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HomeMy WebLinkAbout12102012 City Council Laydowns.0 L"-t". cy� � � -q , o CA,vj CesvrCui� 2012 FIRE STATION RENOVATION CONSTRUCTION AGREEMENT BETWEEN: and BETWEEN THE CITY OF SEWARD AND C.A.P Construction LLC CITY OF SEWARD, ALASKA THE ("CITY") Post Office Box 167 Seward, Alaska 99664 Phone:907-224-3445 Fax: 907-224-8633 C.A.P Construction LLC ("C.A.P.") Post Office Box 2722 Seward, Alaska 99664 Phone 907-362-1742 The City and C.A.P. Construction LLC agree as follows: SCOPE OF WORK C.A.P. Construction LLC shall furnish all materials, labor and equipment necessary for the design, purchase, installation for 2012 Fire Station Renovation of laundrylbath kitchen/hallway apartment bathroom and apparatus bay lighting as described in the Invitation for Proposals and' the specifications pertaining thereto. TERM C.A.P. agrees to commence the Scope of Work of this Agreement within thirty (30) days from execution of this Agreement. Work shall be complete within 90 days. DELIVERY C.A.P. shall deliver all materials and perform all labor and services necessary to complete the Scope of Work in Seward, Alaska, as specified in the Invitation for Proposals and Addendums to Bid. C.A.P. is expressly allocated the risk of any loss associated with the delivery of materials including injury to third parties until the City takes possession. CONTRACT PRICE The price of the contract is in the amount of $71,373.00) Following receipt of periodic invoices from A.P., the City agrees to -pay C.A.P. the amounts as set forth in the Bid for Work actually delivered, completed, and accepted by the City. 2012 Fire Station Renovation Project Pagel of 5 November 2012 PRIORITY OF CONTRACT DOCUMENTS The documents below are referred to as the "Contract Documents" and are listed in order of priority in the event of conflict, errors or discrepancies and by this reference made a part of this Agreement: This Agreement. 2. City of Seward Invitation for Proposals. Specifications — 2012 Fire Station Renovation Project 4. Information to Bidders and Addendums 5. General Conditions 6. Proposal dated November 13, 2012 MATERIALS AND WORKMANSHIP All materials furnished by C.A.P. shall be new and suitable for the intended purposes. CHANGE ORDERS No changes or substitutions shall bemade in the Scope of Work without prior written authorization by the City, approved by the City Manager or his designee ("Change Order"). Requests for Change Orders shall be reviewed promptly upon receipt. Adjustments, if any, to the contract price shall be. negotiated by the undersigned or other person designated in writing on behalf of the parties and agreed to in advance in writing. SUBCONTRACTORS / THIRD PARTIES C.A.P. shall be as fully responsible for the acts or omissions of its subcontractors and of persons either directly or indirectly employed by them as for the acts or omissions of persons directly employed by C.A.P. Nothing contained in this Agreement. shall create any contractual relationship between the City and any subcontractor. It is specifically understood between the parties that this Agreement does not make anyone a third party beneficiary, nor does this Agreement authorize anyone not an authorized party to maintain a lawsuit for personal injuries or property damage. THE CITY'S RIGHT OF INSPECTION The City, or its agents may, at any time during regular hours of operation, inspect the Scope of Work and services provided under this Agreement. Such inspections are solely for the benefit of the City and not for any third person. The exercise by the City or an agent acting on behalf of the City, of its rights under this paragraph, shall not imply any obligation to inspect nor an obligation to inspect in any particular manner. The City reserves the right to refuse any damaged or unusable Work or materials not of equal or better quality than stated in the specifications in the Contract Documents. 2012 Fire Station Renovation Project Page 2 of 5 November 2012 AMENDMENT This Agreement shall only be amended, modified or changed in writing, signed executed by an authorized representative of each of the parties. JURISDICTION, CHOICE OF LAW The law of the State of Alaska shall govern the rights and obligations of the parties and interpretation of this Agreement. Venue for any legal actions arising from this Agreement shall be in Anchorage, Alaska. COMPLIANCE WITH LAWS C.A.P. shall obtain, at its own expense, all necessary permits, rights -of -way or other consents from all governmental agencies and ' shall comply with all applicable federal, State and local laws, statutes, regulations and ordinances. Attached are., insurance certificates, contractor's license and bonding information. DEFAULT, REMEDIES, LIQUIDATED DAMAGES C.A.P.'s.failure to comply with any representation or warranty made in this Agreement or the proposal dated November 13, 2012, shall be considered an event of default. In addition, C,A.P.'s failure to perform any other term, covenant or agreement contained in any of the Contract Documents shall be considered an event of default. An event of default by C.A.P. and its refusal or inability to cure or diligently pursue a cure within the time authorized by the City, shall give the City the right, but not the obligation, to procure services and materials from another source (with any difference in cost to be paid by C.A.P.) or to terminate this Agreement upon ten (10) days written notice to C.A.P. The City, upon termination of this Agreement, shall have the right but not the obligation to accept performance of the Scope of Work up to the date of termination. Upon termination as a result of C.A.P.'s breach, the City shall be entitled to a full refund of all amounts paid under this Agreement provided that in the event that the City exercises its ability to accept the Work, as completed to the date of termination, the City shall pay C.A.P. for the Scope of Work completed to such date to the extent that such Work conforms to this Agreement. Amounts owed to either party pursuant to this paragraph may be offset. The City shall be entitled to liquidated damages in the amount of $250 per day for each day the Work is not completed after 90 days. The parties agree that actual damages are impossible to calculate, and this amount is a reasonable estimate for damages to the City caused by delay. Remedies described herein are not exclusive and the City retains all other rights and remedies at law or in equity. TIMELINESS Time is of the essence for this Agreement. REPAIR OF DAMAGES CAUSED BY C.A.P. CONSTRUCTION LLC All damage and injury to property that is caused by, or that results from performance of the Scope of Work by, or from any act, omission or neglect by C.A.P., its subcontractors or its employees, shall promptly be remedied by C.A.P. either by repairing, rebuilding or replacing the property damaged or in some other manner satisfactory to the City and to the owner of such property. In case of failure on the 2012 Fire Station Renovation Project Page 3 of 5 . November 2012 part of C.A.P. to promptly and satisfactorily remedy such damage or injury, the City may proceed to repair, rebuild or replace such property as required and the cost thereof will be deducted from any monies due or which may become due to C.A.P. In applying the above provisions, the repairing, rebuilding or replacing of damaged property shall be understood to include the providing of temporary facilities that may be needed to maintain normal service until the required repairing, rebuilding or replacing is accomplished. Restoration of damaged property includes removal of contaminated water or soil, remediation to the extent required by any State or federal environmental law, regulation, or order of an agency having jurisdiction over a release of a contaminant or hazardous substance. RELEASE, INDEMNIFICATION AND INSURANCE C.A.P. agrees to release, indemnify, defend and hold harmless the City, its officers, agents and employees from and against any and all claims, demands, losses, defense costs or liability of any kind or nature, including environmental liability, which the City, its officers, agents and employees may sustain or incur or which may be imposed upon them or injury to or death of persons or damage to property as a result of, arising out of or in any mariner connected with C.A.P.'s performance under the terms of this Agreement, excepting only liability arising out of the sole, gross negligence of the City. Without limiting C.A.P.'s obligations stated above in this paragraph, it is agreed that C.A.P. shall maintain in force, at all times, during the performance of this Agreement the following policies of insurance, with deductibles acceptable to the City, covering its operations: Insurance Minimum Limits Comprehensive General Liability As required by statute Worker's Compensation/Employer Liability As required by statute Automobile Liability - Covering bodily injury and property damage, including all owned, hired and non -owned vehicles. As required by statute C.A.P. shall procure insurance for full replacement value and to adequately insure against the loss of or damage to materials during shipment and at all times in C.A.P.'s possession. Costs of shipping and other insurance are covered by the contract price. C.A.P.'s insurance policies shall contain the following clauses: 1. The City, its officers, employees and volunteers are added as additional insured for operations of the named insured performed under contract with the City. 2. Any insurance maintained by the City shall apply in excess of, and not contribute with, insurance provided by C.A.P. 3. All insurance policies required by this Agreement shall contain a clause that the insurance shall not be canceled, limited, non -renewed, or otherwise materially changed without thirty (30) days 2012 Fire Station Renovation Project Page 4 of 5 November 2012 Z part of C.A.P. to promptly and satisfactorily remedy such damage or injury, the City may proceed to.- repair, rebuild or replace such property as required and the cost thereof will be deducted from an); monies due or which may become due to C.A.P. In applying the above provisions, the repairing, rebuilding or replacing of damaged property shall be understood to include the providing of temporary facilities that may be needed to maintain normal service until the required repairing, rebuilding or replacing is accomplished. Restoration of damaged property includes removal of contaminated water or soil, remediation to the extent required by any State or federal environmental law, regulation, or order of an agency having jurisdiction over a release of a contaminant or hazardous substance. RELEASE, INDEMNIFICATION AND INSURANCE C.A.P. agrees to release, indemnify, defend and hold harmless the City, its officers, agents and employees from and against -any and all claims, demands, losses, defense costs or liability of any kind or nature, including environmental liability, which the City, its officers, agents and employees may sustain or incur or which may be imposed upon them or injury to or death of persons or damage to property as a result of, arising out of or in any manner connected with C.A.P.'s performance under the terms of this Agreement, excepting only liability arising out of the sole, gross negligence of the City. Without limiting C.A.P.'s obligations stated above in this paragraph, it is agreed that C.A.P. shall maintain in force, at all times, during the performance of this Agreement the following policies of insurance, with deductibles acceptable to. the City, covering its operations: Insurance Minimum Limits - Comprehensive General Liability $2 Million combined limit each occurrence Worker's Compensation/Employer Liability As required by statute Automobile Liability - Covering bodily injury and $1 Million combined limit per accident property damage, including all owned, hired and n-owned vehicles. ; i 1=Liabili �r ---Bering all�error�s, - �` $-2-Mi•l'.1•ion�ccurrence/aggregate �sions; erglige�iaGts-ink rmanc Agreement. b4je ices under this C.A.P. shall procure insurance for full replacement value and to adequately insure against the loss of or damage to materials during shipment and at all times in C.A.P.'s possession. Costs of shipping and other insurance are covered by the contract price. C.A.P.'s insurance policies shall contain the following clauses: 1. The City, its officers, employees and volunteers are added as additional insured for operations of the named insured performed under contract with the City. 2012 Fire StationdRenovation Project Page 4 of 6 November 2012 prior written notice delivered to the City. 4. All policies shall be written by insurance companies legally authorized_ or licensed to do business in the State of Alaska and acceptable to the City. 5. C.A.P. shall furnish to the City, certificates evidencing that it has procured the insurance required herein prior to commencement of the contract term. 6. All of the insurance -policies described above shall provide that the insurers waive rights of subrogation against the City, its officers, agents and employees. ASSIGNMENT PROHIBITED Any assignment by C.A.P. of its interest or responsibilities in any part of this Agreement or any delegation of duties under this Agreement shall be void and any attempt by C.A.P. to assign any part of its interest or delegate duties under this Agreement shall give the City the right to terminate :this Agreement immediately. This Agreement is entered into and effective when executed by both parties. CITY OF SEWARD, ALASKA James Hunt, City Manager DATE: ATTEST: Johanna Kinney, CMC, City Clerk Date: (City Seal) C.A.P. Construction LLC By: Its: DATE: 2012 Fire Station Renovation Project Page 5 of 5 November 2012 City of Seward 2012 FIRE STATION RENOVATION PROJECT COMPANY NAME:, MAILING ADDRESS: PHONE CONTACT(S): CONTACT NAME: <27!& email ADDRESS: C'a'4 — ak-o 1 A B C D 2 3 GRADING.'SCHEDULE COMMENT OR INFORMATION ON PROPOSAL POINTS TOTAL PROPOSAL PRICE Maximum 5 points $ COMPLETE PROJECT PROPOSAL Maximum 5 points for each area/ 20 possible total Proposal meets expected project outcome Project design drawings submitted Project cost for each area 1-4 Estimated start & completion date Statement of qualifications Maximum 10 points Contractor is licensed & bonded Maximum 10 points 4 ,Litigation Hostory Maximum 5 points MAXIMUM.TOTAL POINTS 50 TOTAL POINTS FOR THIS PROPOSAL COMMENTS: �Lt/Gli'� NAME OF PERSON SCORING:IV Date. Sign 4 City of Seward 2012 FIRE STATION RENOVATION PROJECT COMPANY NAME:��} MAILING ADDRESS: PHONE CONTACT(S): , CONTACTNAME:, email ADDRESS: DING SCHEDULE COMMENT OR INFORMATION ON PROPOSAL POINTS POSAL PRICE rMaximumpoints $¢ 100 PROJECT PROPOSAL Maximum 5 points for each area/ 20 possible total Proposal meets expected project outcome I Project design drawings submitted y Project cost for each area, 1-4 i Estimated start & completion date f -$ ,,zp / Statement of qualifications Maximum 10' points Contractor is licensed & bonded Maximum 10 points Litigation Hostory Maximum 5 points MAXIMUM TOTAL POINTS 50 TOTAL POINTS FOR THIS PROPOSAL COMMENTS:: NAME OF PERSON SCORING: Sign m 1 0'. Date City of Seward COMPANY NAME: MAILING ADDRESS 2012 FIRE STATION RENOVATION PROJECT n n PHONE CONTACT(S): CONTACT NAME: C email ADDRESS: GRADING SCHEDULE COMMENT OR INFORMATION ON PROPOSAL POINTS TOTAL PROPOSAL PRICE $ -017300 Maximum 5 points 1, COMPLETE PROJECT PROPOSAL Maximum 5 points for each area/ 20 possible total Proposal meets expected project k outcome , 3 Project design drawings submitted Project cost for each area 1-4 Estimated start & completion date— Statement of qualifications Maximum 10 points Contractor is licensed & bonded Maximum 10 points Litigation Hostory Maximum 5 points MAXIMUM TOTAL POINTS 50 TOTAL POINTS FOR THIS PROPOSAL OMMENTS:: fA P � G,n�.✓a, -.� �s �g.r � �..r�A I rEa �l c e` bY�l�er �oc..>�Tj� ; :;,. ``�.../o a,��e� � NAME OF PERSON SCORING: --ZCJ X City of Seward 2012 FIRE STATION RENOVATION PROJECT 3 COMPANY NAME:�Y�� �•Z��rr,�>L� MAILING ADDRESS: 14 Q+ SOY- ,/Kp SQ PHONE CONTACT S): —71 VS CONTACT NAME: email ADDRESS: GRADING SCHEDULE COMMENT OR INFORMATION ON PROPOSAL POINTS TOTAL PROPOSAL PRICE $ Maximum 5 points 1 COMPLETE PROJECT PROPOSAL Maximum 5 Proposal meets expected project A outcome B Project design drawings submitted C Project cost for each area 1-4 D Estimated start & completion date for each area/ 20 possible total 2Statement of qualifications Maximum 10 points 3 Contractor is licensed & bonded Maximum 10 points 4 Litigation Hostory Maximum 5 points MAXIMUM TOTAL POINTS 50 COMMENTS: + NAME OF PERSON SCORING: mom —RU ,�.� •- 1 City of Seward 2012 FIRE STATION RENOVATION PROJECT COMPANY NAME: MAILING ADDRESS: PHONE CONTACT(S):" CONTACT NAME: email ADDRESS: �G,i.,J, tY"r^� &S an CYO GRADING SCHEDULE COMMENT OR INFORMATION ON PROPOSAL POINTS TOTAL PROPOSAL PRICE Maximum 5 points $ Cl19 c 'f 1 COMPLETE PROJECT PROPOSAL Maximum 5 points for each area/ 20 possible total - Prop )sal meets expected project k outcome 3 Project design drawings submitted 24c Project cost for each area 1-4 Estimated start & completion date Statement of qualifications . Maximum 10 points 1- Contractor is licensed & bonded Maximum 10 points Litigation Hostory Maximum 5 points MAXIMUM TOTAL POINTS 50 TOTAL POINTS FOR THIS PROPOSAL NAME OF PERSON SCORING: ' 1"-\ " i J ski x .a r� t ► a� , �. I , City of Seward 2012 FIRE STATION RENOVATION PROJECT COMPANY NAME: MAILING ADDRESS: PHONE CONTACTS : Z Ll — �( CONTACT NAME: L email ADDRESS: GRADING SCHEDULE COMMENT OR INFORMATION.ON.PROPOSAL POINTS TOTAL PROPOSAL PRICE $ Maximum 5 points i I COMPLETE PROJECT PROPOSAL Maximum 5 points for each area/ 20 possible total Proposal meets expected project . outcome s— i Project design drawings submitted Project cost for each. area 1-4 s Estimated start & completion date Statement of qualifications Maximum 10 points /U Contractor is licensed $ bonded Maximum 10 points Ad Litigation Hostory Maximum 5 points MAXIMUM TOTAL POINTS 50 TOTAL POINTS FOR THIS PROPOSAL COMMENTS: r Sc&-Ae ao I Iles' �,.. ev !ti: e� i iS �n 7 . woV ►» a rt'l r 6.. Ge. 5 ; W a ,� 1, e = -s'G' . yr s P cvY''c�l �l12 s E NAME OF PERSON SCORING: <-k As Date Sign Seward City Council December 10, 2012 do PROJECT UPDATE Friendship Mural ,Gift/City of Seward to Sister City Obihiro Japan 1. Design selection (attached) created by Master Artist Justine Pechuzal 2. Site Selection in Obihiro - Obihiro Zoo 3. City of Obihiro will expend $30,000.00 for site preparation (work has began) 4. Obihiro officials on notice for fall completion and dedication (dates not yet firm) 5. Extensive committee work by Seward Mural Society beginning in 2010. Completed tasks and on -going development by Seward Mural- Society: (Concise supply list development, extensive shipping of supply research, promotion, delegation selection process) 6. Replica mural created at Seward Music and Arts Festival 2012. Placement on Marina Motel 20.13 7. Funding of Budget slated for January 14, 20.13 Council Meeting Un-finalized budget attached a Al - I PRELIMINARY BUDGET: Supplies . $29400 Long sleeve T-Shirts $1,500 Shipping $109000 We are looking into alternative ways to procure materials Customs fees $ Artist fee $59000 Airfare $169000 $2K X S delegates Hotel $ This needs to be clarified with Josh (International relations) and Hiroko Aoki (Chief Manager, obihiro). ®bihiro may pay for this. l`vl'° (IV SEWARD NORDIC SKI CLUB PROPOSAL WHO ARE WE? The Seward Nordic Ski Club (SNSC) is a 501(3)c nonprofit club dedicated to promoting recreational and competitive Nordic skiing in the Seward and Moose Pass areas. Our membership varies from year-to-year, but typically ranges from 125-150 members of all ages, making it Seward's largest recreational club. HOW ARE WE ORGANIZED? Club Bylaws mandate a Board of Directors of 9-13 members be elected annually from the general membership. Our current officers and Board members are: VOLUNTEER GROOMING TEAM Andy Wilder John Shank Herb Wottlin Tom Gillespie 1) Duane Chase: President 6) Bob Barnwell 2) Ann Ghicadus: Vice President 7) Mark Luttrell 3) Jenn Haugh: Secretary 8) Dennis Perry 4) Heather Shank: Treasurer 9) Linda Lasota 5) nnaryiynn Barnweii iO) Marc Swanson WHAT DO WE DO? Terry Federer Dan Walker Jason Aigeidinger (Moose Pass) 1) Purchase and maintain equipment for grooming the Trail River Camp Ground, Mile 12, Bear Lake, Exit Glacier Road and Seward High School 2) Conduct an annual membership drive and social 3) Conduct an annual Gear and Ski Swap 4) Purchase, maintain and rent skiing equipment 5) Support the HS and MS Ski teams, including hosting meets at Mile 12 6) Conduct an annual July 3rd Pasta Feed (Mt Marathon Race) 7) Conduct waxing and skiing clinics 8) Organize an annual New Years Eve Luminary Ski at Mile 12 DO WE HAVE A BUDGET? Our budget for 2012-2013 is $14,800. Some years, when we have purchased new equipment, it has been as high as $26,000.Our main sources of income include annual membership fees, corporate sponsorships, ski rentals, pasta feed, gear swap, grants and donations (including from the City of Seward). LOOKING TO THE FUTURE....... Currently, SNSC feels it is doing an adequate job meeting local needs, but our ability to draw skiers from a wider community (such as Soldotna and Anchorage), for example, would be greatly increased with one additional piece of equipment, namely a Pisten Bully or Snow Cat, capable of plowing, widening and conditioning our present trails, especially Mile 12. (see attached letter). Drawing more skiers to Seward could also help the local economy. A new Snow Cat could cost as much as $150,000, but a decent used machine would be much less. Currently, the City of Valdez has money for a new a groomer in it's proposed budget. This means it will be replacing and putting up for sale one of their present groomers (see attached photo) as surplus equipment on the open market....the City of Valdez grooms trails for local use, Seward depends on volunteers. SNSC is very interested in acquiring this particular groomer, but currently does not have the means to do so. This is where the City of Seward may be able to help us PROPOSAL Our proposal, then, comes in the form of a request-------- that the City of Seward consider sending a formal resolution to the City Council of Valdez requesting that the City of Seward be given first priority on the sale of the above mentioned groomer. Assuming the City of Valdez approves the -budget request for a new groomer, the surplus groomer will go up for sale in January. If "we" are successful in acquiring this groomer, the SNSC is prepared to work out any subsequent arrangements with the City of Seward for it's use as a community asset. Respectfully submitted on behalf of the SNSC, Duane Chase, President, SNSC 224-3261(H), 362-7634 (C), 224-2874 (0) Additional Note: I approached Ron Long a couple of months ago and he agreed to check into the possibility of coordinating something with Valdez....no promises made .... but given the limited time frame left, I have decided to include the City Council, in case further action might be needed. Dear Seward Nordic Ski Club, Thanks so much for everything you do. We would like to request that this donation be used to begin a separate fund dedicated to the future repair or purchase of a pisten bully. As you know, we have always seen Nordic skiing as a great way to boost the overall health, appreciation of the outdoors, and sense of community in Seward. We are also convinced that Seward is an ideal location for Nordic skiing that is only beginning to reach its full potential. The heavy snowpack and mild temperatures could make Seward a uniquely great Southcentral Alaska skiing destination, especially during our common cold spells in January through March- when subzero temps make skiing conditions unfavorable north of the Kenai Peninsula. In fact, we envision that Nordic skiing could play a prominent dart in boosting Seward's winter economy. After being in Anchorage for a few years, we have seen that the large and passionate Nordic skiing community is very interested in exploring other parts of the state. It is amazing to us that skiers are willing to drive right past Seward and continue to Homer for a weekend ski trip. In that way, we also see that the City of Seward and the business community might take an interest in advancing quality groomed skiing. A pisten bully is simply critical to manage the heavy snowfall and freeze/thaw conditions in Seward. We have observed how amazing these machines are at turning both heavy, sloppy snow and bulletproof, re -frozen ice into a perfect ski surface. It is our hope that, with a little promotion and networking, more businesses and community members might be interesting in contributing to a pisten bully fund. Feel free to circulate this letter for promotional purposes, if you'd like. See you on the ski trails! Sincerely, Ray and Julie Robinson y n iii an +. - ... ���www ..:R „'� ?" ♦. ,a'� _� —'rf#, S - .. ys�. , t :' w 6 Ballot Measure 2 &-fy 0,00NCJL CRUISE SHIP TAXATION, REGULATION AND DISCLOSURE accommodations in the state's marine water Sec. 43.52.020. Rate of tax. The tax imposed by AS 43.52.010 - 4152.095 is levied at a rate of $46 a passenger per voyage. Sec. 43.52.030. Liability for payment of tax. A passenger traveling on a commercial passenger vessel providing overnight accommodations in state marine water is liable for the tax imposed by AS 43.52.010 -- 43.52.095. The tax shall be collected and is due and payable to the depart- ment (1) by the person who provides travel aboard a commercial vessel for which the tax is payable; and (2) in the manner and at the times required by the department by regulation. Sec. 43.52.040. Disposition of receipts. (a) The proceeds from the tax on travel on commercial passenger vessels providing overnight accommodations in the state's marine water shall be deposited in a 'special "Commercial Vessel -Passenger Tax Account" in the general fund. The legislature may appropri- ate money from this account for the purposes described in (b) and (c) of this section, for state- owned port and harbor facilities, other services to properly provide for vessel or watercraft vis- its, to enhance the safety and efficiency of interstate and foreign commerce and such other lawful purposes as determined by the legisla- ture. (b) For each voyage of a commercial passenger, vessel providing overnight accommodations, the commissioner shall identify the first five ports of call in the state and the number of pas- sengers on board the vessel at each port of call. Subject to appropriation by the legislature, the commissioner shall distribute to each port of call $5 per passenger of the tax revenue col- lected from the tax levied under this chapter. If the port of call is a city located within a borough not otherwise unified with the borough, the commissioner shall, subject to appropriation by the legislature, distribute $2.50 per passenger to the city and $2.50 to the borough. Each port of call receiving funds under this section shall use the funds in a manner calculated to improve port and harbor facilities and other services to properly provide for vessel or water craft visits I jand to _ enhance the safety and efficiency of interstate and foreign commerce. s(c) A "Regional Cruise Ship Impact Fund" con- isting of 25% of the proceeds from the tax on travel aboard commercial passenger vessels providing overnight accommodations in the state's marine water shall be established as sub -account of the funds established in (a), above, and deposited in the general fund. Subject to appropriation by the legislature and regulations adopted by the Department of .. evenue, the commissioner shall distribute funds to municipalities or other governmental entities within the Prince William Sound Region, Southeast Alaska or any other distinctive region impacted by cruise ship related tourism activi- ties but not entitled to receive funds based on port of call visitation as allowed by (b), above, provided that any funds used from this account shall be used to provide services and infrastruc- ture directly related to passenger vessel or water craft visits or to enhance the safety and efficiency of interstate and foreign commerce related to vessel or water craft activities. Sec. 43.52.050. Administration. (a) The department shall (1) administer this chapter; and (2) collect, supervise, and enforce the collec- tion of taxes due under this chapter and penal- ties as provided in AS 43.05. (b) The department may adopt regulations necessary for the administration of this chapter. Sec. 43.52.060. Local levies. Any municipality, whether home rule or general law, that receives passenger ship. fee funds under this chapter may not impose an additional form of tax on travel on commercial passenger vessels engaged in activities involving overnight accommodations for passengers in state marine waters. Any form of tax on travel on commercial passenger vessels engaged in activities involy- ing overnight accommodations for passengers in state .marine waters enacted by a municipal- ity,. whether home rule or general law, prior to the effective date of this legislation shall expire one year after enactment of this law if that municipality elects to receive funds under this chapter. 14 The text of this bill is presented as submitted by petition sponsors. BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... Page 1 of 10 M 'dif � FOR LEGAL PROFESSIONALS L United States Court of Appeals,Second Circuit. BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPORT PORT AUTHORITY BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY, Frank C. Zahradka, and D & D Wholesale Flowers, Inc., Plaintiffs -Appellees, v. BRIDGEPORT PORT AUTHORITY, Defendant -Appellant. Docket No. 08-3886-cv. -- May 29, 2009 Before: NEWMAN and SACK, Circuit Judges.* Timothy F. Noelker, St. Louis, Mo., (James W. Erwin, Ryan K. Manger, Thompson Coburn LLP, St. Louis, Mo.; Richard L. Rose, Everett E. Newton, Murtha Cullina LLP, Stamford, Conn., on the brief), for Defendant-Appellant.Martin Domb, New York, N.Y. (Jeremy A. Shure, Jordan M. Smith, Akerman Senierfitt LLP, New York, N.Y.; Jonathan S. Bowman, Stewart I..Edelstein, Cohen and Wolf, P.C., Bridgeport, Conn., on the brief), for Plaintiffs-Appellees.(Steven E. Bers, Whiteford, Taylor & Preston LLP; Baltimore, Md. for amicus curiae Nat'l Ass'n of Passenger Vessel Owners, Inc., in support of Plaintiffs - Appellees.) This appeal concerns the constitutionality of a fee imposed on passengers traveling by ferry from Bridgeport, Connecticut, across Long Island Sound to Port Jefferson, New York. The fee is alleged to violate the Commerce Clause, the constitutional right to -travel, and the rarely litigated Tonnage Clause, as well as federal and state statutes. The Defendant - Appellant Bridgeport Port Authority (`BPA") appeals from the July 8, 2008, judgment of the District Court for the District of Connecticut (Christopher F. Droney, District Judge), in a suit brought by the Plaintiffs -Appellees Bridgeport & Port Jefferson Steamboat Company (the "Ferry Company"), D & D Wholesale Flowers, Inc. ("D & D"), and Frank Zahradka. Greg Rose; the owner of D & D, and Zahradka are regular ferry passengers. The r BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... , Page 2 of 10 judgment declared the fee unconstitutional under both the Commerce Clause and the Tonnage Clause, enjoined its collection, and awarded nominal damages to the Ferry Company and modest damages to D & D. We affirm. Background The BPA. The BPA is a quasi -public entity created in 1993, pursuant to a state statute that authorizes Bridgeport to -establish a port authority, see Conn. Gen.Stat..§ 7-329a, and the City of Bridgeport Municipal Code. The Municipal Code gives broad definition to the BPA's purposes, which include "to foster and stimulate the shipment of freight and commerce through the ports," "to develop and promote port facilities with the district in order to create jobs, increase the city's tax base and provide special revenues to the city," and to work with the City "to maximize the usefulness of available public funding." The BPA's independent auditors' report also describes the BPA's purposes broadly, including "to develop strategies and initiatives to promote and create port facilities within the district, [and] participate_ in the economic development of the harbor and waterfront areas." The BPA has jurisdiction over a geographic area known as the Port District. The Port District extends approximately 1,000 feet inland from the waterways of Bridgeport Harbor, Black Rock Harbor, and their navigable waters and tributaries, excluding residential property and park lands. The BPA also has jurisdiction over certain lands outside the 1,000-foot limit. Located within the Port District are the Water Street Dock (the "Dock"), the Cilco Shipping Terminal, the 50-acre Steel Point Peninsula, and the 48-acre Bridgeport Regional Maritime Complex (`BRMC"), which includes the Derecktor Shipyard. The BPA is directed by a five -member Board of Commissioners, three of whom are appointed by the mayor of Bridgeport and two of whom serve by virtue of their positions as the City's Director of Economic Development and Harbor Master. The BPA is managed by an executive director and staff. When the BPA was created in 1993, the City of Bridgeport transferred control over the Dock to the BPA under a property management agreement. The Dock facilities were in very poor condition prior to the BPA's existence. The Harbor Master at the time described them as "deplorable"; "[t]he dock was just a [mishmash] of steel plates over various holes, rotted timbers. At night, . the.place was just a haven for people breaking into cars, prostitution." At that time, the terminal consisted of a concrete block building that housed two poorly maintained restrooms and a small office. There were no food facilities or other concessions and no waiting areas for passengers. . With government grant money, the BPA built a new ferry terminal, which was completed in 1996. The District Court found that the new terminal building was "a dramatic improvement from the preexisting structure." It had two floors: the ground floor had a public waiting area, restrooms, information counter, cafeteria, and small office; the second floor, which was not open to the public, housed the BPA and the offices of the Connecticut World Trade Association, a reception area, conference room, and several other offices. BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... Page 3 of 16 Since its inception, the BPA has obtained government grants to fund many other development projects in the Port District that have contributed to the revitalization of the area. Passenger plaintiffs. Rose and Zahradka were recruited to be plaintiffs in this case by the Ferry Company's vice-president and general manager Frederick Hall.? The Ferry Company paid the legal fees and expenses for both individuals. The Ferry Company. The Ferry Company is a privately owned company that has been providing vehicle and passenger ferry service between Bridgeport and Port Jefferson since 1883. Its president, Brian McAllister, has owned a 100 percent interest in the Ferry Company since 1980. Currently,.the Ferry Company owns and operates three ferryboats. In 2005, the Ferry Company transported approximately 460,000 vehicles and one million passengers. On the Port Jefferson side, the Ferry Company owns most of the dock and terminal facilities and provides all ferry -related services. Neither the Ferry Company nor its passengers pay a user fee to any government agency in Port Jefferson. On the Bridgeport side, however, the Ferry Company does not own the dock or terminal facilities. Until 1993, the Ferry Company leased the use of the Dock from the City of Bridgeport. When the City transferred control of the Dock to the BPA, the Ferry Company entered a lease to rent the Dock from the BPA at an annual rate, which was $100,000 for the first year and increases to $158,956 through 2011. The lease agreement entitles the Ferry Company to "non-exclusive preferential use" of the Dock. The BPA reserved for itself all other uses of the Dock and the premises, except for the following: operation of the food concession, which was the subject of another agreement between the parties; use of office and waiting room space in the two-story terminal building that the BPA "may from time -to -time make available"; and use of a few parking spaces for Ferry Company employees. Before and after the creation of the BPA, the Ferry Company has been responsible for running daily ferry operations at the Dock. The Ferry Company employs a Dock Manager and a staff of 15 to 22 to handle all docking and undocking of ferries, staging of vehicles on the roadway to board, directing passengers and vehicles on and off the ferries, shuttling passengers to and from the parking lots, and removing snow on the Dock. Ferry Company employees also perform security functions at the Dock. The passenger fee. Since its inception in 1993, the BPA has imposed a passenger fee on all persons and vehicles embarking on, or disembarking from, the Ferry Company ferries at the Dock. The amount of the fee varies depending on whether the passenger is a person, a car, a truck, _or a bus. In 1993, the fee for an adult foot passenger was 500 and for a vehicle, $1.00. In 2003, the fee for an adult foot passenger was $1.00 and for a vehicle s ' BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... Page 4 of 10 including a driver, $2.00. In February 2006, the.BPA began assessing a one -dollar surcharge to cover the BPA's fees and costs in this litigation. The fee is a relatively a small portion of the total ferry ticket price. For example, in 2005, a one-way ferry ticket for a vehicle with unlimited passengers was '$51.25, while the corresponding passenger fee was $2.75. The fee is added to the ticket price and collected by the Ferry Company on behalf of -the BPA at the time passengers. purchase their ferry tickets on board.? For this service, the BPA pays the Ferry Company an administrative fee, which was $22,500 per year until May 2003 when it was increased to $32,500. After retaining its administrative fees, the Ferry Company remits the proceeds of the passenger fee to the BPA on a monthly basis, along with a written report of the number of tickets sold and the amounts collected from each type of passenger. The BPA's revenue and expenses. From 1993 to 2004, the BPA collected a total of approximately $9.5 million in passenger fees and more than $1 million in rental revenues from the lease agreements with the Ferry Company and its food concession subsidiary. The passenger fee and ferry leases are almost the sole source of operating revenue for the BPA. Until 2002, the passenger fee and lease revenue exceeded the total operating expenses of . the BPA. As the District Court noted, "[T]he total amount of Passenger Fees collected alone from 1993 to 2004 correlates very closely with the Port Authority's total operating expenses during the same period." The BPA's executive director admitted that the BPA has used the revenue from the passenger fee and the Dock lease to pay for essentially all of its operating expenses, including all salaries, health benefits, pension payments, payroll taxes, telephone, utilities, office equipment, travel, charitable contributions, and automobile and lease expenses. The District Court's decision. The District Court, relying on the Supreme Court"s so- called "dormant" Commerce Clause jurisprudence, see United Haulers Ass'n, 'Inc. v. Oneida -Herkimer Solid Waste Management Authority, 550 U.S. 330, 338, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007), endeavored to apply the test the Supreme Court has set forth for determining the constitutionality of fees imposed by governmental entities to defray the costs of facilities used by those engaged in interstate commerce. The test was first announced in Evansville-Vanderburgh Airport Authority District v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972), involving an airport user fee imposed on commercial airlines. The Supreme Court stated that a charge designed only to make the user of state -provided facilities pay a reasonable fee to help defray the costs of their construction and maintenance may constitutionally be imposed . so' long as the toll is based on some fair approximation of use or privilege for use . and is neither, discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred. Id. at 714, 716-17, 92 S.Ct. 1349. BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... Page 5 of 10 In Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 114 S.Ct. 855, 127 L.Ed.2d 183 (1994), the Supreme Court reformulated its Evansville standard into a three -pronged test. "[A] levy is reasonable under Evansville if it (1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits. conferred, and (3) does not discriminate against interstate commerce." Id. at 369, 114 S.Ct. 855. In the pending case, the District Court ruled that the third criterion was satisfied because the passenger fee did not distinguish between intrastate and interstate travel. However, the Court ruled that the fee did not meet either the first or second Evansville criteria. The Court stated that the fee was not based on a fair approximation of the ferry passengers' use of the port facilities because it was "calculated according to a method which ensures the Passenger Fee revenue will cover all of the Port Authority's operating costs and development projects throughout the Port District," and "many" of the "Port District activities funded by the fee are not even available to the ferry passengers (such as Derecktor, BRMC, harbor dredging, the barge feeder service, and the foreign trade zone)." The Court also ruled "that the Passenger Fee is excessive in comparison with the government benefit conferred and in relation to the costs incurred by the taxing authority." Distinguishing the airport user fee upheld in Evansville, the Court stated that "the vast majority of airport development is intended to benefit the passengers traveling on airplanes leaving the airport, or to facilitate their air travel; the Port District, however, includes many projects beyond the Dock that are not functionally related to the ferry operation, and are not intended to benefit the travelers on ferries, or to facilitate their boat travel from Connecticut to Long Island." To determine whether the revenue from the Passenger Fee was unreasonably high compared to the benefits that the BPA provided to the ferry passengers, the District Court examined separately each activity of the BPA. The Court concluded that the following BPA activities benefitted ferry passengers: (1) construction and maintenance of a new ferry terminal building, (2) repair of the bulkhead of the Dock, (3) construction of the access road, (4) planning of the parking facility for ferry passengers, (5) security for the Dock, and (6) daily operations related to the ferry. On the other hand, the Court found that the following activities did not benefit ferry passengers: (1) development projects on Steel Point Peninsula; (2) development projects on the BRMC and the leasing of a portion of the BRMC to Derecktor Shipyards; (3) establishing a high-speed ferry from Bridgeport to Stamford and New York City; (4) developing a barge -feeder service that would ship containers by barge from the Port of New York and New Jersey to Bridgeport; (5) operating a foreign trade zone in Bridgeport; (6) activities at the Cilco commercial shipping terminal located on land near the BRMC; (7) dredging the Bridgeport harbor; (8) operating a complimentary pump -out service for pleasure boats; (9) BPA review of other projects within the Port District; and (10) some miscellaneous activities, including payment of attorneys to register a new trademark for the BPA and purchasing season tickets to local minor league teams. rBRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... Page 6 of 10 Having made this analysis of the BPA's expenditures, the Court determined that the passenger fee revenue collected by the BPA substantially exceeded the amount of money spent by the BPA for those activities that benefitted the ferry passengers. That determination led the Court to conclude that the.fee violated the Commerce Clause and the constitutional right to travel, which the parties agreed was subject to the same standards applicable to the Commerce Clause. The Court also concluded that the excessive nature of the fee, in relation to benefits - conferred, rendered the fee in violation of the Tonnage Clause, which provides that "[n]o State shall . lay any Duty of Tonnage." U.S. Const. art. I, § 10, cl. 3. The Court noted that the Supreme Court in Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265-66, 56 S.Ct. 1945 80 L.Ed. 215 (1935)5 held that the prohibition on all "charge[s] for the privilege of entering, trading in, or lying in a port" did not extend to "charges . for services rendered to and enjoyed by the vessel." The District Court concluded that the passenger fee violated the Tonnage Clause of the Constitution because it was "used for the, impermissible purpose of raising general revenues and for projects which do not and could not benefit the ferry passengers." The passenger fee revenue "fund[ed] projects completely unrelated and unavailable to the fee payers, such as negotiations, legal fees, and development proposals for the BRMC, Derecktor, the foreign trade zone, the barge feeder service, harbor dredging, and the high-speed ferry." As such, it was an impermissible fee of tonnage.! Turning to the appropriate remedy, the District Court first determined that, although the Ferry Company could have suffered an economic loss quantifiable in damages, the Ferry Company had failed to provide any non -speculative evidence of its damages. The Court then found that the passenger plaintiff D & D was entitled to $494.63, based on the extent to which the passenger fee revenue was excessive compared to the benefits to ferry passengers. Finally, the Court ruled that the plaintiffs were entitled to an injunction prohibiting the BPA from collecting a passenger fee in -'an amount that exceeded what was necessary to pay for benefits to the ferry passengers. Discussion Standing Initially, we consider the BPA's contention that the Ferry Company lacks standing because it failed to show injury -in -fact. Incorrectly assuming that injury -in -fact requires quantifiable damages, the BPA argues that because the district court did not award the Ferry Company any compensatory damages, it suffered no injury. But as this Court explained in Ross v. Bank of America, 524 F.3d 217 (2d Cir.2008), lack of compensatory damages "does not negate standing." Id. at 222 (internal quotation marks omitted). As the Ferry Company argued, it sustained injuries in the following respects: BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... Page 7 of 16 (1) The added cost to its passengers reduces both demand for ferry services and the Ferry Company's revenue. Although the District Court found that the Ferry Company failed to present sufficient evidence to establish quantifiable damages, the Court noted that "[i]t is undisputed.that the price elasticity for the ferry service is greater than zero but less than one, indicating on a theoretical level that a change in price at a given point in time would lead to slightly decreased demand." (2) The fee requirement obliges the Ferry Company, as a practical matter, to collect the passenger fee and remit the proceeds to the BPA. (3) The Ferry Company adequately pleaded that its individual rights under the Commerce Clause are being violated. See Dennis v. Higgins, 498 U.S. 439, 449, 111 S.Ct. 865, 112 L.Ed.2d 969 (1991) (noting that the Commerce Clause creates an individual right); see also Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 320 n. 3, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977). (4) The Ferry Company adequately alleged that it is exposed to future injury, which would entitle it to injunctive relief. The Ferry Company also satisfies the requirements of prudential standing because (a) it sustained its own injury and thus asserts its own rights, not those of the passengers, (b) it does not assert a general grievance, in view of its special relationship with its customers, and (c) it operates an interstate ferry service and thus falls within the zone of interest protected by the Commerce Clause. The BPA's challenge to the Ferry Company's standing is without merit. II. Commerce Clause The parties do not dispute that the passenger fee satisfies the first prong of the Evansville test; the fee does not discriminate against interstate commerce. The BPA contends, however, that the fee is based on a fair approximation of the ferry passengers' use and that it is not excessive in relation to the benefits conferred on them. In this case, the "fair approximation" and the "excessiveness" criteria substantially overlap. The reason is that the passenger fee supports virtually the entirety of the BPA's operating budget. If, as the District Court ruled, some of the BPA's expenses confer no benefit on the ferry passengers, either enjoyed or available to be enjoyed, then to that extent the fee, imposed solely on ferry passengers, is not a fair approximation of the use of the facilities supported by the fee and is also excessive in relation to -the benefits enjoyed or available to be enjoyed by the passengers. The BPA correctly argues that there need not be a perfect fit between the use of the facilities and the support of those facilities by the fee, see -United States v. Sperry Corp., 493 U.S. 52, 60, 110 S.Ct. 381, 107 L.Ed.2d 290 (1989) ("This Court has never held that the amount of a user fee must be precisely calibrated to the use that a party makes of "` . BRIDGEPORT AND PORT JEFFERSON` STEAMBOAT COMPANY v. BRIDGEPOR... Page 8 of 10 Government services.'.'); but the discrepancyhere exceeds permissible bounds. The point emerges from a comparison of the airport cases with this case. In Evansville, embarking commercial airline passengers werethe only payers of the user fees at issue -other classes of passengers (and non -passengers), were exempt. " The Court concluded that those commercial airline passengers reasonably bore -that share of airport costs because it was they who enjoyed the principal benefit -of "facilities built primarily to meet [their] needs." . 405 U.S. at 718-1.9, 92 S.Ct. 1349. .Furthermore, although the airlines did not use every facility located anywhere in the airport (for example, the lounges for v.i.p. airlines passengers), the benefit derived from having the entire airport operating made a fee based. on airline traffic into the airport reasonable: Similarly, in Alamo Rent -a -Car, Inc. v. Sarasota -Manatee -Airport Authority, 906 F.2d 516 (11th Cir.1990), the operation of the. airport provided a benefit to the car rental company located near; but unlike some of its competitors, not at, the airport, and the Eleventh. Circuit therefore rejected the company's. .claim that it should be charged only for use of the'road leading fromits location to the airport. See id. at 519. By contrast; in the pending case, the Port District is nof"a facility whose existence and entire operation benefit the,ferry passengers. The BPA is a governmental unit created to accomplish a variety- of tasks, only some of which afford actual or potential benefits to' ferry passengers.. Had the Dock.and some'of the related activities been operated directly. by,the City of Bridgeport, it could not be seriously maintained that a passenger fee, producing revenue in excess of the cost of operating the dock and related activities, could be used to pay a'portion of Bridgeport's school or welfare expenses:" The limits'of both_ a fair approximation of use and excessiveness are plainly exceeded when the fees support a BPA budget that includes, for example, a development project for -reducing traffic on I-95, the interstate highway running generally along the Connecticut shore. No doubt those ferry passengers who drive to or from the Dock along I-95 are grateful for any reduction in traffic,' but they would be equally grateful :for whatever steps the BPA or the City of Bridgeport might take to.reduce air pollution 'or otherwise '. improve the environment along I -95. Such quality -of -life improvements cannot be said to confer an actual or (potential benefit to the ferry passengers as users of the ferries and thus exceed the bounds of what may reasonably serve as the basis' for the BPA's fee. A user.fee, however, may reasonably support the budget of a governmental unit that operates facilities that bear at least a "functional relationship" to facilities used `by the fee payers. See Automobile Clubrof New York, Inc. v. Port Authority, .,887 F.2d 417,421 (2d Cir.1989). In that case, this Court held- that a "functional relationship existed between the Port Authority's cross -river PATH train and its bridges and tunnels. (Lincoln Tunnel and Holland Tunnel), justifying inclusion of the PATH in the rate base of the tolls that the. Port Authority charged on its bridges and.tunnels, and rendering the tolls "just and reasonable" .under. the Federal -Aid Highway Act. In the pending case, once it appeared that the passenger fees were supporting the entirety of the BPA's operating budget and that this budget was supporting some BPA activities of no BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPOR... -Page 9 of 1( benefit to the ferry passengers (at least, not in their capacity as ferry passengers), the District Court had no choice but to make particularized inquiries as to the various BPA expenditures. Activities properly deemed of no actual or potential benefit to the ferry passengers are (1) development projects on Steel Point Peninsula, (2) development projects on the BRMC and the leasing of a portion of the BRMC to Derecktor Shipyards, (3) establishing a high-speed ferry from Bridgeport to Stamford and New York City, (4) developing a barge -feeder service that would ship containers by barge from the Port of New York and New Jersey to Bridgeport, (5) operating a foreign trade zone in Bridgeport, (6) activities at the Cilco commercial shipping terminal located on land near the BRMC, and (7) some miscellaneous activities, including payment of attorneys to.register a new trademark for the BPA and purchasing season tickets to local minor league teams. Slightly closer questions are presented by the District Court's disallowance of the portion of the fees that supported dredging the Bridgeport harbor and operating a complimentary pump -out service for pleasure boats. Since the harbor was already sufficiently deep to accommodate the ferries, the Appellees contend that they derive no benefit from additional dredging. However, they do benefit from minimizing the risk that larger vessels will run aground for lack of additional dredging and block use of the harbor by the'ferries. Similarly, the appellees contend that they derive no benefit from complimentary pump -out services for pleasure boats, but the resulting reduction of pollution in- the harbor is a benefit to the ferry passengers. Although using a portion of the passenger fees to pay for these two services, which provide some benefit to ferry boat passengers, does not render the passenger fees excessive, it does fail to satisfy the fair approximation test. There is nothing in the record to indicate how the portion of dredging costs borne by the ferry passengers compares to the costs, if any, borne by large vessels docking at Bridgeport. And because the pump -out service is available to and benefits only the pleasure boats and only minimally benefits the ferry passengers, imposing the total cost on them through the passenger fee with no charge on the pleasure boats is not a fair approximation of use. In sum, the District Court properly concluded that the existing fee violated the Commerce Clause and required an adjustment. III. Tonnage Clause The Tonnage Clause provides that "[n]o State shall . lay any Duty of Tonnage."' U.S. Const. art. 1, § 10; cl. 3. As interpreted by the case law, the Tonnage Clause "prohibits . duties to raise general revenues." New Orleans Steamship Association v. Plaquemines Port, Harbor & Terminal District, 874 F.2d 1018, 1023 (5th Cir.1989). Moreover, it requires that benefits and fees be "apportioned as closely as is practicable," Plaquemines Port, Harbor & Terminal District v. Federal Maritime Commission, 838 F.2d 536, 545 n. 8 (D.C.Cir.1988), and that the service be available to all fee payers, Clyde Mallory Lines, 296 U.S. at 266, 56 S.Ct. 194. - `"' 10BRIDGEPORT AND PORT JEFFERSON STEAMBOAT COMPANY v. BRIDGEPO... Page 10 of 10 The District Court correctly applied the law to the facts in holding that "[t]he Passenger Fee imposed by the Port Authority is used for the impermissible purpose of raising general revenues and for projects which do not and could not benefit the ferry passengers." The testimony of the BPA's own expert and officials supports the Court's conclusion. John Arnold, the BPA's expert, testified that the BPA "act[s] as an incubator for growth of economic activity that supports the city itself'; the BPA's accountant°testified that non - ferry projects benefit the City and "the entire community"; a commissioner of the BPA testified that the purpose of passenger fee has always been "to create a source of revenue to support the operations of the Port Authority." Finally, the BPA's executive director Riccio testified, "I think anything that helps business and commerce in the State of Connecticut is going to indirectly benefit the ferry passengers." When asked whether it is fair to fund his travel expenses related to -the BPA's non -ferry activities, Riccio testified "We don't work for the Port Jefferson Ferry Company or the Port Jefferson ferry passengers. We're a Port Authority and this is what we do. We're developing the port as our mission, bringing other maritime interest and businesses to the Port of Bridgeport." Based on these facts, the district court did not err in its legal conclusion. . In addition, the passenger fee offends the Tonnage Clause because the BPA's non -ferry services are not available to ferry passengers; they were "completely unrelated and unavailable to the fee payers." Charging the fee -payers for services that are not available to them is impermissible under the Tonnage Clause, even if not all fee payers actually use them. See Plaquemines, 838 F.2d at 545. Conclusion The judgment of the District Court is affirmed. FOOTNOTES I. Zahradka withdrew his claim for past damages but remains a plaintiff for purposes of prospective relief. 2. The Ferry Company has refused to collect the $1 litigation surcharge on the BPA's behalf, and the BPA has hired a firm to collect the surcharge directly from passengers embarking or disembarking from the ferry. . 3. The District Court rejected the plaintiffs' claims under federal and state statutes, and those claims are not pursued on this appeal. JON O. NEWMAN, Circuit Judge. Copyright 0 2012 FindLaw, a Thomson Reuters business. All rights reserved.