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ByLaws
BYLAWS
OF
CANYON CREEK
HOMEOWNERS ASSOCIATION
ARTICLE I
NAME AND LOCATION
The name of the corporation is CANYON CREEK HOMEOWNERS
ASSOCIATION, hereinafter referred to as the "Association". The principal
office of the Association shall initially be located at 5100 Campus Drive,
Newport Beach, California 92660, but meetings of members and directors may
be held at such places within the State of California, County of Orange as
may be designated by the Board of Directors in accordance with these ByLaws.
The principal office of the Association may be changed at any time by the
Board of Directors.
ARTICLE II
DEFINITIONS
Section 1. "ARTICLES" means the Articles of
Incorporation of the Association, as they may be amended from time to time.
Section 2. "ASSOCIATION" means CANYON CREEK
HOMEOWNERS ASSOCIATION, a California non-profit corporation.
Section 3. "COMMON AREA" means the portions of the
Project owned by the Association and described as follows:
Lots A, E and F of Tract No. 9355 as recorded on August
31, 1977 in Book 415, pages 15 to 18, inclusive, in the Official Records of
the Orange County Recorder, orange County, California; and All streets
located upon the Real Property.
Section 4. "DWELLING STRUCTURE" means the
residential structure located or to be located upon a lot.
Section 5. "DECLARANT" means CANYON CREEK, a joint
venture, and shall include the successors and assigns of Declarant, if such
successors and assigns should acquire more than one (1) undeveloped or
partially developed lot within the Project from Declarant for the purpose of
development.
Section 6. "DECLARATION" means the Declaration of
Restrictions applicable to the Project recorded in the Office of the Orange
County Recorder, and all amendments thereof.
Section 7. "GOVERNING DOCUMENTS" means the
Declaration, the Articles, the ByLaws, and the rules and regulations for the
members as established from time to time.
Section 8. "LOT" means any one of lots 1 through
128 of Tract No. 9355, as recorded August 31, 1971, in the Official Records
of the Orange County Recorder, Orange County, California and which lot is
located within the Project.
Section 9. "MEMBER" means those persons and
entities entitled to membership in the Association as provided in the
Declaration. Whenever "member" or "membership" is used in these ByLaws for
the purpose of determining quorums, percentages, or minimum or maximum
numbers for voting as specified in these ByLaws, all persons and entities
who are members because of their joint ownership of a particular lot shall
be counted as one.
Section 10. "OWNER" means the record holder or
holders of title, if more than one, of a fee simple interest in a lot in the
Project. "Owner" shall include contract sellers, but shall exclude persons
or entities having an interest merely as security for the performance of an
obligation. Whenever "owner'' is used in these ByLaws for the purpose of
determining quorums, percentages, or minimum or maximum numbers for voting
as specified in these ByLaws, all the owners of a particular lot shall be
counted as one.
Section 11. "PROJECT" means the following portions
of the Real Property, and all improvements located and to be located
thereon: lots 1 through 13, lots 22 through 26, Lots A, E and F and all
Streets.
Section 12. "REAL PROPERTY" means all of Tract No.
9355 as recorded on August 31, 1977, in Book 415, pages 15 through 18,
inclusive, of the Official Records of the Orange County Recorder, Orange
County, California.
Section 13. "STREETS" means all of the Real
Property, with the exception of lots 1 through 128 and Lots A through G.
ARTICLE III
MEETINGS OF MEMBERS
Section 1.
Annual Meetings.
The first annual meeting of the Association shall be held on the Project or
as close thereto as practicable within forty-five (45) days after the
closing of the sale of the lot which represents the fifty-first (51st)
percentile interest authorized for
sale under the first
public report for the Project; provided, however, that in no event shall the
first meeting of the Association be held later than six (6) months after the
first closing of a sale of a lot in the Project. Thereafter, regular
meetings of the Association shall be held annually commencing one (1) year
after the first meeting at such reasonable time, place (either at the
Project itself or at another meeting place located as near as is possible
and practical to the Project), and date (not exceeding thirty (30) days
before or after the anniversary date of the first meeting), as may be
designated by the Board of Directors. Unless unusual conditions exist,
meetings shall not be held outside of the county in which the Project is
situated.
Section 2.
Special Meetings.
Special meetings of the members may be promptly called at any time by the
President of the Association, by a majority of a quorum of the Board of
Directors, by the written request to the Board of Directors
of
members having twenty-five percent (25%) or more of the total voting
power of the Association, or by such a written request of members having
fifteen percent (15%) or more of the voting power residing in members other
than the Declarant.
Section 3.
Notice of Meetings.
Except as may otherwise be provided in the Articles or the
Declaration, written notice of each meeting of the members shall be given by
or at the direction of the secretary or persons authorized to call the
meeting by mailing a copy of such notice, postage prepaid, not less than ten
(10) days (except in emergency situations) nor more than forty-five (45)
days before such meeting to each member entitled to vote thereat. The notice
shall be addressed to the member's address last appearing on the books of
the Association or supplied by such member for the purpose of notice. Each
member shall provide written notice of his address and any changes thereof
to the Association. The notice shall specify the place, day and hour of the
meeting, and, in the case of a special meeting, the nature of the business
to be undertaken.
Section 4.
Quorum. Except as
may otherwise be provided in the Articles or the Declaration, the presence
at any meeting of the owners of twenty-five percent (25%) of the lots,
either in person or by proxy, shall constitute a quorum for the transaction
of business at such meeting. in the absence of a quorum at a meeting, a
majority of the owners present in person or by proxy may adjourn the meeting
to another time, but may not transact any other business. An adjournment for
lack of a quorum shall be to a date not less than five (5) days and not more
than thirty (30) days from the original meeting date, and the quorum for
such resumed meeting shall be the presence of twenty-five percent (25%) of
the total voting power of the Association.
Section 5.
Proxies. At all
meetings of members, each vote entitled to be cast may be cast in person or
by proxy. All proxies shall be in writing and filed with the secretary.
Every proxy shall be revocable and shall automatically cease upon conveyance
by the member of his lot.
Section 6.
Action Taken Without a Meeting.
Any action which may be taken at a meeting of the members may be
taken without a meeting if authorized by a writing signed by all of the
members entitled to vote at a meeting for such purpose, and the writing is
filed with the secretary of the Association.
ARTICLE IV
BOARD OF DIRECTORS; SELECTION; TERM OF
OFFICE
Section 1.
Number. The
affairs of this Association shall be managed by a Board of five (5)
directors, who need not be members of the Association; provided, however,
that all directors who are elected after conversion of Class B membership to
Class A must be members of the Association.
Section 2.
Term of Office.
Directors shall serve for terms of one (1) year. Directors shall be elected
at the first annual meeting of members and at each annual meeting
thereafter.
Section 3.
Removal. The
entire Board of Directors or any individual director may be removed from the
Board by the majority vote (by secret written ballot) of the owners entitled
to vote at an election of directors. However, unless the entire Board of
Directors is removed, an individual director shall not be removed if the
number of votes cast against the resolution for his removal exceeds the
quotient arrived at when the total number of owners entitled to vote is
divided by one plus the authorized number of directors. If any one or all
directors are so removed, new directors may be elected at the same meeting.
Except in the case of an election where only one director is elected, in the
event that at an election no member of the Board of Directors could have
been elected solely by the votes of owners other than Declarant (through the
cumulating of all of their votes), the elected director having received the
smallest number of votes shall be eliminated (and if more than one elected
director shall fall in that category, one of the elected directors shall be
eliminated by lot), and nominations and elections of a director shall be
forthwith accomplished with only owners other than Declarant being entitled
to vote in such election. A director who has been elected to office solely
by the votes of owners other than Declarant in the manner set forth in the
preceding sentence may be removed from office prior to the expiration of his
term of office only by the vote of at least a simple majority of the voting
power of owners other than Declarant.
Section 4.
Compensation. No
director shall receive compensation for any service he may render to the
Association. However, any director may be reimbursed for his actual expenses
incurred in the performance of his duties.
ARTICLE V
NOMINATION AND ELECTION OF DIRECTORS
Section 1.
Nomination.
Nomination for election to the Board of Directors shall be made by a
Nominating Committee. Nominations may also be made from the floor at the
annual meeting. The Nominating Committee shall consist of a Chairman, who
shall be a member of the Board of Directors, and two or more members of the
Association. The Nominating Committee shall be appointed by the Board of
Directors prior to each annual meeting of the members, to serve from the
close of such annual meeting until the close of the next annual meeting, and
such appointment shall be announced at each annual meeting. The Nominating
Committee shall make as many nominations for election to the Board of
Directors as it shall in its discretion determine, but not less than the
number of vacancies that are to be filled. Such nominations may be made from
among members or non-members, except that nominees for directors must be
members of the Association after termination of Class B membership.
Section 2.
Election.
Election to the Board of Directors shall be by secret written ballot. At
such election the members or their proxies may cast, in respect to each
vacancy, as many votes as they are entitled to exercise under the provisions
of the Declaration. The persons receiving the largest number of votes shall
be elected. Cumulative voting shall be prescribed for all elections in which
more than two (2) positions on the Board are to be filled.
ARTICLE VI
MEETINGS OF BOARD OF DIRECTORS
Section 1.
Regular Meetings.
Regular meetings of the Board of Directors shall be held monthly at a time
and place within the Project or as close thereto as practicable fixed by
resolution of the Board. Notice of the time and place of such meeting shall
be posted at a prominent place or places within the Common Area.
Section 2.
Special Meetings.
A special meeting of the Board of Directors may be called by written notice
signed by the President of the Association or by any two members of the
Board other than the President. The notice shall specify the time and place
of the meeting and the nature of any special business to be considered. The
notice shall be sent to all members of the Board and posted in the manner
for notice of regular meetings not less than seventy-two (72) hours prior to
the scheduled time of the meeting.
Section 3.
Open Meetings.
Regular and special meetings of the Board shall be open to all members of
the Association; provided, however, that Association members who are not on
the Board may not participate in any deliberation or discussion unless
expressly so authorized by the vote of a majority of a quorum of the Board.
The Board may, with the approval of a majority of a quorum of the Board,
adjourn a meeting and reconvene in executive session to discuss and vote
upon personnel matters, litigation in which the Association is or may become
involved, and orders of business of a similar nature. The nature of any and
all business to be considered in executive session shall first be announced
in open session.
Section 4.
Quorum. A
majority of the number of the directors shall constitute a quorum for the
transaction of business. Every act or decision done or made by a majority of
the directors present at a duly held meeting at which a quorum is present
shall be regarded as the act of the Board.
ARTICLE VII
POWERS AND DUTIES OF THE BOARD OF
DIRECTORS
Section 1.
Powers. The Board
of Directors shall have power to:
(a)
enforce all applicable provisions of these ByLaws, the Articles, the
Declaration, and all other related instruments or documents with respect to
the ownership, management, or control of the Project, and in so doing
exercise for the Association all powers, duties and authority vested in or
delegated to the Association and not reserved to the membership by other
provisions of these ByLaws, the Articles, or the Declaration;
(b)
adopt and publish rules and regulations governing the use of the
Common Area and facilities, and the personal conduct of the owners and their
guests thereon, and to establish monetary penalties or other appropriate
discipline for the infractions thereof or for violations of other governing
documents; provided, however, that monetary penalties or other appropriate
discipline shall not be imposed upon an owner until after written notice and
a reasonable opportunity for a hearing before the Board of Directors has
been given to such owner;
(c)
suspend the voting rights and right to use of the recreational
facilities of a member (i) during any period in which such member shall be
in default in the payment of any assessment levied by the Association, or
(ii) for infraction of published rules and regulations of the Association or
violation of provisions of other governing documents (said suspension not to
exceed sixty (60) days per infraction or violation); provided, however, that
such voting rights or right to use of the recreational facilities may not be
suspended until after written notice and a reasonable opportunity for a
hearing before the Board of Directors has been given to such member;
(d)
declare the office of a director to be vacant in the event such
director shall be absent from three (3) consecutive regular meetings of the
Board of Directors;
(e)
employ a manager, an independent contractor, or such other employees
as the Board shall deem necessary, and to prescribe their duties;
(f)
pay all taxes, assessments,
and other charges which are or could become a lien on the Common Area
or some portion thereof;
(g)
pay for pest control, state franchise taxes, and other costs and
expenses with respect to the Association, and street cleaning, and other
necessary charges, costs and expenses with respect to the Common Area;
(h)
enter into management or service contracts for the furnishing of
goods or services for the Common Area or the Association or the Exclusive
Use Area as defined in the Declaration; provided, however, that such
contracts must be terminable by the Association for cause upon thirty (30)
days, notice, and further provided that no such contract shall have a
duration of more than one (1) year except that contracts in connection with
the Common Area not otherwise permitted by this Section may be entered into
with a public utility company if the rates charged for the materials or
services are regulated by the Public Utilities Commission provided, however,
that the term of such contract shall not exceed the shortest term for which
the supplied will contract at the regulated rate and except that contracts
in connection with the Common Area or the Association may be entered into
for prepaid casualty and/or liability insurance policies of not to exceed
three (3) years duration provided that the policy permits for short term
cancellation by the insured; and
(i)
delegate its powers to officers, agents or employees of the Association, to
such extent and in such manner as the Board of Directors may from time to
time reasonably determine.
Section 2.
Duties. It shall
be the duty of the Board of Directors to:
(a)
cause to be kept a complete record of all its acts and corporate
affairs and to present a statement thereof to the members at the annual
meeting of the members, or at any special meeting when such statement is
requested in writing by one-fourth (1/4) of the Class A 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)
fix the amount of the annual assessments against each lot;
(2)
send written notice of each assessment to every owner subject
thereto;
(3) foreclose the lien against
any property for which assessments are not paid and received by the
Association, or to bring an action at law against the owner personally
obligated to pay the same; and
(4)
pay taxes assessed against the Common Area or other property owned by
the Association;
(d)
issue, or cause an appropriate officer to issue, upon demand by 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. A properly executed certificate of the Association as to the
status of assessments on a lot is binding upon the Association as of the
date of its issuance;
(e)
cause to be prepared a balance sheet and operating (income) statement
for the Association, and cause copies thereof to be distributed to each
member of the Association within sixty (60) days of accounting dates as
follows:
(1)
a balance sheet as of an accounting date which shall be the last day
of the month closest in time to six (6) months from the date of closing of
the first sale of a lot to a member of the Association and an operating
statement for an accounting period from the aforesaid date of first closing
to the aforesaid accounting date; and
(2) a balance sheet
as of the last day of the
Association's fiscal year and an operating statement for said fiscal
year.
The operating statement for the
first six (6) months accounting period referred to in (1) above shall
include a schedule of assessments received or receivable itemized by lot and
by the name of the person or entity assessed. At such time as the gross
income of the Association for any fiscal year exceeds $75,000.00, an
external audit by an independent public accountant shall be required for the
fiscal-year financial statements (other than a budget);
(f)
obtain and continue in effect a master policy of insurance (covering
the Common Area and personal property owned by the Association) and
liability insurance, including fire insurance for full extended coverage (in
an amount not less than one hundred percent (100%) of the insurable value
(based on current replacement value)), and vandalism, malicious mischief,
and public liability insurance. If necessary, the Association shall obtain
and maintain appropriate worker's compensation coverage.
The Association shall also obtain
and continue in effect fidelity bond coverage (if available) for any person
or entity handling funds of the Association, including, but not limited to,
employees of any manager or managing agent. Such fidelity bond coverage
shall name the Association as obligee.
All of the foregoing shall be in
form and amounts satisfactory to the Board, but without prejudice to the
right of the owner of a lot to obtain individual insurance.
(g)
cause the Common Area to be maintained.
Section 3. Restrictions.
The Board of Directors shall be prohibited from taking any of the
following actions, except with the vote or written assent of a majority of
the voting power of both classes of membership of the Association:
(a)
incurring aggregate expenditures for capital improvements to the
Common Area in any fiscal year in excess of five percent (5%) of the
budgeted gross expenses of the Association for that fiscal year;
(b)
selling during any fiscal year property of the Association having an
aggregate fair market value greater than five percent (5%) of the budgeted
gross expenses of the Association for that fiscal year; and
(c)
paying compensation to members of the Board of Directors or to
officers of the Association for services performed in the conduct of the
Association's business; provided, however, that the Board may cause a
director or officer to be reimbursed for expenses incurred in carrying on
the business of the Association.
ARTICLE VIII
OFFICERS AND THEIR DUTIES
Section 1.
Enumeration of officers.
The officers of this Association shall be a president,
vice-president, secretary, treasurer, and such other officers as the Board
may from time to time by resolution create. The president and vice-president
must at all times be members of the Association.
Section 2.
Election of Officers.
The election of officers shall take place at the first meeting of the
Board of Directors following each annual meeting of the members.
Section 3.
Term. The
officers of this 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.
Section 4.
Special Appointments.
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.
Section 5.
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 resignations shall take effect
on the date of receipt of such notice, or at any later time specified
therein. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
Section 6.
Vacancies. A
vacancy in any office may be filled by appointment by the Board. The officer
appointed to such vacancy shall serve for the remainder of the term of the
officer he replaces.
Section 7.
Multiple Offices.
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 4 of this
Article.
Section 8.
Duties. The duties of the officers are as follows:
President
The president shall preside at all meetings of the Board
of Directors; see that orders and resolutions of the Board are carried out;
and sign documents and written instruments on behalf of the Association.
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.
Secretary
The secretary shall record the votes and keep the minutes
of all meetings and proceedings of the Board and of members; keep the
corporate seal of the Association and affix it on all papers requiring said
seal; 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 may be required by the Board.
Treasurer
The treasurer (or at the option of the Board of Directors,
a professional Community Manager) shall receive and deposit in appropriate
bank accounts all monies of the Association, and shall disburse such funds
as directed by resolution of the Board of Directors; and keep proper books
of account; cause to be prepared an annual pro forma operating statement
(budget) which shall be distributed to each member of the Association and to
all holders of first mortgages on the lots not less than sixty (60) days
before the beginning of the fiscal year; and cause to be prepared a balance
sheet as of the last day of the Association's fiscal year and an operating
statement for said fiscal year, copies of which documents shall be delivered
to each Association member and to all holders of first mortgages on the lots
within ninety (90) days after the close of the fiscal year.
ARTICLE IX
COMMITTEES
The Association shall appoint a Nominating Committee, as
provided in these ByLaws. In addition, the Board of Directors shall appoint
other committees as deemed appropriate in carrying out its purpose.
ARTICLE X
BOOKS AND RECORDS
The membership register, books of account, and minutes of
meetings of the members, of the Board of Directors, and of committees of the
Board of Directors shall be made available for inspection and copying by any
member of the Association (or by his duly appointed representative) for a
purpose reasonably related to such member's interest as a member. The place
where said items shall be available for inspection shall be the principal
office of the Association or such other place as the Board of Directors may
prescribe. The member desiring to make the inspection shall give at least
forty-eight (48) hours notice to the custodian of the records desired to be
inspected. The hours and days of the week when an inspection may be made are
Monday through Friday (except legal holidays) from 9:00 A.M. to 3:00 P.M.
Each member requesting copies of documents shall pay the cost of reproducing
the copies upon receipt thereof. Every director shall have the absolute
right at any reasonable time to inspect all books, records and documents of
the Association and the physical properties owned or controlled by the
Association. The right of inspection by a director includes the right to
make extracts and copies of documents.
ARTICLE
XI
ASSESSMENTS
As more fully provided in the Declaration, each owner is
obligated to pay to the Association annual and special assessments which are
secured by a continuing lien upon the lot against which the assessment is
made. If any assessment is not paid and received by the Association within
fifteen (15) days after the due date, a late charge of an amount not less
than $5.00 and not more than $25.00 (the exact amount to be determined by
the Board in its discretion for each fiscal year, and to be applied
uniformly to all owners during such fiscal year) shall be assessed for each
month or fraction thereof from the due date until the assessment and all
late charges are paid. The Association may bring an action at law against
the owner personally obligated to pay the same, or foreclose the lien
against the lot. All late charges, costs of suit, and reasonable attorneys'
fees and expenses incurred in any such action shall be added to the amount
of such assessment. No owner may waive or otherwise escape liability for the
assessments provided for herein by nonuse of the Common Area or abandonment
of his lot.
ARTICLE XII
CORPORATE SEAL
The Association shall have a seal in circular form having
within its circumference the words: CANYON CREEK HOMEOWNERS ASSOCIATION.
ARTICLE XIII
AMENDMENTS
Section 1.
These ByLaws may be amended, at a regular or special meeting of the
members, by a vote of fifty-one
percent (51%) of the voting power of each class of members present in person
or by proxy. These ByLaws may also be amended by the written consent of
fifty-one percent (51%) of each class of members.
Section 2.
In the case of any conflict between the Articles and these ByLaws,
the Articles shall control. In the case of any conflict between the
Declaration and these ByLaws, the Declaration shall control. In the case of
any conflict between the Articles and the Declaration, the Declaration shall
control.
Section 3.
No bylaw can be amended by a percentage of votes less than the
percentage of votes required to effect the purpose of such bylaw.
ARTICLE XIV
MISCELLANEOUS
The fiscal year of the Association shall begin on the
first day of January and end on the 31st day of December of every year,
except that the first fiscal year shall begin on the date of incorporation.
IN WITNESS WHEREOF, we, being all of the directors of
CANYON CREEK HOMEOWNERS ASSOCIATION, have hereunto set our hands this
24th
day of
October
, 1979.
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