Historical Property Contract for The Mission Elementary School (The Old School) Recorded at the request of, and
when recorded return to:
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City Clerk
City of Fremont
39100 Liberty Street
P.O. Box 5006
Fremont, CA 94537-5006
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HISTORICAL PROPERTY CONTRACT
FOR
THE MISSION ELEMENTARY SCHOOL (THE OLD SCHOOL)
This Historical Property Contract (hereinafter “Agreement”) for 43551 Mission Boulevard is made by and between the City of Fremont, a municipal corporation (hereinafter “City”) and Mission Square Historic Renovation Partners L.P., a California L imited Partnership (hereinafter “Owner”). City and Owner may be collectively referred to as “parties.”
RECITALS
A. California Government Code §50280 et seq. authorizes local governments to enter into contracts with the owners of “qualified historical properties”1 to provide for the use, maintenance, and restoration of such historical properties so as to retain their characteristics as properties of historical significance.
B. Owner possesses fee title in and to that certain real property, together with associated structures and improvements thereon, located at the street address 43551 Mission Boulevard , Fremont, California, (hereinafter “Property”). A legal description of the Property is attached hereto, marked as Exhibit A, and is incorporated herein by this reference.
C. The Property has been designated as a Register Resource on the Fremont Registry or is otherwise a qualified historical property.
D. City and Owner, for their mutual benefit, now desire to enter into this Agreement both to protect and preserve the character -defining features that convey the historical significance of the Property and to qualify the Property for assessment of valuation pursuant to the provisions of California Revenue and Taxation Code §439 et seq.
1 As defined by Government Code §50280.1.
Historical Property Contract for The Mission Elementary School (The Old School)
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND CONDITIONS IDENTIFIED HEREIN, THE PARTIES AGREE AS FOLLOWS:
1. Effective Date and Term of Agreement
This Agreement shall be effective and commence on (date to be entered), 2023, (hereinafter referred to as the “Effective Date”) and shall remain in effect for a term of 10 years thereafter (the “Initial Term”).
2. Renewal
On each anniversary of the Effective Date thereafter (hereinafter referred to as the “Renewal Date”), a year shall automatically be added to the term of this Agreement unless notice of nonrenewal is mailed as provided herein. If either Owner or the City Council desires in any year not to renew the Agreement, Owner or the City Council shall serve by mail written notice of nonrenewal of the Agreement on the other party in advance of the annual Renewal Date. Unless such notice is served by Owner on the City Council at least ninety (90) days prior to the annual renewal date, or served by City Council on Owner at least sixty (60) days prior to the annual renewal date, one (1) year shall automatically be added to the term of the Agreement. Upon receipt by Owner of a notice of nonrenewal from the City, Owner may make a written protest of the notice to the City Council. The City Council may, at any time prior to any Renewal Date, withdraw a notice to Owner of nonrenewal. If either the City Council or Owner serves notice on the other of nonrenewal in any year, the Agreement shall remain in effect for balance of the term remaining on the Agreement since the original execution or since the last renewal of the Agreement, whichever may apply.
3. Protection and Preservation of Historical Property
During the term of this Agreement, the Property shall be subject to the following conditional requirements and restrictions:
a. Owner shall protect and preserve the character -defining features that convey the historical significance of the Property. Attached hereto, marked as Exhibit “B”, and incorporated herein by this reference is a list of notable historic features of the Property, which shall be maintained and preserved on the Property throughout the term of this Agreement.
b. Owner shall, where necessary, restore and rehabilitate the Property according to the rules and regulations of the Office of Historic Preservation of the State Department of Parks and Recreation, the Secretary of the Interior’s Standards for Rehabilitation, the State Historical Building Code, the Fremont Municipal Code, and in accordance with Exhibit B of this Agreement.
c. Owner shall allow reasonable periodic examinations, by prior appointment, of interior and exterior character-defining features of the Property by representatives of the County Assessor, State Department of Parks and Recreation, State Board of Equalization and City, as may be necessary to determine Owner's compliance with the terms and provisions of this Agreement. In addition, the City shall inspect the
Historical Property Contract for The Mission Elementary School (The Old School) interior and exterior of the Property after fiver years and every five years thereafter to determine the Owner’s compliance with this Agreement. d. Owner shall serve City by mail, with at least thirty (30) days prior notice of proposed changes to the character-defining features of the Property, such as major landscaping projects, exterior door or window replacement, or any exterior alterations requiring a building permit.
4. Annual Report on Improvements
Starting 12 months after this Agreement’s effective date, the Owner shall provide an annual report to the City detailing improvements made towards the character-defining features listed in Exhibit B and/or improvements described in the 10-year Preservation Plan as described in Exhibit C. The annual report shall include a written description of the improvements made, the costs associated with the improvements, and any challenges encountered during the process.
5. Valuation of the Property
During the term of this Agreement, the Property (including the land) shall be valued as “enforceably restricted” historical property as set forth in California Revenue and Taxation Code §439 et seq.
6. Notification to State Office of Historic Preservation Owner shall provide written notice of this Agreement to the State Office of Historic Preservation within six (6) months of this Agreement’s effective date.
7. Provision of Information of Compliance
Owner agrees to furnish City with any and all information, which may be necessary or advisable to determine compliance with the terms and provisions of this Agreement, requested by City.
8. Cancellation
The City, following a duly noticed public hearing as set forth in California Government Code §§50280, et seq., may cancel this Agreement if the City Council determines that Owner has breached any of the conditions of this Agreement or has allowed the Property to deteriorate to the point that it no longer meets the requisite standards applicable to a qualified historical property. The City may also cancel this Agreement if the City Council determines that Owner has failed to restore or rehabilitate the Property in the manner specified in subparagraph 3(b) of this Agreement. In the event of cancellation of this Agreement by the City, Owner shall pay the County Auditor a cancellation fee of Twelve and One -Half percent (12.5%) of the fair market value of the Property, as determined by the County Assessor as through the Property were free of the restrictions of this Agreement. If the City determines that performance of the Agreement has become infeasible due to damage of the Property caused by natural disaster or otherwise, the Agreement may be cancelled upon the Owner’s application without payment of the cancellation fee, to t he extent that non- payment is permitted by law.
Historical Property Contract for The Mission Elementary School (The Old School)
9. Enforcement of Agreement
In lieu of and/or in addition to any provisions permitting cancellation of this Agreement as referenced herein, City may specifically enforce, or enjoin the breach of, the terms of this Agreement. In the event of a default under the provisions of this Agreement by Owner, City shall give written notice to Owner by registered or certified mail addressed to the address stated in this Agreement, and if such a violation is not corrected to the reasonable satisfaction of the City within thirty (30) days thereafter, or if not corrected within such a reasonable time as may be required to cure the breach or default, or if said breach or default cannot be cured within thirty (30) days (provided t hat acts to cure the breach or default must be commenced within thirty (30) days and must thereafter be diligently pursued to completion by Owner) then City may, without further notice, declare a default under the terms of this Agreement and may bring any action necessary to specifically enforce the obligations of Owner pursuant to the terms of this Agreement, apply to any court, state or federal, for injunctive relief against any violation by Owner, or apply for such other relief as may be appropriate.
10. Binding Effect of Agreement
The Owner voluntarily subjects the Property to the covenants, reservations, and restrictions as set forth in this Agreement. City and Owner declare their specific intent that the covenants, reservations, and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon Owner’s successors and assigns in title or interest to the Property. Each owner shall only be responsible to perform obligations during the period that such owner holds title to the Property and shall not be liable for performance of obligations during the period that title to the Property is held by a successor or predecessor owner. Each and every contract, deed, or other instrument hereinafter executed, covering or conveying the Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations , and restrictions expressed in this Agreement whether or not such covenants, reservations , and restrictions are set forth in such contract, deed, or other instrument.
11. Notices
All notices required or contemplated by this Agreement shall be in writing and shall be delivered to the respective party as set forth in this section. Communications shall be deemed to be effective upon the first to occur of: (a) actual receipt by a party’s Authorized Representative, (b) actual receipt at the address designated below, or (c) three working days following deposit in the United States Mail of registered or certified mail sent to the address designated below. The Authorized Representative of either party may modify their respective contact information identified in this section by providing notice to the other party.
To: City To: Owner
Attn: Planning Manager
City of Fremont
39550 Liberty Street
P.O. Box 5006
Fremont, CA 94537-5006
Attn: Mark Robson
Mission Square Historic Renovation Partners L.P.
2185 The Alameda, Suite 150
San Jose, CA 95126
Historical Property Contract for The Mission Elementary School (The Old School)
12. General Provisions
The following general provisions apply to this Agreement:
a. None of the terms, provisions , or conditions of this Agreement shall be deemed to create a partnership between the parties and any of their heirs, successors, or assigns, nor shall such terms, provisions , or conditions cause them to be considered joint venturers or members of any joint enterprise.
b. Owner agrees to and shall hold City and its elected officials, officers, employees, and agents harmless from any and all liability for damage or claims for damage for personal injuries, including death, and claims for property damage which may arise from the direct or indirect use or operations of Owner or those of Owner’s contractor, subcontractor, agent, employee , or other person acting on Owner’s behalf which relate to the use, operation, and maintenance of the Property. Owner agrees to and shall defend the City and its elected officials, officers, employees , and agents with respect to any and all actions for damages caused by, or alleged to have been caused by, reason of Owner’s activities in connection with the Property. This hold harmless provision applies to all damages and claims for damages suffered, or alleged to have been suffered, by reason of the operations referred to in this Agreement , whether or not the City prepared, supplied or approved the plans, specifications , or other documents for the Property.
c. All of the agreements, rights, covenants, reservations , and restrictions contained in this Agreement shall be binding upon and shall inure to the benefit of the parties herein, their heirs, successors, legal representatives, assigns , and all persons acquiring any part or portion of the Property, whether by ope ration of law or in any manner whatsoever.
d. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants, reservations , or restrictions contained herein, or to determine the rights and duties of any party hereunder, the prevailing party in such proceeding may recover all reasonable attorney’s fees to be fixed by the court, in addition to court costs and other relief ordered by the court. e. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be effected thereby.
f. This Agreement shall be construed and governed in accordance with the laws of the State of California.
13. Recordation
No later than twenty (20) days after the parties execute and enter into this Agreement, City shall cause this Agreement to be recorded in the Office of the County Recorder of the County
Historical Property Contract for The Mission Elementary School (The Old School) of Alameda.
14. Amendments
This Agreement may be amended, in whole or in part, only by a written recorded instrument executed by the parties.
15. Entire Agreement
This Agreement, including all documents incorporated herein by reference, comprises the entire integrated understanding between the parties concerning the services described herein. This Agreement supersedes all prior negotiations, agreements, and understandings regarding this matter, whether written or oral. The documents incorporated by reference into this Agreement are complementary; what is called for in one is binding as if called for in all.
16. Signatures
The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Owner and the City. This Agreement shal l inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.
Historical Property Contract for The Mission Elementary School (The Old School) IN WITNESS WHEREOF, the City and the Owner do agree to the full performance of the terms set forth herein
CITY OF FREMONT OWNER
By:
Mission Square Historic Renovation Partners L.P.
By: By:
Title: Mayor Title:
Date: Date:
APPROVED AS TO FORM:
By: Bronwen Lacey
Title: Senior Deputy City Attorney
Historical Property Contract for The Mission Elementary School (The Old School) – Exhibit A
EXHIBIT A
LEGAL DESCRIPTION
REAL PROPERTY IN THE CITY OF FREMONT, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
LOT 1 AS SHOWN ON THAT CERTAIN MAP OF TRACT 7965, RECORDED OCTOBER 6, 2009 IN BOOK 305 OF MAPS, AT PAGES 21 AND 22, ALAMEDA COUNTY RECORDS.
Historical Property Contract for The Mission Elementary School (The Old School) – Exhibit B
EXHIBIT B
CHARACTER-DEFINING FEATURES OF
THE MISSION ELEMENTARY SCHOOL (OLD SCHOOL)
1. Espaneda gable ends of the side wings
2. Hand-applied, mottled stucco finish
3. Wood embellishments:
a. Quatrefoil vents
b. Bracketed balconies with turned wooden spindled railings c. Turned wood spindle rails
d. Decorative door surrounds and window trim
e. Shaped rafter ends and eaves
f. Flat board belt course
4. Central bell tower with tile roof
5. Copinged mission parapets (with quatrefoil louvered vents)
6. Entry door
a. Twin paneled door with central window
b. Hopper windows above door
c. Pilasters and dentiled pediment
d. Broad stairway
7. Twin arched galleries
8. Decorative pediment/cartouche at second story side windows (north and south elevations)
9. Windows
a. Wooden sash windows, double hung on upper story
b. Large ribbon style window sash (front and rear of wings) c. Hopper windows
Historical Property Contract for The Mission Elementary School (The Old School) – Exhibit C
EXHIBIT C
10-YEAR PRESERVATION PLAN FOR
THE MISSION ELEMENTARY SCHOOL (OLD SCHOOL)
1. YEARS 1‐3 (2022‐2024) – PAINTING: $75,000.00
Exterior Body: Clean and remove loose debris on the exterior of the building (eaves, fascia’s, gutters, downspouts, windows, doors, rafter tails, belly bands, corner trim, hand railings with a power washer). Scrape and sand all exterior wood trim. Any minor dry rot or pest/rodent damaged areas found shall be repaired with epoxy wood filler and painted to match. Where wood is excessively damaged it shall be replaced with salvaged or custom milled wood to match the profile of the original.
2. YEAR 4 (2025) – FRONT ELEVATION BALCONY/STAIRS: $16,000.00 Restoration of Stairs & Balcony: Clean and remove loose debris on the balcony floor and the stairs with a power washer, scrape, and sand any areas that show cracked & loose material. Seal all corners, cracks, and open joints. Refinish epoxy coating to match existing.
3. YEARS 5‐7 (2026‐2028) – CONCRETE FLATWORK: $14,000.00 Walkways & Etc.: Clean, power wash and repair concreate walkways directly in and around the perimeter of The Old School building. Said flatwork will be power washed with a 2500psi (or equal) power washer to help prevent deterioration of the walkways. Walkways with greater than ½” deferential in vertical displacement will get treated by grinding down to match and any walkways greater than 1” will be broke out and replace, restoring it to its original height.
4. YEARS 8‐9 (2029‐2030) – ROOFING: $12,000.00
Roofing System: Inspect the entire roofing system. Clean all water ways, restore coatings & sealants as needed. Replace any damage materials, vents, ducts & flashing components so the building can retain the original architecture and design. Scrape and sand all exterior wood trim. Any minor dry rot or pest/rodent damaged areas found shall be repaired with epoxy wood filler and painted to match. Where wood is excessively damaged it shall be replaced with salvaged or custom mil led wood to match the profile of the original.
5. YEAR 10 (2031) – EXTERIOR LIGHTING: $9,000.00
Exterior Lighting: Inspect all exterior lights around the walls, courtyards and entryways at The Old School. The lights will be cleaned and adjusted as needed. Any light found “non‐functioning” will be repaired or replaced to match the original fixture. If one cannot be found, we will replace it with a new fixture that best matches the original style/type and color.