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BYLAWS
OF
ROARING FORK PRESERVE HOMEOWNERS ASSOCIATION
INTRODUCTION:
These Bylaws of Roaring Fork Preserve Homeowners Association, (the
"Association") are adopted for the regulation and management of the Association in
conformance with the Colorado Nonprofit Corporation Act, C.R.S. 7-20-101, et seq., as
amended from time to time (the "Nonprofit Corporation Act") and the Colorado Common
Ownership Interest Act, C.R.S. 38-33.3-101, et seq., as amended from time to time (the
"Act"). The Association is referenced in the Declaration of Covenants, Conditions,
Restrictions and Easements (the "Declaration") for the Roaring Fork Preserve Subdivision,
located in Carbondale, Colorado, which Declaration is to be recorded in the Office of the
Clerk and Recorder of Garfield County, Colorado. The Association is to operate the
Common Interest Community for same, in accordance with the requirements for an
association of Unit Owners charged with the administration of property under the Act. Each
capitalized term not otherwise defined in these Bylaws shall have the meaning specified or
used in the Act or as defined in the Declaration. The term "Unit" shall mean any lot shown
on the Plat of Roaring Fork Preserve Subdivision which may be conveyed in conformance
with the laws of the State of Colorado. For purposes of conforming the terms and provisions
of these Bylaws to the terms and conditions of the Act, the term "Lot" shall be analogous to
the term "Unit" as that term is defined in the Act and the term "Lot Owner" shall be
analogous to the term "Unit Owner" as that term is defined in the Act.
ARTICLE I: MEMBERS
1.1 Unit Owners/Members. Every Unit Owner while such person is a Unit
Owner, shall be a Member of the Association. Membership shall be appurtenant to and may
not be separated from Ownership of any Unit. No Unit Owner, whether one or more
persons, shall have more than one membership per Unit owned, but all of the persons
owning each Unit shall be entitled to rights of membership and use and enjoyment
appurtenant to such Ownership.
1.2 Annual Meeting. Annual meetings of Members shall be held in December
of each year on such date and time as set forth in the notice. At the annual meetings, the
Directors of the Executive Board shall be elected by ballot of the Members, in accordance
with the provisions of Article II of these Bylaws. The Members also shall set a time (within
10 days of each such annual meeting) and place for the first regular meeting of the
Executive Board. The Members may transact other business as may properly come before
them at these annual meetings.
1.3 Special Meetings. Special meetings of the Association may be called by the
president, by a majority of the Directors of the Executive Board or by Members comprising
twenty percent (20%) of the votes in the Association.
1.4 Place of Meetings. Meetings of the Members shall be held at the Property
or at a suitable place convenient to the Members, as may be designated by the Executive
Board.
1.5 Notice of Meetings. The secretary or other officer specified in the Bylaws
shall cause notice to be hand delivered or sent prepaid by United States mail to the mailing
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address of each Unit or to the mailing address designated in writing by the Member, not
Less than ten (10) nor more than fifty (50) days in advance of a meeting. Such notice shall
state the time and place of the meeting and the items on the agenda, including, if applicable,
the general nature of any proposed amendment to the Declaration or these Bylaws, any
budget changes, and any proposal to remove an officer or member of the Executive Board.
No action shall be adopted at a meeting except as stated in the notice.
1.6 Waiver of Notice. Any Member may, at any time, waive notice of any
meeting of the Members in writing, and the waiver shall be deemed equivalent to the receipt
of the notice.
1.7 Adjournment of Meeting. At any meeting of Members, a majority of the
Members who are present at that meeting, either in person or by proxy, may adjourn the
meeting to another time.
1.8 Order of Business. The order of business at all meetings of the Members
shall be as follows:
(a) Roll call or equivalent check-in procedure of Members present and
entitled to vote;
(b) Inspection and verification of proxies;
(c) Proof of notice of meeting;
(d) Reading of minutes of preceding meeting;
(e) Reports of officers;
(f) Committee reports;
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(g) Establish number and terms of Directors of the Executive Board (if
required and noticed);
(h) Election of inspectors of election (when required);
(i) Election of Directors of the Executive Board (when required);
(j) Establish a time (within 10 days of the annual meeting) and place for
the first regular meeting of the Executive Board;
(k) Ratification of budget (if required and noticed);
(1) Unfinished business; and
(m) New business.
1.9 Voting. Voting shall be based on one vote per Unit. The Members shall be
of one class as defined in the Declaration.
(a) If only one of several co-owners of a Unit is present at a meeting of the
Association, the owner present is entitled to cast the vote allocated to the Unit. Individual
co-owners may not cast fractional votes. If more than ane of the co-owners are present, the
vote allocated to the Unit may be cast only in accordance with the agreement of a majority
in interest of the co-owners. There is majority agreement if any one of the co-owners casts
the vote allocated to the Unit without protest being made promptly to the person presiding
over the meeting by another co-owner of the Unit, in which case such Member's vote shall
not be counted. The Members shall be of one class as defined in the Declaration.
(b) Votes allocated to a Unit may be cast under a proxy duly executed by
a Member, provided that any proxy shall be filed with the Secretary of the Association at
least 24 hours prior to the time of any meeting. If a Unit is owned by more than one person,
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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 Member may revoke a proxy given
under this section only 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
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notice. A proxy terminates one year after its date, unless it specifies a shorter term.
(c) The vote of a corporation or business trust may be cast by any officer
of that corporation or business trust in the absence of express notice of the designation of
a specific person by the board of directors or bylaws of the owning corporation or business
trust. The vote of a partnership may be cast by any general partner of such entity in the
absence of express notice of the designation of a specific person by the owning partnership.
The vote of limited liability company may be cast by any manager of such entity in the
absence of express notice of the designation of a specific person by the owning limited
liability company. The moderator of the meeting may require reasonable evidence that a
person voting on behalf of a corporation, partnership, Limited liability company or business
trust owner is qualified to vote.
1.10 Quorum. Members present in person or by proxy at any meeting of Members
but no less than twenty percent (20%) of the Members, shall constitute a quorum at that
meeting.
1.11 Majority Vote. The vote of a majority of the Members present in person or
by proxy at a meeting at which a quorum is present shall be binding upon all Members for
all purposes except where a higher percentage vote is required in the Declaration, these
Bylaws or by law.
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ARTICLE II: EXECUTIVE BOARD
2A Number and Qualification. The affairs of the Common Interest
Community and the Association shall be governed by an Executive Board which shall consist
of three (3) persons to be known as "Directors," who, excepting the Directors appointed by
the Declarant, shall be Unit Owners. If any Unit is owned by a partnership or corporation,
any officer, partner or employee of that Unit Owner shall be eligible to serve as a Director
and shall be deemed to be a Unit Owner for the purposes of the preceding sentence.
Directors shall be elected by the Unit Owners, except for those appointed by the Declarant.
Directors shall serve until their successors are duly elected and qualified.
2.2 Powers and Duties. The Executive Board may act in all instances on behalf
of the Association, except as provided in the Declaration, the Articles of Incorporation of the
Association (the "Articles"), these Bylaws or the Act. The Executive Board shall have,
subject to the limitations contained in the Declaration, the Articles and the Act, the powers
and duties necessary for the administration of the affairs of the Association and of the
Common Interest Community, which shall include the powers and duties set forth in the
Declaration.
2.3 Election and Term of Office. At annual meetings of the Members of the
Association to be held as herein provided, the terms of office of the Directors may be fixed
for such period of time as the Members entitled to vote may determine, and such terms may
be staggered, that is to say, various Directors may be elected for terms of different lengths
so that there will be a carryover of old Directors at each annual meeting, and only new
Directors will be designated thereafter, provided that nothing herein contained shall prevent
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the election of a Director whose term has expired to a new term as such Director. At any
meeting at which Directors are to be elected, the Members may, by resolution, adopt specific
procedures which are not inconsistent with these Bylaws or the Corporation Laws of the
State of Colorado for conducting the elections.
2.4 Vacancies. Vacancies in the Executive Board, caused by any reason other
than the removal of a Director by a vote of the Members, may be filled at a special meeting
of the Executive Board held for that purpose at any time after the occurrence of the vacancy,
even though the Directors present at that meeting may constitute less than a quorum.
Vacancies shall be filled in the following manner:
(a) As to vacancies of Directors whom Members other than the Declarant
elected, by a majority of the remaining elected Directors constituting the Executive Board,
and
(b) As to vacancies of Directors whom the Declarant has the right to
appoint, by the Declarant.
Each person so elected or appointed shall be a Director for the remainder of the term
of the Director so replaced. The term of office of any Director shall be declared vacant when
such Director ceases to be a Member of the Association by reason of the transfer of such
Director's ownership of a Unit.
2.5 Removal of Directors. Members, by a majority vote of all persons present
and entitled to vote, at any meeting of the Members at which a quorum is present, may
remove any Director of the Executive Board, other than a Director appointed by the
Declarant, with or without cause.
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2.6 Regular Meetings. The first regular meeting of the Executive Board
following each annual meeting of the Members shall be held within 10 days after the annual
meeting at a time and place to be set by the Members at the meeting at which the Executive
Board shall have been elected. No notice shall be necessary to the newly elected Directors
in order to legally constitute such meeting, provided a majority of the Directors are present.
The Executive Board may set a schedule of additional regular meeting by resolution, and no
further notice is necessary to constitute regular meetings,
2.7 Special Meetings. Special meetings of the Executive Board may be called
by the President or by a majority of the Directors on at least three (3) business days' notice
to each Director. The notice shall be hand delivered or mailed and shall state the time,
place and purpose of the meeting.
2.8 Location of Meetings. All meetings of the Executive Board shall be held
within the County of Garfield, unless all Directors consent in writing to another location.
2.9 Waiver of Notice. Before or at any meeting of the Executive Board, any
Director may, in writing, waive notice of such meeting, and such waiver shall be deemed
equivalent to giving of such notice. Attendance by a Director at any meeting of the
Executive Board shall constitute a waiver of notice. If all the Directors are present at any
meeting, no notice shall be required, and any business may be transacted at such meeting.
2.10 Quorum of Directors. At all meetings of the Executive Board, a majority
of the Directors shall constitute a quorum for the transaction of business, and the votes of
a majority of the Directors present at a meeting at which a quorum is present shall constitute
a decision of the Executive Board. if, at any meeting, there shall be less than a quorum
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present, a majority of those present may adjourn the meeting. At any adjourned meeting
at which a quorum is present, any business which might have been transacted at the
meeting originally called may be transacted without further notice.
2.11 Compensation. A Director shall not receive a fee from the Association for
acting as a Director, as may be set by resolution of the Members, but may receive
reimbursement for necessary expenses actually incurred in connection with the Director's
duties. Directors acting as officers shall not be compensated for those duties.
2.12 Consent to Corporate Action. If all the Directors or all Directors of a
committee established for such purposes, as the case may be, severally or collectively
consent in writing to any action taken or to be taken by the Association, and the number of
the Directors constitutes a quorum, that action shall be a valid corporate action as though
it had been authorized at a meeting of the Executive Board or the committee, as the case
may be. The secretary shall file these consents with the minutes of the meetings of the
Executive Board.
2.13 Telephone Communication in Lieu of Attendance. A Director may
attend a meeting of the Executive Board by using an electronic or telephonic communication
method whereby the Director may be heard by the other Directors and may hear the
deliberations of the other Directors on any matter properly brought before the Executive
Board. The Director's vote shall be counted and the presence noted as if that Director were
present in person on that particular matter.
2.14 Manager or Managing Agent. The Executive Board may engage the
services of a manager or managing agent for the purpose of administering and carrying out
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the purposes and intent of the Declaration; provided, however, the manager or managing
agent shall not have authority to levy assessments or to take action which affects the tide
of a Member in and to such owner's Unit, or his interest in the common elements, which
rights shall be reserved to the Board of Directors, subject to the vote of the Members of the
Association as provided in the Articles or these Bylaws, the Declaration or the Act.
2.15 Indemnification. The Directors of the Executive Board shall not be liable
to the Members of the Association or to any other person for any mistake of judgment,
negligence, or otherwise, except in the event of wanton and willful acts or omissions. The
Association shall indemnify and hold harmless each of the Directors of the Executive Board
against all contractual liabilities of others arising out of contracts made by the Executive
Board on behalf of the Association and its Members, and in connection with any act
performed pursuant to the Declaration, unless such Director or Directors are adjudged guilty
of wanton and willful acts or omissions in the performance of their duties as Directors.
Without limiting the foregoing, the Directors of the Executive Board of the Association shall
have the liabilities, and be entitled to indemnification, as provided in Colorado's nonprofit
corporation laws.
ARTICLE III: OFFICERS
3.1 Designation. The principal officers of the Association shall be the president,
the vice president, the secretary and the treasurer, all of whom shall be elected by the
Executive Board. The Executive Board may appoint an assistant treasurer, an assistant
secretary and other officers as it finds necessary. The president and vice president, but no
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other officers, need to be Directors. Any two offices may be held by the same person, except
the offices of president and secretary. The office of vice president may be vacant.
3.2 Election of Officers. The officers of the Association shall be elected
annually by the Executive Board at the organizational meeting of each new Executive Board.
They shall hold office at the pleasure of the Executive Board.
3.3 Removal of Officers. Upon the affirmative vote of a majority of the
Directors, any officer may be removed, either with or without cause. A successor may be
elected at any regular meeting of the Executive Board or at any special meeting of the
Executive Board called for that purpose.
3.4 President. The president shall be the chief executive officer of the
Association. The president shall preside at all meetings of the Members and of the Executive
Board. The president shall have all of the general powers and duties which are incident to
the office of president of a non -stock corporation organized under the laws of the State of
Colorado, including but not limited to the power to appoint committees from among the
Members from time to time as the president may decide is appropriate to assist in the
conduct of the affairs of the Association. The president may fulfill the role of treasurer in
the absence of the treasurer. The president may cause to be prepared and may execute,
certify, and record amendments, attested by the secretary, to the Declaration and these
Bylaws on behalf of the Association, following authorization or approval of the particular
amendment as applicable.
3.5 Vice President. The vice president shall take the place of the president and
perform the president's duties whenever the president is absent or unable to act. If neither
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the president nor the vice president is able to act, the Executive Board shall appoint some
other Director to act in the place of the president on an interim basis. The vice president
shall also perform other duties required by the Executive Board or by the president.
3.6 Secretary. The secretary shall keep the minutes of all meetings of the
Members and the Executive Board. The secretary shall have charge of the Association's
books and papers as the Executive Board may direct and shall perform all the duties incident
to the office of secretary of a non -stock corporation organized under the laws of the State
of Colorado. The secretary may attest to the execution by the president of amendments to
the Declaration and the Bylaws on behalf of the Association, following authorization or
approval of the particular amendment as applicable.
3.7 Treasurer. The treasurer shall be responsible for Association funds and
securities, for keeping full and accurate financial records and books of account showing all
receipts and disbursements and for the preparation of all required financial data. The
treasurer shall be responsible for the deposit of all monies and other valuable effects in
depositories designated by the Executive Board and shall perform all the duties incident to
the office of treasurer of a non -stock corporation organized under the laws of the State of
Colorado. The treasurer may endorse on behalf of the Association, for collection only,
checks, notes and other obligations and shall deposit the same and all monies in the name
of and to the credit of the Association in banks designated by the Executive Board. Except
for reserve funds described below, the treasurer may have custody of and shall have the
power to endorse for transfer, on behalf of the Association, stock, securities or other
investment instruments owned or controlled by the Association or as fiduciary for others.
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Reserve funds of the Association shall be deposited in segregated accounts or in prudent
investments, as the Executive Board determines. Funds may be withdrawn from these
reserves for the purposes for which they were deposited, by check or order, authorized by
the treasurer, and executed by two Directors, one of whom may be the treasurer if the
treasurer is also a Director.
3.8 Agreements, Contracts, Deeds, Checks and Other Instruments.
Except as otherwise provided in these Bylaws, all agreements, contracts, deeds, checks and
other instruments of the Association may be executed by any officer of the Association or
by any other person or persons designated by the Executive Board.
3.9 Compensation. An officer may receive a fee from the Association, in an
amount set by resolution of the Members, for acting as an officer. An officer may also
receive reimbursement for necessary expenses actually incurred in connection with
Association duties.
3.10 Indemnification. Officers of the Association shall be indemnified for any
act they may perform upon behalf of the Association in the same manner herein provided
for indemnification of the Executive Board. Without limiting the foregoing, the officers of
the Association shall have the liabilities, and be entitled to indemnification, as provided in
Colorado's nonprofit corporation laws.
3.11 Statements of Unpaid Assessments. The treasurer, assistant treasurer,
a manager employed by the Association or, in their absence, any officer having access to the
books and records of the Association may prepare, certify, and execute statements of unpaid
assessments, in accordance with Section 38-33.3-316 of the Act. The Association may
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charge a reasonable fee for preparing statements of unpaid assessments. The amount of this
fee and the time of payment shall be established by resolution of the Executive Board. The
Association may refuse to furnish statements of unpaid assessments until the fee is paid.
Any unpaid fees may be assessed as a Common Expense against the Unit for which the
statement is furnished.
ARTICLE VI: FINANCE
Section 1. The monies of the corporation shall be deposited in the name of the
corporation in such bank or banks or trust company or trust companies as the board of
directors shall designate and may be drawn out only on checks signed in the name of the
corporation by such person or persons as the board of directors by appropriate resolution
may direct. Notes and commercial paper, when authorized by the board, shall be signed in
the name of the corporation by such officer or officers or agent or agents as shall thereunto
be authorized from time to time.
Section 2. The fiscal year of the corporation shall be determined by resolution of
the board of directors.
ARTICLE IV: ENFORCEMENT
4.1 Abatement and Enjoinment of Violations by Members. The violation
of any of the Rules and Regulations adopted by the Executive Board or the breach of any
provision of the Declaration shall give the Executive Board the right after notice and
hearing, except in case of an emergency, in addition to any other rights set forth in these
Bylaws:
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(a) To enter the Unit or Limited Common Element in which, or as to which,
the violation or breach exists and to summarily abate and remove, at the expense of the
defaulting Member, any structure, thing or condition (except for additions or alternations
of a permanent nature that may exist in that Unit) that is existing and creating a danger to
the Common Elements contrary to the intent and meaning of the provisions of the
Declaration. The Executive Board shall not be deemed liable for trespass by this action; or
(b) To enjoin, abate or remedy by appropriate legal proceedings, either at
law or in equity, the continuance of any breach.
4.2 Fine for Violation. By resolution, following notice and hearing, the
Executive Board may levy a fine of up to $25.00 per day for each day that a violation of the
Declaration or Rules and Regulations persists after notice and hearing.
ARTICLE VI: RECORDS
5.1 Records. The Association shall keep the following records to the extent they
are applicable:
(a) An account for each Unit, which shall designate the name and address
of each Member, the name and address of each mortgagee who has given notice to the
Association that it holds a mortgage on the Unit, the amount of each Common Expense
assessment, the dates on which each assessment comes due, the amounts paid on the
account and the balance due;
(b) An account for each Member showing any other fees payable by the
Member;
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(c) A record of any capital expenditures in excess of $1,000.00 approved
by the Executive Board for the current and next two succeeding fiscal years;
(d) A record of the amount and an accurate account of the current balance
of any reserves for capital expenditures, replacement and emergency repairs, together with
the amount of those portions of reserves designated by the Association for a specific project;
(e) The most recent regularly prepared balance sheet and income and
expense statement of the Association;
(f) The current operating budget;
(g)
A record of the actual cost, irrespective of discounts and allowances,
of the maintenance of the Common Elements;
(h) All insurance policies then in force, in which the Unit Owners, the
Association, or its Directors or officers are named as insured persons;
(i)
The original or a certified copy of the recorded Declaration, as
amended, the Association's Articles of Incorporation, Bylaws, Minute Books, other books and
records and any Rules and Regulations which may have been promulgated;
(j) An inventory list of the Association's tangible personal property;
(k) Copies of any plans and specifications used in the construction of the
improvements in the Common Elements in the Common Interest Community;
(1) Employment contracts in which the Association is a contracting party;
(m) Any service contract in which the Association is a contracting party or
in which the Association or the Unit Owners have any obligation to pay a fee to the persons
performing the services;
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(n) A record of any alterations or improvements to Units or Limited Common
Elements which violate any provisions of the Declaration of which the Executive Board has
actual knowledge;
(o) A record of any violations, with respect to any portion of the Common Interest
Community, of health, safety, fire or building codes or laws, ordinances, or regulations of
which the Executive Board has actual knowledge; and
(p)
A record of any unsatisfied judgments against the Association and the
existence of any pending suits in which the Association is a defendant.
5.2 Records Availability. All records maintained by the Association or a
manager employed by the Association shall be available for examination and copying by any
Member, any holder of a Security Interest in a Unit or its insurer or guarantor, or by any of
their duly authorized agents or attorneys, at the expense of the person examining the
records, during normal business hours and after reasonable notice.
ARTICLE VII: GENERAL
6.1 Notices. All notices for the Association or the Executive Board shall be
delivered to the office of the Association, or to such other address as the Executive Board
may designate by written notice to all Members and to all holders of Security Interest in the
Units who have notified the Association that they hold a Security Interest in a Unit. Except
as otherwise provided, all notices to any Member shall be sent to the Member's address as
it appears in the records of the Association. All notices to holders of Security Interests in the
Units shall be sent by registered or certified mail to their respective addresses, as designated
by them in writing to the Association. All notices shall be deemed to have been given when
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Id •
mailed, except notices of changes of address, which shall be deemed to have been given
when received.
6.2 Waiver. No restriction, condition, obligation or provision contained in these
Bylaws shall be deemed to have been abrogated or waived by reason of any failure to
enforce the same, irrespective of the number of violations or breaches which may occur.
6.3 Amendment. These Bylaws may be amended only by the assent of at least
sixty-seven percent (67%) of the Members. No amendment of these Bylaws shall be
adopted which would affect or impair the validity or priority of any security interest
encumbering any Unit or which would otherwise change the provisions of the Bylaw with
respect to such security interests of record.
ATTEST:
Certified to be the Bylaws adopted by the Directors of ROARING FORK PRESERVE
HOMEOWNERS ASSOCIATION dated , 2002.
1/31/02-C: \DaraVan \wpdaca\Corporarions-Arfp hoa byiaws.wpd
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Secretary