DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974
LEASE AGREEMENT
This Lease Agreement ("Agreement") is entered into as of this day of_ 2024 ("Effective Date"), between Big Yellow Boat, LLC ("BYB" or "Lessor") and the City of Alameda, a municipal corporation ("City" or "Lessee") (collectively, the "Parties" and individually a "Party") to define the rights and responsibilities of the Parties in connection with the leasing of a vessel to be used for the pilot public water shuttle operations in the Oakland Estuary between the cities of Alameda and Oakland.
RECITALS
1. The City is a municipal corporation located in Alameda County, California and duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City.
2. BYB is a limited liability company formed to acquire and own a vessel which will be used to operate the Estuary Water Shuttle.
3. The Parties,along with the SanFranciscoBayArea WaterEmergencyTransportation Authority("WETA"), the AlamedaTransportationManagementAssociation("ATMA") and anumberof otherprivateorganizations,are implementinga two-yearpilotprogram involvingsmallvesselpublicwater shuttleservicein theOaklandEstuarybetween Alameda and Oakland ("Project").
4. The Projectincludesplanningeffortsforthe publicwatershuttleoperationsin the OaklandEstuarybetweenAlamedaand Oakland("Service"),leasingan appropriate vesselto be usedfor theService,marketingthe Service,maintainingsaidVessel,and operatingthe Service.The Servicewill operatefor twoyears ("Service Period"),be free, opento the generalpublicandADA-accessible.The Serviceis a pilot- intendedto test and prove a concept ofoperationsthat will provideconnectionsbetweenAlamedaand Oakland.
5. The Cityis the recipientof a grantfrom the AlamedaCountyTransportationCommission ("Alameda CTC"),whichwillpartiallyfund the Project,alongwithfundingfrom privatepartnersand in-kindstaffingcontributions,for up to twoyearsof operations.
6. BYB has purchased a vessel, ("Vessel") with the name "Woodstock" and identification number 1165032,and BYB will purchaseone spare enginefor the Vessel.BYB will hold title to theVesseland willleasethe Vesselto the Cityandmake the onespareenginefor the Vesselavailableto theCity, underthe terms andconditionsof thisAgreement.
AGREEMENT
ACCORDINGLY,for good and valuableconsideration,the receipt and adequacyof Big YellowBoat, LLC - City ofAlamedaLease Agreement Page \1 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 which are herebyacknowledged,BYBand City agree asfollows:
1. Recitals. The recitalsdescribedaboveare incorporatedinto and made a part of this Agreement.
2. Term of Agreement. Notwithstandingthe EffectiveDate, the term of thisAgreement will commenceon November10,2023 and will terminateninety days after the end of the ServicePeriod or upon the occurrenceof any of the events in paragraph 6, whichever is earlier.
3. City's Rights and Responsibilities. City's rights and responsibilities are as follows:
a. For the Term of this Agreement, unless this Agreement is terminated earlier, City will lease from BYB the Vessel, have available to it from BYB one spare engine, and shall make the following payments:
i. The Base Monthly Rent will be $12,250.00, starting with the commencement of Service. Should this Agreement terminate before the end of two years from the commencement of Service, the City's obligation to pay the Base Monthly Rent shall end but the Parties may negotiate a new monthly rent. ii. City shall pay for any unscheduled maintenance of the Vessel, only as described in paragraph 5 of this Agreement.
b. The City will provide the Vessel and spare engine to WETA as set forth in that certainAgreementbetweenthe City and WETAdated , a copy of which is attached hereto for reference ("WETA Agreement"). As provided in the WETA Agreement,WETA will managethe Vesselmodifications,maintainthe Vessel,and will operatethe Servicefor thedurationof theProject.The Vesselwill be used only for the Service, and, if authorized by City, charter service. c. Shouldany damageoccurto the Vessel,City and BYB, withassistancefrom WETA, willcooperatein filinginsuranceclaimsas applicable.In accordancewithparagraph
5.b., the Parties will meet and confer as to the ultimate responsibility for any costs not coveredby insuranceand in excess of $2,000.
d. TheCitywill arrangefor azero-costovernightberthinglocationfor theVessel, anticipatedto beprovidedat the JackLondonSquareMarina,via an in-kind contributionfrom CM Group, the property managementfirm for Jack London Square.Suchberthinglocationwill beprovidedat zero-costuntilthe end of the ServicePeriod or upon theoccurrenceof any of the events in paragraph6, whichever is earlier.
e. The City will fund the costs to, or otherwisemake arrangementsto provide, landside/pier/wharfimprovementsnecessary to operate the Service.
Big Yellow Boat,LLC - City of Alameda Lease Agreement Page \2 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 f. The City will fund the marketingrequiredfor the vessel, includingany costs related to vessel rebranding for the Service and dockside signage. g. The Citywill adviseBYB shouldWETA temporarilysuspendor cancelServicefor any reason,for instancedue toweather,in the eventof an emergency,or if the Vessel or crew is unavailable.
4. BYB's Rights and Responsibilities. BYB's rights and responsibilities are as follows:
a. BYB will lease the Vessel to the City and make the spare engine available to the City as set forth in paragraph 3.a. BYB will invoice the City monthly. b. BYB will complete the application for the berthing location at the Jack London Square Marina, to be used after Vessel modifications are complete and during the Service Period.
c. BYB will be responsible for all of the following expenses:
i. Vessel ownership.
ii. Modifications made to the Vessel to prepare it for Service. iii. All permitting, inspection and registration costs. iv. Boatyard fees.
v. Ferrying the Vessel between boatyard and the berthing location. vi. Spare engine, including repairs and replacement thereof.
5. Unscheduled Maintenance.
a. Unscheduled maintenance or any repairs or other modifications to the Vessel that WETA determines are required and that are estimated to cost less than $2000 will be paid by the City. In theseinstances,as provided in the WETAAgreement,WETA will arrangefor suchmaintenance,repairsor modificationsand willprovideall constructionmanagementservicesassociatedwith suchmaintenance,repairs,or modifications.
b. As providedinthe WETA Agreement,unscheduledmaintenanceor anyrepairsor othermodificationsto theVesselthat areestimatedto cost$2,000or greaterthat WETA determinesare requiredwillbe subjectto theParties' andWETA'smeeting andconferringwhetherto performthe neededmaintenance,or makethe repairsor modifications, and how such costs will be shared. If the Parties and WETA are unable to reach agreement, this Agreement will terminate.
6. Termination. ThisAgreementmay beterminated(i) for causeas a remedyfor default underparagraph12,(ii) if Serviceis cancelled,(iii) asprovidedin paragraph5.b., (iv) as providedin paragraph 14.b.,or (v) on conditionsacceptableto both Parties.
7. Compliance with Insurance. WETA's insurance obligation for the Service as well as for theVesselare setforth in theWETA Agreement. ThePartiesshallnot do, or permit to be done, to the Vesselanythingthat willinvalidateany fire orextendedcoverageor Big YellowBoat, LLC - City ofAlamedaLease Agreement Page \3 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 any other insurance policy covering the Vessel, or that will make such insurance coverage unavailable on commercially reasonable terms and conditions, and shall comply with all rules, orders, regulations and requirements of the insurers of the Vessel.
Choice of Law, Proper Venue.
a. Choice of Law. The laws of the State of California shall govern this lease. b. Proper Venue. For purposes of filing litigation, venue shall be in the Superior Court for the County of Alameda.
9. Liens.
a. BYB shall not perform, or cause to be performed, furnish materials, or cause materials to be furnished, or incur, or cause to be incurred obligations concerning the Vessel. If BYB breaches any of the prior sentence resulting in liens against the Vessel, BYB shall be responsible for removing such liens. b. Should BYB fail to discharge any lien of the nature described in paragraph 9.a., City, at City's discretion, may pay such claim or post a bond or otherwise provide security to eliminate the lien as a claim and the cost for doing so shall be immediately due from BYB.
c. As lessee of the Vessel, City shall keep the Vessel free from any liens arising out of work performed, materials furnished or obligations unless such work, materials or obligations were incurred by BYB without the permission of City or WETA.
10. Indemnification.
a. BYB shall indemnifyCity, itsofficers,agents, andemployees(collectively,"City's Agents"),against,andto protect,defend,and save themharmlessfrom, all demands, claims, causes of action, liabilities, losses and judgments, and all reasonable expenses incurredin investigatingor resistingthe same(includingreasonableattorneys1fees), broughtor claimedby a thirdparty,for deathof orinjuryto personor damageto propertyarisingoutof (i)BYB'suseof the Vesseland(ii)anyact or omissionof BYB, itsofficers,agents,and employees,exceptto the extentcausedby the negligenceor willfulmisconductof City'sAgents. BYB'sobligationunderthis paragraphlO.a. shallsurvivethe expirationor earlierterminationof thisAgreement. b. Cityshall indemnifyBYB, itsofficers,agents,andemployees(collectively,"BYB Agents")against,and to protect,defend,andsave them harmlessfrom all demands, claims, causes of action, liabilities, losses, and judgments, and all reasonable expensesincurred,in investigatingor resistingthe same (includingreasonable attorneys'fees), broughtor claimedby a thirdpart, fordeathor injuryto personsor damageto propertyarisingout of (i) the City's use of theVessel,and (ii) any act or omissionof theCity, its officers,employeesandagents,exceptto the extentcaused by thenegligenceor willfulmisconductof BYB Agents. TheCity's obligations Big YellowBoat, LLC - CityofAlamedaLease Agreement Page \4 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 under this paragraph lO.b. shall survive the expiration or termination of this Agreement.
11. Dispute Resolution. The Parties agree that any dispute arising from this Agreement that is not resolved within thirty (30) business days by the Parties' representatives responsible for the administration of this Agreement will be set forth in writing by each Party and delivered to the attention of both BYB's President and the City Manager for resolution.
In the event resolution cannot be reached, the Parties shall meet and confer to discuss the appropriate method of resolution. The Parties may agree to an alternative dispute resolution process, including mediation and/or arbitration.
12. Defaults and Remedies.
a. Defaults. The occurrence of any one or more of the following events shall constitute a default under this Agreement:
i. The failure by BYB or City to observe or perform any obligation to be performed by BYB or City, where such failure continues for a period of thirty (30) days after written notice from the non-defaulting Party to the defaulting party; provided, however, that if the nature of the default is such that more than thirty (30) days are reasonably required to cure the default, then the defaulting party shall not be deemed to be in default if the defaulting party commences such cure within said thirty (30) day period and thereafter diligently continues the same to completion. Such notice shall be in lieu of, and not in addition to, any notice required under state law; ii. BYB makes an assignment for the benefit of creditors; iii. A receiver, trustee or custodian is appointed to, or does, take title, possession or control of all, or substantially all, of BYB's assets; iv. An order for relief is entered against BYB pursuant to voluntary or involuntary proceeding commenced under any chapter of the Bankruptcy Code;
v. Any involuntary petition is filed against BYB under any chapter of the Bankruptcy Code and is not dismissed within ninety (90) days. b. Remedies.
i. Termination. In the event of a default by BYB, and at any time thereafter, and without limiting City in the exercise of any right or remedy which City may have, City shall be entitled to terminate this Agreement.
13. Costs and Attorneys1 Fees. In any litigation, including administrative proceedings, relating to this Agreement, including but not limited to any action or suit by any party, assignee or beneficiary against any other party, beneficiary or assignee, to enforce, Big Yellow Boat, LLC- City of Alameda Lease Agreement Page \ 5 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 interpret, seek relief from any provision or obligation arising out of this Agreement, regardless of whether such action or proceeding is prosecuted to judgment, and in addition to any other remedy, the parties and litigants shall bear their own attorneys' fees and costs. No party or litigant shall be entitled to recover any attorneys' fees or costs from any other party or litigant, regardless of which party or litigant might prevail.
14. Assignment or Subletting.
a. City Approval. Except as provided in this Agreement, BYB shall not sell, assign, hypothecate or transfer this Agreement nor sell, assign, hypothecate or transfer title to the Vessel, without the prior written consent of City in each instance which consent shall not unreasonably be withheld or delayed.
b. Void. Any sale, assignment or transfer to title to the Vessel without City approval shall be void and shall, at the option of City, terminate this Agreement.
15. Notices. All notices and communications related to this Agreement deemed by either Party to be necessary or desirable must be in writing and may be given by e-mail, or mail, personal delivery, or nationally recognized overnight courier to a representative of the Parties addressed as follows:
To BYB: Attention: Lucy Gigli
Big Yellow Boat, LLC
950 West Mall Square, Suite 239
Alameda CA 94501
Email: [email protected]
To City: Attention: Jennifer Ott
City of Alameda
2263 Santa Clara Avenue
Alameda, CA 94501
Email: [email protected]
Additional Copy to: Attention: City Attorney
City of Alameda
2263 Santa Clara Avenue, Room 280
Alameda, CA 94501
Email: [email protected]
The address to which mailings may be made may be changed from time to time by written notice mailed as described above. Any notice given by mail shall be deemed given on the day after that on which it is deposited in the United States Mail as provided Big YellowBoat, LLC - City of Alameda Lease Agreement Page \6 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 above.
16. Miscellaneous.
a. Headings. The paragraph headings of this Agreement are not a part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof.
b. Time. Time is of the essence with respect to the performanceof every provision of this Agreement in which time of performance is a factor. c. Consents. Whenever consent or approval of either Party is required, that Party shall not unreasonably withhold or delay such consent or approval, except as may be expressly set forth to the contrary.
d. Entire Agreement. The terms of this Agreement are intended by the Parties as a final expression of their agreement with respect to the terms as are included herein, and may not be contradicted by evidence of any prior or contemporaneous agreement. e. Severability. Any provision of this Agreement which proves to be invalid, void, or illegal, shall in no way affect, impair or invalidate any other provision, and such other provisions shall remain in full force and effect.
f. Successors and Assigns. Each of the covenants, conditions, and agreements herein shall inure to the benefit of and shall apply to and be binding upon the Parties and their respective heirs, legatees, devisees, executors, administrators, successors, assigns, sublessees, or any person who may come into possessionof the Vessel. g. Notices. Any notice or other communication required or permitted to be given hereunder must be in writing and may be given by personal delivery, by facsimile transmission,by electronicmail or by U.S. mail, and if given by personaldelivery, h. Authority to Execute Lease. BYB and City each acknowledge that it has all necessaryright,title and authorityto enter intoand performits obligationsunderthis Agreement,that thisAgreementis abindingobligationof suchPartyandhas been authorizedby allrequisiteactionunderthe Party'sgoverninginstruments,that the individualsexecutingthis Agreementare dulyauthorizedand designatedto do so, and that no other signatories are required to bind such party. i. Counterparts.This Agreementmaybe executedin oneor more counterparts,each of which shall constitute an original.
j. No Partnership.Cityand BYB arenot partnersandnothinghereincontainedshallbe construedto createa partnershipor joint venturein anysense,nor toconstituteCity the agent of BYB for any purposes.
k. Waiverand Modification. No provisionof this Agreementmay be modified, amendedor addedto exceptby a mutualagreementin writing. The waiverby City of Big YellowBoat, LLC - City ofAlamedaLeaseAgreement Page \7 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 any breachof anyterm, covenantor conditionhereincontainedshallnotbe deemed to be a waiver of any subsequentbreachof the same or any other term, covenant or condition herein contained.
1. Both Parties shall not discriminate in any manner against any person or persons on accountof a person'sprotectedclass includingbut notlimitedto theprovidingof goods,services,facilities,privileges,advantages,andthe holdingandobtainingof employment.
m. If any phrase,clause, sentence,paragraph,section,article,or otherportionof this Agreementbecomesillegal,null or void oragainstpublicpolicy,for anyreason,or is held by any courtofcompetentjurisdictionto be illegal,null or void or againstpublic policy,the remainingportionsof this Agreementwill not beaffectedtherebyand will remain in force and effect to the fullest extent permissible by law. n. This Agreementmay be executed in any number of counterparts,each of which will be deemed an original, and all of which counterparts together will constitute one agreement.
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Big YellowBoat, LLC - CityofAlamedaLease Agreement Page \8 DocuSign Envelope ID: 74F41473-F2B1-4AEB-85A6-2F02CE09C974 IN WITNESS WHEREOF, the Parties have signed this Agreementas of the date first set forth above.
BIG YELLOW BOAT, LLC
Michael S. O'Hara
Officer
Date: f 2**1M
Approved as to form:
Attorney for B^
CITY OF ALAMEDA
By:_
Jennifer OttvCity Manager
Date:
Recommended for approval:
—DocuSigned by:
By:.
Allen TairP^»rflftfJ1Building and Transportation Director Idu/itdu
Approved us to form:—
-DocuSigned by:
By: I kidud, fo\Ah
Michael Rxrtif^Ag^^. Counsel
Big YellowBoat, LLC - Cityof Alameda Lease Agreement Page \9