BYLAWS
OF
AZTECH COURT COMMON AREA MAINTENANCE ASSOCIATION
ARTICLE I
NAME AND LOCATION
The name of the corporation is Aztech Court Common Area Maintenance Association (the "Association"), an Arizona nonprofit corporation. The principal office and address of the corporation is located at c/o Horizon Real Estate Group, Inc., 2999 N. 44th Street, Ste. 450, Phoenix, AZ 85 18.
ARTICLE II
DEFINITIONS, PURPOSES AND ASSENT
Section 2.01. Definitions. The definitions in the Declaration of Covenants, Conditions, Restrictions and Easements ("CC&R"), for Aztech Court, as amended from time to time and recorded in the office of the Clerk and Recorder of Maricopa County, Arizona, will apply to these Bylaws, an all defined terms used in these Bylaws will have the same meaning as the defined terms use in the CC&R's, unless the defined terms in these Bylaws or the context of these, Bylaws clearly indicate otherwise.
Section 2.02. Purposes. The specific purposes for which the Association is formed are
(i) to provide for the maintenance, preservation, and control of the Common Area of Aztech Court in Tempe, Arizona; (ii) to promote the health, safety, and welfare of the Owners and users of Aztech Court; and as set forth more specifically in the Association's Articles of Incorporation.
Section 2.03. Assent. All present or future Owners, their families, present or future tenants, and their guests and invitees, and any other person using the facilities of Aztech Court in any manner are subject to the Association Documents, including these Bylaws and any rules adopted by the Board of Directors. The acquisition or rental of any of the Lots in Aztech Court or the occupancy f any of the Lots will constitute ratification and acceptance of these Bylaws and an agreement 0 comply with those rules.
ARTICLE III
MEMBERSHIP
Section 3.01. Membership. Ownership of a Lot is required in order to qualify for membership in the association.
Section 3.02. Representation on Board of Directors. If title to a Lot is held by a firm, corporation, partnership, association, other legal entity or any combination thereof, or if any individual or entity holds title to more than one Lot, then in either case, that individual or entity may appoint, by a writing furnished to the Association, a delegate to represent each such Lot as a candidate or, and if elected, as a member of, the Board of Directors. Such delegate will not vote as a member of the Association unless such person is appointed by a proxy executed in conformance with these Bylaws to cast the voting interest of the Lot which he represents.
Section 3.03. Responsibilities of Members. Any person, including Declarant, on becoming an Owner, will automatically become a Member and be subject to these Bylaws. Such membership will terminate without any formal Association action whenever such person ceases to own a Lot, but such termination will not relieve or release any such former Owner from any liability or obligation incurred under the CC&R's or in any way connected with the Association during the period of such ownership, or impair any rights or remedies which the Board of Directors or others may have against such former Owner arising out of ownership of the Lot and membership in the Association and the covenants and obligations incident thereto.
3.04. Membership Certificates. No certificates of stock will be issued by the Association, but the Board of Directors may, if it so elects, issue membership cards to Owners. Such membership card will be surrendered to the Secretary of the Association whenever ownership of the Lot designated on the card will terminate.
Section 3.05. Classes of Membership. The Association will have one class of voting membership, co posed of all Owners, including Declarant.
The Board may establish additional classes of membership from time to time.
Section 3.06. Voting Privileges. All Members will be entitled to vote on Association matters. The number of votes a member has is dependent on the percentage of square feet its fee occupies in relation to the total square footage of Aztech Court.
When more than one person holds an interest in any Lot, all such persons will be Members. The vote for such Lot will be exercised by one person or alternative persons as the Owners among themselves determine. If more than one of the multiple Owners are present at a meeting in person or by proxy, the vote allocated to their Lot may be cast only in accordance with the agreement of a majority in interest of the Owners. There is majority agreement if any one of the multiple Owners casts the vote allocated to his Lot without protest being made promptly to the person presiding over the meeting by any of the other Owners of the Lot.
Any Owner of a Lot that is leased may assign his voting right to the tenant, provided that the tenant is appointed to vote on behalf of the Owners by proxy and the proxy is furnished to the Secretary of the Association prior to any meeting in which the tenant exercises the voting right.
Section 3.07. Proff of Mebership. Any person or entity, on becoming and Owner, will furnish to the Manager or to the Secretary of the Association a photocopy or a certified copy of the recorded instrument vesting that person or entity with an ownership interest, which instrument will remain in the files of the Association. AN owner will not be deemed a Member of the Association in good standing and will not be entitled to vote at any annual or special meeting of the embers unless this requirement is first met.
ARTICLE IV
MEETINGS, QUORUM, VOTING, PROXIES
Section 4.01. Place and Frequency of Meetings. Meetings of the Members will be held at least once each year at such place, within or without the State of Arizona, as the Board of Directors may determine.
Section 4.02.(a). Annual Meetings. The first annual meeting of the Members will be held within one year after the date of the adoption of these Bylaws. Each subsequent annual meeting of the members will be held on a date and at a time set by the Board of Directors. The purpose of the annual meetings is for the election of the Board and the transaction of such other business of the association as may properly come before the meeting.
Section 4.02.(b). Notwithstanding any provision in the CC&R's, bylaws or other documents to the contrary, all meetings of the association and board of directors are open to all members of the association and all members so desiring shall be permitted to attend and listen to the deliberations and proceedings provided, however, that for regular and special meetings of the board, association members who are not board members may not participate in any deliberation or discussion unless expressly so authorized by a vote of the majority of a quorum of the board, except that any portion of a meeting may be closed only if the portion of the meeting is limited to one or more of the following:
i. Employment or personnel matters for employees of the board or the association.
ii. Legal advice from an attorney for the board or the association.
iii. Pending or contemplated litigation.
iv. Pending or contemplated matters relating to enforcement of the association's documents or rules.
Section 4.03. Special Meetings. Special meetings of the Members may be called at any time by the President of the Association, or by a majority of the Board of Directors, or upon written request of Members who are collectively entitled to vote [at least equal to the number of votes held by industrial members] of all of the votes in the Association.
Section 4.04. Notice of Meetings. Written notice stating the place, day, and hour of the meeting and the agenda, including the general nature of any proposed amendment to the CC&R's or Bylaws, any budget changes and any proposals to remove a director or officer, for the meeting will be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting, personally or by mail or otherwise as permitted by the Act, by or at the direction of the President, or the Secretary, or the persons calling the meeting, as provided in these Bylaws, to the registered mailing address for notice (as provided in the CC&R's) of each Member entitled to vote at such meeting.
Section 4.05. Quorum. A quorum is deemed present throughout any meeting of the Association if Members entitled to cast (or proxies entitled to cast) 25% of the votes of the Association are present at the beginning of the meeting. If, however, such quorum is not present or represented at the meeting, the Members entitled to vote at the meeting will have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented by proxy.
Section 4.06. Actions Binding on Members. A majority of votes intended to be cast by Members constituting a quorum in person or by proxy will be sufficient to make decisions binding on all Owners, unless a different number or method of voting is expressly required by statute or by the CC&R's, the Articles, or these Bylaws.
Section 4.07. Majority of Owners. As used in these Bylaws, the term "majority" will mean those votes, Owners, or other groups as the context may indicate totaling more than 50 % of the total number.
Section 4.08. Voting by Mail. Voting by mail is permitted for election of the Board of Directors, amendment of the Articles, adoption of a proposed plan of merger, consolidation or dissolution pursuant to the provisions of the Act and the Arizona Nonprofit Corporation Act, each as amended from time to time, or other questions that come before the Association. In the case of a vote by mail, the Secretary will give written notice to all Members, which notice will include (i) a proposed written resolution setting forth a description of the proposed action, (ii) a statement that the Members are entitled to vote by mail for or against such proposal, (iii) a statement of a date not less than twenty (20) days after the date such notice will have been given by which all votes must be received, and (iv) the specified address of the office to which all votes must be sent. Votes received after that date will not be effective. Delivery of a vote in writing to the designated office will be equivalent to receipt of a vote by mail at such address for the purpose of this section.
Section 4.09.(a). Proxies. Any Member may cast such Member's vote in person or by proxy, but no proxy will be valid if it is not dated or if it purports to be revocable without notice. Further, no proxy will be valid after eleven months from the stated date of its execution unless otherwise provided in the proxy or unless voluntarily revoked upon notice, amended, or sooner terminated by operation of law. Finally, no proxy will be valid unless filed with the Secretary of the Association at or before the appointed time of the meeting at which the proxy will be voted.
Section 4.09.(b). If only one of the multiple owners of a unit is present at a meeting of the association, he is entitled to cast all the votes allocated to that unit. If more than one of the multiple owners are present, the votes allocated to that unit may be cast only in accordance with the agreement of a majority in interest of the multiple owners unless the CC&R's expressly provides otherwise. There is majority agreement if anyone of the multiple owners casts the votes allocated to that unit without protest being made promptly to the person presiding over the meeting by any of the other owners of the unit.
Section 4.09.(c). Votes allocated to a unit may be cast pursuant to a proxy duly executed by a unit owner. If a unit is owned by more than one person, each owner of the unit may vote or register protest to the casting of votes by the other owners of the unit through a duly executed proxy. A unit owner may not revoke a proxy given pursuant to this section except by actual notice of revocation to the person presiding over a meeting of the association. A proxy is void if it is not dated or purports to be revocable without notice. The proxy is revoked on presentation of a later dated proxy executed by the same unit owner. A proxy terminates one year after its date, unless it specifies a shorter term or unless it states that it is coupled with an interest and is irrevocable.
Section 4.09.(d). If the CC&R's requires that votes on specified matters affecting the condominium be cast by lessees rather than unit owners of leased units all of the following apply:
i. The provisions of sections 4.09.(b). and (c). of this section apply to lessees as if they were unit owners.
ii. Unit owners who have leased their units to other persons shall not cast votes on those specified matters.
iii. Lessees are entitled to notice of meetings, access to records and other rights respecting those matters as if they were unit owners. Unit owners shall also be given notice, in the manner prescribed in A.R.S. § 33-1248, of all meetings at which lessees may be entitled to vote.
Section 4.09.(e). Unless the CC&R's provides otherwise, votes allocated to a unit owned by the association shall not be cast.
Section 4.10. Designation of Voting Representative by Non-Individual Owners--Reguirement for Proxy. If title to a Lot is held in whole or in part by a firm, corporation, partnership, association, other legal entity, the voting privilege appurtenant to that ownership may be exercised only by a proxy executed on behalf of such party or parties, filed with the Secretary of the Association, and appointing and authorizing one person or alternate persons to attend all annual and special meetings of the Members and to cast the vote allocated to that Lot at the meeting.
Section 4.11. Waiver of Notice. Waiver of notice of a meeting of the Members will be deemed the equivalent of proper notice. Any Member may waive, in writing, notice of any meeting of the Members, either before or after such meeting. Attendance at a meeting by a Member, whether in person or by proxy, will be deemed waiver by such Member of notice of the time, date and place of the meeting unless such Member specifically objects to lack of proper notice at the time the meeting is called to order. Attendance at a special meeting will also be deemed waiver of notice of all business transacted at the meeting unless objection to the calling or convening of the meeting, of which proper notice was not given, is raised before the business is put to a vote.
Section 4.12. Action Without a Meeting. Any action which may be taken by the vote of the Members at a regular or special meeting may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by of all of the Members.
ARTICLE V
BOARD OF DIRECTORS; SELECTION; TERM OF OFFICE
Section 5.01. Number, Qualification and Initial Board. The affairs of this Association will be managed by a Board of not less than three and no more than nine Directors. Except as provided below regarding Directors appointed by Declarant, the Directors will be Members of the Association or the delegates of Members appointed by proxy under Article IV above. The number of the Board of Directors will be established from time to time by amendment to these Bylaws.
The initial number of members of the Board of Directors will be three. The names and addresses of the three persons who are to serve on the initial Board of Directors until their successors are appointed are as listed below:
Reggie Winssinger – President
c/o Horizon Real Estate Group Inc.
2999 N 44th St Suite 450
Phoenix AZ 85018
Laurel Walsh – Vice President
c/o Horizon Real Estate Group Inc.
2999 N 44th St Suite 450
Phoenix AZ 85018
Minnie Salzman
c/o Horizon Real Estate Group Inc.
2999 N 44th St Suite 450
Phoenix AZ 85018
Section 5.02. Directors During Declarant Control. During the Period of Declarant Control the Board of Directors will be selected by Declarant and will serve at the sole discretion of Declarant. The Directors selected by Declarant need not be Members of the Association. Unless Declarant directs otherwise, and subject to these Bylaws and the requirements of the Act and other applicable laws, the initial Board of Directors named in the Articles will continue to serve throughout the Period of Declarant Control. Declarant will surrender its right to select the Board of Directors upon termination of the Period of Declarant Control, as provided below or otherwise required by the Act.
Section 5.03. Election of Directors After Period of Declarant Control. Upon termination of the Period of Declarant Control in accordance with the CC&R's, a special meeting of the Association will be called, at which Declarant will turn control of the Association over to the other Members as provided in the Act. The Members will elect a new Board of Directors, and any terms of Directors appointed by Declarant that have not expired will terminate at that time. Subsequently, Directors will be elected by the Members at each annual meeting of the Members. At the first general election of the Board by Members and at subsequent elections, the Members may cast as many votes as they are entitled to exercise under the provisions of Section 3.06 above. Voting for Directors will be by secret written ballot.
Section 5.04. Term of Office of Directors After Period of Declarant Control. The term of office for the initial Directors elected by the Members will be fixed at the time of their election as they themselves will determine in order to establish a system of three-year terms in which at least one-third of the Board is elected each year, and the Board will identify in which year the directorships for each category of representation are subject to election. For example, if the number of Directors on the initial Board is set at three pursuant to Section 5.01 above, one Director will serve for a one-year term, one -Director will serve for a two-year term, and one Director will serve for a three-year term. At the expiration of the initial term of office of each respective Director, a successor will be elected to serve three years. Each Director will hold office until such Director's successor is elected by the Members and qualified to take over the office.
Section 5.05. Removal of Directors. Any Director other than one appointed by Declarant may be removed, with or without cause, at any regular or special meeting of the Members by two-thirds of the votes of the Members voting in person or by proxy at a meeting at which a quorum is present. A successor to any Director removed may be elected at such meeting to fill the vacancy created by removal of the Director. A Director whose removal is proposed by the Members will be given notice of the proposed removal at least ten (10) days prior to the date of such meeting and will be given an opportunity to be heard at such meeting.
Section 5.06. Vacancies.
Section 5.06.(a). During Period of Declarant Control. During the Period of Declarant Control, if a Director appointed by Declarant dies, becomes disabled or resigns, Declarant will appoint a new Director to serve the balance of the term of the resigning, disabled or deceased Director; and a Director elected by the Members dies, becomes disabled or resigns, the remaining Directors will appoint a new Director from among the Members other than Declarant to serve the remainder of the term of the resigning, disabled or deceased Director representing Members other than Declarant.
Section 5.06.(b). Following Period of Declarant's Control. After the expiration or termination of
Period of Declarant Control, any vacancy occurring on the Board may be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors. The term of the Director so elected will be coincident with the term of the replaced Director.
Section 5.07. Compensation. No Director will receive compensation for any service rendered to the Association. However, any Director may be reimbursed for actual expenses incurred in the performance of his duties as a Director.
ARTICLE VI MEETINGS OF DIRECTORS
Section 6.01. Regular Meetings. Regular meetings of the Board of Directors will be held at such regular times as set by the Board of Directors, at such place and hour as may be fixed from time to time by resolution of the Board. Should a regularly scheduled meeting fall upon a legal holiday, then that meeting will be held at the same time on the next day which is not a legal holiday. In no event shall less than three meetings occur in a twelve month period.
Section 6.02. Special Meetings. Special meetings of the Board of Directors will be held when called by the President of the Association, or by any two Directors, after not less than three days' notice to each Director.
Section 6.03. Quorum. A quorum is deemed present throughout any meeting of the Board of Directors if persons entitled to cast 50% of the votes on the Board are present at the beginning of the meeting.
Section 6.04. Actions Binding on Directors. Every action taken or decision made by a majority of the Directors present at a duly held meeting at which a quorum is present will be regarded as the act of the Board.
Section 6.05. Waiver of Notice. Attendance of a Director at any meeting will constitute a waiver of notice of such meeting, except when a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Before, at, or after any meeting of the Board of Directors, any member of the Board may waive in writing notice of such meeting, and such waiver will be deemed equivalent to the giving of such notice. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the waiver of notice of such meeting.
Section 6.06. Action Taken Without a Meeting. The Directors will have the right to take any action which they could take at a meeting in the absence of a meeting by obtaining the written approval of all the Directors. Any action so approved will have the same effect as though taken at a meeting of the Directors.
ARTICLE VII
POWERS AND DUTIES OF THE BOARD OF DIRECTORS
Section 7.01. General. The Board of Directors will have the powers and duties necessary for
administration of the affairs of the Association. Except as provided by these Bylaws and the CC&R's, the Board of Directors may do all such acts and things which are not specifically required to be done by the Members and may otherwise act in all instances on behalf of the Association.
Section 7.02. Specific Powers and Duties. Without limiting the generality of powers and duties set forth in Section 7.01 above, the Board of Directors will have the following powers and duties:
Section 7.02.(a). To administer and enforce the CC&R's, easements, uses, limitations, obligations, and all other provisions set forth in the CC&R's.
Section 7.02.(b). To establish, make, amend from time to time, and enforce compliance with such reasonable rules and regulations as may be necessary for the operation, use, and occupancy of Aztech Court, subject to the provisions of the CC&R's. A copy of such rules and regulations will be delivered or mailed to each Member promptly after adoption.
Section 7.02.(c). To keep in good order, condition, and repair all the Common Area and all items of personal property, if any, used in the enjoyment of the Common Area. In addition, cause additional improvements as part of the common elements. No approval of the Members is required for expenditures for these purposes, except as otherwise required by the CC&R's or these Bylaws.
Section 7.02.(d). Regulate the use, maintenance, repair, replacement and modification of common elements.
Section 7.02.(e). To determine, levy, and collect the prorated Annual Assessments to be paid by each of the Members towards the gross expenses of Aztech Court, and to adjust, decrease, or increase the amount of the Assessments, and to credit any excess of Assessments over expenses and cash reserves to the Members against the next succeeding Assessment period.
Section 7.02.(f). To levy and collect Special Assessments whenever, in the opinion of the Board, it is necessary to do so in order to meet increased operating or maintenance expenses or costs, or additional capital expenses, or because of emergencies. All Special Assessments will be in statement form and will set forth in detail the various expenses for which the Special Assessments are being made.
Section 7.02.(g). To levy and collect Default Assessments for violation of the Association Documents or because the Association has incurred an expense on behalf of a Member under the Association Documents.
Section 7.02.(h). To collect delinquent Assessments by suit or otherwise and to enjoin or seek damages from Owner provided in the CC&R's and these Bylaws; and to exercise other remedies for delinquent Assessments as set forth in the CC&R's.
Section 7.02.(i). To borrow funds in order to pay for any expenditure or outlay required pursuant to the authority granted by the provisions of the CC&R's and these Bylaws and to authorize the appropriate
to execute all such instruments evidencing such indebtedness as the Board of Directors may deem necessary; provided, however, that the Board will not borrow more than $50,000 or cause the Association to be indebted for more than $50,000 at any one time without the prior approval of a majority of votes of Members present and voting in person or by proxy on the issue.
Section 7.02.(j). To enter into contracts within the scope of their duties and powers.
Section 7.02.(k). To establish a bank account for the operating account of the Association and for all separate funds as required or deemed advisable by the Board of Directors.
Section 7.02.(l). To cause to be kept and maintained full and accurate books and records showing all of the receipts, expenses, or disbursements and to permit examination thereof by Members or their Mortgagees at convenient weekday business hours.
i. Except as proscribed by subsection ii of this section, all and other records of the association and the board of directors shall be made reasonably available for examination by any unit owner and its authorized agents.
ii. Books and records kept by or on behalf of the association and the board may be withheld from disclosure to the extent that the portion withheld relates to any of the following:
A. Personnel matters or a person's medical records.
B. Communication between the board and an attorney for the association.
C. Pending or contemplated litigation.
D. Pending ,or contemplated matters relating to enforcement of the association's documents or rules.
E. Meeting minutes or other records of a session of a board meeting or association meeting that is not required to be open to all members pursuant to A.R.S. § 33-1248.
Section 7.02.(m). To cause any and all access roads, parking areas, and roadways in and to Aztech Court and across the Property to be maintained to the extent those facilities are within the jurisdiction or control of the Association, subject to the provisions of the CC&R's.
Section 7.02.(n). To cause the maintenance of the lawn, trees, shrubs, and other vegetation, and the sprinkler or other irrigation systems located on the Common Area for the benefit of the Members.
Section 7.02. (o). To delegate to the Manager or any other person or entity ·such of the Association's duties or responsibilities as may be more conveniently or efficiently performed by someone other than by the Association, and to agree to assess to the Members a reasonable fee for such services, except that the duties set forth in subparagraphs (e), (t), (g) and (i) of this Section 7.02 and duties reserved to the Board by law will not be so delegated.
Section 7.02.(p). Institute, defend or intervene in litigation of administrative proceedings in its own name or on behalf of itself or two or more unit owners on matters affecting Aztech Court.
Section 7.02.(q). Acquire, hold, encumber and convey in its own name any right, title or interest to real or personal property, except that common elements may be conveyed or subjected to a security interest only pursuant to A.R.S. § 33-1252.
Section 7.02.(r). Grant easements, leases, licenses and concessions through or over the common elements.
Section 7.02.(s). Impose and receive any payments, fees or charges for the use, rental or operation of the common elements other than limited common elements described in A.R.S. § 33-1212, paragraphs 2 and 4 and for services provided to unit owners.
Section 7.02.(t). Impose reasonable charges for the preparation and recordation of amendments to the CC&R's or statements of unpaid assessments.
Section 7.02.(u). Assign its right to future income, including the right to receive common expenses assessments, but only to the extent the CC&R's expressly provides.
Section 7.02.(v). Exercise any other powers conferred by the CC&R's or bylaws.
Section 7.02.(w). Exercise all other powers that may be exercised in this state by legal entities of the same type as the association.
Section 7.02.(x). Exercise any other powers necessary and proper for the governance and operation of the association.
Section 7.03. Insurance:
Section 7.03.(a). The individual land owners shall maintain, to the extent reasonably available, both:
i. Property insurance on the common elements insuring against all risks of direct physical loss commonly insured against or, as determined by the board of directors against and extended coverage perils. The total amount of insurance after application of any deductibles shall be not less than 80% of the actual cash value of the insured property at the time the insurance is purchased and at each renewal date, exclusive of land, excavations, foundations and other items normally excluded from property policies.
ii. Liability insurance in an amount determined by the board of directors but not less than any amount specified in the CC&R's, covering all occurrences commonly insured against for death, bodily injury and property damage arising out of or in connection with the use, ownership or maintenance of the common elements.
Section 7.03.(b). To the extent available, the insurance maintained under subsection a, paragraph i of this section, if determined by the board, includes the unit or any portion of those units but will not include improvements and betterments installed by unit owners or the personal property of unit owners.
Section 7.03. (c). If the insurance described in subsection a of this section is not reasonably available, the association promptly shall cause notice of that fact to be hand-delivered or sent prepaid by United States mail to all unit owners.
Section 7.03.(d). Insurance policies carried pursuant to subsection a of this section shall provide the following:
i. Each unit owner is an insured person under the policy with respect to liability arising out of his interest in common elements or membership in the association.
ii. The insurer waives its right to subrogation under the policy against any unit owner.
iii. No act or omission by any unit owner, unless acting within the scope of his authority on behalf of the association, will void the policy or be a condition to recovery under the policy.
Section 7.03.(e). An insurer that has issued an insurance policy under this section shall issue certificates or memoranda of insurance to the association and, on written request, to any unit owner, mortgagee or beneficiary under a deed of trust. The insurer issuing the policy shall not cancel or refuse to renew it until thirty days after notice of the proposed cancellation or nonrenewal has been mailed to the association, each unit owner and each mortgagee or beneficiary under a deed of trust to whom a certificate or memorandum of insurance has been issued at their respective last known addresses.
Section 7.03.(f). Any portion of the unit for which insurance is required under this section which is damaged or destroyed shall be repaired or replaced promptly by the owner of the affected parcel unless any of the following apply;
i. Repair or replacement would be illegal under any state or local health or safety statute or ordinance.
ii. 80% of the unit owners, including every owner of a unit or allocated limited common element which will not be rebuilt, vote not to rebuild.
Section.7.03.(g). The cost of repair or replacement in excess of insurance proceeds and reserves is a common expense. If the entire property is not repaired or replaced:
i. The insurance proceeds attributable to the .damaged common elements in proportion to their common element interests or as otherwise provided in the CC&R's shall be used to restore the damaged area to a condition compatible with the remainder of the property.
ii. The insurance proceeds attributable to units and allocated limited common elements which are not rebuilt shall be distributed in proportion to their common element interests or as otherwise provided in the CC&R's to the owners of those units and the owners of the units to which those limited common elements were allocated, or to lienholders as their interests may appear.
iii. The remainder of the proceeds shall be distributed to all the unit owners or lienholders as their interest may appear in proportion to the common element interests of the units.
Section 7.03.(h). If the unit owners vote not to rebuild any unit, that unit's allocated interests are automatically reallocated on the vote as if the unit had been condemned under § 331206, subsection A, and the association promptly shall prepare, execute and record an amendment to the CC&R's reflecting the reallocations.
Section 7.03.(i). This section does not prohibit the CC&R's from requiring additional or greater amounts of insurance coverage or does not prohibit the board of directors from acquiring additional or greater amounts of coverage as it deems reasonably appropriate.
Section 7.04. Manager. The Board of Directors may employ for Aztech Court a professional management agent or agents as Manager for compensation established by the Board of Directors to perform such duties and services as the Board of Directors will authorize. The Board of Directors may delegate to the Manager, subject to the Board's supervision, all of the powers granted to the Board of Directors by-these Bylaws, other than the powers set forth in subparagraphs (e), (0, (g), (i) and (0) of
7.02 of this Article and duties reserved to the Board by law. Declarant, or an affiliate employee of Declarant, may be employed as Manager, subject to the limitations of the Act.
Section 7.05. Accounts and Reports. The following management standards of performance will be followed unless the Board by resolution specifically determines otherwise:
Section 7.05.(a). A segregation of accounting duties should be maintained, and disbursements by check in any amount greater than $5,000 will require two signatures. Cash disbursements will be limited to amounts of $200 or less.
Section 7.05.(b). Cash accounts of the Association will not be commingled with any other accounts.
Section 7.05.(c). No remuneration will be accepted by the Board of Directors or the Manager from vendors, independent contractors, or others providing goods or services to the Association, whether in the form of commissions, finder's fees, service fees, prizes, gifts, or otherwise (except that such persons may be employees of Declarant during the period of Declarant's control). Anything of value received will be for the benefit of the Association.
Section 7.05.(d). Any financial or other interest that the Manager or a member of the Board of Directors may have in any firm (other than Declarant) providing goods or services to the Association will be disclosed promptly to the Board of Directors.
Section 7.05. (e). Within thirty days after adoption of any proposed budget for the property, the board of directors shall provide a summary of the budget to all the unit owners. Any budget or amendment shall be ratified by the unit owners in accordance with the procedures set forth in this subsection. To ratify the budget the board of directors shall set a date for a meeting of the unit owners to consider ratification of the budget not fewer than fourteen nor more than thirty days after mailing of the summary. Unless at that meeting a majority of all the unit owners reject the budget, the budget is ratified, whether or not a quorum is present. If the proposed budget is rejected, the periodic budget last ratified by the unit owners shall be continued until such time as the unit owners ratify a subsequent budget proposed by the board
of directors.
Section 7.05.(f). Commencing at the end of the calendar quarter in which the first Lot is sold by Declarant and closed, and continuing on a quarterly basis, financial reports will be prepared for the Board of Directors containing the following:
i. An income statement reflecting all income and expense activity for the preceding three months;
ii. A balance sheet as of the last day of the quarter;
iii. A delinquency report listing all Owners who have been delinquent during the preceding three-month period in paying the periodic installments of Assessments and who remain delinquent at the time of the report, and describing the status of any action to collect such installments which remain delinquent.
Section 7.05. (g). A balance sheet as of the last day of the Association's fiscal year and an operating statement for the fiscal year will be distributed to the Members. At the written request of an Owner or First Mortgagee, such statements will be audited at the requesting party's expense. Any such audited statements will be delivered to any Owner requesting the report and to the Association upon payment of a reasonable fee for copying.
i. An account status report reflecting the status of all accounts in an "actual" versus "approved" budget format with a budget report reflecting any actual or pending obligations that are in excess of budgeted amounts by an amount exceeding the operating reserves or 10% of a major budget category (as distinct from a specific line item in an expanded chart of accounts) will be prepared for the Board periodically upon the Board's request and will be made available to all Members.
Section 7.06. Hearing Procedure. The Board will not impose a fine, suspend voting, or suspend any rights of a Member or other occupant for violations of rules and regulations or of the provisions of the Aztech Court Documents unless and until the procedure below is followed:
Section 7.06.(a). Demand. Written demand to cease and desist from the alleged violation will be served upon the alleged violator specifying:
i. the alleged violation;
ii. the action required to abate the violation; and
iii. a time period not less than ten (10) days during which the violation may be abated without further sanction, if such violation is a continuing one, or a statement that any additional similar violation may result in the imposition of a sanction after notice and hearing, if the violation is not continuing.
Section 7.06.(b). Notice. At any time within twelve (12) months of such demand, if the violation continues past the allowed in the demand for abatement without penalty or if the same rule is subsequently violated, the Board or its delegate will serve the violator with written notice of a hearing to be held by the Board. The notice will contain the following:
i. the nature of the alleged violation;
ii. the time and place of the hearing, which time will not be less than ten (10) days from the giving of the notice;
iii. an invitation to attend the hearing and produce any statement, evidence, and witness on the Member's behalf; and
iv. the proposed sanction to be imposed.
Section 7.06.(c). Hearing. The hearing will be held pursuant .to the notice, affording the Member a reasonable opportunity to be heard. Prior to the effectiveness of any sanction under these Bylaws, proof of notice and the invitation to be heard will be placed in the minutes of the meeting. Such proof will be deemed adequate if a copy of the notice, together with a statement of the date and manner of delivery, is entered by the officer, director, or agent who delivered such notice. The notice requirement will be deemed satisfied if the alleged violator appears at the meeting. The minutes of the meeting will contain a written statement of the results of the hearing and the sanction, if any, imposed. Written and oral evidence may be presented. The presenting party will provide copies of any written evidence to the other party or parties. The decision of the Board will be final.
Section 7.06. (d). Appeal. The Board may in its discretion appoint a Hearing Committee to hear the matter. In such event the above procedure will apply except that either party may appeal the decision of the Hearing Committee to the Board by written notice to the Hearing Committee, the other party and the Board. The Board will consider the minutes of the hearing and report the decision of the Board within a reasonable period of time not exceeding sixty (60) days after receipt of the notice. The decision of the Board will be final.
These procedures will not be necessary in order to impose any sanction or penalty for nonpayment of a delinquent Assessment.
ARTICLE VIII
OFFICERS AND THEIR DUTIES
Section 8.01. Enumeration of Officers. The officers of the Association will be a President, Vice-President, Secretary and Treasurer, and such other as the Board may from time to time create by resolution.
Section 8.02. Election of Officers. The election of officers will take place at the meeting of the Board of Directors following each annual meeting of the Members.
Section 8.03. Term. The of the Association will be elected 'annually by the Board, and each will hold
for one year or until his successor is duly elected and unless he sooner resigns, or is removed, or is otherwise disqualified to serve.
Section 8.04. Special Appointments. The Board may elect such other as the affairs of the Association may require, each of whom will bold office for such period, have such authority, and perform such duties as the Board may from time to time determine.
Section 8.05. Resignation and Removal. Any officer may be removed from office with or without cause by the Board. Any officer may resign at any time by giving written notice to the Board, the .President, or the Secretary. Such resignation will take effect on the date of receipt of such notice or at any later time in the notice, and unless otherwise in the notice; the 'acceptance of such resignation will not be necessary to make it effective.
Section 8.06. Vacancies. A vacancy in any office may be filled by appointment by the Board. The
appointed to such vacancy will serve for the remainder of the term of the officer replaced.
Section 8.07. Multiple Offices. Any two or more offices may be held by the same person except the
offices of President and Secretary.
Section 8.08. Duties. The duties of the officers are as follows:
Section 8.08.(a). President. The President will preside at all meetings of the Association and the Board of Directors; will see that orders and resolutions of the Board are carried out; will sign all leases, mortgages, deeds, and other written instruments; will co-sign all promissory notes; cause to be prepared and will execute, certify and record amendments to the CC&R's on behalf of the Association; and will exercise and discharge such other duties as may be required of the President by the Board.
Section 8.08.(b). Vice-President. The Vice-President will act in the place and stead of the President in the event of his absence, inability, or refusal to act, and will exercise and discharge such other duties as may be required by the Board.
Section 8.08.(c). Secretary. The Secretary will record the votes and keep the minutes of all meetings and proceedings of the Board and of the Members; keep the corporate seal of the Association and place it on all papers requiring said seal; serve notice of meetings of the Board and of the Members; keep appropriate current records listing the Members together with their addresses; and perform such other duties as required by the Board.
Section 8.08.(d). Treasurer. The Treasurer will receive and deposit in appropriate bank accounts all monies of the Association and will disburse such funds as directed by resolution of the Board of Directors; sign all checks of the Association unless the Board specifically directs otherwise, and co-sign all promissory notes of the Association; keep proper books of account; at the direction of the Board, cause an annual audit of the Association books to be made by a public accountant at least once in every three fiscal years; and prepare an annual budget and a statement of income and expenditures to be presented to the Members at their regular annual meeting, and deliver or make copies available of each to the Members.
ARTICLE IX
COMMITTEES
The Board of Directors may appoint a Hearing Committee as described in Article VII above, and other committees as the· Board deems appropriate in carrying out its purposes. Following the period of Declarant's control provided in the CC&R's, the Board will also appoint the Design Review Committee.
ARTICLE X INDEMNIFICATION
To the extent permitted by law and consistent with the Articles of Incorporation, the Association will indemnify every member of the Board of Directors, and every officer, employee and agent of the Association and every person who serves at the request of the Association as a manager, director, officer, employee, fiduciary, or agent of any other foreign or domestic corporation or of any partnership, joint venture, trust or other enterprise or employee benefit plan against liability asserted against or incurred by such person in such capacity or arising out of that person's capacity as such. The indemnification permitted under this Article will not extend, in any event, to any act or omission occurring prior to the date of incorporation of the Association.
In the event of a settlement, indemnification will be provided only in connection with such matters covered by this settlement as to which the Association is advised by counsel that the person to be indemnified has not been guilty of such actions or omissions in the performance of such person's duties for the Association. The foregoing rights will not be exclusive of other rights to which such member of the Board of Directors or officer or other person may be entitled. All liability, loss, damage, cost and expense arising out of or in connection with the foregoing indemnification provisions will be treated and handled by the Association as a Common Expense.
ARTICLE XI
NONPROFIT CORPORATION
The Association is not organized for profit. No member of the Association, member of the Board of Directors, or person from whom the Association may receive any property or funds will receive or will be lawfully entitled to receive any pecuniary profit from the operations of the Association, and in no event will any part of the funds or assets of the Association be paid as a dividend or be distributed to, or inure to the benefit of, any member of the Board of Directors. Notwithstanding the foregoing, (i) reasonable compensation may be paid to any Member or Manager acting as an agent or employee of the Association for services rendered in effecting one or more of the purposes of the Association, (ii) any Member or Manager may, from time to time, be reimbursed for his actual and reasonable expenses incurred in connection with the administration of the affairs of the Association, and any Director may be reimbursed for actual expenses incurred in the performance of his duties.
ARTICLE XII
AMENDMENTS
These Bylaws may be amended, regular or special meeting of the Board, by a vote of a majority of a quorum of Directors present in person or by proxy, but amendment of Article V, X, XII or any portion of those Articles will require approval of all Directors.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Fiscal Year. The fiscal year of the Association will begin on the first day of January and end on the 31st day of December every year, except that the first fiscal year will begin on the date of incorporation.
Section 13.02. Corporate Seal. The Association will have a seal in circular form having within its circumference the words: "Aztech Court."
Section 13.03. Conflicts of Documents. In the case of a conflict between the CC&R's and the Articles of Incorporation, the CC&R's prevail. In Case of any conflict between the Articles of Incorporation and these Bylaws, the Articles will control; and in the case of any conflict between the CC&R's and these Bylaws, the CC&R's will control unless stated otherwise in the specific article.
The undersigned members of the initial Board of Directors have executed these Bylaws this 13th day of June, 1995.
Reggie Winssinger Laurel Walsh Minnie Salzman