18-235 Declaration of Covenants Agreement; Notification of building Limitations; Notification of Additional Geological Review for New Residences and Common Facility Maintenance Agreement; 22045 Regnart RdRECORDED AT THE REQUEST OF AND )
WHEN RECORDED RETURN TO: )
CU1 of Cu()QJ--f/,,,.,. n )
G, <Jl ,.A..UfJ \JJ9 (Ja,,,e.lrJf·M.l.,Vl'+ IJ1N"J1v..t2..A-)
/tl 3 tJ o I ()l'./"e. A-t1~ cir.le_ )
Cuf fj,,.,f.-,r rJc 1 cA-'157J t <-t ~
24052608
Regina Alcomendras
Santa Clara County -Clerk-Recorder
10/30/2018 02 :38 PM
CONFORMED COPY
Copy of document recorded.
Has not been compared with original .
SPACE ABOVE FOR RECORDER'S USE ONLY
DECLARATION OF COVENANTS AGREEMENT RE: NOTIFICATION OF
BUILDING LIMITATIONS; NOTIFICATION OF ADDITIONAL GEOLOGICAL
REVIEW FOR NEW RESIDENCES AND COMMON FACILITY MAINTENANCE
AGREEMENT
22045 Regnart Road, Cupertino, CA 95014
THIS DECLARATION OF COVENANTS AGREEMENT ("Agreement") is made and
entered into this ~ay of October, 2018, by and between Robert A. Bigler and Punita
Bigler, Trustees of The Bigler Trust created on September 10 , 1997 ("Declarant "), and the City
of Cupertino, a California municipal corporation ("City").
RECITALS:
The following recitals are a substantive portion of this Agreement:
A. The real property to which this Agreement shall apply is as described in Exhibit
"A" ("Property") within the City , County of Santa Clara, State of California.
B. City is a municipal corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now being
conducted under the Constitution and the statutes of the State of California and the Cupertino
Municipal Code.
C. For purposes of this Agreement, the term "Declarant" shall include the
signatory named herein as Declarant and any and all heirs , successors in interest, buyers or
assigns of the Declarant as to the Property .
D. As set forth, the provisions of this Agreement are intended to and shall run with
the Property and be binding up on all owners , successors, buyers and assigns of the Property, or
any portion.
'
OAK #4850-2229-2088 v I 1
F. The City has required D eclarant to record thi s Agreement against title to the
Property concurrently with and immediately after recordation of Parcel Map filed for record in
Book 9-{ &> of Maps, Pages ~~S::?; on OH-Jo , 2018, in the Santa Clara County
Recorder 's office (the "Parcel Map") which divides the Property into three (3) residential lot s
and creates easements for roadways, utiliti es and drainage facilities, in order to impose against
each current and future owner of a lot in the Parcel Map obligations as set forth herein. The
City has approved recording the Parcel Map base d on City of Cupertino Planning Commission
Re so lution No. 6570 adopted October 27, 2009 (the "Approval"), and in reliance on Declarant
complying with all the terms and conditions in the Approval as respects recordation of the
Parcel Map, construction of residences and other improvements on the Property, and
occupancy and use of such improvements.
NOW , THEREFORE the parties hereto agree as follows:
1. COVENANTS RUNNING WITH THE LAND; PROPERTY SUBJECT
TO THIS DECLARATION: All of the real property described in Exhibit "A" sh all be
subject to thi s Agreement. It is intended that the provi sions of this Agreement shall run with
the land and shall be binding on all parties having or acquiring any right , title or interest in the
real property de scribed in Exhibit "A" or any portion thereof and shall be for the benefit of
each owner of any of the parcels or any portion of th e property and shall inure to the benefit of
and be binding upon each successor in inte re s t of th e owners. Each of the limitations,
easements, obligations, covenants, conditions, and restrictions contained herein shall be
deemed to be , and shall be construed as equitable servitudes, enforceable by any of the owners
of any of the property subject to this Agreement against a ny other owner, tenant or occupant of
th e property, or any portion .
2. COVENANT NOTIFICATION OF BUILDING LIMITATIO NS:
Decl arant , s ucce sso rs , buyers and assigns of the Property or any plot therein are hereby
notifi ed the building of any residence built after the recording of thi s Agreement on the
Property , shall be subject to the maximum building area regulations relating to residences ,
including the number of bedrooms , in the City's zoning reg ulation s and in septic system
constraints of the Santa Cl ara County Environmental Health Department , whichever is more
restrictive, in effect at the time of issuance of the building permit for each residence.
3. COVENANT NOTIFICATION OF ADDITIONAL GEOLOGICAL
REVIEW FOR NEW RESIDENCES: Declarant , successors, buyers and assigns of the
Property or any plot therein are hereby notified that th e issuance of building permits for any
residence built after the recording of thi s Agreement on the Property , shall be subject to
additional geotechnical studies as may b e required by City as a condition of constructing a
re sidence and such studies shall comply with the recommendati on s outlined in the Geological
Revi ew Letter prepared by Cotton, Shires & Associates, dat e d August 28, 2009, a copy of
which is on file in th e City Planning Departme nt.
"OAK #4850-2229 -2088 v i 2
4. COMMON FACILITY MAINTENANCE AGREEMENT: Declarant,
successors, buyers and assigns of the Property will be benefitted by the roadways, utilities and
drainage facilities to be built on easements as shown on the Parcel Map , and will be benefitted
by the common area site abutting Regnart Road to be developed for trash and recycling
receptacles and mail boxes pursuant to Condition of Approval No. 10 of the Approval, and
therefore shall be collectively as the "Common Improvements." subject to the following
requirements. For purposes of this Section 4, the aforesaid roadways, utilities, drainage ,
trash/recycling and mail box facilities shall be referred to individually and
4.1 Proportionate Payment of Expenses. For so long as any of the
Common Improvements shall exist in private ownership, Declarant shall bear the expenses of
the reasonable maintenance, repair and replacement of such Common Improvements. It is
agreed that such expenses shall be paid by Declarant and its successors and assigns, in
proportion to the number of lots /parcels owned by each owner and/or their successors and
assigns, and each owner will, upon written demand by another owner, contribute and pay its
proportionate share of any monies paid out or of any obligation incurred for the reasonable
maintenance, repair or replacement of the Common Improvements under the terms and
conditions as set forth herein. In the event that subsequent division of one or more lots/parcels
on the Property occurs, expenses shall be allocated evenly among the new number of
lots/parcels unless the owners agree otherwise,
4.2. Reasonable Maintenance, Repair and Replacement Defined.
"Reasonable maintenance, repair and replacement" shall include such maintenance, repair and
replacement of all or components of the Common Improvements as is necessary to assure that
the Common Improvements continue to function in good, usable condition under all traffic and
weather conditions; provided, this Agreement shall not be construed to require any owner to
contribute to the cost of any enlargement of the Common Improvements except as may be
required under Section 4.10 below . All such maintenance, repair and replacement shall
comply with the terms and conditions in the Approval regarding the Common Improvements
and shall ensure that the Common Improvements remain in compliance with such terms and
conditions.
4.3. Majority Agreement Conclusive: Accepting Low Bid. For the
purposes of this Agreement, the written agreement of the owners of a majority of the
lots/parcels to the effect that specified maintenance, repair or replacement work is necessary
shall be conclusive on the remaining owners. Pursuant to said majority written agreement,
agreeing owners shall obtain three bids from licensed contractors and shall accept the lowest of
said three bids and shall then initiate the necessary maintenance, repair or replacement work.
Each owner of a lot or parcel within the subdivision shall bear his or her pro rata share of the
costs, regardless whether or not such owner shall have concurred in said majority agreement.
Notwithstanding the above, if the owners are not able to obtain three qualifying bids within a
reasonable time they may proceed based on fewer bids , and inability or delay in obtaining bids
shall not be grounds for failure or delay in doing necessary work.
OAK #4850-2229-2088 v I 3
4.4. Responsibility for Damages . Every owner who shall cause or allow
any Common Improvementto be damaged, excluding fair wear and tear from normal usage , as
may be determined by the owners of a majority of the lots/parcels, shall bear as his or her
responsibility the costs and expenses of repairing such damage.
4.5. Collection Action; Attorney Fees. If any owner shall fail or refuse to
pay his or her pro rata share of the costs of maintenance, repair and replacement work or
damages hereunder within 30 days of a bill for the same being mailed to him or her, any other
owner shall be entitled without further notice to institute legal action for the collection of funds
advanced on behalf of such defaulting owner for the necessary maintenance, repair or
replacement work in accordance with the provisions of law , including but not limited to
California Civil Code Section 845. The prevailing party in such action shall be entitled to
recover in addition to the funds advanced, interest thereon at the current prime rate of interest,
until paid, all costs and disbursements of such action , including such sum or sums as the court
may fix as and for reasonable attorneys' fees.
4.6 Maintenance, Repair and Replacement Account. The owners of a
majority of the lots/parcels may authorize the creation of a maintenance, repair and
replacement account in a savings and loan association or bank. Monies deposited therein shall
be expended only for maintenance and repair of the Common Improvements, and the number
of signatures required to withdraw monies shall be specified at the time said account is
authorized.
4.7 Receipts. Receipts for all monies received and of all expenditures made
shall be preserved and made available for inspection and copying by any owner, in person or
by agent , for a period of one year.
4.8 "Owner" Defined. The word "owner," as used herein, shall mean one
person in whom sole title is vested. It shall also mean two or more persons who hold a unity of
interest as joint tenants, as tenants in common, as partners , or as husband and wife with title
vested "as their community property." For the purpose of determining if the owners of a
majority of the lots/parcels are in favor of a proposal , the affirmative vote of any spouse, joint
tenant, or tenant in common shall constitute approval by that lot/parcel, irrespective of the
number of co-owners of that lot/parcel. The word "person" as used herein shall mean a natural
human being or a business entity owning an interest in the Property or any portion thereof.
4.9 Covenant Running with Land: Binding on Successors. This
Agreement is to be construed as a covenant running with the land, and it is further understood
and agreed that this Agreement shall inure to and bind the successors in interest of the
lots/parcels owned by Declarant, whether by way of sale, assignment, inheritance or otherwise,
and it shall be applicable to such smaller lots/parcels as may be created by subsequent divisions
of said lots/parcels.
O A K #48 50-2229 -2088 v l 4
4.10 Special Consideration of Drainage Requirements. Without limiting
the foregoing , in recognition of the importance of ensuring adequate control of storm water
runoff for the protection of property and public safety, the following terms shall app ly:
(a) Declarant covenants , for the mutual benefit and protection of the
owners and occupants of the Property and any residences or other improvements on the
Property and for the protection of the City and the general public, that Declarant and any future
owner(s) of the Property or any portion thereof shall ensure that drainage facilities on the
Property operate and continue to operate as needed to comply with City and State requirements
and to adequately protect persons and property on and off the Property from harm .
(b) Notwithstanding the limitation in Section 4.2 above, if the City
determines at any time that additional or enlarged drainage facilities are necessary to satisfy the
requirement in Section 4. lO(a), each owner of the Property or a portion thereof shall promptly
complete the drainage impro vements that the City reasonably requires.
( c) If the City requires drainage improvements pursuant to Section
4. lO(b) and the owners of the Property fail to make the improvements within ninety (90) days
of City's written direction to do the work, City reserves the right but not the obligation to do
the work itself, in which case the owners shall be jointly and severally liable for all expenses
incurred by the City, including without limitation costs of enforcement and collection and
attorney's fees. If City declares an emergency need for such work to prevent an immediate risk
of harm, it may undertake the work without waiting for the owners to proceed.
5. ATTORNEY'S FEES. In the event that any party institutes legal action or
arbitration against the other to interpret or enforce this Agreement , or to obtain damages for
any alleged breach , the prevailing party in the action or arbitration shall be entitled to
reasonable attorneys ' or arbitrators' fees in addition to all other recoverable costs, expenses
and damages.
6. FURTHER DOCUMENTS. The parties covenant and agree that they shall
execute further documents and instructions as shall be necessary to fully effectuate the terms
and provisions of this Agreement.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter contained herein and supersedes all prior
agreements , whether written or oral; provided, this Agreement by thi s reference shall be
deemed to include any terms or requirements specified in the Approval that apply following
recordation of the Parcel Map regarding development, use or occupancy of the Property. There
are no representations, agreements, arrangements or undertakings, oral or written, which are
not fully expres sed herein or in the Approval.
OA K #4850-2229-2088 v I 5
8. SEVERABILITY. In the event any part or provision of this Agreement shall
be determined to be.invalid or unenforceable under the laws of the State of California, the
remaining portions of this Agreement which can be separated from the invalid, unenforceable
provisions shall, nevertheless, continue in full force and effect.
9. NO WAIVER The waiver of any covenant or provision contained herein shall
not be deemed to be a continuing waiver of the same or any other covenant or provision
contained herein .
10. RECORDATION. This Agreement shall be recorded and shall be executed and
acknowledged in proper recordable form.
11. AMENDMENT. This Agreement may be amended in whole or in part only by
mutual written agreement with the City. Any amendment shall be recorded in Santa Clara
County, California. In the event any conflict arises between the provisions of any such
amendment and any of the provisions of any earlier document or documents, the most recently
duly executed and recorded amendment shall be controlling. If Declarant conveys an interest in
the Property to third parties, the unanimous approval of all such parties shall be required for
any amendment unless the City determines in its sole
discretion that the nature of the amendment does not require the approval of one or more such
third parties .
IN WITTESS WHEREOF, the Parties have executed this Agreement as of the date first
written above.
DECLARANT:
By: __ ~~---""-~~~,,__ __ ~---
RobpJjzB/tt· gle ·, rustee
B y: _ __,[_!f2j_--'--"---'---6L==+----
Punita P igie;, Trustee
(Notary acknowledgement attached)
Timm Borden
Director of Public Works
(Notary acknowledgement attached)
Grace Schmidt, City Clerk
OAK #4850-2229-2088 v I 6
EXHIBIT "A"
Legal Description of the
Bigler Project Subdivision
On Regnart Road in
Cupertino, California
All that certain rea l property in the City of Cupertino, County of Santa Clara, State of
California , and being more fully described as follows:
Being all of those parcels of land described as Lots 1, 2 and 3 , as shown upon that certain
Parcel Map, which was filed for record on O c f-, 7 o , 2018 , in Book_
C/-1.1_ of Maps , at Pages Sc 1 5' I , r ?-, in Santa Clara County Records.
End of Description.
·-=-=--'11
·11
I
I
I
I
~ALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLE~GME~;-~·-··,1·-
A notary public or other offic~r completing this certificate verifies only the identity of the individual who s ign ed the document to I
which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California
County of ~frw~~1~~ __ C_~ ___ _
On <9t...1 ~, ")....¢1 ~ before me, ---~---~--=---C,-~-----------' Notary Public,
(Here insert name and title of th e officer)
personally appeared __ R._b_~_~_r?....:_T __ A-__ ~-~--~-~~-~~-~\ _l -_i_ra--__ f:'_41--_1 ~------
'
I
11
11 II
II
11
I
I
11 :I
I
I
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person( s) acted, executed the instrument.
I certify under PENAL TY 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 of Notary Public
ADDITIONAL OPTIONAL INFORMATION
INSTRUCTIONS FOR COMPLETING THIS FORM II
1
1
j Any acknowledgment completed in Cal/f'urnia 11111st contain wrhiage e.rnctly a.i·
DESCRIPTION OF THE ATTACHED DOCUMENT appears above in the notwy section or a separate ac/mowledgment.fimn must he
'1 : properly completed and al/ached lo that document . The on(\' excep tion is if a , I ~~7 ~ W document is to be recorded outside of Cali.J'urnia. In such instances. am• alternative
·1 1 ackno,rledgment verbiage us may he printed on such a document su· long as !llw (Title or description of attached document)
,I"\ f> '"' verbiage does not r equire th e notlll)' to do something that is illegal ji,r a notwy in
I j l~<,~--Q--1{ Calijim1ia (i .e. certi.Jj·ing the authorized capacity of the signer). Please check the
· 1 document care.fi1//y .fi,r proper notarial wording and attach this Jimn ifrt?quired. (Title or description of attached document continued)
I
.! • State and County information must be the State and County where the document
I Number of Pages --, Document Date~~
---/---1------,p.r signer(s) personally appeared before the notary public for acknowledgment.
1
1
• Date of notarization must be the date that the signer{s) personally appeared which
must also be the same date the acknowledgment is completed.
(Additional in formation) • The notary public must print his or her name as it appears with in h is or her
i commission followed by a comma and then your title (notary public).
I
• Print the name(s) of document signcr(s) who personally appear at the time of
!
notarization.
CA~A y CLAIMED BY THE SIGNER • Indic ate the correct singular or plural fonns by crossing off incorrect fonns (i.e.
I' lie/she/t-hey. is /are) or circling the correct forms. Failure to correctly indicate this
· Individual (s) information may lead to rejection of document recording.
! ! D Corporate Officer • The notary seal impression must be clear and photographically reproducible . Ii Impression must not cover text or lines . If seal impres sion smudges, re-seal if a
I I (Title) sufficient area permits, otherwise complete a different acknowledgment fonn .
11 D Partner(s) • Signature of the notary public must match the signature on file with th e office of ! I the county clerk.
! , D Attorney-in-Fact •!• Additional infonnation is not required but could help to ensure this
j j D Trustee( S) acknowledgment 1s not misused or attached to a different document l,l D Other •!• Indicate title or type of attac hed document, number of pages and date.
I •!• Indicate the capacity clauned by the signer If the claimed capacity is a ! j corporate officer, indi cate the lltle (1 e. CEO, CFO. Secretary).
11 • Securely attach this document to the signed document
1, I
' [ __ -___ ; _=-···_·_-,~_;;,;;.;;,:-~'='=-~E=~:_-:::,_;_~~?-.o . ...'.c==..-.,-;:;F,~.<-,,:,.,:"':,:-:;::=;;_-.,;c=,?.,:~,B==",;"'·.:::,-,:-==.:=-?..='==;,;,:::-:::-:_:==:.:..::-::-_ .. ····-.,. _,:::_.
C: 200·1-::!01 5 l'rnlink Signing Scrvke, In c.·· All Ri ghts Res t:n•ed Whw .ThcProlink.com -Nationwide No til r}' Scrvh:c
CALIFORNIA ALL-PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached,
and not the truthfulness, accuracy, or validity of that document.
State of California }
County of-~-~ _o__,.,,.___x__o--, __ ct_o....\._°'---.,=----}
On -~=----~-~_v_9tj--'-'_·2,_<r1 __ ?_ before me• __ s.J_UJ.__, __ !_A _ __,,<~'T:';-:c::,.-.::'.n""~,.,.rt -s-=:na==!c::-.t:;,nc::ra"'u,~"""• "'}"',;&"""• a::;;ffi"",~--~jlu-h __ Ltv_, '
personally appeared -------':b'---"-"-A/V'-:"'---"()J.._....-__,_~ __ e,_L_U'\---'---------
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted , executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal .
Nota~Sig ~u~ (Notary Public Seal)
INSTRUCTIONS FOR COl\ifPLETING THIS FORM
ADDITIONAL OPTIONAL INFORMATION This form complieswith current California statutes regarding notary wording and,
DESCRIPTION OF THE I,\ TT ACHED DOCUMENT if needed, should be completed and attached to the document. Acknowledgments
[j).~"1---or-f-1 _ •. _ ~ ~ from other states may be completed for documents being sent to that state so long
I ""' 1 ~~ .J1 -o· · as the wording does not require the California notary to violate Ca lifornia nota,y
~~u~~ ~+ ~ ~
(Title or description of attached document) • State and County infonn ation must be the State and County where the document
(Title or description of attached document continued)
Number of Pages _1_ Document Date r o -~J ./ I
CAPACITY CLAIMED BY THE SIGNER
~ Individual (s)
D Corporate Officer
(Title)
D Partner(s)
D Attorney-in-Fact
Trustee(s) D
0 Other __________ _
2015 Version www.l\lotaryClasses.com 800-873-9865
s igner(s) personally appeared before th e notary public fo r acknowledgment.
• Date of notarization must be th e date that th e signer(s) personally appeared which
must also be the sa me date the acknowled gment is completed .
• The notary public must print his or her name as it appears within his or her
commission fo ll owed by a comma and then your ti tl e (notary publ ic).
• Print the nam e(s) of document signer(s) who personally appear at the tim e of
notari zatio n.
• Indicate the correct singular or plural forms by cross in g off incorrect forms (i.e .
he/she/they, is /are) or circling the correct fonns . Failure to correctly indicate this
infonnation may lead to rejection of document recording.
• The notary seal impress ion must be clear and photographically reproducible .
Impression must not cover text or lin es. If seal impression sm udges, re-seal if a
sufficient area pennits, otherwise com plete a different acknowledgment form.
• Signature of the not ary public must match the signature on file with the office of
the county clerk .
•:• Ad diti onal in formation is not required but could help to ens ure this
acknowledgme nt is not misused or attached to a different document.
•:• Indicate tit le or type of attached document, number of pages and date .
•!• Indicate the capacity cla im ed by the signer. If the claimed capacity is a
corporate officer, indicate th e titl e (i.e. CEO, CFO, Secretary).
• Securely attac h this document to the s ign ed document w ith a stapl e .