LEASE AGREEMENT OF CITY OF FREMONT PROPERTY
MISSION PEAK REGIONAL PRESERVE
THIS LEASE Agreement (“Lease”), made and entered into as of ____________________________ by and between the City of Fremont, an incorporated California municipality, hereinafter called “City,” and the East Bay Regional Park District, a California Special District, hereinafter called "Park District."
W I T N E S S E T H:
WHEREAS, pursuant to the provisions of Section 37396 of the Government Code of the State of California, City may lease property owned by it for park and recreation purposes; and
WHEREAS, Park District has the authority to enter into leases of real property for park and recreation purposes pursuant to California Public Resources Code Section 5540; and
WHEREAS, City owns certain unimproved real property adjacent to Park District's Mis- sion Peak Regional Preserve, in the County of Alameda, comprising 900 acres, more or less, as described in Exhibit “A” (the “Property”) attached hereto and made a part hereof; and
WHEREAS, in 1978, City and Park District first entered into this Lease to provide for public park, recreation, and open space uses of said area with an initial term of 25 years (“1978 Lease”); and
WHEREAS, in 1993, pursuant to the terms of the 1978 Lease, City and Park District extended the term of the Lease until July 7, 2020; and
WHEREAS, pending negotiation over the renewal of the 1978 Lease, the City and Park District have held the 1978 Lease in a month-to-month holdover status; and
WHEREAS, City and Park District desire to enter into this Lease to extend the term of and continue to provide for public park, recreation, and open space uses of said area; and
WHEREAS, City desires to continue to have Park District administer a grazing and open space management/park operation program on the Property and Park District is willing to accept that responsibility based on the terms of this Agreement; and
WHEREAS, through this Lease, City and Park District also acknowledge the mutual goal of supporting the use of Ohlone College as a primary staging area to access Mission Peak.
NOW, THEREFORE, it is mutually agreed that for and in consideration of mutual benefits to both parties (and without charge for rental, other than as specified in paragraph 4 below), City hereby leases the Property to Park District for the exclusive purpose of maintaining, controlling, improving, and operating a public park, recreation, and open space facility, including a program of grazing management, as a portion of Park District's Mission Peak Regional Preserve. Park District and City accept such lease on the following terms and conditions:
1. PROPERTY RIGHTS. Subject to the terms of this Lease, the Park District shall have exclusive control over the Property and the sole authority to operate and manage the Property.
This Lease is non-assignable and non-transferable, as a whole or in any part thereof, without prior written consent of City, which consent shall not be unreasonably withheld, provided this Lease shall be assignable to any successor public agency to Park District. Park District hereby acknowledges the title of City in and to said real property described herein and agrees never to assail or to resist said title.
2. TERM.
a. The term hereof shall commence upon execution by both City and Park District.
During the term of this Lease, Park District will administer an open space management program of the lands described in Exhibit "A" and provide for public park use of those lands.
b. Unless terminated as provided in Paragraph 13 below, the term of this Lease shall expire on July 1, 2042. By mutual consent, the term of this Lease can be extended for an additional twenty (20) year term.
3. MAINTENANCE. Park District shall maintain the Property in at least as clean and presentable a condition as received, free from waste. Park District shall maintain the Property at the same level as it provides to other parks within its jurisdiction. If Park District fails so to maintain the Property at the same level as it provides to other parks within its jurisdiction, then City shall give Park District specific notice of such violation and Park District shall have thirty (30) days to undertake corrective measures. If Park District shall fail to take such action within such period of thirty (30) days, then City may perform the necessary work at the expense of Park District, which Park District agrees to pay City upon demand.
4. GRAZING MANAGEMENT. City hereby grants to Park District the right to let grazing licenses or leases on the Property during the term of this Lease on terms substantially similar to those found in the Park District’s form grazing license, a current draft of which is attached hereto as Exhibit "B." In the event that the Park District substantially revises the form grazing license, Park District will provide City with a revised version of the form grazing license.
5. IMPROVEMENTS; PRIOR APPROVAL.
a. The existing Stanford Avenue Staging Area shall continue to have direct access from Stanford Avenue. The Park District may elect to make additional capital improvements to the existing Stanford Avenue Staging Area, but will have no obligation to do so during the term of this Lease. For any capital improvements that the Park District elects to undertake on the Property that do not require a permit issued by the City, the Park District shall present plans to City for its review and written approval prior to the commencement of any such work. Approval of improvements that do not require a permit issued by the City shall not be unreasonably withheld. City agrees to notify Park District in writing within sixty (60) days after delivery of any such request for approval whether City approves or disapproves and, if the latter, the reasons therefor. Should City not so notify Park District within sixty (60) days, it shall be conclusively
deemed that City has approved such request for improvements that do not require a permit issued by the City and Park District may proceed with the capital improvements. If the City sends written disapproval of any improvements, the Park District shall not proceed with the improvements. Upon termination of this Lease, all improvements to the Property shall be considered City Property.
b. For any capital improvements that the Park District elects to undertake on the Property that require a permit issued by the City, the Park District shall present plans to City for its review and written approval prior to the commencement of any such work. Approval of improvements that require a permit issued by the City shall not be unreasonably withheld. City agrees to notify Park District in writing within one hundred twenty (120) days after delivery of any such request for approval whether City approves or disapproves and, if the latter, the reasons therefor. Should City not so notify Park District within one hundred twenty (120) days, it shall be conclusively deemed that City has approved such request for improvements and the Park District may proceed with the capital improvements. If the City sends written disapproval of any improvements, the Park District shall not proceed with the improvements. During the one hundred twenty (120) days, City and Park District may choose to hold a community meeting at a designated location within the City, as agreed upon by City Manager and Park District General Manager, or their designees. Upon termination of this Lease, all improvements to the Property shall be considered City Property.
c. Routine maintenance of the Stanford Staging Area, trails, fire roads and fences within the Property shall be the responsibility of Park District. Such maintenance work will not require prior notification to, or approval by City.
d. Park District agrees not to construct or operate facilities or permit uses on the Property which are incompatible with a regional park and open space facility.
6. FENCES AND BARRIERS. Park District shall be responsible for constructing fences and vehicular barriers designed to prevent unauthorized motor vehicles from entering the Property.
7. INDEMNITY. Park District shall indemnify, hold harmless, and defend the City (including its elected officials, officers, agents and employees) from and against any and all claims (including all litigation, demands, damages, liabilities, costs, and expenses, and including court costs and attorney’s fees) resulting or arising directly or indirectly by the Park District 's use and operation of the Property, or any negligent act or omission of any contractor, agent, or employee or other person under the control of the Park District, except for claims arising out of the sole negligence or willful misconduct of the City or its employees or agents.
8. INSURANCE. Throughout the term of this Lease, Park District, at its expense, shall maintain:
a. Employer's Liability Insurance. Workers' Compensation Insurance and Employer's Liability Insurance as required by the laws of California.
b. Public Liability Insurance. Such Public Liability Insurance as shall protect City from claims usually insured against under the terms of such insurance which may arise in connection with this Lease. Said liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from all operations under this Lease, use of owned or non-owned automobiles, products and completed operations. Said policy or policies shall name City as an additional insured and shall cover as primary insurance and shall be endorsed to provide that City will be notified at least thirty (30) days prior to any proposed cancellation or change in any of said policies.
The amounts of insurance so provided by Park District shall not be less than the following:
Single Limit Coverage Applying to Bodily and Personal Injury Liability and Property Damage or a combination - $3,000,000.00
c. Certificates of Insurance. Certificates showing such public liability insurance shall be furnished to City. Subject to subparagraph d below, all such insurance shall be maintained in full force and effect by Park District throughout the entire term of this Lease and any renewal or extension thereof.
d. Self-Insurance. Park District has the right and option to self-insure, in whole or in part, at any time, against public liability claims in lieu of providing the public liability insurance specified herein by written notice to City that Park District assumes such obligation in the place and stead of any insurance carrier.
9. PUBLIC SAFETY.
a. Park District shall be responsible for whatever mowing, discing, vegetation removal, and fire road construction, etc. which may be reasonably required on the Property for fire prevention purposes. Park District shall provide fire protection services to the Property at the same level as it provides to other park areas within its jurisdiction.
b. Park District shall provide police, ranger, or other sworn peace officer patrol of the leased area to keep peace and prevent unauthorized uses thereof at the same level that it provides to other park areas within its jurisdiction.
c. City shall devote the same degree of public safety patrol and attention to the leased area as is provided to other public areas within the jurisdiction of City. In this regard, the public safety departments of City and Park District shall operate a close liaison to coordinate their activities on the leased Property.
10. HOURS OF OPERATION.
a. The Property shall normally be open to public use during those hours that the Stanford Avenue Staging Area and adjacent portions of Mission Peak Regional Preserve is open
to the public. The current hours of the Stanford Avenue Staging Area and adjacent portions of the Mission Peak Regional Preserve are as follows:
December 23 - March 31 6:30am – 8:00 pm
April 1 – December 22 6:30am – 9:00 pm
If any changes are proposed to change the current hours of the operation at the Stanford Avenue Staging Area and adjacent portions of the Mission Peak Regional Preserve, Park District will notify City of proposed changes in writing at least 30 days before adoption of the new hours.
Upon receipt of written notice of proposed change, City may choose to hold a community meeting at a designated location within the City, as agreed upon by City Manager and Park District General Manager, or their designees. In addition to any community meeting held within the City, for any proposed changes to the hours of operation, the Park District will include the change of hours on a regularly scheduled public meeting of the District. Park District shall install and maintain a sign prominently located at the entrance to the Standard Avenue Staging Area listing the current hours of operation of the Stanford Avenue Staging Area and adjacent portions of the Mission Peak Regional Preserve, as established by this Section 10.
11. CITY REGULATORY ACTION. In the event that the City exercises its police powers and closes Stanford Avenue east of Vineyard Avenue (“City Regulatory Action”) for more than 24 consecutive hours, the City shall temporarily assume the responsibilities set forth in this Lease for the Stanford Avenue Staging Area only until conclusion of the City Regulatory Action.
For purpose of this section, City Regulatory Actions shall not include a closure due to a criminal investigation performed by the Fremont Police Department or fire suppression activities performed by the Fremont Fire Department. The City shall notify the Park District in writing when the City Regulatory Action is to cease and the date that the Park District operational obligations for the Stanford Avenue Staging Area are to resume, provided that it is no sooner than 24 hours from the date of the City’s notice of City Regulatory Action termination.
12. PRIOR TITLE RIGHTS. All rights herein given to Park District are subject to all existing rights, rights of way, reservations, restrictions, liens, and easements by whomsoever held in and to said real property.
13. SIGNS AND MARKETING. Park District shall install and maintain: 1) signs acknowledging the cooperation of City in providing the Property for public park, recreation, and open space uses; 2) appropriate informational and directional signs including signs to Ohlone College as a primary access to Mission Peak Regional Preserve; 3) appropriate signs designating permitted trail uses by the general public, regulations governing such uses, and specifically prohibiting operation of unauthorized motor vehicles; and 4) all marketing, website, social media, maps, and other documented materials shall describe Ohlone College as the primary access to Mission Peak Regional Preserve.
14. COOPERATION. Park District and City will work together to resolve issues in and around the Property in a timely and cooperative manner. The parties shall continue utilize the liaison committee or similar public meeting as needed to discuss issues regarding the Property.
Further, City shall support and work cooperatively with the Park District to promote Ohlone College entrance as the primary entrance to the Mission Peak Regional Preserve.
15. TERMINATION OF LEASE. This Lease may be terminated:
a. Upon the expiration of the term;
b. Upon a material breach of any of the provisions hereof if, after written notice specifying the nature of the breach, Park has not undertaken positive action to correct such breach within ninety (90) days; or
c. At any time upon thirty (30) days written notice by either of the parties.
16. NOTICE. All notices pursuant to this Agreement shall be addressed as set forth below or as either party may subsequently designate by written notice and shall be sent through the United States mail with postage prepaid, Certified, with return receipt requested.
To: City of Fremont To: East Bay Regional Park District City Manager Attention: General Manager
3300 Capitol Ave P.O. Box 5381
Fremont, CA 94538 2950 Peralta Oaks Court
Oakland, CA 94605-0381
17. NON-DISCRIMINATION: FAIR EMPLOYMENT PRACTICES. Park District and its employees shall not discriminate against any person because of race, color, religious creed, sexual orientations, gender, marital status, physical or mental disability, medical condition, national origin or other legally protected status. Park District will take affirmative action to ensure that applicants and employees are treated during hiring process and employment without regard to their race, color, religion, sex, marital status, physical or mental handicap, or national origin. Such action shall include, but not limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; designated representatives. In addition, Park District shall not exclude from participation in, deny the benefits of, or subject to discrimination under this Agreement any employee or applicant for employment on the basis of age the Age Discrimination Act of 1975, or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973; or religion except that any exemption for such prohibition against discrimination of the basis of religion as provided in the Civil Rights Act of 1964, or Title VIII of April 11, 1968, as amended shall also apply.
18. AMENDMENTS AND WRITTEN MODIFICATION. This Lease may be amended or modified at any time with the mutual consent of the City Council of the City of Fremont and the Board of Directors of the East Bay Regional Park District.
19. COUNTERPARTS. This Agreement may be signed in counterparts, each of which shall be deemed to be an original. The Parties agree that the digital signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Any digital signature shall have the same legal validity and enforceability
as a manually executed signature or use of a paper-based record keeping system to the fullest extent permitted by applicable law.
20. ENTIRE AGREEMENT. This Lease, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Lease supersedes all prior negotiations, agreements, and understandings regarding the lease of the Property, whether written or oral.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first hereinabove appearing.
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