ARTICLE I INTRODUCTION AND PURPOSE
Section 3.2 Suspension of Member Rights.
Section 3.3 Rights of Members/Delegation of Rights.
Section 4.1 Order of Business and Rules at Meeting.
Section 4.5 Meetings for Approval of Special Assessments
Section 4.6 Notice of Meetings for Approval of Special Assessments.
Section 4.7 Notice of Member Meetings.
Section 4.8 Place of Meetings.
ARTICLE V BOARD OF DIRECTORS: SELECTION: TERM OF OFFICE
Section 5.1 Number of Directors
ARTICLE VI NOMINATION AND ELECTION OF DIRECTORS
ARTICLE VII MEETINGS OF DIRECTORS
Section 7.3 Telephone Communication in Lieu of Attendance.
Section 7.5 Directorsâ€™ Proxies.
ARTICLE VIII POWERS AND DUTIES OF THE BOARD OF DIRECTORS
ARTICLE IX OFFICERS AND THEIR DUTIES
Section 9.1 Enumeration of Offices.
Section 9.2 Election of Officers.
Section 9.4 Special Appointments.
Section 9.5 Resignation and Removal.
Section 11.1 Permanent Records.
Section 11.2 Other Association Records.
Section 12.1 Annual Disclosures.
Section 12.2 Disclosures Within Ninety Days of Each Fiscal Year.
Section 12.3 Notification of Changes in the Associationâ€™s Information.
Section 13.1 Actions Other Than By or In the Right of the Association.
Section 13.2 Actions By or In the Right of the Association.
Section 13.3 Successful on the Merits.
Section 13.4 Determination Required.
Section 13.5 Payment in Advance of Final Disposition.
Section 13.6 No Limitation of Rights.
Section 13.7 Directors and Officers Insurance.
Section 14.2 Conflict of Provisions.
Section 15.4 Proof of Ownership.
AMENDED AND RESTATED BY-LAWS
TOWNHOUSE HOMEOWNERS ASSOCIATION, INC.
These are the Bylaws of the MANCHESTER PARK TOWNHOUSE OWNERS ASSOCIATION, INC., which operates under the Colorado Nonprofit Corporation Act, as amended, and applicable provisions of the Colorado Common Interest Ownership Act, as amended (the "Act"). The purpose for which the Association is formed is to operate and govern the Common Interest Community known as Manchester Park.
Terms used herein shall have the meanings set forth in the Amended and Restated Declaration of Covenants, Conditions and Restrictions for Manchester Park (a P.U.D.) as it may be amended from time to time.
Every person or entity who is a record Owner of a Lot which is subject to the Declaration shall be a Member of the Association. Membership shall be appurtenant to and may not be separated from ownership of any Lot. Ownership of such Lot shall be the sole qualification for membership. Each Lot shall be allocated one (1) vote.
(a) The voting rights of a Member may be deemed suspended, without notice or hearing, during any period in which a Member shall be in default in the payment of any Common Expense levied by the Association, until such Assessment has been paid.
(b) The voting rights of a Member may also be suspended, after notice and hearing, for a period not to exceed sixty (60) days for violation of any other provision of the Declaration, Articles of Incorporation, Bylaws or Rules and Regulations established by the Association.
Every Member shall be entitled to the use and enjoyment of the Common Area and facilities as provided in the Declaration.Any Member may delegate his rights of enjoyment of the Common Area and facilities to his family, tenants, invitees or contract purchasers (Guests) who reside on the Property. The rights and privileges of such Guests are subject to suspension to the same extent as those of the Member.
The Board may establish the order of business and prescribe reasonable rules for the conduct of all meetings of the Board and Members.
An annual meeting of the Members shall be held during each of the Association s fiscal years, upon a date determined by the Board and set forth in the notice. At these meetings, the Directors shall be elected by ballot of the Members, in accordance with these Bylaws, the Declaration and the Articles of Incorporation. The Members may transact other business as may properly come before them at these meetings. Failure to hold an annual meeting shall not constitute a forfeiture or dissolution of the Association.
Special meetings of the Members may be called at any time by the President or by the Board of Directors, or upon written request of the Members who are entitled to vote one-fourth (1/4) of all the votes of the membership.
Within sixty (60) days after adoption of any proposed Budget, the Board shall mail, by ordinary first-class mail, or otherwise deliver a summary of the Budget to all the Owners and shall set a date for a meeting of the Owners to consider ratification of the Budget. The meeting shall be held not less than fourteen (14) days, but not more than sixty (60) days after mailing or other delivery of the summary. At that meeting, unless a majority of all Members entitled to vote reject the Budget, the Budget is ratified, whether or not a quorum is present. In the event that the proposed Budget is rejected, the annual Budget last ratified by the Owners must be continued until such time as the Owners ratify a subsequent Budget proposed by the Board.
Any Special Assessment shall have the approval of two-thirds (2/3) of the votes of the Members present who are voting in person, or by proxy at a meeting called for such purpose. A special meeting shall be held for the approval of any Special Assessment. Notice of special meetings shall be given in compliance with Section 4.6 of these Bylaws. The quorum at such meeting shall be fifty-one percent (51%) of the Owners entitled to vote, present in person or by proxy. In the event a quorum is not obtained at any special meeting called pursuant to this Section, the meeting may be adjourned and rescheduled at which time the quorum shall be reduced by fifty percent (50%). No such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.
Written notice of each meeting of the Members for approval of Special Assessments shall be given by or at the direction of the secretary or person authorized to call the meeting, by mailing a copy of said notice, postage prepaid, at least fourteen (14) days, but not more than sixty (60) days before such meeting to each Member entitled to vote at such meeting, addressed to the Member s address last appearing on the books of the Association or supplied by such Member to the Association for the purpose of notice. Such notice shall specify the place, day and hour of the meeting, and the purpose of the meeting. No matters shall be heard nor action adopted at a such meeting except as stated or allowed in the 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 notice.
Except as otherwise provided in these Bylaws for meetings for budget approval, or for approval of Special Assessments, written notice of each meeting of the Members shall be given by or at the direction of the secretary or person authorized to call the meeting, by mailing a copy of said notice, postage prepaid, at least ten (10) days, but not more than (30) days before such meeting to each Member entitled to vote at such meeting, addressed to the Member s address last appearing on the books of the Association or supplied by such Member to the Association for the purpose of notice. Such notice shall specify the place, day and hour of the meeting, and, in the case of a special meeting, the purpose of the meeting. No matters shall be heard nor action adopted at a special meeting except as stated or allowed in the 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 notice.
Meetings of the Members shall be held in the Manchester Park Community, or in the Denver metropolitan area, and may be adjourned to a suitable place convenient to the Members, as may be designated by the Board or the President.
The presence of one-tenth (1/10) of the Members entitled to cast votes shall constitute a quorum for any action except as otherwise provided in the Articles of Incorporation, the Declaration or these Bylaws. For purposes of counting as a quorum, presence at a meeting may be in person, or by proxy. If such a quorum shall not be present or represented at any meeting, the Members entitled to vote at such meeting shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or be represented.
At all meetings of Members, each Member may vote in person or by proxy. All proxies shall be in writing and filed with the secretary or designee of the Association. If a Lot is owned by more that one person, each Owner of a Lot may vote or register protest to the casting of the vote by the other Owners of the Lot through a duly executed proxy. An Owner 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 notice. A proxy terminates eleven months after its date, unless it specifies a shorter term or a specific purpose. Every proxy shall be revocable and shall automatically cease upon conveyance by the Member of his Lot.
At all meetings of Members, each eligible Member may vote in person or by proxy. If only one of the several Owners of a Lot is present at a meeting of the Association, the Owner present is entitled to cast the vote allocated to the Lot.If more than one of the Owners is present, the vote allocated to the Lot may be cast only in accordance with the agreement of a majority of those Owners.Majority agreement exists only if any one of the Owners casts the vote allocated to the Lot without protest being promptly made to the person presiding over the meeting by another Owner of the Lot. The vote of a corporation or other business entity may be cast by any officer or manager of that corporation or business entity in the absence of express notice of the designation of a specific person by the board of directors or managers of the owning corporation or business entity. The vote of a partnership may be cast by any general partner of the owning partnership in the absence of express notice of the designation of a specific person by the owning partnership. The moderator of the meeting may require reasonable evidence that a person voting on behalf of a corporation, partnership or business trust Owner is qualified to vote.
When more votes are cast in favor of any proposition, other than the election or removal of a Director, than are cast against the same proposition at any meeting where a quorum is present, the vote shall be binding upon all Members for all purposes except where a higher percentage vote is required in the Declaration, these Bylaws, the Articles of Incorporation or by law.
The affairs of the Association shall be managed by a Board of seven (7) Directors, who need not be Members. In the case where, through removal or resignation, the total number of Board members is less than seven (7), the Board will be considered properly constituted until such vacancies are filled. The number of members of the Board may be increased or decreased by amendment of these Bylaws, subject, however to the limitations of the Articles of Incorporation.
The terms of office of Directors shall be three (3) years or until such time as a successor is elected.The expiration of Directors terms shall be staggered so that the terms of approximately one-third (1/3) of the Directors expire in any given year.
Directors or the entire Board of Directors may be removed, with or without cause, at any annual meeting provided that the proposed vote for removal is included in the notice of meeting, or at any special Members meeting called for that purpose by a vote of a two-thirds (2/3) of the Members present in person or by proxy.Any Director who is subject to a vote for removal shall have the right to be present at such meeting and shall be given the opportunity to speak to the Members prior to a vote being taken. If Directors are removed by such a vote the Members, by a majority vote, shall then elect such new members of the Board to replace those members removed and designate the unexpired term to which each new member is elected.
Vacancies in the Board caused by any reason (other than removal) may be filled by the Board at any time after the occurrence of the vacancy, even though the Directors present at that meeting may constitute less than a quorum. Each person so appointed shall be a Director who shall serve the remainder of the unexpired term.
Nomination for election to the Board of Directors shall be made by the current Board, or by a nomination committee, if any. Nominations may also be made from the floor at the annual meeting. The Board or committee shall make as many nominations for election to the Board of Directors as it shall in its discretion determine, but in no event fewer than the number of vacancies that are to be filled. Such nominations may be from among members of the Board.
Election to the Board of Directors shall be by secret written ballot; provided, however that in an uncontested election Directors may be elected by acclamation, to the extent permitted by applicable law. At such election the Members or their proxies may cast, in respect to each vacancy, as many votes as they are entitled to cast under the provisions of the Declaration.The persons receiving the largest number of votes shall be elected. Cumulative voting is not permitted.
Regular meetings of the Board of Directors shall be held no less frequently than quarterly, without notice, at such place and hour as may be fixed from time to time by resolution of the Board.
Special meetings of the Board of Directors shall be held when called by the President of the Association, or by any two Directors, after not less than three (3) days notice to each Director.
A Director may attend a meeting of the Board by using an electronic or telephonic communication method whereby the Director may be heard by the other members and may hear the deliberations of the other members on any matter properly brought before the Board.The Director s vote shall be counted and the presence noted as if that Director were present in person on that particular matter.
At all meetings of the Board, a majority of the Directors shall constitute a quorum for the transaction of business. The votes of a majority of the Directors present at a meeting at which a quorum is present shall constitute a decision of the Board. If, at any meeting, there shall be less than a quorum present, a majority of those present may adjourn the meeting. Every act or decision done or made by a majority of the directors present at a duly held meting at which a quorum is present shall be regarded as the act of the Board.
For the purposes of determining a quorum with respect to a particular proposal and for the purposes of casting a vote for or against that proposal, a Director may execute, in writing, a proxy to be held by another Director.The proxy shall specify either a yes, no or abstain vote on each particular issue for which the proxy was executed.Proxies which do not specify a yes, no or abstain vote shall not be counted for the purpose of having a quorum present nor as a vote on the particular proposal before the Board
The Directors shall have the right to take any action in the absence of a meeting which they could take at a meeting by obtaining the written votes of all the Directors of which at least a majority approved of the action. Any action so approved shall have the same effect as though taken at a meeting of the Directors. The Secretary shall file these consents with the minutes of the meetings of the Board of Directors.
The Board may act in all instances on behalf of the Association, except as provided in the Declaration and these Bylaws or the Act. The Board shall have, subject to the limitations contained in the Declaration, and the Act, the powers and duties necessary for the administration of the affairs of the Association and of the Manchester Park Community, and for the operation and maintenance of the Common Interest Community, including, without limitation, the following powers and duties:
(a) Adopt and publish rules and regulations governing the use of the Common Area and facilities, and the personal conduct of the Members and their Guests thereon, and to establish penalties for the infraction thereof;
(b) Suspend the voting rights of a Member and/or the right to use of the recreational facilities during any period in which such Member shall be in default in the payment of any assessment levied by the Association.
(c) Suspend the voting of a Member rights after notice and hearing, for a period not to exceed sixty (60) days for the failure to comply with the published rules and regulations of the Association or with any other obligations of the Members under the Declaration or Bylaws;
(d) Exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the membership by other provisions of these Bylaws, the Articles of Incorporation or the Declaration;
(e) Declare the office of a member of the Board of Directors to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board of Directors;
(f) Impose a reasonable charge for the late payment of Assessments and, after notice and hearing, levy reasonable fines or Default Assessments for a violation of the Declaration, Bylaws, Rules and Regulations of the Association;
(g) Grant easements for any period of time, including permanent easements, and grant leases, and licenses for no more than one (1) year, through or over the Common Area;
(h) Foreclose the lien against any Lot for which assessments are not paid within thirty (30) days after the due date or to bring an action at law against the Owner personally obligated to pay the same;
(i) Institute, defend or intervene in litigation or administrative proceedings or seek injunctive relief for violations of the Declaration, Bylaws or Rules and Regulations in the Association s name, on behalf of the Association or two (2) or more of its Owners, on matters affecting the Manchester Park Community; provided, however, that the Association shall not intervene in litigation in which any Member is a named defendant without the consent of a majority of all the Members entitled to cast a vote at a meeting held for that purpose, at which a quorum is present;
(j) Make contracts, open bank accounts and incur liabilities;
(k) Cause additional Improvements to be made as a part of the Common Area;
(l) Acquire, hold, encumber and convey, in the Association s name and in the ordinary course of business, any right, title or interest to real estate or personal property;
(m)Hire such employees or contractors as the Board may deem necessary or desirable, including, without limitation, a professional Real Estate Management Company licensed to do business in the State of Colorado, provided that any management agreement entered into shall not be in excess of one (1) year and shall be terminable with reasonable notice, with or without cause and without payment of a termination fee;
(n) Exercise any other powers conferred by the Declaration or Bylaws;
It shall be the duty of the Board of Directors to:
(a) Cause to be kept a complete record of all its actions and corporate affairs and to present a statement thereof to the Members at the annual meeting of Members or at any special meeting when such statement is requested in writing by one-fourth (1/4) of the Members who are entitled to vote;
(b) Supervise all officers, agents and employees of this Association, and to see that their duties are properly performed;
(c) As more fully provided in the Declaration to:
(1) adopt and amend budgets for revenues, expenditures and reserves;
(2) Fix the amount of the annual assessment against each Lot at least thirty (30) days in advance of each annual assessment period;
(3) Send written notice of each assessment to every owner subject thereto at least thirty (30) days in advance of each annual assessment period and;
(d) Issue or cause an appropriate officer to issue, upon demand of any person, a certificate setting forth whether or not any assessment has been paid. A reasonable charge may be made by the Board for the issuance of these certificates.If a certificate states an assessment has been paid, such certificate shall be conclusive evidence of such payment;
(e) Procure and maintain adequate liability and hazard insurance required pursuant to the provisions set forth in the Declaration;
(f) Cause all officers or employees having fiscal responsibilities to be bonded as it may deem appropriate;
(g) Cause the Common Area to be maintained as provided in the Declaration;
(h) Cause a review of the Association s books and accounts to be conducted by an independent accountant or Certified Public Accountant, not less than once each fiscal year; and cause a complete audit of the Association s books and accounts to be conducted by a certified or public accountant or as otherwise required by law not less than every third fiscal year, and to file the appropriate financial reports required by local, state, and federal governments;
(i) Provide for the indemnification of the Association s Officers and the Board, and maintain Directors and Officers liability insurance.
(j) Make required disclosures as more fully described in Article XII of these Bylaws.
The officers of this Association shall be a President and Vice President, who shall at all times be a member of the Board of Directors, a Secretary and a Treasurer, and such other officers as the Board may, from time to time, by resolution, create. The offices of Secretary and Treasurer may be held simultaneously, by one Director.
The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of the Members.
The officers of the Association shall be elected annually by the Board and each shall hold office for one (1) year unless he shall sooner resign, or shall be removed, or otherwise disqualified to serve.
The Board may elect such other officers as the affairs of the Association may require, each of whom shall hold office for such period, have such authority, and perform such duties as the Board may, from time to time, determine.
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 shall take effect on the date of receipt of such notice or at any later time specified therein, and unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
A vacancy in any office may be filled by appointment of the Board. The officer appointed to such vacancy shall serve for the remainder of the term of the officer he replaces.
The Offices of Secretary and Treasurer may be held by the same person. No person shall simultaneously hold more than one of any of the other offices except in the case of special offices created pursuant to Section 9.4 of this Article.
The duties of the officers are as follows:
(a) President. The President shall: preside at all meetings of the Board of Directors; see that the orders and resolutions of the Board are carried out; sign all leases, mortgages, deeds, checks and other written instruments, provided, however that in the President s absence, or with the approval of the Board, any two Directors may sign such leases, mortgages, deeds, checks and other written instruments.
(b) Vice-President. The Vice-President shall act in the place and stead of the President in the event of his absence, inability or refusal to act, and shall exercise and discharge such other duties as may be required of him by the Board.
(c) Secretary. The Secretary shall: record the votes and minutes of all meetings and proceedings of the Board and of the Members; serve notice of meetings of the Board and of the members; keep appropriate current records showing the Members of the Association together with their addresses; and perform such other duties as required by the Board.
(d) Treasurer. The Treasurer shall: receive and deposit in appropriate bank accounts all monies of the Association and disburse such funds as directed by resolution of the Board of Directors; sign all checks and promissory notes of the Association, provided however, that in the Treasurer s absence, or with the approval of the Board, any two Directors may sign checks and promissory notes; keep proper books of account; cause an annual statement of the Association financial records to be prepared at the completion of each fiscal year; and prepare an annual budget and a statement of income and expenditures to be presented to the membership at its regular annual meeting and deliver a copy of the same to the Members.
The duties of any Officer may be delegated to the Manager, another Board member, or such other person as the Board may appoint, provided, however, the Officer shall not be relieved of any responsibility under this Article or under Colorado law.
The Board shall appoint an Architectural Control Committee as provided in the Declaration. Board Members may serve on the Architectural Control Committee.In addition, the Board of Directors shall appoint other committees as deemed appropriate in carrying out its purpose. Committees shall have authority to act only to the extent designated in the Governing Documents or delegated by the Board.
The Association or its Manager or Managing agent, if any, shall keep the following permanent records:
(a) minutes of all member meetings and board meetings;
(b) actions of the board, or of the members, taken by written ballot in lieu of a meeting;
(c) actions of any committee in place of, or on behalf of the board;
(d) waivers of notice for owner meetings, board meetings, or meetings of any committee of the board
The Association or its Manager or Managing agent, if any, shall also keep the following records:
(a) a record of unit owners in a form which can produce a list of names, addresses and the number of votes each owner is entitled to vote;
(b) articles of incorporation;
(c) the Declaration;
(d) the bylaws;
(e) resolutions adopted by the board relating to characteristics, qualifications, rights, limitations and obligations of owners, including, without limitation rules and regulations, design guidelines, any resolution restricting the right of delinquent owners to vote;
(f) minutes of all Member meetings, Directors meetings, committee meetings, and all actions taken by the Members or Directors without a meeting for the past 3 years;
(g) all written communication within the last three years to Owners generally as Owners;
(h) a list of the names and addresses of the current board of directors;
(i) the most recent annual report, if any;
(j) all financial audits or reviews during the immediately preceding 3 years;
(k) An account for each Lot, which shall designate the name and address of each Owner, the name and address of each Mortgagee who has given notice to the Association that it holds a mortgage on the Lot, the amount of each Common Expense Assessment, the dates on which each Assessment comes due, any fees payable by the Owner, the amounts paid on the account and the balance due;
(l) An account for each Owner showing any other fees payable by the Owner;
(m) The most recent regularly prepared balance sheet and income and expense statement, if any, of the Association;
(n) The current operating budget;
(o) A record of any unsatisfied judgments against the Association and the existence of any pending suits in which the Association is a defendant;
(p) A record of insurance coverage provided for the benefit of the Owners and the Association;
(q) Tax returns for state and federal taxation.
The books, records and papers of the Association shall be subject to inspection and copying by any Member Member s authorized agent, at their expense, for any proper purpose, during normal business hours upon written request and after reasonable notice, not to exceed five (5) days, except documents determined by the Board to be confidential pursuant to a written policy. The Association may charge Members only for actual, per-page copy costs.
At least once per year, the Association shall make a written disclosure to all Owners which includes the following:
(a) the name of the association;
(b) the name of the association s designated agent or management company;
(c) a valid physical address and telephone number for both the association and the management company;
(d) the name of the Common Interest Community;
(e) the initial date of recording of the declaration, along with the recording information.
Within ninety (90) days of the end of each of the Association s fiscal years, the Associations shall disclose the following information, in a form to be determined by the Board of Directors pursuant to statute:
(a) the beginning date of the association s fiscal year;
(b) the association s current year operating budget;
(c) a list of the current regular and special assessments
(d) results of any financial audit or review for the year preceding the current annual disclosure;
(e) a list of all insurance policies including, but not limited to:
(ii) general liability,
(ii) director and officer professional liability,
(iv) fidelity bonds;
(f) insurance company name, policy limits, deductibles, additional insureds, and expiration dates;
(g) bylaws, articles of incorporation, and rules and regulations;
(h) meeting minutes for all meetings, including Director meetings and Member meetings for the preceding fiscal year;
(i) Responsible Governance Policies including policies for:
(ii) collection of unpaid assessments,
(ii) board member conflicts of interest,
(iii) conduct of meetings,
(iv) enforcement of CCIOA, and governing documents including notice and hearing procedures and a schedule of fines,
(v) inspection and copying of association records by owners,
(vi) investment of reserve funds,
(vii) procedures for adopting and amending policies, procedures, and rules, and
(viii) any other policies required by statute.
The Association shall notify all Owners, in writing, within ninety (90) days of a change in the Associations:
(b) designated agent; or
(c) management company.
The Association shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in right of the Association) by reason of the fact that he or she is or was a Director or Officer of the Association, who is or was serving at the request of the Association in such capacity, against expenses (including expert witness fees, attorneys fees and costs) judgments, fines, amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding, if he or she acted in good faith and in a manner which such individual reasonably believed to be in the best interests of the Association, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was unlawful. Determination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea ofnolo contendereor its equivalent, shall not of itself create a presumption that the person did not act in good faith and in a manner he or she reasonably believed to be in the best interests of the Association and, with respect to any criminal action or proceeding, had reasonable cause to believe his or her conduct was unlawful.
The Association shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Association to procure judgment in its favor by reason of the fact that he or she is or was a Director or Officer of the Association, who is or was serving at the request of the Association in such capacity, against expenses (including expert witness fees, attorneys fees and costs) actually and reasonably incurred by him or her in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner which he or she reasonably believed to be in the best interests of the Association; but no indemnification shall be made in respect of any claim, issue or matter as to which such person has been adjudged to be liable for negligence or misconduct in the performance of his or her duty to the Association unless, and to the extent that the court in which such action or suit was brought determines upon application that, despite the adjudication of liability, but in view of all circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses if such court deems proper.
To the extent that a Director, manager, Officer, project manager, employee, fiduciary or agent of the Association has been wholly successful on the merits in defense of any action, suit or proceeding referred to in paragraphs 13.1 or 13.2 of this Article XIII, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including expert witness fees, attorneys fees and costs) actually and reasonably incurred by him or her in connection herewith.
Any indemnification under paragraphs 13.1 or 13.2 of this Article XIII (unless ordered by a court) and as distinguished from paragraph 13.3 of this Article XIII, shall be made by the Association only as authorized by the specific case upon a determination that indemnification of the Officer or Director is proper in the circumstances because such individual has met the applicable standard of conduct set forth in paragraphs 13.1 or 13.2 above.Such determination shall be made by the Board of Directors by majority vote of a quorum consisting of those members of the Board who were not parties to such action, suit or proceeding or, if a majority of disinterested members of the Board of Directors so directs, by independent legal counsel in a written opinion or by Members entitled to vote thereon.
The Association shall pay for or reimburse reasonable expenses incurred by a former or Current Director or Officer who is a party to a proceeding in advance of final disposition of the proceeding if the Director or Officer furnishes to the Association a written affirmation of the Director s good faith belief that he or she has met the standard of conduct described in paragraphs 13.1 or 13.2 of this Article XIII, the Director or Officer furnishes to the Association a written understanding, executed personally or on the Director s or Officer s behalf to repay the advance if it is ultimately determined that the Director or Officer did not meet the standard of conduct and a determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. The undertaking required in this paragraph shall be an unlimited general obligation of the Director or Officer but need not be secured and may be accepted without reference to financial ability to make repayment. This Section shall not apply to anyone who is not a current Member at the time such a proceeding is pending unless such payment or reimbursement is provided for in these Bylaws
The indemnification provided by this Article XIII shall not be deemed exclusive nor a limitation upon any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of the Members or disinterested member of the Board of Directors, or otherwise, nor by any rights which are granted pursuant to C.R.S. 38-33.3-101,et seq.,and the Colorado Nonprofit Corporation Act, as amended.
The Association may purchase and maintain insurance on behalf of any person who is or was a member of the Board of Directors or an Officer of the Association against any liability asserted against him or her and incurred by such individual in any such capacity or arising out of his or her status as such, whether or not the Association would have the power to indemnify such individual against liability under provisions of this Article XIII.
These Bylaws may be amended by a majority of Members voting in person, or by proxy at any meeting duly called for such purpose where a quorum is present.
In case of any conflict between the Articles of Incorporation and these Bylaws, the Articles of Incorporation shall control and in case of any conflict between the Declaration and these Bylaws, the Declaration shall control.
The Board has the right to establish and, from time to time, change the fiscal year of the Association. As of the date these Bylaws are adopted, the fiscal year begins on January 1, and end on December 31 of each year.
All notices to the Association or the Board shall be delivered to the office of the manager, or, if there is no manager, to the office of the Association, or to such other address as the Board may designate by written notice to all Owners. Except as otherwise provided, all notices to any Owner shall be mailed to the Owner s address as it appears in the records of the Association. All notices shall be deemed to have been given when mailed, except notices of change of address which shall be deemed to have been given when received.
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.
Every person becoming an Owner of a Lot shall immediately furnish to the Board of Directors a photocopy of the recorded instrument vesting in that person such ownership, which instrument shall remain in the files of the Association. A Member shall not be deemed to be in good standing, nor shall he be entitled to vote at any annual meeting or special meeting of the Members unless this requirement is first met.