WHEREAS, the City prohibits commercial transactions, activities or operations at the City's parks, boat ramps, beach structures, building or other public property or place owned, maintained or operated by the City unless expressly authorized by the City Manager or pursuant to a concession agreement that is approved by the City Commission; and WHEREAS, accordingly, the City and Poseidon have negotiated this concession agreement for the turnkey implementation, management, operation (including dock operations), and maintenance of a public waterborne transportation (water taxi) services pilot program to offer competitively priced public transportation service between the Sea Isle Marina in Downtown Miami to and from the Purdy Avenue Dock (as defined in Subsection 2.1 herein) located at the Maurice Gibb Memorial Park (the"Program"). NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto as follows: SECTION 1. RECITALS; CONCESSION; CONCESSION AREA. 1.1 Recitals. The above recitals are true and correct and incorporated as part of this Agreement. 1.2 Concession. The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the right to operate the Program (as further described herein) within the Concession Area as identified defined in Subsection 1.3 of this Agreement(the"Concession Area"), in conformance with the purposes and for the period stated herein and subject to all the terms and conditions herein contained and set forth. 1.3 Concession Area. The Concession Area shall be located at the Maurice Gibb Memorial Park (the "Park"), and specifically at the south side of the northern most dock of the Barry Kutun Boat Ramp (the"Purdy Avenue Dock"), as more particularly depicted in Exhibit 1 hereto,and may also include any adjacent or surrounding area where Concessionaire is permitted to install a ticket booth or other related equipment necessary for the operation of the Program (the "Concession Area Improvements"). Any Concession Area Improvements shall require the prior written approval of the City Manager, which approval, if provided at all, shall be at the City Manager's sole and absolute discretion, and Exhibit 1 shall be amended to incorporate the approved Concession Area Improvements. In the event the City issues the Notice to Proceed prior to completion of any docks or other required equipment constituting the Concession Area Improvements, the City and Concessionaire shall agree upon an alternate docking location. Concessionaire shall not install or operate any Program sites (other than as identified in Exhibit 1), without the prior written approval of the City Manager, which, if provided at all, 5 shall be at the City Manager's sole and absolute discretion. Notwithstanding the foregoing, Concessionaire shall, in consultation with the City Manager or his or her designee, seek to identify opportunities for additional water taxi stops to allow for the possible growth of the Program. 2.2 Concessionaire Responsibilities. As set forth in greater detail in this Agreement, Concessionaire shall have sole responsibility for the following functions in connection with the operation of the Program: • Vessel Maintenance and Drills • Regulatory Approvals (including without limitation approvals required from DERM and the United States Coast Guard) • Licensing (including all necessary renewals) • Ticketing (direct and third-party sales and platforms) • Marketing and Promotion (including social media) • Security • Developing concession sales strategy • Reporting In addition, Concessionaire shall solely be responsible for procuring all necessary permissions, licenses and permits from the City of Miami and/or any private parties to secure a docking location at the Sea Isle Marina that is within reasonable walking distance from the Omni public transportation hub and approved by the City Manager or the City Manager's designee. A site plan for the Sea Isle Marina reflecting the approved docking location is depicted in Exhibit 1A hereto. Any proposed change of the docking location at the Sea Isle Marina shall require the written approval of the City Manager or City Manager's designee. SECTION 2. TERM; OPERATING SUBSIDY. 2.1 Term. The term of this Agreement shall be for one(1)year term (the"Term"), commencing on the date water taxi services commence ("Commencement Date"). Concessionaire shall commence operations no later than thirty (30) days from the date of the Notice to Proceed to be issued by the City after Concessionaire has: (a) provided the City with documentary evidence that it has (i) obtained all requisite governmental approvals to operate the Program, (ii) entered into a docking agreement with the owner of the Sea Isle Marina and (iii) complied with all insurance requirements set forth herein, (b) provided the City Manager or City Manager's designee with an initial Plan of Operation for regular water taxi operations, establishing a minimum level of operation for the Program, including, without limitation, establishing the routes and hours of operation for the Program, which Plan of Operation shall be subject to approval by the City Manager or City Manager's designee and (c) met with representatives of the Sunset Harbour Neighborhood Association, along with City Staff, to discuss and resolve any concerns the residents may have regarding the water taxi operations (collectively, the items described in (a), (b) and (c), the "NTP Prerequisites"). Upon the written request of Concessionaire at least sixty (60) days prior to the expiration of the initial one-year Term, the City Commission, at its sole and absolute discretion, may extend the Term of the Agreement on such terms and conditions as the parties shall agree. If so extended, all references to the Term in this Agreement shall be deemed to include a reference to the extension term(s). If Concessionaire has not obtained all NTP Prerequisites by July 1, 2024, this Agreement shall be null and void and of no further force of effect. 6 2.2 Operating Subsidy. During the Term, provided that Concessionaire is in compliance with the terms and conditions of this Agreement, the City pay the Concessionaire an operating subsidy (the "Subsidy") in an amount not to exceed Six Hundred Thousand and 00/100 Dollars ($600,000.00), which funds shall be used solely for expenses relating to the administration and operation of the Program and for no other purpose. The Subsidy shall be paid in twelve (12) equal installments of$50,000. At the end of each calendar month during the Term (or on the last day of the Term if occurring prior to the end of the month), Concessionaire shall send an invoice to the City in the amount of $50,000 (pro-rated for any partial month), along with the required reports for the period concerned. Provided that Concessionaire has fully complied with its obligations under this Agreement, the City shall process and pay each such invoice within forty-five (45) days of receipt of the invoice and required reports. The parties intend that the Subsidy shall be paid by the City only during the first year of the Term and that the Program will be self-sufficient if the Term is renewed for one or more additional years. SECTION 3. USE(S). The Concessionaire is hereby authorized to conduct the following kind(s) of businesses and provide the following kind(s) of services related to the operation of the Program within the Concession Area, all at its sole cost and expense: 3.1 Water Taxi Services. 3.1.1 Approved Use of Concession Area. The Concession Area shall be used by Concessionaire on a non-exclusive basis, and solely and exclusively for the loading and unloading of water taxi passengers and, if the placement of a booth within the Concession Area is approved by the City, the sale of tickets at a booth in connection with the Program and for no other use. For the avoidance of doubt, Concessionaire may not use the Concession Area to load or unload passengers for recreational boating excursions, including without limitation, so-called "party cruises", dinner cruises,fishing excursions, snorkeling excursions, sightseeing cruises or chartered excursions for private events. If Concessionaire uses the Concession Area for any purpose (s) and/or uses not expressly permitted in this subsection, such use shall be considered a material default under this Agreement, and the City shall be entitled to all remedies including termination of this Agreement, as set forth in subsection 13.5. In addition, notwithstanding any other terms of this Agreement, the City shall be entitled to seek immediate relief, whether at law or in equity, to enjoin such improper use. In consideration of the concession granted pursuant to this Agreement, Concessionaire agrees that (a) no alcoholic beverages of any kind will be sold at, or served in, (i) the Concession Area, including any adjacent or surrounding area within the Park or(ii)on any Program Vessel and (b) music will not be performed or played on Vessels. 3.1.2 Program Exclusivity. During the Term of this Agreement, Concessionaire shall be the exclusive operator for the Program, and, provided Concessionaire is in good standing and free from default under the terms of this Agreement, the City will not contract with any other operator for the provision of a public water taxi service from the Purdy Avenue Dock. Notwithstanding the foregoing,the City shall not be prevented from authorizing the commercial use of the Park, 7 including the Purdy Avenue Dock, by other parties in connection with other types of water borne activities or services, including, without limitation, boat tour operators, jet ski operators, paddle boat operators, food and beverage concessions or any other commercial activity which the City, at its sole option and discretion, may authorize. Moreover, the public's right to use the Park, including the Purdy Avenue Dock, for recreational and other non-commercial purposes is superior to the privileges which the City has granted Concessionaire under this Agreement;therefore,the Program exclusivity language contained in this subsection shall not be construed as limiting, in any way, the public's right to use of the Park, including the Purdy Avenue Dock, for recreational or non- commercial purposes. For the avoidance of any doubt, the exclusivity granted under the terms of this subsection shall be related solely to the Purdy Avenue Dock, and shall not prevent and/or prohibit the City from contracting for and/or operating a water taxi service in other locations in the City. 3.1.3 No Parking Privileges No parking privileges shall be provided to Concessionaire, Concessionaire's employees, or passengers of the Program Vessel in connection with this Agreement or the Program. 3.1.4 Plan of Operation 3.1.4.1 Regular Operation. Concessionaire agrees to commence regular water taxi services within thirty (30) days from the date of the Notice to Proceed. Concessionaire acknowledges that the Program is secondary to the public's use of the Park or any of the Park facilities, including,without limitation any docks, boat ramps, parking facilities or office spaces, and shall ensure that the Park and its facilities are accessible and their use not negatively impacted by the Program. Concessionaire shall operate strictly in accordance with the Plan of Operation approved by the City Manager or City Manager's designee prior to issuance of the Notice to Proceed. For the avoidance of doubt, the City Manager may upon notice to the Concessionaire require modifications to the Plan of Operation as deemed necessary, by the City Manager, in the City Manager's sole discretion to ensure the safe and orderly operation of the Program. The initial Plan of Operation is attached to this Agreement as Exhibit 2 and incorporated herein. 3.1.4.2 High Impact Events. During high impact events in the City (e.g., hotel events, conventions, Art Basel, Miami Beach Wine and Food Festival, and other similar events), Concessionaire shall secure the written approval of the City Manager or City Manager's designee of the High Impact Event Plan of Operation, containing, at minimum, the requirements set forth in the Plan of Operation for regular water taxi operations. 3.1.4.2.1 Subcontracting during High-Impact Events. Additionally, and exclusively during high-impact events, Concessionaire may be permitted to sub-contract a portion of the services under this Agreement, as may be approved by the City Manager, in writing, at the City Manager's sole discretion,which approval, if granted at all, may be conditioned upon Concessionaire providing the City with evidence that the subcontractor meets the contractual requirements contained 8 herein, such as, without limitation, the insurance requirements set forth in Section 10. Concessionaire shall be liable for its services, responsibilities and liabilities under this Agreement and the costs, services, responsibilities and liabilities of permitted sub-contractors (if any), and any other person or entity acting under the direction or control of Concessionaire. In this regard, Concessionaire must furnish the City with all information relating to the sub-contractors which is requested by the City.When the term "Concessionaire" is used in this Agreement, it shall be deemed to include sub-contractors (if any)and/or any other person or entity acting under the direction or control of Concessionaire. All sub-contractors must be approved in writing by the City prior to their engagement by Concessionaire and must comply with all requirements determined by the City in its sole discretion, including without limitation, executing a hold harmless and indemnity agreement in favor of the City and providing proof of such insurance coverages as the City shall determine in its sole discretion. 3.1.5 Program Vessels. The City hereby approves of Concessionaire's concept plan design as to the type of vessel (each, a "Program Vessel" and collectively, the "Program Vessels"), which plan is attached as Exhibit 3, attached hereto and incorporated herein. All Program Vessels shall have a minimum capacity of one hundred forty-nine (149) passengers and the ability to accommodate not less than fifteen (15) bicycles/e- bicycles and ten (10) scooters. In addition, all vessels will be accessible to persons requiring the use of wheelchairs in accordance with all local, state and federal laws, including without limitation, the Americans with Disabilities Act. Any proposed changes or modifications to the type or capacity of Program Vessel, is subject to the prior written approval of the City Manager prior to implementation, and upon such approval, if any, Exhibit 3 shall be amended accordingly. Additional types of Program Vessels may be approved by the City Manager pursuant to a High-Impact Event Plan of Operation. The Concessionaire hereby acknowledges and agrees that the City's approval as to the type of Program Vessel in this subsection is given by the City solely in its proprietary, and not in its regulatory, capacity. Notwithstanding such approval in the City's proprietary capacity, Concessionaire agrees to secure, at its sole cost and expense, all required approvals from all governmental authorities having jurisdiction over the Program, in connection with the Program Vessels and operation of the Program. 3.1.5.1 Ownership of Program Vessels. Program Vessels shall be the sole and exclusive property of Concessionaire during the Term. Notwithstanding the foregoing, subject to the prior written approval of the City Manager, Concessionaire may lease or subcontract for the use of additional vessels as Program Vessels in connection with providing water taxi services pursuant to this Agreement. Said approval, if provided at all, shall be contingent upon Concessionaire providing the City with evidence that all such vessels are in compliance with the requirements of this Agreement, including, without limitation, the insurance requirements set forth in Section 10. 3.1.6 Hours of Operation and Water Taxi Destinations. 9 A. The Concession Area and operations thereon shall be open to the public, weather or events of force majeure permitting, at a minimum, during the hours and days of the week set forth in Exhibit 2 hereto for regular operations. Any change with respect to the hours of operation shall require the written approval of the City Manager, prior to implementing the new hours. and Exhibit 2 shall be amended accordingly. B. The destinations ("Destinations") which will be included in the Program as part of the City's route ("Route") are described in Exhibit 2 hereto, and any changes to the approved Destinations and Route will require the prior written approval of the City Manager (or of the City Commission if the change constitutes an Expansion of the Program as defined in subsection 3.1.8), prior to implementing the said changes, and Exhibit 2 shall be amended accordingly. C. For public safety considerations, during emergency situations, including, without limitation, a threatened tropical storm or hurricane, the City Manager may immediately suspend service or adjust the hours of operation. D. For public safety considerations, during emergency situations, including, without limitation, a threatened tropical storm or hurricane, Concessionaire may immediately suspend service or adjust hours of operation and notify the City Manager or designee in writing of the suspension or temporary schedule adjustment as soon as reasonably possible. 3.1.7 Price Schedules. Concessionaire shall provide water taxi services in the Concession Area on a pay per use and package (i.e., weekly or monthly) basis. Concessionaire agrees that prices charged for water taxi services and membership subscriptions at all of the Destinations in the City's Route will be consistent with the price schedule(s) (herein submitted by the Concessionaire and approved by the City) in Exhibit 4 hereto. All subsequent price schedule changes must be approved, in writing, by the City Manager. The City shall have the final right of approval for all such price schedules, including requested price changes contained therein. Notwithstanding the foregoing, Concessionaire may offer promotions for reduced fares, at Concessionaire's sole discretion, so long as Concessionaire extends the promotions to all City of Miami Beach residents in the applicable category at all of the Destinations in the Route. By way of example, if Concessionaire is offering City of Miami residents a fare of $2.00 for a one way trip, Concessionaire shall offer City of Miami Beach residents the lower fare, instead of the established one-way fare of$5.00. 3.1.8 City Commission Approval in Connection with Expansion of the Program. Notwithstanding anything to the contrary contained in this Agreement, any expansion of the Program exceeding the approved Plan of Operation (excluding high impact events, which typically increase the demand for water taxi services), must be preapproved by the City Commission prior to implementing said expansion. Expansion of the Program shall mean an increase in the number of destinations, days of operation or schedule of operations from those set forth in the approved Plan of Operation set forth in Exhibit 2 hereto. 10 3.1.9 Oversight. Concessionaire shall hire dedicated employees, who will be stationed at or near the Concession Area and at the appropriate location at Sea Isle Marina. Such employees shall be responsible to provide on-site monitoring of the Program at the Concession Area and at Sea Isle Marina during all hours of operation (including during any activities conducted before the first scheduled departure from, and the final arrival to, the Purdy Avenue Dock and the Sea Isle Marina dock). SECTION 4. MARKETING AND PROMOTION. 4.1 City's Non-Monetary Contribution to Program. The City agrees to provide Concessionaire with the following non-monetary promotional assistance for the Program: A. link for Program on City's website; B. inclusion in one edition of Miami Beach Magazine upon launch of the program (PSA's, Editorials and/or other placements). Concessionaire shall provide camera-ready artwork, which artwork shall be subject to the approval of the City Manager; C. inclusion in bi-weekly e-blast during the Term; D. public service announcements on Miami Beach Television (MBTV) for the first six (6) months following the Commencement Date, to announce Program implementation, and thereafter, on at least a quarterly basis throughout the Term with video collateral to be supplied by Concessionaire; and E. At the City Manager's sole discretion, the City may include the Program in additional public announcements or advertisements. 4.2 Marketing and Advertising. As of the Effective Date, the City Code does not allow advertising to be placed on the Program Vessels or anywhere on the Concession Area, provided, Program Vessels may display an advertisement for the Program or a business notice relating to Concessionaire. Advertising on the Program Vessels or Concession Area shall be prohibited. Signage at the Concession Area may be allowed subject to the prior written approval of the City, in the City's proprietary capacity, as to size, shape, content and placement; approval shall be provided, if at all, by the City Manager, in the City Manager's sole discretion and shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. Notwithstanding the City's approval, in its proprietary capacity, Concessionaire shall be responsible for securing all requisite governmental approvals for any such signage. All signage installed by Concessionaire in connection with the Program or this Agreement shall be at Concessionaire's sole cost and expense. The City shall be responsible for providing, at its sole cost and expense, and as (or if) it deems necessary in its sole and reasonable judgment and discretion, any traffic, regulatory or public safety signs, whether related directly or indirectly to the Program. Any and all marketing campaigns and marketing materials shall be subject to the prior written approval of the City Manager or the City Manager's designee. ADDITIONALLY, THE CONTENT OF ANY APPROVED PROMOTIONAL MATERIALS SHALL NOT (1) INCLUDE FIREARMS, ALCOHOL, TOBACCO OR TOBACCO RELATED PRODUCTS, INCLUDING ELECTRONIC CIGARETTES; MEDICAL MARIJUANA; SEXUAL 11 SERVICES, PROGRAMS OR PRODUCTS; (2) PROMOTE POLITICAL CANDIDATES OR POLITICAL ISSUES; (3) PROMOTE UNLAWFUL OR ILLEGAL GOODS, SERVICES OR ACTIVITIES; OR (4) CONTAIN IMAGES OR INFORMATION THAT WOULD REASONABLY BE VIEWED AS DISCRIMINATORY AGAINST AN INDIVIDUAL OR GROUP OF INDIVIDUALS ON THE BASIS OF RACE, COLOR, NATIONAL ORIGIN, RELIGION, SEX, INTERSEXUALITY, SEXUAL ORIENTATION, GENDER IDENTITY, FAMILIAL AND MARITAL STATUS, AGE, ANCESTRY, HEIGHT, WEIGHT, DOMESTIC PARTNER STATUS, LABOR ORGANIZATION MEMBERSHIP, FAMILIAL SITUATION, POLITICAL AFFILIATION, OR DISABILITY. 4.3.1 Pepsi Cola and Redbull Exclusivity. CONCESSIONAIRE SHALL NOT DISPLAY ANY PROMOTIONAL MATERIALS CONTAINING NON-ALCOHOLIC BEVERAGE (INCLUDING BUT NOT LIMITED SODA, WATER, JUICE, ICED TEA, ISOTONIC BEVERAGES, PROTEIN) OR ENERGY DRINK BRANDS THAT ARE COMPETITIVE TO PEPSI COLA OR RED BULL SO LONG AS THE CITY'S EXCLUSIVE PARTNERSHIP AGREEMENTS WITH PEPSI COLA AND RED BULL, RESPECTIVELY, ARE VALID AND IN FORCE. SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS AND REPORTS. 5.1 Maintenance of Records. Concessionaire shall maintain current, accurate, and complete financial records (on an accrual basis) related to its operations herein. 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 or City Manager's designee, upon reasonable prior notice, whether verbal or written, and during normal business hours. Such records and accounts shall include, at a minimum, a breakdown of gross receipts, expenses, and profit and loss statements. In the event Concessionaire accepts cash as a form of payment, it shall maintain accurate receipt-printing cash registers or the like which will record and show the payment for every sale made or service provided in the Concession Area; and such other records shall be maintained as would be required by an independent certified public accountant in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. 5.2 Quarterly Report of Gross Receipt. A quarterly report of gross receipts, certified to be accurate by Concessionaire, must be submitted to the City, through the City Manager's designee, to be received no later than thirty(30)days after the close of each calendar quarter throughout the Term. The quarterly report of gross receipts shall include the number of tickets sold at the Purdy Avenue Dock and at the Sea Isla Marina, including the cost per ticket, in a form which is acceptable to the City Manager or City Manager's designee, and any other reports which may be required under this Agreement. Additionally, upon the request of the City Manager or City Manager's designee, Concessionaire shall submit a quarterly (or at such greater intervals, i.e. semi-annually or annually, as requested by the City) a maintenance report reflecting routine maintenance performed on the Program Vessels. 12 5.3 Quarterly Performance Meeting. Within thirty (30) days after the end of each calendar quarter of the Term, Concessionaire shall meet with the City Manager or City Manager's designee to review Concessionaire's performance under the Agreement and the Program. At the meeting, Concessionaire and City may discuss quality. operational, maintenance and any other issues regarding Concessionaire's performance under the Agreement and the Program. 5.4 Reporting Requirements. A. Quarterly Reports. Concessionaire shall maintain a daily log of the following information for Purdy Avenue Dock and Sea Isle Marina: the schedule: the number of tickets sold; the cost per ticket sold; and the category of the rider (e.g., Miami Beach residents, seniors, military, etc. (collectively referred to herein as "Ridership and Revenue Information"). On a quarterly basis, within thirty (30) days from the end of each quarter, Concessionaire shall provide the City with a report containing the ridership for the Purdy Avenue Dock and confirmation of all marketing efforts in which Concessionaire has engaged to promote the Program, all in a form acceptable to the City Manager's designee. B. Educational Materials. Concessionaire agrees to provide the following educational materials to users of the Program, which materials will be provided by the City to Concessionaire: 1. Destination stops for the Program; 2. Routes for the City trolley system; 3. Locations of the City parking lots and garages; 4. Public bus stop routes within the City (to be provided by the City); and 5. Any other materials as may be requested by the City. SECTION 6. INSPECTION AND AUDIT. Concessionaire shall maintain its financial records pertaining to its operations at the Purdy Avenue Dock and Sea Isle Marina throughout the Term of the Agreement and for a period of three (3) years after the expiration or other termination of this Agreement, and such records shall be open and available to the City Manager or City Manager's designee, as deemed necessary by them. Concessionaire shall maintain all such records at its principal office, currently located at 400 SE 2nd Avenue, Miami, Florida 33131, or, if moved to another location, all such records shall be relocated, at Concessionaire's expense, to a location in Miami Beach, within ten (10) days' notice (written or verbal) from the City. The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five (5%) percent or more in the aggregate of Concessionaire's statement of gross receipts and/or an overstatement of Concessionaire's expenses for any year or years audited, in which case Concessionaire shall pay to the City, within thirty (30) days of the audit being deemed final by the City, the cost of the audit and, if applicable, a sum equal to the amount of the deficiency revealed by the audit, plus interest. These audits are in addition to periodic audits by the City of Resort Tax collections and payments, which are performed separately and audits that may be performed by the Office of the Inspector General. Nothing contained within this section shall preclude the City's audit rights for Resort Tax collection purposes. 13 SECTION 7. TAXES, ASSESSMENTS, LICENSES. 7.1 Payment of Taxes. Concessionaire agrees and shall pay before delinquency all taxes (including but not limited to Resort Taxes)and assessments of any kind levied or assessed upon the Concession Area, and/or on Concessionaire by reason of this Agreement, or by reason of Concessionaire's business and/or operations within the Concession Area. Concessionaire will have the right, at its own expense, to contest the amount or validity, in whole or in part, of any tax by appropriate proceedings diligently conducted in good faith. Concessionaire may refrain from paying a tax to the extent it is contesting the imposition of same in a manner that is in accordance with law. However, if, as a result of such contest, additional delinquency charges become due, Concessionaire shall be responsible for such delinquency charges, in addition to payment of the contested tax, if so ordered. 7.2 Procedure If Ad Valorem Taxes Assessed. If ad valorem taxes are assessed against the Concession Area (or any portion thereof) by reason of Concessionaire's business and/or operations thereon, Concessionaire shall be solely responsible for prompt and timely payment of same. 7.3 Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense) for obtaining and maintaining current any applicable licenses or permits, as required for the operations contemplated in this Agreement including, without limitation, any occupational licenses required by law for the proposed uses contemplated in Section 3; the U.S. Coast Guard licenses for captains and the Certificates of Inspection for the vessels; the State of Florida license; the Department of Environmental Resources Management (DERM) Marine Operational Permit, and any applicable City licenses and/or other required City document, including without limitation a Business Tax Receipt. SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. 8.1 Concessionaire's Employees. 8.1.1 Selection and Training of Employees; Employee Conduct. Concessionaire shall select, train and employ such number of employees or contractors as is necessary or appropriate for Concessionaire to satisfy its responsibilities hereunder. Concessionaire shall have the sole authority to hire, terminate and discipline any and all personnel employed by Concessionaire. Concessionaire's employees and/or contractors shall wear identification badges and uniforms approved by the City Manager or City Manager's designee, during all hours of operation when such employee or contractor is acting within the scope of such employment or such contractor relationship. All employees and/or contractors shall observe all the graces of personal grooming. The Concessionaire shall hire people to work in its operation who are neat, clean, well groomed, and who shall comport themselves in a professional and courteous manner. The Concessionaire and any persons hired or otherwise retained by Concessionaire, shall never have been convicted of a felony. 8.1.2 Point Person. Concessionaire shall designate a competent full-time employee to oversee day-to-day operations and who shall act as the contract administrator for the Program and serve as Concessionaire's primary point-person with the City. 14 This individual shall have the requisite amount of experience in operating, managing, and maintaining a water taxi service as contemplated herein. The employee shall be accessible to the City Manager or City Manager's designee at all times during normal business hours to discuss the management, operation and maintenance of the Program, and during non-business hours in the event of emergency. Consistent failure by the employee to be accessible shall be reported to Concessionaire's principal(s), and if not rectified, shall be grounds for replacement of the employee. 8.2 City Manager's Designee. Except for those responsibilities expressly set forth in this Agreement for, respectively, the City Commission and/or the City Manager, the City Manager's designee for this Agreement shall serve as the City's day to day representative and point person for Concessionaire with respect to the Agreement. The City Manager's designee shall be the City's Transportation Manager or, in his or her absence, the Transportation and Mobility Department Director or Assistant Director. SECTION 9. IMPROVEMENTS, MAINTENANCE, REPAIR AND OPERATION The Concessionaire accepts the use of the Concession Area provided in this Agreement"AS IS," "WHERE IS," and "WITH ALL FAULTS," existing as of the Effective Date. 9.1 Improvements. Concessionaire shall not install any improvements in the Concession Area without the City Manager's written approval, which approval, if provided at all, shall be at the City Manager's sole discretion. Concessionaire shall be solely responsible (including cost)and shall pay for the design, fabrication, construction, and installation of any and all approved Concession Area Improvements (as approved pursuant to Subsection 2.1), which may be required to operate the Program. 9.2 Maintenance/Repair. The Concessionaire shall maintain, at its sole cost and expense, the Concession Area Improvements within the Concession Area and any equipment thereon (as required to operate the Program), as well as the Program Vessels, clean and clear of debris, spills, stains, waste, biohazards, gum, and litter on a daily basis and free from vandalism (including, without limitation, graffiti). If the Concessionaire shall fail to so maintain the Concession Area, the City shall have the right, but not the obligation, to perform the necessary maintenance work, at Concessionaire's cost and expense, and Concessionaire shall reimburse the City for such costs and expenses within ten (10) days of the City's invoice or statement. The City shall maintain the Purdy Avenue Dock to address normal wear and tear of the dock; however, Concessionaire shall be responsible for reimbursing the City for any maintenance and repair cost related to the operation of the Program at the Purdy Avenue Dock, including any damage which may be caused by the Concessionaire, its employees, contractors, agents or invitees. Any such maintenance and repairs shall be performed by the City, as deemed appropriate by the City Manager, in the City Manager's sole discretion, and Concessionaire shall reimburse the City within thirty (30) days after rendition of an invoice or statement. 15 Concessionaire shall be solely responsible for the day-to-day operation of the Program and shall maintain any equipment on the Concession Area and all Program Vessels in good working order and condition. No repairs to the Program Vessels may be made on- site. Any Program Vessel needing maintenance shall be removed from circulation and serviced at Concessionaire's repair center. Program Vessels cannot be stored at the Purdy Avenue Dock. All damage of any kind to the Concession Area Improvements or the Program Vessels shall be the sole obligation of Concessionaire, and shall be repaired, restored or replaced promptly by Concessionaire, at its sole cost and expense, to the reasonable satisfaction of the City Manager or City Manager's designee. All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to or better than the original work (or equipment) and shall be done in good and workmanlike manner. If Concessionaire fails to make such repairs, restorations and/or replacements to the Concession Area Improvements or the Program Vessels, the same may be made by the City, at the City's sole option and discretion; however, the City shall not have an obligation to do so. Concessionaire shall be responsible for any costs associated therewith and shall reimburse the City within thirty (30) days after rendition of an invoice or statement. In the event any Program Vessel is damaged or non-operational for any reason, Concessionaire shall replace the non-operational Program Vessel within two (4) hours so that the Program is fully operational no later than two (4) hours from the time Concessionaire first becomes aware (or should be aware) that the Program Vessel is not operational. Concessionaire shall be solely responsible to ensure that any renovations, repairs and/or improvements made by Concessionaire to the Concession Area Improvements or Program Vessels comply with all applicable building codes and life safety codes of governmental authorities having jurisdiction. Concessionaire agrees, also at its sole cost and expense, to pay for all garbage disposal generated by its operations. 9.3 Orderly Operation. The Concessionaire shall have a neat and orderly operation at all times and shall be solely responsible for the necessary housekeeping services to properly maintain the Concession Area, including any equipment thereon, and the Program Vessels. The Concessionaire shall make available for examination by the City, at any time requested by the City Manager or City Manager's designee, the Concession Area Improvements or any Program Vessel. 9.4 No Dangerous Materials. The Concessionaire agrees not to use or permit the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida, on or within the Concession Area, or on any City property and/or right of way. 16 Without limiting the generality of Concessionaire's indemnity obligations pursuant to Section 11 of this Agreement, Concessionaire shall indemnify and hold City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by Concessionaire of any"hazardous substance" or "petroleum products" as those terms are defined by applicable Federal and State Statute, or any environmental rules and environmental regulations promulgated thereunder, on, under, in or upon the Concession Area; provided, however, Concessionaire shall have no liability in the event of the willful misconduct or gross negligence of the City, its agents, servants or employees. The provisions of this Subsection 9.4 shall survive the termination or earlier expiration of this Agreement. 9.5 Security. The Concessionaire shall be responsible, at its sole option, to employ or provide reasonable security measures, as it may deem necessary to protect the Concession Area and any equipment thereon. Under no circumstances shall the City be responsible for any stolen or damaged equipment, nor shall City be responsible for any stolen or damaged personal property of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or other third parties. Concessionaire shall not employ any recorded video surveillance equipment without the prior written approval of the City Manager. 9.6 Inspection. The Concessionaire agrees that the Concession Area (including, without limitation, any equipment thereon) and any Program Vessel may be inspected at any time by the City Manager or City Manager's designee, or by any other municipal, County, State officer, or officers of any other agency(ies) having responsibility and/or jurisdiction for inspections of such operations. The Concessionaire hereby waives all claims against the City for compensation for loss or damage sustained by reason of any interference with the concession operation as a result of inspection by any public agency(ies) or officials, (including, without limitation, by reason of any such public agency or official in enforcing any laws, ordinances, or regulations as a result thereof). Any such interference shall not relieve the Concessionaire from any obligation hereunder. SECTION 10. INSURANCE. 10.1 Without limiting its liability under this Agreement, Concessionaire shall, at all times during the Term of this Agreement. procure and maintain, at its sole expense (and Concessionaire shall require its Concessionaire, subcontractors, laborers, materialmen and suppliers to provide, as applicable), insurance of the types and in the minimum amounts stated below, and provide a certificate with applicable endorsements on a form that is acceptable to the City's Division of Insurance and Risk Management evidencing the following required coverages to the City (including coverage of all Program Vessels which shall be used by Concessionaire to operate the Program): Schedule Limits Worker's Compensation/Employers Liability Florida Statutory Coverage 17 This insurance shall cover the Concessionaire (and to the extent its subcontractors and sub-contractors are not otherwise insured, its subcontractors and sub-contractors) for those sources of liability which would be covered by the latest edition of the standard Workers' Compensation policy, as filed for use in the State of Florida by the National Council on Compensation Insurance (NCCI), without any restrictive endorsements other than the Florida Employers Liability Coverage Endorsement (NCCI Form WC 09 03), those which are required by the State of Florida, or any restrictive NCCI endorsements which, under an NCCI filing, must be attached to the policy (i.e., mandatory endorsements). In addition to coverage for the Florida Workers' Compensation Act,where appropriate, coverage is to be included for the Federal Employers' Liability Act, USL&H and Jones Act, to extent coverage is not provided by the Protection and Indemnity policy and any other applicable federal or state law. Hull Coverage: Coverage for direct damage to vessels written on American Institute Hull clauses form, specifically including "Running Down clauses," "Agreed Valuation clauses," and Amount of insurance based on value of vessels. The policy shall cover collision liability on a primary basis. Protection and Indemnity Coverage: Form "SP 23" Coverage for water taxi operations of the watercraft, as included in "SP23" for damage to any harbor, graving, piers, bumpers, etc.; including, but not limited to, Crew to the extent coverage is not provided by the Worker's Compensation policy, Passenger and Coverage for property and liability from land while loading and unloading the Ferry or Water Taxi and on-board during navigation along with Cargo Legal Liability, Dock Liability, Excess Collision over insured hull limit. (Coverage shall include Premises, Pollution Exclusion Buyback Endorsement A, Personal Effects, Medical Payments, Voluntary Wreck Removal, and Pollution Buyback). $1,000,000 coverage required. Vessel Pollution Liability (Occ. Form) Including clean-up cost $20,000 Anyone Scheduled Vessel, any One incident for IOA 90, CERCLA, Spill Management, Firefighting and Salvage and Defense Cost including damage to Property Ashore. Including Water Quality Insurance Syndicate or similar form Per Statutory coverage and limits). Coverage for third party liability for land-based operations to the public and in connection with the water taxi operation, specifically including Occurrence form, Bodily Injury, Property Damage, Products& Completed Operations, Medical Payments, Personal Injury, Contractual Liability, Ship Repair Liability. Such insurance shall be no more restrictive than that provided by the most recent version of the standard Commercial General Liability Form (ISO Form CG 00 01) as filed for use in the State of Florida without any restrictive endorsements other than those approved by the City's Office of Insurance and Risk Management. 18 General Aggregate $1,000,000/$2,0000.000 Each Occurrence $1,000,000 Fire Damage $ 100,000 Medical Expenses $ 5,000 Liquor Liability Insurance on an occurrence basis, including property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. (Required, if necessary.) Bumpershoot Liability $1,000,000 Per Occurrence and Aggregate (The Bumpershoot Liability policy shall be in excess of the Employer's Liability, Commercial General Liability, Automobile Liability, Personal & Indemnity and Pollution Liability limits without any gap. The Bumpershoot coverage will follow from the underlying coverages and provide on an Occurrence basis all coverages listed above.) A. Waiver of Subrogation. All insurance shall be endorsed to provide for a waiver of underwriter's rights of subrogation in favor of the City of Miami Beach and the City's members, officials, officers and employees. B. Additional Insured: All Insurance except Worker's Compensation and Professional Liability Shall be endorsed to name the City of Miami Beach and City's members, officials, officers, and employees. Additional Liability shall be in a form no more restrictive than CG2010 and Automobile Liability CA2048; endorsements will be provided to, reviewed and approved by the City's Division of Insurance and Risk Management prior to commencement of work. C. The Operator's Insurance Primary. The insurance provided by the Operator for shall apply on a primary basis to, and shall not require contribution from, any other insurance or self-insurance maintained by the City or City member, official, officer and employee. D. Deductible or self-insured retention. Except as authorized in this Agreement, the insurance maintained by the Operator shall apply on a first dollar basis without application of a self-insurance. deductible, or self-insured retention. Except as authorized specifically in this Agreement. no self-insurance, deductible, or self-insured retention for any required insurance, the Operator shall be responsible for paying on behalf of the City (and any other person or organization Operator has, in this Agreement, agreed to include as an insured for the required insurance) any self- insurance, deductible, or self-insured retention allowed under this paragraph. The City will not be responsible for any self-insurance, deductibles or self-insured retentions under this Agreement. E. Operator's Insurance Additional Remedy. Compliance with the insurance requirements of this Agreement shall not limit the liability of the Operator or its Subcontractors or Sub- subcontractors, employees or agent to the City or others. Any remedy provided to City or City's members, officials or employees shall be in addition 19 to and not in lieu of any other remedy available under this Agreement or otherwise. F. No Waiver by the City Approval/Disapproval. Neither approval by the City nor failure to disapprove the insurance furnished by Operator shall relieve Operator of Operator's full responsibility to provide insurance as required under this Agreement. G. Each policy shall be written by an insurer holding a current certificate of authority pursuant to chapter 624, Florida Statues or accompany that is declared as an approved Surplus Lines carrier under Chapter 626 Florida Statutes. Such insurance shall be endorsed to provide for a waiver of underwriter's rights of subrogation in favor of the City. Such Insurance shall be written by an insurer with an A.M. Best Rating of A-VII or better. Prior to commencing any Services, Certificates of Insurance approved by the City's Division of Insurance & Risk Management demonstrating the maintenance of said insurance shall be furnished to City. The Operator shall provide an endorsement issued by the insurer to provide the City thirty (30) days prior written notice of any change in the above insurance coverage limits or cancellation, including expiration or non-renewal. In the event the Operator is unable to obtain such endorsement, the Operator agrees to provide the City the notice directly. Until such time as the insurance is no longer required to be maintained by the Operator, Operator shall provide the City with renewal or replacement evidence of insurance with the above minimum requirements no less than 30 days before the expiration or termination of the insurance for which previous evidence of insurance has been provided. H. Notwithstanding the prior submission of a Certificate of Insurance, copies of endorsements, or other evidence initially acceptable to City's Division of Insurance and Risk Management, if requested to do so by the City, the Operator shall, within thirty (30) days after receipt of a written request from the City, provide the City with a certified, complete copy of the policies of insurance providing the coverage required herein. I. Anything to the contrary notwithstanding, the liabilities of the Operator under this Agreement shall survive and not be terminated, reduced or otherwise limited by any expiration or termination of insurance coverage. Neither approval of, nor failure to disapprove, insurance furnished by the Operator shall relieve the Operator or its sub- contractors or sub- subcontractors from responsibility to provide insurance as required by the Contract. J. Depending upon the nature of any aspect of any project and its accompanying exposures and liabilities, the City may, at its sole option require additional insurance coverages in amounts responsive to those liabilities, which may or may not require that the City also be named as an additional insured. K. Concessionaire's failure to provide evidence of insurance coverage set forth in this Section 10, within two (2) days from receipt of a written request from the City shall constitute a material default under this Agreement. SECTION 11. INDEMNITY. 11.1 In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its 20 officials, directors, employees, contractors, agents, and servants from and against any and all actions (whether at law or inequity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys' fees and costs, for personal, economic or bodily injury, wrongful death, loss of or damage to property, which may arise or be alleged to have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other misconduct of Concessionaire, its officers, director, members, employees, agents, contractors, subcontractors, or any other person or entity acting under Concessionaire's control or supervision; (2) Concessionaire's breach of the terms of this Agreement or its representations and warranties herein; (3) the operation of the Program; or (4) the use of the Concession Area Improvements or the Program Vessels. To that extent, Concessionaire shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys'fees expended by the City in the defense of such claims and losses, including appeals. 11.2 In addition, in consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officials, directors, employees, contractors, agents, and servants from and against any claim, demand or cause of action of whatever kind or nature arising out of any misconduct of Concessionaire, its officials, directors, employees, contractors, agents, and servants not included in the paragraph in the subsection above and for which the City, its officials, directors, employees, contractors, agents, and servants are alleged to be liable. 11.3 Subsections 11.1 and 11.2 shall survive the termination or expiration of this Agreement. Subsections 11.1 and 11.2 shall not apply, however, to any such liability that arises solely as a result of the willful misconduct or gross negligence of the City. SECTION 12. FORCE MAJEURE. 12.1 General. Neither party shall be obligated to perform hereunder and neither party shall be deemed to be in default if performance is prevented by: a. Any act or chain of related acts resulting in destruction, vandalism or theft of water stations which render the Concessionaire Area unusable at any one point in time and which is not caused by negligence of Concessionaire; b. Earthquake; hurricane; flood; act of God; direct act of terrorism; or civil commotion occurring which renders the Concession Area unusable; and c. Any law, ordinance, rule, regulation or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, or war which renders the Concession Area unusable. 12.2 Labor Dispute. In the event of a labor dispute which results in a strike, picket or boycott affecting Concessionaire's Program employees, Concessionaire shall not thereby be deemed to be in default or to have breached any part of this Agreement, unless such dispute shall have been caused by illegal labor practices or violations by Concessionaire of applicable collective bargaining Agreements. 21 12.3 Waiver of Loss from Hazards. The Concessionaire hereby expressly waives all claims against the City for loss or damage sustained by the Concessionaire resulting from any Force Majeure contemplated in Subsection 12.1, Labor Dispute in Subsection 12.2 above, or any other interruption of the operation of the Program, including, without limitation, any City maintenance or construction activity at the Park, and the Concessionaire hereby expressly waives all rights, claims, and demands against the City and forever releases and discharges the City of Miami Beach, Florida, from all demands, claims, actions and causes of action arising from any of the aforesaid causes. SECTION 13. DEFAULT AND TERMINATION. The occurrence of one or more events or situations described in subsections 13.1 through 13.4 shall constitute events of default under this Agreement. An event of default by Concessionaire shall entitle the City to exercise any and all remedies described as City's remedies under this Agreement, including but not limited to those set forth in Subsection 13.5, as well as under applicable law. 13.1 Bankruptcy. If Concessionaire shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of Concessionaire shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if Concessionaire shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against Concessionaire and shall not be dismissed within sixty (60) days after such filing, then the City may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any other remedies which may be available to it for breach of contract. 13.2 Default in Payment. In the event Concessionaire fails to submit any payment within five (5) days of its due date, there shall be a late charge of Two Hundred and Fifty and 00/100 Dollars ($250.00) per day for such late payment, in addition to interest at the highest rate allowable by law. If any payment and accumulated penalties are not received within ten (10) days after the payment due date, and such failure continues for ten (10)days after written notice thereof, then the City may, without further demand or notice, terminate this Concession Agreement without being prejudiced as to any other remedies which may be available to it for breach of contract. 13.3 Non-Monetary Default. Unless otherwise set forth in this Agreement, in the event that Concessionaire fails to reasonably perform or observe the non-monetary covenants, terms or provisions under this Agreement, and such failure continues ten (10) days after written notice thereof from 22 the City. the City may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. If a default is not reasonably susceptible to being cured within such ten (10) day period, the Concessionaire shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default, but in no event shall such extended cure period exceed thirty (30) days from the date of written notice thereof. Concessionaire shall promptly provide the City Manager with written notice at such time as Concessionaire cures any non-monetary default pursuant to this subsection. 13.4 Failure to Operate. Except as set forth in Sections 12.1 and 12.2, the failure of Concessionaire to operate the Program at the Concession Area for a period of time exceeding two (2) continuous days shall constitute a material default under this Agreement with no cure period. 13.5 City's Remedies for Concessionaire's Default. If any of the events of default, as set forth in this Section, shall occur, the City may, after expiration of the cure periods, as provided above, at its sole option and discretion, institute such proceedings as in its opinion are necessary to cure such defaults and to compensate City for damages resulting from such defaults, including but not limited to the right to give to Concessionaire a notice of termination of this Agreement. If such notice is given, the term of this Agreement shall terminate upon the date specified in such notice from City to Concessionaire. On the date so specified, Concessionaire shall then quit and surrender the Concession Area to City pursuant to the provisions of Subsection 13.7. Upon the termination of this Agreement, all rights and interests of Concessionaire in and to the Concession Area and to this Agreement, and every part thereof, shall cease and terminate. In addition to the rights set forth above, the City shall have the rights to pursue any and all of the following: a. the right to injunction or other similar relief available to it under Florida law against Concessionaire; and/or b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Concessionaire's default. 13.6 City Default. If the City shall fail to perform any material obligation under this Agreement, and such failure continues ten (10) days after written notice thereof from the Concessionaire, the Concessionaire may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement as its sole and exclusive remedy. If a default is not reasonably susceptible to being cured within such ten (10) day period, the City shall not be considered in default if it shall, within such period, commence with due diligence and dispatch to cure such default and thereafter completes with dispatch and due diligence the curing of such default, but in no event shall such extended cure period exceed ninety (90) days from the date of written notice thereof. Concessionaire's termination of this Agreement pursuant to this Subsection shall become 23 effective on the date specified in Concessionaire's written notice of termination to the City, but in no event shall Concessionaire specify a termination date that is sooner than sixty (60) days, from the date of the written termination notice. On the date specified in the notice, Concessionaire shall quit and surrender the Concession Area(s) to City pursuant to the provisions of Subsection 13.7. 13.7 Surrender of Concession Area / Removal by Concessionaire of Equipment/Improvements. Upon expiration, or earlier termination of this Agreement, Concessionaire shall surrender the Concession Area in the same condition as the Concession Area was in prior to the Commencement Date, reasonable wear and tear excepted. Concessionaire shall, at its sole expense and at no charge to the City, remove all equipment from the Concession Area, (as well as any Concession Area Improvements) no later than thirty(30) days after the conclusion of the Term, (or from the date of other termination of this Agreement) unless a longer time period is agreed to, in writing, by the City Manager). Concessionaire's obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of the Concession Area after termination of the Agreement shall constitute trespass by the Concessionaire and may be prosecuted as such. In addition, the Concessionaire shall pay to the City One Thousand ($1,000.00) Dollars per day per Concession Area as liquidated damages for such trespass and holding over. 13.8 Substitute Performance. In the event that the Concessionaire fails to properly perform the removal of any equipment and restoration of the Concession Area to its original condition in accordance with the terms of the Agreement, then the City shall have the right to undertake and/or purchase, as the City Manager deems appropriate, any such supplies, materials, services, etc., covered herein and to charge Concessionaire for all actual costs thereby incurred by the City. Concessionaire shall be responsible for paying all of said costs. 13.9 Termination for Convenience of the City. THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO CONCESSIONAIRE OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT BY THE CONCESSIONAIRE OF SUCH NOTICE, FOLLOWING WHICH THE CITY SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT. 13.10 City Manager Emergency Powers. A. Suspension. Notwithstanding anything to the contrary contained in this Agreement, and in addition to any other remedy which the City may have under this Agreement or pursuant to applicable law, if the performance by Concessionaire under this Agreement or the Program is creating a public health. welfare or safety concern, as determined by the City Manager, in the City Manager's sole discretion, the City 24 Manager may immediately suspend the performance of services under this Agreement, including the Program, until such time as the condition has been remedied to the satisfaction of the City Manager. B. Removal of Concessionaire's Property during Emergency Situations. The City Manager or City Manager's designee may direct or require the Concessionaire to immediately remove, relocate and/or store all or part of the Concession Area Improvements or Program Vessels ("Concessionaire's Property") for public safety considerations in emergency situations, including, without limitation, a threatened tropical storm or hurricane. Upon written and/or verbal notification by the City Manager of a tropical storm/hurricane warning or alert, or other major weather event that may adversely impact the City, or upon the designation by the United States National Weather Service or National Hurricane Center of a tropical storm/hurricane warning or alert, whichever occurs first, the Concessionaire shall, within no more than two hours of same, remove and store all of Concessionaire's Property to secure Concessionaire's Property in response to the threatened storm or other emergency. and shall take all other measures which may be necessary for the protection of the public with respect thereto. The notification by the City Manager of a hurricane or other major weather event, or the issuance of a hurricane warning, shall constitute a public emergency situation. The failure of the City to direct the Concessionaire to remove or safety store Concessionaire's Property shall not relieve the Concessionaire of its obligation to remove and store Concessionaire's Property in response to a threatened storm event as outlined herein. Should Concessionaire fail to remove Concessionaire's Property within said two (2) hour period, or in the event the City Manager or City Manager's designee determines, at his/her sole discretion, that Concessionaire's removal, storage and other efforts are otherwise not satisfactory, Concessionaire shall thereafter be assessed a fee of Five Hundred and 00/100 Dollars ($500.00) per hour, until such time as all of Concessionaire's Property has been removed to the City Manager's satisfaction. In addition, the City Manager, without any obligation to do so, may immediately proceed to remove, relocate, and/or store the Concessionaire's Property that has otherwise not been removed by the Concessionaire, at the Concessionaire's sole cost and expense, with payment to the City for all such costs due within ten (10) days of City's invoice to Concessionaire. Concessionaire shall be solely responsible for any damage to City property or other property resulting from Concessionaire's failure to remove and store Concessionaire's Property, or otherwise implement appropriate measures in response to a threatened storm or hurricane. Concessionaire's failure to comply with this Section shall constitute a material default under this Agreement. The remedies identified herein for Concessionaire's failure to comply with this Section are cumulative, and in addition to, all remedies that may be available to the City at law and in equity. SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY. Intentionally Omitted. 25 SECTION 15. ASSIGNMENT. Except as permitted pursuant to subsection 3.1.4.2.1 or 3.1.5.1, Concessionaire shall not assign all or any portion of its duties or obligations under this Agreement without the prior written consent of the City Commission, which consent shall be at the sole and absolute discretion of the City Commission. Concessionaire shall notify the City Manager of any proposed assignment, in writing, at least ninety (90) days prior to the proposed effective date of such assignment. In the event that any such assignment is approved by the City Commission, the assignee shall agree to be bound by all the covenants of this Agreement required of Concessionaire. SECTION 16. SPONSORSHIPS. 16.1 The City reserves unto itself all present and future rights to negotiate all forms of endorsement and/or sponsorship agreements based on the marketing value of any City trademark, property, brand, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark property, brand, logo and/or reputation, shall belong exclusively to the City. Concessionaire shall be specifically prohibited from entering into, or otherwise creating any, sponsorships and/or endorsements with third parties that require or contemplate the use of a City trademark, property, brand, logo and/or reputation. It is further acknowledged that the name, likeness, equipment, concepts, logos, designs and other intellectual property rights of Concessionaire shall remain in the exclusive possession and control of Concessionaire at all times; provided, however, that Concessionaire hereby grants City an irrevocable, royalty-free license to use any Concessionaire trademark, brand, and/or logo, for purposes of the City's promotion of the Program and including, without limitation, the right to use such trademarks, brand, and/or logo in all media (for such public marketing purposes) whether now existing or as may exist in the future. SECTION 17. NO IMPROPER USE. The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the Concession Area or improvements on equipment thereon (including without limitation the Concession Area Improvements), for any illegal, improper, immoral or offensive purpose, or for any other purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. Without limiting the generality of Concessionaire's indemnity obligations pursuant to Section 11 of this Agreement, the Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officials, employees, contractors, and agents from and against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of the Concessionaire, or any official, director, agent, contractor, or servant relating in any way to the Program, the use of the Concession Area and/or the performance of this Agreement. In the event of any such violation or breach by the Concessionaire, or if the City or its authorized representative shall deem any conduct or practice on the part of the Concessionaire to be objectionable or improper, the City shall have the right to suspend the Concessionaire's operations should the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of the City Manager or City Manager's designee within twenty-four (24) hours following written notice of the nature and extent of such violation, 26 breach, conduct, or practice. Such suspension shall continue until the violation is cured to the satisfaction from the City Manager or City Manager's designee. SECTION 18. NOTICES. All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt to the Concessionaire at the following address: Poseidon Ferry LLC 400 SE 2nd Street Miami, FL 33131 Attention: Johnathan Silvia With Copy to: Poseidon Ferry LLC PO BOX 1585 Ormond Beach, FL 32175 All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested to the City of Miami Beach at the following addresses: City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attn: Transportation Department Director With copies to: City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attn: City Manager and City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attn: City Attorney The Concessionaire and the City may change the above mailing address at any time upon giving the other party written notification. All notices under this Concession Agreement must be in writing. Any notifications to the City or Concessionaire relating to operational issues may be sent to the following e-mail addresses; however, the parties may change the e-mail addresses at any time upon giving the other party written notification: To Concessionaire: E-mail: lsilviaAposeidonferry.com To the City: E-mail: iosegonzalezAmiamibeachfl.gov 27 SECTION 19. LAWS. 19.1 Compliance. Concessionaire shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations, including but not limited to all applicable environmental City. County, State, and Federal ordinances, statutes. rules and regulations. 19.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. 19.3 Equal Employment Opportunity. Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or pursuant hereto, will discriminate against any employee or applicant for employment because of race, creed, sex, color, national origin, sexual orientation, and disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to utilize minorities and females in the work force and in correlative business enterprises. 19.4 No Discrimination. All operations and services offered in the Concession Area shall be made available to the public, subject to the right of the Concessionaire and the City to establish and enforce reasonable rules and regulations to provide for the safety, orderly operation, and security of the Concession Area and improvements and equipment thereon. Concessionaire hereby agrees to comply with City of Miami Beach Human Rights Ordinance as codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in employment, housing, public accommodations, or public services, on the basis of actual or perceived race, color, national origin, religion, sex, intersexuality, sexual orientation, gender identity, familial and marital status, age, ancestry, height, weight, domestic partner status, labor organization membership, familial situation, political affiliation, or disability. 19.5 Florida Public Records Law. 19.5.1 Contractor shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. Records made or received in connection with this Agreement are public records under Florida law, as defined in Section 119.011(12), Florida Statutes. 19.5.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the definition of"Contractor" as defined in Section 119.0701(1)(a), the Contractor shall: (A) Keep and maintain public records required by the City to perform the service; (B) Upon request from the City's custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within 28 a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law; (C) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the contract term and following completion of the Agreement if the Contractor does not transfer the records to the City; (D) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of the Contractor or keep and maintain public records required by the City to perform the service. If the Contractor transfers all public records to the City upon completion of the Agreement, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Agreement,the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City's custodian of public records, in a format that is compatible with the information technology systems of the City. 19.5.3 Request for Records; Noncompliance. (A) A request to inspect or copy public records relating to the City's contract for services must be made directly to the City. If the City does not possess the requested records, the City shall immediately notify the Contractor of the request, and the Contractor must provide the records to the City or allow the records to be inspected or copied within a reasonable time. (B) Contractor's failure to comply with the City's request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or (3) avail itself of any available remedies at law or in equity. (C) A Contractor who fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10. 19.5.4 Civil Action. (A) If a civil action is filed against a Contractor to compel production of public records relating to the City's contract for services, the court shall assess and award against the Contractor the reasonable costs of enforcement, including reasonable attorney fees, if: 1. The court determines that the Contractor 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 Contractor has not complied with the request, to the City and to the Contractor. (B) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of public records and to the Contractor at the Contractor's address listed on its 29 contract with the City or to the Contractor'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. (C) A Contractor 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. 19.5.5 IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT: CITY OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, CITY CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO(u�MIAMIBEACHFL.GOV PHONE: 305-673-7411 SECTION 20. MISCELLANEOUS. 20.1 No Partnership. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the City and Concessionaire. 20.2 Modifications. This Agreement cannot be changed or modified except by Agreement in writing executed by all parties hereto. Concessionaire acknowledges that no modification to this Agreement may be agreed to by the City unless approved by the Mayor and City Commission except where such authority has been expressly provided herein to the City Manager or City Manager's designee. 20.3 Complete Agreement. This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and Agreements of whatsoever nature or kind existing between the parties with respect to Concessionaire's operations, as contemplated herein. 30 20.4 Headings. The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 20.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 20.6 Severability. If any provision of this Agreement or the application thereof to any person or circumstances is, to any extent, finally determined by a court of competent jurisdiction to be invalid and unenforceable, the remainder of this Agreement, and the application of such provision to Persons or circumstances other than those as to which it is held invalid and unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 20.7 Right of Entry. The City, at the direction of the City Manager, shall at all times during hours of operation, have the right to enter into and upon any and all parts of the Concession Area(s) for the purposes of examining the same for any reason relating to the obligations of parties to this Agreement. 20.8 Not a Lease. It is expressly understood and agreed that no part, parcel, building, facility, equipment or space is leased to the Concessionaire, that this Agreement is a concession and not a lease, that Concessionaire is a concessionaire and not a lessee and that the Concessionaire's right to operate the concession shall continue only so long as this Agreement remains in effect. 20.9 Procedure for Approvals and/or Consents. In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, it is acknowledged that such authority has been expressly provided herein to the City Manager or City Manager's designee by the Mayor and City Commission of the City. In each instance in which the approval or consent of the City Manager or City Manager's designee is allowed or required in this Agreement, Concessionaire shall send to the City Manager a written request for approval or consent (the "Approval Request"). The City Manager or City Manager's designee shall use reasonable efforts to provide written notice to Concessionaire approving or consenting to, or disapproving of, the request, within thirty (30) days from the date of Approval Request(or within such other time period as may be expressly set forth for a particular approval or consent under this Agreement). However, the City Manager or City Manager's designee's failure to consider such request or respond within the time provided shall not be deemed to constitute 31 approval or consent. Unless a different standard is specified in this Agreement with regard to the approval or consent at issue, the City Manager or City Manager's designee shall not unreasonably withhold such approval or consent. This subsection shall not apply to approvals required herein by the Mayor and City Commission which may grant approval or consent within its sole discretion in all cases. 20.10 No Waiver. It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred, will not be considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated. The receipt of any sum paid by Concessionaire to the City after breach of any condition, covenant,term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupancy, and not as rent, unless such breach be expressly waived in writing by the City. 20.11 No Third-Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, including, but not limited to permitted sub-contractors and/or sub-concessionaires, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. 20.12 No Lien. In the event any notice or claim of lien shall be asserted against the interest of the City on account of or arising from any work done by or for Concessionaire, or any person claiming by, through or under Concessionaire, or for improvements or work, the cost of which is the responsibility of Concessionaire, Concessionaire agrees to have such notice or claim of lien cancelled and discharged within fifteen (15) days after notice to Concessionaire by City. In the event Concessionaire fails to do so, City may immediately terminate this Agreement for cause without liability to City. SECTION 21. LIMITATION OF LIABILITY. The City desires to enter into this Agreement placing the operation and management of the Concession Area in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action for breach of this Agreement, so that its liability for any such breach never exceeds the sum of Five Thousand and 00/100 Dollars ($5,000.00). Concessionaire hereby expresses its willingness to enter into this Agreement Five Thousand and 00/100 Dollars ($5,000.00) limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of Ten and 00/100 Dollars ($10.00)and other good and valuable consideration, the receipt of which is hereby acknowledged, 32 the City shall not be liable to Concessionaire for damages in an amount in excess of Five Thousand ($5,000.00)Dollars, for any action for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. SECTION 22. VENUE/WAIVER OF JURY TRIAL. This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami- Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA(S). IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed, all as of the day and year first above written, indicating their Agreement. Attest: CITY OF MIAMI BEACH, FLORIDA APPROVED AS TO FORM&LANGUAGE &FOR EXECUTION Oil A w OOPS Rafael E. rana o, City Clerk a T. Hudak, City Manager Date: MAR j 't 2024 Attest: POSEIDON FERRY LLC RA-e‘j-4-)r" I 4 Robert Black- Member Johnathan Silvia - Chief Executive Officer Print Name and Title Print Name and Title Date:2/15/2024 14�t g�cy INCORP ORATED. f 33 ,w,� Exhibit 1. Concession Area ttt. .1"., 1If ! i 4 i I� „Dike . .rap 1 c ri - , r. , _ i ;', 014 , i 1 N s + 4 ( i9 .1- Beach • 7. `m,3rest oak• ®' . • I A 1 - dal t the v. , 4 NNW I ,- 4 r , _ sic i • ~ el a ,y r l ' .• • �. �� $ +i. - isIs ' _; • `� �' r MauteGibb } 4,1r!. r... } • Blink Charg r_ _ . " 1 lit i mE -•.cal iE• �" ., `a.*eba:a. ..,.. s L ._ _ • , 7 yf.it �� t a 41F fc- s xury T t • '. __ 34 A "�"-Z.'-•••�^ = F1d;114`11. lit "i 1 .,, -were.�R t. C[ ;+• .. .. _ -,,--._ _-4^_..r —i_4. ...ti_►s., t A.1111111fte-.. r o f * - ' .j- JOWL . ✓r w _ � �. A' o. - it .-..::' ram.• 5 Exhibit 1A. — Sea Isle Marina Docking Location j •• - -• ` n Shl tgeMarina Doling tnaum • A It t a Alt l-MO 1 Cfr 't Rentgql ` e -.II' D �J t:nu tww • I. itdwn , KlawM t It r t /. 1, :�`"4. tit 1 - ` ) ( tilde ` �) A • f kri - .a ietr� {M I It Ca3abla R n7, pit '. 1 s I r if . i° 7 t��; aedt li 0v. . 99�� T M� am Mamatt ar„ kj • _.._ r}�{Bayne eay y ' r- i s'.IVeian Mai r.. jStl1 4 Ant, r • r Ito' ,--a: `a to - I'lE gland venture - 1 r [ I _, � j � . . Ali �,� `py t4 -1 V 4 ~�`4''"`yi" �µ` [.) '�' Y u.. ► % C';_n a ,,js. ..r �. ,-__y �. VennetianCausewa ti7rsG` _ ,r Y;3' ^.� ill{ Veneoancausewa — r - t l -.r. yy.., 36 • -,---,--c+.r.iY '_ _ ^f l.. t�. �. `'h" -` � +4__.- i.a-j-- r- ' - is • _ - it M * i Jam, _ - .- " ' 3% Exhibit 2. Plan of Operation (Regular Operation) 1. Route: Purdy Avenue Dock-Sea Isle Marina-Purdy Avenue Dock.This route has been selected for the following reasons: a. The proximity to multi-modal connectivity and parking on both the Miami Beach and Downtown Miami sides. b. This route does not require any bridge openings. c. The service will be able to utilize the City of Miami Beach dock located at Purdy Avenue. d. The route will not be in competition with other Water Taxi service providers in the area. r . . a q• _ • CL• ♦ as - �1 • 'L • • 2. Days of Operation: Monday through Sunday, using a 149-passenger vessel with the ability to accommodate not less than fifteen (15) bicycles/e-bicycles and ten (10)scooters. 3. Hours of Operation and Frequency of Service: 7:30 AM to 7:30 PM with interruption of service from 2:00 PM to 3:00 PM to accommodate a staff shift change. Vessels shall leave Purdy Avenue Dock every hour on the half hour commencing at 7:30 AM and shall leave the Sea Isle Marina every hour on the hour commencing at 8:00 AM. The following schedule indicates the minimum required departures and arrivals at the Purdy Avenue Dock, regardless of whether or not there is demand for water taxi services: Arrive Purdy Depart Purdy Arrive Sea Isle Depart Sea Isle Avenue Dock Avenue Dock Marina Trip 1 - - 7:30 AM 7:55 AM Trip 2 8:00 AM 8:25 AM 8:30 AM 8:55 AM Trip 3 9:00 AM 9:25 AM 9:30 AM 9:55 AM Trip 4 10:00 AM 10:25 AM 10:30 AM 10:55 AM Trip 5 11:00 AM 11:25 AM 11:30 AM 11:55 AM 38 Trip 6 12:00 PM 12:25 PM 12:30 PM 12:55 PM Trip 7 1:00 PM 1:25 PM 1:30 PM 1:55 PM Trip 8 - - - - Trip 9 3:00 PM 3:25 PM 3:30 PM 3:55 PM Trip 10 4:00 PM 4:25 PM 4:30 PM 4:55 PM Trip 11 5:00 PM 5:25 PM 5:30 PM 5:55 PM Trip 12 6:00 PM 6:25 PM 6:30 PM 6:55 PM Trip 13 7:00 PM 7:25 PM 4. Increased Frequency of Service: Upon the City's request, if there is additional demand for water taxi service at the Purdy Avenue Dock, Concessionaire may increase the frequency of service during the established days of operation upon terms to be agreed upon by the parties. 5. Tickets:Ticket Sales will be conducted through the following media: a. In person onboard the ferry b. Over the phone with a ticket agent c. On the web at www.poseidonferry.com d. On the Poseidon Ferry Mobile App 6. Docking Locations: The docking locations approved by the City at the Purdy Avenue Dock and the Sea Isle Marina are depicted in the site plans attached as Exhibit 1 and Exhibit 1A,respectively. 7. Wayfinding Signage. Concessionaire, at Concessionaire's expense, shall erect and maintain wayfinding signage within the Concession Area and in the areas in the surrounding areas directing passengers to the loading dock. The design and specifications of such signage shall be subject to City's sign criteria as adopted from time to time and such design and specification (including camera-ready artwork) and shall be submitted for City's prior approval as to size, shape and placement of same. Promptly following the execution of this Agreement,the City shall provide its current wayfinding signage criteria to Concessionaire. All such signage shall be in compliance with all applicable law. Any new or altered wayfinding signage proposed to be posted by Concessionaire in the Concession Area or surrounding areas shall be subject to the prior approval of the City Manager or his or her designee as to size, shape and placement of same. Concessionaire shall also ensure that there is appropriate wayfinding signage at the Sea Isle Marina and in the surrounding areas. 39 Exhibit 3. Concept Plan for Vessels f,. rr s_ sr 4, IR r• aP. r• . r-----1C--- , ,.., ir,.- S MIAMI/MIAMIBEACH . 4. . FERRY �F INN T 111111 ri - ; • 1 ! III II ilia iPM,I is dill , _...-..fin; T�' _! �:•,- .- L.. ! ,17 Int44 1111611 °q -TO { r • *, ' _ t I i )1/4 .'- .0.04.-: . :I;:il 7, I,. .v "11161..7j r- ` s- t 1 • : ....'''''''''''.- '''* ill! ;..''1. i- 'l,:- . '-..::.•.-'1-i....:14:"4:: A 40 Exhibit 4. Fares for Water Taxi Services 1. Fares. Concessionaire shall provide the services under this Agreement in accordance with the following fares ("Fares"): One Way Fares: Resident Adults/Children twelve (12) years of age and older $5.00 Non-Resident Adults/Children twelve (12) years of age and older....$12.00 Children under twelve (12) years of age FREE Senior Citizens (65+)/Disabled/Military (ID).... $6.00 Weekly Pack (10 Trips)• $30.00 Monthly Pack (40 Trips)• $120.00 Concessionaire shall ensure each Vessel has the capacity to accommodate not less than 15 bicycles/e-bikes and 10 scooters. Subject to the availability, passengers shall be allowed to bring one (1) of the following items per passenger, free of charge: Bicycles E-bikes Scooters Passengers will be permitted to reserve "spaces" for their bicycles/e-bikes or scooters through Concessionaire's ticketing platform. Any spaces not reserved shall be made available on a first-come, first-served basis. The Fares may be revised and additional discount rates may be established between the parties, subject to the prior written approval of the City Manager. Concessionaire shall post a suitable card in large type, easily readable, in each Water Taxi for hire explaining and describing the Fares. Fares shall be displayed in a manner and form that can be readily understood by passengers. Upon the request of a passenger, Concessionaire shall supply the passenger with a written receipt showing the fare paid by the passenger and the date of the transaction. Concessionaire shall conspicuously post notice of this requirement in each of the water taxis. Fares may not be waived by Concessionaire unless approved in advance by the City Manager or his designee. Fares must be collected at the time a passenger boards the water taxi. Notwithstanding the foregoing, the City and Concessionaire agree that fares will be waived for City residents during the first thirty (30) days of operation of the Pilot Program. Concessionaire shall determine proof of residency in its reasonable discretion. 42 MI AM I B E A C H Contract/Document Routing Form ContraCt NO. Tit Concession Agreement Between City of Miami Beach and Poseidon Ferry LLC for the N/A turnkey implementation,management,operation and maintenance of a waterborne transportation services pilot program Contractor Requesting Department Poseiden Ferry,LLC. Transportation&Mobility Department Director Name&Signature ACM Name a Signature • Jose " onzalez Transportation&Mobility Director kell- Williams Assi nt City Manager 4/41211Wh CO, ./0/ // / y Document Type(Select One) ••• 1-Contract,amendment,change order or task order resulting from a procurement-issued competitive solicitation. Type 2-Other contract,amendment,change order or task order not resulting from a procurement-issued competitive solicitation. Type 3-Independent Contractor Agreement(ICA) Type 6-Tenant Agreement Type 4-Grant agreements with the City as the recipient Type 7-Inter-governmental agency agreement Type S-Grant agreements with the City as the grantor X Other: Concession Agreement(Bid Waiver-Resolution 2023-32644 Brief Summary&Purpose(attest memo if additional space is necessary) Attached please find the form-approved Concession Agreement Between the City of Miami Beach an the turnkey implementation,management,operation andm•'. -e..c -•f. waterborne transportation 3er program. epresenting approximately 50%of the annual operation an.maintena .. . e proposed water taxi/ferry service. At the June 28,2023 City Commission Meeting(Resolution No.2023-32644),the Mayor and City Commission accepted the recommendation of the Finance and Economic Resiliency Committee's motion directing the Administration to(1)negotiate a one(1)year agreement starting Fiscal Year 2024 with Poseidon to provide a water taxi service pilot program between Miami Beach and Downtown Miami;(2)identify funding;(3)identify locations where operation will be conducted,and(4)define the City's contribution,and fare structure for the pilot program. Original Term Renewal Periods Total Term(Original+Renewals) One year N/A N/A Funding information Grant Funded: _ Yes © No State _ Federal _ Other: Cost&Funding Source Year Annual Cost Account Require Enhancement 1 $600,000.00 106-9615-000349-30-403-529-00-00-00- h;__ Yes x No 2 �_ Yes No 3 Yes No Mahood*W' ; City Commission Approved: X Yes No Resolution No.: CC Agenda Item No.: CC Meeting Date: 2023-32644 C7 R June 28,2023 If no,explain why CC approval is not required: Legal Form Approved: X Yes No If no,explain below why form approval is not necessary: Compliance Approvals(see attached) Procurement: n/a Grants: n/a Budget: Information Technology: n/a Tameka Otto-Stewart Risk Management: n/a Fleet&Facilities: n/a Human Resources: n/a Other: n/a 4 RESOLUTION NO, 2023-32644 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF MIAMI BEACH FLORIDA, WAIVING, BY 5/7TH VOTE, THE FORMAL COMPETITIVE BIDDING REQUIREMENT IN SECTION 2-367(E) OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF THE CITY, AND ACCEPTING THE RECOMMENDATION OF THE FINANCE AND ECONOMIC RESILIENCY COMMITTEE, AT ITS MAY 24, 2023 MEETING, DIRECTING THE CITY ADMINISTRATION TO (1) NEGOTIATE A ONE (1) YEAR AGREEMENT BEGINNING IN FISCAL YEAR 2024 WITH POSEIDON FERRY, LLC TO PROVIDE A WATER TAXI SERVICE PILOT PROGRAM ("PILOT PROGRAM") BETWEEN MIAMI BEACH AND DOWNTOWN MIAMI; (2) IDENTIFY FUNDING; (3) IDENTIFY LOCATIONS WHERE OPERATION WILL BE CONDUCTED; AND (4) DEFINE THE CITY CONTRIBUTION, AND FARE STRUCTURE FOR THE PILOT PROGRAM; AND FURTHER REQUIRING THAT THE FINAL AGREEMENT BE SUBJECT TO APPROVAL BY THE MAYOR AND CITY COMMISSION. WHEREAS, a water taxi is a watercraft that provides public transport service, usually, but not always, in an urban environment; and WHEREAS, aside from being an attraction to tourists who enjoy the scenic cross-bay route, more importantly, water taxi service can also provide a convenient and reliable alternative mobility option to commuters traveling daily to and from Downtown Miami and the City of Miami Beach ("City"), connecting various destinations in the City and on the mainland; and WHEREAS, on January 2012, the City's Marine and Waterfront Protection Authority ("MWPA") discussed this subject and passed a resolution recommending that the City develop a plan for waterborne transportation services within the City and to mainland Miami; and WHEREAS, on July 23, 2014, the City Commission adopted Resolution No. 2014-28665 directing the City Administration to prepare an Invitation to Negotiate ("ITN") to seek proposals from qualified firms interested in providing the City with waterborne public transportation services; and WHEREAS, the ITN resulted in only one (1) responsive and responsible bidder, Water Taxi Miami, Inc.; and WHEREAS, the City executed a contract with Water Taxi Miami, Inc. to operate a one (1) year water taxi pilot program from December 30, 2016 to December 30, 2017, at no cost to the City; and WHEREAS, due to its high fares, weekend-only service, and infrequent weekday service, the pilot was not deemed a practical, competitive, reliable, convenient, or financially viable operation and was terminated on December 30, 2017; and WHEREAS, on September 8, 2020, Poseidon Ferry LLC("Poseidon") presented a water ferry service operating plan to the City's Marine and Waterfront Protection Authority (MWPA); and WHEREAS, Poseidon launched service on November 29, 2020, using a double-deck vessel with an air-conditioned lower deck; and WHEREAS, Poseidon's water taxi service was privately owned and operated, with no public subsidy from Miami-Dade County, the City of Miami, or the City; and WHEREAS, the service was suspended on December 31, 2022 due to low ridership; and WHEREAS, on March 27, 2023, at the request of Commissioner David Richardson, the City Commission referred a discussion (Item C4 N) to the Finance and Economic Resiliency Committee ("FERC")to discuss implementing a water taxi/ferry service in the City, and providing a potential subsidy for the program, in an effort to reduce the fares charged to passengers and promote an alternative mode of transportation between Miami Beach and downtown Miami; and WHEREAS, Poseidon represented that the net annual operating and maintenance cost of the service was approximately $600,000.00 per year for one (1) vessel operating seven (7) days a week at a service frequency of one (1) hour from Sunday to Friday (from 7:30 a.m. to 7:30 p.m.) and limited departures on Saturday; and WHEREAS, during the May 24, 2023 FERC meeting, the Committee discussed the item and passed a motion, recommending a waiver of the formal competitive bidding process, if required to do so, and directing the Administration to: (1)proceed with negotiating a one-year pilot program with Poseidon, commencing during FY 2024, including related contract terms, such as identifying the locations where the operations would be conducted, the final City contribution toward the operation of the program, and the fare structure for use of the services; and WHEREAS, on March 27, 2023, at the request of Commissioner Steven Meiner, the City Commission referred a discussion (Item C4 0)to the Public Safety and Neighborhood Quality of Life Committee ("PSNQLC") and the Finance and Economic Resiliency Committee ("FERC") to discuss obtaining federal, state and county funding to implement a free water taxi/ferry service program in Miami Beach, to incentivize residents to use water taxis as an alternative mode of transportation; and WHEREAS, following the May 23, 2023 PSNQLC meeting, the Administration is submitting a companion agenda item, recommending that the City Administration: (1) study the possibility of developing a new dock, and the various components of such a development, including the cost and possible funding sources for a local match, should any State and Federal grants be available; (2) add a water taxi/ferry service to the City's list of legislative priorities; (3) refer the discussion of the development of a new dock to the Marine and Waterfront Protection Authority and the Transportation, Parking and Bicycle-Pedestrian Facilities Committee to discuss and seek input on the appropriate location for a new dock; and (4) explore the different components of a water ferry program, including evaluating the different approaches to the service operating plans and vessel type/technologies, in anticipation of an issuance of a competitive solicitation for the service; and WHEREAS, based upon the foregoing, and in preparation for the anticipated issuance of a competitive bidding solicitation for a water ferry service,the City Manager recommends waiving, by 5/79h vote, the formal competitive bidding requirement in Section 2-367(e) of the City Code, finding such waiver to be in the best interest of the City, and accepting the recommendation of the FERC, at its May 24, 2023 meeting, to utilize FY 2024 funds and negotiate a one-year pilot program with Poseidon. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby waive, by 5/7th vote, the formal competitive bidding requirement in Section 2-367(e) of the City Code, finding such waiver to be in the best interest of the City, and accept the recommendation of the Finance and Economic Resiliency Committee, at its May 24, 2023 meeting, directing the City Administration to(1) negotiate a one(1)year agreement beginning in fiscal year 2024 with Poseidon Ferry, LLC to provide a water taxi service pilot program ("Pilot Program") between Miami Beach and Downtown Miami; (2) identify funding; (3) identify locations where operation will be conducted; and (4)define the City contribution, and fare structure for the Pilot Program; and further require that the final agreement be subject to approval by the Mayor and City Commission. PASSED and ADOPTED this 28th day June, 2023. ATTEST: 7.-*/ Dan Gelber, Mayor JUL — 52o23 Rafael E. Granado, City Clerk :- 4ti'; INCORPORATED iy 26 APPROVED AS TO FORM & LANGUAGE &FOR EXECUTION 1 O 6 City Attorney*I— Date Resolutions-C7 R MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Alina T. Hudak, City Manager DATE: June 28, 2023 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE FINANCE AND ECONOMIC RESILIENCY COMMITTEE, AT ITS MAY 24, 2023 MEETING,WAIVING THE FORMAL COMPETITIVE BIDDING REQUIREMENT IN SECTION 2-367(E) AND DIRECTING THE CITY ADMINISTRATION TO (1) NEGOTIATE A ONE (1) YEAR AGREEMENT BEGINNING IN FISCAL YEAR 2024 WITH POSEIDON, LLC TO PROVIDE A WATER TAXI SERVICE PILOT PROGRAM ("PILOT PROGRAM") BETWEEN MIAMI BEACH AND DOWNTOWN MIAMI; (2) IDENTIFY FUNDING; (3) IDENTIFY LOCATIONS WHERE OPERATION WILL BE CONDUCTED; AND (4) DEFINE THE CITY CONTRIBUTION, AND FARE STRUCTURE FOR THE PILOT PROGRAM. RECOMMENDATION The Administration recommends that the Mayor and City Commission ("City Commission") approve the Resolution. BACKGROU ND/HISTORY A water taxi is a watercraft that provides public transport service, usually, but not always, in an urban environment. The service may be fixed schedule/fixed route with multiple stops, operating sinilarly to a bus, or on-demand to many locations, operating similarly to a tad.Aside from being an attraction to tourists who enjoy the scenic cross-bay route, more importantly,water taxi service can also provide a convenient and reliable alternative mobility option to commuters traveling daily to and from Downtown Miami and the City of Miami Beach ("City"), connecting various destinations in the City and on the mainland. In January 2012, the City's Marine and Waterfront Protection Authority ("MWPA") discussed this subject and passed a resolution recommending that the City develop a plan for waterborne transportation services within the City and to mainland Miami. The recommendation included the development of a pier or dock at the Lincoln Road street-end with the potential for additional dock locations at 5 Street, 10 Street, 14 Street, and the Purdy Avenue Dock at Maurice Gibb Park. At the October 28, 2013 Neighborhood and Community Affairs Committee ("NCAC") meeting, the NCAC recommended that the City Administration explore the feasibility of the proposed dock Page 788 of 1808 locations, gather more details regarding the potential service, and provide an update to the NCAC. On December 11, 2013, the City Corrrrission adopted Resolution No. 2013-28430 (Attachment A), accepting the recommendation of the NCAC. At the April 30, 2014 NCAC meeting, City staff provided feedback regarding potential locations for water taxi terminals and recommended conducting public meetings to obtain community input regarding potential water taxi dock locations. The NCAC recommended that prior to conducting any public meetings, staff conduct a survey of City employees to determine if water taxi service would provide a suitable alternative to commute to work. On July 23, 2014, the City Commission adopted Resolution No. 2014-28665 (Attachment B), rejecting the NCAC's recommendation and, instead, directed the City Administration to prepare an Invitation to Negotiate ("ITN") to seek proposals from qualified firms interested in providing the City with waterbome public transportation services. Pursuant to this direction, the City issued an ITN for a pilot cross-bay waterbome transportation service. The solicitation required that the water taxi service be provided at no cost to the City and that the operator provide all necessary infrastructure, including a docking facility, for the safe operation of the service. The ITN resulted in only one (1) responsive and responsible bidder ("Water Taxi Miami, Inc."). As such, the City executed a contract with Water Taxi Miami, Inc. to operate a one (1) year water taxi pilot program from December 30, 2016 to December 30, 2017, at no cost to the City, connecting the Purdy Avenue Dock at Maurice Gibb Park, Sea Isle Marina at Omni, Bayside Marketplace in Downtown Miami, and the Miarri Beach Marina Due to its high fares, weekend-only service, and infrequent weekday service, the pilot was not deemed a practical, competitive, reliable, convenient, or financially viable operation and was terminated on December 30, 2017. On September 8, 2020, Poseidon Ferry LLC ("Poseidon") presented a water ferry service operating plan to the MWPA. Poseidon launched service on November 29, 2020, using a double-deck vessel with an air-conditioned lower deck. The water taxi service was privately owned and operated with no public subsidy from Miami-Dade County, the City of Miami, or the City. The service provided connectivity to and from the Hyatt Regency located at 400 SE 2nd Avenue in Downtown Miami and the Bentley Bay Marina located at 520 West Avenue in Miami Beach, where the water taxi connected to the County's MetroMover system and the South Beach Trolley service, respectively. Service corrrnencement was shared with the City Corrrrission via LTC No. 422-2020 (Attachment C). Poseidon's fare structure was competitive with current public transit fares ($3 per passenger each way for commuters). Per Poseidon, the net annual operating and maintenance cost of the service was approximately $600,000 for one (1) vessel operating seven (7) days a week at a service frequency of one(1) hour from Sunday to Friday(from 7:30 a.m. to 7:30 p.m.) and limited departures on Saturday. The service was suspended on December 31, 2022 due to low ridership. On March 27, 2023, at the request of Commissioner David Richardson, the City Comrssion referred a discussion (Item C4 N) to the Finance and Economic Resiliency Cormittee ("FERC") to discuss implementing a water taxi/ferry service in the City, and providing a potential subsidy for the program, in an effort to reduce the fares charged to passengers and promote an alternative mode of transportation between Miami Beach and downtown Miarri. During the May 24, 2023 FERC meeting, the Committee discussed this item and passed a motion to proceed with a pilot program with Poseidon, authorizing the City Administration to negotiate an agreement with Poseidon and work with Poseidon to identify the locations where the operations will be conducted, and recommending waiver of the competitive bidding process if required to do so, with the final City contribution and related terms, such as the discounted Page 789 of 1808 rates,to be determined in the agreement. FERC recommended in favor of moving the item to the City Commission for consideration of its motion_ ANALYSIS Water taxi service could provide an alternative mode of transportation for residents, visitors, and workforce using waterways between the cities of Miami Beach and Miami. This connectivity is essential for residents who work, study, or engage in recreational activities in both cities. Currently, the options available to residents, visitors, and workforce are to use their personal vehicles or micromobility device, tab/ride-share services, or public transportation (Miami-Dade County buses). However, with an efficient cross-bay water tab service, residents, visitors, and workforce can avoid traffic congestion on the causeways and reduce travel time, making it a convenient, attractive, and affordable commuting option. Based on information received from Poseidon, which operated ferry service between Miami Beach and Miami until December 31, 2022, the net annual operating cost of the service was approximately $600,000(excluding docking fees)for one(1)vessel operating seven (7)days per week with one(1)- hour frequency of service from Sunday to Friday(from 7:30 am to 7:30 pm) and limited departures on Saturday. The fare for Florida residents was $5 per person per trip, and the fare for visitors was $10 per person per trip. Poseidon's fare structure was competitive with current public transit fares at $3 per passenger each way for commuters. SUPPORTING SURVEY DATA N/A FINANCIAL INFORMATION The cost associated with subsidizing the net annual operations and maintenance costs of a cross- bay water tab service (based on Poseidon's operating costs) is approximately $600,000. Currently, funding has not been identified; however, this cost has been presented as part of a tentative proposed FY 2024 operating budget enhancement for consideration by the City Commission. Given cross-bay water taxi service constitutes a regional transportation service extending beyond the jurisdictional limits of Miami Beach, should the City Commission wish to explore an operating subsidy for the service, the Administration recommends pursuing a collaboration and potential funding partnership with the City of Miami and/or Miami-Dade County. CONCLUSION This item is being presented to the City Commission for acceptance of the recommendation of FERC's motion directing the Administration to (1) negotiate a one (1) year agreement starting Fiscal Year 2024 with Poseidon to provide a water taxi service pilot program between Miami Beach and Downtown Miami; (2) identify funding; (3) identify locations where operation will be conducted, and (4)define the City's contribution, and fare structure for the pilot program. Furthermore, the City Administration recommends pursuing a competitive solicitation for the service to better position the City to seek certain external funding opportunities, and to compare and evaluate multiple vendors' approaches to the service, operating plans, and vessel types/technologies. Applicable Area Page 790 of 1808 Citywide Is this a"Residents Right Does this item utilize C.Q. to now em,pursuant to Bond Funds? City Code Section 2-14? No No Strategic Connection Mobility- Increase multi-modal mobility citywide and connectivity regionally. Legislative Tracking Transportation and Mobility Sponsor Commissioner David Richardson ATTACHMENTS: Description o Attachment A—Resolution No. 2013-28430 ❑ Attachment B —Resolution No. 2014-28665 ❑ Attachment C—LTC No. 422-2020 Page 791 of 1808 RESOLUTION NO. 2013-28430 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE NEIGHBORHOODS/COMMUNITY AFFAIRS COMMITTEE DIRECTING THE CITY ADMINISTRATION TO EXPLORE POTENTIAL LOCATIONS AND TIMES FOR WATER TAXI SERVICE WITHIN THE CITY AND TO MAINLAND MIAMI. WHEREAS, a water taxi is a watercraft used to provide public transport, usually but not always, in an urban environment which can operate similar to a bus or taxi and can serve as a charter or commuter service; and WHEREAS, the City is about to begin developing its Transportation Master Plan (TMP) which will study the City's transportation network, analyze existing conditions, and make recommendations for projected future conditions, including maximizing the use of its Blueways throughout the City; and WHEREAS, the City's Marine Authority Board discussed this subject and passed a Resolution in January 2012 recommending that the City develop water transportation services within the City and to mainland Miami for commercial and private vessels; and WHEREAS, the City's Marine Authority Board also recommended the development of a pier or dock at the Lincoln Road street-end with the potential for additional sites at 5th Street, 10th Street, 14th Street, and the Purdy Boat Ramp; and WHEREAS, the City Administration was recently approached by Island Queen Cruises with a proposal for the establishment of permanent locations in the City of Miami Beach in order to provide water taxi service between Bayfront Park and Miami Beach; and WHEREAS, at the October 28, 2013 Neighborhoods/Community Affairs Committee meeting, the Committee passed a motion requesting that the Administration explore water taxis as an alternative mode of transportation and to further research the issue, including possible pick-up and drop-off locations and times, and to bring the item back to the Committee for further discussion and refinement of the concept. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept the recommendation of the Neighborhoods/Community Affairs Committee directing the City Administration to explore potential locations for water taxi service in the City and to further research possible pick-up and drop-off locations and times and to bring the item back to the Committee for further discussion and refinement of the concept. PASSED and ADOPTED this /1 day of'Q.LlJ./5., , 20, _ ATTEST: Phili ayor R fael E. Gra • -/ APPROVED AS TO f FORM AND LANGUAGE R EXECUTION `-.INCORP-` OKAYED_: ) 11111 ttomey Z Da e T:WGENDA‘20130ecembertllResolutror9 Nein74143cetiolgefftm NCAC Regarding the Co-Naming of Streets RESO.docx =,,� COMMISSION ITEM SUMMARY Condensed Title: A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Accepting The Recommendation Of The Neighborhood/Community Affairs Committee Directing The Administration To Explore Potential Locations For Water Taxi Service Key Intended Outcome Supported: Enhance Mobility throughout the City Supporting Data(Surveys,Environmental Scan,etc.): In a recent survey,31%of residents and 43%of businesses rate the traffic flow as excellent or good. Item Summary/Recommendation: A water taxi is a watercraft used to provide public transport, usually but not always in an urban environment. Service may be scheduled with multiple stops,operating in a similar manner to a bus,or on- demand to multiple locations, operating in a similar manner to a taxi. Water taxis can offer sightseeing, charter and commuter services in order to service both residents and visitors. The City is about to begin developing its Transportation Master Plan (TMP) which will study the City's transportation network, analyze existing conditions and make recommendations for projected future conditions. Multi-modal alternatives will be a component of the TMP and the City is seeking ways to maximize use navigable waterways. Additionally,the City's 2025 Comprehensive Plan already includes a multi-modal transportation system as a stated goal. The City's Marine Authority Board discussed this subject and passed a Resolution in January 2012 recommending the City develop water transportation services within the City and connecting to the City of Miami for commercial and private vessels. The recommendation included development of a pier or dock at the Lincoln Road street-end with potential for additional sites at 5th Street, 10th Street, 14th Street,and the Purdy Boat Ramp. Aside from the attraction to tourists,water taxi service also has the ability to provide an alternative mode of transportation for residents who commute daily to and from Downtown Miami/Brickell area and to connect various destinations in the City of Miami Beach and on the Mainland. The City Administration was recently approached by Island Queen Cruises with a proposal for the establishment of permanent locations in the City of Miami Beach in order to provide water taxi service between Bayfront Park in the City of Miami and Miami Beach. This item is being presented to City Commission for acceptance of the recommendation of the NCAC directing the Administration to further explore water taxi service as an alternative form of transportation and gather more details regarding the service,such as possible pick-up and drop-off locations,times,etc.,and to bring the item back to the NCAC for further discussion and refinement of the concept. Advisory Board Recommendation: At the October 28, 2013 meeting of the Neighborhood/Community Affairs Committee(NCAC), City staff and industry representatives provided some background regarding the current and proposed service. The service is currently implemented in the City of Fort Lauderdale. The NCAC endorsed the concept as another alternative to reduce traffic congestion between the City of Miami Beach and the Mainland. The Committee passed a motion,which is why it is being presented to the City Commission for acceptance,to direct the Administration to further explore this concept and gather more details regarding the service,such as potential pick-up and drop-off locations, times, etc. and bring the item back to the NCAC for further discussion and refinement of the concept. Financial Information: Source of I Amount Account JJ 1 Total Financial Impact Summary: City Clerk's Office Legislative Tracking: Sign-Offs: • Department Director Assistant CI anager City ger ETC KGB JLM T. GENDAl201310ecember 111Resolution Accepting Recommendation from NCAC Rega ng the Co-Nam.ng cf Stree:s SUMMARV.doc /V\IA/v1d BEACH Page 793 of 1808 AGENDA ITEM C75 DATE /A/A-13 MIAMI BEACH City of Miami Roach,1700 Convention Center Drive,Miami Beach,Florida 33139,www.miomibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Philip Levine and Members • the City Co 'mission FROM: Jimmy L. Morales, City Manager . 111111111111111.- DATE: December 11, 2013 SUBJECT: A RESOLUTION OF THE MAY"R AND CITY COMMISISON OF THE CITY OF MIAMI BEACH, FLORIDA, A« EPTING THE RECOMMENDATION OF THE NEIGHBORHOOD/COMMUNITY AFFAIRS COMMITTEE DIRECTING THE ADMINISTRATION TO EXPLORE POTENTIAL LOCATIONS FOR WATER TAXI SERVICE BACKGROUND A water taxi is a watercraft used to provide public transport, usually but not always in an urban environment. Service may be scheduled with multiple stops, operating in a similar manner to a bus, or on-demand to multiple locations, operating in a similar manner to a taxi. Water taxis can offer sightseeing, charter and commuter services in order to service both residents and visitors. The City is about to begin developing its Transportation Master Plan (TMP)which will study the City's transportation network, analyze existing conditions and make recommendations for projected future conditions. Multi-modal alternatives will be a component of the TMP and the City is seeking ways to maximize use navigable waterways. Additionally, the City's 2025 Comprehensive Plan already includes a multi-modal transportation system as a stated goal. The City's Marine Authority Board discussed this subject and passed a Resolution in January 2012 recommending the City develop water transportation services within the City and connecting to the City of Miami for commercial and private vessels. The recommendation included development of a pier or dock at the Lincoln Road street-end with potential for additional sites at 5th Street, 10th Street, 14th Street, and the Purdy Boat Ramp. Aside from the attraction to tourists, water taxi service also has the ability to provide an alternative mode of transportation for residents who commute daily to and from Downtown Miami/Brickell area and to connect various destinations in the City of Miami Beach and on the Mainland. The City Administration was recently approached by Island Queen Cruises with a proposal for the establishment of permanent locations in the City of Miami Beach in order to provide water taxi service between Bayfront Park in the City of Miami and Miami Beach. Page 794 of 1808 Commission Memo-Resolution Accepting Recommendation from NCAC Regarding Water Taxi Service December 11, 2013 Page 2 of 2 At the October 28, 2013 meeting of the Neighborhood/Community Affairs Committee (NCAC), City staff and industry representatives provided some background regarding the current and proposed service. The service is currently implemented in the City of Fort Lauderdale. The NCAC endorsed the concept as another alternative to reduce traffic congestion between the City of Miami Beach and the Mainland. The Committee passed a motion, which is why it is being presented to the City Commission for acceptance, to direct the Administration to further explore this concept and gather more details regarding the service, such as potential pick-up and drop-off locations, times, etc. and bring the item back to the NCAC for further discussion and refinement of the concept. CONCLUSION This item is being presented to City Commission for acceptance of the recommendation of the NCAC directing the Administration to further explore water taxi service as an alternative form of transportation and gather more details regarding the service, such as possible pick-up and drop- off locations, times, etc., and to bring the item back to the NCAC for further discussion and finement of the concept. GBI]JSRG/JFD T:\AGENDA1201310ecember 11\Resolution Accepting Recommendation from NCAC Regarding Water Taxi Service MEMO Page 795 of 1808 RESOLUTION NO. 2014 - 28665 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, REJECTING THE RECOMMENDATION OF THE NEIGHBORHOOD/COMMUNITY AFFAIRS COMMITTEE AT ITS APRIL 30, 2014 MEETING TO CONDUCT A SURVEY OF CITY EMPLOYEES REGARDING THE POTENTIAL USE OF WATER TAXI SERVICES FOR COMMUTING PURPOSES AND DIRECTING THE CITY ADMINISTRATION TO PREPARE A REQUEST FOR APPROVAL TO ISSUE AN INVITATION TO NEGOTIATE TO SEEK PROPOSALS FOR WATERBORNE TRANSPORTATION SERVICES AS AN ALTERNATIVE MODE OF PUBLIC TRANSPORTATION IN THE CITY. WHEREAS, a water taxi is a watercraft used to provide public transportation and that can potentially provide an alternative mode of transportation for residents of Miami Beach; and WHEREAS, at the December 11, 2013 City Commission meeting, the Commission accepted the recommendation of the Neighborhood/Community Affairs Committee (NCAC) to direct the Administration to further explore water taxi service as an alternative form of transportation and gather more details regarding the service, such as possible pick-up and drop- off locations and times; and WHEREAS, at the April 30, 2014 meeting of the NCAC, City staff provided feedback regarding potential locations for water taxi terminals and recommended conducting public meetings in order to educate the community and obtain citizen input regarding potential water taxi dock locations; and WHEREAS, at said meeting, the NCAC recommended that, prior to conducting any public meetings, staff conduct a survey of City employees to determine if water taxi service would provide a suitable alternative to commute to work and to bring the results of such survey back to the NCAC with additional recommendations; and WHEREAS, the Mayor and City Commission reject the NCAC's recommendation and, instead, wish to direct the City Administration to prepare an Invitation to Negotiate (ITN) which will seek proposals from qualified firms interested in providing the City with waterborne public transportation services, and also wish to direct the City Administration to prepare a request for an ITN for the July 30, 2014 City Commission agenda for consideration by the City Commission. NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby reject the recommendation of the NCAC at its April 30, 2014 meeting and hereby direct the City Administration to prepare a request for approval to issue an Invitation to Negotiate to seek proposals for waterborne transportation services as an alternative mode of public transportation in the City. PASSED AND ADOPTED this 23rd day of July, 2014. ATTEST: PHILIP LEV RAFAEL E. GRANADO, , *i * MAYOR CITY CLERK :.INCORF OKAYED: APPROVED AS TO ��.�••' N. h FORM&LANGUAGE T:\AGENDA\2014Uuly\Water Taxi-Accep "t' •ytittrte ath 1 NCAC Updated RESO.doc &FOR EXECUTION a... 796of1808 aa- atA-- s (4 ( c4 City Attorney Dote t COMMISSION ITEM SUMMARY Condensed Title: A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Accepting The Recommendation Of The Neighborhood/Community Affairs Committee Directing The Administration To Conduct A Survey Of City Employees Regarding The Potential Use Of Water Taxi Services For Commuting Purposes. Key Intended Outcome Supported: Commission a Comprehensive Mobility Plan Which Gives Priority Recommendations(From Non-Vehicular To Vehicular And Including Parking). Supporting Data(Surveys,Environmental Scan,etc.):According to the Florida Department of Transportation (FOOT),the Level Of Service(LOS)on the McArthur Causeway and Julia Tuttle Causeway during peak hours is LOS F(Failing)and D, respectively. The existing public transportation system connecting Miami Beach to the mainland is limited to using these congested highways. As recently indicated in the 2014 City of Miami Beach Community Satisfaction Final Report,28%of the City of Miami Beach residents would be willing to use alternative forms of transportation to access the mainland. Item Summary/Recommendation: At the December 11, 2013 City Commission meeting, the Commission accepted a recommendation by the Neighborhood/Community Affairs Committee(NCAC) directing the Administration to further explore water taxi service as an alternative form of transportation and gather more details regarding the service,such as possible pick-up and drop-off locations, times, etc., and to bring the item back to the NCAC for further discussion and refinement of the concept. At the April 30,2014 meeting of the NCAC,City staff provided feedback regarding potential locations for water taxi terminals and recommended conducting public meetings in order to educate the community and obtain their input regarding potential water taxi dock locations. The NCAC recommended that prior to conducting any public meetings, staff conduct a survey of City employees to determine if water taxi service would provide a suitable alternative to commute to work. This item is being presented to City Commission for acceptance of the recommendation of the NCAC directing the Administration to conduct a survey and gather data to assess the need for water taxi service as an alternative mode of public transportation in the City,and to bring the item back to the NCAC to report the results of the survey and provide additional recommendations. Additionally,the Administration will reach out to the Home Owners Associations(HOAs)surrounding the locations that could potentially be used as terminals/stops for water taxi services, in an effort to obtain some feedback on the integration of the proposed dock locations in the residential areas. THE ADMINISTRATION RECOMMENDS APPROVAL OF THE RESOLUTION. Advisory Board Recommendation: N/A Financial information: Source of Amount Account Funds: 1 2 Financial Impact Summary:N/A City Clerk's Office Legislative Tracking: Jose R.Gonzalez,ext.6768 Sign-Offs: Department Director Assistant C Manager C nager JRG KGB V11, JL T:WGENDA120141July1WaterTaxi—Acceptance of Recommend 'ons by NCAC SUM.doc Mgr M I AM I BEACH Page 797 of 1808 AGENDA ITEM G 7 V DATE 4743 Al Ca-= MIAMIBEACH City of Miami Beath, 1700 Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachfl.gov COMMISSION MEMORANDUM TO: Mayor Philip Levine and Members •. the City aimmission FROM: Jimmy L. Morales, City Manager DATE: July 23, 2014 SUBJECT: A RESOLUTION OF THE MAY* ' AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE NEIGHBORHOOD/COMMUNITY AFFAIRS COMMITTEE DIRECTING THE ADMINISTRATION TO CONDUCT A SURVEY OF CITY EMPLOYEES REGARDING THE POTENTIAL USE OF WATER TAXI SERVICES FOR COMMUTING PURPOSES BACKGROUND A water taxi is a watercraft used to provide public transportation, usually, but not always in an urban environment. Service may be scheduled with multiple stops, operating in a similar manner to a bus, or on-demand to multiple locations, operating in a similar manner to a taxi. Aside from being a memorable experience to tourists, water taxi service also has the ability to provide an alternative mode of transportation for residents who commute daily to and from Downtown Miami/Brickell area, and to connect various destinations in the City of Miami Beach and on the Mainland. The potential for waterbome transportation is expected to be further studied in the City's Transportation Master Plan, which will review the City's transportation network, analyze existing conditions and make recommendations for projected future conditions. Additionally, the City's 2025 Comprehensive Plan already includes a multi-modal transportation system as a stated goal. The City's Marine Authority Board discussed water taxi service and passed a Resolution in January 2012 recommending that the City implement water transportation services within the City and connecting to the City of Miami. The recommendation included development of a pier or dock at the Lincoln Road street-end with potential for additional sites at 5th Street, 10th Street, 14th Street, and the Purdy Boat Ramp. At the December 11, 2013 City Commission meeting, the Commission accepted the recommendation of the Neighborhood/Community Affairs Committee (NCAC) directing the Administration to further explore water taxi service as an alternative form of transportation and gather more details regarding the service, such as possible pick-up and drop-off locations, times, etc., and to bring the item back to the NCAC for further discussion and refinement of the concept. Page 798 of 1808 Commission Memo- Water Taxi—Acceptance of Recommendations by NCAC Jut),23, 2014 Page 2 of 2 At the April 30, 2014 meeting of the NCAC, City staff provided feedback regarding the locations proffered by the Marine Authority Board and recommended conducting public meetings in order to educate the community and obtain their input regarding potential water taxi dock locations. The NCAC recommended that prior to conducting any public meetings, staff conduct a survey of City employees to determine if water taxi service would provide a suitable alternative to commute to work. The Committee passed a motion directing the Administration to conduct a survey and gather data in order to properly evaluate the need for water taxi service as an alternative mode of public transportation in the City. Additionally, the Administration will reach out to the Home Owners Associations (HOAs) surrounding the locations that could potentially be used as terminals/stops for water taxi services, in an effort to obtain some feedback on the integration of the proposed dock locations in the residential areas. CONCLUSION This item is being presented to City Commission for acceptance of the recommendation of the NCAC directing the Administration to conduct a survey and gather data to assess the need for water taxi service as an alternative mode of public transportation in the City, and to bring the item back to the NCAC to report the results of the survey and provide additional recommendations. KGB/JRG/:FG T:WGENDA120141July\Water Tab—Acceptance of Recommendations by NCAC MEMO • Page 799 of 1808 DocuSign Envelope ID.911089F9-BB8D-473F-A52C-FD86CA82658E OFFICE OF THE CITY MANAGER Na LTC# 422-2020 LETTER TO COMMISSION TO: Mayor Dan Gelber and Members of the City Commission FROM: Jimmy L Morales, City Manager ,DacuSipne°°y 3iik,h M.ev'a t,s DATE: November 25, 2020 `^-2aCA 18194070496 SUBJECT: Commuter Waterbome Transportation Service by Poseidon Ferry LLC The purpose of this LTC is to inform the City Commission of Poseidon Ferry LLC's launch of commuter water ferry service between Miami Beach and downtown Miami anticipated for November 29,2020, using a double deck vessel with an air-conditioned lower deck. The service is privately owned and operated with no public subsidy from Miami-Dade County, City of Miami,or City of Miami Beach. The service is intended to cater to commuters during morning and afternoon peak periods both on weekdays and weekends and the proposed commuter fare structure is competitive with current public transit fares($3/passenger each way) The service is scheduled to operate 7 days a week from approximately 6am-10pm Monday through Thursday, and 6am-8pm Friday through Sunday with as many as 16 scheduled hourly departures from Miami Beach each day. The established pick-up and drop-off locations are the Bentley Bay Condominium marina in South Beach and the Hyatt Regency/James L. Knight Center marina in downtown Miami in proximity to the Knight Center Metromover station. Poseidon is planning to add a second vessel in early 2021 which would double the number of departures and provide a service frequency of approximately 30 minutes. In Miami Beach, Poseidon explored various docking locations within and in proximity to the Miami Beach Marina. Unfortunately, after almost a year of coordinating with the Miami Beach Marina management, Poseidon was unable to secure docking rights at the marina. As an alternative, Poseidon secured the Bentley Bay marina for vessel operation and retail space within the building for a ticket office and passenger waiting area with restrooms. Poseidon presented its proposed water ferry service operating plan to the City's Marine and Waterfront Protection Authority(MWPA)on September 8,2020 and responded to questions from board members and the public. The water ferry item was continued by the MWPA to December 2020 to provide Poseidon time to secure the required permits and approvals. The proposed service has received mixed feedback from some residents of the Bentley Bay Condominium; and Poseidon is working closely with the Bentley Bay Condominium Association to address any outstanding concerns with the upcoming service.In the meanwhile,Poseidon has secured Florida Department of Environmental Protection (FDEP)approval to use the existing dock at the Bentley Bay marina on a temporary basis while the lease with the Bentley Bay marina is amended to allow Page 800 of 1808 DocuSign Envelope ID:9110B9F9-BB8D-473F-A52C-FD86CA82658E LTC-Commuter waterborne transportation service by Poseidon November 25,2020 for permanent use of the dock. Poseidon will present its operating plan to MWPA in December, in addition to the commuter ferry service, Poseidon is pursuing sightseeing and music cruises to subsidize the commuter service. Based on information received from the County and Poseidon, these recreational services will operate only on the City of Miami side and will not be arriving at or departing from the Bentley Bay marina. It is important to note that the City has no role in this private venture other than the ministerial function of issuing a BTR once Poseidon has secured all required approvals. As a condition of the issuance of its BTR, Poseidon agrees to follow all applicable federal, state, and local laws, in addition to strictly adhering to those conditions set forth in its BTR and included in Acknowledgment Letter. The intent of the Acknowledgment Letter is to ensure that Poseidon's ferry service operation provides for a high level of safety and security of ferry passengers and does not adversely affect the quality of life of residents in the area (Attachment A). From the standpoint of transit connectivity and parking, the Bentley Bay marina is strategically located as it is in close proximity to the South Beach Trolley service, County regional bus service, and the Alton Road/51h Street parking garage which can serve as a park-and-ride facility for the proposed ferry service. The proposed service aligns with City Commission Resolution No. 2019-30757 (Attachment B) which recommends that the Administration pursue strategies to help mitigate traffic impacts and ensure mobility for residents, visitors, and workforce employees during the construction of the Florida Department of Transportation(FDOT)1-395 Signature Bridge project and other active and planned FDOT roadway projects in and around the City. Should you have any questions, please feel free to contact me. Attachment A: Acknowledgment Letter At aaerit- SRrlution No. 2019-30757 7 itt J LM/ATH/J RG/M M 'titps(/mmrnibeech.my nherepoint cam/personal/rnlosmajstorov.c mom,beacon_gov/Oocuments/Waterbornr'Poaeidan Ferry/ITC • Waterborne Itenspofatbn Xwrce by Poseidon November 207m.do s Page 801 of 1808 DomSign Envelope ID:9110B9F9-B880-473F-A52C-F086CA82658E Attachment A City of Miami beach, 1700 Convention Center Dove,Miami Beach,Florida 33139,www.miamibecchfi.gov OFFICE OF THE CITY ATTORNEY Tel:305-673-7470, Fax 305-673-7002 November 25, 2020 Poseidon Ferry, LLC 400 SE 2"1 Avenue Miami, FL 33131 Dear Sir or Madam: This correspondence shall serve as an acknowledgment of those conditions included in the Business Tax Receipt ("BTR") issued by the City of Miami Beach, Florida ("City") to Poseidon Ferry, LLC ("Poseidon"), a Foreign Limited Liability Company, authorized to do business in the State of Florida, and the City of Miami Beach, Florida. Poseidon operates a privately owned water ferry commuter service between Miami Beach (Bentley Bay Marina) and downtown Miami. As a condition of the issuance of its BTR, Poseidon agrees to follow all applicable federal,state,and local laws(in addition to strictly adhering to those conditions set forth in its BTR) in order to operate within the City's jurisdictional limits. Consequently, the failure of Poseidon to comply with any of the conditions set forth below(and as set forth in its BTR) will result in the City issuing a notice of violation to Poseidon, which shall be subject to those enhanced penalties for any violation(s) of same, and may result in a suspension and/or revocation of Poseidon's BTR. 1) Permits: a) Poseidon shall secure all necessary approvals and permits for operation of such water ferry service from all applicable agencies involved and shall maintain all permits in active status and good standing. 2) Safety and security: a) Poseidon shall provide security personnel on the ferry at all times during operational hours; b) Poseidon shall provide shore side personnel at all times during operational hours to assist with securing the vessel, along with assisting and guiding passengers; c) Poseidon shall ensure passenger queuing lines are closely monitored and shall not obstruct pedestrian pathways along the public right-of-way. 3) Noise: a) Poseidon shall comply with applicable State and local noise ordinances at all times. 4) Signage: a) Poseidon shall install adequate directional signage for passengers upon Bentley Bay Marina's property and/or the City's right-of-way. Prior to the installation of any signage on the City's right-of-way, Poseidon must seek and obtain written approval from the City. Page 1 of 2 Page 802 of 1808 DocuSign Envelope ID.9110B9F9-BB8D-473F-A52C-FD86CA82658E 5) Operation: a) Poseidon shall communicate any changes in operating plan to the City's Transportation and Mobility Department; b) Poseidon shall report passenger statistics(number of persons boarding in Miami Beach and the City of Miami respectively) to the City's Transportation and Mobility Department on a monthly basis. It is expressly agreed that nothing contained herein shall operate as a waiver or limitation of any sights or remedies afforded to the City,whether conferred by this acknowledgment or pursuant to aw. CITY OF MIAMI BEACH, FLORIDA POSEIDON FERRY, LLC DocuSigned by: By 14+ y &waits By PM EST Jimmy L. Morales Print Name: City Manager Title: CITY OF MIAMI BEACH POSEIDON FERRY, LLC 1700 Convention Center Drive, 4th Floor 400 SE 2nd Avenue Miami Beach, Florida 33139 Miami, FL 33131 rOsADS OS ATH/JRG/MM Page 2 of 2 Page 803 of 1808 DocuSign Envelope ID 911OB9F9-8B80-473F-A52C-FD86CA82658E Attachment B RESOLUTION NO. 2019-30757 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE POTENTIAL TRAFFIC MITIGATION STRATEGIES RECOMMENDED BY THE CITY ADMINISTRATION, RECOMMENDING THAT THE ADMINISTRATION WORK WITH MIAMI-DADE COUNTY AND THE FLORIDA DEPARTMENT OF TRANSPORTATION TO DEPLOY THE POTENTIAL TRAFFIC MITIGATION STRATEGIES TO HELP REDUCE THE TRAFFIC IMPACTS OF THE "CONNECTING MIAMI" CONSTRUCTION PROJECT ON THE RESIDENTS, VISITORS, AND WORKFORCE OF THE CITY OF MIAMI BEACH; AND, REFERRING THE ITEM TO THE FINANCE AND CITYWIDE PROJECTS COMMITTEE TO MONITOR PROGRESS ON THE ISSUE AND DISCUSS RESULTS AND IMPACTS. WHEREAS, the I-395/SR 836/1-95 Project ("Connecting Miami") is a partnership between the Florida Department of Transportation (FDOT) and the Miami-Dade Expressway Authority(MDX),with construction limits on State Road(SR)836 beginning at NW 17 Avenue and continuing through the SR 836/1-395/1-95(Midtown)Interchange to the MacArthur Causeway Bridge; and WHEREAS, the Connecting Miami Project commenced in Summer 2018 and is anticipated to be completed by Fall 2023; and WHEREAS, traffic impacts during the multi-year construction project due to multiple and continuous lane and ramp closures and detours along 1-95, SR 836, and I-395 are expected to adversely affect mobility for Miami Beach residents, visitors, and workforce employees; and WHEREAS, the City Administration recommends that various traffic mitigation strategies be explored and deployed, in collaboration with FDOT and Miami-Dade County, to reduce the impact of the construction of this major project on the Miami Beach community; and WHEREAS, the traffic mitigation strategies to be explored should include, but not be limited to, the following: 1. Accelerate the implementation of the Beach Express North Bus Express Rapid Transit (BERT) Demonstration Service and Route 150 (Airport Express) modifications 2. Enhance service of the County Route "A" 3. Explore waiving tolls on the Venetian Causeway 4. Explore waterborne transportation service connecting Downtown Miami and Miami Beach; and Page 804 of 1808 DocuSign Envelope 10:911089F9-BB80473F-A52C-F786CA82558E WHEREAS, the City Commission deems it advisable to refer this item to the Finance and Citywide Projects Committee to monitor the Connecting Miami Project and discuss results and impacts. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission hereby approve the potential traffic mitigation strategies recommended by the Administration, recommend that the Administration work with Miami-Dade County and the Florida Department of Transportation to deploy the potential traffic mitigation strategies to help reduce the impact on mobility from the construction of the Connecting Miami Project on the residents, visitors, and workforce of the City of Miami Beach, and refer the item to the Finance and Citywide Projects Committee to monitor progress on the issue and discuss results and impacts. PASSED and ADOPTED this 13'''day of March, 2019. ATTEST: Dan Gelber, Mayor 3 Zs lq RaZYna o, Cit Clerk APPROVED AS TO • FORM&LANGUAGE &FOR EXECUTION City Att mey .1 Dote T:WGENOA12019103 March\Transport alion\Resolufwn Traffic.Mitigation Ek- INCOR RATED' NCH26"\ Page 805 of 1808 DocuSign Envelope ID:9110B9F9-BB8D-473F-A52C-FD86CA82658E Resolutions-R7 G MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: March 13,2019 SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE POTENTIAL TRAFFIC MITIGATION STRATEGIES RECOMMENDED BY THE CITY ADMINISTRATION, RECOMMENDING THAT THE ADMINISTRATION WORK WITH MIAMI-DADE COUNTYAND THE FLORIDA DEPARTMENT OF TRANSPORTATION TO DEPLOY THE POTENTIAL TRAFFIC MITIGATION STRATEGIES TO HELP REDUCE THE TRAFFIC IMPACTS OF THE "CONNECTING MIAMI" CONSTRUCTION PROJECT ON THE RESIDENTS, VISITORS, AND WORKFORCE OF THE CITY OF MIAMI BEACH; AND, REFERRING THE ITEM TO THE FINANCE AND CITYWIDE PROJECTS COMMITTEE TO MONITOR PROGRESS ON THE ISSUE AND DISCUSS RESULTS AND IMPACTS. RECOMMENDATION The Administration recommends that the Mayor and City Commission approve the Resolution. BACKGROUNQ The I-395/SR 836/1-95 Project ("Connecting Miami") is a partnership between the Florida Department of Transportation (FDOT) and the Miami-Dade Expressway Authority (MDX), with construction limits on State Road (SR)836 beginning at NW 17 Avenue and continuing through the SR 836/1-395/1-95(Midtown) Interchange to the MacArthur Causeway Bridge. The limits on 1-95 are from NW 8 Street to NW 29 Street Enhancements along 1-395 are from the SR 836/1-95/1-395 (Midtown) Interchange to the MacArthur Causeway, approximately 1.4 miles long. The project will completely reconstruct the existing facility and create a signature bridge that will span 1,025 feet over NE 2 Avenue and SR5/B1scayne Boulevard, redefining the Miami skyline with its six sweeping arches. The project will create additional capacity on 1-395 with a total of three (3)through lanes in each direction and provide separate connector ramps for traffic to and from 1-95. The existing 1-395 eastbound off-ramps at NE 2 Avenue will be moved west to North Miami Avenue, and the westbound on-ramps at NE 1 Avenue will be shifted to the west of North Miami Avenue. NW 2 Avenue will also be reconnected under 1-395, providing residents greater access. Page 1263 of 1418 Page 806 of 1808 DocuSign Envelope ID:911089F9-BBBD-473F-A52C-FD86CAB2658E Mobility will be enhanced for residents, commuters and tourists by increasing capacity on SR 836, 1-95 and 1-395_SR 836 wilt be double-decked to allow for a direct connection between SR 836 and 1-395. The Connecting Miami Project commenced in Summer 2018 and is anticipated to be completed by Fall 2023. Traffic impacts during the multi-year construction project due to multiple and continuous lane/ramp closures and detours along 1-95, SR 836, and 1-395 are expected to adversely affect mobility for Miami Beach residents, visitors, and workforce employees. As an example, over the three (3) year period that the FDOT Alton Road Reconstruction Project from 5 Street to Michigan Avenue was under construction (from April 2013 to March 2016), average daily traffic volumes on the MacArthur Causeway decreased by approximately 9%as compared to pre-construction volumes. In contrast, average daily traffic volumes on the Julia Tuttle Causeway increased by approximately 7%(essentially, over 10,000 additional vehicles per day on the already congested Julia Tuttle Causeway This magnitude of traffic diversion from one major arterial to another as a result of a major roadway reconstruction project is not uncommon as these types of projects are known to effectuate changes in traffic patterns not only temporarily during construction, but sometimes permanently even after construction is over. ANALYSIS The City of Miami Beach is concerned with the potential effects of the multi-year construction of the Connecting Miami Project and recommends that various traffic mitigation strategies be explored and deployed to ensure mobility for residents, visitors, and workforce employees during the construction of this major project. The traffic mitigation strategies to be explored should include, but not be limited to, the following: 1. Accelerate the implementation of the Beach Express North Bus Express Rapid Transit (BERT)Demonstration Service or Route 150(Airport Express)Modifications. The Miami-Dade County Strategic Miami Area Rapid Transit (SMART) Plan contains six (6) Rapid Transit Corridors and nine (9) Bus Express Rapid Transit (BERT) routes for Miami- Dade County. BERT service consists of enhanced branded buses operating limited stop service on shoulders or dedicated transit lanes, where feasible, to reduce travel time and help ensure service schedule reliability. Advancing the BERT routes to Miami Beach could help mitigate the impacts of the Connecting Miami projects. There are three (3) BERT routes that are proposed to connect the mainland to Miami Beach. The Beach Express North BERT route will run from Golden Glades Multimodal Center to the Miami Beach City Center area via the Julia Tuttle Causeway. The Beach Express Central BERT route will run from the Miami Civic Center;'Heaith District complex to the Miami Beach City Center area via the Julia Tittle Causeway. The Beach Express South BERT route will run from Downtown Miami to the Miami Beach City Center area via the MacArthur Causeway. Page 1264 of 1418 Page 807 of 1808 DocuSign Envelope ID 9110B9F9-BB8D-473F•A52C-FD86CA82658F Via a Resolution of the City Commission, the City of Miami Beach allocated funding in the amount of $5.1 million for a 3-year Beach Express North BERT demonstration service using the shoulders of the Julia Tuttle Causeway. The Citys contribution is equally matched by FDOT funds for the demonstration service. As of December 5, 2018, FDOT has programmed funds for the design and construction of the inside shoulders modifications needed to operate the BERT service on the Julia Tuttle Causeway by 2022. A goal of all parties is to work toward implementation prior to the estimated 2022 completion date. Additionally, the Administration is working with the County to potentially modify existing bus routes (such as the Airport Express (Route 150)) to provide a connection to the Eariington Heights Metrorall station(providing access to commuters from northwest Miami-Dade and west Broward)and stop at Mt. Sinai and Fontainebleau, as an interim service enhancement The goal is to implement the interim service as part of the Countys new service line-up in November 2019. Advancing a modified Route 150 could also help mitigate the traffic impacts of the Connecting Miami Project. 2. Enhance service of the County Route"A" The original Route A operated along the Venetian Causeway connecting Omni Station in Miami and Washington Avenue/Lincoln Road area in Miami Beach. As a result of weight restrictions imposed by the County on the Venetian Causeway bridges in 2014, the route and service plan was modified and currently consists of limited service between Omni Station and Sunset Harbour using smaller vehicles (cutaways), operating on a limited schedule of 7.5 hours per day(7:00AM to 9:32AM and 2:00PM to 6:52PM). On a long term basis, the Countys plan is to reestablish the original Route A service plan when all the Venetian Causeway bridges are reconstructed and allow for operation of regular bus service. In the meanwhile, the County does not have any plans for enhancing the current service. Route A service enhancement was most recently discussed by the City Commission in February 2018 and a Resolution was adopted by the City Commission urging Miami-Dade County to reinstate, at no cost to the City of Miami Beach, the original Route A service plan; however, no service improvements have been made by the County. Enhancing the Route A service could be a potential traffic mitigation strategy. Based on an previous analysis conducted by staff in coordination with the County, the incremental cost of restoring the original Route A service plan would be approximately $230,000/year for approximately 11 hours of service per day from Monday to Sunday. 3. Explore waiving tolls on the Venetian Causeway During previous construction projects on the Citys causeways,at the request of the City, Miami- Dade County has waived toll collection along the Venetian Causeway. This initiative has been put into effect to improve capacity and mobility between Miami Beach and the mainland. Waiving tolls on the Venetian Causeway can assist in reducing traffic demand on the MacArthur Causeway which will be affected by the Connecting Miami Project Further, this initiative could help balance traffic volumes along the other causeways into the City and reduce the overall Page 1265 of 1416 Page 808 of 1808 DocuSign Envelope ID 911D89F9-1188D-473F-A52C-FD86CA82658E impact of the project. This measure would require prior approval by the Miami-Dade Board of County Commissioners, thus, coordination with Miami-Dade County would be required if this option is explored. 4. Explore waterborne transportation service connecting Downtown Miami and Miami Beach The City's most recent solicitation for waterborne transportation services was issued in 2014 and resulted in only one (1) operator (Water Taxi Miami, Inc.) submitting a bid and ultimately operating a one (1) year water taxi pilot program from December 30, 2016 to December 30, 2017, connecting the Purdy Avenue Dock, Sea Isle Marina, Bayside Marketplace, and Miami Beach Marina. The original solicitation stipulated that the water taxi services shall be provided at no cost to the City and for the operator to provide necessary infrastructure for the safe operation, including docking facility,of the service. The water taxi pilot program with Water Taxi Miami was terminated on December 30, 2017 and for various reasons, the pilot was not deemed to be a practical,competitive,reliable, convenient,or financially viable operation. A temporary water taxi service operating between Miami and Miami Beach could potentially help mitigate the traffic impacts of the Connecting Miami Project. The same docks used during the City's previous water taxi pilot program could be used for the temporary service. Establishing a reliable water taxi service, albeit as a temporary traffic mitigation strategy,would likely require an operating subsidy. Moreover, given a water taxi service would need to connect the cities of Miami Beach and Miami, it is recommended that this option be explored in collaboration with Miami-Dade County and current water taxi operators. Active WorkZone Traffic Monitor_ing_an Management As part of the Connecting Miami Project, FDOT will deploy Active Work Zone Traffic Monitoring and Management services along the affected project corridors. This initiative consists of deploying cameras to monitor traffic conditions, wi-filBluetooth devices to gauge travel time, Variable Message Signs to disseminate real-time information on closures and incidents to the motoring public, and Road Rangers to help clear incidents blocking travel lanes. This effort will be managed by FOOT SunGuide Traffic Management Center and the same contractor that has been providing Traffic Monitoring and Management Services for the City of Miami Beach for over 4 years. This initiative was utilized during the Alton Road Reconstruction Project between 5 Street and N. Michigan Avenue and proved to be successful in reducing some of the congestion created by the lane closures and detours. The implementation of Active Work Zone Traffic Monitoring and Management for the FDOT Connecting Miami Project would extend the capabilities of the City's current Traffic Monitoring and Management effort and planned Intelligent Transportation System and Smart Parking System Project by enhancing the sharing of real-time traffic information, traffic data, incident information, and other relevant items to assist in managing congestion and help reduce spill-back onto City roads. CONCLUSiOi' The construction of the $800 million Connecting Miami Project currently being undertaken in a partnership between FDOT and MDX is expected to have a significant impact on mobility for Page 1266 of 1418 Page 809 of 1808 DocuSrgn Envelope ID-911 OB9F9-BB8D-473F-A52C-F086CA82658E Miami Beach residents,visitors, and workforce employees due to multi-year lane closures, ramp closures,and detours on 1-95, 1-395,and SR 836. The City is concerned with the anticipated impacts to mobility during project construction and believes that the implementation of traffic mitigation strategies in collaboration with FDOT and the County is essential to reduce the impact of the project on the Miami Beach community. KEY INTENDED O Ta COMES SIJ_pp_ORTED. Ensure Comprehensive Mobility Addressing All Modes Throughout The City Legislative Tracking Transportation Sponsor Commissioner Mark Samuelian ATTACHMENTS: Description o Resolution Page 1267 of 1418 Page 810 of 1808