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Tuckness, Kirk W. - Public Use and Common Wall License AgreementRECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: City of Gilroy 7351 Rosanna St. Gilroy, CA 95020 Attention: City Administrator RECORD WITHOUT FEE UNDER SECTION 27383 GOVERNMENT CODE OF STATE OF CALIFORNIA SPACE ABOVE THIS LINE FOR RECORDER'S USE Mail Tax Statements to: City of Gilroy 7351 Rosanna Street Gilroy, CA 95020 Attn. City Clerk APNs: 799 -07 -053 and 799 -07 -054 DOCUMENT: 22813336 �3oee. ... AMT PAID REGINA ALCOMENDRAS SANTA CLARA COUNTY RECORDER Recorded at the request of City Conveyance Tax: Exempt By: Printed Name: i Ma r*.kk for Grantor PUBLIC USE AND COMMON WALL LICENSE AGREEMENT [CITY OF GILROY — 7453 MONTEREY STREET STABILIZATION] Pages 11 - No Fees RDE # 008 12/24/2014 2:21 PM THIS PUBLIC USE AND COMMON WALL LICENSE AGREEMENT ( "Agreement ") is entered into as of December � 2014, between Kirk W. Tuckness, a widower ( "Owner "), and the City of Gilroy, a California municipal corporation ( "City "), with reference to the following facts: A. Owner holds title to certain improved real property (the "License Property ") located at 7455 Monterey Street, in the City of Gilroy, County of Santa Clara, State of California, and as more particularly described on Exhibit A attached hereto. B. City is the owner of that certain adjacent real property located at 7453 Monterey Street, in the City of Gilroy, County of Santa Clara, State of California, and as more particularly described on Exhibit B attached hereto on certain terms and conditions (the " Paseo Property "). C. The July 2012 preliminary record of survey prepared by Greenwood & Moore, Inc., attached as Exhibit C to this Agreement, shows that the previously existing wall on the west side of the License Property is located on the Paseo Property. 1TMORELL11163989.1 050713 -04706002 D. The annotations added to Exhibit C in red generally depict the location of the new wall constructed by the City in early 2014. The wall supports the building on the License Property, and said is located on the Paseo Property. E. Such improvements being completed at this time, City desires to. confirm the arrangements for City's installation of decorative wall murals and attachments upon the southerly exterior walls of the License Property. F. Owner desires to grant the ability for the City to use Owner's southerly exterior walls for purposes installing decorative wall murals. G. City and Owner also desire to confirm maintenance, use, and liability arrangements for the License Property buildings, more specifically for improvements supporting the License Property's buildings that are located on the Paseo Property. Now THEREFORE, for and in consideration of the mutual covenants and agreements contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Grant of Wall Use to City. Attached to this Agreement as Exhibit C is a depiction of the License Property and the Paseo Property. As part of the stabilization plans that have been implemented in conjunction with the installation of the City's Paseo project -for, public use and access, City installed a new exterior wall that encloses' .tlie 'improvements upon the License Property. As depicted on Exhibit C, the previously existing and new walls, and potentially small sections of the roof, are located upon the Paseo Property (collectively the "Wall"). Owner- hereby grants City use provisions ( "Use Provisions ") permitting the City to either (a) paint directly on the Wall or (b) attach objects to the Wall, such as metal or some other material that could be painted as murals or displayed as a plaque, lighting, etc,. These Use Provisions shall grant City access to and usage of the entirety of the Wall between the building corner identified at "Detail A" on Exhibit C and the building corner identified at "Detail C"' on Exhibit C. 2. Painting. For painting purposes, the City's Use Provisions shall be exclusive, except that Owner shall paint and maintain walls without murals.. City shall not have maintenance obligations for the Wall, except to maintain any murals in ,good condition or remove such murals (by repainting or otherwise), in the sole and absolute exercise of City's discretion. Owner shall not paint over murals without the City's express and written permission. 3. Use, Maintenance, and Liability_. of Walls. Owner of License Property shall assume use, maintenance, and liability responsibilities for Walls, excepting therefrom maintenance of murals painted on and attachments to the Walls. 4. Attachments. City shall be responsible for ensuring that any attachments do not structurally overburden the wall or create water intrusion issues into the wall. Notwithstanding the mural maintenance noted in item #2 above, all other maintenance issues related to Walls will be Owner's responsibility. From time to time, when needed and requested by the Owner, City will temporarily remove and reinstall any attachments to allow for maintenance of Walls. 1TMOREW1163989.1 050713-04706002 5. Abandonment of Murals / Attachments.. If the City paints murals upon License Property Walls or attaches any materials to License Property Walls, then, should the City choose to abandon said murals or attachments, removal of such murals /attachments shall be the responsibility of the City, and any damage. to the License Property Walls resulting from the murals or attachments shall be repaired. 6. Demolition of or Modification to Walls. Any proposed demolition or modification of Walls shall require City approval as specified in applicable codes and ordinances. Modification could include but is not limited to changes such as addition of windows or doors. Should Owner obtain approval to demolish Walls containing murals or attachments, sufficient notice of at least 60 days shall be given to the City so that the City can plan for future ,disposition of those improvements. Should demolition of existing Walls be approved, new improvements on the License Property shall be located solely. on the License Property, unless otherwise approved by the City. City agrees not to demolish or compromise the structural integrity of the Walls without Owner's permission.. 7. City Ordinances and Code. Nothing herein is intended to supersede any adopted city ordinances or the municipal code. 8. Term. The Use Provisions for .the city to paint murals or construct attachments on the Walls shall continue in perpetuity unless City (or any successor owner of the Paseo Property) elects to terminate the Use Provisions, in City's sole and absolute discretion. The common wall provisions providing for the Owner's use, maintenance, and liability of the Walls shall continue in perpetuity, until either both parties agree in writing to terminate such interest or until the Walls are demolished pursuant to item #6 above. 9. Notices. Any notices required or permitted to be given hereunder shall be given in writing and shall be deemed to have been given when delivered by U.S. Mail, registered or certified, return receipt requested, postage prepaid, or by overnight delivery service showing receipt of delivery, or by personal delivery, or by facsimile transmission. Notices and/or demands shall be addressed as follows: If to Owner: Kirk W. Tuckness 500 W. 10th Street, #132 Gilroy, CA 95020 Telephone No.: (408) 423 -9180 or (408) 710 -1254 If to City: City of Gilroy Attn: Thomas J. Haglund, City Administrator 735.1 Rosanna Street Gilroy, CA 95020 -6141 Telephone No.: (408) 846 -0202 or to such other address as either party may from time to time specify in writing to the other party. Notices as aforesaid shall be effective upon the earlier of actual receipt, or twenty -.four hours after deposit with the messenger or delivery service, or the next business day after delivery to an overnight delivery service, or within three (3) days after the deposit in the U.S. mail, or ITMORELL11163989.1 050713706002 upon confirmation of transmission by facsimile (provided. such facsimile notice or demand is also sent by one of the other methods of delivery set forth above on the same date as the facsimile notice is sent). 10. Attorneys' Fees. In the event of any action by Owner or City concerning the subject matter of this Agreement, the prevailing party shall be entitled to recover from the non- prevailing party its reasonable costs and expenses of enforcing its rights hereunder, including reasonable attorneys' fees. 11. Binding on Successors. The terms and conditions herein contained shall be binding upon and inure to the benefit of the successors and assignees of the parties hereto. 12. Applicable Law. This Agreement shall be construed in accordance with the laws of the State of California. 13. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect and shall in no way be impaired or invalidated, and the parties agree to substitute for the invalid or unenforceable provision a valid and enforceable provision that most closely approximates the intent and economic effect of the invalid or unenforceable provision. 14. Entire Agreement. All exhibits referred to herein are attached hereto and incorporated herein by this reference. This Agreement contains the entire agreement and understanding of the parties with. respect to the subject matter hereof and cannot be amended or modified except by a written agreement, executed by each of the parties hereto. 15. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall, for all purposes, be deemed an original and all such counterparts, taken together, shall constitute one and the same instrument. [signatures on following page] UMORELL11163989.1 050713 - 04706002 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date set forth above. OWNER: By: 4 4 0 U, irk W. Tuckness ATTEST: CITY: CITY O ILROY, California By: Wv'\& Name: �► -C-CIt B hllll iY e S e,"2tGtt - v `E" e, Tomas J. Wailund `Jdrri�vu`s1Y°`r City Administrator APPROVED AS TO FORM: By: U J Linda A. Callon City Attorney 1TMORELL11163989.1 050713 - 04706002 EXHIBIT A LEGAL DESCRIPTION OF LICENSE PROPERTY BEGINNING at a point on the Westerly line of Monterey Street distant thereon Southerly 232.60 feet from the point of intersection-thereof with the Southerly line of Fifth Street, as shown upon Lhe_Map hereinafter to; said point of beginning being also the point of intersection of said Westerly line of Monteey Street With the Southerly line of Lot 9, Block 1 North Range 1 West, as shown upon the said Map; thence from said point of beginning, Southerly and along the Westerly line of Monterey Street, 20 feet to the Northerly line of the parcel of land conveyed by J.M. Einfalt, -et ux, to.V. Hoslinger, by Deed dated July 25, 1896 and recorded July 28, 1898 in Book 210 of Deeds, at page 244, Records of Santa Clara County, California; thence running Westerly and along the Northerly line of said parcel of land so conveyed to Hoslinger, 140 feet, more or less, to a point on the Easterly line of an alley, as described in the Deed from Wm. Wilson et al, to the City of Gilroy, by Deed dated February 2, 1687 and recorded February 10, 1888 in Book 105 of Deeds, at page 115; thence running Northerly and along the Easterly line of said alley, 19.78 feet to a point on the Southerly line of Lot 9 in Block 1 North Range U West, thence running Easterly and along said Southerly line 140 feet, more or less, to the point of beginning, and being a portion of Lot 10 in Block 1, North Range 1 West as shown upon Map No. 5 accompanying the report of the Referees, and its amendments, in partition suit wherein Henry Miller, et al, were plaintiffs and Massey Thomas et al, were defendants in the.Superior Court of the State of California, in and for the County of Santa Clara. Case No. 5536. ITMORELL11163989.1 050713 - 04706002 EXHIBIT B LEGAL DESCRIPTION OF PASEO PROPERTY The land referred to is situated in the County of Santa Clara, City of Gilroy, State of California, and is described as follows: Portion of Lot 10, in Block 1 North, Range 1 West, as shown upon Map No. 5 accompanying report of the commissioners in Henry Miller, et al, plaintiffs, vs. Massey Thomas, et al, defendants, in the Superior Court of the State of California, in and for the County of Santa Clara, case number 5536, and more particularly described as follows: Beginning at a point on the Southwesterly line of Monterey Street, distant thereon 272.60 feet Southeasterly from the intersection thereof with the Southeasterly line of Fifth Street; said point of beginning being also the Southeasterly corner of Lot 10, as shown upon the Map above referred to; and running thence Southwesterly along the Southeasterly line of Lot 10, 190.70 feet to the Southwesterly corner thereof, thence Northwesterly along the Southwesterly corner thereof; thence Northwesterly along the Southwesterly line of Lot 10, 18.90 feet; thence Northeasterly 190.70 feet to a point on the Southwesterly line of Monterey Street, distant thereon 20 feet Northwesterly from the place of beginning; thence Southeasterly 20 feet to the point of beginning. APN: 799 -07 -054 JM0RELL11163989.1 050713 - 04706002 EXHIBIT C COPY OF SURVEY DETAIL (See Attachment) 1TMORELL11163989.1 050713-04706002 MIT DtTA1L A KTa R grow a 111131111L 111131111L — --- A 110 / s 1 .M. e EM _ O D DQN t DeTNL D DUAL E KTl Ill wall follows at this I y",.e.`� day of 2012. New wall extends M. in Book _ of Records Of Survey, at Page � at the request of GWENDOLYN GEE. File No. approximately 6" REGINA ALCOMENDRAS County Clerk — Recorder Fee: into paseo property i Deputy County Recorder KT^ KTIII. NRM W A to MII1W 0" - 1.4" 1 01 New wall extends 7UCKN988 out roughly 60'x 6" y i e/44/W 8 701 Py 66-67' 64W"08 at this location # ii f 0 N ti aw>' . f OCEN. C rl �� * City of Gilroy 1 1V20107 2007 - 106862" �1 ew f GA97A MW trey K 11*0 / oem r 8116107 2007.18884188 Dew g SURVEYORS STATEMENT: COUNTY SURVEYORS STATEMENT This map correctly represents a survey made This map has been examined in accordance with by me or under my direction in conformance Section 8766 of the Professional Land Surveyors' with the requirements of the Professional Land Act this _ day of 2012. Surveyors' Act at the request of David Marks in June, 2012. GWENDOLYN GEE County Surveyor, P.L.S. No. 6750 License expiration date: 9/30/12 GORDON L GLENN, L.S. No. 5656 License expiration data: 09/30/13 DETNL F KTS rW DETAIL G IT. RECORDERS STATEMENT: Filed this day of 2012. at _ M. in Book _ of Records Of Survey, at Page � at the request of GWENDOLYN GEE. File No. REGINA ALCOMENDRAS County Clerk — Recorder Fee: BY. Deputy County Recorder NOME: This Survey Is being filed in compliance with Section 8762. Paragraphs (a) through (e), of The Professional Land Surveyors' Act. PRELIMINARY RECORD OF SURVEY R/S NO. 0000 A SURVEY OF THAT PARCEL CONVEYED IN THE DEED TO GAETA, RECORDED DEC. 20, 2007, DOC, NO. 19689294, BEING THAT PORTION OF THE PARCEL DESCRIBED IN THE DEED FROM EINFALT TO HOSLINGER, RECORDED JULY 28. 1898, BOOK 2101F DEEDS. PAGES 244-246, OFFICIAL RECORDS OF THE COUNTY OF SANTA CLARA. LYING EASTERLY OF GOURMET ALLEY. CITY OF GILROY SANTA CLARA COUNTY, CALIFORNIA GREENWOOD & MOORE, INC. Gvil Engineers - Land Surveyors - Designers - Planners Castro Valley, Califomid July. zorz JOB NO. 2O12.O1a SHEET 1 OF 2 SHEETS CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT CML CODE § 1189 State of California County of On� (Q243- U ! efore me �� (t /�-�U l' 1 "( I f� � �J mac. t . • F� � u t , Date , ° Here Insert Name affid Title of the Offic rG� r« personally appeared (.(� , l LI,C, k- 4�, �, S Name(s) of Signer(s) JANIS L. FILICE "M Commission # 2056709 z -: Notary Public - California z Z - Santa Clara County 3 M Comm. Ex fires Mar 1, 2018 Place Notary Seal Above who proved to me on the basis of satisfactory evidence to be the person(s) whose name($) is /are subscribed to the within instrument and acknowledged to me that helAe/Wy executed the same in his/h&AW15ir authorized capacity(ieS), and that by his /her /tbdir signature(.$) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Signature bf Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Pocurgent Title or Type of Document: Document Date: Signer(s) Other Than Named Above: / Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing L-C d4l "-e. Number of Pages: 5 Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing 0 2010 National Notary Association • NationalNotary.org • 1- 800 -US NOTARY (1 -800- 876 -6827) Item #5907 CALIFORNIA ALL - PURPOSE ACKNOWLEDGMENT State of California I County of I On � 3 Date / personally appeared CML CODE § 1188 who proved to me on the basis of satisf tory evidence to be the person) whose narn is are subscribed to the within instrument and acknowledged to that Ile executed the same in 'htS r/ autho ecapacity(i )0, and that by /ho thteir signature on the instrument the pe n('l, or the entity upon behalf of which the personA acted, executed the instrument. INGA ALONZO Commission # 1931989 I certify under PENALTY OF PERJURY under the i Notary Public - California z laws of the State of California that the foregoing Z Santa Clara County 3 paragraph is true and correct. MY Comm. Expires Apr 15, 2015 WITNESS my hand and official seal. Signature: Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable Wpersons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: _ Capacity(ies) Claimed by Signer(s) Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: Signer's Name: ❑ Corporate Officer — Title(s): ❑ Individual ❑ Partner — ❑ Limited ❑ General Top of thumb here ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing © 2010 National Notary Association - NationalNotary.org - 1- 800 -US NOTARY (1 -800- 876 -6827) Item #5907