Orchard Meadows – The Reserve Covenants

DECLARATION OF COVENANTS,
CONDITIONS, REGULATIONS AND RESTRICTIONS FOR
THE RESERVE AT ORCHARD MEADOWS PLAT THREE

THE UNDERSIGNED, all of the owners of record of lots in The Reserve at Orchard Meadows Plat Three (hereinafter “Owners”), hereby desire to establish and place residential covenants, conditions, regulations and restrictions and do hereby reserve certain easements, all as hereinafter specifically set forth, on the following described real property (hereinafter the “Properties”):

The Reserve at Orchard Meadows Plat Three, an Official Plat, now included in and forming a part of the City of Johnston, Polk County, Iowa.

NOW, THEREFORE, Owners hereby declare that the Properties shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with the real property and be binding on all parties having any right, title or interest in the Properties or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof.

ARTICLE I
DEFINITIONS

Section 1. “Association” shall mean and refer to The Reserve at Orchard Meadows Owners Association, its successors and assigns, a non-profit corporation organized pursuant to Chapter 504A of the Code of Iowa, 2004, as amended.

Section 2. “Association Responsibility Elements” shall mean the following:

(a) Maintenance of the ravines located in the overland flowage and conservation easement areas noted on the Plat of The Reserve at Orchard Meadows Plat Three.

(b) Maintenance of any common areas noted on the plat.

(c) Maintenance of the entrance and landscape buffer along NW Beaver Avenue, Johnston, Iowa.

(d) Inspection of the ravines where storm water discharges, on an annual basis, and submission of a report to the City of Johnston Community Development Department or other applicable department to review.

(e) Correction of any deficiencies noted in the report submitted annually and described in 2(d).

Section 3. “Board of Directors” shall mean and refer to the Board of Directors of the Association.

Section 4. “Building” shall mean and refer to any structure containing single-family dwelling units that may be constructed on a Lot or on several Lots.

Section 5. “Declaration” shall mean and refer to this Declaration of Covenants, Conditions, Regulations and Restrictions to which said Properties are subject.

Section 6. “Federal Mortgage Agencies” shall mean and refer to those federal agencies who have or may come to have an interest in the Properties, or any portion thereof, such as the Federal Housing Administration, the Veterans Administration, the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation, or successors to their interests.

Section 7. “Living Unit” shall mean and refer to any portion of a building situated upon a Lot and designed and intended for use and occupancy as single-family residence.

Section 8. “Lot” shall mean and refer to any of the Lots of The Reserve at Orchard Meadows Plat Three as shown on the Official Plat thereof, and any Lots created by the division of such Lots. The rights and obligations under this Declaration relating to ownership of the Lots shall apply equally to each Lot regardless of the size or design of the Living Unit situated thereon.

Section 9. “Member” shall mean and refer to those persons entitled to membership as provided in the Declaration.

Section 10. “Owner” shall mean and refer to the record Owner, whether one or more persons or entities, of fee simple title to any Lot which is a part of the Properties, including contract sellers and vendees (deemed Co-owners), but excluding those having such interest merely as security for the performance of an obligation, and excluding those having a lien upon the property by provision or operation of law.

Section 11. “Properties” shall have the meaning set forth on Page 1 hereof.

ARTICLE II
MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION

Section 1. Membership and Voting. Every Owner of a Lot shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot that is subject to assessment hereunder. Ownership of a Lot shall be the sole qualification for membership. The Owners of a Lot shall be entitled to one vote for each Lot owned. When more than one person holds an interest in any Lot all such persons shall be Members. The vote for such Lot shall be exercised as they, among themselves, determine, but in no event shall more than one vote be cast with respect to any Lot.

Section 2. Board of Directors. The voting Members shall elect a Board of Directors of the Association as prescribed by the Bylaws of the Association. The Board of Directors shall manage the affairs of the Association.

Section 3. Suspension of Voting Rights. The Association shall suspend the voting rights of a Member for any period during which any assessment hereunder against his/her/its Lot remains unpaid and for a period not to exceed sixty (60) days for any infraction of the published rules and regulations of the Association.

Section 4. Notice of Meeting of Members. Unless the Articles of Incorporation or the Bylaws otherwise provide, written notice stating the place, day and hour of the meeting and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered no less than five (5) nor more than fifty (50) days before the date of the meeting, either personally or by mail, by or at the direction of the President or Secretary, or the officer or persons calling the meetings, to each Member entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States Mail addressed to the Member at his/her/its address as it appears on the records of the Association, with postage thereon prepaid.

Section 5. Duration. No dissolution of the Association shall occur without the prior approval and consent of the City of Johnston, Iowa.

Section 6. Kohles Development L.C.. Notwithstanding anything stated to the contrary herein, Kohles Development L.C. (hereinafter referred to as “Kohles”) shall be the sole voting member of the Association until Kohles no longer owns any portion of any Lot, or until Kohles waives, in writing, its rights to elect all the Directors and to cast all votes as it deems appropriate. Each Owner by acceptance of a deed to a Lot shall be deemed to have released Kohles from all claims with respect to actions taken or not taken while Kohles controls the Association.

ARTICLE III
COVENANT FOR MAINTENANCE ASSESSMENTS

Section 1. Creation of the Lien and Personal Obligation of Assessments. Owners, for each Lot owned within the Properties, hereby covenants, and each Owner of any Lot by acceptance of a deed therefore, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association: (1) monthly or annual assessments or charges, (2) special assessments for capital improvements and operating deficits and (3) special assessments as provided in this Article III, such assessments to be established and collected as hereinafter provided. The monthly and special assessments, together with late fees, interest, costs and reasonable attorney’s fees, shall be a charge on the land and shall be a continuing lien upon the property against which each such assessment is made. Each such assessment, together with interest, costs and reasonable attorney’s fees, shall also be the joint and several personal obligation of each person who was the Owner of such property at the time when the assessment became due.

Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote the health, safety and welfare of the residents in the Properties and for insurance, improvement, maintenance, repair, replacement, removal and demolition of the Association Responsibility Elements.

Section 3. Special Assessments for Capital Improvements and Operating Deficits. In addition to the monthly assessments authorized above, the Association may levy a special assessment for the purpose of defraying, in whole or in part, the cost of any construction, reconstruction, repair, replacement, removal or demolition of a capital improvement that the Association is required to maintain or for operating deficits that the Association may from time to time incur, provided that any such assessment shall have the assent of a majority of the Members who are voting in person or by proxy at a meeting duly called for this purpose.

Section 4. Notice and Quorum for any Action Authorized Under Sections 3. Written notice of any meeting called for the purpose of taking any action authorized under Section 3 shall be sent to all Members not less than five (5) days nor more than fifty (50) days in advance of the meeting. At the first such meeting called, the presence of twenty-five percent (25%) of the Members or proxies entitled to cast votes shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirements, and the required quorum at the subsequent meeting shall be fifty percent (50%) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.

Section 5. Uniform Rate of Assessment. Both monthly or annual and special assessments must be fixed at a uniform rate for all Lots and may be collected on a monthly or annual basis. The initial assessment shall be One Hundred Dollars ($100.00) per lot assessed annually.

Section 6. Date of Commencement of Monthly assessments: Due Dates. The monthly or annual assessments provided for herein shall commence following the date of conveyance to an Owner of a Lot with a completed Living Unit constructed thereon and for which a certificate of occupancy has been issued. The maintenance responsibilities of the Association as to each Lot shall commence concurrently with the commencement of monthly or annual assessments. The insurance assessment provided for in Article IV shall commence as to each Lot on the first day of the first month following the date of conveyance of the Lot to an Owner. The Board of Directors shall fix any increase in the amount of the monthly or annual assessment at least thirty (30) days in advance of the effective date of such increase. Written notice of special assessments and such other assessment notices as the Board of Directors shall deem appropriate shall be sent to every Owner subject thereto. The due dates for all assessments shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate in a recordable form signed by an officer of the Association setting forth whether the assessments on a specified Lot have been paid A properly executed certificate from the Association regarding the status of assessments on a Lot shall be binding upon the Association as of the date of its issuance.

Section 7. Effect of Nonpayment of Assessments: Remedies of the Association. Any assessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of 15% per annum or at the highest rate allowed by Iowa law, whichever is lower. The Association may bring an action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property in the manner provided for foreclosure of a mortgage, or both, and there shall be added to the amount of said assessment all costs and expenses incurred by the Association in collecting said assessment, including reasonable attorney’s fees, whether or not legal action is required in connection therewith. No Owner may waive or otherwise escape liability for the assessments provided for herein. by abandonment of the Owner’s Lot.

Section 8. Subordination of Assessment Liens. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. The assessment shall be paid prior to or at the closing of sale or transfer of any Lot. However, the sale or transfer of any Lot pursuant to mortgage foreclosure or any proceeding in sale or transfer shall not relieve such Lot from liability for any assessments thereafter becoming due or from the lien thereof. Provided, however, the sale or transfer of any Lot pursuant to the foreclosure of any first mortgage on such Lot (without the necessity of joining the Association in any such foreclosure action) or any proceedings or deed in lieu thereof shall extinguish the lien of all assessments coming due prior to the date of such sale or transfer. The failure of an Owner to pay assessments as provided in this Article III shall not constitute a default under a mortgage insured by the Federal Mortgage Agencies.

ARTICLE IV
INSURANCE

Section 1. Liability Insurance. The Association shall also purchase a master comprehensive public liability insurance policy in such amount or amounts as the Board of Directors shall deem appropriate from time to time. Such comprehensive public liability insurance policy shall cover the Association, its Board of Directors, any committee or organization of the Association or Board of Directors, its agents and employees, the Owners and all other persons entitled to occupy any Lot. The Association shall also obtain any other insurance required by law to be maintained, including but not limited to, worker’s compensation insurance, and such other insurance as the Board of Directors shall from time to time deem necessary, advisable or appropriate. Such insurance coverage shall also provide for and cover cross liability claims of one insured party against another insured party. Such insurance shall inure to the benefit of each Owner, the Association, its Board of directors and any managing agent acting on behalf of the Association. Each Owner shall be deemed to have delegated to the Board of Directors the Owner’s right to adjust with the insurance companies all losses under policies purchased by the Association.

Section 2. Annual or Monthly Assessment for Insurance. The premiums for all such insurance hereinabove described shall be paid by the Association and the pro rata cost thereof shall become a part of the monthly or annual assessment (over and above the assessments described in Article III herein), to which each Lot conveyed by Declarant shall be subject under the terms and provisions of Article III. When any such policy of insurance hereinabove described has been obtained by or on behalf of the Association, written notice of the obtainment thereof and of any subsequent changes therein or termination thereof shall be promptly furnished to each Owner, mortgagee, the City of whose interest may be affect thereby, which notice shall be furnished by the officer of the Association who is required to send notices of meetings of the Association.

ARTICLE V
EASEMENTS

Section 1. Easement for Access and Maintenance. The Association, its agents and contractors shall have an easement and license to enter in and over each Lot for the purpose of performing its maintenance obligations of the Association Responsibility Elements.

ARTICLE VI
ADDITIONAL RESTRICTIONS

Section 1. Single Family Residence. The use of Lots shall be limited to single family residential use. A family is defined as one or more persons occupying a single dwelling unit, provided that unless all members are related by blood, marriage or adoption, no family shall contain more than six (6) persons. Uses of land or structures customarily incidental and subordinate to the single family residential use as permitted by the City of Johnston zoning ordinance are permitted unless prohibited or otherwise regulated by this Declaration.

Section 2. Playhouses and Sheds. No playhouse, utility building, storage shed, lean-to or other similar structure shall be permitted, provided, however, that a child’s playhouse may be permitted if the floor area does not exceed sixty-four (64) square feet and if the exterior and the roof are constructed of the same material and have the same color and appearance as the residential dwelling on the same lot and located in the back yard of the property.

Section 3. Detached Garages. Detached garages shall be permitted in the Properties. The City of Johnston has an approval process for detached garages as an accessory structure.

Section 4. Fences and Hedges. No fences, walls, hedges or barriers shall be permitted upon Lots or adjoining property lines except as follows:

(a) Walls, fences, or hedges are permitted along the rear property lines and side property lines behind the front yard setback lines but they shall not exceed six (6) feet in height.

(b) The fence fabric, or fence screening material, shall be mounted on the exterior face of the fence posts or fence framing. No chain link fence, including a chain link fence around a dog run, shall be permitted unless it is black or brown vinyl clad or painted fence. All fences shall be kept in good repair and attractive appearance.

Section 5. Trees. A minimum of one (1) tree is required per two thousand (2,000) square feet of space unoccupied by structures, parking, sidewalks or driveways. At least forty percent (40%) of the trees shall have a minimum of two-inch (2”) trunk diameter measured two (2) feet vertically from the ground level. This is exclusive of any trees that may already exist on the building site. Special care should be taken when excavating around existing trees. Locating trees on each lot and incorporating the existing trees into the site plan is encouraged.

Section 6. Measurement of Setbacks. The minimum setbacks as hereinafter specified shall be measured from the lot line from which the setback is being measured to the nearest building or structure. No buildings or structures (except for permitted fences or mailboxes) shall be constructed or maintained within the required minimum setback area. The definition of the terms “front yard”, “side yard”, “rear yard” and “building”, shall be the same as that definition contained in the City’s zoning Ordinance.

Section 7. Utilities. All utilities, including trunk and service lines for telephone, electricity and cable television, shall be constructed and located underground.

Section 8. Security Lighting. Security lighting for driveways, parking and other areas shall be designed, located and directed in a fashion that will avoid direct lighting onto adjoining lots.

Section 9. Paving of Driveways. All parking and driveway areas shall be hard surfaced, using a suitable thickness of Portland cement.

Section 10. Sodding. All portions of a Lot not occupied by structures, walkways, driveways, parking or landscaping shall be sodded within ninety (90) days after completion of the residence upon the Lot unless weather conditions make this requirement impossible to meet, in which event a reasonable period of time for compliance shall be allowed. Heavily treed lots shall be sodded a minimum of thirty (30) feet behind home and side yard, and the balance of the rear yard can be left in its natural state.

Section 11. Garbage Cans and Equipment. Items such as garbage cans, clotheslines, lawn or garden equipment, building materials and other similar items shall be placed out of public view. Firewood shall not be stored on the front side of a house. Furthermore, any repair of motorcycles, automobiles or other vehicles shall be done out of public view.

Section 12. Tents and Trailers. No tent or other movable or temporary structure or enclosure, trailer, boat, camper, motor home, or truck rated larger than three-quarter ton, or inoperative motor vehicle shall be maintained or parked on any lot or street within public view for more than a cumulative of seven (7) days in any calendar year.

Section 13. Temporary Structures; Mobile Homes. There shall be no occupancy of temporary structures or partially completed structures. No home or other building shall be moved onto any lot from outside the Properties. No mobile homes, modular or factory manufactured homes shall be permitted at any time.

Section 14. Architectural Character. The architectural character of any structure shall be in harmony with, and compatible with, those structures in the Properties and the neighboring environment. All plans require an architectural review by Kohles prior to any construction. Steep roof pitches of a minimum 8/12 pitch is required. Hip roofs are encouraged as the typical roof form.

Section 15. Exterior Foundations. Exterior foundations exposed above finish grade which are not faced with brick or stone shall be painted to match the rest of the structure, and shall not exceed twenty-four (24) inches above finish grade.

Section 16. Roof Material. Roof materials shall be slate, tile, medium to thick butt wood shingles or high quality asphalt shingles with a medium weight rating of 260 pounds.

Section 17. Swimming Pools. Above-ground swimming pools or non-permanent swimming pools are prohibited.

Section 18. Satellite Dish. A satellite dish or parabolic device used to receive television signals from satellites shall be permitted only if it meets the following requirements:

(a) It shall not be mounted on a trailer or other temporary or portable device, but shall be permanently installed in an acceptable fashion as determined by the manufacturer;

(b) It shall be located so that no part of the dish is more than ten (10) feet from the home it serves, unless special permission is obtained from Kohles Development;

(c) It shall not exceed two (2) feet in diameter;

(d) It shall be appropriately landscaped and screened (if deemed applicable by Kohles);

(e) It shall be located at the rear of the home it serves (if possible) and below the peak of the roofline.

Section 19. Dog Runs and Houses. Dog runs shall not be permitted unless they are located at the rear of the house or garage and extend toward the rear of the Lot from that portion of the house or garage which is closest to the rear Lot line. Any doghouse shall have the same external appearance, color and roof material as the home situated on the Lot. No doghouse shall exceed twenty (20) square feet in area.

Section 20. Building Plan. When a building plan is filed with the City by an owner or builder of the Lot, a duplicate shall be filed with Kohles to approve architectural review prior to completion of the permit process and the start of the home.

Section 21. Towers and Antennas. No extension tower or antennas of any kind shall be constructed or maintained on any Lot; provided, however, that usual and customary television antennas shall be permitted on homes or garages.

Section 22. Noxious Activities; Livestock. No noxious or offensive activity, noise or odors shall be permitted on or to escape from any Lot, nor shall anything be maintained or done thereon which is or may become an annoyance or nuisance either temporarily or permanently. No animals, livestock, pigs, snakes or poultry of any kind shall be raised, bred or kept on any Lot or within any house or structure on a Lot except that dogs, cats, rabbits and other small commonly accepted domestic pets may be kept so long as they are not kept, bred or maintained for commercial purposes or sale to the public. In no event, however shall more than two (2) dogs be maintained on any one Lot. Dogs shall be tied, kept on a leash, fenced or kept in a dog run at all times.

Section 23. Maintenance of Lot. The owner or person in possession of any Lot, whether vacant or improved, shall keep the Lot free of debris and shall keep the Lot mowed so that the grass or weeds do not exceed six (6) inches in height.

ARTICLE VII
SPECIAL USE RESTRICTIONS

In addition to the General Use Restrictions and Building Specifications set forth in Article VI above, the following Specific Use Restrictions and Building Specifications shall apply to all lots:

(a) The front yard setback shall be at least forty (40) feet. Several lots have 30’ setbacks and are noted on the final plat.

(b) The side yard setbacks shall be a total of at least twenty-one (21) feet with a minimum of ten (10) feet on any one side.

(c) Each single story or ranch-style home shall have a minimum of one thousand eight hundred fifty (1,850) square feet of finished floor area excluding basements, garages, porches, decks, patios and breezeways. Homes exceeding one story in height shall have a minimum of two thousand (2,000) square feet for a one and a half story and twenty two hundred (2,200) square feet for a two story. This excludes any square footage in basement finish.

(d) Attached garage parking for a minimum of three (3) automobiles shall be provided for each home.

(e) The rear yard setback shall be at least forty (40) feet.

ARTICLE VIII
REVIEW AND APPROVAL OF PLANS

Section 1. Plats. There shall be no division of platted lots for building sites.

Section 2. Building Standards. Good aesthetic design is a very important covenant for buildings within the Properties. The covenant does not intend to restrict or inhibit types of building design; however, effort shall be made to construct buildings, which compliment and harmonize with other architecture in the Properties, and with the natural environment in the area. The highest standards of architectural quality are encouraged.

Section 3. Plans and Specifications to be Submitted for Approval.

(a) Final Site Plan Documents drawn to scale (1”-20’) or a 8½” x 11” sheet of paper outlining the following must be submitted to Kohles Development for review and approval prior to the commencement of any construction on a Lot:

i. Property legal description, scale and arrow on plan showing north.

ii. Building locations including setback dimensions.

iii. Driveways and sidewalks.

iv. Special features, such as fencing, lighting, underground utilities, and mechanical equipment.

v. Contour lines or slope of draining to swale. Swale location generally is located on the side yard lot line.

vi. Landscaping plan, submitted prior to installation.

vii. Size, height, type, color of any sign.

viii. Parking areas, points of access as well as any easements for access and means of screening.

ix. A storm water pollution prevention plan.

(b) Final Building Plans and Specifications outlining the following must be submitted to Kohles for review and approval prior to the commencement of any construction on a Lot:

i. Floor plans, exterior elevations and sections.

ii. Square footage of building.

iii. Exterior colors and material samples for exposed exterior materials.

iv. Perspective rendering or photo, if available.

(c) Builder/Buyer shall strip non-structural fill (black dirt) in the driveway and sidewalk portion of each lot at the time of excavation. Builder/Buyer acknowledges the organic nature of black dirt as being not suitable for compaction for driveway and sidewalk areas.

(d) Kohles does not warrant property bearing soils or expansive soils on any lot purchase. Buyers, at their expense, may check suitability of soils for construction. Six soil borings were done by Kohles prior to plat construction. A copy of all the geotechnical exploration report is available.

(e) All buyers and their builders will be responsible to use proper erosion methods on all perimeter areas of the building site. Additionally each buyer will be responsible to clean the mud out of the streets that originates from his/her/its site. The City of Johnston requires all builders to conform to the new DNR storm water pollution plan.

ARTICLE IX
GENERAL PROVISIONS

Section 1. Right of Enforcement. In the event of a violation or threatened violation of any of the covenants, conditions and restrictions herein enumerated, Declarant, the Owners and all parties claiming under them, and the City of Johnston (if it so elects by approval of its City Council) shall have the right to enforce the covenants, conditions and restrictions contained herein, and shall be entitled to recover reasonable attorneys’ fees and the costs and expenses incurred as a result thereof.

Section 2. Duration. This Declaration shall run with the land and shall be binding upon all parties claiming under them for a period of twenty-one (21) years from the date of recordation in the office of the Recorder of Polk County, Iowa, and shall automatically extend for successive periods of ten (10) years each unless prior to the expiration of any such ten-year period it is amended or changed in whole or in part as hereinabove provided. Invalidation of any of the covenants, conditions and restrictions of this Declaration by judgment or decree shall in no way effect any of the provisions hereof and the same shall remain in full force and effect.

Section 3. Notice to Mortgagees. The Association, upon request, shall provide written notification to any lender holding a first mortgage upon any Lot specifying the defaults of the Owner of such Lot, if any, in the performance of such Owner’s obligations under this Declaration, the Articles of Incorporation or Bylaws of the Association or any other applicable documents which default has not been cured within sixty (60) days.