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HomeMy WebLinkAboutA006 - Declaration of Covenants, Conditions and Restrictions dated November 4, 1986 043 M INST I 93 FU$ 451 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS is made this k/,44 day of LjoVemLk-r 1986, by KAROL J. KOCIMSKI, referred to in this agreement as "Declarant". Declarant is the owner in fee simple of all lots situated within WESTWOOD VILLAGE, a planned unit develop- ment in Ames, Iowa, described as follows: Lots One (1) , Two (2) , Three (3) , Four (4) , Five (5) and Six (6) , Westwood Village Subdivision of Ames, Iowa, said lots being a plat of the following described property: Beginning at a point that is 515.64 feet North of the Southeast Corner of the South- west Quarter (SW 4) of Section Five (5) , Township Eighty-three (83) North, Range Twenty-four (24) West of the 5th P.M. , in the City of Ames, Story County, Iowa; then continuing N0000' East, 457.86 feet; then N88019' West, 102.7 feet; then S1°41' West, 65.0 feet; then N88°19' West, 10.0 feet to the Northeast Corner of Lot One (1) , Kocimski's First Addition to Ames; then SO°26' East, 60.0 feet along the east line of said Lot One (1) to the Southeast Corner thereof; then N88058' West (measured bearing) , 46.07 feet (measured distance) (45.36 feet, platted distance) along the south line of said Lot One (1) to the Northeast Corner of Lot Two (2)' in said addition; then SO°00' East, 64.5 feet along the east line of said Lot Two (2) to the Southeast Corner thereof; then N88023' West, 218.74 feet along the south line of said Lot Two (2) to the easterly right-of-way line of Hickory Drive and the Southwest Corner of said Lot Two (2) ; then Southwesterly, 191.94 feet along said right- of-way, along a 1672.14 foot radius curve, concave northwesterly; thence S88°19' East, U( 5.95 feet; then SO°36' West, 214.84 feet; 1 then S88019130" East, 124.0 feet; then S0034' (10 West, 149.85 feet; then N88°31' West, 124.0 Q 2 d 2t feet to the easterly right-of-way of McDonald M 3� ILo g Place; then S0034' West, 229.60 feet along O � said right-of-way to the north right-of-way C9 >w C" line of Lincoln Way; then S88144' East, 378.05 z t- w feet along said right-of-way; then NO°00' East, 00 22b.85 feet; tnen S88°50' East, 120.0 feet to U LL > a the west right-of-way of Marshall Avenue; then d¢w Z z NO°00' East, 220.75 feet alongsaid ri ht-of- z�LL T way; then S88050' East, 30.0 eet to the point of beginning, containing 7.623 acres, more or less. Declarant wants to provide for the preservation of values within the development and for the maintenance of common facilities and, to this end, will subject the real property situated within the development to the covenants, conditions, restrictions, easements, charges and liens set forth in this agreement, for the benefit of the property of each owner, and, Declarant wants to create an agency which should BOOKQ Ala a -2- be delegated and assigned the powers of maintaining and administering the properties and facilities and admini- stering and enforcing the covenants, conditions and restrictions set forth in this agreement, and, Declarant has established a nonprofit corporation, WESTWOOD VILLAGE RECREATION AREA, INC. for the purpose of exercising these functions, THEREFORE, Declarant declares that all properties situated within the subdivision shall be held, transferred, sold, conveyed and occupied subject to the covenants, restrictions, conditions, easements, charges and liens set forth in the following Articles. ARTICLE I. DEFINITIONS 1. "Association" shall mean and refer to WESTWOOD VILLAGE INC. 2. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any lot which is a part of the subdivision, including contract vendees, but excluding those having such interest merely as security for the performance of an obligation or indebtedness unless and until such secured party has acquired title pursuant to foreclosure, forfeiture or any proceeding in lieu thereof. 3. "Properties" shall mean and refer to the certain real property described above which is subject to this instrument and any additions that may hereafter be brought within the jurisdiction of the Association. 4. "Common area" shall mean and refer to all real property and improvements, if any, owned by the Association for the common use and enjoyment of the owners. The common area to be owned by the Association at the time of the conveyance of the first lot with the development is: Lot Six (6) , Westwood Village, Subdivision of Ames, Iowa 5. "Lot" shall mean and refer to any lot shown upon the recorded development map of the properties. 6. "Member" shall mean and refer to those owners who are members of the Association as provided in Article II hereof. 7. "Declarant" shall mean and refer to Karol J. Kocimski, his successors and assigns. 8. "Capital improvements" shall mean a swimming pool, tennis courts and such other improvements as may be constructed by the Association with approval of the City of Ames. ARTICLE II. MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION 1. Every owner of a lot within the planned unit BOOKI mod_PAGE -3- development shall be a member of the Association. Member- ship shall be coexistent to and may not be separated from ownership of any lot which is subject to assessment as provided in this agreement. Any person or entity who holds any such interest merely as security for the performance of an obligation or indebtedness shall not be a member. 2. All owners within the planned unit development shall be entitled to one (1) vote for each lot owned. When more than one person or entity holds an interest in any lot, all such persons or entities shall be members and the vote for such lot shall be exercised as they shall among themselves determine, but in no event shall more than one (1) vote be cast with respect to any such lot. ARTICLE III. PROPERTY RIGHTS 1. Every owner shall have a right and easement of enjoyment in and to the common area which shall be appur- tenant to and which shall pass with the title to every lot, subject to the following: A. The right of the Association to charge reasonable admission and other fees for the use of any recreational facility situated upon the common area. B. The right of the Association to suspend the voting rights and the right to use the recreational facilities or common areas by an owner or members of the owner's family or the occupants of the owner's lot for any period during which any assessment against his or her lot remains delinquent and for a period not to exceed sixty (60) days for any in- fraction of the Association's published rules and regulations. C. The right of the Association to dedicate or transfer all or any part of the common area to any public agency, authority or utility for such purposes and subject to such conditions as may be agreed to by the members. No such dedication or transfer shall be effective unless an instrument is executed by two-thirds (2/3) of each class of members agreeing to such dedi- cation or transfer and written approval is given by the City of Ames. ARTICLE IV. COVENANT FOR MAINTENANCE ASSESSMENTS 1. Creation of Lien and Personal Obligation of Assessments. The Declarant, for each lot owned within the properties, hereby covenants, and each owner of any lot by acceptance of a Deed therefor, whether or not it shall be so expressed in such Deed, is deemed to covenant and agree to pay to the Association: (a) annual assessments or charges, and (b) special assessments for capital improvements, such assessments to be established and collected as provided in BOOK PAGE1 .._ -4- this agreement. The annual and special assessments, together with interest, costs and reasonable attorneys' 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 assessment, together with interest, costs and reasonable attorneys' fees, shall also be the personal obligation of the person or entity or entities who owned the property at the time when the assessment fell due. The personal obligation for payment of delinquent assessments shall not pass to successors in interest who have obtained their interest by voluntary transfer unless expressly assumed by them. 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively to promote recreation, health, safety and welfare of the residents in the properties and for the improvement, maintenance and payment of taxes of the common area and of the improvements situated upon the properties. 3. The Association shall have the right to include in the assessments an amount for anticipated long- range expenses (e.g. , exterior painting) . The Association may establish, in its discretion, a reserve account or accounts for such items. 4. Maximum Annual Assessment. Until January 1st of the year immediately following the conveyance of the first lot to any owner, the minimum annual assessment shall be Fifty Dollars ($50.00) per lot. Thereafter, the annual assessment shall be not less than Fifty Dollars ($50.00) per lot, nor more than Fifteen Hundred Dollars ($1,500.00) per lot, as shall be determined by the Board of Directors of the Association. The Board of Directors may increase the assessment to an amount not exceeding the maximum annual assessment by giving thirty (30) days written notice to each owner. The minimum annual assessment shall be applicable to unimproved lots only and shall be increased as to any improved lots in an amount not to exceed the maximum annual assessment as determined by the Board shall be deemed "improved" and subject to the maximum annual assessment sixty (60) days after completion of the construction of the improvement thereon. A. From and after January 1 of the year immediately following the conveyance of the first lot to an owner, the maximum annual assessment may be increased by the Board of Directors each year not more than ten percent (10%) above the maximum assess- ment for the previous year without a vote of the membership. B. From and after January 1 of the year immediately following the conveyance of the first lot to an owner, the maximum annual assessment may be increased in excess of ten percent (10%) by a vote of two-thirds (2/3) of each class of members who are voting in person or by written proxy at a meeting duly called for this purpose. C. The Board of Directors may fix the annual assessment at an amount not in excess of the maximum. 5. Special Assessments for Capital Improvements. In addition to the annual assessments au-t�hooriized above, the RMK a4-� PAGE -5- Association may levy in any assessment year a special assessment applicable to that year only for the purpose of defraying, in part or in whole, the cost of any construc- tion, reconstruction, repair or replacement of a capital improvement upon the common area, including fixtures and personal property related thereto, and for the repair, maintenance and snow removal costs provided that any such assessment shall require the assent of two-thirds (2/3) of the votes of each class of members who are voting in person or by written proxy at a meeting duly called for this purpose. 6. Notice and Quorum for any Action Authorized under Paragraphs 4 and 5. Written notice by regular mail of any meeting called for the purpose of taking any action authorized under paragraphs 4 and 5 of these Declarations shall be sent to all members not less than thirty (30) days, nor more than sixty (60) days, in advance of the meeting. At the first such meeting called, the presence of members or written proxies entitled to cast sixty percent (60%) of all votes of each class of membership shall constitute a quorum. If the required quorum is not present, another meeting may be called subject to the same notice requirement and the required quorum, at the subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting. No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting. 7. Date of Commencement of Annual Assessments and Due Dates. The annual assessments provided for shall begin as to all lots on the first day of the month following the conveyance of the common area to the Association. The first annual assessment shall be adjusted according to the number of months remaining in the calendar year. The Board of Directors shall fix the amount of the annual assessment against each lot at least thirty (30) days in advance of each annual assessment period. Written Notice of the annual assessment shall be sent to every owner subject thereto. The due dates shall be established by the Board of Directors. The Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Association setting forth whether the assessments on a specified lot have been paid. 8. Effect of Nonpayment of Assessments - Remedies of the Association. Any sessment not paid within thirty (30) days after the due date shall bear interest from the due date at the rate of fifteen percent (15%) per annum. The Association may bring an action at law against the owner personally obligated to pay the same or foreclose the lien against the property. No owner may waive or escape liability for assessments by nonuse of the common area or abandonment of his or her lot. The Board of Directors of the Association may cause a lien to be placed against any lot for nonpayment of assessments as follows: A. A thirty (30) day written notice of said delinquency shall be given to the lot owner by ordinary mail addressed to the owner's last known mailing address on file with the Association and shall be deemed served on the date of mailing. B. If the delinquent assessment is not paid within thirty (30) days, a Notice of Nonpayment of Assessment shall be served BMK.�._PAGEJ -6- upon the lot owner in the same manner as an Original Notice, setting forth the name of the lot owner, the description of the property, the unpaid assessment and the costs of serving the same plus reasonable attorneys' fees. If the same is not fully paid within thirty (30) days, the said Notice, together with Proof of Service and Affidavit of Nonpayment, may be filed in the office of the Recorder of Story County, Iowa, and the same shall constitute a lien against the lot until fully paid, with interest at the rate of fifteen (15%) percent as provided above. The lien may be foreclosed in the same manner as other liens or mortgages. C. All lot owners, by acceptance of a Deed to their land, contractually agree to be bound by the terms of this Declaration and to all terms and obligations with respect to assessments. D. -In lieu of the above, the Board of Directors of the Association may file a lawsuit against any lot owner for nonpayment of assessments, plus reasonable attorneys' fees, interest and costs. 9. No Property Rights in Monies Held by Associa- tion. No owner or person who has paid assessments to the Association shall retain any title or interest in said monies so paid or in any account of reserves established by the Association. No lot owner or other person is entitled to any refund of monies paid for assessments and held by the Association, by virtue of selling his or her lot. The only interest of any owner in said monies is to have the same used for the purposes set forth in this agreement. 10. Subordination of Lien to Mortgages. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any lot, voluntary or involuntary, shall not affect the assess- ment lien. However, the sale or transfer of any lot pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguYsh the lien (but not the indebted- ness) of such assessment as to the payments which became due prior to such sale or transfer. No sale or transfer shall release such lot from liability for any assessments there- after becoming due or from the lien itself. ARTICLE V. ARCHITECTURAL CONTROL No building, fence, wall or other structure shall be built or maintained upon the properties, nor shall any exterior addition to or change or alteration be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall have been submitted to and approved in writing as to harmony and external design and location in relation to surrounding structures and topography by the Board of Directors of the Association or by an Architectural Committee composed of three (3) or more representatives appointed by the Board. In the event the Board of Directors or its designated BOOK Q-43 PAGE..l..J.L�. -7- committee fails to approve or disapprove such designs and locations within thirty (30) days after said plans and specifications have been submitted to it, written approval will not be required and this Article will be deemed to have been fully complied with. ARTICLE VI. EXTERIOR MAINTENANCE 1. The Association shall be responsible for the repair and maintenance of the improvements of the common area. 2. The Association shall cut all grass on the common area and be responsible for landscaping on the common area, and shall remove snow from all walks, driveways and improved areas of the common area. 3. In the event that the need for maintenance or repair is caused by the willful or negligent act of the owner, the owner's family, guests or invitees, the cost of such maintenance or repair shall be the responsibility of the owner and shall be added to and become a part of the assesment to which such lot is subject. ARTICLE VII. SALE OR TRANSFER OF INTEREST Any owner who shall sell, convey or dispose of his or her interest in any lot, excluding, however, instruments executed for the purposes of security, shall be required to notify the Board of Directors of the Association of such sale, conveyance or disposal within thirty (30) days thereof and furnish a copy of the written instrument effecting such transfer, together with the name and address of the new owner. ARTICLE VIII. EASEMENTS Easement to Association. Each owner covenants that the Association or its designees shall have an easement in, on, across, over and under such lot to permit the Asso- ciation to effect any desired or necessary maintenance or repairs, including but not limited to, the maintenance and repairs listed in Article IV hereof, or the installation of such items as common to all owners. ARTICLE IX. GENERAL PROVISIONS 1. Duration. The covenants, conditions and restrictions of th si of shall run with and bind the land and shall inure to the benefit of and be enforceable by the Association or any owner subject to this Declaration, their respective representatives, successors and assigns. For a term of twenty-one (21) years from the date this Declaration is recorded and provisions of this Declaration and any Amendments thereto may be extended by the Board of Directors of the Association by the filing of a verified claim therefor in the office of the Recorder of Story County, Iowa. The said verified claim shall be filed by the Board of Directors on behalf of the Association and on be- half of all owners of lots within the subdivision and shall be in compliance with the provisions of S614.24 and 614.25, -8- The Code of Iowa, as said statutes may hereafter be amended. 2. Amendments. This Declaration and any Amendments thereto may be amended during the first twenty- one (21) years following the date of its recording by a written instrument executed by not less than eighty per- cent (80%) of the lot owners. Thereafter, the Declaration and any Amendments thereto may be amended by a written instrument signed by not less than two-thirds (2/3) of the lot owners. Any Amendment to this Declaration shall become effective upon the date it is filed for record with the office of the Recorder of Story County, Iowa. Any Amendment be in compliance with the provisions of §614.24 and 614.25, The Code of Iowa, as said statutes may hereafter be amended. 2. Amendments. This Declaration and any Amendments thereto may be amended during the first twenty- one (21) years following the date of its recording by a written instrument executed by not less than eighty per- cent (80%) of the lot owners. Thereafter, the Declaration and any Amendments thereto may be amended by a written instrument signed by not less than two-thirds (2/3) of the lot owners. Any Amendment to this Declaration shall become effective upon •the date it is filed for record with the office of the Recorder of Story County, Iowa. Any Amendment to this Declaration shall require written Notice of the proposed Amendment being mailed to every owner at least sixty (60) days prior to any meeting of the Asociation wherein the Amendment is to be considered. 3. Notices. Any Notice required to be sent to any member of the Association or owner under the provisions of this Declaration shall be deemed to have been properly given when mailed, with postage prepaid, to the last known address of the member or owner. 4. Severability. Invalidation of any of these covenants or restrictions or a judgment or Court Order shall in no way affect any other provisions which shall remain in full force and effect. 5. Enforcement. The Association or any owner or the City of Ames shall have the right to enforce, by any proceeding at law or in equity, all restrictions, condi- tions, 'covenants, resolutions, liens and charges hereafter imposed, either to restrain violation, to prevent violation or to recover damages. Failure by the Association or any owner to enforce any covenant or restriction contained herein shall in no event be deemed a waiver of the right to do so later. DATED this _ 2 day of "�2 , 1986. 7/t�,i�, - Karol J. Kocimski STATE OF IOWA :ss STORY COUNTY On this the Soy day of (�� 1986, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Karol J. Kocimski, to me personally known to be the person named in and who executed the foregoing instrument and acknowledged --t�-haat22he executed BOOK.2a-PAGE 1 3 -9- the same of his voluntary act and deed. NOTARY PUBLIC in nd for w -'`d• JIMMY E ERVIN MY COMMISSION 1&N EXPIRES CONSENT 1989 Ames Savings and Loan Association as mortgagee of part of the above described real estate consents to the provisions of the foregoing declaration as relates to their mortgaged premises. AMES SAVI GS & LOAN ASSOCIATION BY Q� _ 0 BY STATE OF IOWA U" ss STORY COUNTY . On this the 30th day of October , 1986, before me, the undersigned, a Notary Public in and for the State of Iowa, personally appeared Virgil A. Maxwell and Jimmy E. Ervin , to me personally known, who, being by me duly sworn, did say that they are the President and Vice President of said corporation executing the within and foregoing consent; that said con- sent was signed and sealed on behalf of said corporation by authority of its Board of Directors; and that the said Virgil A. Maxwell and Jimmy E. Ervin , as such officers, acknowledged the execution of said consent to be the voluntary act and deed of said corporation, by it and by them voluntarily executed. NOTARY PUBLICVin and for the State of Iowa NQ�haiie.7 Lodtr Box__eR 43 PAGE_l_L�__