Agenda packet, regular meeting — Fremont City Council, December 6, 2022 (part 2 of 2)

Contact
Mirabel Aguilar, Senior Civil Engineer
510-494-4761 | [email protected]
PE/Environmental $2,101
Final Design (PS&E) $5,718
Right of Way/Utility $5,400
Construction Management $14,000
Construction $58,100
Total Cost $85,319
Cost ($x1000)
Funding ($x1000)
*Project is seeking funding from Regional, State, and Federal sources Schedule
*Schedule is subject to funding availability.

Scoping (PID) Completed February 2020
Environmental (State, CEQA) Complete December 2022
Environmental (Federal, NEPA) Complete Spring 2023
Final Design Complete Spring 2024
Right of Way* Complete Summer 2024
Construction* Fall 2024 – Summer 2027
Alameda CTC (Measure BB) $5,454
City of Fremont $2,365
TBD* $77,500
Total Funding $85,319
View from Kato Rd. looking west toward the main span and pylon.

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Attachment: Informational Item 1 – Project Fact Sheet (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT) City of Fremont-Public Works · 39550 Liberty St. Fremont, CA 94538 · 510-494-4700 · fremont.gov/government/departments/public-works I-880 Innovation Bridge & Trail Project • November 2022 Page 2 of 2 Project Status
A funding grant from the
Alameda County Transportation
Commission (Alameda CTC) has
allowed for completing the
project planning, environmental
clearance, and final design
phases. In early 2020, Caltrans
approved a Project Initiation
Document, which addresses the
general project scope. State and
Federal environmental
clearances are expected by
Spring 2023. Final design
activities are on-going.

Funding in the amount of $77.5
million is being pursued for right
of way acquisition, construction
management and construction.

Subject to funding availability,
construction could begin as soon
as Fall 2024 and be completed in
Summer 2027.

Related Project
Warm Springs BART West
Access Bridge and Plaza Project
Opened in February 2022, it
provides a direct pedestrian and
bicycle connection from the Warm
Springs/South Fremont BART
Station to a new urban
neighborhood and the Tesla
Factory area. Learn more at
fremont.gov/government/departme
nts/public-works.

Partnership
Agencies
Features
• Due to the lack of space for a bridge column in the median of I-880, a cable-stay structure has been selected as the most cost-effective bridge type and will minimize impacts to freeway traffic during construction.
• The modern bridge design is marked by an architecturally significant 200-ft. tall pylon that is highlighted by a set of twisting cables that accentuate the curvature of the main span; this creative and unique design is intended to reflect the spirit of Fremont’s “Innovation District”.
• Portions of the trail connection (East Bay Greenway, Reach 6) from the BART station to the Bay Trail, have been completed by the West Access Bridge Project (opened in February 2022) and private development (northern area). The key “gap closures” are the trail along Kato Road (adjacent to Tesla factory), the bridge over I-880, the trail adjacent to the Alameda County flood control channel (between Landing Parkway and Fremont Boulevard), and a new pedestrian traffic signal on Fremont Boulevard at the trail crossing.

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Attachment: Informational Item 1 – Project Fact Sheet (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT)

1 EXHIBIT A

To: Wayland Li
City of Fremont Planning Division
39550 Liberty Street
Fremont, CA 94538

From: Andrew Metzger
Circlepoint
42 South First Street, Suite D
San Jose, CA 95112

Subject: I-880 Innovation Bridge and Trail Project Response to Comments Memorandum Date: September 23, 2022

Dear Mr. Li,
The intent of this memorandum is to provide responses to comments received on the I- 880 Innovation Bridge and Trail Project Initial Study/ Mitigated Negative Declaration (IS/MND), which was circulated for public review from August 11, 2022, to September 12, 2022. One comment letter was received. All responses are provided below by commenter and an assigned commenter number. As required pursuant to California Environmental Quality Act (CEQA) Statue and Guidelines, Section 15204, responses to comments that question the adequacy of the environmental analysis in the IS/MND are required. Based on the comment received, the City added new Conditions of Approval incorporating the Department of Toxic Substances Control’s suggestions, but no changes to the IS/MND were required.

As demonstrated by the following discussion, public comments on the draft IS/MND did not identify new environmental impacts or a substantial increase in the severity of an identified impact.

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Attachment: Informational Item 2 – Response to Comments Memorandum (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT)

2 EXHIBIT A

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Attachment: Informational Item 2 – Response to Comments Memorandum (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT)

3 EXHIBIT A

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Attachment: Informational Item 2 – Response to Comments Memorandum (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT)

4 EXHIBIT A

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Attachment: Informational Item 2 – Response to Comments Memorandum (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT)

5 EXHIBIT A
Response to Comment Letter 1, Gavin McCreary, Department of Toxic Substances Control
Response to Comment 1: The City of Fremont (the City) has reviewed the recommendations provided by the Department of Toxic Substances Control and has decided that while they are not required to reduce impacts to a less-than-significant level, all of the recommendations are sensible Best Management Practices (BMPs), and have therefore been included as Conditions of Approval. Because these new Conditions of Approval are not required by CEQA and are not necessary to mitigate an avoidable significant effect, recirculation of the Mitigated Negative Declaration is not required (CEQA Guidelines Section 15073.5 (c)(3)). The introductory language of the MND has been revised to include the new Conditions of Approval.

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Attachment: Informational Item 2 – Response to Comments Memorandum (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT)

6 EXHIBIT A

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Attachment: Informational Item 2 – Response to Comments Memorandum (4740 : I-880 INNOVATION BRIDGE AND TRAIL PROJECT) Fremont City Council Meeting: 12/06/22 07:00 PM
3300 Capitol Avenue Div/Dept: Public Works
Fremont, CA 94538 Category: Fees & Rates

SCHEDULED
Sponsors:

STAFF REPORT (ID # 4734) DOC ID: 4734
Updated: 11/30/2022 2:14 PM by Alberto Quintanilla Page 1

DEVELOPMENT IMPACT FEE ANNUAL REPORT AND PROPOSED INCREASE IN FEES - Public Hearing (Published Notice) to Consider the Development Impact Fee Annual Report for Fiscal Year 2021/22 and an Increase in Development Impact Fees in an Amount of 13.65% to Align with the Bay Area Construction Cost Index
Contact Persons:

Name: Michelle Silva-Salinas Hans Larsen
Title: Business Manager Public Works Director
Div/Dept: Public Works Public Works
Phone: 510-979-5705 510-494-4722
E-Mail: [email protected] [email protected]

Executive Summary: The purpose of this report is to comply with legal reporting requirements associated with the collection and use of development impact fees and to implement a fee adjustment based on construction cost escalation.

BACKGROUND: The City of Fremont imposes impact fees on new development to mitigate the impacts caused by new development. A development impact fee is a monetary exaction other than a tax or special assessment that is charged by a local agency to new development to defray costs of public facilities needed because of impacts created by the new development. Impact fees are typically paid by developers at the time of building permit issuance and cannot be used to correct existing deficiencies or for the ongoing operation and maintenance costs of these facilities.

The City collects development impact fees in five fee programs referred to as: Capital Facilities Fees; Fire Facilities Fees; Parkland Fees; Park Facilities Fees; and Traffic Program Fees.

Annual Report

The Mitigation Fee Act (Gov. Code, Section 66000 et seq.) requires that an annual report be made available to the public within 180 days after the last day of each fiscal year. For each separate account or fund established the City must provide certain information.

Note that every five years Government Code Section 66001(d) requires the Council to make certain findings with respect to unexpended impact fees following the first deposit into the fee account. The Council made these findings on March 2, 2021, with the approval of the FY 2019/20 Development Impact Fee Annual and Five Year Report. The next Five Year Report will be presented to Council in FY 2024/25.

Annual Adjustment of Development Impact Fees

On April 18, 2017, the City Council adopted Resolution No. 2017-20 to establish a process for the annual adjustment of development impact fees commensurate with the increase in the Engineering News Record-Construction Cost Index (ENR-CCI) for the San Francisco Bay

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Staff Report (ID # 4734) Meeting of December 6, 2022
Updated: 11/30/2022 2:14 PM by Alberto Quintanilla Page 2 Area, which measures the annual increases in general construction costs so that impact fees will continue to generate sufficient funds to construct the facilities needed to serve new development

Based on this prior Council direction, the City annually adjusts Development Impact Fees to keep pace with the inflationary cost of infrastructure construction. The index most widely used in the construction industry is the Construction Cost Index (CCI) prepared by the Engineering News Record for the San Francisco Bay Area. This index considers the cost of construction materials and labor and is distinctly different from the Consumer Price Index.

The currently published CCI reflects a 13.65% increase in construction costs over the past year. Consistent with past practice, staff recommends increasing all development fees by

13.65% effective July 1, 2023, as part of the annual review of development impact fees.

It is noted that based on prior Council direction, qualifying development projects with deed- restricted affordable housing units receive a 50% reduction in traffic, parkland, and park facilities fees.

DISCUSSION/ANALYSIS:

Annual Report

Staff has prepared the attached consolidated report that provides the disclosure information required to comply with Government Code Sec. 66006(b) for Fiscal Year 2021/22, which includes the following information:
(A) A brief description of the type of fee in the account or fund. (B) The amount of the fee.
(C) The beginning and ending balance of the account or fund. (D) The amount of fees collected and interest earned.
(E) An identification of each public improvement on which fees were expended and the amount of expenditures on each improvement including the total percentage of the cost of the public improvement that was funded with fees. (F) An identification of an approximate date by which the construction of the public improvement will commence if the local agency determines that sufficient funds have been collected to complete financing on an incomplete public improvement and the public improvement remains incomplete.
(G) A description of each interfund transfer or loan made from the account or fund, including the public improvement on which the transferred or loaned fees will be expended, and, in the case of an interfund loan, the date on which the loan will be repaid, and the rate of interest that the account or fund will receive on the loan. (H) The amount of refunds made (as pursuant to GC 66001e) due to sufficient funds being collected to complete financing on incomplete public improvements, and the amount of reallocation of funds made (as pursuant to GC 66001f) due to administrative costs of refunding unexpended revenues exceeding the amount to be refunded.

Adjusted Impact Fees – Effective July 1, 2023

State law requires a minimum 60-day period after Council approval for fee increases to go into effect. The proposed 13.65% annual fee adjustment would go into effect July 1, 2023,

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Staff Report (ID # 4734) Meeting of December 6, 2022
Updated: 11/30/2022 2:14 PM by Alberto Quintanilla Page 3 which is more than the 60 days required by state law. The new development impact fees effective July 1, 2023, are shown in Exhibit A to the Resolution included with this item.

Public Notice

Fee increases require a noticed public hearing, and the City published the public hearing notice in the Tri-City Voice on November 22, 2022. Additionally, email and text notification to the public was sent to approximately 2,121 email subscribers and 446 text subscribers listed on the City’s eNews Notify Me subscribers of the Builder’s Interest list on November 22, 2022.

FISCAL IMPACT: The proposed adjustment of 13.65% to the development impact fees would ensure that new development is adequately funding its share of the costs of new public facilities as the costs to construct these projects increase over time. The annual adjustment to the impact fees provides for fees that better reflect construction cost increases to ensure the City does not subsidize new development’s share of these facilities and that adequate funding is available when the City is ready to construct the projects.

ENVIRONMENTAL REVIEW: The recommended action is exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3) in that it is not a project which has the potential for causing a significant effect on the environment.

ATTACHMENTS:
• Development Impact Fee Annual Report for Period Ending June 30. 2022 • Exhibit A Proposed Development Impact Fees Effective July 1, 2023 • Draft Resolution Development Impact Fee Annual Report and Increase (Final)

RECOMMENDATIONS:

1. Approve the Development Impact Fee Annual Report FY 2021/22.

2. Hold a public hearing to hear any public comments regarding the proposed impact fee adjustment.

3. Adopt a resolution approving a 13.65% increase to development impact fees for the capital facilities, fire facilities, park facilities, parkland, and traffic programs to reflect construction cost changes in 2022, effective July 1, 2023.

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1 Development Impact Fee
Annual Report
for
Period Ending
June 30, 2022

December 06, 2022

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 2 Development Impact Fee Annual Report
Table of Contents

Overview and Legal Requirements for Development Impact Fee Reporting ......................... 3 Parkland Fee.................................................................................................................................. 4 Park Facilities Fee ......................................................................................................................... 6 Traffic Impact Fee ........................................................................................................................ 9 Fire Facilities Fee ........................................................................................................................ 13 Capital Facilities Fee................................................................................................................... 15 Comprehensive List Development Impact Fees Effective August 2, 2021 ............................. 17

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 3 Overview and Legal Requirements for Development Impact Fee Reporting

This report is intended to fulfill the annual requirements set forth in the Mitigation Fee Act (Government Code Section 66000 et seq.) with respect to the City of Fremont’s Development Impact Fees. The City has five Development Impact Fees:

• Parkland Fee
• Park Facilities Fee
• Traffic Facilities Fee
• Fire Facilities Fee
• Capital Facilities Fee

The City has established separate funds for each of these five fees. When a developer pays a development impact fee, the payment is credited to the appropriate fund. Interest earned on the money in a fund is credited to that fund. Each fund is available only for the purpose for which its associated development impact fee was charged, and expenditures cannot be made from a fund for any other purpose.

For each development impact fee fund, the following information is provided in this Report:

A. Annual Reporting Information (Required by Gov’t Code Sec. 66006) (This information is provided for the fiscal year beginning July 1, 2021 and ending June 30, 2022.

1. A brief description of the type of fee in the fund.

2. The rate of the fee.

3. The beginning and ending balance in the fund for the fiscal year.

4. The amount of fees collected, and interest earned during the fiscal year.

5. An identification of each public improvement on which fees were expended during the fiscal year and the amount of the expenditures on each improvement, including the total percentage of the cost of the public improvement that was funded with fees.

6. If both (i) sufficient funds have been collected to complete financing on an incomplete public improvement that was identified at the time the fee was imposed and (ii) the public improvement remains incomplete, an identification of an approximate date by which the construction of the public improvement will commence.

7. A description of each interfund transfer or loan made from the account or fund, including the public improvement on which the transferred or loaned fees will be expended, and, in the case of an interfund loan, the date on which the loan will be repaid, and the rate of interest that the account or funds will receive on the loan.

Note that, during Fiscal Year July 1, 2021, through June 30, 2022, no refunds pursuant to Government Code Section 66001(e) or allocations pursuant to Government Code Section 66001(f) were made in connection with any of the DIF accounts.

All projections regarding future use of City funds for public improvements are made with reference to the most recent Capital Improvement Program of the City adopted by the City Council on June 15, 2020, as amended and updated from time to time.

All fees are administered pursuant to Chapter 18.290 of the Fremont Municipal Code.

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 4 Parkland Fee
Annual Information

1. Brief Description of the Fee: The parkland fee is levied on all new residential development to pay for new development’s share of the cost of acquiring land for parks.

For further information on the fee calculation methodology, please refer to the Parkland and Park Facilities Fee Technical Report, May 17, 2021, and the Comprehensive Development Impact Fee Background Report, May 17, 2021, prepared by Willdan Financial Services, report available: https://www.fremont.gov/government/departments/community- development/planning-building-permit-services/fees.

2. Fee Rate: The rate of the fee effective August 2, 2021, per dwelling unit, based on the number of bedrooms in the dwelling unit, is set forth below:

Land Use Parkland
0 bedrooms (studios) $4,859
1 bedroom $7,529
2 bedrooms $10,353
3 bedrooms $12,678
4 bedrooms $15,846
>4 per add’l bedroom $2,921

3. Fund Balance: The balance of the parkland fee fund as of the following dates was:

Beginning Balance - July 1, 2021 $52,947,933
Ending Balance - June 30, 2022 $56,220,860

4. Fees Collected and Interest Earned: The total of the fees collected, and interest earned on the fund during the period from July 1, 2021, through June 30, 2022, was:

Fees Collected: $4,227,019
Interest Earned: $ (914,132)

5. Identification of Funded Improvements: No parkland was purchased in fiscal year July 1, 2021, through June 30, 2022. The City began recruitment of a real estate broker/firm to assist with analysis of potential park land purchase opportunities. A net expenditure in the amount of $39,960 was expensed to this fund during this fiscal year.

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 5 6. Outstanding Projects (as of June 30, 2022): Sufficient funds have not been collected to complete financing on an incomplete public improvement that was identified at the time the fee was imposed and which remains incomplete at this time. The City continually seeks to identify available parcels of land that can be purchased for a prudent price, are available for purchase, in compliance with the Parks and Recreation Master Plan, and meets the City’s parkland needs. The City has recruited for a real estate broker/firm to assist with analysis of potential parkland purchase opportunities.

7. Interfund Activities: There were no interfund loans or transfers during the period from July 1, 2021, through June 30, 2022.

For more information about the parkland program, reference is made to:

(i) Parkland and Park Facilities Fee Technical Report, May 17, 2021 (ii) Comprehensive Development Impact Fee Background Report, May 17, 2021

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Name of Project
Amount of
Impact Fee
Expensed in
FY 21/22
Amount of Fee
Proceeds in
Project
Total Project
Cost
% of Project Funded
From Fee:

Amount of Fee
Proceeds / Total
Project Cost
Park Acquisition - 94 Acres 25 2,773,000 2,933,731 95% Development Impact Fee Review 21,503 663,475 4,214,907 16% Parkland Acq Admin Support 18,433 200,000 200,000 100% 39,960$ - - -

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 6 Park Facilities Fee
Annual Information

1. Brief Description of the Fee: The fee is levied to fund construction of park facilities that are needed to serve new residential development.

For further information on the fee calculation methodology, see Parkland and Park Facilities Fee Technical Report, May 17, 2021 , and the Comprehensive Development Impact Fee Background Report, May 17, 2021, prepared by Willdan Financial Services, report available:
https://www.fremont.gov/government/departments/community-development/planning- building-permit-services/fees

2. Fee Rate: The rate of the fee effective August 2, 2021, per dwelling unit, based on the number of bedrooms in the dwelling unit, is set forth below:

Land Use
Park
Facilities
0 bedrooms (studios) $5,776
1 bedroom $8,663
2 bedrooms $12,129
3 bedrooms $15,017
4 bedrooms $18,482
>4 per bedroom $3,465

3. Fund Balance: The balance of the park facilities fee funds as of the following dates was:

Beginning Balance - July 1, 2021 $52,190,750
Ending Balance - June 30, 2022 $46,833,580

4. Fees Collected and Interest Earned: The total of the fees collected, and interest earned on the fund during the period from July 1, 2021, through June 30, 2022 was:

Fees Collected: $4,920,787
Interest Earned: $ (795,069)

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 7 5. Identification of Funded Improvements: Fee proceeds were expended on 24 public improvement and administrative programs during the period from July 1, 2021, through June 30, 2022. These projects, the cost per project, and the percentage of costs paid by fees are included in the chart below:

6. Outstanding Projects (as of June 30, 2022): Sufficient funds have been collected to complete financing on 19 outstanding projects. These projects and the anticipated construction/commencement dates are listed below:

Project Name Anticipated Construction/Commencement Date

Dusterberry Neighborhood Park (New

4.25-acre park)
Already Commenced
Centerville Community Park (Expand
existing park by 10 acres)
Winter 2023
California Nursery Implementation Already Commenced
Security in Parks (Bollards and New
Fencing
Already Commenced
Palm Avenue Park (New 12-acre park) Fall 2024
Central Park Trail/Loop Parking Lot Fall 2023
Central Park Boat Dock & Babbling
Brook Bridge Analysis
Already Commenced
Skate Park Picnic Area Spring 2023
New Parks and Recreation Master Plan Already Commenced
Name of Project
Amount of
Impact Fee
Expensed in FY
21/22
Amount of Fee
Proceeds in
Project
Total Project
Cost
% of Project Funded
From Fee:

Amount of Fee
Proceeds / Total Project
Cost
Park Planning 93,104 2,845,000 4,379,528 65% CIP Preparation 7,127 78,000 2,797,000 3% Centerville Community Park Improvements 65,372 11,198,469 12,248,588 91% Dusterberry Park Development 353,433 8,326,412 12,326,412 68% Warm Springs Park Restroom Replacement 53 451,191 1,369,335 33% Civic Park in Downtown 526,510 3,000,000 3,000,000 100% Cal Nursery Master Plan 7,406,273 16,596,652 18,614,562 89% Municipal Parcel Startup Design 790 5,500,000 14,668,970 37% Central Pk Trail/Loop Parking Lot 75,076 4,988,300 5,013,300 100% Central Pk Corp Picnic Area 6,344 5,920,900 8,089,570 73% Cent Pk Boat Dock/Babbling Brook 55,952 218,000 236,000 92% Park Signs 5,506 1,365,925 1,365,925 100% Central Park Skate Pk Picnic Area 22,457 331,000 331,000 100% Update Parks & Rec Master Plan Doc 342,869 1,495,000 1,495,000 100% Central Pk All Incl Exercise Equip 59,814 800,000 800,000 100% Central Pk Cricket Field Shade 14,574 153,000 153,000 100% Central Pk Path East Meadow 75,878 1,150,000 1,150,000 100% Central Pk Path Sr Ctr to Lions Pic 67,118 224,046 224,046 100% Central Pk Stevenson to Lake ACFC 77,318 1,170,000 1,170,000 100% Central Pk Path FCC to Lions Picnic 5,027 300,000 300,000 100% Central Pk Mammoth Picnic Area Upgr 104,553 559,308 559,308 100% Sylester Harvey Comm Pk Loop Trail 109,020 1,370,000 1,370,000 100% Update Parks Standard & Trail Details 733 100,000 100,000 100% Development Impact Fee Review 7,987 1,478,657 4,214,907 35% 9,482,888$ - - -

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 8 All-inclusive Exercise Equipment at
Central Park
Already Commenced
Cricket Field Shade Spring 2023
Park Planning Already Commenced
CIP Preparation Already Commenced
Central Park Path at Lions Picnic Area Already Commenced Mammoth Picnic Area Upgrade Already Commenced
Central Park East Meadow Trail Already Commenced
Northgate Community Park Roofed
Arbor
Fall 2023
Buena Vista Loop Trail Already Commenced
Pickleball Court Conversion Spring 2024

7. Interfund Activities: There were no interfund loans or transfers during the period from July 1, 2021, through June 30, 2022.

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 9 Traffic Impact Fee
Annual Information

1. Brief Description of the Fee: The traffic impact fee is assessed on new development for its proportionate share of the costs of traffic improvements attributable to increased trips generated by new development through 2035 on the citywide transportation system.

For further information on the fee calculation methodology, please refer to the Traffic Impact Fee Technical Report, May 17, 2021 and the Comprehensive Development Impact Fee Background Report, May 17, 2021, prepared by Willdan Financial Service, report available: https://www.fremont.gov/government/departments/community- development/planning-building-permit-services/fees

2. Fee Rate – The rate of the fee effective August 2, 2021, is set forth below:

Land Use Traffic
0 bedrooms (studios) $2,382
1 bedroom $2,382
2 bedrooms $2,661
3 bedrooms $2,661
4 bedrooms $4,051
>4 per bedroom
See
Note 4
Office (KSF) $5,917
Retail/Service (KSF) $8,102
Warehouse (KSF) $3,503
Light Industrial (KSF) $4,289
Manufacturing (KSF) $2,978
Research & Development (KSF) $4,249
Business Park (KSF) $5,004
Convalescent Home/Nursing Home (KSF) $4,011
Assisted Living/Congregate Care Facility
(KSF) $795
Hospital (KSF) $4,564
Religious Facility (KSF) $3,734
Schools, all (K-12) (KSF) $8,419
School, Vocation/Trade/Collegian (KSF) $10,484
Hotel/Motel (Room) $2,423

4. Under the Traffic fee, residential units with more than four bedrooms pay the fee applicable to a 4-bedroom unit.

3. Fund Balance: The balance of the traffic impact fee fund as of the following dates was:

Beginning Balance - July 1, 2021 $15,246,927
Ending Balance - June 30, 2022 $10,550,603

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 10 4. Fees Collected and Interest Earned: The total of the fees collected, and interest earned on the fund during the period from July 1, 2021, through June 30, 2022 was:

Fees Collected: $1,063,887
Interest Earned: $ (194,407)

5. Identification of Funded Improvements: Fee proceeds were expended on 30 public improvement projects and administrative programs during the period from July 1, 2021, through June 30, 2022, as noted in the charts below. These projects, the cost per project, and the percentage of cost paid by fees are included in the chart below:

Project # Description
Amount of
Impact Fee
Expensed in
FY 21/22
Amount of Fee
Proceeds in
Project
Total Project
Cost
% of Project
Funded From Fee:

Amount of Fee
Proceeds / Total
Project Cost
7953 Traffic Signal Various Locations 296,630 3,472,751 4,564,177 76% 8156 Washington R/R Grade Sep 128,535 180,000 1,637,558 11% 8460 Niles Blvd Bridge Repl 50,000 52,176 7,850,542 1% 8493 Kato Rd Widening @ Warren 95,133 500,000 500,000 100% 8661 Fremont Imp South of Cushing 1,846 3,975,873 4,370,746 91% 8677 Mowry/State Intersection Imps 203,662 1,456,146 3,906,146 37% 8804 Warm Springs Bridge Dev 4,569 3,649,638 35,010,167 10% 8828 Quite Zones (Nursery Ave) (11,091) 734,500 3,047,465 24% 8874 Bikeway Imps 333,408 1,383,234 3,972,941 35% 8880 Warm Springs Dev Infrastructure 6,878 820,051 1,610,766 51% 8907 Bike/Ped Bridge over I880 268,952 1,050,000 6,645,035 16% 8922 Fremont Blvd Safe & Smart Corridor 656,981 2,762,195 12,550,695 22% 8927 Fremont/Mowry/Stevenson Protected 375,161 1,955,000 3,552,203 55% 8930 Traffic Signal Install Mission/Sullivan 24,600 950,000 950,000 100% 8931 Traffic Signal Upgrade & Modernization 650,006 1,923,825 2,567,200 75% 8932 Grimmer Blvd (Fremont to PPP) 246,037 2,700,000 5,700,000 47% 8944 Pedestrian Imps 168,185 285,326 1,362,838 21% 8946 Complete Streets Upgrade of SR84 266,950 760,000 4,370,000 17% 8947 State Route 262 Cross Connector 9,405 100,000 200,000 50% 8959 Walnut Ave Protected Bikeway 5,403 989,986 7,374,709 13% 8977 Sabercat Trail Extension Project 26,659 407,000 6,092,000 7% 8978 I880 Bike & Ped Trail-Christy - So Grimmer 70,661 635,000 2,859,000 22% 9021 I680 Interchange Modernization 54,242 150,000 10,375,000 1% 9022 I880/Decoto Rd Interchange Modernization 10,161 75,000 1,100,000 7% 9025 Decoto Rd Complete ST & Transit Priority 422,797 609,233 1,634,233 37% 9026 Dumbarton Bridge to Quarry Lakes Tr 73,741 300,000 2,600,000 12% 9033 Niles/Rancho Safe & Complete Streets 765,779 1,110,000 1,908,615 58% 9037 Walnut Ave/Liberty Protected Inter 265,884 350,000 1,441,000 24% 9044 Traffic Signal Mod Fremont/Walnut 50,000 50,000 100,000 50% 8315 Development Impact Fee Review 44,628 1,100,368 4,214,907 26% Totals 5,565,804$ - - -

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 11 Planning or Program Activities Information-during 2021/22 is provided below:

Name of Program or
Planning Activity
Notes
Traffic Signal;
Major Improvements
(PWC7953)

1) Installation of enhanced traffic signal equipment, including new signal controllers, video detection cameras, CCTV traffic monitoring cameras, and touchless pedestrian push buttons. (Citywide).
2) Development of new traffic signal coordination timing (along Stevenson Boulevard, Mowry Avenue, Warm Springs Boulevard, Thornton Avenue, Blacow Road, and Central Avenue).

Development Impact
Fee Update
(PWC8315)
General administration of the City’s Traffic Impact Fee Program.

Bikeway &
Pedestrian Program
(PWC8875)

1) Design and construction of the Year 3 Bikeway Striping project. 2) Upgrade of existing bike lane separation bollards along Paseo Padre Parkway between Fremont Boulevard and Chaucer Driver.

Traffic Signals:

Upgrades &
Modernization
(PWC8931)

1) Construction management and contract administration for the Fremont Boulevard Safe/Smart Corridor Project. The project scope includes the installation of new traffic signal heads, reflective backplates, signal controllers, signal cabinet upgrades, intersection analytics systems, adaptive signal coordination, signal performance measure systems, Bluetooth travel time devices, touchless pedestrian push buttons, smart street lighting, video detection camera systems, roadside communication units, and the installation of new fiber communication along the entire length of Fremont Boulevard between the two I-880 interchanges.
2) Upgrade of existing fiber communication conduit along Warm Springs Boulevard near Mayten Way.

Pedestrian
Improvement
Program
(PWC8944)
1) Design and construction of the 2022 Pedestrian Crossing Enhancement Project, which installs ADA ramps, high visibility crosswalks, and RRFB flashing beacons at pedestrian crossings at Walnut/Godfrey, Paseo Padre Parkway/Onondaga Way, and Mission Boulevard (in front of Ohlone College). crosswalk beacon at Driscoll Road/Mission Creek Trail crossing. 2) Matching funds for the secured HSIP grant for the 2023 Pedestrian Crossing Enhancement Project.

6. Outstanding Projects (as of June 30, 2022): Sufficient funds have been collected to complete financing on 7 outstanding projects. These projects and the anticipated construction commencement dates are listed below:

Project Name Anticipated Construction
Start Date
Fremont Boulevard Safe/Smart Corridor Project (PWC8922)

January 2022
Mission / Sullivan Traffic Signal (PWC8930) Summer 2023 Fremont/Eugene and Fremont/ Grimmer Protected Intersection Project (PWC8932)
Spring 2023
2023 Pedestrian Crossing Enhancement Project (PWC8944) Late Fall 2023

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 12 Centerville Complete Street Project (PWC8946) Fall 2023 Walnut Avenue/Liberty Street Protected Intersection Project (PWC9037)
Spring 2023
Fremont Boulevard / Walnut Avenue Protected Intersection Project. (PWC9044)
Spring 2023

Sufficient funds have not been collected to complete financing on the I-880/Innovation Bridge which remains incomplete at this time. The City continually seeks to identify grant funds available to support this project.

7. Interfund Activities: There were no interfund loans or transfers during the period from July 1, 2021, through June 30, 2022.

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 13 Fire Facilities Fee
Annual Information

1. Brief Description of the Fee: The fire facilities fee is assessed on new residential, commercial, and industrial development to pay for its proportionate share of land and construction costs for fire stations and the acquisition cost of fire apparatus and equipment that will be needed to provide adequate fire protection and emergency services for new development.

For further information on the fee calculation methodology, see Fire Facilities Impact Fee Technical Report, May 17, 2021, and the Comprehensive Development Impact Fee Background Report, May 17, 2021, prepared by Willdan Financial Services, report available:
https://www.fremont.gov/government/departments/community-development/planning- building-permit-services/fees

2. Fee Rate: The rate of the fee effective August 2, 2021, is set forth below:

Land Use
Fire
Facilities
0 bedrooms (studios) $256
1 bedroom $347
2 bedrooms $515
3 bedrooms $659
4 bedrooms $773
>4 per bedroom $153
Office (KSF) $631
Retail/Service (KSF) $375
Warehouse (KSF) $377
Light Industrial (KSF) $211
Manufacturing (KSF) $385
Research & Development (KSF) $488
Business Park (KSF) See Note 5
Convalescent Home/Nursing Home (KSF) $211
Assisted Living/Congregate Care Facility
(KSF) $211
Hospital (KSF) $211
Religious Facility (KSF) $545
Schools, all (K-12) (KSF) $545
School, Vocation/Trade/Collegian (KSF) $545
Hotel/Motel (Room) $120

Note 5. For uses paying the Traffic fee as a Business Park, the most applicable Capital Facilities and Fire Facilities fees would also apply (e.g., office, manufacturing).

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 14 3. Fund Balance: The balance of the fire facilities fee fund as of the following date was:

Beginning Balance - July 1, 2021 $3,538,332
Ending Balance - June 30, 2022 $ 660,669

4. Fees Collected and Interest Earned: The total of the fees collected, and interest earned on the fund during the period from July 1, 2021, through June 30, 2022, was:

Fees Collected: $303,971
Interest Earned: $ (12,343)

5. Identification of Funded Improvements: During fiscal year July 1, 2021, through June 30,2022, $2,168,870 of fire facilities fees was used to purchase fire apparatus and $421 was used to support the administrative costs associated with the Impact Fee program.

6. Outstanding Projects (as of June 30, 2022): Sufficient funds have not been collected to complete financing on an incomplete public improvement that was identified at the time the fee was imposed and which remains incomplete at this time.

7. Interfund Activities: During the period from July 1, 2021, through June 30, 2022, there were no interfund loans, but $1 million was transferred to the general fund to pay a portion of the debt service on the City’s 2017B Lease Revenue Bonds and 2019 Lease Revenue Bonds.

These debt issues funded the following facilities, which were designed to accommodate future development: fire station land acquisition, construction and furnishings, and fire apparatus.

The amount of debt service funded by the interfund transfer did not exceed the proportion of project cost (principal and interest) that is allocable to new/future development.

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Project # Description
Amount of
Impact Fee
Expensed in
FY 21/22
Amount of Fee
Proceeds in
Project
Total Project
Cost
% of Project
Funded From Fee:

Amount of Fee
Proceeds / Total
Project Cost
8930 Development Impact Fee Review 421 115,568 4,214,907 3% 8931 Purchase of Fire Vehicles 2,168,870 2,168,870 2,168,870 100% Totals 2,169,291$ - - -

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 15 Capital Facilities Fee
Annual Information

1. Brief Description of the Fee: The purpose of the capital facilities impact fee is to fund the capital facilities needed to serve new development, including city administration, police, animal shelter, and library facilities.

For information on the fee calculation methodology and a list of planned facilities, see Table A.3 of the Capital Facilities Fee Technical Report, May 17, 2021, also background information is provided in the Comprehensive Development Impact Fee Background Report, May 17, 2021, both reports prepared by Willdan Financial Services, report available:
https://www.fremont.gov/government/departments/community-development/planning- building-permit-services/fee

2. Fee Rate: The rate of the fee effective August 2, 2021, is set forth below:

Land Use
Capital
Facilities
0 bedrooms (studios) $1,366
1 bedroom $1,847
2 bedrooms $2,743
3 bedrooms $3,512
4 bedrooms $4,120
>4 per bedroom $815
Office (KSF) $1,065
Retail/Service (KSF) $633
Warehouse (KSF) $456
Light Industrial (KSF) $356
Manufacturing (KSF) $648
Research & Development (KSF) $822
Business Park (KSF) See Note 5
Convalescent Home/Nursing Home (KSF) $356
Assisted Living/Congregate Care Facility
(KSF) $356
Hospital (KSF) $356
Religious Facility (KSF) $918
Schools, all (K-12) (KSF) $918
School, Vocation/Trade/Collegian (KSF) $918
Hotel/Motel (Room) $203

Note 5. For uses paying the Traffic fee as a Business Park, the most applicable Capital Facilities and Fire Facilities fees would also apply (e.g., office, manufacturing).

3. Fund Balance: The balance of the capital facilities fee fund as of the following date was:

Beginning Balance - July 1, 2021 $2,377,060

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 16 Ending Balance - June 30, 2022 $1,616,747

4. Fees Collected and Interest Earned: The total of the fees collected, and interest earned on the fund during the period from July 1, 2021, through June 30, 2022 was:

Fees Collected: $1,590,929
Interest Earned: $ (31,388)

5. Identification of Funded Improvements: During fiscal year July 1, 2021, through June 30, 2022, $1,316,912 of capital facilities fees were used to pay a portion of the acquisition costs for the Age Well Center at South Fremont, and $2,942 was used to support the administrative costs associated with the Impact Fee program.

These debt issues funded the following facilities, which were designed to accommodate future development: city hall, police administration center, police detention facility, maintenance center, development services center, main library, family resource center, animal shelter, and senior center expansion.

The amount of debt service funded by the interfund transfer did not exceed the proportion of project cost (principal and interest) that is allocable to new/future development.

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 17 Comprehensive List Development Impact Fees Effective August 2, 2021

This chart is provided to present the comprehensive listing of fees established for all fee categories, effective 8/2/2021:

Land Use Capital
Facilities
Fire
Facilities
Traffic Parkland Park
Facilities
0 bedrooms (studios) $1,120 $162 $2,280 $4,921 $5,528
1 bedroom $1,681 $243 $2,280 $7,383 $8,292
2 bedrooms $2,353 $340 $2,547 $10,335 $11,609
3 bedrooms $2,912 $420 $2,547 $12,794 $14,373
4 bedrooms $3,585 $518 $3,877 $15,747 $17,689
>4 per bedroom $672 $97 See Note 4 $2,952 $3,316
Office (KSF) $1,037 $349 $5,663 --- ---
Retail/Service (KSF) $618 $207 $7,754 --- ---
Warehouse (KSF) $444 $150 $1,711 --- ---
Light Industrial (KSF) $347 $117 $4,105 --- ---
Manufacturing (KSF) $631 $212 $2,850 --- ---
Research & Development (KSF) $801 $270 $4,066 --- ---
Business Park (KSF) See Note 5 See Note 5 $4,790 --- --- Convalescent Home/Nursing Home (KSF) $347 $117 $3,839 --- --- Assisted Living/Congregate Care Facility
(KSF)
$347 $117 $760 --- ---
Hospital (KSF) $347 $117 $4,368 --- ---
Religious Facility (KSF) $894 $300 $3,573 --- ---
Schools, all (K-12) (KSF) $894 $300 $8,058 --- ---
School, Vocation/Trade/Collegian (KSF) $894 $300 $10,035 --- --- Hotel/Motel (Room) $197 $67 $2,319 --- ---
Other Use Not Listed Determined based on similar use

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT 18 Business Park (KSF) See Note 5 See Note 5 $4,790 --- --- Convalescent Home/Nursing Home (KSF) $347 $117 $3,839 --- --- Assisted Living/Congregate Care Facility (KSF) $347 $117 $760 --- --- Hospital (KSF) $347 $117 $4,368 --- ---
Religious Facility (KSF) $894 $300 $3,573 --- ---
Schools, all (K-12) (KSF) $894 $300 $8,058 --- ---
School, Vocation/Trade/Collegian (KSF) $894 $300 $10,035 --- --- Hotel/Motel (Room) $197 $67 $2,319 --- ---
Other Use Not Listed Determined based on similar use

Notes:
“…” = No applicable fee
“KSF” = thousand square feet

1. Definitions application to land use categories from the Comprehensive Development Impact Fee Update Background Technical Report shall be used in applying the fees above and are attached for convenience.

2. Residential uses pay all five fees listed above.

3. Non-residential uses pay three fees, being: Capital Facilities; Fire Facilities; and Traffic fees.

4. Under the Traffic fee, residential units with more than four bedrooms pay the fee applicable to a 4-bedroom unit.

5. For uses paying the Traffic fee as a Business Park, the most applicable Capital Facilities and Fire Facilities fees would also apply (e.g., office, manufacturing).

6. Any qualifying project with deed-restricted affordable housing units shall pay Traffic, Parkland, and Park Facilities fees at a rate that is 50% of the rate shown above. Capital and Fire Facilities fees shall be paid at the full rate shown above.

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Attachment: Development Impact Fee Annual Report for Period Ending June 30. 2022 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT Exhibit A

City of Fremont-Development Impact Fees, Effective July 1, 2023 Amend Master Fee Schedule Section 11.M Development Impact Fees, Effective July 1, 2023, as follows:

KSF: Thousand square feet
Land Use
Capital
Facilities
Fire
Facilities Traffic Parkland
Park
Facilities
0 bedrooms (studios) $1,655 $310 $2,886 $5,888 $6,999
1 bedroom $2,238 $421 $2,886 $9,123 $10,497
2 bedrooms $3,324 $624 $3,224 $12,545 $14,697
3 bedrooms $4,255 $799 $3,224 $15,362 $18,197
4 bedrooms $4,993 $936 $4,909 $19,201 $22,395
>4 per bedroom $988 $185 See Note 4 $3,539 $4,199
Office (KSF) $1,291 $765 $7,170 0 0
Retail/Service (KSF) $767 $455 $9,817 0 0
Warehouse (KSF) $552 $457 $4,245 0 0
Light Industrial (KSF) $432 $256 $5,197 0 0
Manufacturing (KSF) $785 $466 $3,609 0 0
Research & Development (KSF) $996 $591 $5,149 0 0
Business Park (KSF) See Note 5 See Note 5 $6,064 0 0
Convalescent Home/Nursing Home (KSF) $432 $256 $4,860 0 0 Assisted Living/Congregate Care Facility (KSF) $432 $256 $963 0 0 Hospital (KSF) $432 $256 $5,530 0 0
Religious Facility (KSF) $1,113 $660 $4,525 0 0
Schools, all (K-12) (KSF) $1,113 $660 $10,202 0 0
School, Vocation/Trade/Collegian (KSF) $1,113 $660 $12,704 0 0 Hotel/Motel (Room) $245 $145 $2,936 0 0
Notes:

6. Any qualifying project with deed-restricted affordable housing units shall pay Traffic, Parkland, and Park Facilities Fee, at a rate that is 50% of the rate showing above. Capital Facilties and Fire Facilities Fees shall be paid at the full rate shown above.

1. Definitions application to land use categories from the Comprehensive Development Impact Fee Update Background Technical Report shall be used in applying the fees above.

2. Residential uses pay all five fees listed above.

3. Non-residential uses pay three fees, being: Capital Facilities; Fire Facilities; and Traffic fees.

4. Under the Traffic fee, residential units with more than four bedrooms pay the fee applicable to a 4-bedroom unit.

5. For uses paying the Traffic fee as a Business Park, the most applicable Capital Facilities and Fire Facilities fees would also apply (e.g., office, manufacturing).

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Attachment: Exhibit A Proposed Development Impact Fees Effective July 1, 2023 (4734 : DEVELOPMENT IMPACT FEE ANNUAL REPORT AND

Resolution 2022-XX Page 1 of 3 DRAFT

RESOLUTION NO. 2022-XX

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF

FREMONT APPROVING THE ANNUAL INCREASE IN

DEVELOPMENT IMPACT FEES TO REFLECT INCREASES IN THE

ENGINEERING NEWS RECORD CONSTRUCTION COST INDEX
FOR THE SAN FRANCISCO BAY AREA.

WHEREAS, the City has five Development Impact Fees, which are the Parkland Fee, the Park Facilities Fee, the Traffic Impact Fee, the Fire Facilities Fee, and the Capital Facilities Fees; these fees are administered in accordance with the City’s Impact Fee Ordinance, Fremont Municipal Code Section 18.290; and

WHEREAS, Government Code Section 66006(b) requires the City to make available to the public certain information regarding its development impact fee accounts each year; and

WHEREAS, on April 18, 2017, the City Council adopted Resolution No. 2017-20 to establish a process for the annual adjustment of development impact fees commensurate with the increase in the Engineering News Record-Construction Cost Index (ENR-CCI) for the San Francisco Bay Area, which measures the annual increases in general construction costs so that impact fees will continue to generate sufficient funds to construct the facilities needed to serve new development, and to adjust the development impact fees by the percentage increase in the ENR-CCI for 2022; and

WHEREAS, the ENR-CCI for the San Francisco Bay Area indicates that general construction costs increased 13.65 percent in 2022; and

WHEREAS, on December 6, 2022, the City Council held a duly-noticed public hearing with respect to the proposed development impact fee adjustment where all members of the public had an opportunity to be heard; and

WHEREAS, the City Council now wishes to adjust the fees in accordance with the increase in the ENR-CCI for the San Francisco Bay Area and amend the City’s Master Fee Resolution (Resolution No. 8672 as amended) to reflect the new revised rates.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FREMONT RESOLVES AS FOLLOWS:

SECTION 1. The Council approves a 13.65% ENR -CCI increase to the City’s development impact fees , effective July 1, 2023, pursuant to Fremont Municipal Code Chapter 18.290 and Resolution 2017 -20.

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Attachment: Draft Resolution Development Impact Fee Annual Report and Increase (Final) (4734 : DEVELOPMENT IMPACT FEE ANNUAL

Resolution 2022-XX Page 2 of 3 SECTION 2. The Master Fee Schedule (adopted by Resolution No. 8672 , as amended from time to time ) is amended to reflect the Council’s approval of 13.65% ENR-CCI increase in development impact fee s, effective July 1, 2023, as shown by the new fee rates included in Exhibit “A” to this Resolution , and shall be administered in accordance with the City’s Impact Fee Ordinance.

SECTION 3. This resolution becomes effective on July 1, 2023, at which time it shall supersede all previous resolutions in conflict herewith . The increases to the development impact fees set fort h in this resolution shall take effect on July 1, 2023 .

All conflicting resolutions shall be d eemed repealed without further action by the City Council.

ADOPTED , 2022, by the City Council of the City of Fremont by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

Mayor

ATTEST: APPROVED AS TO FORM:

City Clerk City Attorney

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Attachment: Draft Resolution Development Impact Fee Annual Report and Increase (Final) (4734 : DEVELOPMENT IMPACT FEE ANNUAL

Resolution 2022-XX Page 3 of 3 Exhibit A

City of Fremont-Development Impact Fees, Effective July 1, 2023 Amend Master Fee Schedule Section 11.M, Development Impact Fees, Effective July 1, 2023, as follows:

1. Definitions application to land use categories from the Comprehensive Development Impact Fee Update Background Technical Report shall be used in applying the fees above.

2. Residential uses pay all five fees listed above.

3. Non-residential uses pay three fees, being: Capital Facilities; Fire Facilities; and Traffic fees.

4. Under the Traffic fee, residential units with more than four bedrooms pay the fee applicable to a 4-bedroom unit.

5. For uses paying the Traffic fee as a Business Park, the most applicable Capital Facilities and Fire Facilities fees would also apply (e.g., office, manufacturing).

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Attachment: Draft Resolution Development Impact Fee Annual Report and Increase (Final) (4734 : DEVELOPMENT IMPACT FEE ANNUAL Fremont City Council Meeting: 12/06/22 07:00 PM
3300 Capitol Avenue Div/Dept: Community Services
Fremont, CA 94538 Category: Agreements and Contracts

SCHEDULED
Sponsors:

STAFF REPORT (ID # 4763) DOC ID: 4763
Updated: 12/2/2022 1:45 PM by Alberto Quintanilla Page 1

MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK DISTRICT - Consider Options for the Continued Maintenance and Operations of the 900 acres at Stanford Staging Area and the larger Mission Peak area for the purpose of public park, recreation, and open space and find that no further environmental review is required for the lease pursuant to CEQA Guidelines 15307, 15162, 15163, 15678(b) and 15601(b)(3)
Contact Persons:

Name: Suzanne Wolf
Title: Community Services Director
Div/Dept: Community Services
Phone: 510-494-4329
E-Mail: [email protected]

Executive Summary: On November 15, 2022, the City Council considered a revised lease agreement with East Bay Regional Park District (“EBRPD”) concerning management and operation of City-owned on land on Mission Peak as a public park, recreation, and open space area. At the conclusion of the meeting, the City Council directed staff to return to a City Council at a work session to receive additional direction for lease negotiations on three specific issues. Subsequently, EBRPD staff has notified the City that the EBRPD is interested in moving forward with current version of the draft lease. Staff recommends approval by the City Council of the revised lease agreement.

BACKGROUND: The City owns approximately 900 acres of land on Mission Peak, which is zoned as an Open Space Resource Conservation Area (See Exhibit A to the proposed Lease).

On May 2, 1978, the City entered into 25-year lease agreement with East Bay Regional Park District (“EBRPD”) to manage and operate the land as a public park, recreation, and open space area. In 1993, pursuant to the terms of the 1978 Lease, the City and EBRPD extended the term of the Lease for twenty-seven years until July 7, 2020.

On May 17, 2016, the City Council created the Mission Peak Permit Parking Program. This Program was originally intended to be a temporary solution and was scheduled to expire on July 7, 2020. On May 19, 2020, the City Council adopted a three-year program extension that will expire on July 7, 2023.

In 2019, staff from both agencies began negotiations to renew the lease agreement, but this process was delayed because of the COVID 19 pandemic’s impact on both park systems. On December 15, 2020, the City Council directed staff to work towards developing a new long-term lease agreement since the 25-year lease extension expired in July 2020.

The lease automatically continues with the existing terms on a month-to-month basis, while the City and EBRPD continue negotiations.

On November 9, 2021, the City Council rejected the proposed lease agreement and requested the lease be redrafted to address specific Council concerns. The City Council directed staff to continue negotiations with EBRPD to consider further amendments that would shorten the timeframe of the agreement and to further clarify agreement language.

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Staff Report (ID # 4763) Meeting of December 6, 2022
Updated: 12/2/2022 1:45 PM by Alberto Quintanilla Page 2 City staff continued the negotiations as requested by City Council and brought the re- negotiated lease back to City Council on November 15, 2022.

At the November 15, 2022 meeting, the City Council majority identified three concerns about the re-negotiated lease including 1) the City having additional control over the hours of operation, 2) the City having a review or feedback process of EBRPD’s operation of the leased area, and 3) incorporating EBRPD’s agreement to not construct the parking lot into the lease.

DISCUSSION/ANALYSIS: This staff report focuses on the three items of interest identified by the City Council at the November 15, 2022 meeting, including 1) the hours of operation, 2) the cooperation paragraph between agencies, and 3) the parking lot side letter and capital improvement requirements. For a summary of prior negotiation points, attached as Informational Item 1 is a copy of the November 15, 2022 staff report and Informational Item 2 is the PowerPoint presentation.

Following the November 15, 2022 meeting, the City Manager contacted the General Manager to re-open negotiations regarding the three issues raised by the City Council, but EBRPD staff indicated that EBRPD is interested in moving forward with current version of the draft leases without any additional revisions. City staff recommends City Council approval of the current draft lease, without further amendment, based upon the following responses to Council concerns:

1) Hours of Operation
Council Concern: EBRPD could change the operating hours of the Stanford Staging Area without feedback from the public and therefore, the City should have additional authority prior to any modification.

Staff Response: The current operating hours have been in place since 2015, are identified in the current version of the lease, and EBRPD has expressed its intent to not change the hours unless required for unanticipated operational reasons.

Furthermore, the process in the proposed lease delivers two opportunities for the public to participate in any changes to the hours of operation at the Stanford Staging Area. First, EBRPD must provide the City with written notice at least 30 days before implementing any new hours and must include the change of hours on the agenda of a regularly scheduled public meeting. Second, the City may schedule a community meeting to discuss the proposed changes to the hours prior to the EBRPD meeting.

Additionally, the Fremont Police Department and EBRPD Police will work cooperatively to reduce curfew violations and impacts to the surrounding neighborhood from the hours of operation. Curfew enforcement at the staging area and at the park site is the responsibility of EBRPD, but the Fremont Police Department will respond to the Stanford Staging Area if there is an articulated need to send resources to the area to prevent, deter or follow-up on criminal activity or behavior that is deemed to be a public safety concern.

2) Cooperation between the agencies
Council Concern: The City does not a have mechanism detailed in the proposed lease to review the performance of EBRPD.

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Staff Report (ID # 4763) Meeting of December 6, 2022
Updated: 12/2/2022 1:45 PM by Alberto Quintanilla Page 3 Staff Response: The City has worked collaboratively with EBRPD and considers it a partner agency in providing service to the public. The proposed lease specifies that City and EBRPD agree to work together to resolve issues that arise under the lease.

The proposed lease requires the parties to utilize the liaison committee or City- EBRPD joint public meetings to discuss issues related to the leased area. This language is an agreement to work together as the two public agencies have for over 40 years to ensure the health and safety of the community.

As an expert in the field of managing open spaces for recreational purposes, EBRPD is qualified to provide the services under the draft lease. The EBRPD Board of Director, like the City Council, holds public meetings where the budget, enforcement, and other operational issues are discussed with participation from the public.

Therefore, the public also has this venue to voice any concerns it may have regarding the lease.

3) The Parking Lot Side Letter and Capital Improvement Requirements Council Concern: The draft lease does not include a provision preventing EBRPD from building a 300-space parking lot at the Stanford Staging Area despite written assurance from EBRPD.

Staff Response: The proposed lease provides the City authority to approve or disapprove construction of the parking lot. Specific language was added to the proposed lease creating a process to approve or deny any projects that would require permits from the City. Construction of the 300-space parking lot would require, at the minimum, a grading and building permit issued by the City.

Therefore, City staff could simply deny the request if EBRPD should ever attempt to build the parking lot during the term of the lease. This denial of the capital improvement would not be unreasonable, since EBRPD has provided a written assurance to not construct the parking lot during the proposed term of the lease and the City would be relying on that written assurance in entering into the lease. This project could also be disapproved based upon other reasonable grounds.

Consequently, the City could still prevent the construction of the parking lot even without incorporating the side letter into the proposed lease.

Lastly, the City is not well-position to assume operation and maintenance of the approximately 900 acres of City land on Mission Peak in either the short or long term.

Therefore, securing a lease agreement with EBRPD is an important operational and financial objective of the City.

FISCAL IMPACT: The funding for the operations and maintenance of the Mission Peak Lease is paid by the Fremont residents as part of their County Tax Assessment t o EBRPD.

The City does not receive any portion of this allocation for operations and maintenance (O&M), and if the lease agreement did not exist, a General Fund allocation would be required to cover all applicable O&M costs of this 900-acre site. In 2014, The National Recreation and Park Association, the national leader in cost assessments, has identified open space O&M to cost on average of $1,100 to $1,300 per acre. This means that the 900 acres at Mission Peak could cost the City of Fremont, approximately $1,000,000 to operate.

The City of Fremont has not identified any resources to operate and maintain this site.

Alternatively, if the General Fund allocation were unavailable, the City would need to consider a closure or partial closure of this site, which would be nearly impossible to enforce with limited resources. There would also be an assumed ongoing cost to manage the closure

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Staff Report (ID # 4763) Meeting of December 6, 2022
Updated: 12/2/2022 1:45 PM by Alberto Quintanilla Page 4 given the anticipated litter, debris, police, fire, and operating expenses in an ongoing manner. This funding has also not been identified and is estimated to cost a minimum of $500,000 initially to secure the site. If the Mission Peak Lease is not approved, it is anticipated that the City would either 1) begin to operate and manage the 900 acre property, which has significant cost considerations for the City of Fremont and the General Fund implications or 2) close the site for lack of resources, which also has significant cost implications for the City of Fremont.

ENVIRONMENTAL REVIEW: The continuation of a lease agreement with EBRPD for 900 acres at Mission Peak would be exempt from the requirements of the California Environmental Quality Act (CEQA) per, without limitation, each on a separate and independent basis, (1) CEQA Guidelines Section 15307, as an action taken by a regulatory agency for the protection of the environment, specifically, for the maintenance, restoration, or enhancement of a natural resource, specifically, for the protection of open space resources; (2) the continuation of Mission Peak as a park by EBRPD are part of the project analyzed in the General Plan EIR (SCH#2010082060) and none of the circumstances necessitating preparation of a subsequent EIR pursuant to Public Resources Code Section 21166 and CEQA Guidelines Sections 15162 and 15163 are present; and (3) CEQA Guidelines Sections 15378(b) and 15601(b)(3) as the lease continuation of an existing park is an administrative activity that will not result in an effect on the physical environment and any possible future development of the park will be developed later with the appropriate environmental review. There are no previously identified significant effects which are substantially more severe than analyzed in the prior EIR or cannot be substantially mitigated by the imposition of uniformly applied development policies or standards applied on a citywide basis.

ATTACHMENTS:
• Exhibit A - Proposed Amended Mission Peak Lease and Land Map • Exhibit B: Grazing License and Exhibits
• Informational Item 1: 11-15-2022 Staff Report
• Informational Item 2: 11-15-2022 PowerPoint Presentation

RECOMMENDATIONS:

Consider options and provide direction to Staff on the continued maintenance and operations of the 900 acres at Stanford Staging Area and the larger Mission Peak area for the purpose of public park, recreation, and open space in a form similar to the attached proposed lease.

Staff Recommendation:

Authorize the City Manager to execute a lease agreement with East Bay Regional Park District to include 900 acres at Stanford Staging Area and the larger Mission Peak area f or the purpose of public park, recreation, and open space in a form similar to the attached proposed lease.

If Council authorized the City Manager to execute a lease agreement with East Bay Regiona l Park District, find that continuation of the lease of 900 acres at Mission Peak to EBRPD would be exempt from the requirements of the California Environmental Quality Act (CEQA)

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Staff Report (ID # 4763) Meeting of December 6, 2022
Updated: 12/2/2022 1:45 PM by Alberto Quintanilla Page 5 per, without limitation, each on a separate and independent basis, (1) CEQA Guidelines Section 15307; (2) the continuation of Mission Peak as a park by EBRPD are part of the project analyzed in the General Plan EIR (SCH#2010082060) and none of the circumstances necessitating preparation of a subsequent EIR pursuant to Public Resources Code Section 21166 and CEQA Guidelines Sections 15162 and 15163 are present; and (3) CEQA Guidelines Sections 15378(b) and 15601(b)(3).

Alternative Options:

Option 1: Direct staff to engage East Bay Park District to ascertain whether they would be willing to consider continuing on with the existing terms on a month-to-month basis indefinitely.

Option 2: Direct staff to engage a consultant to analyze the costs associated with the City assuming the ongoing maintenance and operations for the 900 acres at Stanford Staging Area and the larger Mission Peak area assuming ongoing resources can be identified or alternatively developing a plan to close the site based on lack of resources. If Council directs staff to pursue Option 2, staff will negotiate terms with a consultant and bring back a subsequent staff report requesting additional financial resources to complete the study.

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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:

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY

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 15 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

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY

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.

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY

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 are

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY

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 to utilize the liaison committee or similar public meeting as needed to discuss issues regarding the Property.

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY

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 T o : E a s t B a y R e g i o n a l P a r k D i s t r i c t C i t y M a n a g e r A t t e n t i o n : G e n e r a l M a n a g e r 3300 Capitol Ave P . O . B ox 5381
Fremont, CA 94538 2950 Peralta Oaks Court
O a k l a nd, 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

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY

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.

[INSERT SIGNATURE BLOCK]

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY M
ission Blvd
Lynx Dr
Hunter Ln
Stanford Ave
Antelope Dr
W
eibel Dr
Grapevine Ter
Paseo Padre Pkwy
Sundance Dr
Rutherford Ter
Cougar Dr Cougar Cir
Sentinel Dr
Boar Cir
Sentinel Pl
Raindance Rd
Vineyard Ave
Vinehill CirVinehill Ter
Muscat Ct
Kootenai Dr
Vista Del Sol
Elk Ct
Felipe Cmn
Montclaire Dr
Buck Ct
Saguare Ct
Owhanee Ct
Boar Ter
Bear Ct
View Point Cir
Klamath St
Owl Pl
Lower Vintners Cir
Rabbit Ct
Traminer Ct
Brunswick Pl
Racoon Ct
Lynx Ct
Napa Ct
Aguila Ter
Bodega Ct
Rutherford Ln
Geyser Ct
M
ontclaire Ter
Chavel Ct
Doe Ct
Hawk Ct
Beaver Ct
Overlook Ter
Cavisson Ct
M
artingale Ct
Vinehill Ct
Ram Ct
Chablis Ct
Rutherford Pl
Sources: Esri, Airbus DS, USGS, NGA, NASA, CGIAR, N Robinson, NCEAS, NLS, OS, NMA, Geodatastyrelsen, Rijkswaterstaat, GSA, Geoland, FEMA, Intermap and the GIS user community
City of Fremont GIS Division
Information Technology Services
3300 Capitol Avenue, Building B
Fremont, California 94538 O
Alameda County
City of Femont
Stanford Avenue Staging Area
City Property to be Leased to Park District

EXHIBIT A
1:9900

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Attachment: Exhibit A - Proposed Amended Mission Peak Lease and Land Map (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY

EAST BAY REGIONAL PARK DISTRICT

GRAZING LICENSE

2950 Peralta Oaks Court
P.O. Box 5381
Oakland, California 94605
www.ebparks.org

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Page | 1

SUMMARY OF GRAZING LICENSE TERMS
This is a summary (“Summary”) of the principal terms and conditions of the Grazing License.

Each item below shall be deemed to incorporate all of the terms and conditions set forth in the Grazing License pertaining to such item. In the event of any confl ict between the information in this Summary and any more specific provision of the body of the Grazing License, the terms contained in the body of the Grazing License shall prevail.

Licensor: East Bay Regional Park District

Licensee: _________________________________________
Park: _________________________________________
Grazing Unit: _____________________
County: _____________________
Acres: _____________________

Term: _______ year Initial Term commencing on ___________________ (“Commencement Date”) and ending on ___________________

Grazing Season: ____________________________________

Grazing Capacity: ____________ AUMs

Permitted Use: Livestock grazing and authorized related activities

Estimated First Year Rent: $______________________

Rent Payment Dates: _______________________________________

District Contact Information: Licensee Contact Information:

Primary Contact: ___________________ Primary Contact: ______________________ Tel: ______________________ Tel: ______________________ Alt. Contact: ____________________ Alt. Contact: ______________________ Tel: __________________________ Tel: __________________________

Notice Addresses of District: Notice Address of Licensee:

East Bay Regional Park District _________________________________ Attn: Wildland Vegetation Manager _________________________________ 2950 Peralta Oaks Court _________________________________ P.O. Box 5381 _________________________________
Oakland, CA 94605-0381

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EAST BAY REGIONAL PARK DISTRICT

GRAZING LICENSE
Thi
s GRAZING LICENSE is made and entered into in the City of Oakland, County of Alameda, State of California, on ______________________ by and between EAST BAY REGIONAL PARK DISTRICT, (“Licensor” or “District”), whose address is 2950 Peralta Oaks Court, Oakland, California 94605-0381, and ___________________________________________, (“Licensee”), whose address is _________________________________________________.

1. GO

ALS AND PURPOSE
The
2013 District Master Plan states, “The District will conserve, enhance, and restore biological resources to promote naturally functional ecosystems. Conservation efforts may involve using managed conservation-grazing, in accordance with the District’s Wildland Management Policies and Guidelines, prescribed burning, mechanical treatments, integrated pest management, and/or habitat protection and restoration.”
Th
is License is a stewardship management tool and is entered into to further the District’s goals and purposes related to land stewardship. Consistent with District’s adopted policies, the District Stewardship Department develops and manages livestock grazing practices and plans for the Park Open Space and Wildlands, overseen by District’s Wildland Vegetation Program Manager and the Rangeland Specialist.

Thi
s License is consistent with and incorporates the following management objectives for each grazing unit: 1) minimize wildfire potential and brush encroachment, 2) maintain or enhance native grassland communities, 3) control and manage invasive weedy vegetation, 4) enhance wildlife habitat, 5) protect and enhance riparian and wetland habitat values, and 6) control and minimize erosion, The District Stewardship Department manages and implements grazing practices to benefit special status plant and animal species with the help of qualified livestock producers from the local and regional ranching community.

2. PR
EMISES
a. Li
censor hereby licenses to Licensee, and Licensee hereby licenses from Licensor for the non-exclusive purpose of livestock grazing pursuant to the terms and conditions set forth in this License, that certain real property situated in the County of _________________State of California, containing an area of ___________ acres, more or less, and more specifically described and depicted in the Summary and Exhibit A attached hereto and made a part hereof (“Premises”). b. Li
censor makes no warranties and/or representations to Licensee concerning the suitability of the Premises for grazing purposes.
c. Li
censee’s use of the Premises is subject and subordinate to the following conditions:
(1) T
he primary rights of individuals using East Bay Regional Park District owned, operated, or leased lands, which comprise the Premises in whole or in part.

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Page | 3

(2) All policies, rules, and regulations of the East Bay Regional Park District.

(3) All existing easements, servitudes, licenses, and rights of way existing on the Premises for canals, ditches, levees, roads, highways, and telegraph, telephone, and electric power lines, railroads, pipelines, and other purposes, whether recorded or not.

(4) This Grazing License does not bestow a property right or vested interest in the Premises or entitlement to conduct future grazing activities on the Premises, as the License is revocable pursuant to the terms of this Grazing License. This Grazing License is a privilege granted specifically to the Licensee for the use and benefit of the Licensee for privilege of conducting permitted grazing activities on the Premises and do not run with the land.

(5) Recognition by the Licensee that the Premises consist of public land, and that cooperation of the Licensee and Licensor is necessary to conserve the flora, fauna, soil, water, air, and other natural resources of the Premises through appropriate land management.

(6) District reserves the right to use the Premises for all public open space purposes, including but not limited to natural resource restoration and management, natural resource monitoring, road grading, mowing, plowing, s eeding, fertilizing, prescribed burning and performing any other appropriate or customary seasonal work. District further specifically reserves the right to make use of all roads and trails on the Premises for patrol, maintenance and such other uses as Di strict may reasonably desire to make of such roads or trails. District also reserves the right to make the Premises open to the general public for open space recreation, subject to reasonable restrictions as determined by District, and including the right to construct trails, public trailhead facilities, and other facilities for such public use purposes.

(7) District hereby reserves the right, at any time, to reduce the size of the Premises licensed hereunder, in whole or by any portion thereof, should the District determine to use such lands for park, open space or other District purpose inconsistent with Licensee’s use. In this case, the License shall terminate as to those lands so identified within sixty (60) days following written notice from the District. Should less than the entire Premises be removed from the Lease pursuant to this Section, the animal unit months (“AUM”), as hereinafter defined, and as permitted hereunder, and the corresponding rental amount, shall be reduced proportionate to the reduction in the area, based on acreage and grazing capacity, subject to the License. In the alternative, Licensee may elect to terminate the License in its entirety and shall have no further rights or obligation hereunder except as to those matters specifically identified as surviving such termination.

(8) District hereby reserves the right, at any time, to utilize the Premises licensed hereunder, in whole or by any portion thereof, should the District determine that it is within the District’s best interests to utilize additional and/or alternative types of livestock or grazing systems that differ from the Licensee, in order to achieve specific vegetation goals. If the District determines the need to utilize additional and/or alternative grazing systems p ursuant to this subsection, the District will first attempt to achieve these goals with the Licensee. If goals cannot be achieved with the Licensee, upon the approval of the District’s Wildland Vegetation Program Manager or designee, the District may elect to bring in alternative livestock in a manner that will

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not interfere with the operations of the license holder. It is expected that any such alternative grazing would be short term in duration to the extent necessary to meet vegetation management goals.

(9) Licensor reserves and retains for itself and its successors or assigns all waters and water rights appurtenant to the Premises and the right to all water subject to appropriation and use thereon, including the right to develop, conserve, store, and convey such water, and to remove, export, or deliver such water from the Premises to locations elsewhere upon, or to properties other than, the Premises, except such water as Licensor deems necessary and beneficial for watering of livestock on the Premises , and for other uses associated with the rights herein granted by this License, consistent with resource conservation objectives. Licensee’s use of water on the Premises is allowed pursuant to the permission granted under this License and shall not develop into a prescriptive right.

3. USE OF PREMISES

Licensee shall use the Premises solely for livestock grazing and those operations normally associated with such grazing and permitted by this License, and for no other purpose or purposes whatsoever, without the prior written consent of Licensor. Licensee shall conduct all operations on the Premises in a responsible, safe, professional, cooperative and environmentally conscious manner, and is responsible at all times for containment of livestock on the Premises.

4. ACCEPTANCE AND SURRENDER OF PREMISES

By entry under this License, Licensee accepts the Premises in their present “as is” condition and agrees that on the last day of the term, or upon sooner termination of this License, or upon the withdrawal of Licensee from said Premises, Licensee shall peaceably vacate and surrender the Premises and the appurtenances thereon to Licensor in the same condition as when received, reasonable use, wear, or damage by fire, Act of God, or the elements excepted, and shall remove all personal property from the Premises.

5. ENTRY AND INSPECTION

Licensor and its agents reserve full authority to enter onto the Premises to inspect them, make any changes or alterations or repairs which Licensor shall consider necessary for the protection, improvement or preservation thereof, or to post any notice provided for by law, or otherwise to protect any and all rights to Licensor; and Licensee shall not be entitled to any abatement of rental by reason of the exercise by Licensor of any such rights herein reserved. Nothing herein contained shall be construed to obligate Licensor to make any changes, alterations or repairs to said Premises.

6. LICENSEE AS INDEPENDENT CONTRACTOR

Licensee enters into this License as an independent contractor and not as an agent or employee of Licensor, as the word “employee” is defined in the Workmen’s Compensation Act of the State of California. At all times during the term of this License, Licensee shall be an independent contractor and shall not be an employee of Licensor. Licensor shall have the ri ght to control Licensee only

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insofar to ensure compliance with the terms of this License Agreement; however, otherwise Licensor shall not have the right to control the means by which Licensee accomplishes activities permitted under this License. Notwithst anding any other state or federal policy, rule, regulation, law, or ordinance to the contrary, Licensee and any of its employees, agents, and subcontractors conducting activities under this License shall not qualify for or become entitled to, and hereby agree to waive any and all claims to, any compensation, benefit, or any incident of employment by Licensor, including but not limited to eligibility to enroll in the California Public Employees Retirement System (PERS) as an employee of Licensor and entitlement to any contribution to be paid by Licensor for employer contributions and/or employee contributions for PERS benefits.

7. ASSIGNMENT AND SUBLETTING

Neither this license nor any rights or interest hereunder shall be transferred or assigned by Licensee voluntarily or involuntarily, nor shall the Premises or any portion thereof be sublet, nor shall Licensee permit the use of the Premises or any part thereof by any third party or parties for any purpose, nor shall this License or any interest therein be a ssignable by action of law, including bankruptcy (voluntary or involuntary) and no sheriff, trustee, creditor, purchaser at any judicial sale, officer of any court, or receiver shall acquire the use or possession of said Premises or any part thereof, nor shall they acquire any rights under this License, unless the written consent thereto of Licensor is first obtained. Licensee may, however, upon first obtaining the written approval of Licensor, take for pasturage livestock belonging to a third party or parties, provided that Licensee complies with all applicable terms of this License when taking livestock for pasturage. No such consent by Licensor under this paragraph shall constitute a waiver or discharge of the provisions of this paragraph except as to the specific instance covered by such consent.

8. LICENSEE HAVING AGENT OR MANAGER RELATIONSHIP

Notwithstanding paragraph 7 above, Licensee may make legal arrangements with a third party to assist Licensee in operating the Premises and to manage permitted livestock under an agent or manager relationship, with the understanding that Licensee shall, at all times, retain full responsibility for compliance with the provisions, covenants, and requirements of this License.

Licensee shall provide Licensor with a copy of the written agreement between Licensee and third- party agents or managers specifying the scope of authority conferred upon said agents or managers by the Licensee. The person or persons so designated shall, in addition, comply with all applicable provisions of this License.

9. INITIAL TERM, POSSESSION, EXTENSION, TERMINATION

a. The initial term of this License shall be as set forth in the Summary, incorporated herein and made a part of the License, unless sooner terminated or mutually extended in accordance with the provisions contained herein.

b. If Licensee remains in possession of the Premises after expiration or termination of the term, or after the date in any notice given by Licensor to Licensee terminating this License by virtue of Licensor’s written consent, and in the absence of a contrary written agreement between the parties, such possession by Licensee shall be deemed to occur from month-to-month terminable

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upon thirty (30) days written notice given at any time by either party to the other, and subject to all provisions of this License.

c. Notwithstanding anything herein contained to the contrary, Licensor shall have the right at any time during the term, or any extension of the term, to terminate this License for any reason whatsoever upon sixty (60) days’ prior written notice to Licensee.

d. Notwithstanding anything herein contained to the contrary, Licensor shall also have the right to terminate this License as to all or any portion of the Premises if Licensor requires the same to be devoted to resource protection and conservation or public park uses, or if any entity which has granted funds to acquire the Premises, or any part thereof, specifies or requires the land to be managed for another use or purpose. Said termination shall become effective upon Licensor giving Licensee sixty ( 60) days’ prior written notice thereof. In the event that Licensor terminates the License pursuant to this subsection (d), Licensor shall Licensor shall not be liable for any damage caused to Licensee due to the early termination, and Licensee expressly waives any claim for damages due to termination of the License.

e. Licensee agrees that in the event of the inability of Licensor to deliver possession of the Premises at the commencement of the initial term, Licensor shall not be liable for any damage caused thereby nor shall this License be void or voidable, but Licensee shall not be liable for rent until such time as Licensor offers to deliver possession of the Premises to Licensee, but the term hereof shall not be extended by such delay. If Licensee, with Licensor’s consent, takes possession prior to the commencement of the term, Licensee shall do so subject to all of the terms, covenants, and conditions hereof and shall pay rent for the period of time beginning with the date of possession and ending with the commencement of the initial term.

10. RENT

As payment for grazing privileges, Licensee hereby agrees to pay rent to Licensor in two installments, semi-annually as outlined in Exhibit B for the actual livestock use that occurs over the grazing season, herein defined as the period beginning each November 1 and extending through October 31 of the following year. Licensee shall, during said term, pay to Licensor at its office at 2950 Peralta Oaks Court, Oakland, California 94605-0381 each and every installment of rent due, at the time and in the manner prescribed herein. Said rent shall be determined using the method described in Exhibit B of this Grazing License. Exhibit B includes the Rental Adjustment Table and the method for recording and calculating AUMs for the Stocking Reports. Rent shall be payable in lawful money of the United States. Licensee shall not accept any federal cost - sharing payments for conservation practices that would result in a duplicate payment.

11. STOCKING REPORTS

a. Licensee shall submit monthly stocking reports which contain a brief description of activities on the licensed area in a form approved by the District, a copy of which is attached hereto as Exhibit C, or other format approved by Licensor in writing. Information in the stocking report shall include the dates introduced, number, kind and class of livestock, AUMs, and pasture units of all livestock grazing the Premises. The stocking report shall be submitted by email to the Park

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Supervisor assigned to the Premises and to the Wildland Vegetation Program Manager or designee by the 15th of the following month. With prior written approval, stocking reports can be submitted by mail, fax, or other approved method. Reports submitted after the 15th shall be considered late.

Missing or late reports shall constitute a breach of this License.

b. A final Stocking Report shall be submitted bi- annually by the Licensee to the Wildland Vegetation Program Manager or designee: at the end of the first half of the grazing season (Apr il 30) and is due by no later than May 15; and at the end of the second half of the grazing season (October 31) due by November 15.

c. Timely and accurate submission of stocking reports are a material term of this License.

12. LICENSEE COMMUNICATION OBLIGATIONS

a. Licensee shall notify the Wildland Veg etation Program Manager or Park Supervisor assigned to the Premises, or their designees fourteen (14) days prior to the date Licensee intends to introduce livestock to the Premises in order that Licensor can verify range readiness conditions as specified by this License. Licensee shall refrain from introducing livestock to the Premises until verbal authorization and concurrence for grazing to occur on said Premises is obtained from the Park Supervisor, Wildland Vegetation Program Manager, or Rangeland Specialist.

b. Licensee shall provide seven (7) days advance notice to the Licensor, and shall provide specific notification to the Park Supervisor assigned to the Premises, before performing any major livestock roundups, or activities involving the movement of animals on the Premises and/or the use of corral facilities, or the introduction or removal of livestock and must receive verbal authorization and concurrence of the Licensor and Park Supervisor for same to minimize conflicts with park users.

c. Licensor and Licensee shall provide to one another home, office, work, mobile, cellular, third party, and other telephone - numbers where they can be reached or a message can be left so that Licensee can respond to any messages or instructions within twenty -four (24 ) hours of receiving said communication. Licensor and Licensee will also maintain answering machine, voice mail, e- mail and/or FAX capability to provide a means of reporting emergency situations and conveying to one another important messages and instructions in the event of the other’s absence.

The Licensor shall require Licensee to respond within a minimum of twenty -four (24) hours and act upon said emergencies, messages, and instructions.

d. Wherever this License provides for written notice between the parties, or wherever the law requires or gives the right of serving a notice, written notice must be provided to Licensee and Licensor at the addresses listed in the Summary. In addition to providing written notice to the above address, notice may also be provided as appropriate either verbally, personally, by telephone, facsimile transmission, or electronic mail. Licensor and Licensee may, at any time by written notice, change the place of receiving notice.

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13. ANNUAL REVIEW AND PLANNING REPORT

An Annual Review and Planning Report (“ARPR”) provided by the Licensor, a copy of which is attached hereto as Exhibit D, shall be submitted by no later than ________________________.

The ARPR will be maintained by the Licensor for the Premises and it shall describe the type of grazing management that is presently employed (e.g., seasonal or year -long cow/calf program, seasonal stocker program, sheep, etc.) and any management adjustments and improvement s that are required (e.g., grazing timing, stocking rates, season, infrastructure development, etc.).

Following submittal of the ARPR, the Licensee, the Park Supervisor and Range Specialist shall meet between October 1 and December 31 to review and evaluate the current grazing management, exchange information and set goals and management adjustments for the following November to October grazing season. The Wildland Vegetation Program Manager will provide information and recommendations pertinent to the over all vegetation management goals. Any adjustments to the grazing management will be agreed upon and dated in a written planning report. Licensor shall comply with the terms of the final signed and dated summary report. Failure to comply with the report shall constitute a default under this License. Adjustments during the grazing season based on weather related issues, drought, and acts of God may be made by the Licensor, in its reasonable discretion.

14. LIVESTOCK CARRYING CAPACITY

a. Livestock carrying capacity, as defined herein, is the level of livestock use allowed on the Premises consistent with forage production, resource conservation, and recreational objectives.

The unit of measure of livestock carrying capacity shall be the animal unit month (AUM), which, as defined herein, is the amount of forage (equivalent to 1000 pounds of dry, herbaceous plant material) necessary to sustain a mature cow for a period of one month. Licensor shall regulate the kind and number of livestock, and the amount of time the Premises are grazed by same, herein defined as the period of use, to assure conformity to livestock carrying capacity estimates. Licensor shall be the sole judge as to the livestock carrying capacity of the Premises, or any part or parts thereof, and shall, at its option at any time, give such consideration as it deems advisable to the compatibility of said livestock carrying capacity with vegetation, wildlife, fisheries, soil, water, air, aesthetic, and other resource and recreational values.

b. The Licensor shall conduct an analysis of the Premises to identify areas the Licensor considers suitable for grazing and to estimate the forage production thereon. Residual dry matter standards described herein in Section 18 (a) shall be subtracted from the total amount of available forage produced on said suitable areas to determine how much forage is available for livestock to consume in an average, favorable, and unfavorable rainfall year. The livestock carrying capacity the Licensor assigns to the Premi ses shall be based on the estimated forage production in an average rainfall year and may be subject to change by Licensor and Licensor alone.

15. CHANGE IN LIVESTOCK CARRYING CAPACITY BY LICENSOR

Licensor may, at any time, modify the kind and number of animals permitted, animal unit months, and/or period of use for the current year and any or all succeeding years remaining in the term, if,

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in Licensor’s opinion, such modification is necessary for conservation of the Premises. Written notice of any such change will be conveyed by Licensor to Licensee, who shall have fifteen (15) days in which to comply as directed. Unless so changed, said number of animals, AUMs, or periods of use for any lease-year shall remain as last authorized by the Licensor.

16. CHANGE IN LIVESTOCK CARRYING CAPACITY BY MUTUAL CONSENT

In addition to the changes in the kind and number of animals permitted, animal unit months, and/or period of use allowed on the Premises hereinabove provided for, livestock carrying capacity may also be changed at any other time by mutual agreement of the Licensee and Licensor. Any such change shall be in writing and shall remain in force and effect until the beginning of the next lease- year, unless sooner terminated or amended by further mutual agreement. Under such mutual agreement, rental for the Premises shall be revised upward or downward to reflect the change in livestock carrying capacity.

17. EXCEEDING LIVESTOCK CARRYING CAPACITY WITHOUT

AUTHORIZATION

Licensee shall limit the number of livestock to be grazed upon the Premises and the period of use so that the authorized number of animal unit months is not exceeded. Should said Premises be grazed in excess of the authorized number of animal unit months, Licensee shall immediately remove all or su ch number of livestock as are necessary to comply with the maximum livestock carrying capacity authorized by the Licensor. In addition to all other rights which the Licensor may have or exercise under this License because of such overgrazing, Licensee shal l pay to Licensor promptly, upon demand, three (3) times the rent in this License provided for each AUM or portion thereof grazed in excess of said authorized number, such amount being hereby agreed upon as the minimum damage to Licensor from such excess usage.

18. RESIDUAL DRY MATTER STANDARDS

a. Residual dry matter (RDM), as used herein, is a measure of dry, herbaceous plant material in pounds per acre or kilograms per hectare representing the amount of plant residue that the Licensor has specified must remain on the ground at the conclusion of gr azing within the given grazing season. The amount of residual dry matter on the ground at the end of the grazing season until regrowth begins shall be approximately 1,000 lbs/acre on all slopes, unless directed otherwise by the specific grazing management plans for the site.

b. Licensee shall periodically monitor forage utilization to ensure that residual dry matter levels -meet minimum standards to allow ample time to decrease herd size or remove livestock. If the RDM levels drop below the amounts hereina bove specified, then all livestock shall be immediately removed from the affected area(s) until such time Licensor determines that said area(s) have recovered sufficiently to allow restocking.

c. Optional residual dry matter standards that require more or less plant material to remain on the ground following grazing may be prescribed for the Premises, in whole or in part, at Licensor’s discretion, to promote soil stability, maintain plant productivity or diversity, enhance visual and

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recreational values, conserve wildlife habitat, and/or reduce fire hazards.

19. RANGE READINESS

a. Livestock that traditionally are returned to the Premises prior to the onset of fall rains shall not be allowed to graze said Premises until an inspection and approval by Licensor, as set forth in Section 12 of this Grazing License is conducted by the Licensor to insure that adequate dry plant material is available to support permitted livestock into the late fall when green forage will begin to provide sufficient vegetative cover.

b. In situations where, in the previous grazing season, forage utilization has occurred to within or beyond the residual dry matter standards established in Section 20 (a) of this Grazing License, or standards established in a specific grazing plan for the Premises, Licensor shall require that sufficient plant regrowth be established to provide adequate forage and soil protection before grazing of the Premises, in whole or in part, will be allowed to resume or continue, and that the resumption or continuation of such grazing shall occur only after green annual grasses have achieved a height of two (2) to three (3) inches.

c. Licensor shall make an annual assessment of early rainfall patterns to determine whether precipitation appears average or signific antly different than the norm. In the event said rainfall patterns remain below normal, resulting in below normal forage production and diminished livestock carrying capacity, Licensor shall reconsider, delay, or modify, if necessary, the date of livestock introduction to the Premises, period of use, and/or stocking levels commensurate with forage availability and other resource management considerations.

20. LAND MANAGEMENT AND FORAGE UTILIZATION

a. Licensee shall distribute or rotate livestock evenly th roughout said Premises or among pasture fields as specified by the Licensor. Licensee shall not cause overgrazing or under grazing to occur on the Premises and shall obtain optimum distribution of grazing animals over said Premises by frequent herding, by strategic location of supplemental feeds, and by maintaining in good condition and repair boundary and interior fencing and developed water for livestock.

Licensee shall use said Premises in accordance with rangeland management practices specified by the Licensor, and with due regard to the conservation of the natural resources thereon, and without discrimination in reference to other private and leased lands controlled by Licensee as part of Licensee’s overall grazing operation. Licensee shall conduct grazing operations on said Premises so that minimum residual dry matter standards are met or exceeded, except in areas near water facilities, corrals, loafing areas or soils with rocky or edaphic conditions (e.g. clay barren; serpentine) that will never meet 1000 pounds of forage production due to the soil type.

b. Licensor shall evaluate periodically the relative presence, abundance, dominance, and composition of native herbaceous plant species as an indicator of range condition in various locations of the Premises, and may prescribe management action to influence and enhance such plant composition through adjusting grazing practices on all or part of said Premises.

c. Licensee shall at all times prevent livestock from trespassing onto lands owned or operated

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by Licensor for which the Licensee is not authorized to graze, into areas within the Premises excluded from grazing, or upon adjacent, third-party, private and public lands.

d. Licensee is responsible at all times to adhere to the aforementioned condit ions, and Licensor shall advise Licensee when in the opinion of the Licensor, any of said conditions are not being accomplished. Licensee recognizes that in some years it may be necessary to reduce stocking or remove animals earlier than expected due to unusual or emergency conditions. In the event of overgrazing, Licensor shall have the right to direct the termination of grazing or reduce the amount of Animal Units. Should the License be terminated, Licensee shall have no recourse to damages against the Licensor or any of its employees.

21. WEED AND PEST CONTROL

a. Licensee shall be responsible for the control of range weeds and pests as specified by the Licensor. The Licensor shall be responsible for first reducing weed and pest populations to what it determines to be a manageable level, and the Licensee shall take subsequent responsibility for weed and pest control thereafter at Licensee’s sole cost and expense. Licensor shall determine at what point subsequent responsibility for weed and pest control will be transferred to the Licensee, and shall specify in writing the appropriate materials and practices to be used to achieve said weed and pest control, which Licensee shall abide by in conducting weed and pest control operations.

An annual pest management site assessment maybe made of the Premises by Licensor’s Integrated Pest Management Specialist and/or Rangeland Specialist, and Licensee shall be notified in writing of the status of the problem, need for, timing of, and procedures for conducting weed and pest control on the Premises.

b. Licensee is prohibited from transporting, mixing, applying, storing, or disposing or otherwise permitting the transportation, mixture, application, storage, or disposal of pesticides or hazardous substances upon the Premises without having first obtained written permission from Licensor’s Integrated Pest Management Specialist. Licensee is further prohibited from using any pesticide or hazardous substance anywhere on the Premises in an unsafe or careless manner or in any manner that is contrary to the manufacturer’s instructions as they appear on the label, or as further modified by the Licensor. The transportation, mixture, application, storage, or disposal of pesticides or hazardous substances upon the Premises shall be conducted in accordance and compliance with Licensor’s pest management policies and practices, pesticide application permit requirements, and all Federal, State, County and local regulations. If licensee is trained and approved by the Integrated Pest Ma nagement Specialist to treat specific pests, licensee is responsible for the timely submittal of any and all required application reports.

c. Licensee shall take precautions to prevent drift, or movement off -site, of any and all chemicals used in weed and pest control operations, and the Licensee shall maintain sufficient materials, tools, and equipment on-site to contain and clean up any hazardous spills that may result from use of such chemicals. Licensee shall not dispose of on park land any excess chem icals, containers, medicines, materials, or paraphernalia used to control weeds and pests, or to treat livestock on the Premises.

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22. LICENSEE’S OBLIGATION TO PERFORM ROUTINE MAINTENANCE

a. Licensee shall, at Licensee’s sole cost and expense, and in a timely manner throughout the term hereof, maintain the Premises and all improvements thereon and all appurtenances thereto in good order and condition to the satisfaction of the Licensor, including, but not limited to, barns, boundary and interior fences, including fences installed for resource protection purposes, gates, corrals, cattleguards, water developments, and other improvements related to grazing use of said Premises without any alterations or additions except as shall be first approved by Licensor. It shall be acceptable to manage and maintain improvements and appurtenances that need replacement at a minimal operational level pending their replacement or reconstruction, as agreed by the parties hereto. Licensee hereby waives all rights to make rep airs at the expense of Licensor as provided for in any statute or law in effect at the time of execution of this License or any amendment thereof or any other statute or law which may be hereafter enacted during the term of this License.

b. In the event Licensee shall fail to perform its obligations hereunder, Licensor, in addition to all other remedies available hereunder or by law, and without waiving any said alternative remedies, may perform same, with Licensee agreeing to repay Licensor the cost thereof as part of the rental payable as such on the next installment upon which rent becomes due, and failure to pay same shall carry with it the same consequences as failure to pay any installment of rent.

23. LICENSEE’S OBLIGATION TO PERFORM RESOURCE IMPROV EMENTS

AND SPECIAL CONSERVATION ACTIVITIES

a. “Resource Improvements and Special Conservation Activities” as used herein, shall mean any management activity for the protection, preservation, and improvement of the License area or any part thereof including property and any and all appurtenant facilities. Licensee’s may perform such resource management and improvements that may from time-to- time be approved in advance by the Park Supervisor and the Wildland Vegetation Program Manager. Reimbursement for associated costs expended shall be permissible for work involving new construction, reconstruction, relocation, or major repair of boundary and interior fences, or fences installed for resource protection purposes, gates, water developments, cattleguards, cor rals, roads, trails, and other valid range improvement projects intended to sustain or improve grazing operations or promote resource protection or conservation. The estimates and final costs for any labor and materials born by the Licensee will be itemized in the Resource Improvement Authorization Form (Exhibit E). The construction and installation of the aforesaid improvements shall be in accordance with Licensor’s specifications and instructions, shall conform to proper design, size, location, installation, and safety standards established by the Licensor, and shall maintain harmony with other park uses, values, and activities. Upon completion and inspection of the improvements the Licensor will pay the Licensee for the final costs itemized in the Resourc e Improvement Authorization Form.

b. Projects constructed and installed using NRCS or RCD funds shall be in accordance with NRCS Standards and Specifications. Licensee shall not accept any federal cost-sharing payments for conservation practices that would result in a duplicate payment.

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c. In any agreement entered into between Licensee and outside contractor(s), said contractor shall act as an independent professional and not as an agent of Licensor, and nothing contained in this agreement or any contractor agreement shall create a contractual relationship between any contractor or subcontractor and Licensor. Any agreements entered into by Licensee with contractors to perform work in accordance with this provision must receive prior written approval of the Licensor.

d. The Licensee shall notify Licensor at least seven (7) days prior to the commencement of said approved work and immediately upon completion thereof.

24. LIVESTOCK IDENTIFICATION

All permitted livestock and their offspring shall be brande d or marked with the brand or mark of the Licensee. Licensor, under certain conditions, may require Licensee to identify permitted livestock with distinctive eartags to prevent or detect trespass by unauthorized animals. Licensee may be required for the record to submit to Licensor a copy or copies of Licensee’s Certificate(s) of Brand.

25. SUPPLEMENTAL FEEDING

a. Licensee shall not conduct supplemental feeding of domestic livestock on the Premises to prolong grazing use in areas where established forage utilization levels have been reached or exceeded.

b. Licensee shall relocate nutritional supplements when such sites become sufficiently grazed, or at the direction of Licensor, as to minimize the potential for resource damage from congregating animals.

c. Licensee shall locate supplements out of sight of roads, trails and public use areas, in under- utilized areas of said Premises, and at least ¼ mile away from water, whenever possible.

Supplemental feeding blocks should be protected from direct soil contact.

d. In the event of unusual or emergency circumstances, such as drought or the loss of vegetation by wildfire, or on a case-by-case basis, Licensor has the sole discretion to allow short- term supplemental feeding on the Premises within designated fields until Licensee can make arrangements to remove livestock from the Premises, which may require short -term confinement of permitted livestock to restricted locations within said Premises to minimize resource impacts.

e. In some unique cases, the Licensee would be allowed to use supplemental feed in a manner that would not negatively impact rangeland condition, as approved by the District.

26. DISPOSAL OF LIVESTOCK CARCASSES

Licensee shall, at Licensor’s sole discretion, remove, bury, or relocate to a remote site in a manner satisfactory to the Licensor any and all livestock which may die on the Premises. If Licensee fails to remove, bury, or relocate such livestock within five (5) days of notice by Licensor requesting

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same, Licensor may, acting alone or through contract with an outside party, cause the removal, burial, or relocation of such livestock and be monetarily reimbursed by the Licensee for any labor and material expended.

27. CARE OF PERMITTED ANIMALS

Licensee will maintain permitted animals in a healthy condition at all times. Cattle must meet a minimum Body Condition Score of 4. Licensor shall reserve the right to contract for the services of a veterinarian to attend to or euthanize sick animals on park land and be monetarily reimbursed by the Licensee in the event Licensee is unable or unwilling to provide medical assistance to the animal in a timely manner. Licensee shall remove from the Premises, within twenty -four (24) hours upon notification by Licensor, any and all problem or aberrant animals posing a threat or nuisance to park visitors, staff, or neighbors.

28. OUTBREAKS OF DISEASE

Licensee shall immediately report to Licensor and all proper governmental authorities any case of infectious animal disease appearing in livestock on the Premises, and shall, at Licensee’s sole cost and expense, take all steps required to isolate, control, and eliminate any such disease. Livestock exhibiting symptoms of diseases communicable to humans shall be immediately removed from the Premises.

29. MOTORIZED VEHICLES AND HEAVY EQUIPMENT

Motorized vehicles used by Licensee shall be restricted to two-track fire roads, and Licensee shall refrain from using roads during wet conditions. Licensor may make exceptions to allow the use of balloon-tired all terrai n vehicles on wet roads upon approval of the Park Supervisor assigned to the Premises. Licensor will provide Licensee with copies of fire closure plans and Licensee will honor all park fire closures and fire restrictions involving access and the use of mot or vehicles, welding, and power tools. All motorized vehicles and equipment used by Licensee on park land shall be outfitted with appropriate spark arrestors and mufflers. No heavy equipment, including, but not limited to bulldozers, backhoes, excavators, or trenchers shall be allowed to cross or operate on the Premises without Licensor’s consent.

30. FIREARMS

Licensee shall not carry on their person or use firearms on the Premises. Problem animals interfering with livestock operations shall be handled through the Licensor’s Police Department in cooperation with County Animal Control or the California Department of Fish and Wildlife.

31. REMOVAL OR USE OF NATURAL RESOURCES

Licensee shall not destroy or remove nor permit to be destroyed or removed any e arth, soil, vegetation, artifacts, fossils, or firewood found on the Premises, nor commit any waste thereon, without written authority from Licensor to commit any such acts, except where such earth, soil, or vegetation in the form of landslides, down trees , or shrubs are creating an immediate hazard and

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impediment to the routine operation of the rights herein granted. Licensee shall not hunt, fish, or camp, nor permit any hunting, fishing, or camping upon the Premises, and shall, at all times, keep and maintain said Premises in a clean and sanitary condition to the satisfaction of the Licensor. If Licensee is found to have violated this section by hunting or fishing on the Premises, this shall constitute a material default, which at Licensor’s sole discretio n, may be subject to immediate termination of the License, without providing Licensee notice of the default and opportunity to cure.

32. COMPLIANCE WITH LAW

Licensee shall comply with all applicable laws, permits, statutes, ordinances, rules, governmental orders and regulations pertaining to the occupancy and use of the Premises hereunder and shall furnish evidence as to Licensee’s compliance therewith upon re quest by the Licensor. Licensee shall not do, or suffer to be done upon the Premises, any act or thing which is or may be a nuisance and shall not use or permit others to use said Premises for any unlawful purpose.

33. INDEMNIFICATION

a. Licensee agrees to indemnify, hold harmless, defend, and protect Licensor, its officers, directors, agents, employees, invitees (each of which is an indemnitee) from and against any and all claims, losses, damages, demands, liabilities, suits, costs, expenses (including attorneys’ fees), penalties, judgments, or obligations whatsoever for or in connection with injury (including death), damage to any person, loss or damage of property to whomsoever belonging, or pecuniary or monetary loss resulting from, arising out of, or in any way related to activity conducted by the Licensee pursuant to this Grazing License. This includes, but is not limited to, Licensee’s development, construction, use, maintenance, and occupation of, and/or removal from the Premises, and any facilities or operations thereon, including events occurring on or off the property, Premises, or facilities, regardless of how the injury or damage was caused or suffered, unless the injury or damage resulted from the sole negligence or the intentional and willful misconduct of the Licensor, its officers, directors, agents or employees.

b. Licensee hereby waives all claims and recourse against Licensor, including the right of contribution for loss, damage, or expenses by reason of death or injury to persons or dama ge to the Premises, and releases Licensor from any liability relating to or in any way connected with Licensee’s activities or Licensee’s use of the Premises, or facilities, unless injury or damage is caused by the sole negligence or the intentional and wi llful misconduct of Licensor, its officers, directors, agents or employees.

c. The provisions of this section shall survive the termination or expiration of this License.

34. INSURANCE

a. Licensee shall procure and keep in force during the term of the License, at Licensee’s own cost and expense, the following policies of insurance with companies licensed to do business in the State of California and which are acceptable to the Licensor in Licensor’s sole opinion.

Licensee shall, within fifteen (15) days from the date of the License, supply Licensor with a copy

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of any policy certified to be a true and complete copy of the original showing that such insurance is in force prior to commencement of the term. Coverage shall be at least as broad as:

(1) Commercial General Liability (CGL): Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit will apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit will be twice the required occurrence limit.

(2) Automobile Liability: ISO Form Number CA 00 01 covering any auto (Code 1), or if Contractor has no owned autos, covering hired, (Code 8) and non- owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.

(3) Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.

If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the District requires and will be entitled to the broader coverage and/or higher limits maintained by the contractor. Each of the above policies must contain a provision that the policy shall not be cancelled or materially changed without thirty (30) days’ prior written notice to Licensor. No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of Licensee to furnish the required insurance during the term of the License.

b. The insurance policies are to contain, or be endorsed to contain, the following provisions:

(1) Additional Insured Status. The District, its officers, directors, officials, agents, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Contractor including materials, parts or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).

(2) Primary Coverage. For any claims related to t his contract, the Contractor’s insurance coverage will be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the District, its officers, officials, employees, and volunteers. Any insurance or self - insurance maintained by the Dis trict, its officers, directors, officials, agents, employees, or volunteers will be excess of the Contractor’s insurance and will not contribute with it.

(3) Waiver of Subrogation. Contractor hereby grants to District a waiver of any right to subrogation which any insurer of said Contractor may acquire against the District by virtue of the payment of any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the District has received a waiver of subrogation endorsement from the insurer.

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(4) Self-Insured Retentions. Self-insured retentions must be declared to and approved by the District. The District may require the Contractor to purchase coverage with a lower retention or provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

(5) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to the District.

(6) Verification of Coverage. Contractor will furnish the District with original certificates and amendatory endorsements or copies of the appli cable policy language effecting coverage required by this clause. All certificates and endorsements are to be received and approved by the District before work commences. However, failure to obtain the required documents prior to the work beginning will not waive the Contractor’s obligation to provide them. The District reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

(7) Special Risks or Cir cumstances. District reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

35. LICENSEE’S DEFAULT

The occurrence of any one or more of the following events shall constitute a default and breach of this License by Licensor:

a. The vacating or abandoning of the Premises by the Licensee, as evidenced by lack of use of property for more than six (6) months without prior District approval.

b. The failure of Licensee to make any payment of the rent herein reserved, or any installment or part thereof, or any sum required by Licensee to be paid to Licensor at the times or in the manner herein provided.

c. The failure by Licensee to observe and pe rform any of the covenants, conditions, or provisions of this License where such failure shall continue for a period of fifteen (15) days after written notice thereof by Licensor to Licensee; provided, however, that if the nature of Licensee’s default is such that more than fifteen (15) days are reasonably required for its cure, then Licensee shall not be deemed to be in default if Licensee commences a cure within a fifteen(15) day period and thereafter diligently prosecutes such cure to completion.

36. REMEDIES ON DEFAULT

In the event of any such default or breach by Licensee, as herein described, Licensor may, at any time thereafter, with or without notice or demand, and without limiting Licensor in the exercise of any other right or remedy which Licensor may have at law or in equity by reason of such default, failure, breach or neglect take any of the following actions:

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a. Terminate this License prior to the expiration of the term hereof, in which case Licensee shall immediately, quietly and peaceably s urrender and deliver to the Licensor the possession of the Premises, including preexisting and new improvements made thereon in the condition in which they were found, reasonable wear and tear excepted, and Licensee shall pay rent to the date possession is delivered to Licensor.

b. Enter the Premises or any part thereof and, with or without terminating this License, and with or without process of law, expel, remove, and put out Licensee or any person or persons occupying said Premises, and remove all perso nal property and livestock therefrom, using such force as may be necessary to repossess said Premises, without prejudice to any remedy which might otherwise be available at law or equity, and without liability to any person for damages sustained by reason of such removal. No such entry or taking of possession of said Premises by Licensor shall be construed as an election on its part to terminate this License unless a written notice of such intention be given Licensee.

c. Petition the Superior Court of the State of California, at Licensee’s expense for, and be entitled as a matter of right to, the appointment of a Receiver, and have said Court appoint such Receiver and vest in him or her such powers and authority as may be necessary or proper to fully protect all the rights herein granted or reserved to the Licensor.

d. Let and relet said Premises in whole or in part, at such rental and upon such terms and for such length of time, whether less or greater than the unexpired portion of the term of this License, as Licensor may see fit, and recover from Licensee the rent and any other charges and adjustments as may be due hereunder. Notwithstanding such letting or reletting, should this License not be terminated, Licensor may, at any time thereafter elect to terminate it.

e. In addition to Licensor’s option to terminate the License due to default, Licensor at its sole discretion, may elect to place the Licensee on probation. In the event the Licensee is placed on probation, the Licensor will so inform the Licens ee by written notice of probation, the term of probation, and any terms or conditions of the probation that Licensor deems necessary. If, during or after the term of probation, Licensee fails to comply with the terms of probation, that shall constitute a separate occurrence of default, subject to immediate termination of the License without any further cure period.

37. ALTERATIONS, LIENS

a. Licensee agrees not to make any alterations of, changes in, or additions to the Premises without the prior written consent of Licensor. As a condition to granting its consent, Licensor shall require that:

(1) Licensee shall submit for Licensor’s approval detailed final plans and specifications and working drawings of the proposed alterations and the name of its contr actor at least fifteen (15) days before the date it intends to commence the alterations.

(2) Any alterations must be approved by all appropriate government agencies, and all

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applicable permits and authorizations must be obtained prior to commencement of the alterations, and such alterations shall be completed with due diligence in compliance with the plans and specifications and all applicable laws.

b. All alterations, additions and improvements, including fixtures, made to or upon the Premises, except unattached, movable fixtures owned by the Licensee, shall be the property of Licensor, and shall remain upon and be surrendered with the Premises, except that Licensee will ascertain from Licensor within thirty (30) days before the end of this term whether Licensor desires to have the Premises, or any part or parts thereof, restored to the condition they were found in when the Premises were delivered to Licensee and, if Licensor shall so desire, Licensee shall so restore said Premises or such part or parts thereof before the end of the term of this License, entirely at Licensee’s own cost and expense.

c. Licensee agrees that, if any such alterations, changes or additions are to be made, Licensee shall indemnify, defend, protect and hold harmless Licensor fr om all liens, claims, demands, and liabilities arising out of any work performed, materials furnished, or obligations incurred by or for Licensee upon said Premises during said term and shall not suffer any such lien or other lien to be created.

38. UTILITIES

Licensee agrees to pay for all water, fuel, gas, oil, heat, electricity, power, materials and services which may be furnished to or used upon said Premises in conjunction with grazing activities.

39. TAXES

Licensee agrees to be responsible for, and to pay promptly when due, all possessory interest taxes and any other such taxes that are assessed on the basis of this License or the grazing operations permitted hereunder. Licensee shall pay any such possessory tax prior to delinquency thereof and shall not be entitled to offset the amount of such tax against Rent payable under this License.

Taxes assessed on any personal property of Licensee shall be solely the obligation of Licensee.

Licensor makes no representations about Licensee’s tax obligations resulting from this License Agreement.

40. CONFLICT OF INTEREST

Licensee hereby warrants and represents to Licensor that no officer and/or employee of the Licensor, nor any member of Licensor’s Board of Directors has or will have, directly or indirectly, any interest whatsoever in this License.

41. ADVICE OF COUNSEL

Both parties have had a full and complete opportunity to have this Grazing License reviewed by legal counsel and no presumption or rule that ambiguity shall be construed against the draft ing party shall apply to the interpretation or enforcement of this Grazing License.

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42. SURRENDER OF LICENSE

No act or conduct of the Licensor shall be deemed to be or constitute an acceptance of the surrender of the Premises by Licensee prior to the exp iration of the term hereof, and such acceptance by Licensor of surrender by Licensee shall only flow from and must be evidenced by a written acknowledgement of acceptance of surrender by the Licensor. The voluntary or other surrender of this License by Licensee, or a mutual cancellation thereof, shall not work a merger, and shall, at the option of the Licensor, terminate all or any existing sublicenses, or concessions, or may at the option of the Licensor operate as an assignment to him of any or all such sublicenses or concessions.

43. CUMULATIVE REMEDIES, NON-WAIVER

The receipt by the Licensor of any rent or payment with or without knowledge of the breach of any covenant hereof shall not be deemed a waiver of any such breach and no waiver by Licensor of any sum due hereunder or any provision hereof shall be deemed to have been made unless expressed in writing and signed by the Licensor. No delay or omission in the exercise of any right or remedy accruing to Licensor upon any breach by Licensee under this License shall mpair such right or remedy or be construed as a waiver of any such breach theretofore or hereafter occurring.

The waiver by Licensor of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. All rights, powers, options or remedies afforded to the Licensor either hereunder or by law shall be cumulative and not alternative and the exercise of one right, power, option or remedy shall not bar other rights, powers, options or remedies allowed herein or by law.

44. MISCELLANEOUS

a. It is agreed by and between the parties hereto that all the agreements herein contained upon the part of Licensee, whether technically covenants or conditions, shall be deemed conditions for the purpose hereof, conferring upon Licensor, in the event of breach of any of said agreements, the right to terminate this License.

b. In the event where there is more than one Licensee, the obligation of the Licensee’s execution of this License shall be joint and several. The words “Licensor” and “Licensee” as used herein shall include the plural as well as the singular. The covenants and agreements contained herein shall be binding upon and be enforceable by the parties hereto and their respective heirs, executors, administrators, successors and assigns, subject to the restrictions herein imposed on assignment by Licensee.

c. Time is of the essence of this License and of each and every covenant, condition and provision herein contained.

This Agreement , including its Exhibits may be executed in counterparts, and/or by electronic signature, and/or by fax, and/or by scan and email, and all so executed shall constitute one agreement which shall be binding upon all parties hereto, notwithstanding that the signatures of all parties do not appear on the same page. A facsimile signature, electronic signature, and/or scanned and emailed signature shall be

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binding upon any party as though it were an original.
e. The paragraph headings of this License are inserted only as a matter of convenience and for reference and in no way define, limit or describe the scope or intent of this License or any provision thereof or in any way affect this License.

f. The word “term” as used herein shall be deemed to refer to both the initial and extended term.

g. This License shall be governed by the Laws of the State of California.

h. This License contains all of the agreements and understandings of the parties pertaining to the subject matter contained herein and supersedes all prior, contemporaneous agreements, representations, and understandings of the parties.

i. The unenforceability, invalidity, or illegality of any provision herein contained shall not render the other provisions unenforceable, invalid or illegal.

IN WITNESS WHEREOF the parties hereto have subscribed their names, the day and year first hereinabove written.

EAST BAY REGIONAL PARK DISTRICT

By: ________________________________ Date: _______________

________________________________
Print Name

APPROVED AS TO FORM

By: ________________________________ Date: _______________ District Counsel

LICENSEE

By: ________________________________ Date: _______________

________________________________
Print Name

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LIST OF EXHIBITS

Exhibit A - Map of Premises

Exhibit B – Grazing Rent

Exhibit C – Stocking Report

Exhibit D – Annual Review and Planning Meeting

Exhibit E – Resource Improvement Authorization Form

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EXHIBIT B

DETERMINATION AND PAYMENT OF GRAZING RENT

A license-year is defined as the 12 month period commencing each November 1st and extending through October 31st of the following year. For each and every license-year, which shall begin on the first day of the term of this License, and thereafter on November 1 of each year during said term, the annual rent for grazing use shall be determined in accordance with the “Rental Adjustment Table,” hereinafter contained, and shall be adjusted upward or downward from license-year to license-year, depending upon the grazing capacity of the premises as determined by Licensor, and whether the average selling price of beef cattle, as hereinafter computed, is higher or lower than the corresponding average selling price for the preceding license-year.

For the purpose of determining the rental, the average selling price of beef cattle shall be taken as the average selling price of Medium Frame No. 1 Muscling Steers and Heifers, 500-800 lbs., as reported by the Cattle Marketing Information Service, Inc. (Cattle-Fax) for the month of June of each license-year. The rental rate determined from this process will be used to compute the grazing rent for the subsequent license-year beginning November 1st.

In the event that said average sales price of beef cattle is not obtainable in any year from Cattle-Fax as now constituted, then the average sales price to be used in determining the rental rate shall be obtained from some other authentic source to be selected by Licensor as providing a comparable price for the purpose. It is further mutually understood and agreed that in the event the Federal Government or any agency whatever in any manner subsidizes the raising of beef cattle, thereby effecting a lower average sales price as reported by Cattle-Fax referred to above, the annual rental shall be increased to fully offset the effect of the subsidy payment on the sale price of cattle.

The rental rate per animal unit month to be paid by Licensee for any given license-year shall be determined through the use of the attached Rental Adjustment Table, within which the average selling price of beef cattle per hundred-weight, as so reported for the month of June of that license-year as defined above, shall be matched with the appropriate price range found in Column 1 of said table to determine the corresponding rental rate found opposite this entry in Column 2. The rent payment due to Licensor shall be computed by multiplying this rental rate by the total number of animal unit months of forage authorized by Licensor for said license-year.

The annual rent due as hereinabove calculated shall be due and payable by Licensee in lawful money of the United States in semi-annual installments. The District will bill the Licensee for the animal unit month (AUM) amount based upon the Stocking Report. The first installment shall be determined from the Stocking Report of the first half of the grazing season ending on April 30. The second installment shall be determined from the Stocking Report of the second half of the grazing season ending on October 31. For seasonal grazing operations where livestock are removed early in the second half of the grazing season (June), the final Stocking Report is due 10 days after the livestock have been removed. Grazing rents must be paid within 30 days of due dates or accrue interest at the rate of 1% per month or fraction thereof until paid, and if not paid within thirty (30) days of the date of demand, Licensor, may, at its option, terminate this license, in which case the provisions of default as set forth in Paragraphs 13 and 14 of this license shall apply.

This License is subject to the following additional reservations, conditions and agreements, and Licensee does hereby further agree with Licensor as follows:

1. Licensee shall, during said term, pay to Licensor at its office 2950 Peralta Oaks Court, Oakland, CA 94605, or at such other place as may be designated in writing by Licensor, the said rent and each and every installment thereof, at the time and in the manner aforesaid. Said

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EXHIBIT B

rent shall be due and payable on the basis of the determination by Licensor of the AUM capacity of the premises for each and every license-year.

2. The words “animal unit month” (AUM) as used in this License shall mean the utilization of the premises for feeding purposes by one animal, 1,000 pounds or more in weight, for a period of one month. Authorized AUMs shall be assigned on the basis of the carrying capacity of the premises as determined by Licensor, and stocking levels shall be computed by calculating the relative forage requirements of each of the kind or kinds of livestock intended to be grazed on the premises in any one grazing season, as expressed by the following conversion factors.

Kind of Livestock Animal Unit Months (AUMs)

Adult Cow with Calf up to 6 months old 1.00
Heifer or Steer, 2 years & older (1,000 lbs or more) 1.00 Yearling to 2-year-old (750# to 1,000 lbs) 0.75
Weaned Calf to Short Yearling (up to 750 lbs) 0.50
Bull 1.00
Horse 1.25
Sheep 0.20
Goats 0.20

The premises shall be used by Licensee only for grazing of animals designated in the table above entitled “Kind of Livestock.” The total number of animal unit months accruing from grazing the premises by the kinds of livestock authorized by Licensor during any given license- year shall remain consistent with and not exceed the livestock carrying capacity established by the Licensor.

3. Licensee shall submit monthly Stocking Reports by the 15th of the following month by mail, Fax, or Email to the Wildland Veg Program Manager and to the Park Supervisor assigned to the license. Failure to submit timely reports will be a contract violation and can result in non-renewal or contract termination. The totaled six months AUMs for the period Nov through April are due by May 15th and for the period of May through Oct. are due by Nov 15th to be used for calculating the rent. A Stocking Report presented below in this exhibit is an example of a seasonal stocker grazing program. The sample shows how to present the information and calculate the AUMs. Also shown below is the Animal Unit Month Calculation Table.

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EXHIBIT B

Rent Adjustment Table

COLUMN 1 COLUMN 2 COLUMN 1 COLUMN 2
Medium Frame No. 1 Rental Medium Frame No. 1 Rental
Muscling Steers & Heifers Per Muscling Steers & Heifers Per (500 - 800 lbs.) Animal (500 - 800 lbs.) Animal
Average Selling Price Unit Average Selling Price Unit
per cwt. for June Month per cwt. for June Month
of License Year of License Year
101.01 to 101.50 $16.10 120.51 to 121.00 $18.05
101.51 to 102.00 $16.15 121.01 to 121.50 $18.10
102.01 to 102.50 $16.20 121.51 to 122.00 $18.15
102.51 to 103.00 $16.25 122.01 to 122.50 $18.20
103.01 to 103.50 $16.30 122.51 to 123.00 $18.25
103.51 to 104.00 $16.35 123.01 to 123.50 $18.30
104.01 to104.50 $16.40 123.51 to 124.00 $18.35
104.51 to 105.00 $16.45 124.01 to 124.50 $18.40
105.01 to 105.50 $16.50 124.51 to 125.00 $18.45
105.51 to 106.00 $16.55 125.01 to 125.50 $18.50
106.01 to 106.50 $16.60 125.51 to 126.00 $18.55
106.51 to 107.00 $16.65 126.01 to 126.50 $18.60
107.01 to 107.50 $16.70 126.51 to 127.00 $18.65
107.51 to 108.00 $16.75 127.01 to 127.50 $18.70
108.01 to 108.50 $16.80 127.51 to 128.00 $18.75
108.51 to 109.00 $16.85 128.01 to 128.50 $18.80
109.01 to 109.50 $16.90 128.51 to 129.00 $18.85
109.51 to 110.00 $16.95 129.01 to 129.50 $18.90
110.01 to 110.50 $17.00 129.51 to 130.00 $18.95
110.51 to 111.00 $17.05 130.01 to 130.50 $19.00
111.01 to 111.50 $17.10 130.51 to 131.00 $19.05
111.51 to 112.00 $17.15 131.01 to 131.50 $19.10
112.01 to 112.50 $17.20 131.51 to 132.00 $19.15
112.51 to 113.00 $17.25 132.01 to 132.50 $19.20
113.01 to 113.50 $17.30 132.51 to 133.00 $19.25
113.51 to 114.00 $17.35 133.01 to 133.50 $19.30
114.01 to 114.50 $17.40 133.51 to 134.00 $19.35
114.51 to 115.00 $17.45 134.01 to 134.50 $19.40
115.01 to 115.50 $17.50 134.51 to 135.00 $19.45
115.51 to 116.00 $17.55 135.01 to 135.50 $19.50
116.01 to 116.50 $17.60 135.51 to 136.00 $19.55
116.51 to 117.00 $17.65 136.01 to 136.50 $19.60
117.01 to 117.50 $17.70 136.51 to 137.00 $19.65
117.51 to 118.00 $17.75 137.01 to 137.50 $19.70
118.01 to 118.50 $17.80 137.51 to 138.00 $19.75
118.51 to 119.00 $17.85 138.01 to 138.50 $19.80
119.01 to 119.50 $17.90 138.51 to 139.00 $19.85
119.51 to 120.00 $17.95 139.01 to 139.50 $19.90
120.01 to 120.50 $18.00 139.51 to 140.00 $19.95

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EXHIBIT B

Rent Adjustment Table (con’t)
COLUMN 1 COLUMN 2 COLUMN 1 COLUMN 2
Medium Frame No. 1 Rental Medium Frame No. 1 Rental
Muscling Steers & Heifers Per Muscling Steers & Heifers Per (500 - 800 lbs.) Animal (500 - 800 lbs.) Animal
Average Selling Price Unit Average Selling Price Unit
per cwt. for June Month per cwt. for June Month
of License Year of License Year
140.01 to 140.50 $20.00 159.51 to 160.00 $21.95
140.51 to 141.00 $20.05 160.01 to 160.50 $22.00
141.01 to 141.50 $20.10 160.51 to 161.00 $22.05
141.51 to 142.00 $20.15 161.01 to 161.50 $22.10
142.01 to 142.50 $20.20 161.51 to 162.00 $22.15
142.51 to 143.00 $20.25 162.01 to 162.50 $22.20
143.01 to 143.50 $20.30 162.51 to 163.00 $22.25
143.51 to 144.00 $20.35 163.01 to 163.50 $22.30
144.01 to 144.50 $20.40 163.51 to 164.00 $22.35
144.51 to 145.00 $20.45 164.01 to 164.50 $22.40
145.01 to 145.50 $20.50 164.51 to 165.00 $22.45
145.51 to 146.00 $20.55 165.01 to 165.50 $22.50
146.01 to 146.50 $20.60 165.51 to 166.00 $22.55
146.51 to 147.00 $20.65 166.01 to 166.50 $22.60
147.01 to 147.50 $20.70 166.51 to 167.00 $22.65
147.51 to 148.00 $20.75 167.01 to 167.50 $22.70
148.01 to 148.50 $20.80 167.51 to 168.00 $22.75
148.51 to 149.00 $20.85 168.01 to 168.50 $22.80
149.01 to 149.50 $20.90 168.51 to 169.00 $22.85
149.51 to 150.00 $20.95 169.01 to 169.50 $22.90
150.01 to 150.50 $21.00 169.51 to 170.00 $22.95
150.51 to 151.00 $21.05 169.51 to 170.00 $23.00
151.01 to 151.50 $21.10 170.01 to 170.50 $23.05
151.51 to 152.00 $21.15 170.51 to 171.00 $23.10
152.01 to 152.50 $21.20 171.01 to 171.50 $23.15
152.51 to 153.00 $21.25 171.51 to 172.00 $23.20
153.01 to 153.50 $21.30 172.01 to 172.50 $23.25
153.51 to 154.00 $21.35 172.51 to 173.00 $23.30
154.01 to 154.50 $21.40 173.01 to 173.50 $23.35
154.51 to 155.00 $21.45 173.51 to 174.00 $23.40
155.01 to 155.50 $21.50 174.01 to 174.50 $23.45
155.51 to 156.00 $21.55 174.51 to 175.00 $23.50
156.01 to 156.50 $21.60 175.01 to 175.50 $23.55
156.51 to 157.00 $21.65 175.51 to 176.00 $23.60
157.01 to 157.50 $21.70 176.01 to 176.50 $23.65
157.51 to 158.00 $21.75 176.51 to 177.00 $23.70
158.01 to 158.50 $21.80 177.01 to 177.50 $23.75
158.51 to 159.00 $21.85 177.51 to 178.00 $23.80
159.01 to 159.50 $21.90 178.01 to 178.50 $23.85

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK

EXHIBIT B

EXAMPLE STOCKING REPORT

PARK: East Bay Park TENANT: Urban Livestock SEASON: May 1st – Oct 31st 2019 PASTURE: Coyote Flat ACRES: 1080 ALLOTTED AUMS: 560

Date In/Out Number X Portion (%) of Month X
(AUM Calculation Table)
AU Conversion =
(1, 0.75, or 0.5, etc.)
AUM
May in 40 1 1 40
June in 40 1 1 40
July in 30 1 1 30
July 8 out 10 0.23 1 2.3
Aug in 30 1 1 30
Aug 15 in 3 0.52 0.75 1.17
Sept in 30 1 1 30
Sept 29 out 3 0.97 0.75 2.19
Oct in 30 1 1 30

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EXHIBIT B

EXAMPLE

STOCKING REPORT

PARK: East Bay Park TENANT: Joe Cattleman SEASON: 2005-06 PASTURE: Pond Pasture ACRES: 2147 ALLOTED AUMS: 1695
For each month enter the date the livestock were moved in or out. To calculate the AUMs, multiply the number of livestock X portion (%) of month X Animal Unit Conversion to derive the AUMs. More than one line can be filled out during a month, especially when livestock are being moved in or out. Carry over the livestock numbers of the previous month to the next month. Any livestock moves in or out during that month can be entered on the following lines. Utilize the AUM Calculation Table to calculate the portion of the month.

Month
Date
In/Out Number X Portion (%) of Month X
(AUM Calculation Table)
AU Conversion =
(1, 0.75, or 0.5, etc.)
AUM
NOV. 16 IN 86 0.43 .5 18.5
DEC. 86 1.00 .5 43.0
DEC. 8 IN 84 0.71 .5 28.6
DEC. 9 IN 86 0.68 .5 31.8
DEC. 11 IN 82 0.61 .5 24.7
JAN. 338 1.00 .5 169.0
JAN. 16 IN 58 .45 .5 13.1
JAN. 19 IN 48 .35 .5 8.4
FEB. 494 1.00 .5 247
MARCH 494 1.00 .5 247
APRIL 494 1.00 .5 247
First Half Total 1078.1

MAY 494 1.00 .5 247
JUNE 11 OUT (258) 494 X .35 .5 172.90
JUNE 12 OUT 236 236 X .03 .5 3.5
Second Half Total 423.4

TOTAL AUMS 1501.5

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK

EXHIBIT B

Animal Unit Month (AUM) Calculation Table

31 Day Month 30 Day Month

Livestock
Intro Date
Days
Remaining
Percent
of Month
Livestock
Removal Date
Days
In
Percent
of Month
Livestock
Intro Date
Days
Remaining
Percent
of Month
Livestock
Removal Date
Days
In
Percent of
Month

1 30 0.97 1 1 0.00 1 29 0.97 1 1 0.03
2 29 0.94 2 2 0.03 2 28 0.93 2 2 0.07
3 28 0.90 3 3 0.06 3 27 0.90 3 3 0.10
4 27 0.87 4 4 0.10 4 26 0.87 4 4 0.13
5 26 0.84 5 5 0.13 5 25 0.83 5 5 0.17
6 25 0.81 6 6 0.16 6 24 0.80 6 6 0.20
7 24 0.77 7 7 0.19 7 23 0.77 7 7 0.23
8 23 0.74 8 8 0.23 8 22 0.73 8 8 0.27
9 22 0.71 9 9 0.26 9 21 0.70 9 9 0.30
10 21 0.68 10 10 0.29 10 20 0.67 10 10 0.33
11 20 0.65 11 11 0.32 11 19 0.63 11 11 0.37
12 19 0.61 12 12 0.39 12 18 0.60 12 12 0.40
13 18 0.58 13 13 0.35 13 17 0.57 13 13 0.43
14 17 0.55 14 14 0.45 14 16 0.53 14 14 0.47
15 16 0.52 15 15 0.48 15 15 0.50 15 15 0.50
16 15 0.48 16 16 0.52 16 14 0.47 16 16 0.53
17 14 0.45 17 17 0.55 17 13 0.43 17 17 0.57
18 13 0.42 18 18 0.58 18 12 0.40 18 18 0.60
19 12 0.39 19 19 0.61 19 11 0.37 19 19 0.63
20 11 0.35 20 20 0.65 20 10 0.33 20 20 0.67
21 10 0.32 21 21 0.68 21 9 0.30 21 21 0.70
22 9 0.29 22 22 0.71 22 8 0.27 22 22 0.73
23 8 0.26 23 23 0.74 23 7 0.23 23 23 0.77
24 7 0.23 24 24 0.77 24 6 0.20 24 24 0.80
25 6 0.19 25 25 0.81 25 5 0.17 25 25 0.83
26 5 0.16 26 26 0.84 26 4 0.13 26 26 0.87
27 4 0.13 27 27 0.87 27 3 0.10 27 27 0.90
28 3 0.10 28 28 0.90 28 2 0.07 28 28 0.93
29 2 0.06 29 29 0.94 29 1 0.03 29 29 0.97
30 1 0.03 30 30 0.97 30 0 0.00 30 30 1.00
31 0 0.00 31 31 1.00

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH

EXHIBIT B

Animal Unit Month (AUM) Calculation Table

28 Day Month 29 Day Month

1 30 0.96 1 1 0.04 1 28 0.97 1 1 0.03
2 29 0.93 2 2 0.07 2 27 0.93 2 2 0.07
3 28 0.89 3 3 0.11 3 26 0.90 3 3 0.10
4 27 0.86 4 4 0.14 4 25 0.86 4 4 0.14
5 26 0.82 5 5 0.18 5 24 0.83 5 5 0.17
6 25 0.79 6 6 0.21 6 23 0.79 6 6 0.21
7 24 0.75 7 7 0.25 7 22 0.76 7 7 0.24
8 23 0.71 8 8 0.29 8 21 0.72 8 8 0.28
9 22 0.68 9 9 0.32 9 20 0.69 9 9 0.31
10 21 0.64 10 10 0.36 10 19 0.66 10 10 0.34
11 20 0.61 11 11 0.39 11 18 0.62 11 11 0.38
12 19 0.57 12 12 0.43 12 17 0.59 12 12 0.41
13 18 0.54 13 13 0.46 13 16 0.55 13 13 0.45
14 17 0.50 14 14 0.50 14 15 0.52 14 14 0.47
15 16 0.46 15 15 0.54 15 14 0.48 15 15 0.48
16 15 0.43 16 16 0.57 16 13 0.45 16 16 0.55
17 14 0.39 17 17 0.61 17 12 0.41 17 17 0.59
18 13 0.36 18 18 0.64 18 11 0.38 18 18 0.62
19 12 0.32 19 19 0.68 19 10 0.34 19 19 0.66
20 11 0.29 20 20 0.71 20 9 0.31 20 20 0.69
21 10 0.25 21 21 0.75 21 8 0.28 21 21 0.72
22 9 0.21 22 22 0.79 22 7 0.24 22 22 0.76
23 8 0.18 23 23 0.82 23 6 0.21 23 23 0.79
24 7 0.14 24 24 0.86 24 5 0.17 24 24 0.83
25 6 0.11 25 25 0.89 25 4 0.14 25 25 0.86
26 5 0.07 26 26 0.93 26 3 0.10 26 26 0.90
27 4 0.04 27 27 0.96 27 2 0.07 27 27 0.93
28 3 0.00 28 28 1.00 28 1 0.03 28 28 0.97
29 0 0.00 29 29 1.00

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH

EXHIBIT C

STOCKING REPORT

PARK: TENANT:

YEAR/SEASON: PASTURE:

Date In/Out Number X Portion (%) of Month X
(AUM Calculation Table)
AU Conversion =
(1, 0.75, or 0.5, etc.)
AUM

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK

EXHIBIT D

7/27/19

PARK OPERATIONS GRAZING MANAGEMENT

ANNUAL REVIEW AND PLANNING MEETING

Date:

Park:

Grazing Unit:

Grazing Tenant:

Park Supervisor:

REVIEW OF PREVIOUS SEASON

Grazing Operation Type, Season, Duration:

Stocking Rate:

RDM Results:

Aggressive Animal Incidents:

Projects Completed:

Highlights and Accomplishments:

Areas/Issues of concern (RDM below or above target levels), erosion, trespass, vandalism, etc.):

PLANNING FOR NEXT SEASON

Planned Grazing Operation Type, Season, Duration:

Planned Stocking Rate:

RDM Goals:

Other Goals:

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK

EXHIBIT D

7/27/19

NRCS or other projects:

INFRASTRUCTURE PRIORITIES FOR GRAZING PROGRAM FUNDING

Short term needs:

Long term needs:

PROJECTS PLANNED FOR S & S FUNDING

PROPOSED MANAGEMENT FOR GRAZING IMPACTS (if needed)

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK

EXHIBIT E
Revised 11.25.19

EAST BAY REGIONAL PARK DISTRICT

RESOURCE IMPROVEMENT AUTHORIZATION FORM
This form is both a record of the estimated and final costs. All pertinent receipts, invoices, records, etc. should be attached. If more space for Project Description or Costs is needed, attach additional sheets.

Date Submitted: ________________________ Date Completed: ________________________

Park Name: ________________________ Licensee Name: _________________________________

Licensee’s Business Name: _______________________________________________________________

Project Description (include type of work involved and location within the grazing unit):

Estimated Project Costs

Contracts (include contractors’ names and bid amounts):

Total Estimate Contract Cost:

Total Final Contract Cost:

Materials (include itemized list of materials needed to complete the project and their cost; attach additional page(s), if necessary):

Total Estimate Materials Cost:

Total Final Cost:

Labor (include name(s) of person(s) contributing labor, their estimated time involved in the project, and their cost per hour or day):

Total Estimate Labor Cost:

Total Final Labor Cost:

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK

EXHIBIT E
Revised 11.25.19
Rental Equipment (include type of equipment needed, estimated rental time, and cost per hour or day; include hourly rate of equipment operator if this is a separate expense):

Total Estimate Rental Equipment Cost:

Total Final Rental Equipment Cost:

Total Estimated Project Cost*:

Total Final Project Cost:

Estimated/Actual Completion Dates: /

* The total final cost of the project cannot exceed ten percent (10%) of the estimated cost in this authorization without the consent of the Wildland Vegetation Program Manager.

APPROVALS (Sign and Date):

_________________________________________ _______________________ Licensee Date

_________________________________________ _________________________________________ Park Supervisor/Date Unit Manager/Date

_________________________________________ _________________________________________ Wildland Vegetation Program Manager/Date Chief of Stewardship (< $10,000)/Date

_________________________________________ ______________________________________ Assistant General Manager, ASD/Date Deputy General Manager/Date ($10,000 - $24,999) ($25,000 - $50,000)

_________________________________________
General Manager ($25,000-$50,000 )/Date

BUDGET INFORMATION

____________________________________ _______________ _______________ Budget Code(s) Park Supervisor to Confirm PO Request No. PO Number

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Attachment: Exhibit B: Grazing License and Exhibits (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK Fremont City Council Meeting: 11/15/22 07:00 PM
3300 Capitol Avenue Div/Dept: Community Services
Fremont, CA 94538 Category: Agreements and Contracts

SCHEDULED
Sponsors:

STAFF REPORT (ID # 4747) DOC ID: 4747 B
Updated: 11/9/2022 3:36 PM by Alberto Quintanilla B Page 1

AUTHORIZE CITY MANAGER TO EXECUTE A LEASE AGREEMENT WITH EAST BAY REGIONAL PARK DISTRICT FOR 900 ACRES AT MISSION PEAK; Authority the City Manager to execute a lease agreement with East Bay Regional Park District to include 900 acres at Stanford Staging Area and the larger Mission Peak are for the purpose of public park, recreation, and open space and find that no further environmental review is required for the lease pursuant to CEQA Guidelines 15307, 15162, 15163, 15678(b) and 15601(b)(3) Contact Persons:

Name: Kim Beranek Suzanne Wolf
Title: Deputy Director Co mmunity Services Director
Div/Dept: Community Services Community Services
Phone: 510-494-4330 510-494-4329
E-Mail: [email protected] [email protected]

Executive Summary: The City owns approximately 900 of the total 3,023 acres of land on Mission Peak which is zoned as an Open Space Resource Conservation Area (See Exhibit A).

On May 2, 1978, the City entered into 25-year lease agreement with East Bay Regional Park District (EBRPD). In 1993, pursuant to the terms of the 1978 Lease, the City and EBRPD extended the term of the Lease for twenty-seven years until July 7, 2020. Since the expiration of the 1993 agreement, the lease automatically continued under the existing terms on a month-to-month basis. On November 9, 2021, the City Council directed staff to continue negotiations, and staff from both agencies have since collaborated to add specific elements to the renegotiated lease agreement. Staff recommends that the City Council authorize the City Manager to execute a lease agreement with East Bay Regional Park District to include 900 acres at Stanford Staging Area and the larger Mission Peak area for the purpose of public park, recreation, and open space.

BACKGROUND: The City owns approximately 900 acres of land on Mission Peak which is zoned as an Open Space Resource Conservation Area (See Exhibit A). On May 2, 1978, the City entered into 25-year lease agreement with East Bay Regional Park District (EBRPD) to manage and operate the land as a public park, recreation, and open space area. In 1993, pursuant to the terms of the 1978 Lease, the City and EBRPD extended the term of the Lease for twenty-seven years until July 7, 2020.

In 2019 staff from both agencies began drafting the lease negotiation process but this was delayed due to the effects of the pandemic on our respective park systems. On December 15, 2020, the City Council directed staff to work towards developing a new long-term lease agreement since the 25-year lease extension expired in July 2020. The lease automatically continues with the existing terms on a month-to-month basis.

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Attachment: Informational Item 1: 11-15-2022 Staff Report (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK Staff Report (ID # 4747) Meeting of November 15, 2022
Updated: 11/9/2022 3:36 PM by Alberto Quintanilla B Page 2 On November 9, 2021, the City Council rejected the proposed lease agreement and requested the lease be redrafted to address specific Council concerns identified at the Council meeting. The City Council directed staff to continue negotiations with EBRPD to consider further amendments that would shorten the timeframe of the agreement and to further clarify language in the lease agreement.

DISCUSSION/ANALYSIS: The City of Fremont and EBRPD staff have proactively collaborated to better understand the needs and issues facing the Mission Peak neighborhood and the community over the last six years.

Community Input and Analysis

 The City first held a hybrid community meeting on August 9, 2021 with approximately 97 in attendance and 38 speakers at the Teen Center. The City also received 39 written public comments via an online portal. The community comments were evenly distributed between neighborhood concerns about traffic, crime, curfew violations, operational issues, and a desire to limit operating hours versus a desire to maintain existing access and fewer parking restrictions in the established Mission Peak Permit Parking Area. Fremont Police Chief Washington attended and listened to community concerns and was able to address several of the issues related to the Police Department. Specifically, he highlighted his ability to work with the EBRPD police staff on key policing issues. Both Chief Washington and EBRPD Police Chief Ciaburro have discussed that although Fremont Police Department will not be specifically assigned to monitor the Stanford Staging Area, the City will respond if there is an articulated need to send resources to the area to prevent, deter or follow- up on criminal activity or behavior that is deemed to be a public safety concern.

 The City and EBRPD Liaison Committee Meeting was held online on October 14, 2021, with 17 in attendance and 6 speakers. The discussion continued with concerns from the community regarding enforcement of the curfew hours and requests to set the operating hours at Stanford Staging Area similar to other EBRPD properties such as Garin or Pleasanton Ridge. An equal number of speakers wanted to ensure that the Stanford Staging Area remains open and accessible to the public and encouraged the agencies to continue working closely with the Ohlone College to ensure that a low fee for visitor parking continues.

 On November 2, 2021, EBRPD held their board meeting regarding the Lease Agreement. The EBRPD Board unanimously approved the Lease agreement. The community dialogue was reflected both the goal for Mission Peak as a regional recreational asset and the interests of the neighboring community.

 On November 9, 2021, the City Council rejected the proposed lease agreement and requested the lease be redrafted to address specific Council concerns identified at the Council meeting. The City Council directed staff to continue negotiations with EBRPD to consider further amendments that would shorten the timeframe of the agreement and to further clarify language in the lease agreement.

 Since November, , City and EBRPD staff have worked diligently to return with this proposed amended lease agreement and, if adopted by the City Council at tonight’s

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Attachment: Informational Item 1: 11-15-2022 Staff Report (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK Staff Report (ID # 4747) Meeting of November 15, 2022
Updated: 11/9/2022 3:36 PM by Alberto Quintanilla B Page 3 meeting, it will subsequently be considered at the December 6, 2022, EBRPD Board Meeting.

City Oversight

With the change in Permit Parking (see below) the City is responsible for all areas outside of the park boundaries. This includes:

• Permit Parking Area (streets, times, locations, restrictions) • Neighborhood Crime and Police Response (vehicle break ins, theft, speeding) • Neighborhood Solutions (such as adding garbage cans if trash is a concern) • Creative Solutions with Partners (The City can lead and discuss issues with agencies such as AC transit to determine if bike and bus usage can improve; and Public Works continues its request to Google Maps to change the primary entrance to the Mission Peak Regional Preserve to Ohlone College)
• Emergency Safety Response and Mutual Aid
The City will continue to create solutions with EBRPD. The District is a well-respected expert and national leader in Open Space Management. The City is proud of the seven District Regional Parks in Fremont (Alameda Creek Regional Trail, Ardenwood Historic Farm, Coyote Hills Regional Park, Mission Peak Regional Preserve, Quarry Lakes Regional Recreation Area, Vargas Plateau Regional Park, and Dumbarton Quarry Campground) and will continue its professional and collaborative relationship to discuss and develop solutions together as issues arise.

Permit Parking

The Mission Peak Permit Parking Program was approved by City Council in May of 2016 as temporary solution to address neighborhood concerns regarding traffic and parking. EBRPD assisted the City in paying the administrative implementation costs for the program and provided EBRPD police enforcement support throughout the original agreement term.

On May 19, 2020, the City Council extended the Mission Peak Neighborhood Permit Parking Program for three years. The City’s Police Department has assumed all Mission Peak Permit Parking enforcement efforts and has hired two (2) Parking Compliance Officers and one (1) Community Service Officer to oversee the Parking Compliance Unit to enforce parking issues across the City. Due to the success of the permit parking program, the Police Department plans to recommend a continuation of the program at a future City Council meeting.

On July 20, 2021, the City Council adopted a resolution amending the civil penalties schedule to increase the fines for violating permit parking during restricted hours to $82.

This is consistent with all other municipal code parking violation fees within the City of Fremont.

The permit parking program has helped alleviate some of the issues and concerns of the neighborhood while still maintaining reasonable access. Residents and visitors to the area may freely park in the approximate 200-space staging area and non-restricted neighborhood spaces as well as utilize the 900-space parking lot controlled by Ohlone

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Attachment: Informational Item 1: 11-15-2022 Staff Report (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK Staff Report (ID # 4747) Meeting of November 15, 2022
Updated: 11/9/2022 3:36 PM by Alberto Quintanilla B Page 4 Community College to access the Mission Peak Regional Preserve. Staff believes the program has been successful and continues to balance access with safety for our residents.

EBRPD Operations and Maintenance

As outlined in the lease agreement the City does not have operational or maintenance responsibility of the leased area. EBRPD has the oversight of operations and maintenance at all its leased properties and are renowned regional open space experts. As stated in the lease, any issues on the leased property are the responsibility of EBRPD. EBRPD management has stated that this practice is consistent with their other existing leases.

Examples of operational and maintenance oversight includes the following:

• On-Site Facility Maintenance: daily janitorial maintenance (trash, restrooms), trail maintenance including grading & drainage, facility maintenance & repairs (restrooms, fences, tables, benches, signs, gates, water fountains);

• Operations and Patrol: Hours of Operation and curfew hours, daily opening and closing of sites, Park Ranger and Police Patrols; and

• Natural Resources and Fuels Management: primarily grazing for fuels reduction and weed management, some limited management of non-native plant species.

Proposed Lease Agreement

The roles and responsibilities of each organization are included in the lease agreement.

Clarifying roles and responsibilities was an important component in delivering the final proposed lease agreement. The proposed lease agreement includes the following updates:

1. Agreed upon police and road closure language if the City exercises its police powers and closes street for more than 24 hours, then the City shall temporarily assume the operational responsibilities for the Stanford Staging Area until the conclusion of the street closure. Street closures that trigger the change in responsibilities do not include street closures for criminal investigation or fire suppression.

2. Specified hours as listed in the agreement will be posted at the entrance to the Stanford Staging Area.

3. If any changes are proposed to the current hours of operation at the Stanford Avenue Staging Area and adjacent portions of the Mission Peak Regional Preserve, EBRPD will notify City of proposed changes in writing 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 EBRPD General Manager, or their designees. In addition to any community meeting held within the City, for any proposed changes to the current hours of operation, EBRPD will include the change of hours on a regularly scheduled public meeting of the EBRPD.

4. Shortened term of lease agreement to twenty years, with an option for a twenty- year extension.

5. Agreed to a side letter that EBRPD would not build the larger 300 parking lot as allowed in the EIR to be pursued during the term of the Lease Agreement.

6. Added a cooperation paragraph in the agreement.

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Attachment: Informational Item 1: 11-15-2022 Staff Report (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK Staff Report (ID # 4747) Meeting of November 15, 2022
Updated: 11/9/2022 3:36 PM by Alberto Quintanilla B Page 5

7. Added review approval and denial process in writing for Capital Improvement Program with a longer timeframe (60 days without permits and 120 days with permits).

8. Added that City may select to host a community meeting before determining whether to proceed or not with a capital project that requires a permit.

9. Updated Indemnity Language.

10. Updated Non-Discrimination language.

11. Updated Grazing Management terms.

12. Added language on EBRPD exclusive operational control and authority.

13. Updated insurance language.

14. Agreed that the leased area is to be maintained and operated in a similar nature to all the other regional parks operated by EBRPD.

15. Agreed that Ohlone College Parking will be promoted as the primary entrance to the Mission Peak Preserve in Fremont (included in marketing materials).

FISCAL IMPACT: The funding for the operations and maintenance of the Mission Peak Lease is paid by the Fremont residents as part of their County Tax Assessment to EBRPD.

The City does not receive any portion of this allocation for operations and maintenance, and if the lease agreement did not exist, a General Fund allocation would be required to cover the operation and maintenance of this 900-acre site. Alternatively, if the General Fund allocation were unavailable, the City would need to consider a closure or partial closure of this site, which would be nearly impossible to enforce with limited resources. If not adopted, it is anticipated that the City would either 1) continue with month to month lease terms or 2) begin to operate and manage the 900 acre property, which has significant cost considerations for the City of Fremont and the General Fund implications.

ATTACHMENTS: None.

ATTACHMENTS:
 Proposed Amended Mission Peak Lease
 Exhibit A: Mission Peak Land

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Attachment: Informational Item 1: 11-15-2022 Staff Report (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK Staff Report (ID # 4747) Meeting of November 15, 2022
Updated: 11/9/2022 3:36 PM by Alberto Quintanilla B Page 6

RECOMMENDATION:

1. Authorize the City Manager to execute a lease agreement with East Bay Regional Park District to include 900 acres at Stanford Staging Area and the larger Mission Peak area for the purpose of public park, recreation, and open space.

2. Find that continuation of the lease of 900 acres at Mission Peak to EBRPD would be exempt from the requirements of the California Environmental Quality Act (CEQA) per, without limitation, each on a separate and independent basis, (1) CEQA Guidelines Section 15307 (2) the continuation of Mission Peak as a park by EBRPD are part of the project analyzed in the General Plan EIR (SCH#2010082060) and none of the circumstances necessitating preparation of a subsequent EIR pursuant to Public Resources Code Section 21166 and CEQA Guidelines Sections 15162 and 15163 are present; and (3) CEQA Guidelines Sections 15378(b) and 15601(b)(3).

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Attachment: Informational Item 1: 11-15-2022 Staff Report (4763 : MISSION PEAK LEASE AGREEMENT WITH EAST BAY REGIONAL PARK Mission Peak
Lease Agreement
City Council Presentation
November 15, 2022

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Current Status
•900 acres of Open Space Conservation Area leased
to EBRPD to operate and maintain;
•The current lease agreement expired July 2020 and
is currently month to month;
•The City and EBRPD both continue to promote
Ohlone College as the main trail access point and
parking lot;
•On May 17, 2016, the City Council created the
Mission Peak Permit Parking Program.
•On May 19, 2020, the City Council adopted a three-
year program extension that will expire on July 7,
2023. The Police Department plans to recommend a
continuation of the program at a future City Council
meeting.

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Seven (7) Regional
Parks in Fremont
operated by
EBRPD

1. Alameda Creek Trail

2. Ardenwood

3. Coyote Hills

4. Dumbarton Quarry Campground

5. Quarry Lakes

6. Vargas Plateau

7. Mission Peak
• Ohlone College Entrance
• Stanford Staging Area

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Ohlone College Entrance
•900 spaces
•Parking Fee $4
•Hours: 6:00 am – 11:00 pm
Stanford Avenue Entrance
• 43 spaces at Staging Area parking lot
• 150 street spaces
• Winter Hours: 6:30 am – 8:00 pm
• Spring, Summer & Fall Hours: 6:30 am – 9:00 pm

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Overview of
REVISED Proposed
Lease Agreement
Staging Area
• All requested improvements must be approved or denied by the City with approval dates extended to 60 days for small projects and 120 days for improvements that require permits. • Added that City may select to host a community meeting before determining whether to proceed or not with a capital project that requires a permit issued by the City.
• Ohlone identified as the primary parking and entrance. Both agencies will continue to promote (market, website, social media, maps, signage other documents) the main trail access point and parking lot as Ohlone College.
• Neither agency supports charging fees at the Stanford Staging parking lot at this time, so that the neighborhood will have fewer parking impacts.

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Overview of
REVISED Proposed
Lease Agreement
Operational Oversight
• EBRPD sets hours and has operational control.
• EBRPD will notify City of any changes to operating hours 30 days prior; City to hold community meeting in Fremont;
community comment at EBRPD Committee meeting.
• Specified hours as listed in the agreement will be posted at the entrance to the Stanford Staging Area on a permanent sign.
• Updated EBRPD’s Grazing Management lease.

Park curfew 9:00 pm to 6:30 am strictly
enforced. Subject to $300 fine.

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Overview of
REVISED Proposed
Lease Agreement
Police and Fire
• EBRPD provides police and fire protection at the same level as other EBRPD parks.
• The area leased by the City is to be maintained and
operated in a similar nature to all the other regional parks operated within the by EBRPD.
• EBRPD provides patrol of leased area, including the
parking lot (43 spaces), City provides patrol of
neighborhood permit parking area (approximately 150
spaces).
• Agreed upon road closure language if the City exercises its police powers and closes street for more than 24 hours.

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Overview of
REVISED Proposed
Lease Agreement
Lease
• Can be terminated within 90 days of a breach or within 30 days of written notice by either party.
• Indemnity language, non-discrimination language, and
insurance language are updated.
• Twenty (20) years, through January 1, 2043, with an option to renew for an additional 20 years. This is a partnership lease agreement with a cooperation paragraph added.
• Side Letter has been received and represents no
construction of an additional parking lot of 300 spaces as allowed in EIR during the term of the lease.

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Staff
Recommendations

1. Authorize the City Manager to execute a
lease agreement with EBRPD to include
900 acres at Stanford Staging Area and the
larger Mission Peak Area for the purpose of
public park, recreation, and open space.

2. Find that continuation of the lease of 900
acres at Mission Peak to EBRPD would be
exempt from the requirements of CEQA, as
stated in the Council report.

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION Mission Peak
Lease Agreement
City Council Presentation
November 15, 2022

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Attachment: Informational Item 2: 11-15-2022 PowerPoint Presentation (4763 : MISSION

Fremont City CouncilDecember 6, 2022

Fremont City Council
December 6, 2022