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Amended & Restated Bylaws of Alameda West Lagoon Home Owners’ Association
(Please refer to mailed-out copy or attached PDF version for official language and wording.)
- Article I. Definitions.
- Section 1.1. Assessment
- Section 1.2. Association
- Section 1.3. Association Records
- Section 1.4. Association Rules
- Section 1.5. AWLHOA Property
- Section 1.6. Board
- Section 1.7. Director
- Section 1.8. Governing Documents
- Section 1.9. Home
- Section 1.10. Mailed Ballot
- Section 1.11. Member
- Section 1.12. Member or Home in Good Standing
- Section 1.13. Owner
- Section 1.14. Person
- Section 1.15. Single Family Residential Lot
- Section 1.16. Voting Power
- Article II. Principal Office.
- Article III. Membership & Voting Rights
- Article IV. Powers & Authority of the Association
- Section 4.1. Powers & Authority of the Association.
- Section 4.2. Nonliability of Officials.
- Article V. Board of Directors
- Section 5.1. Number of Directors.
- Section 5.2. Term of Office.
- Section 5.3. Qualifications of Directors.
- Section 5.4. Election of Directors.
- Section 5.5. Vacancies on the Board.
- Section 5.6. Election Disputes.
- Section 5.7. Compensation.
- Section 5.8. Powers & Duties of the Board.
- Article VI. Board Meetings
- Section 6.1. Meeting Location.
- Section 6.2. Notice Requirements.
- Section 6.3. Meeting Types.
- Section 6.4. Quorum Requirements.
- Section 6.5. Majority Vote Required.
- Section 6.6. Actions & Decisions without Meetings.
- Section 6.7. Other Provisions.
- Section 7.1. Voting Eligibility.
- Section 7.2. Casting Votes.
- Section 7.3. Action by Mailed Ballot.
- Section 7.4. Quorum Requirements.
- Section 7.5. Majority Vote Required.
- Section 7.6. Supervision of Election Process.
- Section 8.1. Meeting Location.
- Section 8.2. Member Meetings.
- (a) Annual Meetings
- (b) Special Meetings
- (c) Low Member Attendance
- (d) Effect of Departure of Members
- (e) Notice of Member Meeting
- Section 8.3. Other Provisions.
- (a) Adjourning Meeting
- (b) Waiver by Attendance
- (c) Conducting Meetings
- Section 9.1. Officers.
- (a) Selection of Officers
- (b) Terms & Removal
- (c) Resignation
- (d) Vacancies
- Section 9.2. President.
- (a) Duties
- (b) Vice President
- Section 9.3. Secretary.
- (a) Minutes
- (b) Records
- (c) Meetings & Votes
- (d) Assistants
- Section 9.4. Treasurer.
- (a) Accounting Records
- (b) Audit or Review
- (c) Deposits & Payments
- (d) Bond or Surety
- (e) Assistants
- Section 10.1. Committees.
- Section 10.2. Meetings & Actions.
- Section 10.3. Effect of Committee Actions.
- Section 10.4. Minutes & Reports.
- Section 11.1. Conflicts of Interest.
- Section 11.2. Employees.
- Section 11.3. Enforcement.
- (a) Vote on Conflicts
- (b) Violation
- Section 11.4. Applicability.
- Section 12.1. Assessments Generally.
- (a) Covenant to Pay Assessments
- (b) Assessment is Continuing Lien & Personal Debt
- (c) No Offset of Assessment Obligation
- (d) Membership Approval
- Section 12.2. Regular Assessments.
- (a) Allocation of Regular Assessment
- (b) Limits on Board’s Authority
- (c) Assessment Due Date & Installments
- (d) Annual Notice and/or Notice of Increase
- (e) Purpose
- Section 12.3. Special Assessments.
- (a) Limits on Board’s Authority
- (b) Allocation & Payment of Special Assessments
- (c) Due Dates & Installments
- (d) Surplus Funds
- Section 12.4. Special Individual Assessments.
- Section 12.5. Collection & Enforcement.
- (a) Delinquent Assessments
- (b) Interest Charges
- (c) Late Charges
- (d) Partial Payments
- (e) Notice of Satisfaction
- (f) Remedies for Collection of Assessments
- (g) Decision to Lien
- (h) Meet & Confer Rights
- (i) Association’s Duty to Offer ‘Meet & Confer’
- Section 13.1. Association Financial Records.
- Section 13.2. Budgets & Financial Statements.
- (a) Pro Forma Operating Budget
- (b) Association’s Reserves
- (c) Reserve Funding Plan
- (d) Deferred Maintenance
- (e) Anticipated Assessments
- (f) Funding Mechanisms
- (g) Method of Calculation
- (h) Outstanding Loans
- (i) Annual Summary of Association’s Insurance Coverage
- (j) Annual Assessment & Reserve Funding Disclosure Form
- (k) Year-End Review or Audit
- (l) Annual Policy Statement
- Section 13.3. Required Reserve Studies & Inspections.
- Section 13.4. Contracts.
- Section 13.5. Record Keeping.
- Section 13.6. Fiscal Year.
- Section 13.7. Maintenance of Assessment Funds.
- (a) Bank Accounts
- (b) Prudent Investments
- (c) Accurate Records & Board Control
- (d) Commingling of Funds & Interest Allocation
- (e) Line Item Adjustments
- (f) Checks
- (a) Association Records
- (b) Minutes of Meetings
- (c) Insurance Policies
- (d) Membership List
- (e) Audit
- Section 15.1. Mailing Address.
- (a) Owners
- (b) Owner’s Secondary Address
- (c) The Association & Its Directors/Officers
- Section 15.2. Service Upon a Co-Owner.
- Section 15.3. Deemed Delivered.
- Section 16.1. Amendment of Bylaws.
- (a) Amendment by the Board
- (b) Amendment by the Members
- Section 16.2. Effective Date.
- Section 16.1. Manager.
- Section 16.2. Notice Requirements.
- Section 16.3. Construction & Definitions.
- (a) Liberal Construction
- (b) Singular Includes Plural/Gender
- (c) Captions
- (d) Superceding Statutes
- Section 16.4. Conflicts.
- Section 16.5. State Law & Severability.
- Exhibit “A” – Legal Description
- Exhibit “B” – Voting & Assessment Allocations
Assessment means any Regular Assessment, Special Assessment or Special Individual Assessment made or assessed by the Association against an Owner (and/or his or her Home) in accordance with the provisions of Article XII, below and the Declaration. “Regular Assessment” means an Assessment levied on an Owner and his or her Home in accordance with Section 12.2 hereof. “Special Assessment” means an Assessment levied on an Owner and his or her Home in accordance with Section 12.3 hereof. “Special Individual Assessment” means an Assessment made against an Owner and/or his or her Home in accordance with Section 12.4 hereof.
Association means Alameda West Lagoon Home Owners’ Association, a California nonprofit mutual benefit association, its successors and assigns. Alameda West Lagoon Home Owners’ Association is an Association as defined in Civil Code §4080.
Association Records are as defined in Civ. Code §5200. (See also Code §8320 and California Code of Regulations 2992.23 concerning access to “accounting books & records”.)
Association Rules means the rules, regulations and policies adopted by the Association pursuant to Section 5.8(a)(ii)(O), below, and Civ. Code §4340 et seq.
AWLHOA Property means all real property (Common Area and Homes), including the Improvements located thereon, that comprises the Alameda West Lagoon Home Owners’ Association situated in the City and County of Alameda, State of California and more particularly set forth in Exhibit “A” (attached hereto):
Board or Board of Directors means the Board of Directors or the governing body of the Association.
Director means a member of the Association’s Board of Directors.
Governing Documents is a collective term that means and refers to the Association’s Declarations of Covenants, Conditions and Restrictions (“Declaration”), Articles of Incorporation, Bylaws, Association Rules, including Election Rules, and the policies and resolutions adopted by the Board and distributed to the Members.
Home means either a Single Family Residential Lot or one of the other pieces of real property listed on Exhibit “B”, below. Collectively, all Homes are located within the AWLHOA Property.
Mailed Ballot is a written ballot that is mailed to every Member entitled to vote on a matter and that complies with the requirements of Section 7.3, below, Civ. Code §§4040(a)(1), 4045(a)(1) and 555 and Corporations Code §7513. For purposes of this definition, the term Mailed Ballot expressly does not include a written ballot distributed to Members at a meeting.
Member means each Person who qualifies as a Member (i.e., an Owner of a Home within the AWLHOA Property).
Member or Home in Good Standing means a Member who owns a Home that is in Good Standing. A Home in Good Standing is a Home that is current in the payment of all dues, Assessments, fines, penalties and other charges imposed in accordance with the Governing Documents and that is in compliance with all the provisions of the Governing Documents. A Member in Good Standing is a ‘Member eligible to vote’ for purposes of these Bylaws.
Owner means the Person(s) shown as owning (i.e., holding fee simple title to) any Home located within the AWLHOA Property. Owner does not include a Person who holds an interest in a Home merely as security such as a bank or other lender/mortgage holder.
Person means and includes any individual (aka natural person), corporation, partnership, association or other entity recognized by the laws of the State of California.
Single Family Residential Lot means a lot located within the AWLHOA Property that contains a single (1) residential dwelling (i.e., house).
Voting Power means those Members who are eligible to vote on any matter, issue, or proposal properly presented to the Members for approval as of the record date. (See Section 7.8, below for provisions pertaining to “record dates”.)
The principal office of the Association will be located at Walsh Property Management located at P.O. Box 2657 // 20401 Santa Maria Avenue in Castro Valley, California 94546-0657 or such place within the San Francisco Bay Area as the Board may designate.
The Association has one (1) class of voting Membership.
Every Owner of record for any Home located within AWLHOA Property is a Member.
(i) Single Family Residential Lots. On each matter submitted to a Member vote, each Member who owns a Single Family Residential Lot within the AWLHOA Property is entitled to cast one (1) vote for each Single Family Residential Lot owned by that Member. There are three hundred and six (306) Single Family Residential Lots within the AWLHOA Property.
(ii) All Other Members. The voting rights for any Member that is not an Owner of a Single Family Residential Lot (e.g., condominium complexes, apartment buildings, etc.,) is set forth on Exhibit “B”, attached hereto. The voting rights for condominium complexes and the hospital are held and shall be voted by that complex’s (or hospital’s) board of directors.
(b) No Severance. Membership in the Association is appurtenant to, and may not be separated from, Ownership of the Home within AWLHOA Property to which the Membership relates. Membership in the Association cannot be transferred separate from Ownership of the appurtenant Home. Any attempt to make a prohibited transfer is void.
(c) Security Interest. No Person who holds an interest in a Home merely as security for performance of an obligation is a Member unless and until such time as that security holder comes into title to the Home through foreclosure or deed.
(e) Evidence of Membership. A Person is entitled to exercise the rights of a Member once the Association has received evidence that Person is an Owner of a Home in the form of a copy of a recorded grant deed (certified by the Office of the Recorder for Alameda County) or a currently effective policy of title insurance. Exercise of Member rights are subject to the record date provisions in Section 7.8, below.
(f) Term of Membership. Upon becoming an Owner of a Home, each Owner automatically becomes a Member of the Association and remains a Member until such time as that Person’s Ownership interest ends. The Owner’s Membership interest appurtenant to the Home automatically transfers to the Home’s new Owner(s) upon recordation of a deed (or other document) evidencing the sale, conveyance or other transfer of an Owner’s interest in a Home (i.e., title to the Home).
(g) Termination of Membership. The sale (transfer or other divestiture) of a Person’s entire interest in a Home ends that Person’s obligations under the Governing Documents that arise from and after the date of that sale (or transfer). The sale (transfer or other divestiture) does not, however, extinguish that selling Owner’s obligations for unpaid Assessments or fees that were levied against the Home prior to the sale (or other transfer). Any unpaid fees and Assessments incurred during the Ownership period remain a personal debt of the prior Owner(s).
Ownership of a Home gives rise to: a single Membership and a single Membership vote in the Association. Accordingly, if more than one (1) Person owns a Home, all Co-Owners sharing Ownership is a single (1) Member for voting purposes. All Co-Owners have equal rights (as Members) to use and enjoy the Common Area. In the event of co-Ownership of any Home, the obligations and liabilities of the Co-Owners are joint and several.
(a) Designated Voting Power. Co-Owners of a Home can notify the Association of the Owner designated to cast votes for that Home. If no notification is received, the Association can accept the vote of any Owner of Record as the vote for that Home. If any Owner casts a vote for any Home with multiple Owners, it will thereafter be conclusively presumed for all purposes that such Owner was acting with the authority and consent of all Owners of that Home.
(b) Voided Vote. If two (2) or more Co-Owners of a Home attempt to vote the Membership attributable to that Home in an inconsistent fashion, the election inspector(s) (or Secretary) may refuse to count any vote for that Home.
The Association has the responsibilities and authority as set forth in this Article IV and California law.
(a) Duties Generally. The Association shall have the responsibility of managing and maintaining the AWLHOA Property as set forth in the Governing Documents. The Association shall also discharge all duties and responsibilities imposed by the Governing Documents and applicable California law.
(b) Powers Generally. In the discharge of such responsibilities and duties, the Association (and its Board) has all of the powers of a nonprofit mutual benefit corporation and a California Common Interest Development subject only to the limitations in the Governing Documents or California law. (See Corp. Code §7110 et seq., Civ. Code §4000 et seq., and Section 5.8(c), below) The Association shall have the power to do any and all lawful things that may be authorized, required or permitted to be done under and by virtue of the Governing Documents, and to do and perform any and all acts necessary (or proper for or incidental) to any of the Association’s express powers (and/or for the peace, health, comfort, safety or general welfare of its Members).
(e) Powers Vested in Board. Subject to the limitations of California law and the Governing Documents relating to such actions that require Member approval, the business, affairs and decision-making of the Association are solely vested in and exercised by the Board of Directors.
To the fullest extent permitted by law, no Director, officer, committee, committee member or the Board (collectively and individually referred to as the “Released Party”), shall be liable to any Person for any damage, loss, claim, liability or prejudice suffered or claimed on account of any decision, approval, disapproval, course of action, act, inaction, omission, error, negligence, etc. made in good faith and within the Released Party’s duties or authority.
(a) Claims Regarding Breach of Duty. No Released Party is personally liable to any Person, for any error or omission in the discharge of their duties and responsibilities or for their failure to provide any service required hereunder or under the Governing Documents, provided that such Released Party has, upon the basis of such information as may be possessed by the Released Party, acted in good faith, in a manner that the Released Party believes to be in the best interests of the Association and with such care, including reasonable inquiry, as an ordinarily prudent Person in a like position would use under similar circumstances.
Without limiting the generality of the foregoing, this standard of care and limitation of liability extends to such matters as the establishment of the Association’s annual budget, the funding of Association reserve accounts, repair and Maintenance of the AWLHOA Property and enforcement of the Governing Documents.
(b) Other Claims Involving Tortious Acts & Property Damage. No Person who suffers bodily injury (including, without limitation, emotional distress or wrongful death) or property damage as a result of the tortious act or omission of a volunteer Director or officer can recover damages from any Director or officer if all of the following conditions are satisfied:
(i) The Director or officer is: (A) an Owner of no more than two (2) Homes; and (B) a volunteer;
(ii) The act or omission was performed within the scope of the volunteer Director’s or officer’s Association duties;
(iii) The act or omission was performed in good faith;
(iv) The act or omission was not willful, wanton, or grossly negligent; and
(v) The Association maintained (and had in effect at the time: (A) the act or omission occurred and (B) the time a claim was made) one or more policies of insurance that include coverage for general liability of the Association and individual liability of the Directors and officers for negligent acts or omissions in their official capacities, with minimum coverage for both types of insurance equal to the amounts specified in Civ. Code §5800(a)(4).
The payment of actual expenses incurred by a Director or officer in the execution of that Person’s Association duties do not impact that Person’s status as a volunteer Director or officer for the purposes of this Section. However, any Director or officer who receives direct or indirect compensation from the Association (or from a financial institution that acquired a Home within the AWLHOA Property as the result of a judicial or nonjudicial foreclosure proceeding) is not a volunteer.
The provisions of this Subsection (b) are intended to reflect the protections accorded to volunteer Directors and officers of Common Interest Developments under Civ. Code §5800.
(c) Indemnification. The indemnification rights (including the right to advancement of expenses) of Directors, officers, employees and/or agents are governed by Corp. Code §7237 (or comparable superseding statute).
The Board of Directors shall consist of at least three (3) Persons and no more than seven (7) Persons.
The Directors of this Association shall serve for staggered terms of three (3) years. Each Director, including a Person selected to fill a vacancy, shall hold office until the expiration of the term for that Director and until a successor has been elected and qualified.
To be eligible for nomination and to be elected to the Board, a candidate must be certified by the Association as to the following:
(i) has been declared of unsound mind by a final order of Court;
(ii) has been convicted of a felony;
(iii) has been found by a Court to have breached any duty under Corp. Code §§7233-7236 (relating to the standards of conduct of Directors);
(iv) has not maintained the Person’s “Member/Home in Good Standing” status for a period of ninety (90) consecutive days or longer. (See Sections 1.12, above and Section 7.1, below);
(v) fails to attend three (3) consecutive duly noticed and regular meetings of the Board while serving as a Director;
(vi) repeatedly fails or refuses to vote (and/or abstain from voting) on matters before the Board while serving as a Director;
(vii) engaged in physical violence, acts of intimidation, harassment and/or made threats: (A) during a meeting or other Association function; (B) at any time while acting in an official capacity as a Director, officer or committee member; or (C) at any time to another Member or resident;
(viii) has disclosed Association confidences (aka confidential information) obtained by that Person in his/her capacity as a Director, officer and/or committee member (especially when those confidences were obtained during an Executive Session of the Board and/or from communications to/from legal counsel). The decision as to whether or not a Director has disclosed Association confidences rests in the discretion of the Board. As per Article XI, below, the Director believed to have disclosed shall not take part in this Board decision;
(ix) has been found by the Board to have violated Article XI’s conflict of interest provisions while serving as a Director, officer and/or committee member;
(x) has a pending lawsuit against the Association and/or its Board of Directors; and/or
(xi) is not insurable under the Association’s Directors & Officers insurance policy or fidelity bond as documented in writing by the Association’s insurer (that has refused to provide coverage).
(d) Selection of Candidates. An eligible Member can become a candidate for a Director election by timely completing and returning to the Association a nomination form. If insufficient candidates (for the number of Director positions) are available after receipt of the nomination forms, the Board should attempt to locate at least one (1) qualified candidate for each Director position with a term that is due to expire (or is vacant).
The known, eligible candidates must be listed on the Mailed Ballot in alphabetical order. (See Sections 7.3 for the use of Mailed Ballots.)
(b) Election Results & Tie Votes. The candidate(s) receiving the highest number of votes, up to the number of Directors to be elected, are elected as Directors and will take office immediately following the election. In the event there is a tie vote between those candidates who receive the lowest number of votes necessary to qualify for a Director position, the tie is broken by lot (e.g., the candidates draw straws or toss a coin) under the supervision of the Board.
(c) Acclamation. If as of the deadline for the receipt of the nomination forms for candidates there is only one (1) candidate for each open Director position, the Mailed Ballots do not need to be mailed and the Director election for that year does not need to be held. Those candidates for the open Director positions shall be deemed to be the elected Directors for that year.
(a) Vacancies Generally. A vacancy on the Board is deemed to exist on the occurrence of any of the following: (i) the death, resignation, or removal of a Director (under Subsections (b) through (d), below); (ii) an increase of the authorized number of Directors; or (iii) the failure of the Members to elect a Director during any Director election.
(b) Resignation of Directors. Any Director may resign, and such resignation shall be effective on giving written notice to the Board, unless the Board and the resigning Director agree to a different date.
(d) Removal by the Members. A Director can be removed from office prior to expiration of that Director’s term by a Member vote. (See Section 7.3 for Mailed Ballot process and Section 7.4(a)(i) for quorum requirements.) The process for removal of a Director by the Member vote process is as follows:
(i) Petition. A written petition in compliance with Section 8.2(b), below, must be presented in person (or by certified mail) to the Board.
(ii) Time Limit for Board Response. Within twenty (20) days after receipt of a valid recall petition, the Board must mail copies of: (A) a notice of a special Member meeting; and (B) a Mailed Ballot to all Members. The special Member meeting must be held not less than thirty-five (35) nor more than ninety (90) days after the date the petition is received by the Board.
(iii) No Board Notice is Given. . If, after receiving a valid petition, the Board fails to provide notice within the twenty (20) day period as required by Subsection (ii), above, the Member(s) that sponsored the petition may: (A) mail the necessary notice and Mailed Ballot materials to all Members; and (B) hold a special Member meeting and a recall vote by Mailed Ballot.
(iv) Rebuttal Right. Any Director who is facing a recall vote has an absolute right to address the Members (at the special Member meeting) concerning the recall.
(v) Mailed Ballot Due Date. The deadline for the close of the recall vote must be after the close of the open forum portion of the special Member meeting. (See Sections 7.3 and 8.2(e), below, for the Mailed Ballot process and the notice of meeting requirements.)
(vi) No Quorum or Majority Vote. If Section 7.4(a)(i)’s quorum requirement (and/or Section 7.5’s approval requirements) are not met, then the recall vote is defeated and all Directors keep their positions on the Board.
(vii) Six Month Limitation. If the recall vote fails, the Members’ right to another recall vote against the same Director(s) does not arise until after six (6) months has elapsed from the date of the last recall vote. The timing provisions of this Subsection (vii) are intended to preserve Association assets.
(viii) Temporary Chair. If the Members successfully recall all Directors, the following Persons (in order) shall serve as the interim chairperson of the meeting until the Members elect a new Board and the Board has selected a new meeting chair/president: (A) the Association’s attorney of record; (B) the Association’s manager; and (C) one of the Members that sponsored the recall petition.
(e) Removal by Court Action. In response to a suit filed by a majority of the Directors (or at least five (5) Members in Good Standing), the Superior Court of Alameda County may remove any Director determined to be guilty of fraudulent or dishonest acts or gross abuse of authority or discretion with reference to the Association. (See Sections 1.12 and 7.1 for voting eligibility.)
The Association shall be made a party to any lawsuit filed pursuant to this Subsection (e).
(f) Filling Vacancies. If a vacancy on the Board of Directors is created by a Member vote pursuant to Subsection (d), above, the vacancy can only be filled by a vote of the Members. If more than one (1) Director vacancy is being filled, the Director positions will be filled so that the Person(s) with the most votes are elected to the Director position(s) with the longest remaining term of office. (See Section 5.5(b) for other vacancies.)
All other vacancies on the Board can be filled by a majority vote of the remaining Directors (whether or not a quorum of Directors is present). If the Board fails to fill any vacancy, the vacancy may be filled by a Member vote.
Should any dispute arise as to whether one (1) or more Director(s) were validly removed, elected and/or appointed, that dispute shall be decided by the election inspector(s) for that election.
Directors, officers, and/or Owners who are committee members are prohibited from receiving compensation for their services. Those Persons may be reimbursed for such actual expenses as the Board determines are just and reasonable. Expenses for which reimbursement is sought shall be supported by a proper receipt or invoice.
(i) Exclusive Power. The powers and duties of the Association that the Governing Documents do not expressly reserve to the Members (or do not expressly require approval by the Members) shall be solely exercised and performed by the Board (or such committees or officers as the Board may establish, elect or appoint). Any power to be exercised (or duty to be performed) by the Association can only be exercised (or performed) by an Owner with the written consent of the Board.
(ii) General Powers. Without limiting any powers of the Board conferred in the Governing Documents or under California law, the Board has the power to: (A) accept gifts; (B) Acquire property; (C) appoint and remove all officers, committees, agents and/or employees; (D) establish fix, levy, assess and collect Assessments; (E) open and operate bank accounts; (F) enter into contracts; (G) delegate board powers; (H) grant easements and/or other property rights; (I) enter into leases, licenses and other agreements; (J) bring and defend litigation on behalf of the Association; (K) borrow money and/or enter into loans; (L) provide services to Members; (M) call meetings; (N) pay Association expenses; (O) adopt, amend and enforce Association Rules, including rules for swimming, pleasure boating and/or other recreational purposes; (P) sell Association property in compliance with the requirements of the CC&Rs; and (Q) adopt and impose special fees to reimburse the Association.
(iii) No Active Business. The Board is prohibited from operating a business for profit. This subsection (iii), however, does not prohibit the Association and/or its Board from acquiring, owning, leasing and/or selling any Home within the AWLHOA Property.
(iv) Emergency Powers of the Board. If the AWLHOA Property (or any part) suffers damage or harm as a result of a natural disaster (e.g., earthquake, fire storm/‘wild’ fire, flood, tornado) or man-made (e.g., acts of terrorism or war), the Board can take any action it deems necessary or prudent to preserve the AWLHOA Property and/or the lives/safety of the residents during the time of the disaster and the immediate aftermath.
(i) Assessments. With reference to Assessments of the Association:
(A) Fix, levy and collect Assessments pursuant to the provisions of Article 12, below, the Declaration and California law.
(B) Approve an annual budget and fix the amount of the Assessment against each Member for each Assessment period in compliance with the provisions of Civ. Code §5300, et seq., (or comparable superseding statutes).
(C) Prepare a roster of the Members and the Assessments applicable thereto (or an accounts receivable journal).
(D) Send written notice of each Assessment to every Member subject thereto.
(E) Issue certificates, if any are required or necessary.
(ii) Association Duties. Cause all duties imposed by Governing Documents or California law to be properly performed.
(iii) Confidentiality. Have a continuing obligation and duty to keep confidential any information made available to the Director(s) (and/or officer(s)) obtained: (A) during an Executive Session; (B) from the Association’s legal counsel and/or as part of strategy/planning for any lawsuit and/or dispute involving the Association or the Board as a party; (C) during negotiations with one (1) or more Member(s); and/or (D) as a result of that Director’s or officer’s position with the Association and is personal information about a Member, including but not limited to that Member’s social security number.
(iv) Discharge of Liens. Pay any amount necessary to Bond or discharge any claim that may be or becomes a lien or encumbrance levied against the entire AWLHOA Property (or the Common Area). If one (1) or more Owners are responsible for the existence of the lien, the responsible Owner(s) are jointly and severally be liable for: (A) the cost of discharging it, and (B) any costs incurred by the Association.
(v) Enforcement. Commence and maintain, in the name of the Association (or any Member(s) who consents thereto), lawsuits and/or Member discipline.
(vi) Finances. Prepare budgets and financial statements.
(vii) Lagoon. Maintain and preserve the quality of the lagoon system.
(viii) Operating Requirements. Obtain any other material, supplies, furniture, property, labor, services, Maintenance, repairs, construction, reconstruction, structural alterations, insurance, etc. as necessary for the operation of the AWLHOA Property, or for the enforcement of the Governing Documents.
(ix) Payment of Taxes. Pay all real and personal property taxes or other amounts that the Association is required to pay under the Governing Documents or law, unless separately assessed to the Owners.
(x) Records. Cause a complete record of all its acts and corporate affairs to be kept.
(xi) Supervise. Supervise all officers, agents and employees of the Association and see that their duties are properly performed.
(xii) Vacancies. Fill a vacancy or vacancies on the Board except for a vacancy created by the removal of a Director by a Member recall. (See Section 5.5(d), above.)
(c) Limitations on Board Powers. The Board is expressly prohibited from taking any action without the vote or written assent of the Members if under the Governing Documents or California law a Member vote is required. In particular, a Member vote is required to: (i) pay compensation to Directors or Officers; (ii) fill a vacancy on the Board caused by the Members recall of a Director; and (iii) grant exclusive easement to any General Common Area to a Member as long as Civ. Code §4600 (or comparable superseding statute) is valid law.
(a) General Provisions. Meetings of the Board may be held anywhere within the County that has been designated from time to time by resolution of the Board and stated in the notice of meeting. In the absence of such designation, regular meetings shall be held at the principal office of the Association.
(b) Teleconference Meetings. Any regular or special Board meeting where Directors will be connected by electronic means (audio, video or both) must have at least one (1) Director present at the physical location identified in the meeting notice as the location where the Members may attend that Board meeting. The audio and/or video services provided must be such that each Director participating in that teleconference meeting must be able to hear the other Directors (and a Member, if any, participating during the open forum portion of the meeting).
Notice of the time and place of all regular, special and/or executive session meetings of the Board shall be given as follows:
(i) Directors. To each Director at least four (4) days prior to the meeting by one of the following methods: (A) by personal delivery of written notice; (B) by first-class mail, postage prepaid; (C) by telephone communication (either directly to the Director or to a Person at the Director’s residence or office); (D) e-mail transmission; (E) facsimile transmission; and/or (F) other electronic medium/method. All notices shall be given or sent to the Director’s address or telephone number as shown in the Association Records or as otherwise designated by that Director.
(ii) Members. To all Members by posting the notice of the regular or special meeting in a prominent place or places within the Common Area at least four (4) days prior to the meeting. Notice of the meeting may also be published in the Association’s newsletter and/or mailed to all Members.
(i) Directors. To each Director at least two (2) days prior to the meeting by one of the following methods: (A) by personal delivery of written notice; (B) by first-class mail, postage prepaid; (C) by telephone communication (either directly to the Director or to a Person at the Director’s residence or office); (D) e-mail transmission; (E) facsimile transmission; and/or (F) other electronic medium/method. All notices shall be given or sent to the Director’s address or telephone number as shown in the Association Records or as otherwise designated by that Director.
(ii) Members. To all Members by posting the notice of an executive session only meeting in a prominent place or places within the Common Area at least two (2) days prior to the meeting. Notice of the meeting may also be published in the Association’s newsletter and/or mailed to all Members. Despite receiving notice of an executive session only Board meeting, Members do not have any right to attend an executive session only meeting.
(d) Notice Contents. The Board meeting notices must state the time, place and purpose of the meeting and set forth the agenda for the meeting in compliance with Civ. Code §4920. The agenda for an executive session only Board meeting should only note the category of executive session being held. If the Board is holding a regular or special Board meeting via audio and/or video teleconferencing, the meeting notice must specify a physical location where at least one (1) Director will be present where interested Members may also attend that meeting.
(i) Selection of Officers. Immediately following each annual Member meeting (or annual Mailed Ballot), the Board shall hold a meeting for the purposes of organization, selection of officers, and the transaction of other necessary business.
(ii) Other Regular Meetings. Other regular meetings may be held at such time as fixed by the Board. Regular meetings must be conducted at least once every three (3) months. Generally, the Board holds a regular Board meeting on the third Wednesday of each month at 4:00 p.m.
(c) Emergency Meetings. The Board may hold emergency Board meetings if there are circumstances that: (a) could not have been reasonably foreseen and (b) require immediate attention and possible action by the Board. Given the necessity of emergency Board meetings and the impracticability of providing notice, emergency Board meetings can be held without complying with the notice requirements set forth in Section 6.2, above.
If prompt or immediate action of the Board is necessary and there is insufficient time to comply with the notice requirements set forth in Section 6.2, above, reasonable efforts must be made to contact all Directors regarding the proposed action in advance thereof, rather than relying on notification after the fact.
(d) Executive Sessions. The Board shall be entitled to call an executive session meeting (and/or to adjourn into an executive session) at any time to discuss: (a) litigation in which the Association is or may become a party; (b) matters relating to the formation of contracts with third parties; (c) Member discipline; (d) personnel matters; or (e) payment of delinquent Assessments by a requesting Member. Prior to adjournment to executive session, a general statement of the nature of any and all business to be considered in executive session shall be given to the Member(s) present at the general Board meeting.
If a Member who may be subject to a fine, penalty and/or other form of discipline requests, the Board shall meet in executive session to discuss the imposition of the fine, penalty and/or other form of discipline. The Member who is the subject of the disciplinary proceeding is entitled to attend the executive session. (See Civ. Code §5855 setting forth the ten (10) day notice period and other requirements for Member discipline hearings.)
The minutes for the adjourned Board meeting (or the next noticed Board meeting) and the agenda for the executive session shall note (in general language) the matter(s) discussed in the executive session.
A majority of the Directors (i.e., three (3) Directors for a five (5) Person Board) shall constitute a quorum for the transaction of business for any and all purposes. Every act and decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is established is the act of the Board. If there are insufficient Directors remaining on the Board to establish a quorum, a majority of the remaining Directors may appoint new Director(s) even if the Board is unable to establish a quorum. (See Section 5.5, above, for filling a Director vacancy.)
Once a quorum of Directors is established, the Board can continue to conduct business even if one or more Directors leave that meeting, as long as a majority of the remaining Directors at that meeting approve any decisions or acts at that meeting.
The Affirmative vote of a majority of the Directors at a Board meeting is a decision of the Board. (See Section 6.6, below, regarding approval requirements if no meeting is held and Section 5.5, above, regarding filling Director vacancies.)
(a) Unanimous Written Consent. Any action required or permitted to be taken by the Board may be taken without a meeting, if all of the Directors consent in writing to the action to be taken. If the Board resolves by unanimous written consent to take action, the written consent must be filed and maintained in the Association Records with minutes of Board meetings. Pursuant to Subsection (b), below, and the limitations of Civ. Code §4910 the Board is prohibited from using e-mails (or other electronic means) to consent to the writing under this Subsection (a); to comply with legal requirements the writing must be transmitted for signature between the members by hand-delivery or U.S. Mail.
(b) E-Mail Decisions. Board decisions by a series of e-mails (or other electronic transmissions) are prohibited except where the decision qualifies as an emergency as defined in Civ. Code §4910(b)(2) (i.e., “a circumstance that could not have been reasonably foreseen that requires immediate attention and possible action by the Board”). All e-mail unanimous written consent decisions, including ‘emergency’ decisions, must be filed and maintained in the Association Records with minutes of Board meetings.
(a) Ratification. The Board has the power to ratify decisions during a properly noticed Board meeting. All waivers, consents, and approvals must be filed in the Association Records. The requirement of notice of a meeting shall also be deemed to have been waived by any Director who attends the meeting without protesting the lack of proper notice either before or at the inception of the meeting.
(i) Meetings Open to Members. With the exception of executive sessions, any Member may attend and speak at any Board and/or Member meeting. The Board shall establish a written policy for the Member open forum period that sets forth: (i) when during a meeting Members may speak; (ii) reasonable time limits for each speaker; and (iii) the total time allotted for Members to speak. Unless a majority of the Directors expressly votes to allow further non-Director participation, the participation of non-Director Members is limited to speaking at the Member open forum period.
(ii) Minutes. Minutes shall be kept for all Board meetings. Taking into consideration the need to maintain confidentiality of matters discussed in executive sessions, any matter discussed in an executive session shall only be generally noted in the Board meeting minutes.
The minutes (or draft minutes that are marked to indicate draft status, or a summary of the minutes) of any meeting of the Board, other than minutes of an executive session, shall be available to the Members within thirty (30) days following the meeting. Upon a Member’s request (and payment of the Association’s costs of copying and distribution), copies of the minutes (or draft minutes or summary minutes) shall be provided to the requesting Member.
Members shall be notified in writing annually of the Members’ right to have copies of the minutes of any meeting, including how and where those minutes may be obtained.
(c) Conducting Meetings. All Board meetings must be conducted in accordance with a recognized system of parliamentary procedure or other parliamentary procedures as the Association may choose to adopt.
If the Association has not adopted parliamentary procedures and a dispute arises that cannot be resolved by reference to these Bylaws or applicable law, the matter shall be resolved by reference to Robert’s Rules of Order.
Only Members in Good Standing can vote on any issue or matter presented to the Members for approval. A Member who owns more than one (1) Home is ineligible to vote for all Homes owned by that Member if the Member is not in Good Standing with respect to any Home.
(a) Voting by Secret Written Ballot. Any vote on: (i) election or recall of Directors; (ii) approval of a Special Assessment or Regular Assessment increase that requires Member approval; (iii) Governing Document amendment; or (iv) grants of exclusive use of the Common Area must be by secret Mailed Ballot in compliance with Civ. Code §5115. The Board may have any other issue(s) conducted by Mailed Ballot. The written ballot may be distributed during a meeting. (See Section 7.3, below, for Mailed Ballot process).
(b) Annual Mailed Ballot. The annual Mailed Ballot (and, if desired, Member meeting) should be held during October unless other considerations warrant that the Board change when the annual Mailed Ballot (or meeting) is held. (See also Section 8.2, above, regarding Member meetings.)
(c) Voting during Member Meeting. For those matters that can still be voted upon at a Member meeting, the voting may be by voice, show of hands or by written ballot (pursuant to Subsection (a), above).
Unless voting by Mailed Ballot is required by Civ. Code §5115, the Board can decide whether to use the Mailed Ballot process. Once the determination is made to use Mailed Ballots, the Board shall establish a record date. (See Section 7.8 concerning record dates.)
(i) Distribution. The Board shall distribute the Mailed Ballot to every Member entitled to vote on the matter at least thirty (30) days prior to the final date that the Mailed Ballots are to be received by the election inspector.
(ii) Extension of Balloting Period. The time fixed for the return of Mailed Ballots may be extended by the Board.
(i) Voting Options. Any Mailed Ballot must set forth the proposed action and provide an opportunity for the voting Member to specify approval or disapproval of the proposed action.
(ii) Envelopes & Instructions. For votes on : (A) election or recall of Directors; (B) approval of a Special Assessment or Regular Assessment increase that require Member approval; (C) Governing Document amendment; or (D) grants of exclusive use of the Common Area, the Association must comply with the envelope and voting instruction requirements of Civ. Code §5115.
(iii) Director Elections. For election of Directors, the ballot must set forth the names of all eligible candidates whose names have been placed in nomination at the time the ballot is issued. The ballot form should also provide a space where the Member can designate a vote for another (i.e., write-in) candidate.
(iv) Voting Deadline. The Mailed Ballot (or voting instruction) must state the time by which the ballot must be received in order to be counted (i.e., due date). (See Subsection (a), above.)
(v) Quorum & Approval Requirements. The Mailed Ballot (or voting instruction) must set forth: (A) the number of responses needed to meet the quorum requirement for valid action; and (B) the percentage of “yes” votes needed for approval, if any.
(c) Approval Requirements. Member approval by Mailed Ballot shall be valid only if: (i) the quorum requirement is met as specified in Section 7.4, below; and (ii) the ‘yes’ votes satisfy the passage requirement, if any.
If the time for returning Mailed Ballots is extended in accordance with Subsection (a)(ii), above, the reduced quorum percentage (if applicable) in Section 7.4(a)(iii) applies.
(a) Quorum Generally. The following quorum requirements must be satisfied in order to take valid action by Mailed Ballot (or at any Member meeting). (See Section 7.3, above, concerning Mailed Ballots):
(i) Quorum – Assessments & Recall of Directors. In the case of a Member vote by Mailed Ballot (pursuant to Section 5.5, above) on Assessments requiring Member approval and/or removal of any Director from office is the quorum requirement specified in Civ. Code §5600(c) (or comparable superseding statute). That quorum percentage is currently defined as more than fifty percent (50%) of all Members. (See Section 7.5, below, for approval requirements. See also Sections 12.1(d), 12.2(b) and 12.3(a), below, for votes on Assessments).
If the minimum quorum percentage specified in this Subsection (a)(i) is not satisfied, the Mailed Ballot due date may be continued.
(ii) Quorum for Other Matters. In the case of a Mailed Ballot (or Member meeting/vote) conducted for any purpose not listed in Subsection (i), above, the quorum requirement is twenty percent (20%) of the Voting Power of the Members. (See Sections 1.12 and 7.1, above, concerning voting eligibility and Section 1.16, above, defining Voting Power.)
(iii) Reduced Quorum for Other Matters. Whether or not the minimum quorum percentage specified in Subsection (a)(ii), above, is satisfied, the Board can continue a Mailed Ballot due date (or the meeting can be adjourned to another time and/or place not more than thirty (30) days after the initial meeting date). At the new ballot deadline (or reconvened meeting), the quorum percentage shall be reduced to ten percent (10%) of the Voting Power of the Members. (See Section 8.3(a), below, concerning adjournment and Sections 1.12, 1.16 and 7.1, above, concerning voting eligibility.)
(iv) Postponement & Adjournment.
(A) Adjourned Meeting. If a quorum is never established for the meeting, a majority of the Members at the meeting may vote to adjourn (or end) the meeting for lack of a quorum, but no other action may be taken or business transacted. (See Subsections (i) and (ii), above, concerning failure to establish a quorum.) Adjournment is the only valid act that may be taken if a quorum of the Members is not established.
(B) Postponed Ballot Deadline. If insufficient Mailed Ballots in sealed envelopes are received to satisfy either the quorum (or the minimum Member approval requirement), the Board can extend the deadline for the balloting period. Notice of the continuation of the deadline must be provided to the Members.
(C) Voided Acts. Any act of the Members (whether by Mailed Ballot or at a meeting) is void and has no effect if the requisite quorum requirement is not met.
(b) Effective of Departure of Members. The Members present at a duly held meeting at which a quorum is established may continue to transact business until adjournment, notwithstanding the withdrawal of Members that leave less than a quorum, so long as any action taken (other than adjournment) is approved by at least a majority of the Members required to constitute a quorum.
If the quorum requirement is satisfied, the affirmative vote of a majority of the Members both: (a) entitled to vote; and (b) voting (either by Mailed Ballot or at the meeting), is the act of the Members. Unless, however, the vote of a greater number of Members is required by California law or by the Governing Documents. (See Section 7.4, above, concerning quorum requirements.)
In order to ensure Members’ right to privacy and to aid in the voting process, the Board may utilize the services of one (1) (or three (3)) neutral Person(s) of good repute who may be retained to: (a) receive and tabulate all ballots; and (b) supervise the voting process. The Person(s) retained to perform those services have the full powers of an inspector of elections pursuant to Civ. Code §5110 and Corp. Code §7614 (or comparable superseding statutes).
(a) Required Usage. Election inspectors must be used for votes on: (i) election or recall of Directors; (ii) approval of a Special Assessment or Regular Assessment increase that require Member approval; (iii) Governing Document amendment; (iv) grants of exclusive use of the Common Area; and (v) any other matter required by law.
(b) Election Inspectors. An employee of the management company and Members (who are not candidates, Directors or relatives of any candidate or Director) may act as election inspectors. Independent third parties, including CPAs, county poll workers and notaries public, can also act as election inspectors. The Association’s attorney and other paid vendors are prohibited from serving as election inspectors. The Association can, however, hire and pay Person(s) to act as election inspectors as long as those Person(s): (i) provide no other services to the Association; and (ii) are not otherwise compensated by the Association.
(i) Prior to Tabulation. Until the time of tabulation, the election inspector(s) must maintain possession (or designate the location of) the uncounted ballots in their sealed envelopes. When Mailed Ballots are used, no Person may open the sealed envelopes (or otherwise view the ballots) prior to the public tabulation.
(ii) After Tabulation. For the first nine (9) months after the tabulation, the election inspector must store in a secure place the Mailed Ballots and envelopes. After nine (9) months, the election inspector shall turn the stored election materials over to the Association.
(e) Recounts & Challenges. Any request for a recount and/or challenge of any Member vote shall first be given to the election inspector. The election inspector shall make the ballots available for inspection and review by a Member (or the Member’s authorized representative) if a recount or other challenge to the election process has been made. In order to trigger the Member’s right to review and inspect the ballots, the Member must make his (or her) request in writing. Upon receipt of a challenge or complaint, the Election Inspector must review the matter and provide a written response to the complaining Member(s) within fifteen (15) days of the receipt of the written complaint/request.
(a) Tabulation of Votes. Until the time of tabulation, the election inspector(s) must maintain possession (or designate the location of) the uncounted ballots in their sealed envelopes. When Mailed Ballots are used, no Person may open the sealed envelopes (or otherwise review the ballots) prior to the public tabulation.
The ballots must be counted in public at a properly noticed meeting by the election inspector(s). Candidates (or other Members) may witness the counting of the votes/ballots.
(b) Notification of Results of Balloting Process. The results of balloting must be promptly reported to the Board and recorded in the minutes of the next Board meeting. Within fifteen (15) days of the end of any balloting period, the Board must mail notification of the vote results to the Members. If the number of ballots cast with respect to any matter is insufficient to satisfy the minimum quorum requirements for valid action, the Board will notify the Members that the quorum was not met.
(c) Storage. The ballots (and if the ballots are Mailed Ballots, the envelopes that the ballots were returned in) must be stored in a secured place for at least one (1) year after the close of the balloting period.
The record dates established pursuant to this Section 7.8 shall be as of the close of business for the following dates:
(a) Establish by the Board. For the purpose of determining which Members are entitled to: (1) receive Mailed Ballots; (2) notice of any meeting; (3) vote; or (4) exercise any rights in respect to any other lawful action, the Board should fix, in advance, a “record date.”
(i) Right to Receive Notice or Vote. Only Members of record as of the record date are entitled to: (A) notice; and/or (B) vote. (See Sections 1.12 and 7.1, above, concerning voting eligibility.)
(ii) Maximum Date. The record date can be no more than sixty (60) days before the Mailed Ballot due date (or the meeting date).
(b) Failure of Board to Fix a Record Date. If for any reason, the Board fails to establish a record date, the record date for determining those Members entitled to receive notice of: (i) a Member meeting, (ii) a vote, (iii) a ballot or (iv) any other lawful act shall be the sixtieth (60th) day before meeting, voting date and/or the ballot closing date.
Pursuant to Civ. Code §5105, the Association has adopted election rules.
Meetings of the Members shall be held at a location that is: (a) as reasonably close to AWLHOA Property as practical; and (b) has been designated by the Board.
(a) Annual Meetings. When an annual Member vote is conducted by Mailed Ballot, the Association does not need to hold a regular meeting of the Members for that year. If held, the date, time, and location of the meeting shall be established by the Board and set forth in the notice of meeting sent to the Members. (See Section 7.3(a), above, for timing requirements.) Generally when held, the annual Member meeting will be at 7:00 p.m.
(i) Persons Entitled to Call Special Meeting. The Board president, vice-president, secretary, any two (2) Directors (or a majority of the quorum of the Board or five percent (5%) or more of the Members) may call a special meeting of the Members to consider any lawful business of the Association.
(ii) Procedure for Member Petition. In order to call a special meeting by five percent (5%) or more of the Members, a written request specifying the general nature of the business proposed to be transacted at the special meeting must be delivered to the Association. The written request must:
(A) Bear the signatures of all requesting Members (all in Good Standing); and
(B) Have a signed, written certification by the Member(s) circulating the request attesting to the validity of the signatures.
(1) In order to count as a valid signatory, a Member signing the request must be eligible to vote. (See Sections 1.12 and 7.1, above, concerning voting eligibility.)
(2) The Board must give the Members notice, in accordance with Subsection (e), below, of the special Member meeting (and the date, time and purpose for such meeting. The meeting date shall be at least thirty-five (35) days and no more than ninety (90) days after the request is received by the Board.
(3) If notice of the meeting is not given to the Members within twenty (20) days after the Association’s receipt of the request, the Members requesting the meeting may give the notice. The right of the requesting Members to notice and call a meeting on their own initiative shall not arise until after the twenty (20) day period has elapsed.
(4) Nothing contained in this Subsection (b) shall be construed as limiting, fixing, or affecting the time when a Member meeting may be held if the meeting is called by the Board or its president.
(c) Low Member Attendance. If a Member meeting is attended by less than one-third (1/3) of the Members (but a quorum is present), only those matters in the meeting notice may be voted upon by the Members. (See Section 1.16, above, defining Voting Power.)
(d) Effect of Departure of Members. Once a quorum is established, the Members can continue to conduct business even if Members leave as long as any action taken (other than adjournment) is approved by at least a majority of the Members required to constitute a quorum.
(i) Method. Notice of any Member meeting shall be given first-class mail postage prepaid (personally or electronically) addressed to each Member at that Member’s address. (See Civ. Code §4040; and Corp. Code §§20 and 7510.) A copy of the notice shall also be posted at a prominent place in the Common Area.
(ii) Timing. Notice shall be given not less than ten (10) nor more than ninety (90) days before the meeting date.
(ii) Minimum Content. The notice must specify the place, date, and time of the meeting.
(A) Annual Meetings. For annual meetings, the notice shall also describe those matters that the Board intends to present for Member vote. However, any matter may be presented at the meeting as long as a quorum (in excess of thirty-three percent (33%)) has been established.
(B) Special Meetings. For special meetings, the notice shall state the general nature of all business to be transacted and contain a statement that “no other business may be transacted at the special meeting.”
(C) Added Requirements for Certain Votes. For the following types of Member votes, the notice of meeting must state the general nature of the vote in order to be valid. Member action on the following items is invalid unless the notice complies with this provision:
(1) Approving a contract or transaction between the Association and one or more of its Directors, or between the Association and any corporation, firm, or other association in which one or more of its Directors has a material financial interest; or
(2) Voting upon any election to voluntarily terminate and dissolve the Association.
(iv) Affidavit of Mailing. An affidavit of the mailing/delivery may be executed by the Secretary of the Association. If an affidavit is executed, the affidavit should be filed and maintained in the Association Records. An affidavit constitutes prima facie evidence that notice was given.
(a) Adjourning Meeting. Any Member meeting (whether or not a quorum is present) may be adjourned to another place and/or time (not more than thirty (30) days) by the vote of the majority of Members present at the meeting.
Unless there is an absence of a quorum at the reconvened meeting (in which case no business other than adjournment may be transacted), the reconvened meeting may take any action that might have been transacted at the original meeting except where meeting is attended by less than 1/3 of the Voting Power of the Members (at which no new business may be introduced).
When a Member meeting is adjourned to another time or place, notice need not be given for the new meeting if the time and place thereof are announced at the meeting at which the adjournment is taken.
(b) Waiver by Attendance. Attendance at a meeting by a Member is a waiver of any objections that the Member may have with respect to notice of that meeting, except when the Member attends the meeting for the sole purpose of objecting at the beginning of the meeting to the transaction of any business because of the inadequacy or illegality of the notice.
Attendance at a meeting is not a waiver of any right to object to the consideration of matters not included in the notice of the meeting that are required to be set forth in the notice, if that objection is expressly made at the meeting. Attendance at a meeting is also not a waiver of any right to object to that meeting for reasons other than improper notice.
(c) Conducting Meetings. All Member meetings must be conducted in accordance with a recognized system of parliamentary procedure or other parliamentary procedures as the Association may choose to adopt.
If the Association has not adopted parliamentary procedures and a dispute arises that cannot be resolved by reference to these Bylaws or applicable law, the matter shall be resolved by reference to Robert’s Rules of Order.
The officers of the Association shall be a President, a Vice President, a Secretary and a Treasurer (and any other officers as the Board may appoint). One (1) Person may hold two (2) or more offices. The Board may appoint a Person who is not an Owner to an assistant officer position in order to assist the Board.
(a) Selection of Officers. Officers of the Association shall be selected by the Board at the first meeting of the Board following each annual Mailed Ballot. New officer positions may be created and filled at any Board meeting.
(b) Terms & Removal. Generally, officers hold office for a period of one (1) year (or until the officer resigns or is removed by the Board). Any officer may be removed by the Board without cause. In the Board’s discretion, any removal may be immediate. If the officer is also a Director, the Person remains a Director unless removed pursuant to Section 5.5, above.
The president shall be a Director. The president is the chief executive officer of the Association. Subject to the control of the Board, the president shall have general supervision, direction and control of the affairs and officers of the Association.
(a) Duties. The president shall: (a) chair all Board and Member meetings; (b) set or change the order of the agenda items at meetings; (c) have the general power and duties set forth in these Bylaws and/or usually vested in the office of president of a corporation; and (d) see that the orders and resolutions of the Board are carried out.
(a) Minutes. The secretary shall keep (or cause to be kept) in the Association Records minutes for all meetings of the Board, the Members and any committee with decision making power. The minutes for each meeting shall state: (i) the time and place of the meeting; (ii) the notice, if any, given; (iii) the names of those present at a Board (or committee) meeting; (iv) the number of Members present at a Member meeting; and (v) any decisions or actions.
(b) Records. The secretary shall keep (or cause to be kept) all appropriate Association Records, including a current Member list, together with the Members’ addresses (and any secondary addresses) as last submitted to the Association by each Member. The Association may also maintain the additional information concerning Owners and tenants, including email addresses and telephone numbers. However, this information will not be released or sold by the Association in order to preserve Residents’ confidential information.
(c) Meetings & Votes. The secretary shall give (or cause to be given) notice of all Member and Board meetings as required by these Bylaws and California law. The Secretary shall record (or cause to be recorded) the results of all votes in the Association Records.
The treasurer is the Association’s chief financial officer.
(a) Accounting Records. The treasurer shall keep and maintain (or cause to be kept and maintained) adequate and correct accounts for the AWLHOA Property and business transactions of the Association, including accounts of the Association’s assets, liabilities, receipts, disbursements, gains, losses, capital, retained earnings, and other matters customarily included in financial statements.
(b) Audit or Review. Pursuant to Section 13.2(k), the treasurer shall also cause an annual audit (or review) of the Association’s financial records to be made by a certified public accountant at the completion of each fiscal year in which the Association’s gross income exceeds seventy-five thousand dollars ($75,000.00).
(c) Deposits & Payments. The treasurer shall receive and deposit (or cause to be received and deposited) all monies and other valuables in the name and to the credit of the Association in the financial institutions (banks) selected by the Board.
The Treasurer shall disburse the funds as directed by the Board. If possible, the treasurer should be a signatory on all checks, notes and/or other instruments of the Association. (See Section 13.7(f), below.)
(d) Bond or Surety. If required by the Board, the treasurer shall give the Association a bond in the amount and with the surety or sureties specified by the Board for faithful performance of the duties.
The Association may appoint committees. Such committees shall have the duties and functions as established by the Board. Each committee shall consist of a chairman and two (2) or more members.
All committees serve at the pleasure of the Board. Each committee shall only have the authority, if any, granted by the Board.
The meetings and actions of all committees shall be governed by, held and taken in accordance with the provisions of this Article X. The time for committee meetings may be set by the Board (or the committee chair). Notice of committee meetings must be given to all committee members.
The Board may adopt Association Rules for the governance of any committee.
The actions of any committee shall be considered advisory to the Board. Those decisions shall be scheduled on the agenda of the next Board meeting following the committee’s action or decision. In its discretion, the Board may act to affirm, rescind, or modify any and all committee actions.
Minutes must be prepared for all committee meetings where that committee has decision-making power. Where possible the minutes from the prior committee meeting should be approved at the next committee meeting. Copies of all approved committee meeting minutes shall be placed in the Association Records and must be permanently available for review upon any Member request. If the committee has any decision-making authority, the approved minutes for that committee must be available within fifteen (15) calendar days after approval by that committee.
No Association official (including Directors, officers, committee members and/or manager) shall make, participate in making, or in any way attempt to use his or her official position to influence an Association decision in which that official knows, or has reason to know, that the official has a direct or indirect financial interest (and that financial interest is distinguishable from the financial interest of the Members of the Association generally).
The provisions of Section 11.1, above, shall not apply to an employee of the Association when he or she is negotiating that employee’s compensation or the terms of employment.
(a) Vote on Conflicts. The Board shall determine (on the basis of all facts available) whether a conflict of interest exists with respect to an Association decision. If the Board determines that a conflict exists, the Board may refer the matter to a special committee of the Board, of which the Association official is not a committee member.
(b) Violation. If a Director is found by the Board to have violated this Article XI by making, participating in or attempting to use his or her position to influence an Association decision, the Board may remove the official (or if the official is the manager, invoke the Association’s right to terminate the management contract).
Section 11.4. Applicability. The provisions of this Article XI do not apply to contracts formed before the date these Bylaws were approved by the Members.
Assessments cannot be used for campaign purposes.
(a) Covenant to Pay Assessments. As provided for in the Declaration, each Owner, by acceptance of a deed or other conveyance to any Home (whether or not it is expressed in the deed or conveyance), covenants and agrees to pay to the Association: (i) Regular Assessments; (ii) Special Assessments; (iii) Special Individual Assessments; and (iv) Emergency Assessments pursuant to Civ. Code §5610.
(b) Assessment is Continuing Lien & Personal Debt. All delinquent Assessments levied against a Home/Owner, together with late charges, interest and reasonable costs (including reasonable attorneys’ fees) for the collection, are charges on that Home. Any lien for unpaid Assessments created pursuant to the Declaration and California law is subject to foreclosure.
During the time that any Person is an Owner, that Person is liable for the payment of all Assessments and charges assessed against that Owner and/or that Owner’s Home. All Assessments (together with late charges, interest and reasonable costs, including reasonable attorneys’ fees for the collection thereof) are a separate, distinct and personal debt and obligation of that Person as well as a lien against that Owner’s Home. The Owner’s personal obligation includes a right for the Association to sue to recover those amounts.
(c) No Offset of Assessment Obligation. All Assessments levied are payable in the full amount specified, including any additional charges imposed, as provided in the Governing Documents. No offsets against any Assessment shall be permitted for any reason, including, without limitations, a claim that the Association is not exercising (or has not properly exercised) its duties, obligations and powers. No Owner can avoid the obligation (and personal liability) to pay Assessments by any act or omission, including the non-use of the Common Area and/or abandonment of the Owner’s Home.
(d) Membership Approval. In the event that Member approval is required for any increase (or imposition) of Assessments, Member approval must be solicited by Mailed Ballot. (See Civ. Code §5115, Corp. Code §7513 and Section 7.3, above, for the Mailed Ballot process. At least a majority of a quorum of the Members must approve any Assessment vote. (See Section 7.4(a)(i), above, for quorum requirements.)
Member approval as set forth above, does not apply to an increase in Regular Assessment (or the imposition of a Special Assessment) necessary to address emergency situations. For purpose of this Subsection (d), an emergency situation is any of the following:
(i) An extraordinary expense required by an order of a Court.
(ii) An extraordinary expense necessary to repair or maintain any part of the AWLHOA Property that the Association is obligated to maintain where a threat to personal safety exists.
(iii) An extraordinary expense necessary to repair or maintain any part of the AWLHOA Property that the Association is obligated to maintain where the Board could not have reasonably foreseen the need for that repair/expense while preparing and distributing the Association’s budget. Before imposing an Emergency Assessment under this Subsection (iii), the Board must pass a resolution containing written findings of the need for the Emergency Assessment and why the expense could not have been reasonably foreseen. A copy of the Board resolution must be distributed to the Members with the notice of Assessment.
(a) Allocation of Regular Assessment. The total aggregate Regular Assessment for each year shall be equally divided by (and then allocated among, assessed against, and charged to) the Owners as follows:
(i) Single Family Residential Lots. Each Owner (and that Owner’s Single Family Residential Lot) is one (1) Assessment.
(ii) All Other Members. The Assessment obligations for any Member that is not an Owner of a Single Family Residential Lot (e.g., condominium complexes, apartment buildings, etc.,) is set forth on Exhibit “B”, attached hereto.
(iii) Failure to Budget. If the Association fails to timely distribute a budget for any year, the total aggregate Regular Assessment for the prior fiscal year will be the total aggregate Regular Assessment for the year where the budget was not distributed on time. Owners are obligated to pay Regular Assessments even if the budget is not distributed on time.
(b) Limits on Board’s Authority. Section 12.1(d), above, sets forth the Member approval requirements for this Subsection (b). Except when imposing an Emergency Assessment, the Board may not impose a total aggregate Regular Assessment for the immediately preceding fiscal year without a vote of the Members. A Member vote is also required for any increase in the Regular Assessments during a fiscal year where the budget was not timely distributed.
(c) Assessment Due Date & Installments. The Regular Assessment levied for each fiscal year shall be due on February 1st.
(d) Annual Notice and/or Notice of Increase. The Board must provide individual notice to each Owner of the amount of the Regular Assessment (including notice of any increase) for the next succeeding fiscal year at least thirty (30) days and no more than sixty (60) days prior to the beginning of the next fiscal year. (See Civ. Code §5050 defining the term ‘individual notice’ as notice sent by mail (first class, registered, certified, express or overnight delivery) or, if that Owner has consented in writing, by email, fax or other electronic means.)
(e) Purpose. Regular Assessments are for expenses for the following uses and purposes: (i) maintaining the Alameda West Lagoon in a suitable condition for recreational purposes, including but not limited to, cleaning and sanitation measures, maintaining water levels, pipes, pumps, weir gates, and accruing reserves for replacement of lagoon control structures; (ii) paying taxes and other charges, if any, that may be imposed by any governmental entity upon the Alameda West Lagoon and/or any property owned by the Association; (iii) paying administrative and overhead expenses; and/or (iv) paying enforcement costs, if any, that are not reimbursed by the responsible Owner.
The Board has the authority to levy Special Assessments against the Owners/Homes where the Regular Assessment for any fiscal year is insufficient to defray the Association’s expenses.
(a) Limits on Board’s Authority. Except as provided in Section 12.1(d), above, the Board may not impose one (1) or more Special Assessments that totals more than five percent (5%) of the budgeted gross expenses for the Association for that fiscal year without a Member vote. (See Section 12.1(d) for Member approval.)
(b) Allocation & Payment of Special Assessments. Each total aggregate Special Assessment shall be divided among, assessed against and charged to the Owners/Homes in the same manner set forth in Section 12.2(d), above. Notice of any Special Assessment must be individually delivered to each Member. (See Civ. Code §4040 defining the term ‘individual delivery’ as delivery by mail (first class, registered certified, express or overnight delivery) or , if that Member has consented in writing, by email, fax or other electronic means.)
(c) Due Dates & Installments. Unless the time for payment is extended by the Board, payment of any Special Assessment is due thirty (30) days after the Board gives the Members written notice of the Special Assessment. (See Section 15.1, below for notice requirements.)
In its discretion, the Board may prorate the amount of any Special Assessment over a period of months. If prorated, the monthly prorated amount of any Special Assessment is due on the first (1st) day of the month.
(d) Surplus Funds. If the proceeds of any Special Assessment exceed the amount required to accomplish the purpose for which the Assessment was levied, the surplus may, in the Board’s discretion, be allocated among the Association’s reserve accounts.
The Board may impose Special Individual Assessments against an Owner/Home to reimburse the Association for: (a) damage to the Alameda West Lagoon or the Common Area caused by that Owner and/or (b) obtaining that Owner/Home’s compliance with the Governing Documents.
Once a Special Individual Assessment has been levied against an Owner, the Association will personally deliver or mail notice of the Special Individual Assessment to that Owner. The Special Individual Assessment is due as a separate debt of the Owner/Home payable in full to the Association within thirty (30) days after the notice of the Assessment was personally served or mailed. (See Civ. Code §§5850(c) and 4040 regarding delivery requirements for Special Individual Assessment notices.)
Fines imposed as Special Individual Assessments may not be liened and foreclosed upon.
The notice and hearing provisions of Civ. Code §5855 do not apply to charges imposed by the Association as part of its efforts to collect delinquent Assessments under this Section 12.5.
(a) Delinquent Assessments. If any payment of any Assessment (installment or lump sum) is not actually received by the Association within fifteen (15) days after the same becomes due, the Assessment is delinquent. Regular Assessments and Special Assessments are delinquent if not received by the fifteenth (15th) day of the month (if on the weekend or holiday, then on the next business day thereafter). Special Individual Assessments are delinquent if not received by the forty-fifth (45th) day after notice of the Assessment is mailed or personally delivered.
(b) Interest Charges. Beginning thirty (30) days after the due date (and continuing until paid), any delinquent Assessment shall bear interest at the maximum rate allowed by law. As of 2014, Civil Code currently allows 12% simple interest as the maximum rate.
(c) Late Charges. The Association may also charge late charges on any delinquent Assessment pursuant to the Association’s schedule of late charges (i.e., Assessment Collection Policy). (See Civ. Code §§5600(b) and 5650 for authority and limits for late charges; as of 2014, late charges are the larger of $10.00 or ten percent (10%) of the delinquent Assessment amount.)
(d) Partial Payments. Subject to the limitations imposed by Civ. Code §5655 (or comparable superseding statute), any partial payments the Association receives and accepts will be applied as specified in the Association’s Delinquent Assessment Collection Policy and/or Association Rules.
(e) Notice of Satisfaction. Upon the Association’s receipt of full payment, the Association shall cause to be recorded in the Office of the County Recorder of the County of Alameda, State of California, a Notice of Satisfaction and Release of Lien.
(f) Remedies for Collection of Assessments. In the event of default in payment of any Assessment, the Association may commence any procedure for collection. In addition to any other remedies herein or provided by law, the Association may enforce each non-payment as follows: The Association may initiate a legal action against any Owner personally obligated to pay the delinquent Assessment (including a small claims action), foreclose its lien against the Owner’s Home or accept a deed in lieu of foreclosure.
Foreclosure by the Association of its lien may be by judicial foreclosure or by nonjudicial foreclosure. However, as long as Civ. Code §5720 (or comparable superseding statute) remains in force, foreclosure is only available to the Association if the unpaid delinquent Assessment amount (“not including any accelerated Assessments, late charges, fees and costs of collection, attorney’s fees, or interest”) is in excess of eighteen hundred dollars ($1,800.00) or is over twelve (12) months delinquent. For debts smaller than eighteen hundred dollars ($1,800.00) or less than twelve (12) months delinquent, the Association may sue in Small Claims Court. In addition, as long as Civ. Code §5725(b) (or comparable superseding statute) remains in force, fines and/or penalties as Member discipline “may not be characterized nor treated as an Assessment that may become a lien.”
Nonjudicial foreclosure is subject to a right of redemption for a ninety (90) day period after the trustee’s sale. (See Civ. Code §5715(b) and Code of Civil Procedure §729.035.) These remedies are cumulative.
(g) Decision to Lien. A majority of the Board must vote to record a lien and memorialize that decision in the Board meeting minutes before recording any Association lien.
(h) Meet & Confer Rights. Every Owner has the right to request a “meet & confer” with the Association in accordance with Civ. Code §5900 et seq., and Civ. Code §5700 for any Assessment dispute. The Association must meet with any Owner that requests a “meet & confer”. The Owner has the right to select the form of Alternative Dispute Resolution (“ADR”) for any Assessment dispute with the Association.
(i) Association’s Duty to Offer ‘Meet & Confer’. Prior to recordation of a lien, the Association must offer the delinquent Owner dispute resolution pursuant to the Association’s “meet & confer” program. (See Civ. Code §5900 et seq.) Prior to starting a foreclosure, the Association must offer the delinquent Owner: (A) dispute resolution pursuant to the Association’s “meet & confer” program; or (B) ADR with a neutral third party. (See Civ. Code §§5900-5965.)
The delinquent Owner has the right to select the form of ADR. However, binding arbitration is not available where the Association intends to use judicial foreclosure.
All Association books of account shall be maintained in accordance with accrual or modified accrual accounting principles, Civ. Code §5200 and Corp. Code §§8, 195 and 8320. The Board shall keep (or cause to be kept) all Association Records, including all Governing Documents. (See Civ. Code §5200 et seq., and Corp. Code §8320.)
The following financial statements and related information for the Association shall be regularly prepared and copies distributed to each Member pursuant to the provisions of Civ. Code §5300 (or comparable superseding statute):
(a) Pro Forma Operating Budget. A pro forma operating budget for each fiscal year (or a summary of the pro forma operating budget with a general description of the contents of the full report and instructions on how to obtain a complete copy printed on the first page of the summary in 10-point bold face type) pursuant to Civ. Code §5300-5320 (or comparable superseding statutes);
(b) Association’s Reserves. A summary of the Association’s reserves, prepared pursuant to Civ. Code §5565;
(c) Reserve Funding Plan. A summary of the Association’s Reserve Funding Plan with a notice that the full Reserve Funding Plan is available upon request;
(d) Deferred Maintenance. A statement of any decisions to defer (or not undertake) Maintenance, repair and/or replacement of any major component(s);
(e) Anticipated Assessments. A statement of any anticipated Special Assessments.
(f) Funding Mechanisms. A statement of the mechanism(s) for funding the Association’s reserves, including Assessments, borrowing, use of other assets, deferred Maintenance, etc.;
(g) Method of Calculation. A general statement of the procedures used to calculate the Association’s reserve funding needs;
(h) Outstanding Loans. A statement of outstanding loans, if any;
(i) Annual Summary of Association’s Insurance Coverage. A summary of the Association’s insurance policies, if any. The Association’s disclosure obligations may be satisfied by distributing a copy of the policy declaration page to the Members, if that page presents the information specified in Civ. Code §5300(b)(9);
(j) Annual Assessment & Reserve Funding Disclosure Form. A summary of the Association’s Assessment and reserves that complies with Civ. Code §5565-5570;
(k) Year-End Review or Audit. A year-end audit (or financial review) of the Association’s finances. The audit (or financial review) shall be performed by a licensee of the California State Board of Accountancy (CPA) for any year in which an audit or review is required by Civ. Code §5305 (or comparable superseding statute). The year-end audit (or financial review) shall consist of at least the following items: (i) a balance sheet as of the end of the fiscal year; (ii) an operating (income) statement for the just ended fiscal year; (iii) a statement of cash flows for the just ended fiscal year; (iv) a statement advising Members of the place where the names and addresses of the current Members are located; and (v) any information required to be reported under Corp. Code §8322 requiring the disclosure of certain transactions in excess of $50,000 per year between the Association and any Director or officer (and/or indemnifications and advances to an officer or Director in excess of $10,000 per year); and
(l) Annual Policy Statement. The Association’s Annual Policy Statement with the following information and any other information required by law or the Governing Documents:
(i) Contact Person. The name and address of the Association’s contact Person pursuant to Civ. Code §4035;
(ii) Secondary Addresses. An explanation of Member’s right to provide to provide up to two (2) secondary contact addresses;
(iii) Posting Location. The location, if any, for the posting of general notices within the AWLHOA Property.
(iv) Individual Delivery. Notice of Member’s right to request ‘individual delivery’‘. (See Civ. Code §4040 defining the term ‘individual delivery’.)
(v) Minutes. Notice of Member’s right to receive copies of minutes of meetings;
(vi) §5730 Disclosure. A statement providing the statutory language set forth in Civ. Code §5730;
(vii) Assessment Collection Policy. A statement of the Association’s Assessment Collection Policy outlining practices for collection of delinquent Assessments;
(viii) Discipline & Fine Policy. A statement of the Association’s disciplinary policies and fining policies;
(ix) Dispute Resolution. A summary of the Association’s Internal Dispute Resolution Process and Alternative Dispute Resolution “ADR” Policy and Practices in compliance with Civ. Code §§5920 & 5965;
(x) Architectural Review Process. A summary of the Association’s Architectural Review Procedures and Practices in compliance with Civ. Code §4765; and
(xi) Overnight Payments. The mailing address for overnight payment of Assessments. (See Civ. Code §5655.)
The Board shall also comply with the reserve study and inspection requirements, including the Reserve Funding Plan, specified in Civ. Code §5550 (or comparable superseding statute) as long as that statute remains in force.
The Board may authorize any officer(s) or Director(s) to enter into any contract in the name of, or on behalf of, the Association. Unless expressly authorized by the Board, no officer shall have any power or authority to bind the Association to any contract or agreement, or to pledge the credit of the Association, or to render the Association liable for any purpose and/or on any account.
The Board shall keep (or cause to be kept) all Association Records, including all Governing Documents. (See Civ. Code §5200 et seq., and Corp. Code §8320.)
The Association’s fiscal year shall be as determined by resolution of the Board. If the Board has not made a resolution, the fiscal year will be the calendar year.
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(a) Bank Accounts. Sums received or collected by the Association from Assessments, together with any interest or other funds, shall be promptly deposited in two (2) or more checking, savings or money market accounts in a financial institution (e.g., bank or S&L) selected by the Board. The financial institution must be federally insured and have physical offices located within the United States of America. Each account shall be clearly designated as either an “operating” or “reserve” account.
The Association shall maintain at least one (1) account into which shall be deposited the operating portion of its budget. Disbursements from such account shall be for the general operation of the Association including, but not limited to, wages, repairs, betterments, Maintenance, and other operating expenses of the AWLHOA Property. The Association shall also maintain at least one (1) account into which shall be deposited reserve funds.
(b) Prudent Investments. The Board has the ability to make prudent investment of reserve funds in insured certificates of deposit, money market funds or similar investments consistent with the investment standards normally observed by trustees or other fiduciaries.
(c) Accurate Records & Board Control. The Board shall have exclusive control of the Association’s accounts and investments. At all times, the Board is responsible to the Owners for the maintenance of accurate records for these funds.
Unless the Association is exempt from federal or state taxes, all sums allocated to capital replacement funds (i.e., reserves) will be accounted for as contributions to the capital of the Association and trust funds segregated from the regular income of the Association (or in any other manner authorized by law or regulations of the Internal Revenue Service and the California Franchise Tax Board that will prevent such funds from being taxed as income of the Association).
(d) Commingling of Funds & Interest Allocation. To preclude a multiplicity of bank accounts, Association funds may be commingled in two (2) or more accounts and need not be deposited in separate accounts so long as Association Records are maintained and excess tax liability is avoided.
Any interest received on such deposits shall be credited proportionately to the balances of the various Assessment fund accounts maintained in the Association Records.
(e) Line Item Adjustments. The Board, in its discretion, may make appropriate adjustments among the various line items in the budget if the Board determines that it is prudent and in the best interest of the Association and its Owners to make such adjustments.
(f) Checks. All checks (or other payment demands ) should be signed by the Treasurer, if possible, and the president (or the Association’s manager or other Director or officer). Any withdrawal of funds from reserve accounts requires at least two (2) signatures in compliance with Civ. Code §5510(a) (i.e., two (2) Directors or a non-Director officer and a Director).
Section 14.1. Member Inspection Rights.
(a) Association Records. Association Records and Enhanced Association Records subject to Member inspection under Civ. Code §5205 and Corp. Code §8310, et seq., must be made available for inspection by any Member (or the Member’s duly appointed representative) pursuant to the timing requirements set forth in Civ. Code §5210. A Member’s rights of inspection shall be exercisable upon written demand served upon the Association. All Member demands must state the purpose for the Member’s inspection request.
A Member’s inspection rights arise, if and only if, the Member’s purpose is reasonably related to their interests as a Member of the Association. Where the Association reasonably believes that the information will be used for a purpose not reasonably related to the Member’s interests, the Association may, within ten (10) days of receipt of the Member’s written demand, offer a reasonable alternative to inspection.
The Governing Documents must also be available for inspection by any Member. Copies of any of the Governing Documents will be available for purchase from the Association. The cost charged to the Member shall be the Association’s cost.
(b) Minutes of Meetings. As more particularly set forth in Section 6.7(b), above, Members have a right, upon request and payment of copying and distribution costs, to copies of minutes (or draft minutes or minute summaries) for Member, Board and/or committee meetings.
(c) Insurance Policies. Copies of all insurance policies (or certificates of insurance) shall be retained by the Association and shall be available for inspection by Members at any reasonable time.
(d) Membership List. In order to protect privileged information pertaining to Members and the Members’ privacy interests, the Association will mail or otherwise distribute any Association related communication to its Members in lieu of providing a copy of its Member list as a reasonable alternative method pursuant to Corp. Code §8330(c) and Civ. Code §5200 et seq. The distributing Member pays for the postage and other costs, if any, incurred by the Association for that Member’s distribution/mailing.
(e) Audit. Any Owner, at the expense of that Owner, may request an independent audit of the Association’s finances.
Section 14.2. Direct Inspection Rights. Every Director shall have the right to, at any reasonable time, inspect the Association Records, Enhanced Association Records and/or the Association’s physical property in compliance with current California law. The right of inspection by a Director includes the right to make extracts and copies of documents.
Section 14.3. Inspection Rules. The Board may establish reasonable Association Rules with respect to: (a) inspection requests; and (b) the production and review of Association Records and Enhanced Association Records.
Addresses in the Association Records may be changed by written notice given in compliance with this Article XV. Unless and until notice is provided of a change, the last address provided for each Person shall be deemed to be the address of that Person for any and all purposes. (See Civ. Code §§4025-4050 specifying methods and timing of various delivery options.)
Section 15.1. Mailing Address. Any communication or notice of any kind permitted or required by law or the Governing Documents should be in writing and may be delivered as follows:
(a) Owners. To the street address of the Owner’s Home (or to such other address as the Owner has designate in writing to the Association). (See Civ. Code §§4040 and 4045 outlining individual delivery options and general delivery options for notices to Owners; email, faxes and other electronic delivery methods are only allowed if that Owner has consented in writing to that electronic delivery method.)
(b) Owner’s Secondary Address. For purposes of any collection notices, the Association must send collection notices to up to two (2) “secondary addresses” if one is provided in writing to Association by that Owner. (See Civ. Code §4040(b) setting forth “secondary address” provisions.)
(c) The Association & Its Directors/Officers. To Alameda West Lagoon Home Owners’ Association at the principal office of the Association – Walsh Property Management – P.O. Box 2657 in Castro Valley, California 94546 (or to such other address as the Association may from time to time designate in writing to the Owners). (See Civ. Code §4035 specifying delivery options for Owners to use when communicating with the Association. The Association does not agree to personal delivery; the Association does not agree to delivery by email, fax and other electronic means.)
(d) First Mortgagees. To the street (aka mailing) address as each eligible first mortgagee (i.e., a first mortgagee who has sent a written request for notice to the Association) has designated in writing to the Association (or if no designation has been made, to the last known address, if any, the first mortgagee provided to the Association, the Association’s insurer and/or the Owner/mortgagor).
Section 15.2. Service Upon a Co-Owner. Service of a notice (or demand) to one (1) Co-Owner (or a general partner of a partnership that is an Owner of Record, or to any officer or agent for service for a corporation that is an Owner of Record) is deemed delivered to all co-Owners (or the partnership or corporation). Except, however that notices and mailings pertaining to delinquent Assessments must be sent to all Owners of record.
Section 15.3. Deemed Delivered. All notices and demands served by mail shall be sent by first-class or certified mail, with postage prepaid, and are deemed delivered seventy-two (72) hours after deposit in the United States mail. All notices and demands served by personal delivery are deemed delivered upon service.
Section 16.1. Amendment of Bylaws.
(a) Amendment by the Board. By a vote of a majority of the Board, the Board may adopt an amendment to these Bylaws when an amendment is needed to conform a portion of the Bylaws to changes in applicable California law and the changes in the applicable California law are mandatory and nondiscretionary in nature.
Before entertaining a motion to approve any amendment under this Subsection (a), the Board must obtain a written opinion from the Association’s legal counsel confirming that: (i) the changes in California law necessitate the amendment; and (ii) the Association is bound by law to observe the change in law.
(b) Amendment by the Members. Except as provided in Subsection (a), above, these Bylaws may only be amended or repealed by the affirmative vote (by Mailed Ballot pursuant to Section 7.3, above) of Members representing over fifty percent (50%) of the Voting Power of all eligible Members. (See Section 1.10, above, defining Mailed Ballot.)
If any provision of these Bylaws requires the vote of a larger percentage (or all) of the Members, that provisions may not be altered, amended, or repealed except by the approval of the necessary number of Members.
Section 16.2. Effective Date. Any amendment to these Bylaws becomes effective immediately upon approval by the Members.
Section 16.1. Manager. The Board may employ the services of a Manager (or management company). Upon such conditions as are otherwise deemed advisable by the Board, the Board may delegate to the Manager any of the Board’s duties and powers, provided that the Manager shall at all times remain subject to the general control of the Board.
Section 16.2. Notice Requirements. Any notice or other document permitted or required to be delivered may be delivered pursuant to the terms and provisions of Civ. Code §4040 and Corp. Code §§8, 20, 21 and 195.
Section 16.3. Construction & Definitions. Unless the context requires otherwise or a term is specifically defined in the Governing Documents, the general provisions, rules of construction, and definitions in the California Nonprofit Mutual Benefit Corporation Law (i.e., Corp. Code §7110 et seq.) and the Davis-Stirling Act (i.e., Civ. Code §4000 et seq.) govern the construction of these Bylaws.
(a) Liberal Construction. All provisions of these Bylaws shall be liberally construed together to promote and effectuate the fundamental concepts of this Association.
(b) Singular Includes Plural/Gender. The masculine gender includes the feminine and neuter, and singular number includes the plural and the plural number includes the singular.
(c) Captions. All captions and titles used in these Bylaws are intended solely for the reader’s convenience of reference and do not affect the interpretation or application of any of the terms or provisions contained herein.
(d) Superceding Statutes. Any and all references to specific statutes in the Governing Documents expressly incorporate by this reference the mandatory provisions of any comparable superseding statute that replaces the statutory reference(s) in these Governing Documents.
Section 16.4. Conflicts. In the event of any conflict between California (or federal) law and the Declaration, the law shall control. In the event of any conflict between the Declaration and any other provisions of the Governing Documents, the provisions of the Declaration shall control. In the event of any conflict between the Articles of Incorporation and the Bylaws, the Articles of Incorporation shall control. In the event of any conflict between the Bylaws and any Association Rules, the Bylaws shall control.
Section 16.5. State Law & Severability. Notwithstanding the provisions of Section 16.3, above, these Bylaws shall be deemed independent and severable. The invalidity or partial invalidity of any provision of these Bylaws shall not impact the validity or enforceability of any other provision of these Bylaws which shall remain in full force and effect.
In case any of the Bylaws conflicts with any provisions of the laws of the State of California, such conflicting Bylaws shall be null and void upon a Court determination to such effect. All other Bylaws shall remain in full force and effect.
Certificate of Secretary
The undersigned duly elected and acting Secretary of the mutual benefit nonprofit corporation, known as Alameda West Lagoon Home Owners’ Association, does hereby certify that the above and foregoing Bylaws consisting of 30 pages, were duly adopted by a majority of the Membership (pursuant to Article XXI of the Bylaws) on ___day of ________________, 2014 and that this document does now constitute the Bylaws of Alameda West Lagoon Home Owners’ Association.
(Signature of the Secretary)
Lots 1 through 3 of Block 2; Lots 1 through 106 of Block 3; and Lots 1 through 3 of Block 12 of Tract No. 1866 — South Shore Unit No. 1, Alameda, California, recorded on October 30, 1957 at Book 38, Pages 50 through 54 of the Book of Maps of the Office of the County Recorder of the County of Alameda, State of California.
Lots 1 through 12 and 16 through 135 of Block 1 of Tract No. 1898 — South Short Unit No. 2, Alameda, California, recorded on August 22, 1958 at Book 38, Pages 89 through 92 of the Book of Maps of the Office of the County Recorder of the County of Alameda, State of California.
Lot 1 of Block 1 of Tract No. 1986 — South Shore Unit No. 3, Alameda, California, recorded on December 31, 1958 at Book 39, Page 41 of the Book of Maps of the Office of the County Recorder of the County of Alameda, State of California.
Lot 2 of Tract No. 2334 – South Shore Unit No. 3, Alameda, California, recorded on January 18, 1962 at Book 44, Page 99 of the Book of Maps of the Office of the County Recorder of the County of Alameda, State of California.
All Lots of Tract No. 2391 – South Short Unit No. 3, Alameda, California, recorded on February 15, 1963 at Book 46, Pages 22 through 24 of the Book of Maps of the Office of the County Recorder of the County of Alameda, State of California.
Lots 1 through 75 of Block 1; Lots 1 through 64 of Block 2; Lots 1 through 20 of Block 3; and Lots 1 through 11 of Block 4 of Tract No. 2537 – South Shore Unit No. 4, recorded on February 20, 1964 at Book 48, Pages 42 through 43 of the Book of Maps of the Office of the County Recorder of the County of Alameda, State of California.
Lots 1 through 19 of Tract No. 2707, recorded on May 27, 1965 at Book 50, Page 34 of the Book of Maps of the Office of the County Recorder of the County of Alameda, State of California.
Voting & Assessment Allocations for Non-Single Family Residences
Each Member who owns a Single Family Residential Lot has one (1) vote per Single Family Residential Lot owned and is assessed one (1) Assessment per each Single Family Residential Lot owned. Below is a list of the Members of the Alameda West Lagoon Homeowners Association whose property within the AWLHOA Property is not a Single Family Residential Lot:
|No.||Address||No. of Votes||No. of Assessments|
|1||339 Broadway (Laguna Hacienda HOA)||5||5|
|2||2070 Clinton Avenue (Alameda Hospital)||4||4|
|3||1170 Ninth Street (Beachcomber Condos)||4||4|
|4||2137 Otis Drive (St. Francis Condos)||6||6|
|5||2149 Otis Drive (Otis Terrace Apts)||6||6|
|6||2167 Otis Drive (Otis Drive LLC – Apts)||3||3|
|7||2209 Otis Drive (Laguna Vista HOA)||2||2|
|8||2217 Otis Drive (Apt. Building)||2||2|
|9||400 Park Street (Coral Reef Inn & Suites)||7||7|
|10||845 Portola Avenue (Portola Condos)||4||4|
|11||610 Willow Street (Driftwood Apts)||7||7|
|12||613 Willow Street (So. Shore Lagoon HOA)||5||5|
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