Bylaws

Lost Creek HOA Neighborhood Bylaws

Below is the searchable text of the Bylaws, Conditions, Covenants and Restrictions (CCRs), and the Shed Regulations. The documents are also available for download from the Dane County Register of Deeds Office.

*The bylaws were amended and voted in by majority on June 30, 2021

BY-LAWS OF LOST CREEK HOMEOWNERS ASSOCIATION, INC.

**As Amended and Adopted by the Members of the Association on  6/30/2021


ARTICLE I

GENERAL

Section 1.    Name. The name of the corporation shall be Lost Creek Homeowners Association, Inc. (the “Association”). The Association is a duly created Wisconsin nonstock corporation formed under Chapter 181 of Wisconsin statutes.

 

Section 2.    Principal Office. The principal office of the Association shall be designated by the Association’s Board of Directors and may be changed from time to time. All books and records of the Association shall be kept at its principal office.

 

Section 3.    Purpose. The Association has been organized to manage property owned by the Association described in EXHIBIT A​ of the Declaration.​       

 

Section 4.    Declaration. The Declaration of Conditions, Covenants and Restrictions​that applies to all Property as described in EXHIBIT A, as running with the land until December 19, 2026, as per filing with the Dane County Register of Deeds on December 19, 2001, remains in effect and has been incorporated into these Bylaws expressly or by reference. If, prior to December 26, 2026, a majority of Members do not approve revision of the terms of the Declaration, in whole or in part, or terminate it in its entirety, to be effective on December 27, 2026, the Declaration will automatically apply to the Property for an additional five (5) years.

 ARTICLE II

BOARD OF DIRECTORS 

Section 1.    Eligibility. Only Members of the Association may be elected to the Board of Directors.

Section 2.    Number and Term. The Board shall have no less than three (3), and no more than five (5), directors.  Each director shall be elected to serve for a term of one (1) year, or until his or her successor shall be elected.

 Section 3.    Vacancy and Replacement. If the office of any director or directors becomes vacant by reason of death, resignation, retirement, disqualification, removal from office or otherwise, a majority of the remaining directors, though less than quorum, at a special meeting of directors duly called for this purpose, may choose a successor or successors who shall hold office for the unexpired portion of the term of the vacated office.

 Section 4.    Removal. Directors may be removed for cause by an affirmative vote of a majority of the votes of Members. No director shall continue to serve on the Board if, during his or her term of office, his or her membership in the Association terminates.

 Section 5.    Powers. The business of the Association shall be managed by the Board of Directors, which may exercise all corporate powers not specifically prohibited by statute, the Declaration, or these Bylaws. The powers and responsibilities of the Board of Directors shall specifically include, but not be limited to, the following:

a.    Levy and collect regular and special Assessments for purposes as set forth in these By-Laws;

b.    Use and expend the assessments collected in order to maintain, repair, replace, care for, and preserve, the property owned by Members of the Association and for other common expenses; 

c.    Purchase the necessary equipment required in the maintenance, care and preservation referred to above;

d.    Enter into, and upon, the Common Property, as described in Exhibit A of the Declaration, in order to maintain, repair, replace, care, and preserve;

e.    Designate and retain personnel necessary for said maintenance, repair, replacement, care and preservation; 

f.     Insure the Common Property against loss from fire and/or other casualty;

g.    Insure the Association and its Members, if possible, against public liability arising out of the property or business of the Association, and to purchase such other insurance as the Board of Directors may deem advisable. This shall include the purchase of “blanket” or “umbrella” master insurance policy(s) on the Common Property;

h.    Collect delinquent Assessments by suit or otherwise, abate nuisances, and enjoin or seek damages from the Members, when appropriate, for violations of these Bylaws;

i.      Employ and compensate such personnel as may be required for the maintenance and preservation of the Common Property; 

j.      Make reasonable by-laws, rules and regulations for the occupancy and use of the

Common Property;

k.    Contract for the management of the Association and to delegate all the powers and duties of the Association as allowed by these Bylaws; 

l.      Carry out the obligations of the Association under any easements, restrictions or covenants of action relating to the Common Property;

m.  Maintain legal actions, on behalf of the Association, with respect to any cause of action relating to the Common Property; 

n.    Borrow money on behalf of the Association, grant mortgages and other security interests, in the Common Property;

o.    Establish budgets for the operation of the Association, including the setting up of reserve funds for anticipated expenditures; and

   p.   Invest surplus funds.

Section 6.    Compensation. No directors of the Association shall receive compensation for their services except as may be authorized by a majority of Members. Expenses incurred by directors while conducting the business of the Association may be reimbursed upon approval of the Board of Directors.

Section 7.     Meetings.

a.  The regular annual meeting of the Board of Directors shall be held at the same place as the Members’ annual meeting and immediately after the adjournment of the same;

b.  Special meetings shall be held whenever called by the President or a majority of the Board. The Secretary shall give notice of each special meeting either personally, by mail or electronic mail, at least three (3) days prior to the date of such meeting. Attendance by a Director at any meeting of the Board shall be deemed a waiver of notice by him or her; and 

c.  A majority of the Board shall be necessary to constitute a quorum for the transaction of business, and the act of a majority present at any meeting at which there is quorum, shall be the act of the Board.

Section 8.    Order of Business. The order of business at all meetings of the Board shall be as follows:

1.    Roll call;

2.    Reading of the minutes of the last meeting;

3.    Consideration of communications;

4.    Reports of officers;

5.    Reports of committees;

6.    Unfinished business;

7.    New business;

8.    Good of the order; and

9.    Adjournment.

Section 9.    Annual Statement. At each annual membership meeting the Board shall present a full and clear statement of the business and conditions of the Association. Further, it shall include a report of the Association’s operating expenses and an itemized breakdown of the assessments paid by the Members.

ARTICLE III

OFFICERS

 

Section 1.    Executive Officers. ​ The executive officers of the Association shall consist​ of a President, Treasurer, and Secretary, all of whom shall be elected by a majority vote of the Board at its regular annual meeting. Any two offices may be held by one person, except, the President shall not also be the Secretary of the Association.

 Section 2.    Subordinate Officers. The Board of Directors may appoint such other​  officers and agents as it may deem necessary, who shall hold office at the pleasure of the Board, and who shall have the authority and duties as may be prescribed by the Board.

 Section 3.    Tenure of Officers; Removal. All officers and agents shall be subject to removal, with or without cause, at any time, by unanimous vote of the Board.

 Section 4.       Duties of Executive Officers.

i.    Chair and shall preside at all meetings of the Members and Board of

Directors;

ii.   Have general and active management authority over the business of the

Association, except that which is delegated;

iii.  See that all orders and resolutions of the Board are carried into effect;

iv.  Execute bonds, mortgages and other contracts of the Association;

v.   Supervise and direct all other officers of the Association and assure

their duties are performed properly;

vi.  Be an ex officio member of all committees; and

vii. Exercise the general powers and duties of supervision and management usually vested in the office of the President of a corporation as per Chapter 181 of Wisconsin statutes governing nonstock corporations.

i.    Keep the minutes of the meetings of the Members and of the Board;

ii.   Keep accurate records of the operations of the Association as per

accepted best practices;

iii. Provide that all notices to Members and the Board are duly given in

accordance with the provisions of these Bylaws or as otherwise required by law;

iv. Act in the place and stead of the President in the event of the

President’s absence, inability, or refusal to act;

v.   Be custodian of the corporate records and of the seal, if any, of the

Association;

vi. Keep a register of the Post Office address of each Member and their

respective mortgagees (including land contract vendors), if any, which shall be furnished to the Secretary by all Members; and

vi. Perform all duties incident to the office of the Secretary, other duties as

from time to time may be assigned by the President or Board, and as required by law.

i.    Keep full and accurate accounts of receipts and disbursements in books

belonging to the Association and shall deposit all monies and other valuable effects in the name of the Association in such depositories as may be designated by the Board of Directors;

ii.   Shall disburse the funds of the Association as ordered by the Board, make proper vouchers for such disbursements, and shall render to the President and Directors, at each meeting of the Board, an account of his or her transactions as Treasurer;

iii. Keep detailed and chronological records of the receipts and expenditures affecting the Common Property, specifying and itemizing the maintenance and repair expenses and any other expenses incurred. Such records and the vouchers authorizing payments shall be available for examination by the Members upon seven (7) days notice at a place convenient to the Member and the Treasurer. Any costs incurred by the Association in connection with producing the necessary documents, receipts, etc. for examination by the Member, shall be borne by the Member; and

iv.  Be bonded by the Association for the faithful performance of the duties

of his or her office.

Section 5.    Vacancies. If the office of the President, Secretary, or Treasurer becomes vacant by reason of death, resignation, disqualification or removal, the Directors, by a majority vote, may choose a successor or successors who shall hold the office for the unexpired term of the vacated office. 


ARTICLE IV

MEMBERSHIP

Section 1.    Eligibility. Each owner of a Property shall be a Member of the Association. Persons or entities, including a land contract vendor, who hold an interest merely as security for the performance of an obligation, shall not be members of the Association. Membership shall be appurtenant to and may not be separated from any Property which is subject to Assessment by the Association. Tenants of Properties who are not occupants, shall not be members of the Association.

 Section 2.    Transfer of Membership. Membership in the Association may be transferred only as an incident to the legal transfer of the Member’s Property. 

Section 3.    Good Standing. Any Member who fails to pay their annual assessment in​ a timely fashion (see Article VIII, Section 5 herein) will not be considered in good standing and their right to vote at any regular or special meeting shall be suspended until outstanding assessments are paid in full.

ARTICLE V

MEETINGS OF MEMBERSHIP

 

Section 1.    Place. All meetings of the Association membership shall be held at such a place in Dane County, Wisconsin, as may be stated in the notice of the meeting.

 Section 2.    Annual Meeting. An annual meeting of the Members shall be held as follows:

a.   No earlier than April 30th, but no later than June 30th, at the place, and on the date and at the hour, as determined by the Board of Directors;

b.   At the annual meeting, the Members, by a majority vote, shall elect a Board of Directors and transact such other business as may properly come before the meeting; and

c.   Written notice of the annual meeting shall be provided no less than thirty (30) days prior, via mail or electronic mail, to each Member entitled to vote at such address as it appears on the books of the Association.

 Section 3.    Membership List. No less than thirty (30) days prior to the annual meeting, a complete list of Members entitled to vote at the meeting, which identifies their residence, shall be prepared by the Secretary. Said list shall be held at the principal office of the Association and shall be open to examination by any Member during the thirty (30) days prior to the annual meeting.

Section 4.    Special Meetings. Special meetings of the Members, for any purpose, may be called by the President. Special meetings shall be called by the President or Secretary upon written request of one-third (⅓) of the Members. Such a request shall state the purpose(s) of the proposed meeting and be signed by each Member requesting the special meeting. The Board of Directors shall provide notice of the special meeting to each Member no less than ten (10) days prior to the meeting. The business transacted at all special meetings of the Members shall be confined to stated purpose(s) set forth by the requesting Members.

Section 5.    Quorum.​ Fifty-one percent (51%) of the total number of Member Votes (Properties) of the Association present or represented by written proxy, shall constitute a quorum at all Member meetings. 

Section 6.      Right to Vote. At any meeting of the Members, every Member in good standing having the right to vote shall be entitled to vote in person or by proxy. If by proxy, such proxy shall only be valid for the specified meeting. If a Property is owned by more than one Member (individual or corporate), the one (1) vote attributable to that Property shall not be counted if the Members’ are not unanimous in their vote. There shall be no fractional vote. The Members shall file a certificate with the Secretary naming the person authorized to cast said Property’s one (1)

vote. If the same is not on file, the vote of such Property shall not be considered, nor shall the presence of said Member at a meeting be considered in determining whether the quorum requirement has been met. 

 Section 7.    Order of Business.  The order of business at any membership meeting shall be: 

1)    Roll Call;

2)    Proof of Notice of Meeting or Waiver of Notice;

3)    Reading of the Minutes of Prior Meeting;

4)    Officers’ Reports;

5)    Committee Reports;

6)    Elections;

7)    Unfinished Business;

8)    Adoption and Approval of an Annual Budget;

9)    New Business;

10) Good of the Order; and

11)  Adjournment.

 ARTICLE VI

ARCHITECTURAL CONTROL COMMITTEE

Section 1.    Formation. For the time period covering initial development of the Lost Creek development through the incorporation of the Association on December 19, 2001, the Developer created a three (3) member Architectural Control Committee (the “ACC”) to enforce conditions, covenants and restrictions contained in the Declaration. The Association was organized to manage the Property and assumed the duties of the ACC. 

 Section 2.    Structure. The ACC shall consist of a minimum of three (3), and no less than five (5) members. The members of the ACC shall be appointed by the Board on an annual basis, at the Annual Membership meeting, and must be Members of the Association. The President shall appoint a chairperson of the ACC.

 Section 3.    Term. The members of the ACC are appointed for a one (1) year term.

 Section 4.    Meetings.​  The ACC shall meet at the direction of the Board or as otherwise deemed necessary by the majority of its members. 

 Section 5.    Architectural Control.​  No structure, whether residence, accessory​ building, tennis court, swimming pool, flag pole, wall, landscaping or other improvements, including exterior colors and materials is to be applied to said improvements, shall be constructed, maintained or performed upon any Property and no alteration or repainting of the exterior of a structure shall be made unless complete plans, specifications and plot plans therefore shall have been submitted to the ACC. Location of improvements with respect to topography and finish grade elevation shall also be submitted. Said plans, specifications and plot plans shall show the exterior design, height, building materials and color scheme thereof, the location of the structure plotted horizontally and vertically, the location and size of driveways, the plans for required landscaping, and the grading plan. A copy of such plan specifications and plot plans as finally approved shall be deposited with the ACC.

 Section 6.    Plan Review. The ACC shall review said plans and specifications as to quality of workmanship and materials, harmony of external design with existing or proposed structures and as to location with respect to topography and finish grade elevation.

 Section 7.    Procedure. Within thirty (30) days, or sooner if deemed necessary, ACC shall determine, by a majority vote, whether to recommend approval or disapproval of those matters that come before it. Their determination shall be put forth to the Board, in writing, along with any accompanying information, so that the Directors may issue final approval or disapproval. The Board’s decision on the matter shall be in writing and shall not be arbitrary or capricious but supported by these Bylaws, Declaration and applicable law(s).

 ARTICLE VI

NOTICES

Section 1.    Definition. Whenever written notice is required to be given to any Director or Member it shall not be construed to mean exclusively personal notice. Such written notice may be given in writing by mail, depositing the same in a post office in a postpaid, sealed envelope, addressed based upon the books of the Association. 

 Section 2.    Service of Notice-Waiver. Whenever written notice is required as per these Bylaws or by Wisconsin statute, the person(s) entitled to such notice may waive said notice, verbally in the minutes of a meeting, or in writing, prior to, or subsequent thereof. 

 Section 3.    Address. The address for notice to the Association of any matter affecting the business of the Association shall be the address of the Registered Agent contained with the Wisconsin Department of Financial Institutions.

ARTICLE VII

FINANCES

Section 1.    Fiscal Year. The fiscal year of the Corporation shall begin on the first day of January and end on the last day of December in each year.

 Section 2.    Checks. All checks or demands for money and notes of the Association shall be signed by any one of the following officers: President, Secretary or Treasurer, or by such officer or officers or such other persons as the Board of Directors may from time to time designate. The Board of Directors by resolution may require more than one (1) signature.

 Section 4.    Audits of Account. The accounts and records which the Treasurer must keep pursuant to the provisions of these Bylaws may be audited, at any time, as ordered by the Board of Directors. If the Board orders an audit to be conducted, it shall be by a qualified independent auditor selected by the Board of Directors. Any such audit shall be presented to the membership at the annual Membership meeting. The cost of such an audit shall be a common expense. 

 ARTICLE VIII

ASSESSMENTS 

Section 1.    Determination, Purposes, and Application of Assessments:

a. The Association hereby covenants, and each Member by acceptance of the deed or occupancy thereof, whether or not it shall be contained in such deed, covenants and agrees to pay the Association the following:

i.  Annual general assessments or charges; and

ii. Special assessments may from time to time be imposed hereinafter.

b.  Assessments may be imposed for any of the following purposes:

i.  Pay the costs and expenses of publishing a periodic newsletter or similar publication;

ii. Provide a neighborhood directory, published in print or created in electronic form, to all Members on an annual basis;

iii. Defray the reasonable operating expenses of the Association;

iv. Pay legal and other fees, charges, and expenses, incurred in connection with the enforcement of these Bylaws and any statutory obligations of the

Association;

v.   Pay legal and other professional fees, charges and expenses, as deemed necessary by the Board, incurred with protecting the best interests of the

Association and its collective Members;

vi. Pay the costs of maintaining any fences or landscaping as are required under these Bylaws; and

vii. Pay legal and other fees, charges and expenses incurred by the Architectural Control Committee enforcing its duties and responsibilities as set forth under these Bylaws.

Section 2.​    Personal Obligation of Owners. All assessments shall be a charge on the Property against which assessment is made. Each such assessment, shall be the personal obligation of the Owner of the Property at the time the assessment is made. 

Section 3.    Uniformity. Each Property which has been certified for occupancy by the appropriate governmental entity shall be assessed at a uniform per capita rate to the Owner, regardless of size or use.

Section 4.    Calculation of Assessments. Annual general assessments shall be calculated by dividing the number of Properties into the annual budget approved by the Board. For example: if the Board approved annual budget is $6,675, and there are 89 Properties, the annual general assessment shall be $75 per Property.

Section 5.    Notification of Assessment. When the Board of Directors has determined the amount of any Assessments, the Secretary or Treasurer shall mail, send via electronic email with return-receipt requested, or present a statement of the Assessment to each of the Members. All Assessments shall be payable to the Association, and upon request, the Secretary or Treasurer shall give a receipt for each payment made.

Section 6.    Due Date. Assessments shall be paid to the Association, on an annual basis, no later than thirty (30) days after it becomes due.

Section 7.    Interest on Overdue Assessments. Any assessment not paid within thirty (30) days after its due date shall bear interest from its due date at a percentage rate of ten percent (10%) per annum.

Section 8.    Installment Payments. If the Association has provided for collection of assessments in installments, upon default in the payment of any one or more installments, the Association may accelerate payment and declare the entire balance of said assessment due and payable in full. 

Section 9.    Exempt Property. All Properties exempted from taxation by state or local governments, and to the extent of such legal exemption, are subject to these Bylaws and the Declaration, and exempted from the assessments, charge, and lien terms contained herein.

Section 10.   Joint and Several Liability of Grantor and Grantee. Upon a voluntary conveyance, the grantee of a Property shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor as provided in the Declaration up to the time of conveyance, without prejudice to the grantee’s right to recover from the grantor the amount paid by the grantee therefor. However, any such grantee shall be entitled to a statement from the Association setting forth the amount of such unpaid assessment and any such grantee shall not be liable for, nor shall the Property conveyed be subject to a lien for, any unpaid assessments against the grantor pursuant to this Declaration in excess of the amount therein set forth. 

 ARTICLE IX

LIENS

Section 1.    Basis and Procedure. Lost Creek Homeowners Association is incorporated as a nonprofit corporation and is subject to Wisconsin statutes governing such corporations, including Wis. Stat. § 779.70, which governs maintenance liens by nonprofit corporations. When this statute is applied in conjunction with non-conflicting, applicable language contained in the Declaration, the lawful lien process is as follows:

c.   If the Association properly files a lien, it may then bring an action against the Owner personally obligated to pay the same or foreclose the lien against the Property in like manner as a mortgage of real property. The Association may bid in the Property at foreclosure sale, and acquire and hold, lease, mortgage and convey the same. 

 Section 2.    Subordination. The lien of the assessments provided for herein shall be subordinate to the lien of any first mortgage. Sale or transfer of any Property shall not release the assessment lien. However, the sale or transfer of any Property pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessment(s) as to payments which become due prior to such sale or transfer. No sale or transfer pursuant to foreclosure or proceedings in lieu thereof shall relieve such Property from liability from any assessments thereafter becoming due from the lien thereof. 

 Section 3.    Attorneys Fees and Costs. In the event the Association retains an attorney to collect any sums due hereunder, the Association shall be entitled to collect, and to make a part of its lien, actual attorney fees and costs of collection incurred by the Association in connection therewith.

 ARTICLE IX

JOINT OWNERSHIP

Membership may be held in the name of more than one person or corporation. In the event ownership is held by more than one person or corporation, all of the joint owners shall be entitled collectively to only one vote in the management of the affairs of the Association and said vote may not be divided between multiple Owners. 

 ARTICLE X

AMENDMENT 

Section 1.    Amendment. These Bylaws may be amended as follows:

 The Board of Directors, by majority vote, approves recommendation of proposed amendments to these Bylaws. At the next annual membership meeting, or a duly called Special Meeting of the Members, the proposed changes will be voted on

by the Members present or through their proxy. A two-thirds (⅔) vote is required to approve the amendments; or

 

Any amendments adopted by any procedure listed in this section shall be effective immediately. 

ARTICLE XI

PERSONAL APPLICATION 

All Members, tenants of such Members, employees of Members and tenants, or any other persons that in any manner use the Property or any part thereof shall be subject to these Bylaws and the Declaration. All agreements, decisions and determinations lawfully made by the Association shall be deemed to be binding on all Members.

ARTICLE XII

CONDITIONS, COVENANTS AND RESTRICTIONS 

Section 1.    Comprehensive List. A comprehensive listing of all conditions, covenants and restrictions may be found in the Declaration at Part B.  

 ARTICLE XIII

CONSTRUCTION 

Should any of the provisions of these Bylaws herein be judged unenforceable at law or in equity, the remaining provisions shall remain in full force and effect. 

Declaration of Conditions, Covenants and Restrictions* 

 Part A  PREAMBLE AND ASSOCIATION MATTERS

WHEREAS, Developer is the owner of real property located in Dane County, Wisconsin and further described in Exhibit "A" attached hereto and incorporated herein by reference, and desires to build thereon a planned development with housing units and shared common property (the "Development"); and

WHEREAS, Developer desires to provide for the maintenance and enhancement of property values, amenities, environment and opportunities in said Development, and for the preservation of the properties and improvements thereon, as well as for the preservation of said Development's distinctive style, and to prevent the erection, or maintenance of poorly designed or constructed improvements; and

WHEREAS, to the above end Developer desires to subject said real property, to the covenants, restrictions, easements, charges and liens hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof; and

WHEREAS, Developer has thought it desirable for efficient maintenance and preservation of the values of said Development to create an association to which should be delegated and assigned the powers administering and enforcing the covenants and restrictions, and collecting and disbursing the assessments and charges as hereinafter or in the future created or established, and promoting the health, welfare and recreation of the Development's residents; and

WHEREAS, Developer has incorporated Lost Creek Homeowners Association, Inc., a non-profit, non-stock corporation, under the laws of the State of Wisconsin (the "Association"); and

NOW, THEREFORE, the Developer declares that the real property described in Exhibit "A" will and shall be sold, transferred and conveyed subject to the easements, covenants, restrictions, assessments, charges and liens hereinafter set forth.

A-1)     Definitions.      

A) "Association" shall mean and refer to Lost Creek Homeowners Association, Inc., and its successors and assigns.

B) "Developer" shall mean and refer to Don Simon Homes, Inc., a Wisconsin Corporation, or its successor and assigns.

C) "Property" or "Properties" shall mean and refer to the lands described in Exhibit "A", now owned by Developer, but which Developer in the future intends to convey to purchasers who shall thereupon become members of the Association, and any additions thereto designated by the Developer or the Association in any subsequent amendment to this Declaration. Developer reserves the right to subject to the terms of this Declaration, without the consent of the Association or any other Owner, Occupant or their mortgagees, additional lands by written instrument specifically referring to this Declaration and describing the additional lands subject to this Declaration. The term Lot shall refer to a platted lot which is a part of the Property.

D) "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of the fee simple title to any of the Properties described in Exhibit "A". A purchaser of any of said Properties by land contract shall be referred to as "Owner" instead of the land contract vendor.

E) "Occupant" shall mean and refer to the occupant of any of the Properties who shall either be an Owner or a lessee who holds a written lease having an initial term of twelve months or more.

F) "Book of Regulations" shall mean and refer to a document containing the resolutions setting forth the rules, regulations and policies established and adopted by the Board of Directors of the Association, or its members, as the case may be, as the same may be from time to time adopted, recorded and/or amended.

A-2)     Membership and Voting Rights.

A) Members. Each Owner of a Property shall be a member of the Association. Persons or entities, including a land contract vendor, who hold an interest merely as security for the performance of an obligation, shall not be members of the Association. Membership shall be appurtenant to and may not be separated from any Property which is subject to assessment by the Association. Tenants of Properties who are not Occupants shall not be members of the Association. To the extent that Developer owns any property, Developer shall be a member of the Association until such ownership terminates.

B) Voting Rights.

1) Each member shall be entitled to one vote for each Property owned except as set forth in 2(8)(2) below.

2) When there is more than one Owner of a Property, said Owners shall only be entitled to one collective vote for each Property. There shall be no fractional votes or voting. When there is more than one Owner of any Property, the vote attributable to such ownership must be cast unanimously by all the Owners of that Property, or it shall not be considered for any purpose.  

C) Proxies. Any Member may vote by proxy. All proxies shall be in writing and signed by the Owner, or in cases where there is more than one Owner, by all Owners of the Property.

 A-3)     Covenant for Maintenance and Assessments.

A) Creation of the Lien and Personal Obligation of Assessments. The Developer hereby covenants, and each Owner by acceptance of the deed thereof, whether or not it shall be so expressed in such deed, is deemed to covenant and agree to pay to the Association the following:

 1) Annual general assessments or charges.

 2) Such special assessments as may from time to time be imposed as hereinafter provided.

Assessments may be imposed for any of the following purposes:

1) To pay for the costs and expenses of publishing a periodic newsletter or other, similar publication and a neighborhood directory and updates thereof;

2) To defray the reasonable expenses of running the Association;

3) To pay legal and other fees, charges and expenses incurred in connection with enforcing this Declaration and exercising and enforcing the rights, powers and duties of the Architectural Control Committee.

4) To pay the costs of maintaining any fences or landscaping which are the Association's obligation to maintain under the terms of this Declaration, the Plat or otherwise

All such assessments, together with interest thereon and the actual costs of collection thereof as hereinafter provided, shall be a charge on the land and a continuing lien upon the Property against which each assessment is made. Each such assessment, together with interest thereon and the cost of collection thereof, shall also be the personal obligation of the Owner at the time when the assessment is made. Notwithstanding the foregoing, Developer shall not pay assessments on Property owned by Developer until such time as Developer has turned over control of the Architectural Control Committee to the Association under Section C-8, below.

 B) General Assessments.

1) Purpose of Assessment. Accrued general assessments levied by the Association shall be used exclusively for the purposes stated above.

2) Basis for Assessment. Subject to the above limitation,  each Property which has been certified for occupancy by the appropriate governmental entity shall be assessed at a uniform rate to the Owner. That is, each Lot shall be assessed the same amount as any other Lot, regardless of size or use.

3) Maximum Annual Assessment. For each calendar year in which the Association is in existence, the Board of Directors shall set the annual assessment by majority vote of the Directors. The Board shall set the date(s) such assessment shall become due.  In the event a majority cannot be obtained for fixing the assessment, the prior year assessment shall be deemed adopted. The assessment may be changed by a majority vote of the Members who are voting in person or by proxy at a general meeting or a special meeting duly called for this purpose.   

C) Date of Commencement of Annual Assessments. Developer shall not impose or collect annual assessments against or from any Owner not the Developer who has taken title to a Lot unless and until Developer has conveyed 90% of all of the Lots in the subdivision to Owners who are not the Developer. At that time, annual assessments shall commence on the first day of the first complete calendar month following Developer's conveyance to an Owner who is not the Developer of Lots constituting 90% of all Lots in the subdivision. After assessments have commenced, the initial annual assessment on any assessable property shall be prorated on a calendar year basis to the date of conveyance of a Property to an Owner who is not the Developer.

D) Effect of Nonpayment of Assessments and Remedies of the Association. Any assessment not paid within thirty (30) days after its due date shall bear interest from its due date at a percentage rate, to be set by the Board for each assessment, but in any case no greater than 18% 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 in like manner as a mortgage of real property. The Association may bid in the Property at foreclosure sale, and acquire and hold, lease, mortgage and convey the same. If the Association has provided for collection of assessment in installments, upon default in the payment of any one or more installments, the Association may accelerate payment and declare the entire balance of said assessment due and payable in full. In the event the Association retains an attorney to collect any sums due hereunder, the Association shall be entitled to collect, and to make a part of its lien, actual attorney fees and costs of collection incurred by the Association in connection therewith.

 E) Subordination of the 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 Property shall not release the assessment lien. However, the sale or transfer of any Property pursuant to mortgage foreclosure or any proceeding in lieu thereof, shall extinguish the lien of such assessment(s) as to payments which become due prior to such sale or transfer. No sale or transfer pursuant to foreclosure or proceedings in lieu thereof shall relieve such Property from liability from any assessments thereafter becoming due or from the lien thereof.

 F) Exempt Property. The following Property subject to this Declaration shall be exempted from the assessments, charge and lien created herein:

 1) All Properties exempted from taxation by state or local government upon the terms and to the extent of such legal exemption.

 Notwithstanding any provisions herein, no land or improvements devoted to dwelling use shall be exempt from said assessments, charges or liens.

 G) Annual Budget. By a majority vote of the Directors, the Board shall adopt an annual budget for the subsequent fiscal year, which shall provide for allocation of expenses in such a manner that the obligations imposed by the Declaration and all amendments to this Declaration will be met.

H) Joint and Several Liability of Grantor and Grantee. Upon a voluntary conveyance, the grantee of a Property shall be jointly and severally liable with the grantor for all unpaid assessments against the grantor as provided in this Declaration up to the time of conveyance, without prejudice to the grantee's right to recover from the grantor the amount paid by the grantee therefor. However, any such grantee shall be entitled to a statement from the Association setting forth the amount of such unpaid assessment and any such grantee shall not be liable for, nor shall the Property conveyed be subject to a lien for, any unpaid assessments against the grantor pursuant to this Declaration in excess of the amount therein set forth.

 Part B CONDITIONS, COVENANTS AND RESTRICTIONS

B-1) Land Use and Building Type. The Property shall be used for residential purposes, including gardens. No building shall be erected, altered, placed or permitted to remain on any Lot other than one detached single family dwelling unit to exceed two and one-half stories in height. Each dwelling until shall have a private garage of not less than two (2) nor more than three (3) cars attached to or located in a lower level of the dwelling unit. The size of a dwelling unit to be constructed on specific Lots shall not be less than the minimum size set forth on Exhibit “B,” attached hereto and incorporated herein by reference.

B-2) Architectural Control. No building shall be erected, placed or altered on any Lot until the construction plans and specifications and a plan showing the location of the structure have been approved by a majority of the Architectural Control Committee (the “Committee”) as to quality of workmanship and material, harmony of external design with existing structures, and as to location with respect to topography and finish grade elevation. There shall be a variation in building elevations on adjacent Lots. Approval shall be provided below.

B-3) Dwelling and Landscape. The landscaping to be installed on all Lots must meet or exceed the minimum number of points set forth in Exhibit “C,” attached hereto and incorporated herein by reference, for foundation planting and cumulative total landscaping points, including foundation planting points. The point value for all landscaping shall be calculated using the schedule attached hereto as Exhibit “D,” and incorporated herein by reference. The structure and the minimum landscaping requirements shall be completed within nine (9) months after issuance of a building permit. All driveways shall be of concrete and shall be installed within nine (9) months after substantial completion of structure. No outbuilding or accessory building of any nature shall be erected on any Lot. No above-ground swimming pools shall be permitted. All Lot areas not used as a building site, or under cultivation as a family garden, shall be planted with grass seed or shall be sodded, and shall be maintained on a regular season basis, including mowing of a frequency of not less than once every 14 days during the lawn growing season. Maintenance of all improvements on a Lot shall be performed by the Owner. Maintenance shall include, but not be limited to, water, pruning and routine fertilizing and mulching of all plantings and plant beds, replacement of dead, dying and/or diseased trees and shrubs, prompt removal of weeds, trash and debris from plant beds and areas adjacent to shrubs and trees so as to keep said landscaping in a healthy, attractive and neat condition.

If the Owner of any Lot, after reasonable notice, fails or refuses to install landscaping as described herein, or maintain it as required above, the Committee, or the Association, as the case may be, through its duly authorized agents or employees, shall have the right to enter upon said Lot at reasonable hours to perform said landscaping and/or maintenance. The costs of the materials and labor to perform such landscaping and/or maintenance shall be assessed against said Lot in accordance with the terms of Part A above, which assessment may be foreclosed or collected in accordance with the terms hereof or collected as provided herein.

B-4) Vehicle and/or Equipment Storage. No inoperable, dilapidated or junk vehicles of any nature may be kept upon any part of the Property except in a fully enclosed garage. The exterior storage of boats, trailers, travel trailers, campers, motorcycles, recreational vehicles, automobiles or trucks (collectively, without limitation by reason of enumeration “Equipment”), of any nature is prohibited whether or not screened from public view. No area for the purpose of loading or unloading for a period not to exceed twelve (12) hours is permitted. No commercial vehicles, including trucks, semi-trailers or trailers, may be stored or parked overnight on or in front of any Lot except in an enclosed garage.

B-5) Construction on Adjoining Lots. Nothing contained herein shall be construed to prohibit the construction of a residential dwelling or private garage partially on one Lot and partially on an adjoining Lot without regard to side yards between adjoining Lots, provided that all such Lots are owned by the same person or persons.

B-6) Easements/Drainage. No structure, planting, or other materials shall be placed or permitted to remain within any easement of record which may damage or interfere with the installation and maintenance of utilities, or which may change the direction or flow of drainage channels in the easement, or which may obstruct or retard the flow of water through drainage channels in the easement. The easement area of each Lot and all improvements in it shall be maintained continuously by the owner of the Lot, except for those improvements for which a public authority or utility company is responsible. No drainage swale shall be graded or obstructed so as to impede the flow of water from other Lots or outlots through such swale.

B-7) Nuisances. No noxious or offensive activity shall be carried on upon any Lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood or which may have detrimental effect on the value of other Lots and/or improvements.

B-8) Temporary Structures. No structure of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding shall be used on any Lot at any time as a residence, either temporarily or permanently.

B-9) Signs. No sign of any kind shall be displayed to the public view on any Lot except, as approved by the Architectural Control Committee. Signs without regard to size used by the Developer, to advertise the property during the construction and sales period or to identify the subdivision and/or its Developer, are permitted without such approval so long as Developer owns any part of the Property.

B-10) Animals. No animals, livestock or poultry of any kind shall be raised, bred or kept on any lot, except that dogs, cats or other household pets may be kept, provided that they are not kept, bred or maintained for any commercial purpose. No animal enclosure, house, pen or fences or similar device shall be placed on any Lot without the prior written approval of the Committee which may require special landscaping and screening.

B-11) Garage and Refuse Disposal. No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste shall not be kept except in sanitary containers. No incinerators shall be permitted. Other equipment for the storage or disposal of such material shall be kept in a clean and sanitary condition. No trash, building materials, debris, leaves, lawn clippings, rocks or earth shall be placed in any Lot.

B-12) Sight Distance At Intersection. No fence, wall, hedge or shrub planting which obstructs sight lines at elevations between two (2) and six (6) feet above the roadways shall be placed or permitted to remain on any corner Lot within the triangular area formed by the street property lines and a line connecting them at points 25 feet from the intersection of the street lines, or in the case of a rounded property corner, from the intersection of the street property lines extended. The same sight-line limitations shall apply on any Lot within ten (10) feet from the intersection of a street property line with the edge of a driveway or alley pavement. No tree shall be permitted to remain within such distances of such intersections unless the foliage line is maintained at sufficient height to prevent obstruction of such sight lines.

B-13) Fences. No fences over four (4’) feet in height from ground to uppermost part of fence shall ever be permitted (with the exception of compliance with local ordinances with respect to enclosing private swimming pool areas) unless such fences are approved by the Committee or its designated approved authority. All fences shall be constructed of wood and shall be first approved in terms of material and location by the Committee following the standards and criteria outlined on Exhibit “E” attached hereto. Fencing is permitted with the prior written approval of the Committee which may require the installation and maintenance of landscape materials for screening and aesthetic purposes.

B-14) Outbuildings. No outbuilding or accessory building of any nature shall be erected on any Lot.

B-15) Antennae/Wind Powered Electric Generators. No wind powered electric generators, exterior television, radio receiving or transmission antennae, satellite signal receiving station or dish shall be placed or maintained upon any portion of a Lot without prior written approval of the committee.

B-16) Firewood Storage. No firewood or wood pile shall be kept outside a structure unless it is neatly stacked, placed on a non-street side yard and screened from street view by plantings or a fence approved by the Committee.

B-17) Solar Collectors. No active solar collector or apparatus may be installed on any Lot unless such installation is first approved in writing by the Committee which shall consider the aesthetic and sun reflection effects on neighboring structures. Solar collectors or apparatus installed flat against or parallel to the plane of the roof shall be preferred.

B-18) Lighting. Exterior lighting installed on any Lot shall either be indirect or of such controlled focus and intensity that such lighting will not disturb the residents of adjacent Lots.

B-19) Mailboxes. Mailboxes serving each home in the neighborhood shall be provided by the Developer and shall be replaced if necessary, with a mailbox identical in all respects with the originally provided.

Part C ARCHITECTURAL  CONTROL COMMITTEE

C-1)     Membership.   The Committee is composed of the following persons, who are also the initial Directors of the Association:

David P. Simon                                  2800 RoyaI Avenue Madison, Wisconsin 53713

Jeff N. Simon                                     2800 RoyaI Avenue Madison, Wisconsin 53713

Karen Simon Dreyer                    2800 RoyaI Avenue Madison, Wisconsin 53713

A majority of the Committee may designate a representative to act for it. The initial designated representative shall be David P. Simon. In the event of the death or resignation of any member of the Committee, the remaining members shall have full authority to designate a successor.

The Committee appointed hereunder shall serve for the time period specified in paragraph C-8, below. Any Committee member may resign prior to  said  date.  Such resignation shall be effective upon receipt. If a resignation shall occur, prior to turning over control of the Committee, then the remaining members of the Committee may appoint a replacement.

 C-2) Architectural Control.  No  structure,  whether  residence,  accessory  building, tennis court, swimming pool, antenna (whether located on a structure or on a Lot), flag pole, wall, landscaping or other improvements, including exterior colors and materials to be  applied to said improvements, shall be constructed, maintained or performed upon any Lot and no alteration or repainting of the exterior of a structure shall be made unless complete plans, specifications and plot plans therefore shall have been submitted to and approved in writing by a majority of the Committee. Approval shall also be required for location of improvements with respect to topography and finish grade elevation.  Said  plans,  specifications and plot plans shall show the exterior design, height, building materials and color scheme  thereof,  the location of the structure plotted horizontally and vertically, the location and size of driveways, the plans for required landscaping, and the grading plan.  A copy of  such plan specifications and plot plans as finally approved shall be deposited with the Committee.

 C-3) Plan Review. The Committee shall review said plans and specifications as  to quality of workmanship and materials, harmony of external design with existing or proposed structures and as to location with respect to topography and finish grade elevation.

 C-4) Procedure. Neither the members of the Committee nor its  designated representative shall be entitled to any compensation for services performed pursuant to this covenant for the initial approval of a residential structure. Thereafter, said Committee may charge a "request for action" or "approval" fee not to exceed $50.00 for each such request or approval. The Committee's approval  or disapproval, as  required in these Covenants, shall be in writing. In the event the Committee fails to approve or disapprove  within thirty (30)  days  after plans and specifications or any other matters requiring approval have been submitted to it, approval shall not be required and the related covenants shall be deemed to have been complied with fully.

C-5. Records. Until such time as a replacement  Committee  is designated,  all plans, applications and requests shall be submitted to said Committee at the following address: Lost Creek Architectural Control Committee, c/o David P. Simon, 2800 Royal Avenue, Madison, Wisconsin 53713.

C-6) Committee Liability. Neither the Committee  nor any member thereof  shall  be  liable for damages to any person submitting request for approval or to any owner of any Lot by reason of any action, failure to act, approval, disapproval or failure to approve or disapprove with regard to such requests.

C-7) Variance. The Committee shall have the power and absolute  discretion  to authorize a variance from any of the requirements of these Restrictions and Covenants if it  finds that the strict application thereof would, in its sole discretion and opinion, result in difficulties or undue hardship to the Lot owner or in the event the architecture of the proposed Lot improvement is such as to present in its opinion a particularly pleasing appearance compatible with other houses in the development.

C-8) Successor  to  Committee. Developer may turn  over control of the Committee  to the Members of the Association at any time, and shall turn over control when Developer no longer has any ownership interest in the Property. At such time as Developer  turns over control, the Association's Board of Directors shall designate not less than  three (3) or more than five (5) Members of the Association to serve and act as the Committee for all purposes hereunder.

Part D SIGN AND FENCE EASEMENTS

 D-1) Sign Easement. Developer hereby imposes upon that portion of the Property described and depicted in Exhibit "F," attached hereto and incorporated herein by reference, a perpetual, non-exclusive easement for signs (the "Signs") advertising the name of the subdivision and for landscaping within the sign easement area (the "Sign Easement"). Until such time as control of the Committee shall be turned over to the Association (the "Turnover Date") Developer shall be responsible for maintenance of the Sign Easement, which maintenance shall be limited to repair or replacement of the sign faces, structures and any landscaping associated with the signs. When a Lot on which a Sign Easement is located has been conveyed by Developer to a third party purchaser, said third party purchaser shall be responsible for lawn mowing and maintenance of all other landscaping whether within the Sign Easement area or not. Commencing on the Turnover Date, the Association shall  be responsible for said maintenance, repair and replacement of the Signs and may assess  the cost thereof to the Members as permitted herein. The Sign Easement may include, at Developer's option, electric utility services to the Signs for the purposes  of illuminating them and an easement is hereby reserved for such purpose at a location to be specified by the Developer. The payment of electric utility charges incurred in illuminating the Signs shall be a maintenance expense, governed by the terms of this Section D-1. At the present time, Developer intends to locate the Signs on Lots 11 and 12.

D-2) Fence Easement.  Developer hereby reserves  and imposes upon that portion of the Property described and depicted in Exhibit "F," a perpetual, non-exclusive easement for a fence, the purpose of which is to provide screening to certain lots along Marsh Road and to generally enhance the appearance of the subdivision development. Developer shall be responsible for the initial construction, repair and maintenance of  the fence, but commencing on the Turnover Date, the Association shall assume such responsibility and shall maintain the fence in a good, neat, clean and attractive condition. The cost of all maintenance to the fence, including repair or replacement, by the Association, may be assessed against the Members in accordance with the terms of this Agreement. Construction of the fence to be placed upon the easement described in this section D-2 is subject to Developer obtaining the consent of Koch Pipelines, Inc., or its successors or assigns, to the extent such consent is necessary  or required under that certain easement recorded in the office of the Dane County Register of Deed on October 24, 1988, in Vol. 12108 of Records, page 36, as Document No. 2336626, or under any applicable law, rule or regulation relating thereto.

D-3) Amendments  to  Easements. At any time after the Turnover Date, the Association  may  amend the  terms  of  the  easements  herein created  by  a 3/4th  vote of the Members of the Association.  That is, more than 3/4th of the Members of the Association must vote to approve the amendment to the easements herein created. 

Part E GENERAL PROVISIONS

 E-1) Term. This Declaration shall run with the Property and  Common Property,  and shall be binding on Developer and all Members and their successors and assigns, and an persons claiming under them for a period of twenty-five (25) years  from the  date recorded, after which time said Declaration shall be extended automatically for successive periods of five (5) years each unless an instrument signed by a majority of the Members agreeing to change said Covenants in whole or in part or to terminate the same.

E-2) Enforcement. The Architectural Committee or any Owner shall have the right to enforce by any proceedings at law or in equity all restrictions, conditions  and  covenants created or imposed herein, against any person or persons violating or attempting to violate any covenant, by any action to either restrain violation or to recover damages, or both including reasonable attorney fees.  Failure to enforce any covenant, condition or restriction herein shall in no event be deemed a waiver of the right to do so thereafter. In the event of a violation of this Declaration the Committee shall have the right to assess and collect from the violating  party a fine for such violation equal to the greater of (i) the actual damages suffered  on  account of the violation, or (ii) the sum of $100.00 per day for each day the violation remains outstanding plus (iii) all costs of collection and enforcement, including actual attorney fees.

E-3) Severability. Invalidation of any one of  these covenants  by  judgment  or court order shall in no way affect any of the other provisions which shall remain in full force and affect.

E-4) Amendment.  At any time until Developer  conveys all of the Lots which comprise the entire Property, Developer may modify, amend, alter and grant variances to  this  Declaration without the consent of any Member, Owner or Occupant or any other party, including the Association. In addition, Developer may elect to  make  this  Declaration  applicable to any subsequent Phase of the Development, without the consent or approval of the Association, its  Board  of Directors or  any of  its Members or  their Mortgagees or any Owner or  Occupant,  except  that  no  such  Amendment  may  increase  percentage  share  of  a Member's  assessment  under  Paragraph A-4, above.

Exhibits

Exhibit A - The Property

Exhibit B - Minimum Dwelling Unit Size

Exhibit C - Minimum Points and Total Points for Landscaping

Exhibit D - Landscaping Elements

Exhibit E - Fence Details

Exhibit F - Sign and Fence Easement Description

Lost Creek Homeowners Association - Shed Regulations

As state in the Lost Creek Homeowners Association (LCHA) Covenants, "No outbuilding shall be erected, altered, placed or permitted to remain on any log, unless construction plans and specifications and the location of the proposed structure have been approved in writing by the Declarant (LCHA)." The LCHA Shed Regulations are provided to describe the standards by which the LCHA Architectural Committee will consider homeowner shed applications prior to making recommendation to the LCHA Board.

A site plan showing location, size, and materials of the proposed shed along with dimensions to the existing house and property lines shall be submitted to the Lost Creek Homeowners Association Architectural Review Board for approval.

Disclaimer:

The decision to approve or refuse approval of a proposed improvement shall be exercised byt the Declarant (LCHA) through the Declarant to protect the values, character and residental quality of Lost Creek. No responsibility, liability, or obligation shall be assumed by or imposed upon the Declarant by virtue of the authority granted to thte Declarant in this section, or as a result of any act or failure to act by the Declarant with respect to any proposed improvement.