This Declaration of Restrictions for Shepards Pond subdivision ( Declaration ) is made this day of, 2007, by MTM LLC, (the Developer ).

Transcription

1 DECLARATION OF RESTRICTIONS Document Number Document Title DECLARATION OF RESTRICTIONS FOR SHEPARDS POND SUBDIVISION This Declaration of Restrictions for Shepards Pond subdivision ( Declaration ) is made this day of, 2007, by MTM LLC, (the Developer ). Recording Area Name and Return Address RECITALS WHEREAS, Developer owns the land located in the City of Oak Creek, Milwaukee County, Wisconsin, described on the attached Exhibit A (the Property ), and Todd Frey Whitnall Edge Cr. #A Franklin, WI Parcel Identification Number (PIN) WHEREAS, the lands described on Exhibit A are the subject of a Plat for a Subdivision to be known as The Sanctuary at Poplar Creek (the Subdivision ); WHEREAS, Developer desires to subject the lots within the Subdivision (except dedicated streets and roads), to the conditions, restrictions, covenants, reservations and easements hereinafter set forth, for the benefit of the Subdivision as a whole and for the benefit of each Lot Owner within the Subdivision. DECLARATION NOW, THEREFORE, Developer hereby declares that the Property and the Subdivision shall be used, held, transferred, sold and conveyed subject to the conditions, restrictions, covenants, reservations and easements hereinafter set forth, which shall inure to the benefit of the Owner(s) of each Lot, shall pass with the conveyance of each Lot as covenants running with the land, and shall apply to and bind all successors, assigns, users and owners in interest. DECLARATION OF RESTRICTIONS PAGE 1 OF 17

2 ARTICLE 1 GENERAL PROVISIONS 1.1 Definitions. The following definitions shall be applicable to this Declaration. (a) Association shall mean The Sanctuary at Poplar Creek Association, Inc., a nonprofit, non-stock homeowners association, which shall be created pursuant to this Declaration and the laws of the State of Wisconsin. (b) Board shall mean the governing body of the Association. (c) Committee shall mean the Architectural Control Committee as hereafter described. (d) Common Area(s) shall mean any outlot or other area within the Subdivision which is not a lot as identified in this Declaration or on the Subdivision plat, and includes, without limitation, all such areas and improvements thereto which may be conveyed by the Developer to the Association and any dedicated street or other dedicated area for which the City of New Berlin has not assumed responsibility for maintenance. Fee title to all Common Areas shall vest in the Association upon its formation by the execution and filing of Articles of Incorporation, and no further conveyancing document shall be necessary to vest title to the Common Areas in the Association. Notwithstanding the foregoing, the Developer may convey Outlot 4 to the Owner of Lot 20, provided that the Owner of Lot 20, and its successors and assigns, shall be restricted as to use of Outlot 4 as provided for in this Declaration. Common Areas shall also include structures (stone silo, brick walls, brick signage and walking paths) now existing, or hereafter erected, on any outlot. (e) Declaration shall mean this Declaration of Restrictions for the Sanctuary at Poplar Creek subdivision. (f) (g) Developer shall mean Poplar Creek Development, LLC. Dwelling shall mean a building intended for use for human habitation. (h) Improvements shall mean any and all of the following, regardless of whether permanent or temporary in nature or usage: buildings, outbuildings, sheds, exterior lighting or electric fixtures, antennae including dish receivers and towers, pools, pet kennels, houses or runs, screened or other type of porches, patios, or gazebos, plantings and fences. Improvement and Structure shall be synonymous terms for purposes of this Declaration. (i) Landscaping shall mean the initial landscaping installed on a Lot following construction and shall include, without limitation, all vegetation, plantings, trees, shrubs, and ground cover. DECLARATION OF RESTRICTIONS PAGE 2 OF 17

3 (j) Lot shall mean a platted lot within the Subdivision identifiable by reference to a lot number, regardless of whether such property is currently platted or platted at some future time. The term Lot does not include any other Common Area or Outlot. (k) Owner shall mean the person or persons, including any business organization, holding a legal or equitable ownership interest in fee simple title to a Lot, regardless of the type of tenancy or estate. (l) Register of Deeds shall mean the Office of the Register of Deeds for Waukesha County, Wisconsin. (m) Subdivision shall mean the Property and Improvements constructed thereon, all of which are intended to be subject to this Declaration upon the platting thereof consistent with the provisions of Chapter 236 of the Wisconsin Statutes, but excluding lands now or hereafter dedicated to the City. (n) Submissions shall mean the required plans, drawings, specifications and other information, as more particularly described at Section 2.3, and as required to be submitted by an Owner to the Committee for approval prior to construction of any Improvements on a Lot. 1.2 General Purpose. The general purpose of this Declaration is to help assure that the Subdivision will become and remain an attractive community; to preserve and maintain its natural beauty; to ensure the most appropriate development and improvement of each Lot; to guard against the erection of poorly designed, proportioned or constructed structures; to achieve harmonious use of materials and color schemes; and to encourage and secure the erection of attractive residential structures on each Lot in the Subdivision. No Improvements or Landscaping shall be erected placed, altered or planted on any Lot until the Submissions therefor have been approved in writing by the Committee. ARTICLE 2 RESTRICTIONS 2.1 Use Restrictions. Each Lot, and the Improvements located thereon, shall be used exclusively for single-family residential purposes. 2.2 Minimum Dwelling Sizes and Garages. The living area within any three or fewer bedroom Dwelling measured from the outside of the exterior walls, including utility rooms, but exclusive of basements whether or not exposed), open porches, garages, breezeways and other similar additions, shall not be less than as hereafter specified: (a) For a one-story home, not less than 2,400 square feet. (b) For a 1-1/2 story home, not less than 1,800 square feet on the first floor, and a minimum of 1,000 square feet on the second floor. DECLARATION OF RESTRICTIONS PAGE 3 OF 17

4 (c) and second floors. For a two story home, not less than 1,500 square feet on each of the first (d) For a split level or bi-level home, not less than 1,600 square feet on the first floor and a minimum of 1,000 square feet on the second floor. For single-story Dwelling an additional 200 square feet is required for each bedroom in excess of three bedrooms. For a multi-story Dwelling an additional 150 square feet is required for each bedroom in excess of three bedrooms. For a single-story Dwelling in which the basement is less that 600 square feet, an additional 250 square feet is living area is required. For a multi-story Dwelling in which the basement is less that 600 square feet, an additional 250 square feet in living area is required. 2.3 Garages. All Dwellings shall have garages, which shall be constructed contemporaneously with the Dwelling and must be attached to the Dwelling. Garages must have a minimum capacity for three cars. 2.4 Improvements. All Improvements constructed within the Subdivision shall be subject to the following restrictions: (a) There shall be no above-ground swimming pools within the Subdivision. (b) All Dwellings and garages must be completed within one year of commencement of construction. (c) Accessory buildings are permitted in the Subdivision, however the exterior elevation must match the existing dwelling and shall be subject to compliance with the regulations and requirements of the City of New Berlin. (d) Only one Dwelling may be constructed on any Lot. (e) No Lot may be used for storage or long-term parking (in excess of seven days within any thirty (30) day period) of any recreational vehicle, including, without limitation, boats, campers trailers and motor homes, unless such vehicle is located completely within the garage. (f) All driveways shall be paved within one year of substantial completion of construction of a Dwelling. (g) All landscaping of a Lot, including the seeding or sodding of a lawn, shall be completed no later than one (1) year after substantial completion of construction. (h) No satellite dish antennas in excess of one (1) meter in diameter are permitted in the Subdivision. (i) Minimum setbacks from any abutting street right of way shall be 50 feet. DECLARATION OF RESTRICTIONS PAGE 4 OF 17

5 Side yard setbacks shall be a minimum of 25 feet, unless the side yard adjoins a street in which case the side yard setback from such street shall be a minimum 50 feet. Minimum side yard setback for a side entry garage shall be 30 feet. Rear yard setbacks shall be a minimum of 50 feet. Eaves, steps, overhangs, attached porches, patios and other appurtenances shall be included when calculating setback compliance. All building setbacks shall be measured from the property line to the edge of the roof overhang. (j) Notwithstanding the setback requirements specified in the preceding subsection, the orientation and precise location of each Dwelling, as well as all other Improvements on the Lot, must be approved in writing by the Architectural Control Committee prior to construction, it being intended that the Committee may, in its discretion, impose greater setback requirements than those specified above in order to achieve the aesthetic appearance of the Subdivision which the Committee deems advisable. The Committee may permit Improvements (other than the Dwelling and garage) to be constructed and located on a Lot closer to the lot lines than the setback requirements described above, provided such permission must be in writing to be effective and may be granted by the Committee, if at all, only after notice to all Owners of adjacent Lots, advising of the proposed Improvement and affording such Owners a reasonable opportunity to be heard with respect to the proposed Improvement. (k) Reference shall be made to the Master Grading Plan when constructing any improvements on a Lot. The City of New Berlin has the right to enforce compliance with the Master Grading Plan. (l) Prior to occupancy, each Lot shall have a permanent mailbox, newspaper unit and an electric lamppost with photoelectric controls purchased from Developer at the time of closing of the Lot, all of which shall be installed at the Owner s expense. The cost of the package will not exceed $1, The lamppost shall be located on the Owner s lot in an area beyond the street right of way. The mail/newspaper units shall be installed in locations as directed by the United States Postal Service. From and after installation, the Owner shall properly maintain the lamppost and mailbox/newspaper unit. If an Owner fails to so properly maintain, the Committee shall be entitled, but not obligated, to perform or have the required maintenance performed and the cost of thereof assessed against the appropriate Owner. (m) A Lot Owner must obtain permission from the Committee prior to cutting down any tree in excess of six inches (6 ) in diameter, as measured one foot (1 ) above the ground level. (n) Each lot owner shall be responsible for compliance with the Master Grading Plan as established by the City of New Berlin. Each Lot owner must strictly adhere to and finish his or her lot in accordance with the Master Site Grading Plan or any amendment thereto approved by the City Engineer. The developer and/or the City, or their agents, shall have the right to enter upon any Lot, at any time, for the purpose of inspection, maintenance, correction or any drainage condition, and the Lot owner is responsible for the cost of same. The maximum slope of the ground abutting a dwelling shall be 3 horizontal to 1 vertical. (o) Any Lot Owner who causes or allows any Improvement to be DECLARATION OF RESTRICTIONS PAGE 5 OF 17

6 constructed, installed, placed or altered on the Lot without prior permission of the Architectural Control Committee may be required to remove such Improvement in its entirety at the Owner s expense. (p) Should the City determine at a future date that this subdivision or portions that are to be serviced by public sanitary sewer, then each parcel so affected shall connect to the public sanitary sewer within twelve (12) months of notice of availability by the City of Utility and pay all fees and charges in accordance with the rules in effect at the time of construction of such public system. (q) Private water supply well: Each owner of each parcel shall be solely responsible to construct a private water supply well in accordance with all Local, State and Federal rules and requirements in effect at the time of construction. Should the City determine at a future date that this subdivision or portions thereof be serviced by public water supply system, then each parcel so affected shall connect to the public water main within twelve (12) months of notice of availability by the City of Utility and pay all fees and charges in accordance with the rules in effect at the time of construction of such public system. 2.5 Septic Fields and Easements. All Septic Improvements, Septic drainage fields, easements for septic piping and access to septic fields, shall be subject to the following restrictions: (a) The septic drainage fields for Lots 12, 13 and 14 will be located on Outlot 1, with an easement across Outlot 1 between Lots 6 and 7 for the necessary piping to reach said Lots, as shown on the Plat of the Subdivision. The Owner benefited by such septic field and piping shall be responsible for its maintenance, including any repair or replacement of the same and the restoration of the surface of Outlot 1, and/or the easement area reserved for piping, to its condition immediately prior to such repair or replacement. Owners of the lots benefiting by the septic fields on Outlot 1 shall have an additional easement for access to the owner s respective field for purposes of septic repair and/or repair across the portions of Outlot 1 described as follows: the fifteen feet (15 ) immediately to the east of Lot 3, fifteen feet (15 ) along the western side of Outlot 1. The described access easements are shown on the plat of the subdivision. The portion of the easement areas to be actually used for access shall be restricted, as much as practicable, to grassy areas to avoid destruction of trees and other vegetation. The owner accessing the owner s respective septic field shall be responsible for repair and restoration of Outlot 1 caused by the owner or by others hired by said owner. Other than restoration after work on the septic fields and/or piping, the surface of Outlot 1 will be maintained by the Association. (b) Lot 13 shall have a fifteen foot (15 ) easement across the western boundary of Lot 12, and Lot 14 shall have a fifteen foot (15 ) easement across the western boundary of Lots 12 and 13 for installation and maintenance of necessary piping to reach the septic drainage fields located on Outlot 1 which benefit Lots 13 and 14, as shown on the Plat of the Subdivision. The Owner benefited by such piping shall be responsible for its maintenance, DECLARATION OF RESTRICTIONS PAGE 6 OF 17

7 including any repair or replacement of the same and the restoration of the surface of Lots 12 and/or 13 to their condition immediately prior to such repair or replacement. Other than restoration after work on the septic fields and/or piping, the surface of the Lots subject to the easement under this paragraph will be maintained by the Owner of the affected Lot. (c) Lot 11 shall have an easement over the east twenty-five feet (25 ) of Lot 10, and in the area between Lot 10 and the septic field benefiting Lot 11 for purposes of installation and maintenance of necessary piping to reach the septic drainage field located on Outlot 1 which benefits Lot 11, as shown on the Plat of the Subdivision. The Owner of Lot 11 shall be responsible for its maintenance of both the easement area and the septic field, including any repair or replacement of the same and the restoration of the surface of Outlot 1 to its condition immediately prior to such repair or replacement. Other than restoration after work on the septic fields and/or piping, the surface of Lot 10 will be maintained by the Owner of Lot 10. (d) Lot 10 shall have an easement across Outlot 1 in the area between Lot 10 and the septic field benefiting Lot 10 for purposes of installation and maintenance of necessary piping to reach the septic drainage field located on Outlot 1 which benefits Lot 10, as shown on the Plat of the Subdivision. The Owner of Lot 10 shall be responsible for maintenance of both the easement area and the septic field, including any repair or replacement of the same and the restoration of the surface of Outlot 1 to its condition immediately prior to such repair or replacement. Other than restoration after work on the septic fields and/or piping, the surface of Outlot 1 will be maintained by the Association. (e) Lot 5 shall have an easement across Outlot 1 to access a septic field benefiting Lot 5 located on Outlot 1 immediately to the west of Lots 5 and 6. The Owner of Lot 5 shall be responsible for maintenance of both the easement area and the septic field, including any repair or replacement of the same and the restoration of the surface of Outlot 1 to its condition immediately prior to such repair or replacement. Other than restoration after work on the septic fields and/or piping, the surface of Outlot 1 will be maintained by the Association. 2.6 Drainage Easements. Drainage easements shall be created between lots 9 and 10, between lots 18 and 19, and in the southern thirty feet (30 ) of lots 1, 2, 3, 4, and the eastern 30 of lot 5 as shown on the Plat of the Subdivision. 2.7 Outlot Maintenance and Use. Outlots shall be maintained and restricted as to use as follows: (a) Outlots 1, 3 and 4 shall be planted with prairie-type grass, except where trees may be planted or standing. (b) The Association shall maintain the signage and plantings at the boulevard entrance to the Subdivision from Calhoun Road. (c) All areas that are behind or on any side of any existing lot (lot 1 through DECLARATION OF RESTRICTIONS PAGE 7 OF 17

8 19) are designated as No Touch Zones. Said areas are to be left in their natural state with no cutting, trimming or removal of any items. (d) Walking paths shall be filled with wood chips/gravel, to be maintained and restored with fresh wood chips/gravel as necessary. (e) All wooded areas on any and all outlots shall be left in their natural state, with no cutting, trimming or removal allowed, except that any dead or diseased trees that may cause a safety risk along the walking paths shall be cut down and removed. (f) The Homeowners Association shall inspect at least annually the Poplar Creek for any obstructions that prohibit the natural flow of the creek. If any obstructions are found they shall be removed. (g) The walking paths on the portion of Outlot 5 north of Poplar Creek may be used by Poplar Creek Elementary School (New Berlin School District), per the Conservation Easement document. The use is valid as long as the School District maintains a valid insurance policy. The Subdivision shall not be required to maintain the described area north of Poplar Creek. The portion of Outlot 5 located south of Poplar Creek shall not be disturbed and no maintenance by the Subdivision shall be required. (h) Pond Maintenance: The Homeowner Association is responsible for the maintenance and repair for all detention ponds. Inspections shall be done on a yearly basis or after significant rainfall. All members of the Homeowners Association shall receive a Wet Detention Pond Operation and Maintenance Manual. (i) Silo and barn foundation: The Homeowners Association shall inspect the silo and barn foundations annually for any loose stones and mortar or any other item that may become a safety hazard and shall also keep in force a Liability Insurance Policy on all common areas and outlots. 2.8 Environmental Corridor Restrictions. All areas located within the environmental corridors and/or within wetland areas, as identified on the Plat of the Subdivision, shall be left undisturbed by the Developer and by subsequent owners of lots in the Subdivision. No trees or other vegetation may be cut or trimmed within the environmental corridors and/or within wetland areas, nor may there be any plantings added to said areas. No structures may be erected in the environmental corridors and/or within wetland areas. ARTICLE 3 ARCHITECTURAL CONTROL 3.1 Composition. The Committee is hereby established for the purpose of providing and monitoring architectural controls consistent with the purpose of this Declaration. The DECLARATION OF RESTRICTIONS PAGE 8 OF 17

9 Committee shall be composed of not less than three members. The initial three Committee members named by Developer are: Robert Yunker Michael Dilworth Todd Frey During such time as Developer continues to own any Lots in the Subdivision, Developer shall appoint all Committee members. Upon Developer s sale of the final Lot in the Subdivision owned by Developer, or five years after Plat is approved, whichever first occurs, all remaining Committee members as appointed by Developer shall tender their resignation. Thereafter, a meeting shall be held at which all Owners shall select three Committee members in replacement of persons appointed by Developer. At such meeting, the ownership of each Lot shall be vested with one vote and there shall be no cumulative voting. Each Committee member other that those appointed by Developer shall serve a two-year term. 3.2 Procedure. An Owner desiring to construct or place any Improvement upon a Lot shall deliver Plan Submissions to the Committee for its consideration. No application for a building permit may be made prior to Committee approval of the Submissions. The Committee s approval or rejection of any Submissions shall be in a writing signed by the chair of the Committee. All completed Improvements shall be constructed in substantial accordance with the approved Submissions. Any material change must be resubmitted to the Committee for its consideration and written approval prior to construction. 3.3 Submissions to Committee. Submissions delivered to the Committee shall include: construction drawings, plans and specifications as prepared by an architect (or otherwise qualified draftsperson) showing dimensions, composition and color of all exterior materials, plot plans showing location of the particular Improvement, proposed finish grade elevations, topography, drives, a landscaping plan prepared by a professional landscape architect showing all proposed plantings and such other plans and specifications or additional detail as the Committee may reasonably request. The Committee shall have the power to excuse the Owner from including any of the foregoing in a Submission if the Committee determines that such aspect has no bearing on the Improvement. 3.4 Standards. The Committee shall have the right to reject any Submissions which, in the sole discretion of a majority of Committee members (i) are not in conformity with this Declaration, (ii) are undesirable for aesthetic reasons, or (iii) are not in harmony with surrounding improvements. By way of example and not limitation, general Committee standards and criteria for approval shall include material composition and quality, exterior design, appearance and color, coordination with other existing or proposed improvements, location with respect to topography and existing surroundings, setbacks, finish grade elevations, access, drainage and planting, and general aesthetics. In addition to these general standards, specific Committee guidelines shall include: (a) Windows, shutters, window casings and trim features shall be consistent throughout a Dwelling. Where any of the foregoing is used on the front of a Dwelling, windows DECLARATION OF RESTRICTIONS PAGE 9 OF 17

10 on the sides and rear of the Dwelling shall be similarly constructed throughout. All exteriors shall consist of all natural building materials, such as stone, brick, hardiplank (cement board) or wood. Soffits, facia and gutters may be constructed with aluminum. (b) No aluminum or vinyl siding is permitted in the Subdivision (except soffits, facia and gutters). (c) The number of different exterior colors and materials used for exterior walls shall be kept to a minimum. It is recommended that no more than two colors be allowed on exterior walls and trim with one additional color for accent items such as shutters and doors. Lot Owners shall obtain Committee approval of the color(s) used on the exterior of any structure on the a Lot as part of the architectural approval. (d) All yard grades and stakeout surveys shall be reviewed by the Committee prior to applying for a Building Permit with the City. (e) All finish roof construction shall be cedar shake, tiles or slate or such other natural materials or dimensional asphalt shingles as may approved by the Committee. (f) All driveways and driveway approaches shall be paved within one (1) year after substantial completion of construction. Each dwelling unit shall have a separate driveway. Driveways shall be located at least five (5) feet from all side and rear lot lines. Driveways shall be constructed so that the first 15; off the edge of pavement has a slope of no more than 4%. The remainder of the driveway from the right-of-way line to a point 20 feet from the house can be constructed at a maximum slope of 10%. The driveway slope from that point to the dwelling shall not exceed 4%. 3.5 Occupancy. No Dwelling shall be occupied unless the Submissions therefor have been approved by the Committee and the Dwelling has been constructed consistent with the approved Submissions for such Dwelling. 3.6 Building Permits. All lot Owners shall obtain a building permit from the City of New Berlin prior to commencement of construction of a residence on the lot and shall follow an erosion control plan approved, permitted, installed and inspected by the city of New Berlin prior to any earthwork on the lot. ARTICLE 4 OWNER MAINTENANCE Each Owner shall maintain such Owner s Lot at the Owner s sole expense. All buildings and landscaping shall be kept in good repair and a clean condition, including, without limitation, the mowing of lawns, trimming of plants, repainting and repair of structures, removal of snow and ice from drive and walk areas, repair and/or replacement of drive and walk surfaces and such DECLARATION OF RESTRICTIONS PAGE 10 OF 17

11 other measures so as to maintain a clean and orderly environment within the Subdivision in accordance with the general purpose of this Declaration. No Lot shall be used or maintained as a dumping ground for rubbish. Trash, garbage or other waste shall not be kept on a Lot, except in sanitary containers with no undue accumulation permitted. If any public sidewalks are extended through the Subdivision, each Lot Owner shall keep the portion of such walkways adjacent to the Owner s Lot, free of snow and ice, at the Owner s expense. Until construction of a residence on a Lot, the Owner of a vacant Lot shall keep the Lot maintained by cutting grass and/or weeds if the same exceeds the maximum height set by City of New Berlin ordinances. If construction is not commenced within one (1) year after closing on the purchase of a Lot, the Lot Owner shall plant the Lot with a prairie-type grass. If the Developer conveys Outlot 4 to the Owner of Lot 20, the Owner of Lot 20, and its successors and assigns shall be responsible for maintenance of Outlot 4 as provided for in this Declaration and the Association shall have no maintenance obligations thereafter as to Outlot 4 but shall have the right to enforce the restrictions and obligations of this Declaration with regard to Outlot 4. ARTICLE 5 MISCELLANEOUS 5.1 Term and Amendment. This Declaration and all terms and conditions hereof shall constitute covenants and restrictions running with the Lands described on Exhibit A forever, and shall be binding upon all persons claiming an interest in a Lot. This Declaration may be amended solely by the Developer until eighty percent (80%) of the Lots have been conveyed by the Developer. Thereafter, this Declaration may be amended by the recording of an instrument executed by the Owners of at least seventy-five percent (75%) of the Lots subject hereto, one of which Owners must be Developer. In ascertaining the number of Owners assenting to any amendment, an Owner will be entitled to one vote for each Lot owned. Oulots shall not be considered a Lot for purposes of voting. The Developer s rights as to amendment of the Declaration shall cease upon the conveyance of the last Lot owned by the Developer. The Developer shall have the right to assign, by written assignment which assignment is recorded in the Office of the Register of Deeds for Waukesha County, Wisconsin, any and all rights specifically reserved to Developer under this Declaration. 5.2 Enforcement. Except as specifically stated in this Section 4.2, the Committee shall have the sole right to enforce this Declaration or any Committee order by proceeding at law or in equity against any person or persons including, without limitation, initiation of an action to enjoin any commenced construction of nonapproved Improvements on a Lot to require the Owner to remove same at the Owner s sole expense. The Committee may also levy a daily fine against any Lot Owner for commencement of nonapproved improvements, or for an Owner s failure to observe maintenance obligations or covenants imposed by this Declaration. Prior to the levy of any such fine, the Owner shall be given written notice by the Committee of the alleged violation and ten (10) days in which to cure such violation. Thereafter, and provided the Owner has failed to cure, or in the event of violations or other matters not susceptible to cure in such time the Owner has failed to commence and diligently continue to completion such cure, the Committee may assess against such Owner a daily fine not to exceed One Hundred Dollars ($100.00) per day which shall be retroactive to the date of the Committee s notice to the Lot Owner. Any Owner aggrieved with respect to an occurrence on another Lot which is alleged to DECLARATION OF RESTRICTIONS PAGE 11 OF 17

12 violate this Declaration, shall have the right to petition the Committee to redress such violation. From the date of filing such petition, the Committee shall have thirty (30) days in which to consider whether to seek to enjoin the alleged violation, recover damages from the alleged violator, or both. If the Committee denies the petition or otherwise fails to act thereon to the satisfaction of the petitioner, upon the expiration of such thirty (30) day period, the petitioner shall thereafter have the right to seek to enforce this Declaration by proceedings at law or in equity against the person or persons alleged to violate the Declaration, and to seek either to have such violation enjoined or to recover damages, or both. The foregoing right is subject to such Owner commencing proceedings within sixty (60) days from the earlier of the date of the Committee s denial of the petition or the expiration of the Committee s (30) day consideration period. Damages collected by the Committee, if any, shall be distributed, first to pay for the cost of enforcement, and second, to the Owners of Lots damaged by the violation pro rata. The Committee shall also have the right, on its own initiative, to seek to enforce any provision of this Declaration and shall be entitled to recover its costs of enforcement, including attorneys fees and costs of litigation as incurred in such enforcement. Each remedy set forth in this Declaration, shall be in addition to all other rights and remedies available at law or in equity. All remedies shall be cumulative and the Committee s election of one remedy shall not constitute a waiver of any other. Any forbearance or failure of the Committee to exercise any right or remedy for any violation shall not be a waiver of such right or remedy under any circumstances unless a written waiver shall be obtained from the Committee. 5.3 Developer s Reserved Rights. Developer hereby reserves the following rights: (a) The right to grant and convey easements to the City or to any public or private utility company over, through, or across the portions of the Subdivision, provided that no such grant shall unduly restrict the buildable area on any Lot. Such easements may include, without limitation, gas, electric, cable television, or any and all other utilities, including installations for purposes of facilitating drainage of storm or surface water. Each such easement may be granted by Developer in its own name without the consent and approval of any Owner until such time as Developer has conveyed legal title to all Lots platted or to be platted in the Subdivision. (b) The right to reserve as a common area one or more portions of the lands described on Exhibit A. Such common area, to the extent so reserved by Developer, shall be conveyed to an association composed of all owners of Lots in the Subdivision hereafter created by Developer to hold title to such common area and to administer same. By this reservation, the Developer shall be under no obligation to, and makes no representation that, it will in fact designate any of the land on Exhibit A as common area. But, to the extent such designation is made, each Owner of a Lot in the Subdivision shall become a member of the association and shall be subject to assessment for the maintenance of such common areas. (c) The right to convey Outlot 4 to the Owner of Lot 20, provided that the Owner of Lot 20 shall thereafter be obligated to maintain Outlot 4, and shall be restricted as to the use of Outlot 4, as provided for in this Declaration. 5.4 Disclaimer. Notwithstanding any provision of this Declaration, Developer shall DECLARATION OF RESTRICTIONS PAGE 12 OF 17

13 be under no obligation to develop or plat any portion of Lands described on Exhibit A not platted as of the date of the recordation of this Declaration. Developer hereby reserves the right to remove from the provisions of this Declaration, any such unplatted lands as described on Exhibit A by recording an instrument to that effect in the Office of the Register of Deeds for Waukesha County. 5.5 Acceptance. Each Owner, by acceptance of a deed to a Lot, shall be deemed to have approved and consented to be bound by this Declaration and all terms, conditions and covenants as contained herein. 5.6 Severability. Invalidation of any one of these covenants, conditions or restrictions by judgment or court order shall in no way affect any other provisions, which other provisions shall remain in full force and effect. 5.7 Nonforfeiture. Any violation of these restrictions shall not result in a forfeiture or reversion of title to any Lot in Subdivision. ARTICLE 6 HOMEOWNERS ASSOCIATION Poplar Creek Owner s Association shall be created for the purpose of managing the affairs of the Subdivision, and for the purpose of managing, controlling, and maintaining common areas, common improvements (barn foundation, silo, drainage ponds and pathways) and common easements. Said Association shall be established as follows: 6.1 The Association shall be established as a non-profit, non-stock Wisconsin corporation. Each Lot Owner shall be a member of the Association, and each Owner shall have 1/19 th ownership in the Association and shall be entitled to (1) vote at meetings of the Association. Membership shall pass with title to each Lot. The Association shall receive an initial payment of $ to be paid by each new Lot owner at the closing of the initial purchase of the Lot. Each subsequent purchaser of a Lot (whether or not improved) after the initial owners shall pay a transfer fee to the Association at time of closing of $ The Owners of Lots 20 and 21 shall not be members of the Association, nor shall they be subject to the annual fees imposed by the Association on Lots within the Subdivision. The Owners of Lots 20 and 21 shall be subject to the restrictions and requirements of the City of New Berlin, but shall not otherwise be subject to the restrictions imposed by this Declaration as to the structures which may be erected on the Lots, or require the approval by the Association for structures to be erected on Lots 20 and 21. Restrictions as to the cutting of trees on Lots in the subdivision and disturbance of environmentally protected areas in the Subdivision shall, however, apply to Lots 20 and The Annual assessment shall be set initially at $ and the Committee shall have the authority to increase yearly assessment to insure a healthy and safe environment for the Owners, and for the operation of the Association. DECLARATION OF RESTRICTIONS PAGE 13 OF 17

14 6.4 The Association shall be governed by a Board consisting of not less than three (3) members, who shall act by majority vote. The Board shall be solely responsible for the activities of the Association. So long as fifty percent (50%) or more of the Lots in the Subdivision are owned by Developer, all members of the Board shall be appointed by Developer. So long as twenty percent (20%) or more, but less than fifty percent (50%) of the Lots in the Subdivision are owned by Developer, two members of the Board shall be appointed by Developer and one member shall be elected as provided herein. So long as any vacant Lot in the Subdivision is owned by Developer, one member of the Board shall be appointed by Developer and two members shall be elected as provided herein. After all of the Lots in the Subdivision are sold by Developer, each member of the Board shall be a Lot Owner. 6.5 The term of office of the initial members of the Board shall commence upon the execution of this Declaration and shall continue until the Developer has sold more than fifty percent (50%) of the Lots in the subdivision. Within thirty (30) days thereafter, the Association shall hold a meeting and the Lot Owners other than the Developer shall elect one member to the Board by vote of the majority of the Lot Owners present, and one member of the Board appointed by the Developer shall resign. The Lot Owner elected shall serve until the first annual meeting of the Lot Owners. If the Lot Owner shall resign, or be unable to act or cease to be qualified to be a member, a successor shall be elected in the same manner. Within thirty (30) days after the Developer has sold more than eighty percent (80%) of the Lots in the subdivision, the Association shall hold a meeting and the Lot Owners other than the Developer shall elect a second member to the Board by vote of the majority of the Lot Owners present, and one member of the Board appointed by the Developer shall resign. The Lot Owner elected shall serve until the first annual meeting of the Lot Owners. If Board member resigns, or is unable to act, a successor shall be elected in the same manner. Within 30 days after all Lots in the Subdivision have been sold by the Developer, the first annual meeting of the Lot Owners shall be held. At that meeting, all members of the Board shall resign, and the owners shall elect a new Board. Each Lot Owner shall be entitled to vote in person or by written proxy in such election. The person receiving the highest number of votes shall be elected for a term of 3 years, the person receiving the 2 nd highest number of votes shall be elected for a term of 2 years and the person receiving the 3 rd highest number of votes shall be elected for a term of 1 year. If any member of the Board shall die, resign, be unable to act, or ceases to be a qualified to be a member, the unexpired term of such member shall be filled by a special election (or appointed by the Board). In the event of a tie for the second or third highest number of votes, the outcome shall be determined by lot. 6.6 All meetings of the Board and the Association shall be open to all Owners and held upon not less that 7 days prior written notice to all of the Owners. Two members of the Board shall constitute a quorum. Actions of the Board shall be taken by majority vote. 6.7 In addition to the powers and duties, the Association, through Board, is authorized to promulgate necessary operating procedures for the conduct for the Association and the Board s affairs. It is also empowered to enter into contracts and to employ agents, attorneys, or others for the purpose of discharging its duties and responsibilities hereunder. It is further empowered to levy and collect assessments in accordance with the provisions below. DECLARATION OF RESTRICTIONS PAGE 14 OF 17

15 6.8 The Association, through the governing Board, shall levy and collect assessments in accordance with the following: (1) Each Lot, including unsold Lots owned by Developer, shall be subject to a general charge or assessment on an annual basis or when needed, for the purpose of paying the Association s existing or anticipated expenses, which assessments shall constitute a lien on the Lot, and the personal obligation of the Owner of the Lot, until paid. Each Lot shall be responsible for an equal share of said expenses. Said expenses shall include, but not be limited to, taxes (if an Outlot is taxed separately by the city), insurance, repairs, replacements and additions to the improvements made to the Common Areas, the cost of labor, equipment, materials, management and supervision thereof, and all costs of the Association reasonably incurred in conducting its affairs and enforcing the provisions of this section. Assessment must be approved by the Board at a meeting duly convened for that purpose. (2) Written notice of an assessment shall be given to each Lot Owner subject to the assessment, by personally delivery, by regular mail or by certified mail. (3) Assessments shall become due and payable thirty (30) days after the mailing or personal delivery of the notice. (4) Assessments not paid when due shall bear interest at the rate of twelve percent (12%) per annum until paid, and such unpaid assessment and the interest thereon shall constitute a continuing lien against the Lot against which it was assessed until it has been paid in full. The assessment and interest thereon shall also be the personal obligation of the owner of the Lot against which the assessment was made. (5) The Association or the Board may record a document with the Register of Deeds in Waukesha County, Wisconsin, giving notice of a lien for any such unpaid assessment and, upon payment or satisfaction of the amount due, record a document releasing any such lien. The failure to file any such notice shall not impair the validity of the lien. All recording and attorneys fees relating to any such documents shall be borne by the affected Lot owner. (6) Upon application by any Lot Owner, any member of the Board may, without calling a meeting of the Board, provide to such owner a statement in recordable form certifying that the signer is a duly elected member of the Board and stating whether there are any unpaid assessments or other amounts due to the Association, including the amount due. Such statement shall be binding upon the Association and shall be conclusive evidence to any party relying thereon of the payment of any and all outstanding assessments or other amounts to the Association. (7) Any lien for assessment may be foreclosed by a suit brought by the Board, acting on behalf of the Association, in a like manner as the foreclosure of a mortgage on real property. 6.9 Members of the Board shall not be liable for any action taken by them in good faith in discharging their duties hereunder, even if such action involved a mistake in judgment or DECLARATION OF RESTRICTIONS PAGE 15 OF 17

16 negligence by the Board member or agents or employees of the Board. The Association shall indemnify and hold the Board members harmless from and against all costs or expenses, including reasonable attorney s fees, in connection with any suit or other action relating to the performance of their duties hereunder Failure of the Association or the Board to enforce any provisions contained in this Declaration shall not be deemed to be a waiver of the right to do so, or acquiescence in any subsequent violation The Association has the responsibility of properly landscaping and maintaining all common areas in the Subdivision including barn foundation, silo, pathways, drainage ponds and entrance signage, and has the further responsibility of properly maintaining all Outlots in their natural condition. No pathways, cutting, removal or dumping of any items is permitted in any Outlot, with the exception of Outlot 1 on which pathways covered with wood chips may be created, except in any environmental corridors or wetland. Outlot 4 is to be maintained with a prairie type grass and shall be cut if it exceeds the maximum height set by the City of New Berlin ordinances. If the Association does not properly landscape or maintain any Common Areas or Outlots, or properly maintain the entrance walls, signage, silo, barn foundation, landscaping or properly maintain drainage ponds areas in the Subdivision in an aesthetically pleasing and reasonable condition pursuant to all property use and development approvals in plans approved for the use of the property under City of New Berlin ordinances, the Planning and Zoning Administrator or such other person as designated by the Common Council may cause written notice of such maintenance defects to be served upon the Association, which notice shall require all such defects to be remedied within 30 days of the date of such notice. If such defects are not timely cured after such notice, the Common Council may determine that the City shall obtain the cure of such defect and upon such determination shall schedule a hearing before the Common Council to determine whether the service in question shall be performed by the City or its contractor at the cost of the Owner s Association pursuant to Section 66.60(16) of the Wisconsin Statutes. Notice of such hearing shall be published as a Class 1 notice under Chapter 985 of the Wisconsin Statutes at least twenty (20) days before the hearing and a copy of the notice shall be mailed at least ten (10) days prior to the hearing to the Owner s Association. Upon such determination that the Owner s Association shall be responsible for such remedial costs, the Common council shall specify the time within which such charges shall be paid and if not timely paid, that such special charges shall become a lien upon the Lots in the Subdivision, on a prorata basis, pursuant to Section 66.60(16), Wis. Stats. DECLARATION OF RESTRICTIONS PAGE 16 OF 17

17 IN WITNESS WHEREOF, we have hereunto set our hands and seals this day of, POPLAR CREEK DEVELOPMENT, LLC, Developer Robert Yunker Member Michael J. Dilworth Member and Registered Agent Todd Frey Managing Member State of Wisconsin ) ) ss. County ) ACKNOWLEDGEMENT Personally came before me this day of, 2007, the above-named Robert Yunker, Michael J. Dilworth and Todd Frey, to me known to be the persons who executed the foregoing instrument and acknowledged the same. This instrument was drafted by: Attorney Mark C. Young State Bar No Trapp & Hartman, S.C West Capitol Drive Brookfield, WI (262) Notary Public, State of Wisconsin My commission expires: DECLARATION OF RESTRICTIONS PAGE 17 OF 17