HomeMy WebLinkAboutPUD 92-02; Tuscany Village; Planned Unit Development - Non-Residential (PUD) (4)r
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BYLAWS
N
OP
TUSCANY VILLAGE
OWNERS' ASSOCIATION, INC.
Table of Contents
Article Page
1 Definitions 1
2 Functions of the Association 1
2.1 Purpose l
2.2 Assessments 1
3 Membership 1
3.1 Members 1
3.2 Transfer of Membership 2
3.3 Notice of Transfer 2
4 Meetings of Members 2
4.1 Place of Meetings 2
4.2 Annual (Regular) Meetings 3
4.3 Special Meetings 3
4.4 Notice of Meetings 4
4.5 Consent To, Approval Of or Attendance At
Member's Meetings 5
4.6 Action by Written Bal 6
4.7 Quorum 6
5 Voting Rights 7
5.1 Members' Right To Vote 7
5.2 Classes of Voting Members 8
5.3 Voting Rights; Required Vote; Cumulative
Voting 8
5.4 Proxies 8
6 Directors; Management 9
6.1 General Powers 9
6.2 Specific Powers 10
6.3 Duties of a Director of the Association ... 12
6.4 Contracts 13
6.5 Limitations on Powers of the Board of
Directors 14
6.6 Management Contracts and Easements 15
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6.7 Delegation of Powers 15
6.8 Number 15
6.9 Requirement that Each Condominium be
Represented on the Board of Directors 15
6.10 Nomination 16
6.11 Election and Term of Office 16
6.12 Vacancies 16
6.13 Place of Meetings 17
6.14 Organizational Meetings; Notice 17
6.15 Other Regular Meetings; Notice 18
6.16 Special Meetings; Notice 18
6.17 Conference Calls 19
6.18 Adjournment. 19
6.19 Quorum; Required Vote 19
6.20 Open Meetings; Executive Sessions 19
6.21 Action By Unanimous Written Consent 20
6.22 Provisional and Substitute Directors 20
7 Officers 21
7.1 Officers 21
7.2 Appointment 21
7.3 Removal and Resignation 21
7.4 Vacancies 21
7.5 President 21
7.6 Vice President 22
7.7 Secretary 22
7.8 Chief Financial Officer 22
8 Committees 23
9 Association Records and Reports; Inspection ... 23
9.1 Records 23
9.2 Inspection of Books and Records 24
9.3 Certification and Inspection of Bylaws .... 24
9.4 Checks, Drafts, Etc 24
9.5 Contracts, Etc.; How Executed 24
9.6 Annual Budget 24
9.7 Initial Financial Report 25
9.8 Annual Report 25
9.9 Statement of Policies and Practices 26
9.10 Operating and Reserve Accounts 27
10 Corporate Seal 27
11 Amendments to Bylaws 27
11.1 By Members 27
11.2 Modification of Voting Rights 28
11.3 No Amendment By Board of Directors 28
11.4 Record of Amendments 28
12 Amendments to Articles 28
12.1 Amendments 28
12.2 Record of Amendments 28
13 Supremacy of Declaration 28
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BYLAWS
OP
TUSCANY VILLAGE OWNERS' ASSOCIATION, INC.
ARTICLE 1 - Definitions
The terms used herein shall have the same meaning as
given to said terms in the TUSCANY VILLAGE CONDOMINIUMS
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS recorded
, 19 , File/Page No. - ,
Official Records of San Diego County, California (hereinafter
referred to as "Declaration"), as the same may from time to time
be amended.
ARTICLE 2 - Functions of the Association
2.1 Purpose. The Association shall act as a
"management body" for the management, preservation, maintenance,
architectural control and improvement of the Condominiums as such
is defined by the TUSCANY VILLAGE CONDOMINIUM PLAN recorded
,19 , File/Page No. - ,
Official Records of San Diego County, California (hereinafter
referred to as the "Condo Plan"). Anything to the contrary not
withstanding, the Association may exercise the powers granted to
a nonprofit mutual benefit corporation as enumerated in Section
7140 of the California Corporations Code, Section 374 of the
California Code of Civil Procedure and section 1350 and following
of the California Civil Code, otherwise referred to as the Davis-
Stirling Common Interest Development Act. The Association is
subject to the limitations, covenants, conditions, restrictions,
terms and provisions of the Declaration.
2.2 Assessments. Pursuant to the Article of the
Declaration entitled "Assessments," it shall be the duty of the
Board of Directors to fix, alter, collect and enforce assessments
upon Owners. Each Owner shall be liable to pay to the
Association each assessment levied upon such Owner's Condominium
under the provisions of the Declaration.
ARTICLE 3 - Membership
3.1 Members. The Association shall have one class of
Members only, and the property and other rights, interests and
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privileges of each Member in good standing shall be equal, except
that there shall be two classes of Members for the purpose of
voting as set forth in Article 5 hereof. Each Owner shall hold
only one membership in the Association. No certificate of
membership, identity card or other documents evidencing
membership in the Association shall be issued except by
resolution of the Board of Directors and in conformance with
California Corporations Code sections 7313 and 7314.
3.2 Transfer of Membership. Each Owner shall be and
become a Member of the Association contemporaneously with its
acquisition of fee title to a Condominium (whether such
acquisition occurs by (i) conveyance of a Condominium by
Declarant, (ii) voluntary transfer, assignment of conveyance of a
Condominium, (iii) involuntary transfer of a Condominium,
including without limitation by reason of the death of an Owner,
or (iv) foreclosure by trustee's power of sale or by judicial
process of a deed of trust or other lien on a Condominium),
without necessity of documentation or other action of any kind by
any person.
3.2.1 When two or more persons hold joint title
to a Condominium, no matter in what form, they shall constitute a
single Member. Prior to the conveyance of a Condominium by
Declarant, Declarant shall be the Member as to such condominium.
Transfer of membership in the Association shall be only by the
means specified in paragraph 3.2 hereinabove.
3.3 Notice of Transfer. It shall be the responsibility
of the Members to notify the Association of any proposed tranfer
in Ownership of a Condominium. The Association shall, within a
reasonable time after the Association is first notified of a
proposed transfer and before the membership is transferred on the
books and records of the Association, provide to the transferee,
at its cost, copies of the Association's Articles of
Incorporation; Bylaws; Covenants, Conditions and Restrictions;
and any rules or regulations enacted by the Board of Director's
of the Association, as well as, copies of any other nonprivledged
documents it is then required by law to provide to a prospective
transferee.
ARTICLE 4 - Meetings of Members
4.1 Place of Meetings. All meetings of Members shall
be held within in the Project or at such other place in San Diego
County, California, in reasonable proximity to the Project, as
may be designated for that purpose from time to time by the Board
of Directors. Unless unusual conditions exist, as determined
solely by the Board of Directors, Members' meetings shall not be
held outside of said county.
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4.2 Annual (Regular) Meetings. A regular meeting of
Members shall be held annually. The first annual meeting of
Members shall be held on such date and at such time as shall be
designated by the Board of Directors, which date shall be within
45 days after the sale and conveyance by Declarant of a majority
of the Condominiums in the Project, but in no event later than
six months after the sale and conveyance by Declarant of the
first Condominium in the Project. Subsequent annual meetings of
Members shall be held on the anniversary of the first annual
meeting of Members, unless such date falls on a legal holiday or
Sunday, in which case the annual meeting of Members may be
scheduled on any day within a one week period preceeding or
following the anniversary date, and shall be held at such time
and in such place as may be designated by the Board of Directors.
4.2.1 At the annual meeting, Members shall elect
a Board of Directors, consider reports of the affairs of the
Association and transact such other business as may properly be
brought before the Meeting.
4.3 Special Meetings. Special meetings of the
Members, for any lawful purpose or purposes whatsoever, shall be
called by the Board of Directors upon (i) the vote for such a
meeting by a majority of the Board of Directors or (ii) receipt
by the Board of Directors of a written request for such a meeting
signed by any member of the Association.
4.3.1 Notwithstanding the provisions of Paragraph
4.4 hereinbelow to the contrary, if a special meeting of Members
is requested in writing by any Member and such request is
delivered by first-class, registered or certified mail to the
chairman of the Board of Directors, president, vice president or
secretary of the Association, it shall be the duty of the
officer(s) receiving such request to cause notice to be given to
all Members that a special meeting will be held at a time fixed
by the Board of Directors not less than 35 nor more than 90 days
after the receipt of the request; provided, however, if a special
meeting is called to enforce the obligations under a bond
obtained to secure completion of improvements in and to the Units
or Common area, pursuant to Section 2792.4 of Title 10 of the
California Administrative Code, such a meeting will be held at a
time fixed by the Board of Directors not less than 35 nor more
than 45 days after receipt of the request. If said notice is not
given by an officer of the Association within 20 days after
receipt of the request, the Member so requesting the special
meeting may fix the date and time of the meeting and give notice
thereof in the manner provided by this Bylaws. The date of any
meeting fixed by a Member as hereinabove provided shall be at
such time in the future as will permit adherence to the notice
requirements set forth in Paragraph 4.4 and following.
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4.4 Notice of Meetings. Written notice for meetings
called by the Board of Directors, whether annual or special,
shall be given to Members who are entitled to vote at such
meetings not less than ten days nor more than 90 days before the
date of such meeting; provided, however, that, if notice is given
by mail and the notice is not mailed by first-class, registered
or certified mail, notice shall be given not less than 20 days
before the meeting. Notice of any meeting of Members, whether
annual or special and whether called by the Board of Directors or
by Members entitled to call a meeting of Members, shall specify
the place, the date and time of the meeting and (i) in case of a
special meeting, the general nature of the business to be
transacted and that no other business may be transacted, or (ii)
in the case of an annual meeting, those matters which the Board
of Directors, at the time notice is given, intends to present for
action by the Members; provided, however, notwithstanding the
foregoing, any proper matter may be presented for action by the
Members at an annual meeting. The notice of any meeting at which
directors of the Association are to be elected shall include the
names of all those who are nominees for election to the Board of
Directors at the time notice is given to Members.
4.4.1 Notices of meetings, whether annual or
special, shall be given by the Board of Directors, or in the case
of neglect or refusal by the Board of Directors, by any officer,
director or Member. All notices shall be given either personally
or by mail or other means of written communication sent to the
address of each Member appearing on the books of the Association
or to the address supplied by such Member to the Association for
the purpose of receiving notice. A notice mailed or delivered as
part of a newsletter, magazine or other circular regularly sent
to Members shall constitute written notice when addressed and
mailed or delivered to the Member or, in the case of Members who
are residents of the same household and who have the same address
on the books of the Association, when addressed and mailed or
delivered to one of such Members, at the address appearing on the
books of the Association.
4.4.2 If any notice, report or statement
addressed to a Member at the address appearing on the books of
the Association is returned to the Association by the United
States Postal Service marked to indicate that the United States
Postal Service is unable to deliver the notice, report or
statement to the Member at such an address, all future notices,
reports or statements shall be deemed to have been duly given
without further mailing. The Association shall make available to
any Member upon written demand of the Member a copy of any such
notice, report or statement for a period of one year from the
date the same notice, report or statement was given to all other
Members.
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4.4.3 When a Members1 meeting, either annual or
special, is adjourned to another time or place, notice of the
adjourned meeting need not be given if the time and place thereof
are announced at the meeting which is adjourned. A meeting
adjourned for lack of quorum by those in attendance shall be set
for a date not less than five days nor more than thirty days from
the original meeting date. If (i) a time and place for the
adjourned meeting are not fixed by those in attendance at the
original meeting, (ii) for any reason a new date is fixed for the
adjourned meeting after adjournment, or (iii) the adjournment is
for a period of more than 30 days, notice of the time and place
of the adjourned meeting shall be given to Members in the manner
prescribed for annual meetings as set forth above. At such
adjourned meeting the Association may transact any business which
might have been transacted at the original meeting.
4.5 Consent To. Approval Of or Attendance At Member's
Meetings. The transactions of any meeting of Members, whether
annual or special, however called or noticed, shall be valid as
though having occurred at a meeting held after regular call and
notice if a quorum is present either in person or by proxy, and
if, either before or after the meeting, each Member entitled to
vote thereat not present in person or by proxy, signs a (i)
written consent to the holding of such meeting or (ii) written
approval of the minutes thereof. All such consents or approvals
shall be filed with the records of the Association or made part
of the minutes of the meeting. Attendance of a Member at a
meeting shall constitute a waiver of such Member's right to
notice of and presence at such meeting, except when the Member
objects at the beginning of the meeting to the transaction of any
business because the meeting is not a waiver of any right to
object to the consideration of matters required to be included in
the notice but not so included, if such objection is expressly
made at the meeting.
4.5.1 Neither the business to be transacted at
nor the purpose of any annual or special meeting of Members need
be specified in any written waiver of notice, consent to the
holding of such meeting, or approval of the minutes of such
meetings, unless such approval is sought (i) to remove any or all
directors of the Association, (ii) to reduce the number of
directors of the Association authorized in the Bylaws, (iii) to
fill vacancies on the Board of Directors, (iv) to approve
contracts entered into by the Association with members of the
Board of Directors or with any corporation, business or
association in which a member(s) of the Board of Directors holds
a material financial interest, (v) to amend the Articles, except
those certain amendments specified at Section 7812 of the
California Corporations Code, (vi) to wind up and dissolve the
Association, or (vii) to approve a plan of distribution and
liquidation of the Association assets, in which case, the general
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nature of the proposal must be stated in the request for waiver
of notice or consent.
4.6 Action by Written Ballot. Any action which may be
taken at any annual or special meeting of Members, except for an
election in which positions on the Board of Directors are to be
filled, may be taken without a meeting if the Association
distributes a written ballot to every Member entitled to vote on
the matter. Such ballot shall (i) set forth the proposed action,
(ii) indicate the number of responses needed to meet the quorum
requirement, (iii) provide an opportunity to specify approval or
disapproval of any proposal, (iv) state the percentage of
approvals necessary to pass the proposal, (v) provide that where
the Member solicited specifies a choice with respect to the
proposal the vote shall be cast in accordance therewith, (vi)
provide a reasonable time within which to return the ballot to
the Association, and (vii) specify the time by which the ballot
must be received in order to be counted.
4.6.1 Written ballots shall be solicited in a
manner consistent with the requirements of Paragraph 4.4.1.
Approval of an action by written ballot pursuant to this
paragraph shall be valid only when (i) the number of votes cast
by ballot, within the time period specified, equals or exceeds
the quorum required to be present at a meeting authorizing the
action, and (ii) the number of approvals equals or exceeds the
number of votes that would be required to approve at a meeting at
which the total number of votes cast was the same as the number
of votes cast by ballot. A validly exercised and cast written
ballot may not be revoked.
4.7 Quorum. The presence in person or by proxy of
Members entitled to exercise a majority of the voting power of
the Association shall constitute a quorum at all meetings of
Members for the transaction of business there at. Members
present at a duly called or held meeting at which a quorum is
present may continue to do business until adjournment,
notwithstanding the withdrawal of enough Members to leave less
than a quorum, provided any action taken (other than adjournment)
is approved by at least a majority of the number of Members
required to constitute a quorum.
4.7.1 In the absence of a quorum at the
commencement of any meeting of Members, the Members entitled to
vote there at, present in person or by proxy, shall have the
power, by the vote of a majority of the votes represented, to
adjourn the meeting to another time until the requisite number of
Members shall be present or represented, but no other business
may be transacted; provided, however, that any such adjournment
shall be to a date not less than five and not more than thirty
days from the date of the originally scheduled meeting.
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ARTICLE 5 - Voting Rights
5.1 Members' Right To Vote. Only persons who are
Members of the Association shall be entitled to vote at a meeting
of Members.
5.2 Classes of Voting Members. Members shall be
divided into two classes for the purpose of voting: Class A and
Class B. All Owners, except Declarant, shall be Class A
Member(s), and said Class A Member(s) shall be entitled to one
vote for each Condominium owned. The lone Class B Member shall
be Declarant, who shall be entitled to three votes for each
Condominium owned. Declarant's Class B voting status shall cease
and convert to Class A voting status when the total votes out-
standing in Class A equal the total votes outstanding in Class B.
5.2.1 If record title to a Condominium is held in
the name of more than one person, such persons shall collectively
constitute a single Member and there shall be only one vote
attributable to such Member (unless such Member is Declarant, in
which case such Member shall have the number of votes
attributable to Declarant as set forth in paragraph 5.2). Each
of such persons collectively constituting a single Member shall
otherwise be individually entitled to the benefits of membership
in the Association, including the right to serve on the Board of
Directors of the Association. The manner of casting and counting
votes of the Members shall be controlled by the provisions of
Paragraph 5.3 and following of these Bylaws.
5.3 Voting Rights; Required Vote; Cumulative Voting.
On all matters, including the election of directors of the
Association, a Member shall have the number of votes as set forth
in paragraph 5.2 hereinabove for each Condominium owned by said
Member.
5.3.1 When a quorum is present at any regular or
special meeting of the Members, the affirmative vote of a
majority of the Members of each voting class of the Association
present shall be required to transact any business there at,
except (i) where the item of business is the enforcement of the
obligations under a bond or other arrangement pursuant to the
Article of the Declaration entitled "Declarant's Security for its
Obligations" or (ii) as may be otherwise provided in these
Bylaws, the Articles or the Declaration, which requires the
super-majority vote specified in such Article of the Declarations
or the Bylaws or Articles of Incorporation.
5.3.2 Every Member entitled to vote at any
election of the Board of Directors may cumulate its votes and
give one candidate a number of votes equal to the number of
directors to be elected multiplied by the number of votes to
which it is entitled or distribute its votes on the same
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principle among as many candidates as it may desire. Cumulative
voting shall be required in all elections in which more than two
positions on the Board of Directors are to be filled.
Notwithstanding the foregoing, no Member shall be entitled to
cumulate votes for a candidate or candidates unless such
candidate's name or candidates' names have been placed in
nomination prior to the voting and the Member has given notice at
the meeting, prior to the voting, of the Member's intention to
cumulate votes. If any one Member has given such notice, all
Members may cumulate their votes for candidates in nomination.
The candidates receiving the highest number of votes up to the
number of directors to be elected shall be elected directors of
the Association.
5.3.3 For as along as (i) a majority of the
voting power of the Association resides in Declarant or (ii)
there are two outstanding classes of Members for the purpose of
voting as set forth in Article 5 hereof, Declarant shall not be
entitled to vote in the election of just one director.
5.3.4 If a membership stands of record in the
names of two or more persons, whether in fiduciaries, members of
a partnership, joint tenants, tenants in common, husband and wife
as community property, tenants by the entirety, persons entitled
to vote under a voting agreement or otherwise, or if two or more
persons (including proxies) have the same fiduciary relationship
respecting the same membership, unless the secretary of the
Association is given written notice to the contrary and is
furnished with a copy of the instrument or order appointing them
or creating the relationship wherein it is so provided, their
acts with respect to voting shall have the following effect: (i)
if only one votes, such act binds all, (ii) if two vote and such
votes are different, they shall cancel each other out, and (iii)
if more than two vote, the act of the majority so voting binds
all.
5.4 Proxies. Every Member entitled to vote or to
authorize action may do so either in person or by one or more
agents authorized by a written proxy executed by such Member and
filed with the secretary of the Association. No proxy shall be
valid after the expiration of eleven months from the date thereof
unless otherwise provided in the proxy. Notwithstanding the
foregoing, the maximum term of any proxy shall be three years
from the date of execution. Every proxy continues in full force
and effect until revoked by the person executing it and on the
condition that such revocation is made prior to the vote pursuant
thereto, except as otherwise provided in this article. Such
revocation may be effected by a writing delivered to the
Association stating that the proxy is revoked or by a subsequent
proxy executed by the person executing the prior proxy and
presented to the meeting or, as to any meeting, by attendance at
such meeting and voting in person by the person executing the
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proxy. The date contained on a proxy presumptively determines
its order of execution. If there is more than one proxy for a
Member and neigher is dated, neigher shall be valid. If there is
more than one proxy for a Member and only one is dated, the dated
proxy shall be presumed to superceed the undated one, unless the
undated proxy specifically revokes power given to the person
holding the dated proxy.
5.4.1 Anything herein to the contrary notwith-
standing, any revocable proxy covering matters requiring a vote
of the Members with respect to (i) the removal of directors, (ii)
the election of a director(s) to fill any vacancy(ies) on the
Board of Directors, (iii) amendment of the Articles, (iv)
amendment of these Bylaws repealing, restricting, creating or
expanding proxy rights, (v) the wind-up and dissolution of the
Association, (vi) the approval of a contract or transaction
between the Association and (a) one or more of the Association's
directors, (b) a corporation, firm or association in which one or
more of the Association's directors has a material financial
interest, or (c) any corporation, business corporation or
association of which one or more of its directors is also a
director of the Association, or (vii) any other matters
specifically set forth in California Corporations Code section
7613(g) is not valid as to such matters unless it sets forth the
general nature of the matter to be voted on. In addition, any
proxy distributed by a Member(s) to the Association membership
shall provide an opportunity to specify approval or disapproval
of each matter to be acted upon, and shall provide that where a
Member specifies a choice, the vote shall be cast accordingly.
5.4.2 If a proxy or written ballot pertaining to
the election of directors for the Association indicates that the
Member is withholding his or her authority to vote for the
election of directors, such proxy or written ballot may not be
used to vote for or against the election of a director.
5.4.3 A proxy is not revoked by the death or
incapacity of the maker or the termination of a membership as a
result thereof unless, before the vote is counted, written notice
of such death or incapacity is received by the Association.
ARTICLE 6 - Directors; Management
6.1 General Powers. Subject to the limitations of the
Declaration, the Articles, these Bylaws and the laws of the State
of California as to action to be authorized or approved by
Members, or by a majority of all Members, all Association power
shall be exercised by or under authority of, and the business and
affairs of the Association shall be controlled by, the Board of
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Directors. The Board of Directors may delegate the management of
the activities of the Association to any person or persons,
management company or committee however composed, provided that
the activities and affairs of the Association shall be managed
and all Association powers shall be exercised under the ultimate
direction of the Board of Directors.
6.2 Specific Powers. In addition to the general
powers described above, the Board of Directors shall have the
following specific powers:
(i) To adopt rules and regulations not inconsistent with
the provisions of the Declaration and these Bylaws,
including, but not limited to, rules and regulations
relating to the use of and activities permitted in the
Common Area;
(ii) To review, approve or deny all plans and
specifications, as such is defined in Article 6 of the
Declaration, and otherwise control the construction,
maintaince, repair or replacement of all structures and
landscaping, including but not limited to: buidings, sheds,
patios and covers, gazebos, garages, storage structures,
pools, spas, recreational facilities, fences, walls,
walkways and landscaping, constructed, repaired or replaced
within any Unit, as such is defined by the Condo Plan, and
in accordance with the provisions regarding architectural
control set forth in Article 6 of the Declaration;
(iii) To maintain bank account(s) for funds coming under
the control of the Association, including, but not limited
to, Operating Accounts and Reserve Accounts, as defined
hereinbelow;
(iv) To levy annual and special assessments and otherwise
act as set forth in, and subject to the provisions of, the
Declaration, the Articles and these Bylaws:
(v) To enforce the provisions of the Articles, the
Declaration, these Bylaws, and any other instruments for the
management and control of the Project; however, nothing
contained in this article shall be construed to prohibit
enforcement of these instruments by any Owner;
(vi) To contract for and maintain (a) fire, casualty,
liability, worker's compensation, medical, hospital,
directors' and officers' liability and other insurance
insuring Owners, directors, officers and employees of the
Association and other persons and (b) bonds covering the
acts of directors, officers and employees of the Association
and other persons;
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(vii) To contract, provide and pay for (a) maintenance,
utilities, and other services benefiting the Units or Common
Area, or (b) legal or accounting services;
(viii) To contract for and purchase tools, equipment,
materials, supplies and other personal property and services
for (a) maintenance and repair of the Common Area and (b)
construction, maintenance and repair of improvements to the
Project, including the Units if authorized by these Bylaws
or the Declaration;
(ix) To contract for and pay for reconstruction of any
portion(s) of the Project damaged or destroyed if authorized
by these Bylaws or the Declaration;
(x) To enter, at a reasonable time, any Unit, as such is
defined in the Condo Plan, if necessary for construction,
maintaince or repair of such Unit and for which the
Association has rights hereunder;
(xi) To pay taxes which would be a lien upon the entire
Project or the Common Area or any portion thereof, and to
pay and discharge any lien or encumbrance levied against the
entire Project or the Common Area or any portion thereof;
(xii) To make available to, and reproduce upon the
written request of, any Owner or authorized agent thereof,
any first Mortgagee, and the holders, insurers and
guarantors of a first Mortgage on any Condominium, current
copies of the Articles, Bylaws, Declaration, rules governing
the Project, and other books, records and financial
statements of the Association. The Board of Directors shall
make the aforementioned documents available for inspection,
upon request, during normal business hours or under other
reasonable circumstances. The Association shall not impose
or collect any assessment, penalty or fee in connection with
a transfer or title or any interest except, (i) the
Association's actual costs of changing its records and (ii)
a fee for providing copies of Project documents, records of
statements, so long as, such fee shall not exceed the
Association's reasonable cost to prepare and reproduce the
requested items;
(xiii) To prosecute or defend, in the name of the
Association and or the Members, any action affecting or
relating to the Project, including the Common Area or the
Units, the Declaration, the Articles or these Bylaws, or any
action in which all of the Owners have an interest in the
subject thereof;
(xiv) To suspend temporarily the voting privileges of an
Owner, for default in the payment of any annual or special
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presented, (ii) counsel, independent accountants or other persons
as to matters which the director believes to be within such
person's professional or expert competence, or (iii) a committee
of the Board of Directors, upon which a director does not serve
but in which the director has confidence as to matters within the
committee's designated authority, so long as the director acts in
good faith; after reasonable inquiry when the need therefor is
indicated by the circumstances; and without knowledge that would
cause such reliance to be unwarranted. A director of the
Association who performs the duties as herein set forth shall
have no liability as a director or as an individual for any
alleged failure to properly discharge the duties of a director of
the Association.
6.4 Contracts. Any contract entered into, or
instrument executed, by any two or more directors of the
Association pursuant to a resolution of the Board of Directors
shall be (i) valid and subsisting according to the tenor of such
contract or instrument and (ii) a charge upon all cash, bank
accounts and other personal property under the control of the
Board of Directors. Any transfer, assignment or conveyance to,
or any contract in favor of, the Board of Directors shall vest in
the Board of Directors, for the benefit of the Members in the
same proportions as their respective interests in the
Association. So long as each such director acts within the scope
of its authority as a director and as authorized to act by these
Declarations or the Association's Bylaw, no director shall have
any personal liability under any such contract or instrument;
however, the foregoing shall not be construed to relieve any
director who is also an Owner from liability as such Owner.
6.4.1. No contract or other transaction between
the Association and one or more of the Associations' directors,
or between the Association and any domestically formed
corporation, firm or association in which one or more of the
Association's directors has a material financial interest, is
either void or voidable merely because such director(s) is
present at a meeting of the Board of Directors which authorizes,
approves or ratifies such contract or transaction, if all
material facts as to the transaction and as to such director's
interests are fully disclosed to all the Members and such
contract or transaction is authorized, approved or ratified by a
unanimous vote of all non-interested directors of the
Association, (i.e., interested Director(s) are not entitled to
vote on the authorization, approval or ratification of such
contracts or transactions).
6.4.2 Except as provided herein, no contract with
the Association negotiated by Declarant, shall exceed a term of
one year.
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6.5 Limitations on Powers of the Board of Directors.
Anything in this article to the contrary notwithstanding, unless
the Members have approved such action (i) by a vote or written
ballot of Members entitled to exercise a majority of the voting
power in each of the two voting classes of the Association or
(ii) upon cessation of one of the two voting classes, by a vote
or written ballot of Members entitled to exercise a majority of
the voting power in the remaining voting class, provided that
said vote or written ballot shall include the votes of a majority
of the Members other than Declarant, the Board of Directors may
not:
(i) Enter into a contract with a third person for
materials and/or services benefiting the Common Area, the
Project or the Association for a term in excess of one year,
except any:
(a) Management contract, the terms of which have been
approved by the Federal Housing Administration or
Veterans Administration;
(b) Contract with a public utility company if the
rates charged for the materials or services are
regulated by the Public Utilities Commission provided,
however, that the term of the contract shall not exceed
the shortest term for which the supplier will contract
at the regulated rate;
(c) Prepaid casualty and/or liability insurance policy
which does not exceed three years' duration provided
that such policy permits for short rate cancellation by
the insured;
(d) Agreements for cable television service or
equipment of not to exceed five years' duration,
provided that the supplier is not an entity in which
the subdivider has a direct or indirect ownership
interest of 10 percent or more;
(ii) Except as expressly provided in the Declaration,
incur aggregate expenditures for capital improvements to the
Common Area or the Project in any fiscal year in excess of 5
percent of the budgeted gross expenses of the Association for
that fiscal year;
(iii) Sell or mortgage, during any fiscal year of the
Association, property of the Association having an aggregate fair
market value greater than 5 percent of the budgeted gross
expenses of the Association for that fiscal year;
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(iv) Fill a vacancy on the Board of Directors created by
the removal of a director; or
(v) Pay any compensation to any director or officer of the
Association for services performed in the conduct of the
Association's business; however the Board of Directors may
reimburse any such director or officer for out of pocket expenses
properly incurred by him or her in carrying on the business of
the Association.
6.6 Management Contracts and Easements. Anything contained
in Paragraphs 6.4 through 6.5, inclusive, to the contrary
notwithstanding, the Board of Directors shall not have the power
to authorize or approve any contract for the professional
management of the Project, or any contract providing for the
services of Declarant, which (i) does not permit the Association
to terminate (a) for cause on 30 days' written notice and (b)
without cause, on payment of a termination fee, on 90 days or
less written notice, or (ii) has a term greater than three years.
6.6.1 The Board of Directors shall not have the power
to grant easements or use rights which affect the Units or Common
Area; provided, however, that the Board of Directors may grant
easements over, upon, under and across the Common Area for
utilities, roads, ingress and egress and other purposes which are
reasonably necessary to the ongoing development and operation of
the Project.
6.7 Delegation of Powers. The Board of Directors may, from
time to time and as permitted by law, delegate by written
resolution any of the powers enumerated herein to agents or
employees of the Association. However, due to the small number
of Members in the Association, the Board of Directors may not
delegate any of its powers to a committee of the Members.
Although the Board of Directors may delegate to its officers
those specific powers identified in Article 7 herein.
6.8 Number. The authorized number of directors of the
Association shall be four. This paragragh may only be changed by
a unanimous vote of the Members.
6.9 Requirement that each Condominium be Represented on the
Board of Directors. Due to the small size of the Association,
the four directors of the Association shall consist of one Owner
from each Condominium. Where there is more than one Owner of a
Condominium, only one Owner from such Condominium may serve as a
Director at any one time. It shall be the obligation of all
Owners to serve on the Board of Directors of the Association
whether they are deemed to be a member of the Board of Directors
or elected by a vote of the Members as set forth in paragraph
9.11 hereinbelow. This paragraph may only be changed by a
unanimous vote of the Members.
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6.10 Nomination. Where a Condominium is owned by more
than one Owner, each Owner may nominate him or herself to serve
as a director of the Association. Where more than one Owner
nominates him or herself, that director's position shall be
filled by a vote of the Members, as set forth in paragraph 6.11
below. Each nominee shall be given a reasonable opportunity to
communicate to the Members his or her qualifications and the
reasons for his or her candidacy. Each nominee shall be given a
reasonable opportunity to solicit votes and the Members shall be
given a reasonable opportunity to choose among the nominees.
6.11 Election and Term of Office. If there is only one
Owner of a Condominium or one nominee for the Board of Directors
from any one Condominium, then each such Owner or nominee shall
automatically be deemed to be a director of the Association. Only
if there is more than one nominee to the Board of Directors for
any one Condominium, shall an election of the Members, by secret
and written ballot, take place. The nominee for each Condominium
with the most votes from the membership shall be elected to the
Board of Directors.
6.11.1 Upon transfer of title of a Condominium from
the Declarant to an Owner, the Declarant shall notify the
Association of the name of the new Owner or Owners. If there
will be only one Owner, that Owner shall automatically be deemed
to be a director of the Association. If there will be more than
one Owner after the transfer, the new Owners shall, before the
effective date of the transfer, specify which of the Owners will
serve on the Board of Directors until the next annual meeting of
the Association.
6.11.2 Upon transfer of title of any Condominium from
one Owner to another, if for such Condominium there is only one
Owner that Owner shall automatically be deemed to be a director
of the Association. If for such Condominium there will be more
than one Owner, the new Owners shall notify the Association no
later than 30 days after the effective date of transfer of title
which of the Owners will serve on the Board of Directors until
the next annual meeting of the Association.
6.11.3 All directors of the Association deemed to be
on the Board of Directors or elected at an annual meeting of
Members shall be elected for a term of one year. If any annual
meeting is not held or the directors are not elected there at,
the directors may be elected at any special meeting of Members
held for that purpose. The term of office for directors of the
Association shall begin immediately after their election and each
director shall hold office until their successor is elected.
6.12 Vacancies. A vacancy on the Board of Directors shall
be deemed to exist in any of the following instances: (i) the
death, resignation or removal of any director, (ii) Members shall
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fail at any time to elect the full number of authorized
directors, or (iii) where the new Owners of a Condominium fail or
refuse to notify the Declarant or the Association which of the
Owners shall serve as a director of the Association until the
next annual meeting of the Association in accordance with
paragraphs 6.11.1 or 6.11.2 hereinabove.
6.12.1 The Board of Directors may declare vacant the
office of a director (i) who has been declared of unsound mind by
a final order of court, (ii) who has been convicted of a felony,
or (iii) who misses or fails to attend four of the last six Board
of Director meetings.
6.12.2 Vacancies on the Board of Directors may be
filled by a majority vote of the remaining directors, or if the
number of directors remaining in office is less than a quorum, by
(i) unanimous written consent of the directors left in office,
(ii) affirmative vote of a majority of directors left in office
who attend a meeting held pursuant to the notice provisions in
Paragraph 6.16 and following or 6.17 and following hereinbelow,
or (iii) a sole remaining director, provided, however, that
vacancies on the Board of Directors resulting from the removal of
directors may only be filled by a vote of the Members as provided
in the article hereof entitled "Voting Rights."
6.12.3 Each director elected under paragraphs 6.12.2
shall hold office until its successor is elected at an annual,
regular or special meeting of Members or until its earlier
resignation or removal.
6.12.4 Members may at any time elect a director to the
Board of Directors of the Association to fill any vacancy not
filled by the Board of Directors within 60 days of such vacancy.
6.12.5 Any director may resign effective upon giving
written notice to the Board of Directors, unless such director is
the sole Owner of a Condominium, in which case such director may
not resign. Any resignation notice must specify a time for the
effectiveness of such resignation. If the Board of Directors
accepts the resignation of a director tendered to take effect at
a future time, the Board of Directors, or if the Board of
Directors should fail to act, the Members, shall have the power
to elect a successor to take office when the resignation is
scheduled to become effective.
6.13 Place of Meetings. Meetings of the Board of Directors
shall be held within the Project.
6.14 Organizational Meetings; Notice. The annual
organizational meetings of the Board of Directors shall be held
immediately following the adjournment of the annual meetings of
Members or at such other date, time and place as the Board of
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Directors may designate during the annual meeting of the Members.
Other notice of such organizational meetings is hereby waived.
6.15 Other Regular Meetings; Notice. Regular meetings of
the Board of Directors, other than the annual organizational
meeting, shall be held at such date, time and place within the
Project as may be agreed upon from time to time by the Board of
Directors except that said meetings shall be held at least every
six months if business to be transacted by the Board of Directors
does not justify more frequent meetings.
6.15.1 Notice of the date, time and place of a regular
meeting of the Board of Directors shall be given to each of the
members of the Board of Directors at least four days before such
meeting by (i) telephone, (ii) telegraph, (iii) written notice
personally delivered, or (iv) letter, charges prepaid, addressed
to a director at the address of such director as it is shown upon
the records of the Association.
6.15.2 Written notice of a resolution, if any,
establishing a specific times or places for regular meetings of
the Board of Directors shall be given to each director in
accordance with the notice provisions of paragraph 6.15.1.
6.15.3 Notice of a regular meeting of the Board of
Directors need not be given to any director who has signed a
waiver of notice or a written consent to holding such meeting(s),
whether before or after the meeting, or who attends the meeting
without protesting prior thereto or at its commencement, the lack
of notice to such director. All such waivers, consents and
approvals shall be filed with the Association records or made a
part of the minutes of the meetings.
6.16 Special Meetings; Notice. Special meetings of
the Board of Directors for any purpose or purposes may be called
by any member of the Board of Directors.
6.16.1 Written notice of a special meeting of the
Board of Directors of the Association shall be signed by the
director(s) calling such special meeting, specify the date, time
and place of the special meeting and shall be given to each of
the directors of the Association by: (i) telephone, (ii)
telegraph, (iii) written notice personally delivered, or (iv)
letter, charges prepaid, addressed to a director at the address
of such director as it is shown upon the records of the
Association. Such notice of a special meeting shall set forth
the general nature of the business to be considered thereat. In
case such notice is mailed, it shall be deposited in the United
States mail at least four days prior to the date of the holding
of the meeting. In case such notice is delivered personally or
by telephone or telegraph, it shall be so delivered at least 72
hours prior to the date of the holding of the meeting. Such
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mailing, telephoning, telegraphing or personal delivery shall be
due, legal and proper notice to such director.
6.16.2 Notice of a special meeting of the Board
of Directors need not be given to any director who signed a
waiver of notice or a written consent to holding of the meeting,
whether before or after the meeting, or who attends such a
meeting without protesting prior thereto or at its commencement,
the lack of notice to such director. All such waivers, consents
or approvals shall be filed with the Association records or made
a part of the minutes of the meetings.
6.17 Conference Calls. Members of the Board of Directors
may participate in an organizational, regular, or special meeting
of the Board of Directors or its committee through the use of
conference telephone or similar communications equipment, so long
as all members of the Board of Directors participating in such
meeting can hear one another. Participation in a meeting via
conference telephone or similar communications equipment
constitutes presence in person at such meeting.
6.18 Adiournment. A majority of the directors present at a
meeting of the Board of Directors, whether or not a quorum is
present at such meeting, may adjourn the meeting to another
specific date, time and place. If the meeting is adjourned for
more than 24 hours, notice of any adjournment to another date,
time or place shall be given prior to the time of such adjourned
meeting to the directors who are not present at the time of the
adj ournment.
6.19 Quorum; Required Vote. The presence of three members
of the Board of Directors at a regular or special meeting of the
Board of Directors is necessary to constitute a quorum of the
Board of Directors for the transaction of business. The action
of a majority of the directors present at any meeting at which
there is a quorum, when duly assembled, is valid as a corporate
act; provided that a meeting at which a quorum is initially
present may continue to transact business notwithstanding the
later withdrawal of a director, if and only if, each action taken
taken after withdrawal of a director is subsequently approved by
at least a majority of the required quorum for such meeting.
Directors present at any meeting at which a quorum is not
obtained may adjourn to another time and place as provided for
hereinabove, but may not transact any business.
6.20 Open Meetings; Executive Sessions. All of the
organizational, regular and special meetings of the Board of
Directors shall be open to all Members; however, Members who are
not on the Board of Directors may not participate in
deliberations or discussions at any such meeting unless expressly
so authorized by the vote of a majority of a quorum of the Board
of Directors.
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6.20.1 Notwithstanding anything to the contrary
contained in this article, the Board of Directors may, with the
approval of a majority of a quorum thereof, adjourn any meeting
of the Board of Directors and reconvene in executive session to
discuss, consider or vote upon (i) items related to or involving
personnel, (ii) litigation in which the Association is or may
become involved, and/or (iii) matters of a similar nature,
provided that the nature of any and all such business to be
considered in executive session shall first be announced in the
open meeting.
6.21 Action By Unanimous Written Consent. Any action
required or permitted to be taken by the Board of Directors may
be taken without a meeting, if all members of the Board of
Directors shall individually or collectively consent in writing
to such action. Such written consent or consents shall be filed
with the minutes of the proceedings of the Board of Directors.
Such action by written consent shall have the same force and
effect as a unanimous vote of the directors.
6.21.1 If the Board of Directors takes action by
unanimous written consent as -provided in Paragraph 6.21 above, a
copy of the final action to which unanimous written consent was
obtained shall be mailed or personally delivered to all Members
within three days of the date the secretary of the Association
receives the written consents of the directors.
6.22 Provisional and Substitute Directors. Because the
Association has an even number of directors, if the directors
become equally divided on some issue(s) and cannot agree as to
the management of the Association's affairs, such that its
activities can no longer be conducted or such that there is a
danger that the Association's property, activities or business
will be impaired or lost, an action may be brought by any
director of the Association or any Member, for the appointment of
a fifth "provisional director" in the Superior Court of San Diego
County. Each Condominium Owner recognizes as valid the equitable
powers of such court to appoint a provisional director and to
specify the limits and duration of the provisional director's
rights and powers.
6.22.1 A provisional director shall be an impartial
person, who is neither a Member nor creditor of the Association,
nor related by consanguinity or affinity within the third degree
under the Common Law of California to any of the Members of the
Association. Such a provisional director shall have all the
rights and powers given it by the court, and if not specified,
the rights and powers of an elected director until the deadlock
in the Board of Directors is broken or until such provisional
director is removed by order of the court.
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6.22.2 Because of the small size of the Association
and the requirement that each Condominium be represented on the
board of directors of the Asssociation, provisions are made
herein for appointment of a "substitute director". Where a
director of the Association does not wish to participate or is
incapable of participating as a member of the board of directors,
such director shall have the right to designate another person to
act on his or her behalf for the remainder of the current term,
as a substitute director of the Association by executing a
durable power of attorney. However, any such durable power of
attorney must be in writting, signed and noterized by all the
Owners of that director's Condominium and a copy of such
delivered to the Association.
ARTICLE 7 - Officers
7.1 Officers. The officers of the Association shall be a
president, a vice president, a secretary and a chief financial
officer.
7.2 Appointment. Each officer of the Association shall be
chosen annually by the Board of Directors, and shall hold office
until a successor shall be appointed or until the earlier
resignation, removal or disqualification of such officer.
7.3 Removal and Resignation. Any officer may be removed,
with or without cause, by the Board of Directors.
7.3.1 Any officer may resign at any time by
giving written notice to the Board of Directors. Any such
resignation shall take effect as of the date of the receipt of
such notice or at any later time specified therein; and, unless
otherwise specified therein, the acceptance of such resignation
shall not be necessary to make it effective.
7.4 Vacancies. A vacancy in any office because of death,
resignation, removal, disqualification or any other cause shall
be filled in the manner prescribed in these Bylaws for regular
appointment to such office.
7.5 President. The president shall be the general manager
and the chief executive officer of the Association, and, subject
to the control of the Board of Directors, shall have the general
power to supervise, direct and control the business and officers
of the Association. The president shall preside at all meetings
of the Members and of the Board of Directors and shall have the
management duties usually vested in the office of president of a
corporation and shall have such other powers and duties as may be
- 21 -
prescribed by the Board of Directors, these Bylaws or applicable
California law.
7.6 Vice President. In the absence or disability of the
president, the vice president shall perform all the duties of the
president, and when so acting shall have all the powers of, and
be subject to, all the restrictions upon the president. The vice
president so performing the duties of the president shall have
such other powers and perform such other duties as from time to
time may be prescribed by the Board of Directors, these Bylaws or
applicable California law.
7.7 Secretary. The secretary shall keep, or cause to be
kept, at the principal office of the Association or such other
place as the Board of Directors may order, a book of minutes of
all meetings of the Board of Directors and Members showing (i)
the date, time and place of holding, (ii) whether regular, annual
or special, and if special, how authorized, (iii) the notice
thereof given, (iv) the names of those present if it is a meeting
of the Board of Directors, (v) the number of Members present or
represented at a meeting of the Members, and (vi) the proceedings
thereof.
7.7.1 The secretary shall keep, or cause to be kept,
at the principal office of the Association or at such other place
as the Board of Directors may designate, a membership book
showing the names and addresses of the Members and the date on
which membership ceased.
7.7.2 The secretary shall (i) give, or cause to be
given, notice of all the meetings of the Members and of the Board
of Directors as is required by these Bylaws or by statute to be
given, (ii) keep the seal of the Association in safe custody and
(iii) have such other powers and perform such other duties as may
be prescribed by the Board of Directors, these Bylaws or
applicable California law.
7.8 Chief Financial Officer. The chief financial officer
shall keep and maintain, or cause to be kept and maintained,
adequate and correct accounts of the properties and business
transactions of the Association, including accounts of its
assets, liabilities, receipts, disbursements, gains, losses and
surplus. The books of account shall at all reasonable times be
open to inspection by any director of the Association.
7.8.1 The chief financial officer shall deposit all
moneys and other valuables in the name and to the credit of the
Association with such depositories as may be designated by the
Board of Directors. The chief financial officer shall disburse
the funds of the Association as may be ordered by the Board of
Directors, shall render to the president and Board of Directors,
whenever they request it, an account of all transactions by the
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chief financial officer and of the financial condition of the
Association, and shall have such other powers and perform such
other duties as may be prescribed by the Board of Directors,
these Bylaws or applicable California law.
7.8.2 If desired, the Board of Directors may acquire
for the chief financial officer and other directors, employees,
or agents a bond in such sum and with such surety or sureties as
shall be satisfactory to the Board of Directors for (i) the
faithful performance of the duties of the chief financial
officer's office and (ii) the restoration to the Association of
all books, papers, vouchers, money and other property, or
whatever kind, belonging to the Association and in the possession
or under control of the chief financial officer upon the death,
resignation or removal from office of the chief financial
officer.
ARTICLE 8 - Committees
The Board of Directors may, by resolution adopted by a
unamous vote of the directors of the Association, create a
committee (hereinafter referred to as an "Executive Committee"),
as may be necessary from time to time, consisting of two
directors of the Association and with such powers as it
designates, so long as such powers are consistent with the
Articles, these Bylaws and the laws of the State of California.
Appointment to the Executive Committee shall be by a majority
vote of the directors in office at the time of appointment. The
Board of Directors may also appoint an alternate Executive
Committee member, who can replace an absent member at any meeting
of the Executive Committee. The members of Executive Committee
shall hold office at the pleasure of the Board of Directors and
need not be reappointed annually.
ARTICLE 9 -
Records and Reports; Inspection
9.1 Records. The Association shall maintain adequate and
correct accounts, books and records of its business and
properties. All such books, records and accounts shall be kept
at its principal place of business in the State of California or
at such other place as may be designated by the Board of
Directors from time to time.
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9.2 Inspection of Books and Records. The Member register;
the Association's books of account; minutes of proceedings of the
Association, of the Board of Directors, and of the Executive
Committee shall upon the written demand of any Member be open to
inspection and copying by such Member or its duly appointed
representative at any reasonable time, for a purpose reasonably
related to such Member's interests as a Member, at the office of
the Association or at such other place within the Project as the
Board of Directors shall prescribe. All of the foregoing
documents, books and records shall be available for inspection at
all regular meetings of the Members.
9.2.1 Each director of the Association shall have an
absolute right to inspect and copy the aforementioned documents,
books and records and to inspect the physical property owned by
the Association, at any reasonable time.
9.2.2 An inspection demand, other than at a meeting of
the Members shall be made in writing upon the board of directors
of the Association. The Board of Directors shall establish
reasonable rules with respect to (i) hours and day of the week
when such inspection may be made and (ii) payment of the cost of
reproducing copies of such documents, books and records.
9.3 Certification and Inspection of Bylaws. The original
or a copy of these Bylaws as amended or otherwise altered to
date, certified by the secretary of the Association, shall be
available for inspection by Members at any reasonable time.
9.4 Checks. Drafts. Etc. Subject to Paragraph 9.10 below,
all checks, drafts or other orders for payment of money, notes or
other evidences of indebtedness, issued in the name of or payable
to the Association, shall be signed or endorsed by such person or
persons and in such manner as shall be determined from time to
time by resolution of the Board of Directors.
9.5 Contracts. Etc.; How Executed. The Board of Directors,
except as otherwise provided in these Bylaws, may authorize any
officer or officers, agent or agents, of the Association, to
enter into any contract or execute any instrument in the name of
and on behalf of the Association. Such authority may be general
or confined to specific instances. Unless so authorized by the
Board of Directors, no officer, agent or employee of the
Association shall have any power or authority to bind the
Association by any contract or engagement, or to pledge its
credit, or to render it liable for any purpose or to any amount.
9.6 Annual Budget. The Board of Directors shall cause a
pro forma operating budget (hereinafter referred to as the
"Annual Budget") for each fiscal year to be regularly prepared
and distributed to all Members, not less than 45 days and not
more than 60 days prior to the beginning of each fiscal year of
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the Association, regardless of the number of Members or the
amount of assets of the Association. Each Annual Budget shall
contain the following information: (i) the estimated revenue and
expenses of the Association on an accrual basis, (ii) the amount
of the total cash reserves in the Reserve Accounts, as defined in
Paragraph 9.10 below, currently available for replacement or
major repair of the Common Area and for contingencies, (iii) an
itemized estimate of the remaining life of, and the method of
funding to defray repair, replacement or additions to, major
components of the Common Area for which the Association is
responsible, and (iv) a general statement setting for the
procedures used by the Board of Directors in calculating and
establishing reserves to defray the cost of repair, replacement
or addition to, major components of the Common Area for which the
Association is responsible.
9.7 Initial Financial Report. The Board of Directors shall
cause to be prepared an initial financial report, which report
shall include (i) a balance sheet as of an accounting date ("the
Accounting Date") which is the last day of the month closest in
time to six months from the date of closing of the first sale of
a Condominium in the Project and (ii) an operating statement for
the period from the date of the first closing to the Accounting
Date, which operating statement shall include a schedule of
assessments received and receivable itemized by the Condominium
address of the Member so assessed. The initial financial report
shall be distributed to each member within 60 days from the
Accounting Date.
9.8 Annual Report. The Board of Directors shall cause to
be prepared, and shall distribute to each Member, within 120 days
after the close of the Association's fiscal year, a report
(hereinafter referred to as the "Annual Report"), which shall
include: (i) a balance sheet as of the end of the fiscal year,
(ii) an operating (income) statement for the fiscal year, (iii) a
statement of changes in financial position for the fiscal year,
(iv) any information required to be reported under Section 8322
of the California Corporations Code, (v) a statement of the place
where names and addresses of the current .Members are located, and
(vi) for any fiscal year in which the gross income to the
Association (including all regular and special assessments levied
upon all Members during the fiscal year) exceeds $75,000, a copy
of a review of the Annual Report prepared in accordance with
generally accepted accounting principles by a licensee of the
California State Board of Accountancy. If the Annual Report is
not prepared by an independent accountant, it shall be
accompanied by the certificate of an authorized officer of the
Association that the statements were prepared from the books and
records of the Association without independent audit or review.
For any fiscal year in which the Annual Report is not prepared by
a licensee of the California State Board of Accountancy, the
financial statements prepared in connection with the Annual
- 25 -
Report shall be prepared in conformity with generally accepted
accounting principles or some other basis of accounting which
reasonably sets forth the assets and liabilities and the income
and expenses of the Association and discloses the accounting
basis used in the preparation.
9.8.1 The Board of Directors shall include in any
Annual Report a statement discussing: (i) any transaction or
transactions which occurred during the previous fiscal year
involving more than $50,000, in the aggregate, in which the
Association was a party and in which either a director or an
officer of the Association or an Owner holding more than 10
percent of the voting power of the Association had a direct or
indirect material financing interest and such transaction had not
been approved by the members of the Association or (ii) any loan,
guarantee, advance or indemnification made or paid by the
Association to any officer or director of the Association which
in the aggregate exceeded $10,000 in any single fiscal year and
such loan, guarantee, advance or indemnification had not been
approved by the Members of this Association. The statement
required by this paragraph shall (i) describe the amount and
circumstances of any such transaction, loan, guarantee, advance
or indemnification, (ii) state the name(s) of the director,
officer or Owner who was involved in such transaction or to whom
such loan, guarantee, advance or indemnification was made or
paid, and such person's relationship to the Association, and
(iii) explain the nature of such director's, officer's or Owner's
interest in the transaction, loan guarantee, advance or
indemnification and, where practicable, the amount of such
interest, provided that in the case of a transaction, loan,
guarantee, advance or indemnification made or paid to a
partnership of which such person is a partner, only the interest
of the partnership need be stated.
9.8.2 Upon written request of a Member, the Board of
Directors shall promptly cause the most recent Annual Report to
be sent to the requesting Member. If any such Annual Report
addressed to a Member at the address of the Member appearing on
the books of the Association, is returned to the Association by
the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the Annual
Report at such address, all future Annual Reports shall be deemed
to have been duly delivered without further mailing, so long as,
such Annual Report shall be available upon written demand of such
Member at the principal place of business of the Association for
a period of one year from the date the same Annual Report was
delivered to all other Members.
9.9 Statement of Policies and Practices. The Board of
Directors shall cause to be distributed to all Members, within 60
days prior to the beginning of each fiscal year, a statement of
the Association's policies and practices in enforcing its
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remedies against Members for defaults in the payment of annual
and special assessments, including the recording and foreclosing
of liens against a Condominium.
9.10 Operating and Reserve Accounts. The Board of
Directors shall maintain reserve accounts (hereinafter "Reserve
Accounts") within which it keeps all moneys identified by the
Annual Budget for (i) the major repair or replacement of or
additions to the Common Area for which the Association is
responsible, or (ii) other reasonable contingencies. The
signatures of at least two directors of the Association shall be
required for the withdrawal of moneys from a Reserve Account. In
addition, the Board of Directors may maintain operating accounts
(hereinafter "Operating Accounts") within which all moneys
belonging to the Association other than those moneys maintained
in a Reserve Account, are kept.
9.10.1 The Board of Directors shall do all of the
following: (i) review, on at least a quarterly basis, a current
reconciliation of the Association's Operating Accounts and
Reserve Accounts, (ii) review, on at least a quarterly basis, the
current year's actual reserve revenues and expenses as compared
to the current year's budget for reserve revenues and expenses,
(iii) review, within a reasonable time of receipt, the latest
account statement prepared by the financial institution(s) where
the Association maintains its Operating Account(s) and Reserve
Account(s), (iv) review, on at least a quarterly basis, an income
and expense statement for the Association's Operating Account(s)
and Reserve Account(s), and (v) perform any other duties, as
specifically added from time to time, to California Civil Code
section 1365.5.
ARTICLE 10 - Corporate Seal
If obtained by the Association, the Association's corporate
seal shall be circular in form, and shall have inscribed thereon
the name of the Association, the date of its formation and the
word "California".
ARTICLE 11 - Amendments to Bylaws
11.1 Bv Members. During the period of time prior to
conversion of the Class B membership in the Association to Class
A membership, new Bylaws may be adopted or these Bylaws may be
amended or repealed by 3/4 vote or written ballot of all Members
of each class of membership in the Association. After conversion
of the Class B membership to Class A membership, these Bylaws may
be amended or repealed by a 3/4 vote or written ballot of all
Members.
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11.2 Modification of Voting Rights. Anything contained
herein to the contrary notwithstanding, neither the Owners nor
the Association shall, by act or omissions, modify the voting
rights of Members as such are set forth in Article 5 of these
Bylaws entitled "Voting Rights," without the prior written
consent of at least 3/4 of the Members.
11.3 No Amendment By Board of Directors. Anything herein to
the contrary notwithstanding, the Board of Directors shall not
have any right or power to adopt, amend or repeal any of these
Bylaws.
11.4 Record of Amendments. Whenever an amendment or new
bylaw is adopted, a notation of such amendment or new bylaw and a
copy of the same shall be filed in the appropriate place in the
Association's book containing the original Bylaws and mailed
by first class United States mail or other means of written
communication to the address of each Member appearing on the
books of the Association or to the address supplied by such
Member to the Association for the purpose of receiving notice.
If any bylaw is repealed, the fact of repeal with the date of the
meeting at which the repeal was enacted or the date specified in
the written ballots by which such ballots were to be received by
the Association shall be stated in said book and mailed
by first class United States mail or other means of written
communication to the address of each Member appearing on the
books of the Association or to the address supplied by such
Member to the Association for the purpose of receiving notice.
ARTICLE 12 - Amendment Of Articles
12.1 Amendments. Each amendment to the Articles shall be
adopted in accordance with the provisions set forth for
amendments in the Articles.
12.2 Record of Amendments. Any amendments to the Articles
shall be reflected in the Association's books containing the
original Articles. Upon the adoption of an amendment, the
secretary of the Association shall file a Certificate of
Amendment or Restated Articles of Incorporation, pursuant to
California Corporations Code sections 7814 and 7816 with respect
to a Certificate of Amendment or California Corporations Code
section 7819 with respect to Restated Articles of Incorporation.
ARTICLE 13 - Supremacy of Declaration
No provision of the Articles or of these Bylaws and no
action of the Association in violation or contravention of any
provision of the Declaration shall be valid, subsisting of or any
effect whatsoever.
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THE UNDERSIGNED, being the sole Member of the
Association, as of the date hereinbelow set forth, hereby assents
to the foregoing Bylaws and adopts the same as the Bylaws of the
Association.
IN WITNESS WHEREOF, the undersigned has hereunto
subscribed its name this 2»jg) day of
XathyxBakadi
John Bence
Gabor
CAT. NO. NN00627
TO 1944 CA (9-84)
(Individual)
STATE OF CALIFORNIA
COUNTY OF San Diego
On March 26,1990
TICOR TITLE INSURANCE
ss.
before me, the undersigned, a Notary Public in and for
said State, personally appeared Louis Bikadi & Kathy Bikadi & John Bence & Margaret
Bence & Gabor Toth & Darlene Toth * *
, personally known to me or
proved to me on the basis of satisfactory evidence to be
the person_§ whose namp S are subscribed to the
within instrument and acknowledged that they exe-
cuted the same.
WITNESS my hand and official seal.
Signature
OFFICIAL SEAL
LYNDA J. CLAYTON
NOTARY PUBLIC • CALIFORNIA
PRINCIPAL OFFICE IN
SAN DIEGO COUNTY
My Commission Exp. June 21.1991
(This area for official notarial seal)