- SAMPLE BYLAWS OF SAMPLE NAME Housing Cooperative*
- A LIMITED EQUITY COOPERATIVE*
1. PLAN OF COOPERATIVE OWNERSHIP
1.1 Name. The name of the corporation is SAMPLE NAME HOUSING
COOPERATIVE, a California Non-Profit Public Benefit Corporation
(hereinafter referred to as “Cooperative”).
1.2 Principal Office. The principal office of the Cooperative
is located at SAMPLE ADDRESS, Berkeley, California, 94703. The Board
of Directors is granted full power and authority to change the
principal office from one location to another in Alameda County.
1.3 Purpose. The Cooperative is a nonprofit public benefit
corporation and is not organized for the private gain of any person.
It is organized under the Nonprofit Public Benefit Corporation Law for
public purposes as a limited equity cooperative pursuant to Health and
Safety code Section 33007.5. The purpose of the Cooperative shall be
to provide its members with housing and related facilities on a
nonprofit limited equity basis consistent with the provisions set
forth in its Articles and these Bylaws.
Notwithstanding this specific purpose, the Cooperative may
engage in any other business or activity for which a corporation may
be lawfully organized under the General Nonprofit Corporation Law, and
which is not inconsistent with the Articles or applicable provisions
of the Health and Safety or Business and Professions Code.
2. DEFINITIONS
2.1 Articles. “Articles” shall mean and refer to the Articles
of Incorporation of the Cooperative, as amended from time to time.
2.2 Assessments. “Assessment” means a charge levied by the
Cooperative against an Owner and his or her Membership in accordance
with the provisions of these Bylaws. The specific types of
Assessments are defined as follows:
(A) “Annual Assessment” shall mean a charge levied against
an Owner and his or her Membership and Lease for such Owner’s
proportionate share of the Cooperative’s annual costs of maintaining,
improving, repairing and managing the Project and all other Common
Expenses, which are to be paid by each Owner to the Cooperative in the
manner and proportions provided herein.
(B) “Reimbursement Assessment” shall mean a charge levied
against a particular Owner and his or her Membership and Lease,
directly attributable to, or reimbursable by, the Owner, equal to the
cost incurred by the Cooperative for corrective action performed
pursuant to the provisions of the Governing Documents, or a reasonable
fine or penalty assessed by the Board, plus interest and other charges
on such Reimbursement Assessments as provided for in the Governing
Documents. Reimbursement Assessments shall not include any late
payment penalties, interest charges or costs incurred by the
Cooperative(including attorneys’ fees) in the collection of Annual or
Special Assessments.
(C) “Special Assessment” shall mean a charge levied
against an Owner and his or her Lease and appurtenant Membership for
other purposes as provided in Article 14.
2.3 Cooperative. “Cooperative” shall mean and refer to SAMPLE
NAME HOUSING COOPERATIVE, a California Non-Profit Public Benefit
Corporation, and its successors and assigns.
2.4 Cooperative Rules. “Cooperative Rules” shall mean the rules
adopted by the Board as provided in Section 11.1(A).
2.5 Board of Directors. “Board” or “Board of Directors” shall
mean and refer to the governing body of the Cooperative.
2.6 Bylaws. “Bylaws” means these Bylaws and any amendments or
supplements hereto.
2.7 Certificate. “Certificate” shall mean a Membership
Certificate, issued by the Cooperative to one or more Persons and
registered in the books and records of the Cooperative, which
represents a Membership in the Cooperative and the particular Unit
appurtenant to such Membership. Each Certificate, and the Membership
represented thereby, is appurtenant to the Lease of a particular Unit
in the Project and the appurtenant Membership and Lease shall not be
separately transferred, assigned or conveyed. The sequential numbers
of the originally issued Certificates representing Memberships in the
Cooperative, together with the locations of the numbered Units to
which such Certificates and Memberships shall be appurtenant, are set
forth on the Plan which is attached hereto as Exhibit A.
2.8 Close of Escrow. “Close of Escrow” shall mean the date on
which a Lease for a Unit and the Certificate representing the
appurtenant Membership in the Cooperative is issued or transferred to
a purchaser.
2.9 Common Area. “Common Area” shall mean the entire Project
except the Units.
2.10 Common Expenses. “Common Expenses” shall mean, without
limitation, the actual and estimated costs of the following; (i)
payments due in accordance with the Master Lease;(ii) maintenance,
management, operation, repair of the Project and replacement of the
Improvements(including unpaid Annual, Special, and Reimbursement
Assessments);(iii) the costs of any and all utilities metered to more
than one Unit and other commonly metered charges for the Project;(iv)
any costs of trash collection and removal;(v) costs of management and
administration of the Cooperative including, but not limited to,
compensation paid by the Cooperative to managers, accountants,
attorneys, and other employees;(vi) the costs of all gardening,
securing and other services benefiting the Project;(vii) the costs of
insurance for the Project;(viii) taxes paid by the Cooperative,
including unsegregated real property taxes on the Project;(ix)
amounts paid by the Cooperative for discharge of any lien or
encumbrance levied against the Project or any portion thereof; and(x)
the costs of any other item or items incurred by the Cooperative, for
any reason whatsoever in connection with the Project, for the common
benefit of the Members.
2.11 Family. “Family” shall mean one or more natural Persons
each related to the other by blood, marriage or adoption, or one or
more natural Persons not all so related, who maintain a common
household in a Unit.
2.12 Exclusive Use Common Area. “Exclusive Use Common Area”
means those portions of the Common Area which are reserved for the
exclusive use of an Owner but located outside the boundaries of that
Owner’s Unit. The boundaries or location of Exclusive Use Common Area
are described on the Plan attached hereto as Exhibit A.
2.13 Governing Documents. “Governing Documents” is a collective
term that means and refers to these Bylaws, the Articles and
Cooperative Rules.
2.14 Improvements. “Improvements” shall mean all structures and
appurtenances thereto of every type and kind, including but not
limited to, the building housing the Units, walkways, parking areas,
driveways, fences, retaining walls, stairs, and landscaping.
2.15 Lease. “Lease” shall mean the Proprietary Occupancy
Agreement entered into between the Cooperative and its Members and
entitling each Member to the exclusive use and occupancy for
residential purposes of the Unit appurtenant to his or her respective
Membership; together with any Exclusive Use Common Area appurtenant to
such Unit and the nonexclusive use and enjoyment of the Common Area.
Each Owner of a Membership and the corresponding Certificate shall be
entitled to the Lease of the Unit and Exclusive Use Common Area which
are appurtenant thereto. The form of the Lease and the form of
recordable Assignment of Lease to be used by the Cooperative for the
leasing of all Units in the Project is set forth respectively in
Exhibit B and Exhibit C.
2.16 Management Plan. “Management Plan” shall mean that
document attached hereto as Exhibit D, which outlines certain
parameters of the formation of the Cooperative and its Membership and
the restrictions on income for Members.
2.17 Master Lease. “Master Lease” shall mean that Ground Lease
with Agreement to Purchase Improvements date __________________,
between the Cooperative as lessee and the Northern California Land
Trust as lessor. In accordance with the provisions of the Master
Lease,(i) the Cooperative is leasing the Property from the NCLT for
ninety-nine years, and(ii) the Cooperative shall purchase the Project
Improvements according to that time frame outlined in the Master
Lease. The Master Lease is attached hereto as Exhibit E.
2.18 Member, Membership. “Member” shall mean every Person
holding a Membership in the Cooperative, pursuant to Section 7.2,
including the Permanent and Resident Members. “Membership” shall mean
the property, voting, and other rights and privileges of Members,
together with the correlative duties and obligations contained in the
Governing Documents of the Cooperative. Each Membership and the
corresponding Membership Certificate shall be appurtenant to the Lease
of a particular Unit in the Project.
2.19 Notice and Hearing. “Notice and Hearing” shall mean
written notice of and a hearing before the Board, at which the Owner
concerned shall have an opportunity to be heard in the manner further
provided in these Bylaws.
2.20 Owner. “Owner” means the record owner, whether one or more
person or an entity, of a Lease and the appurtenant Membership in the
Cooperative, and shall include a contract purchaser, provided the
contract purchaser is in possession under a recorded contract of sale.
2.21 Person. “Person” shall mean a natural individual, a
corporation or any other entity with the legal right to hold title to
property.
2.22 Plan. “Plan” shall mean the drawings and related materials
showing the relative locations of the Units, the boundaries and
relative dimensions of the Units and Exclusive Use common Areas and
such other information reasonably necessary to identify a Unit. A
copy of the Plan is attached hereto as Exhibit A.
2.23 Project. “Project means the Property and all the
improvements on the Property.
2.24 Property. “Property” means that parcel of real property
described in Exhibit F attached hereto.
2.25 Sponsor. “Sponsor” shall mean the Northern California Land
Trust(the “NCLT”), and its successors.
2.26 Unit. “Unit” shall mean a residential dwelling space
within the Project intended for occupancy, as shown on the Plan. The
boundaries of the Units, as separately shown, numbered and designated
on the Plan, are the interior unfinished surfaces of the walls, the
interior unfinished surfaces of the ceilings, the interior unfinished
surfaces of the floors, and the windows and doors thereof, including
the portions of the building so described and the air space so
encompassed. Each Unit also includes: (i) all fixtures, appliances,
air heating, water heating equipment, and ventilation fans, and the
outlets thereof, wherever located, which are part of a discrete and
complete system intended to serve only the Unit; and(ii) the finished
components of the utilities serving that Unit, such as the electrical
outlets, switches and fixtures, and all plumbing fixtures and faucets.
The Unit does not include any post, column, girder, bearing wall,roof support, roof trusses, floor joists, other structural portions of
the floors, or other structural member which is located within the
airspace of the Unit and which provides structural support to the
Common Area or another Unit, except for the finished surface of such
structural support, which finished surface shall be part of the Unit
which it faces.
3. SUBMISSION AND TERM
3.1 Submission. The Sponsor declares that the Cooperative’s
interest in the Project is, and shall be, held, conveyed,
hypothecated, encumbered, sold, leased, rented, used, occupied and
improved subject to each and all of the limitations, covenants,
conditions, restrictions, easements, liens, charges, assessments and
equitable servitudes set forth herein, all of which are declared and
agreed to be in furtherance of a plan of limited equity cooperative
ownership as described in the Governing Documents for the subdivision,
improvement, protection, maintenance, and sale of Units within the
Project, and all of which are declared to be for the purpose of
enhancing, maintaining and protecting the value, desirability and
attractiveness of the Project and every part thereof. All of the
limitations, covenants, conditions, restrictions, easements, liens,
charges, assessments and equitable servitudes set forth herein shall
run with, be binding on and inure to the benefit of each and every
person having or acquiring any right, title or interest in the
Project, and shall be binding upon and inure to the benefit of the
successors in interest of such persons.
3.2 Term. The term of these Bylaws shall correspond to the term
of the Master Lease; provided, however, that upon expiration or early
termination of the Master Lease, the Cooperative shall be immediately
dissolved, and these Bylaws shall terminate upon such dissolution.
3.3 Incorporation Into Instruments. Any Certificate and Lease
or other instrument by which a Unit is conveyed shall be subject to
the provisions of these Bylaws and shall incorporate the provision of
these Bylaws, whether or not such Certificate and Lease or other
instrument makes reference hereto.
4. COMPLIANCE WITH GOVERNING DOCUMENTS
4.1 Compliance with Governing Documents. all present and future
Members, Owners and occupants of Units within the Project shall be
subject to, and shall comply with, each and every provision of the
Governing Documents, as the same or any of them shall be amended from
time to time. The acceptance of a Certificate of Membership, the
entering into a Leas or contract of sale with respect to any Unit, or
the occupancy of any Unit shall constitute the consent and agreement
of such Owner or occupant that each and all of the provisions of the
Governing Documents, as the same or any of them may be amended from
time to time, shall be binding upon said person and that said person
will observe and comply with the Governing Documents.
4.2 Resolution of Conflicts Between Documents. If there are any
matters of conflict or inconsistencies between the Cooperative Rules
and the Articles or between the Bylaws and the Articles, then the
provisions of the Articles shall prevail. If there are any matters of
conflict or inconsistencies between the Cooperative Rules and these
Bylaws, then the provisions of these Bylaws shall prevail.
5. DUTIES AND POWERS OF THE COOPERATIVE
5.1 Cooperative’s Interest in the Property. In accordance with
the provisions of the Master Lease,(i) the Cooperative is leasing the
Property from the Sponsor for ninety-nine years, and(ii) the
Cooperative shall purchase the Project Improvements.
5.2 Duties and Powers. The duties and powers of the Cooperative
are those set forth in the governing Documents, together with its
general and implied powers of a non-profit public benefit corporation,
generally to do any and all things that a corporation organized under
the laws of the State of California may lawfully do which are
necessary or proper to manage the Project for the peace, health,
comfort, safety and general welfare of its Members subject only to the
limitations upon the exercise of such powers as are expressly set
forth in the Governing Documents and the Master Lease.
Subject to provisions of the Master Lease, the Cooperative may
from time to time(i) install, construct, reconstruct, replace or
refinish any Improvements or portion thereof upon the Project;(ii)
replace destroyed trees or other vegetation and plant trees, shrubs
and ground cover upon any portion of the Project, as further provided
herein; and(iii) employ personnel necessary for the effective
operation and maintenance of the Project, including the employment of
legal and accounting servitudes.
5.3 Rights of Entry and Use. Each Unit and the Common Area, as
the case may be, shall be subject to the following rights of entry and
use:
(A) The right of the Cooperative, or its agents, to enter
any Unit to cure any violation or breach of Governing Documents, or to
perform maintenance as described in Section 6.4, provided that the
Owner has received notice and a hearing in accordance with Article 21
(except in the case of an emergency as reasonably determined by the
Cooperative or its agents), and after the finding of a violation by
the Cooperative: (i) the Owner has failed to cure such violation
within thirty(30) days, or(ii) if such violation is susceptible of a
cure but cannot reasonably be cured within thirty(30) days, the Owner
has failed to commence the cure within the thirty(30) days, the Owner
has failed to commence the cure within the thirty(30) days and
thereafter diligently prosecute such cure to completion;
(B) The right of the Cooperative, or its agents to enter
any of the Units and Common Area, including Exclusive Use Common Area,
to perform its obligations and duties under the Governing Documents
including, without limitation: (i) any obligations or duties with
respect to construction, maintenance or repair for the benefit of the
Common Area or the Owners in common; and(ii) any obligations or
duties with respect to repairing, replacing or maintaining upon the
Common Area any sanitary sewer, drainage, water, electric, and gas,
pipes, cables and/or lines, as the case may be(collectively, “utility
systems”) serving any Unit or the Common Area; and
(C) The Cooperative’s rights of entry and cure shall be
immediate in case of an emergency, as reasonably determined by the
Cooperative, originating upon or threatening any Unit, whether or not
its Owner is present. For all non-emergency entry purposes except as
provided in Section 5.3(A), the Cooperative or its agents shall
furnish the Owner with at least forty-eight(48) hours’ written notice
of its intent to enter the Unit, specifying the purpose and scheduled
time of such entry and shall make every reasonable effort to perform
its work and schedule its entry in a manner that respects the privacy
of the Persons residing within the Unit.
5.4 Use of Agent. The Board on behalf of the Cooperative, may
contract with a professional Manager for the performance of
maintenance and repair and for conducting other activities on behalf
of the Cooperative. The term of such contract shall not exceed one
(1) year, renewable by agreement of the parties for successive
one-year periods, and such contract shall be terminable by the
Cooperative at any time.
5.5 Unsegregated Real Property Taxes. To the extent not
separately assessed to and paid by the Owners, the Cooperative shall
pay all real and personal property taxes and assessments levied upon
any portion of the Property. In addition, if all of the Units in the
Project are taxed under a blanket tax bill covering all of the Project
each Owner shall pay his or her proportionate share of any installment
due under the blanket tax bill to the Cooperative at least twenty(20)
days prior to the delinquency date. The Cooperative shall transmit
the taxes to the appropriate tax allocation agency on or before the
delinquency date. Blanket taxes for the Project shall be allocated
equally among the Owners, based upon the total number of Units in the
Project. The Cooperative shall, at least forty-five(45) days prior
to the delinquency date of any blanket tax installment, deliver to
each Owner a copy of the tax bill, along with a written notice setting
forth the Owner’s obligation to pay his or her proportionate share of
the tax installment and the potential additional charges to the Owner
for failure to comply. The Cooperative shall pay the taxes on behalf
of any Owner who does not pay his or her proportionate share. The
Cooperative shall add to the Annual Assessment of a delinquent Owner
the amount of any sum advanced, plus interest at the rate of ten
percent(10%) per annum and any amount necessary to reimburse the
Cooperative for any penalty or late charge actually assessed in
connection with the blanket tax bill, which late charge results from
the failure of the delinquent Owner to make timely payment of his or
her proportionate share of with a blanket tax bill on all or any
portion of the Project may not be amended without the express written
consent of the Permanent Member.
6. MAINTENANCE AND REPAIR OBLIGATIONS
6.1 Owners’ Maintenance Responsibilities. Each Owner shall be
responsible for maintaining his or her Unit, including any and all
fixtures, appliance and appurtenances, in good repair and condition.
Each Owner shall have the sole responsibility and the exclusive right,
at his or her sole cost and expense, to: (i) maintain, repair, paint,
paper, panel, plaster, tile and finish the interior surfaces of the
ceilings, floors and the walls and floor and wall coverings of his or
her Unit;(ii) repair, paint, finish, alter substitute, add or remove
any fixtures or utility connections attached to ceilings, floor or
walls, including, without limitation, toilets, showers, bathtubs,
sinks, kitchen appliances, lighting and plumbing fixtures and
telephone facilities within his or her Unit; (iii) maintaining and
clean the interiors of any skylights, windows and other glass surfaces
of his or her Unit and repair or replace any broken window or skylight
glass in his or her Unit;(iv) maintain, repair or replace as
necessary any furnace and hot water heater serving his or her Unit
exclusively; and(v) maintain, repair or replace as necessary any
telephone and television cable, lines and equipment serving his or her
Unit exclusively.
6.2 Cooperative’s Maintenance Responsibilities. Subject to
provisions of the Master Lease, subject to Article 19 pertaining to
eminent domain, subject to Article 18 pertaining to destruction of
Improvements, and subject to Section 6.1 pertaining to repairs by
Owners, the Cooperative shall be solely responsible to maintain in
good condition, repair, replace and manage the Common Area, all
Improvements and equipment located on the Common Area, and all
furnishings and property acquired by the Cooperative. The Cooperative
shall maintain all landscaping on the Common Area. The Cooperative is
responsible for the repair and maintenance of common Area occasioned
by the presence of wood-destroying pests and organisms in accordance
with the procedure set forth in California Civil Code Section 1364.
No Person other than the Cooperative or its duly authorized agents
shall construct, reconstruct, refinish, alter or maintain any part of
the common Area or add any Improvement to the Common Area, except as
permitted herein, or fill or change the natural or existing drainage
of the any portion of the Common Area. Also no Person shall remove
any tree, shrub or other vegetation from the Common Area or plant any
tree, shrub, or other vegetation upon the Common Area without express
approval of the Cooperative.
6.3 Maintenance of Utility Systems. The Cooperative shall be
solely responsible to maintain in good condition, repair and replace
any of the utility systems serving the Project except for those
portions of the utility systems that extend from the Common Area into
an Owner’s Unit, for which such Owner shall be solely responsible to
maintain, repair and replace. The Cooperative shall make such repairs
and replacements to those portions of the utility systems that the
Cooperative is responsible to repair and replace as may be necessary
or desirable from time to time for the benefit of the Owners.
6.4 Cooperative’s Right to Maintain or Repair a Unit. Subject
to the Notice and Hearing requirements provided in Article 21, the
Cooperative shall have the right to maintain, repair and replace at an
Owner’s expense any portion of such maintenance or repair is
reasonably necessary in the opinion of the Cooperative to preserve the
appearance and value of the Project, and :(i) such Owner has failed
or refused to perform such maintenance and repair within thirty(30)
days after written notice of the necessity to perform such maintenance
and repair within thirty(30) days after written notice of the
necessity of such maintenance and repair is delivered by the
Cooperative to such Owner. The Cooperative may levy a Reimbursement
Assessment to collect from such Owner any costs incurred with respect
to such maintenance, repair or replacement. Nothing herein shall be
construed to enable any insurer to be subrogated to the rights of any
insured party as to any loss as to which the insurer has waived its
right of subrogation.
7. MEMBERSHIP
7.1 Classes of Members. This Cooperative shall have two(2)
classes of Members as follows:
(A) Permanent Member. There shall be one Permanent Member
of this Cooperative, who shall have one(1) vote. The Sponsor NCLT
shall be the Permanent Member of the Cooperative.
(B) Resident Members. The Resident Members of the
corporation shall be all Owners, including Sponsor with respect to any
Lease owned by Sponsor. Each Resident Member shall be entitled to one
(1) vote for each Leased Unit appurtenant to a Membership owned by
such Member. Where there is more than one(1) record Owner of a Lease
and appurtenant Membership and Certificate(“co-Owners”), any or all
of such co-Owners shall be Members and may attend any meeting of the
Cooperative, but only one(1) of such co-Owners shall be entitled to
exercise the vote to which the Unit is entitled. Such co-Owners shall
from time to time designate in writing one of their number to vote.
Fractional votes shall not be allowed, and the vote for each Unit
shall be exercised, if at all, as one(1) vote. Where no voting
co-Owner is designated or is such designation has been revoked, the
vote for such Unit shall be exercised as the majority of the co-Owners
of the Lease and appurtenant Certificate mutually agree. Unless the
Board receives a written objection in advance from a co-Owner, it
shall be conclusively presumed that a voting co-Owner is acting with
the consent of his or her co-Owners. No vote shall be cast for any
Unit where the majority of the co-Owners present in person or by proxy
and representing such Unit cannot agree about the vote or other
action. The non-voting co-Owner or co-Owners shall be jointly and
severally responsible for all of the obligations imposed upon the
jointly owned Membership, Lease and appurtenant Certificate and shall
be entitled to all other benefits of ownership. Members may enter into
agreements respecting the manner in which their votes are cast,
provided that a copy of any such agreement and any modification or
extension thereof must be filed with the secretary of the Cooperative.
All agreements and determinations lawfully made by the Cooperative inaccordance with the voting percentages established in these Bylaws
shall be deemed to be binding on all Owners, their successors and
assigns. All voting rights shall be subject to the restrictions and
limitations provided in the Governing Documents.
7.2 Acquiring Membership. Every Person, upon becoming the Owner
of a Lease, shall automatically become a Member of the Cooperative.
Memberships in the Cooperative shall continue until such time as a
transfer of the Lease of the Unit and appurtenant Membership and
Certificate, or the distribution of proceeds in liquidation of an
Owner’s Membership interest in the Cooperative pursuant to Section
20.6, at which time the Membership shall automatically cease. The
Board shall make the final determination on admission of any person to
Membership in the Cooperative after the following steps have been
completed:
(A) The applicant has submitted an application on a form
prescribed by the Board, accompanied by payment of an Application Fee
established by the Board;
(B) A credit check has been conducted by the Board;
(C) The applicant has been interviewed and approved by the Board;
(D) The general Membership has recommended acceptance of
the applicant;
(E) The applicant has paid the Membership fee established
by the Board for the Unit to be occupied or has an agreement with the
Board to pay the fee in installments;
(F) The applicant has complied with all other conditions
of Membership in accordance with the Management Plan; and
(G) The applicant has completed, signed, and submitted a Lease.
7.3 Selection of Members. When a vacancy exists in the
Membership of the Cooperative, the Board may select a new Member to
fill the vacancy from among those persons who have completed the
procedure described in Section 7.2. The Board must comply with the
income restrictions and other criteria imposed upon the Project as set
forth in the Management Plan. If no vacancy exists in the type of
unit described when an application is received, the application shall
be processed and the applicant’s name placed on a waiting list. No
person shall be denied Membership in this Cooperative solely on the
basis of race, ethnicity, national origin, religious belief, physical
disability, gender, age, political belief, sexual preference, or any
basis prohibited by law.
7.4 Issuance of Certificates. A Membership Certificate shall be
issued by the Board for occupancy in the Unit specified in the Lease
and shall be issued after the Leased has been signed and the entire
Membership fee has been paid.
7.5 Title. Title to Membership may be held in the name of one
or more Person, provided however, that if two or more Persons are to
hold title, they shall do so as joint tenants, and not as tenants in
common. The names of Persons holding title shall appear on the
Membership Certificate.
7.6 Membership Certificate. Each Certificate of Membership
shall state that the Cooperative is organized under the public Benefit
Corporation Law of the State of California as a limited equity housing
cooperative in accordance with the provisions of California Health and
Safety Code Section 33007.5 and shall include the name of the
registered Owners of the Membership represented thereby, the
Cooperative lien rights as against such Membership as set forth
herein, and the preferences and restrictions applicable thereto, and
shall be in such form as shall be approved by the Board. Certificates
of Membership shall be consecutively numbered, bound in one or more
books, and shall be issued therefrom upon certification by the
Cooperative’s chief financial officer that full payment of the
Membership fee has been paid and the other requirements of Membership
have been fulfilled, as set forth in the Management Plan. Every
Certificate of Membership shall be signed by the president and the
secretary.
7.7 Lost Certificates. The Person claiming that his or her
Certificate has been lost, stolen, destroyed, or mutilated shall(1)
make an affidavit of that fact, and(2) request the Board to declare
the old Certificate null and void and to reissue the Certificate.
7.8 Transfer of Membership. Except as provided herein,
Membership shall not be transferable. In all transfers of Membership
the Cooperative shall be entitled to a fee it deems appropriate to
compensate it for processing the transfer. Transfers of Membership
may occur by:
(A) Death of a Member. Any surviving joint tenants shall,
if they are already approved as Members, automatically succeed to the
deceased Member’s interest and have the right to occupy the Unit,
vote, and participate in all Cooperative affairs once a Lease has been
signed. If there is no surviving joint tenant, the Cooperative shall,
within thirty(30) days, arrange for the re-purchase, or purchase by a
third party, of the Membership and set aside an amount equal to the
transfer value for the deceased member’s belongings within a
reasonable time, the Cooperative shall store the belongings.
(B) Option of Cooperative to Purchase. If any Member
desires to sell or otherwise transfer his or her Membership, he or she
shall notify the Cooperative in writing at least ninety(90) days
prior to the date upon which he or she intends to sell or otherwise
transfer the Membership. The Cooperative shall have an option for a
period of forty-five(45) days to notify the withdrawing Member that
the Cooperative has elected to purchase the Membership, at an amount
to be determined by the Cooperative as representing the transfer value
of the Membership less any amounts due by the Member in accordance
with Section 7.8(C). The purchase by the Cooperative of the
Membership will immediately terminate the Member’s rights and
liabilities. If the Cooperative has not exercised its option to
purchase within the forty-five(45) day period, or has waived in
writing its right to purchase, the Member may sell his or her
Membership for an amount no greater than that determined in accordance
with Section 7.9 to any Person who has been approved by the Board for
Membership.
(C) Deductions from Transfer Amount of Membership.
Whenever a transfer occurs, the Cooperative should have the right to
withhold from the transfer value of the withdrawing Member any and all
amounts due by the Member to the Cooperative under the Lease and the
Governing Documents and an amount sufficient to cover the cost, or
estimated cost, of all repairs and replacements as are deemed
necessary by the Cooperative to place the dwelling unit in suitable
condition for another occupancy.
7.9 Transfer Value. The term “transfer value” shall mean no
more than the sum of the following:
(A) The Member’s equity which consists of that Member’s
Membership fee and up to ten percent(10%) appreciation compounded
annually as provided for in Section 33007.5 of the California Health
and Safety Code. the Board shall, on an annual basis, establish the
permissible percentage of equity appreciation; and
(B) The value, as determined by the Board of any
Improvements installed at the expense of the Member with the prior
approval of the Board, under a valuation formula as established by the
Board.
7.10 Approval Required. Except as otherwise provided in the
Governing Documents, all decisions and actions requiring the approval
of Members shall be deemed approved if, in accordance with these
Bylaws, the Members assent to such decision or action by written
consent or by written ballot, or if such decision or action is
approved at any duly called annual or special meeting at which a
quorum is present, either in person or by proxy, by Owners holding a
majority of the total voting power of the Cooperative, either in
person or by proxy(excluding the number votes as to which voting
rights are suspended at the time of the subject meeting).
8. MEETING OF MEMBERS
8.1 Place of Meetings. All meeting of the Members, annual and
special, shall be held at a place within the Project as designated by
the Board, provided that if there is not an available or appropriate
place within the Project, the Board shall designate a meeting place as
close as possible to the Project but in no event outside the City of
Berkeley unless unusual conditions exist.
8.2 Annual Meetings. The first annual meeting of the Members
shall be held within six(6) months after the closing of the sale of
the first Unit. Subsequent annual meetings of Members shall be held
in each succeeding year within one week before of after the
anniversary date of the first annual meeting on a day to be determined
by the Board, which day shall not be a legal holiday, but in no event
shall an annual meeting be held less than once each calendar year.
8.3 Special Meetings. Special meetings of the Members may be
called at any time by the Board in response to the vote of a majority
of the Board, or in response to a request by the president, or upon
written request of any Member. A special meeting called by any person
(other than the Board) entitled to call a meeting shall be made by
submitting a written request specifying the general nature of the
business to be transacted at such special meeting to the president,
any vice president, or secretary of the Cooperative, and no other
business may be transacted at such special meeting. The officer
receiving the notice shall promptly cause notice to be given to the
Members in the manner required by Section 8.4 that a meeting shall be
held not less than thirty-five(35) days nor more than ninety(90)
days after the receipt of the request. If the notice is not given
within twenty(20) days after the receipt of the request, the person
or persons requesting the meeting may give the notice.
8.4 Notice of Meetings. Written notice of all Members’
meetings, annual or special, shall be given not less than ten(10) nor
more than ninety(90) days before the date oft he meeting to each
Member. The notice shall be given personally, or by first class,
registered, or certified mail to each Member at the address of such
Member appearing on the books of the Cooperative or given by the
Member to the Cooperative for purpose of notice. If no address
appears or is given for any Member, notice may be given at the
Cooperative’s principal office or by publication at least once in a
newspaper of general circulation.
The notice shall state the place, date, and time of the meeting.
If directors are to be elected at the meeting, the notice shallinclude the names of all those who are nominees at the time notice is
given. In the case of a special meeting, the notice shall also state
the general nature of the business to be transacted and that no other
business may be transacted at such special meeting. In the case of
the annual meeting, the notice shall state those matters that the
Board intends, at the time the notice is given, to present to the
Members for action, but any proper matter may be presented at the
meeting for action subject to the special notice requirements
described in Section 8.5.
8.5 Special Notice Requirements. Approval by the Members of any
of the following proposals, other than by unanimous approval of those
Members entitled to vote, shall not be valid unless the general nature
of the proposal was stated in the notice or in any written waiver of
the notice:
(A) Removing a director;
(B) Filling vacancies on the Board;
(C) Amending the Articles;
(D) Approving a contract or transaction between the
Cooperative and one or more directors, or between the Cooperative and
any entity in which a director has a material financial interest; or
(E) Electing to wind up and dissolve the Cooperative.
8.6 Waiver of Notice or Consent. The transactions of any
meeting of Members, however called or noticed, and wherever held,
shall be as valid as though taken at a meeting duly held after regular
call and notice, if(1) a quorum is present either in person or by
proxy, and(2) either before or after the meeting, each Member
entitled to vote, not present in person or by proxy, signed a written
waiver of notice of the meeting, a consent to the holding o the
meeting, or an approval of the minutes of the meeting. the waiver of
notice, consent, or approval need not specify either the business to
be transacted or the purpose of any meeting of Members, except that if
action is taken or proposed to be taken for approval of any of those
matters specified in Section 8.5, the waiver of notice, consent, or
approval shall state the general nature of the proposal. All such
waivers, consents, or approvals shall be filed with the corporate
records or made a part of the minutes of the meeting.
Attendance of a Member at a meeting also shall constitute a
waiver of notice of and presence at that meeting unless the Member
objects at the beginning of the meeting to the transaction of any
business because the meeting is not lawfully called or convened.
Also, attendance a t a meeting is not a waiver of any right to object
to the consideration of matters required to be included in the notice
of the meeting but not so included, if that objection is expressly
made at the meeting.
8.7 Proof of Membership and Record Date. No Person shall
exercise the rights of Membership in the Cooperative until
satisfactory proof of Membership has been furnished to the
Cooperative. Such proof shall consist of a duly executed and
acknowledged Certificate showing that the person has an ownership
interest in a Lease that would entitle the person to Membership in the
Cooperative as provided in Section 7.2. Such Certificate shall be
deemed conclusive proof of the Person’s Membership in the absence of a
conflicting claim based on a later dated Certificate.
For the purposes of determining the Members entitled to notice
of any meeting, to vote, or to exercise any other rights with respect
to any lawful actin, the Board may fix, in advance, a record date as
follows: (i) the record ate for notices shall be not more than ninety
(90) days nor less than then(10) days before the date of the meeting,
(ii) the record date for voting shall not be more than sixty(60) days
before the date of the meeting or before the date on which the first
written ballot is mailed or solicited, and(iii) the record date for
any other action shall not be more than sixty(60) days before the
date of such action. If no record date is fixed by the Board, the
record date shall be determined in accordance with California
Corporations Code §7611. A person holding a Membership as of the
close of business on the record date shall be a Member of record.
8.8 Quorum. The presence at any meeting in person or by proxy
of Owners entitled to cast at least fifty percent(51%) of the total
voting power of the Cooperative(excluding the number of votes as to
which voting rights are suspended at the time of the subject meeting),
shall constitute a quorum for any action except as otherwise provided
in the Governing Documents. In the absence of a quorum at an Owners’
meeting, a majority of those 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 by those in attendance shall be to
a date not less than five(5) days and not more than thirty(30) days
from the original meeting date. If a time and place for the adjourned
meeting is not fixed by those in attendance at the original meeting or
if for any reason a new date is fixed for the adjourned meeting after
adjournment, notice of the time and place of the adjourned meeting
shall be given to all Owners in the manner prescribed for in Section
8.4. Any business that might have been transacted at the original
meeting may be transacted at the adjourned meeting. In the absence of
a quorum no business may be transacted at the meeting other than to
adjourn the meeting to another time.
The Owners present at a duly called or held meeting at which a
quorum is present may continue to transact business until adjournment
notwithstanding the withdrawal of enough Owners to leave less than
quorum, if any action taken(other than adjournment) is approved by at
least a majority of the Owners(excluding the number of votes as to
which voting rights are suspended at the time of the subject meeting).
8.9 Proxies. Each Member entitled to vote shall have the right
to do so either in person or by one or more agents authorized by
written proxy, signed by the Member and filed with the secretary of
the Cooperative. A proxy shall be deemed signed if the Member’s name
is placed on the proxy(whether by original or facsimile signature) by
the Member or the Member’s attorney in fact. Any form of proxy or
written ballot distributed by any Person to the Membership of the
Cooperative shall afford the opportunity to specify a choice between
approval and disapproval of each matter or group of matters to be
acted on. The proxy or written ballot shall provide that, when the
Member specifies a choice, the vote shall be cast in accordance with
that choice. The proxy also shall identify the Person who is
authorized to exercise the proxy and the length of time it will be
valid. In addition, voting by proxy shall comply with any other
applicable requirements of California Corporations Code ¤¤7514 and
7613.
A validly executed proxy shall continue in full force and effect
until(i) written notice is received by the Cooperative of the death
or incapacity of the Member executing the proxy, or(ii) the Member
executing the proxy revokes it before the vote is cast under that
proxy by(a) delivering a written revocation to the Cooperative,(b)
executing a subsequent proxy that is presented to the meeting, or(c)
attending and voting in person at any meeting. Unless the proxy
indicates otherwise, it shall not be valid after eleven(11) months
from the date of execution and in no event shall any proxy be valid
after three(3) years from the date of execution. Notwithstanding any
of the foregoing, all proxies shall be revocable and shall
automatically terminate when the Member’s Membership in the
Cooperative terminates. The suspension of any Owner’s voting rights
by the Cooperative shall automatically suspend any proxy executed by
that Owner.
No proxy shall be valid with respect to a vote on the following
proposals to be approved by the Owner unless the general nature of the
matter to be voted on was set forth in the proxy:
(A) Removing a director;
(B) Filling vacancies on the Board;
(C) Amending the Articles;
(D) The sale, lease, conveyance, exchange, transfer or
other disposal of all or substantially all of the Cooperative’s
assets, or the approval of the principal terms of a merger or the
amendment to the principal terms of a merger;
(E) Approving a contract or transaction between the
Cooperative and one or more directors, or between the Cooperative and
any entity in which a director has a material financial interest; or
(F) Electing to wind up and dissolve the Cooperative.
8.10 Order of Business. The order of business of all meetings
of the Members shall be as follows: Roll call; proof of notice of
meeting or waiver of notice; reading of minutes of preceding meeting;
reports of the manager, the Board and officers; election of directors
if any are to be elected; unfinished business; and new business.
8.11 Parliamentary Procedure. All question of parliamentary
procedure shall be decided in accordance with Roberts Rules of Order.
8.12 Action by Unanimous Written Consent. Any action that may
be taken at a meeting of the Owners may be taken without a meeting if
authorized by a writing signed by all the Owners who would be entitled
to vote at a meeting. The written consent shall have the same force
and effect as the unanimous vote of the Owners. The written consents
shall be filed with the minutes of the proceedings of the Owners.
8.13 Action by Written Ballot. Any action that may be taken at
any meeting of the Owners may be taken by written ballot if the
following requirements of the Owners.
(A) The Cooperative distributes a written ballot to each
Member entitled to vote on the matter. The ballot shall be given
personally, or by first-class, registered, or certified mail addressed
to the Member at the address of such Member appearing on the books of
the Cooperative or given by the Member to the Cooperative for purpose
of notice. The ballot shall provide a reasonable time within which to
be returned.
(B) Each ballot shall state(i) the proposed action,(ii)
an opportunity to specify approval or disapproval of any proposal,
(iii) confirmation that, if the Member specifies a choice, the vote
shall be cast in accordance with that Member’s choice,(iv) the time
by which the ballot must be received by the Cooperative in order to be
counted,(v) the number of responses needed to meet the quorum
requirement, and(vi) the percentage of approvals necessary to approve
the proposed action.
(C) The proposed action shall be considered approved by
written ballot if(i) within the time period specified the number of
votes cast by ballot equals or exceeds the quorum required to be
present at a meeting authorizing the action, and(ii) the number of
approvals equals or exceeds the number of votes that would be required
for approval at a meeting at which the total number of votes cast was
the same as the number of votes cast by ballot.
(D) A written ballot may not be revoked.
9. DIRECTORS
9.1 Number and Qualifications. The affairs of the Cooperative
shall be governed by a Board of Directors composed of seven(7)
Persons, all of whom shall be Members of the Cooperative, or an
officer, director, employee or agent of the Permanent Member. The
Permanent Member shall designate one(1) of the seven(7) directors,
and may replace such director from time to time at the sole discretion
of the Permanent Member. In addition to the director appointed by the
Permanent Member, there shall be one(1) director from each Unit. If
there is only one(1) record Owner of a Lease and appurtenant
Certificate to a Unit, that Owner automatically shall be a director.
Where there is more than one(1) record Owner of a Lease and
appurtenant Certificate(“co-Owners”), such co-Owners shall, at each
annual meeting, designate from among them one Owner to be a director.
The provisions of Section 7.1(B) controlling the voting rights of
co-Owners also shall apply to the election of a director by such
co-Owners. Only one(1) Member per Unit may serve on the Board at the
same time.
9.2 Vacancies. A vacancy or vacancies on the Board shall exist
on the occurrence of any of the following: (i) death of any director;
(ii) the effective date of any director’s resignation;(iii) the
declaration by resolution of the Board of a vacancy in the office of a
director who has been declared of unsound mind by an order of court or
convicted of a felony; and(iv) if such director ceases to be a
Member, or if such director is an officer, director, employee or agent
of a person, corporation, partnership or other entity that ceases to
be a Member.
9.3 Compensation. No compensation shall be paid to directors
for their services as directors. The Board may reimburse a director
for legitimate expenses incurred on behalf of the Cooperative, with
prior Board approval.
10. MEETING OF DIRECTORS
10.1 Place of Meetings. Meetings of the Board shall be held at
any place within the Project designated by the Board or described in
the notice of the meeting. In absence of any designation or notice,
meetings shall be held at the principal office of the Cooperative.
10.2 Regular Meetings. Regular meetings of the Board shall be
held quarterly at such time and place within the Project as may be
fixed from time to time by resolution of the Board, provided that if
the business to be transacted by the Board required monthly meetings,
regular meetings may be held monthly. If a regular meeting falls on a
legal holiday, the meeting shall be held at the same time on the next
business day. Notice of the time and place of any regular meeting
shall be posted at a prominent place or places within the Common Area,
and shall be given to each director not less than four(4) days prior
to the meeting ; provided, however, that notice need not be given to
any director who signs a waiver of notice or written consents to the
holding of the meeting. If the Common Area consists only of an
easement or is otherwise unsuitable for posting of such notice, the
Board shall communicate the notice of the time and place of such
meeting by any means it deems appropriate.
10.3 Special Meetings. Special meetings of the Board may be
called by a written notice signed by the president of the Cooperative,
or by any two(2) directors other than the president. The notice
shall specify the time and place of the meting and the nature of any
special business to be considered, and shall be posted or communicated
in a manner prescribed for notice of regular meetings, and shall be
sent to all directors not less than seventy-two(72) hours prior to
the scheduled time of the meeting, provided that notice need not be
given to any director who signs a waiver of notice or a written
consent to the holding of the meeting.
10.4 Open Meetings. Regular and special meetings of the Board
shall be open to all Members of the Cooperative.
10.5 Minutes of Board Meetings. The Board shall cause minutes
to be taken of all meetings. The minutes, draft minutes proposed for
adoption or a summary of the minutes of any meeting of the Board shall
be available to Members within thirty(30) days of the meeting. The
minutes, proposed minutes, or summary minutes shall be distributed to
any Member of the Cooperative upon request. The Board shall notify
all Members of their right to have copies of the minutes of meetings
of the Board and how and where those minutes may be obtained(i) at
the time that the pro forma budget required by Section 20.2 is
distributed, or(ii) at the time of any general mailing to the entire
Membership of the Cooperative.
10.6 Quorum. At least fifty percent(51%) the directors then in
office(but not less than two(2), and excluding the number of votes
as to which voting rights are suspended at the time of the subject
meeting) shall constitute a quorum for the transaction of business,
except to adjourn.
10.7 Approvals Required. Every act performed or decision made
by a majority of the directors(excluding the number of votes as to
which voting rights are suspended at the time of the subject meeting)
at a duly held meeting at which a quorum is present, either in person
or by proxy, shall be regarded as the act of the Board, subject to the
requirements of California Corporations Code ¤7211(a)(8), including,
without limitation, the requirements relating to(i) approval of
contracts or transactions between the Cooperative an one or more
directors or between the Cooperative and any entity in which a quorum
is initially present may continue to transact business,
notwithstanding the withdrawal of directors, if any action taken is
approved by at least a majority of the directors.
10.8 Adjourned Meetings. A majority of the directors present,
whether or not a quorum is present, may adjourn any meeting to another
time and place. Notice of the time and place of holding an adjourned
meeting need not be given unless the meeting is adjourned for more
than twenty-four(24) hours. If the original meeting is adjourned for
more than twenty-four(24) hours, notice of any adjournment to another
time and place shall be given, before the time of the adjourned
meeting, to the directors who were not present at the time of the
adjournment.
10.9 Action without Meeting. Any action required or permitted
to be taken by the Board may be taken without a meeting, if all
members of the Board individually or collectively, consent in writing
to that action. Such action by written consent shall have the same
force and effect as any other validly approved action of the Board.
Such written consent or consents shall be filed with the minutes of
the proceedings of the Board. An explanation of any action so
approved shall be posted at a prominent place or places within the
Common Area within three(3) days after the written consents of all
the directors have been obtained.
10.10 Waiver of Notice. Notice of a meeting need not be given
to any director who, either before or after the meeting, signs a
written waiver of notice of the meeting, a written consent to holding
the meeting, or an approval of the minutes of the meeting. The waiver
of notice or consent need not specify the purpose of the meeting. All
such waivers, consents and approvals shall be filed with the
Cooperative’s records or made a part of the minutes of the meetings.
Notice of the meeting also shall be deemed given to any director who
attends the meeting without protesting, before or at its commencement,
about the lack of adequate notice.
11. POWERS AND DUTIES OF THE BOARD
11.1 Powers. The Board shall have all powers conferred on the
Cooperative as set forth in the Governing Documents, except those
powers expressly reserved to the Members and subject to the
requirements to obtain approval of the Members before certain actions
may be taken. In addition, the Board shall appoint and remove at its
pleasure all officers, agents, and employees of the Cooperative, and
shall prescribe powers and duties for them that are consistent with
the Governing Documents and any applicable laws. Also, every director
shall have the absolute right at any reasonable time to inspect all
books, records and documents of the Cooperative, and shall have the
right to make extracts and copies of such documents.
(A) Cooperative Rules. The Board shall have the power
from time to time and subject to the provisions of these Bylaws and
the Articles, to adopt, amend and repeal Cooperative Rules which may
include the establishment of a system of monetary penalties for
failure to comply with the provisions of the Governing Documents by an
Owner, such Owner’s Family or an occupant of such Owner’s Unit. The
Cooperative Rules shall not be inconsistent with the provisions of
these Bylaws or the Articles. No Cooperative Rule may be adopted
which discriminates among Owners or which materially affects the
rights, preferences or privileges of any Owner set forth in the
Articles or these Bylaws. In the event of a breach or threatened
breach of the Cooperative Rules or any provision of the Governing
Documents by any Owner, such Owner’s Family, or an occupant of such
Owner’s Unit, the Board may impose financial penalties on such Owner
as provided herein, and/or may temporarily suspend the voting rights
of such Owner(including voting rights of a director if such Owner is
a director). The imposition of any financial penalties or suspension
of voting rights for violations of an Cooperative Rule must confirm to
the Notice and hearing requirements set forth in Article 21. Any
amendment to the Cooperative Rules shall be effective thirty(30) days
from the date of adoption thereof by the Board or at such later date
as the Cooperative may designate at the time of adoption of the
amendment. A copy of any Cooperative Rule shall be delivered to each
Owner either in person or by mail, postage prepaid at least ten(10)
days before the effective date of such Cooperative Rule.
11.2 Duties. The Board shall be responsible for the performance
of the duties of the Cooperative as set forth in the Governing
Documents, and shall supervise all officers, agents and employees of
the Cooperative for the proper performance of their duties. In
addition, the Board shall maintain a complete written record of all of
its actions, and shall present a complete summary of the actions taken
during the preceding twelve(12) months at each annual meeting of the
Owners. In addition, the Board shall do the following not less
frequently than quarterly: (i) Cause a current reconciliation of the
Cooperative’s operating accounts to be made and review the same;(ii)
Cause a current reconciliation of the Cooperative’s reserve accounts
to be made and review the same;(iii) Review the current year’s actual
reserve revenues and expenses compared to the current year’s budget;
(iv) Review the most current account statements prepared by the
financial institution where the Cooperative has its operating and
reserve accounts; and(v) Review an income and expense statement for
the Cooperative’s operating and reserve accounts.
11.3 Standard of Care. Each director shall perform his or her
duties as a director in good faith, in a manner such director believes
to be in the best interest of the Cooperative, and with such care,
including reasonable inquiry, as an ordinarily prudent person in a
like position would use under similar circumstances.
12. OFFICERS AND THEIR DUTIES
12.1 Enumeration of Officers. The officers of this Cooperative
shall be a president, a secretary, and a treasurer. The Cooperative
also may have, at the discretion of the Board, one or more vice
presidents, one or more assistant secretaries, and such other officers
as the Board may from time to time by resolution create.
12.2 Election of Officers. The Board shall choose the officers
at the first meeting of the Board following each annual meeting of the
Owners.
12.3 Resignation and Removal. Any officer may be removed from
office by the Board with or without cause. Any officer may resign at
any time by giving written notice to the Board, to the president or to
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. Upon resignation or
removal of an officer, the Board shall promptly appoint a replacement
to fill such vacancy.
12.4 Vacancies in Office. A vacancy in any office because of
death, resignation, removal, disqualification, or any other cause
shall be filled in the manner prescribed in these Bylaws for regular
appointments to that office; provided, however, that vacancies need
not be filled on an annual basis.
12.5 Duties. the duties of the officers are as follows:
(A) President. The president shall preside at all
meetings of the Owners; shall see that orders and resolutions of the
Board and the Cooperative are carried out; shall sign all leases,
mortgages, deeds and other written instruments and shall sign all
promissory notes. The president shall have the general powers and
duties of management usually vested in the office of the president of
a California nonprofit public benefit corporation, and shall have such
other powers and duties as may be prescribed by the Cooperative or by
these Bylaws.
(B) Vice Presidents. In the absence or disability of the
president, the vice presidents, if any, in order of their rank as
fixed by the Board, or, if not ranked, a vice president designated by
the Board, shall perform all of the duties of the president. When so
acting, a vice president shall have all of the powers of and be
subject to all of the restrictions on the president. The vice
presidents shall have such other powers and perform such other duties
as prescribed by the Board or these Bylaws.
(C) Secretary. The secretary shall keep or cause to be
kept, at the Cooperative’s principle office, the following: (i) A
book of minutes of all meetings, proceedings and actions of the Board
and of Members. The minutes of meetings shall include the time and
place of holding, whether annual, regular or special, and, if special,
how authorized, the notice given, the names of those present at Board
and committee meetings;(ii) A copy of the Governing documents, as
amended to date; and(iii) A record of the Members, including their
names and addresses.
Except as otherwise provided in these Bylaws, the secretary
shall give, or cause to be given, the notices required by these Bylaws
for meetings of Members or of the Board. The secretary shall have
such other powers and perform such other duties as may be prescribed
by the Board or these Bylaws.
(D) Chief Financial Officer. The chief financial officer
shall keep and maintain, or cause to be kept and maintained, adequate
and correct books and accounts of the properties and transactions of
the Cooperative, and shall send or cause to be sent to the Members and
directors such financial statements and reports as are required by
law, the Governing Documents or the Board. The books of account shall
be open to inspection by any director at all reasonable times.
The chief financial officer shall deposit, or cause to be
deposited, all money and other valuables in the name and to the credit
of the Cooperative with such depositories as may be designated by the
Board, shall disburse the funds of the Cooperative as may be ordered
by the Board, shall render to the president and the Board, when
requested, an account of all transactions made on behalf of the
Cooperative and of the financial condition of the Cooperative, and
shall have such other powers and perform such other duties as may be
prescribed by the Board or the Bylaws.
12.6 Compensation. Officers shall not receive any compensation
for any service rendered to the Cooperative as an officer, provided
that any officer may be reimbursed for actual out-of-pocket expenses
incurred in the performance of his or her duties.
13. MEMBERS’ RESPONSIBILITIES AND RIGHTS TO USE AND ENJOYMENT
OF PROJECT FACILITIES
13.1 Conveyance of Project. The Sponsor covenants for itself,
its successors and assigns that it shall, prior to the first Close of
Escrow for the sale of a Lease and appurtenant Membership to a
purchaser, enter into the Master Lease with the Cooperative in
exchange for the Leases of all Units and the issuance of all of the
appurtenant Certificates representing Memberships in the Cooperative
to the Sponsor(or Persons designated by Sponsor). Upon the first
Close of Escrow for the sale of a Lease and the appurtenant Membership
and Certificate, the Cooperative shall become responsible for all
maintenance, operation, control and expenses associated with the
Project in accordance herein and in accordance with the Master Lease.
13.2 Members’ Rights of Use and Enjoyment of Project Facilities.
Subject to the provisions of the Governing Documents, each Ownershall have, for himself or herself and his or her Family, guests, and
invitees, a non-exclusive right of use and enjoyment of the facilities
and Improvements of the Project(except for the Units and Exclusive
Use Common Areas Leased to other Members) pursuant to such Owner’s
Lease, and such right of use shall be appurtenant to and shall pass
with every Lease and appurtenant Membership in the Cooperative.
13.3 Extent of Members’ Right of Use. The rights of
non-exclusive use and enjoyment of the Project facilities set forth in
Section 13.2 shall be subject to the provisions of the Governing
Documents, including, without limitation, the following:
(A) Subject to the provisions of the Master Lease, the
right of the Cooperative to construct additional Improvements on the
Project and to alter or remove any existing Improvements on the
Project for the benefit of the members of the Cooperative;
(B) Subject to the provisions of the Master Lease, the
right of the Cooperative, acting through the Board, to grant or convey
easements, licenses or rights-of way in, on or over the Project; and
(C) The right to adopt reasonable Cooperative Rules for
purposes and in the manner authorized under these Bylaws.
13.4 Delegation of Use. Any Member entitled to the right of use
and enjoyment of the Project facilities may delegate, in accordance
with these Bylaws, such right of use and enjoyment to his Family who
reside in his or her Unit, subject to reasonable regulation by the
Board.
13.5 Waiver of Use. No member may exempt himself or herself
from personal liability for Assessments duly levied by the
Cooperative, nor effect the release of his or her Membership and Lease
from the liens and charges thereof, by waiver of the use and enjoyment
of the Project facilities or by abandonment of his or her Unit.
13.6 Obligations of the Owners. Owners shall be subject,
without limitation, to the following:
(A) Notification Regarding Governing Documents. As more
particularly provided for in California Civil Code ¤1368, as soon as
reasonably practicable before transfer of any Lease, the Owner thereof
must give the prospective purchaser: (i) a current copy of the
Governing Documents;(ii) a copy of the Cooperative’s most current
financial statement;(iii) a true statement in writing from the
Cooperative as to the amount of the current Annual and Special
Assessments and fees levied upon the Lease being sold or transferred;
(iv) a true statement in writing(the “delinquency statement”) as to
the amount of any delinquent Assessments, together with information
relating to late charges, attorneys’ fees, interest, and reasonable
costs of collection which, as of the date the statement is issued, are
or may become a lien on the Lease being sold; and(v) a true statement
in writing if there is any change in the Cooperative’s current annual
and Special Assessments and fees which have been approved by the Board
or Owners, but have not become due and payable as of the date
disclosure is provided pursuant to this section.
(B) Payment of Assessments. Each Owner shall pay when due
all Assessments levied in accordance with Article 14.
(C) Joint Ownership. In the event of joint ownership of
any Lease, the obligations and liabilities of the multiple Owners
under the Governing Documents shall be joint and several.
14. COOPERATIVE MAINTENANCE FUNDS AND ASSESSMENTS
14.1 Personal Obligation of Assessments. Each Owner, by
acceptance of a Lease to a Unit and the appurtenant membership, is
deemed to covenant and agree to pay to the Cooperative all Annual
Assessments for Common Expenses and all applicable Special Assessments
and Reimbursement Assessments. The payment of all such Assessments,
together with interest, costs and reasonable attorneys’ fees, shall be
a separate, distinct and personal obligation of the Person who was the
Owner of such Lease and appurtenant membership at the time when the
Assessments fell due, and shall bind his or her heirs, personal
representatives, successors and assigns.
Upon any voluntary or involuntary conveyance of a Lease and the
appurtenant Membership and Certificate, the personal obligation for
delinquent Assessments shall not pass to the new Owner(“Purchaser”)
unless expressly assumed by the Purchaser. Any Purchaser shall be
entitled to a statement from the Board setting forth the amount of the
unpaid Assessments against the previous Owner(“Seller”) due to the
Cooperative. Neither the lease assigned to the Purchaser, nor the
Purchaser’s appurtenant Membership and Certificate shall be liable for
any unpaid Assessments levied by the Board against the Seller in
excess of the amount set forth in the statement; provided, however,
that the Purchaser shall be liable for any such Assessment becoming
due after the date of any such statement.
14.2 Maintenance Funds of the Cooperative. The Board shall
establish no fewer than two(2) separate accounts(the “Maintenance
Funds”), into which shall be deposited all monies paid to the
Cooperative, and from which disbursements shall be made, as provided
herein, in the performance of functions by the Cooperative under the
Articles and these Bylaws. Each of the Maintenance Funds shall be
established as trust savings or trust checking accounts at a banking
or savings institution. The Maintenance Funds shall include:(i) an
Operating Fund for current Common Expenses of the Cooperative, and
(ii) a Reserve Fund for capital improvements, replacements, painting
and repairs of the Project(which cannot normally be expected to occur
on an annual or more frequent basis), and(iii) any other funds which
the Board may establish to the extent necessary under the provisions
of the Governing Documents. Nothing contained herein shall limit,
preclude or impair the establishment of additional Maintenance Funds
by the Cooperative, so long as the amounts assessed to, deposited
into, and disbursed from any such Fund are earmarked for specified
purposes authorized by the Governing Documents.
14.3 Purpose of Assessments. The Assessments levied by the
Board on behalf of the Cooperative shall be used exclusively to
promote the recreation, health, safety and welfare for the residents
of the Units and for the operation, replacement, improvement and
maintenance of the Project. All amounts deposited into the Operating
Fund must be used solely for the common benefit of all of the Owners
for purposes authorized by these Bylaws, as amended from time to time.
Disbursements from the Operating Fund shall be made by the Board forsuch purposes as may be necessary for the discharge of its
responsibilities herein for the common benefit of all of the Owners,
other than those purposes for which disbursements from the Reserve
Fund are to be used.
14.4 Reserve Funds. The withdrawal of money from the Reserve
Fund shall require(i) a duly executed resolution of the Board
authorizing the withdrawal from the Reserve Fund, and(ii) the
signatures of at least two(2) persons who shall either be members of
the Board. Reserve Funds may not be expended for any purpose other
than repair, restoration, replacement or maintenance of major
components that the Cooperative is obligated to repair, restore,
replace or maintain.
Notwithstanding the foregoing, the Board may authorize the
temporary transfer of money from a Reserve Fund to the Cooperative’s
general Operating Fund to meet short term cash-flow requirements or
other expenses. The transferred funds shall be restored to the
Reserve Fund within three(3) years of the date of the initial
transfer, provided that the Board, on the making of a finding
supported by documentation that a delay is in the best interest of the
Project, may delay the restoration of these funds and in restoring the
expended funds to the Reserve Fund, and shall, if necessary, levy a
Special Assessment to recover the full amount of the expended funds
within the time limits required. This Special Assessment shall not be
subject to the Assessment increase restrictions set forth in Section
14.9 and California Civil Code ¤1366(b).
At least once every three(3) years, the Board shall cause a
study to be conducted of the Reserve Fund requirements if the current
replacement value of the major components that the Cooperative is
obligated to repair, replace, restore, or maintain is equal to or
greater than one-half of the gross budget of the Cooperative for any
fiscal year. The Board shall review this study annually and shall
consider and implement necessary adjustments to the Board’s analysis
of the Reserve Fund requirements as a result of that review.
The study shall, at a minimum, include: (i) identification of
the major components that the Cooperative is obligated to repair,
replace, restore, or maintain that, as of the date of the study, have
a remaining useful life of less than thirty(30) years;(ii)
identification of the probable remaining useful life of the components
identified in subparagraph(i) as of the date of the study;(iii) an
estimate of the cost of repair, replacement, restoration, or
maintenance of the components identified in subparagraph(i) during
and at the end of their useful life; and(iv) an estimate of the total
annual contribution necessary to defray the cost to repair, replace,
restore, or maintain the components identified in subparagraph(i)
during and at the end of their useful life after subtracting total
Reserve Funds as of the date of the study.
As used herein, “Reserve Funds” means money that the Board has
identified for use to defray the future repair or replacement of, or
additions to, those major components that the Cooperative is obligated
to maintain; and “Reserve Fund requirements” means the estimated funds
that the Board has determined are required to be available at a
specified time to repair, replace, or restore those major components
that the Cooperative is obligated to maintain.
14.5 Commencement of Annual Assessment. The Board shall
authorize and levy the amount of the Annual Assessment upon each Lease
and the appurtenant Membership and Certificate as provided herein, by
majority vote of the Board. The Initial annual Assessment shall
commence as to all Leases and the appurtenant Memberships and
Certificates(including Certificates which are allocated to specified
Units but which are unissued or owned by the Sponsor) as of the first
day of the calendar month following the first Close of Escrow in the
Project. all annual Assessments shall be assessed to the Owners and
their Memberships in accordance with the percentages set forth in
Exhibit G.
Written notice of the Annual Assessments shall be sent to every
Member subject thereto. The Board shall fix the amount of the Annual
Assessments against each Owner and his or her respective Membership
and Certificate at least thirty(30) days in advance of each Annual
Assessment period. Each Annual Assessment shall constitute an
aggregate of separate assessments for each of the Maintenance Funds,
reflecting an itemization of the amounts assessed and attributable to
prospective deposits into the Reserve Fund and the Operating Fund.
Each Owner shall pay to the Cooperative his or her Annual
Assessment in monthly installments in such amounts as established by
the Board. Each Annual Assessment may be paid by the Member to the
Cooperative in one check or in separate checks as payments
attributable to the deposits under the Operating fund and the Reserve
Fund. If any installment of an Annual Assessment payment is less than
the amount assessed and the payment does not specify the Maintenance
Fund or Funds into which it should be deposited, the receipt by the
Cooperative from that Owner shall be credited in order of priority
first to the Operating Fund, until that portion of the Annual
Assessment has been satisfied, and last to the Reserve Fund.
14.6 Collection of Annual Assessments. Commencing with the
first Close of Escrow for the sale of a Lease and its appurtenant
Membership and Certificate, the Board shall fix and collect monthly
from each member his or her pro rata share of the Annual Assessments.
Annual Assessments for fractions of any month involved shall be
prorated. The Sponsor shall pay its full pro rata share of the Annual
Assessments on all unsold or unissued Certificates which are allocated
to Units whose Leases are owned by the Sponsor. At least annually,
the Board shall present to the Members a written report reflecting
income and expenditures of the Cooperative, as further provided in
Section 20.2. The Board may cause such statement to be distributed to
all Members in such greater frequency as deemed appropriate by the
Board.
From time to time, the Board may determine whether there are any
excess funds in the Operating Funds, which excess funds shall be
retained by the Cooperative and used to reduce the following year’s
Annual Assessments. Upon dissolution of the Cooperative incident to
the abandonment or termination of the Project, any amounts remaining
in any of the Maintenance Funds shall be distributed proportionately
to or for the benefit of the Members.
14.7 Special Assessments. In addition to the Annual Assessment,
the Board may, from time to time, levy a Special Assessment against
all Leases and the appurtenant Memberships if the Board determines
that the Cooperative’s available funds are or will become inadequate
to meet the estimated expenses of the Cooperative, including the
maintenance of appropriate reserves, for a particular fiscal year for
any reason, including, without limitation, unanticipated
delinquencies, costs of construction, unexpected repairs or
replacements of capital improvements or otherwise. The Board shall
determine the amount necessary to meet the estimated expenses, and if
the amount is approved by a majority vote of the Board, it shall
become a Special Assessment. The Board may levy the entire Assessment
immediately or levy it in installments over a period it considers
appropriate.
14.8 Revised Assessment. If at any time during the course of
any year the Board shall deem the amount of an Assessment to be
inadequate or over adequate by reason of a revision of its estimate of
either expenses or income, or otherwise, the Board may revise the
Assessment for the balance of the fiscal year. the Board shall
provide notice by first-class mail to the Owners of any increase in a
Regular or Special Assessment not less than thirty(30) nor more than
sixty(60) days prior to the increased Assessment becoming due.
14.9 Restrictions on Regular or Special Assessments.
Notwithstanding any other provision in these Bylaws, the Board may not
(i) impose an Annual Assessment for any fiscal year which is more than
twenty percent(20%) greater than the Annual Assessments which in the
aggregate exceed five percent(5%) of the budgeted gross expenses of
the Cooperative for that fiscal year without the approval of a
majority of the votes at a meeting of the Members at which a quorum is
present. For purposes of this Section 14.9, a “quorum” means more
than fifty percent(50%) of the Members. any Cooperative meeting to
comply with this section shall be conducted in accordance with Chapter
5, commencing with ¤7510 of Part 3, Division 2 of Title 1, and ¤7613
of the California Corporations Code.
Notwithstanding the foregoing, the Board, without the approval
of the Members, may increase Annual Assessments or levy special
Assessments necessary for an emergency situation. For the purposes of
this section, an emergency situation is one of the following:
(A) An extraordinary expense required by order of court;
(B) An extraordinary expense necessary to repair or
maintain the Project or any part of it for which the Cooperative is
responsible where a threat to personal safety on the Project is
discovered;
(C) An extraordinary expense necessary to repair or
maintain the Project or any part of it for which the Cooperative is
responsible that could not have been reasonably foreseen by the Board
in preparing and distributing the pro forma operating budget;
provided, however, that prior to the imposition or collection of any
Assessment under this subparagraph, the Board shall pass a resolution
containing written findings as to the necessity of the extraordinary
expense involved and why the expense was not or could not have been
reasonably foreseen in the budgeting process and the resolution shall
be distributed to the Members with the notice of the Assessment; or
(D) An extraordinary expense in making the first payment
of the earthquake insurance surcharge pursuant to Section 5003 of the
Insurance Code.
The foregoing restrictions on Assessment increases shall not
apply to any Special Assessment levied to restore Reserve Funds in
accordance with California civil Code ¤1365.5(c).
14.10 Reimbursement Assessments. After compliance with the
Notice and Hearing requirements in Article 21, the Board may levy a
Reimbursement Assessment against any Lease and appurtenant Membership
and its Owner for the purpose of collecting(i) monetary penalties
imposed by the Board or Cooperative for violation of the Governing
Documents;(ii) amounts required to repay or reimburse the Cooperative
for any liability of an Owner pursuant to Section 6.6;(iii) amounts
required to reimburse the Cooperative for costs and expenditures
incurred in performing work or rendering services in accordance with
Section 6.5;(iv) amounts required to reimburse the Cooperative for
costs and expenditures incurred in discharging any Owner’s obligation
with respect to property taxes in accordance with the governing
Documents. Notwithstanding anything to the contrary in these Bylaws,
a Reimbursement Assessment levied against a Lease and appurtenant
membership and its Owner may not become a lien against such Lease and
appurtenant Membership that is enforceable by a power of sale under
the California Civil Code. This restriction on enforcement is not
applicable to late charges, interest, or collection costs, including
reasonable attorneys’ fees, assessed in connection with delinquent
Annual or Special assessments.
14.11 Delinquency. Any installment of an assessment provided
for in these Bylaws shall become delinquent if not paid within Five
(5) days of the due date as established by the Board. The Board shall
be authorized to adopt a system pursuant to which any installment of
Annual Assessments, Special Assessments or Reimbursement Assessments
not paid within thirty(30) days after the due date, plus all
reasonable costs of collection(including attorneys’ fees) and late
charges as provided herein, shall bear interest commencing thirty(30)
days from the due date until paid at the rate of twelve percent(12%)
per annum, but in no event more than the maximum rate permitted by
law. The Board may also require the delinquent Member to pay a late
charge in accordance with California Civil Code Section 1366(d)(2).
The Cooperative need not accept any tender of a partial payment of an
installment of an Assessment and all costs and attorneys’ fees
attributable thereto, and any acceptance of any such tender shall not
be deemed to be a waiver of the Cooperative’s right to demand and
receive full payments thereafter.
14.12 Creation and Release of Lien. All sums other than
Reimbursement Assessments assessed in accordance with the provisions
of these Bylaws shall constitute a lien on the respective Member’s
Lease and appurtenant Membership and Certificate prior to and superior
to all other liens, except all taxes, bonds, and other levies which,
by law, would be superior thereto made in good faith and for value and
recorded prior to the date the Assessment lien became effective. The
lien shall become effective upon recordation by the Board or its
authorized agent of a notice of Assessment(“Notice of Lien”) securing
the payment of any Annual or Special Assessment or installment
thereof, levied by the Cooperative against any Member as provided in
Section 1367 of the California Civil Code. Such Notice of Lien shall
state(i) the amount of such delinquent assessment or installment, as
the case may be, and other authorized charges and interest, including
without limitation the cost of preparing and recording such Notice of
Lien,(ii) the expenses of collection in connection with any
delinquent Assessments, including without limitation reasonable
attorneys’ fees,(iii) a description of the Certificate and Lease
against which the same has been assessed,(iv) the name of the Owner
thereof,(v) the name and address of the Cooperative and(vi) in order
for the lien to be enforced by nonjudicial foreclosure, the name and
address of the trustee authorized by the Cooperative to enforce the
lien by sale. Such Notice of Lien shall be signed by the president or
vice president and the secretary or assistant secretary of the
Cooperative, and a copy shall be delivered to the delinquent Member.
The lien shall relate only to the individual Certificate and Lease
against which the assessment is levied and not to the Property as a
whole. Upon payment to the Cooperative of the full amount claimed in
the Notice of Lien, or other satisfaction thereof, the Board shall
cause to be prepared and Recorded a Notice of Satisfaction and Release
of Lien(“Notice of Release”) stating the satisfaction and release of
such amount claimed. The Board may demand and receive from the
applicable Member a reasonable charge for the preparation of such
Notice of Release before recording such Notice of Release.
14.13 Foreclosure Under Assessment Lien. The Board may enforce
any Assessment lien established under Section 14.12 in any manner
permitted by law, including, without limitation, by judicial
foreclosure or, if the notice of delinquent Assessment contained the
name and address of the trustee authorized by the Cooperative to
enforce the lien, by nonjudicial foreclosure. Any nonjudicial
foreclosure shall be conducted in accordance with the requirements of
Civil Code §§2924, 2924b, 2924c, 2924f, 2924g, 2924h, and 2924j that
apply to nonjudicial foreclosures of mortgages or deeds of trust, as
the same may be amended from time to time. The sale shall be
conducted by the trustee named in the notice of delinquent Assessment
or by a trustee substituted in accordance with the provisions of Civil
Code §2934a. The Cooperative may bid on the Lease and appurtenant
Membership at the sale, and may hold, lease, mortgage, or convey the
acquired Lease and appurtenant Membership. If the default is cured
before the sale, or before completing a judicial foreclosure,
including payment of all costs and expenses incurred by the
Cooperative, the Cooperative shall record a Notice of Satisfaction and
Release of Lien, and, on receipt of a written request by the
delinquent Member, a Notice of Rescission of the declaration of
default and demand for sale.
14.14 Priority of Assessment Lien. Sale or transfer of any
Lease and appurtenant Membership and Certificate shall not affect the
lien of the Assessments, including interest and costs of collection
(including attorneys’ fees).
14.15 Waiver of Homestead Protections. Each Member, to the
extent permitted by law, waives the protections of any declared
homestead or homestead exemption under the laws of California as
applied to any action to enforce the Assessments levied by the
Cooperative.
ARTICLE 15 - COVENANTS AND USE RESTRICTIONS
15.1 Prohibited Uses. Each Unit shall be used only for
residential purposes by the Members and such other incidental use
allowed under applicable land use regulations.
15.2 House Rules. The Cooperative shall establish, subject to
procedures more fully described in Section 11.1 above, House Rules
which can include, among other restrictions, reasonable restrictions
on activities, parking, occupancy limitations, fires, outdoor storage,
signs, antennas, animals, trash, insurance, gas or liquid storage,
liquid filled furniture, diseases and pests, hazardous substances,
mechanic’s lines, and alterations to units.
ARTICLE 16 - ARCHITECTURAL CONTROL
16.1 Sponsor Owned Improvements. Until the Cooperative has
purchased the Improvements in accordance with the Ground Lease, no
portion of the improvements may be altered or remodeled without the
Sponsor’s written consent.
16.2 Cooperative Owned Improvements. The provisions of this
section shall govern architectural control after the Cooperative
purchases the Improvements in accordance with the Ground Lease.
(A) Architectural Control. No Improvement of any kind
shall be commenced, erected or maintained within the Project, nor
shall any addition to or change or alteration be made in or to any
Unit or to any Exclusive Use Common Area until the plans and
specifications showing the nature, color, kind, shape, height
(including front, side and rear elevations), materials, and location
of the same shall have been submitted to and approved in writing by
the Cooperative as to quality of workmanship and materials, harmony of
external design and location in relation to surrounding structures,
setback lines, topography and finish grade elevation. Nothing
contained herein shall be construed to limit the right of a Member to
paint the interior of his or her Unit any color desired.
(B) Submission of Plans; Action by Cooperative. Plans and
specifications for a proposed Improvement shall be submitted to the
secretary by personal delivery or certified mail. In the event the
Cooperative fails to approve or disapprove such design and location
within thirty(30) days after said plans and specifications have been
submitted to it, the request shall be deemed to have been denied, in
which case, the written request may be resubmitted. In the event the
Cooperative fails to approve or disapprove such design and location
within thirty(30) days after this second submission, the request
shall be deemed to have been approved. Approval of the Cooperative
can contain conditions or requests for modification of particular
aspects of the Member’s plans and specifications. The Cooperative may
apply both subjective and objective criteria when reviewing plans and
specifications for any Improvement.
(C) Permits. Before commencement of any Improvements, the
Member shall comply with all appropriate governmental laws and
regulations and shall obtain, at such Member’s sole expense, all
required permits.
(D) Estoppel Certificate. Within thirty(30) days after
written demand is delivered to the secretary by any Member, and upon
payment to the Cooperative of a reasonable fee(as fixed from time to
time by the Board), the Board shall execute an estoppel certificate,
executed by any two of its members, certifying(with respect to any
Unit leased to the applicant Member) that as of the date thereof,
either(i) all Improvements made and other work completed by said
Member with respect to the Unit comply with these Bylaws; or(ii) that
such Improvements or work do not so comply, in which event the
certificate shall also identify the noncomplying Improvements or work
and set forth with particularity the bases of such noncompliance. Any
purchaser from the Member, through the Member, shall be entitled to
rely on said certificate with respect to the matters therein set forth
such matters being conclusive as between the Cooperative, all Members
and any persons deriving any interest through them.
ARTICLE 17 - INSURANCE
17.1 Fire And Casualty Insurance. The Cooperative shall obtain
and maintain a master or blanket policy of all risk property insurance
coverage for all the Improvements within the Project, insuring against
loss or damage by fire or other casualty, in an amount equal to the
current full replacement cost(without respect to depreciation) of
such Improvements, and exclusive of land, foundations, excavation and
other items normally excluded from coverage. A replacement cost
endorsement shall be part of the policy. The policy shall name as
insured the Cooperative, the Members and Sponsor, as their respective
interests may appear, and may contain a loss payable endorsement in
favor of the Insurance Trustee described below.
(A) Insurance Trustee. If the insurance proceeds payable
under this Section 17.1 exceed Fifty Thousand Dollars($50,000), then
the proceeds shall be paid to and held by the Insurance Trustee in
trust for the Cooperative, Members and Sponsor, as their respective
interests shall appear.
17.2 Other Insurance. The Cooperative shall also obtain and
maintain the following insurance, unless the Board determines
otherwise, but subject to Sponsor’s requirements in accordance with
Section 17.3:
(A) A hazard policy insuring all equipment and fixtures owned by
the Cooperative, unless the Board determines that such insurance is
not necessary;
(B) Comprehensive general liability insurance insuring the
Cooperative(including the Cooperative’s employees, manager, officers,
directors and agents), Members, Sponsor(including Sponsor’s
employees, officers, directors and agents) and occupants of all Units
and their respective family members, guests, and invitees, against any
liability incident to the ownership or use of the Project, and
including, if obtainable, a cross liability or severability of
interest endorsement insuring each insured against liability to each
other insured. Such insurance shall provide a combined single limit
of not less than One Million Dollars($1,000,000) covering all claims
for death, personal injury, and/or property damage arising out of a
single occurrence;
(C) Worker’s compensation insurance to the extent required by law;
(D) Fidelity bonds or insurance covering officers,
directors, Members and employees that have access to any Cooperative
funds;
(E) Flood insurance if the Project is located in an area
designated by appropriate governmental agency as a Special Flood
Hazard Area;
(F) To the extent available, insurance in an amount not
less than One Million Dollars($1,000,000) on behalf of any director,
officer or member of a committee(collectively, “agents”) of the
Cooperative against any liability asserted against or incurred by the
agent in such capacity or arising out of the agent’s status as such,
(G) Earthquake insurance, if obtainable for a cost deemed
reasonable by the Board; and
(H) Such other insurance as the Board in its discretion
considers necessary or advisable.
17.3 Requirements. The form, content, limits and term of the
policies and its endorsements and the issuing company must be
satisfactory to Sponsor.
Any insurance maintained by the Cooperative shall contain a
“waiver of subrogation” as to the Cooperative(including the
Cooperative’s employees, manager, officers, directors and agents), the
Members, the occupants of the Units and Sponsor(including Sponsor’s
employees, officers, directors and agents), and, if obtainable, a
cross liability or severability of interest endorsement insuring each
insured against liability to each other insured. The Board shall
periodically(and not less than once every three(3) years) review all
insurance policies maintained by the Cooperative to determine the
adequacy of the coverage and to adjust the policies accordingly.
17.4 Member’s Property Insurance. It shall be the
responsibility of each Member to provide insurance on his or her
personal property and upon all other property within his or her Unit
which is not insured by the Cooperative’s blanket policy. Nothing
herein shall preclude any Member from carrying any public liability
insurance as he or she may deem desirable to cover his or her
individual liability for damage to Persons or property occurring
inside his or her individual Unit or elsewhere upon the Project. Such
other policies shall not adversely affect or diminish any liability
under any insurance obtained by the Cooperative, and, upon request,
duplicate copies of such other policies shall be deposited with the
Board. If any loss intended to be covered by insurance carried by the
Cooperative shall occur and the proceeds payable thereunder shall be
reduced by reason of insurance carried by any Member, such Member
shall assign the proceeds of such insurance carried by him or her to
the Cooperative, to the extent of such reduction, for application by
the Board to the same purposes as the reduced proceeds are to be
applied. All such insurance that is individually carried must contain
a waiver of subrogation rights by the insurer as to the Cooperative
(including the Cooperative’s employees, manager, officers, directors
and agents), the Members, the occupants of the Units and Sponsor
(including Sponsor’s employees, officers, directors and agents).
Each purchaser of a Lease and appurtenant Membership shall pay
the portion of the premium(s) attributable to the purchaser’s Leased
Unit(prorated to the date of Close of Escrow) for the policy or
policies purchased by Sponsor for the Cooperative.
17.5 Indemnity. To the extent not covered by insurance
maintained by the Cooperative or any Member, each Member shall
indemnify, protect, defend, and hold harmless the Cooperative
(including the Cooperative’s employees, manager, officers, directors
and agents), all other Members and Sponsor(including Sponsor’s
employees, officers, directors and agents) from and against all
liability, loss, claims and demands of third persons to the extent
arising out of the acts or omissions of(i) such Member and the
occupants residing in such Member’s Unit, and(ii) the respective
family members, guests, invitees, employees and agents of such Member
or Member’s occupants. Each Member, by acceptance of his or her deed,
agrees personally and for Family members, contract purchasers, guests
and invitees to indemnify each and every other Member, the Cooperative
(including the Cooperative’s employees, manager, officers, directors
and agents), all other Members and Sponsor(including Sponsor’s
employees, officers, directors and agents) and to hold them harmless
from, and to defend them against, any claim of any Person for personal
injury or property damage occurring within the Unit of that particular
Member, except to the extent(i) that such injury or damage is covered
by liability insurance in favor of the Cooperative or other Member or
(ii) the injury or damage occurred by reason of the willful or
negligent act or omission of another Member, the Cooperative
(including the Cooperative’s employees, manager, officers, directors
and agents), all other Members and Sponsor(including Sponsor’s
employees, officers, directors and agents).
17.6 Provision To Adjust Losses. Subject to contrary provisions
of the Ground Lease, the Board is appointed attorney-in-fact by each
Member to negotiate and agree on the value and extent of any loss
under any policy carried by the Cooperative pursuant to this Article
17. The Board is granted full right and authority to compromise and
settle any claim or enforce any claim by legal action or otherwise and
to execute releases in favor of any insured.
17.7 Notice of Expiration Requirements. If available, all of
the policies of insurance maintained by the Cooperative shall contain
a provision that said policy or policies shall not be canceled,
amended or terminated, or expired by their terms, without ten(10)
days’ prior written notice to the Board and Sponsor.
ARTICLE 18 - DESTRUCTION OF IMPROVEMENTS
18.1 Restoration of Sponsor Owned Improvements. Until the
Cooperative obtains legal title to the Improvements of the Project, in
the event of any destruction of any portion of the Project, the
provisions of the Ground Lease shall govern the disposition of the
Improvements.
18.2 Restoration of Cooperative Owned Improvements. After the
Cooperative obtains legal title to the Improvements of the Project, it
shall be the duty of the Cooperative to restore and repair such
Improvements to their former condition, as promptly as practical,
except as otherwise provided in these Bylaws. The proceeds of any
insurance maintained pursuant to Article 17 hereof shall be used for
such purpose, unless otherwise provided herein. The Board shall be
authorized to prepare the necessary documents to effect such
reconstruction as promptly as practical. The Project shall be
reconstructed or rebuilt substantially in accordance with the original
construction plans if they are available, unless changes recommended
by the Board shall have been approved in writing by seventy-five
percent(75%) of the Members.
(A) Proceeds Exceed 85 Percent of Reconstruction
Costs. If there is a total or partial destruction of the
Improvements, and if the available proceeds of the insurance carried
pursuant to Section 17.1 are sufficient to cover not less than
eighty-five percent(85%) of the costs of repair and reconstruction,
the Improvements shall be promptly rebuilt.
(B) Proceeds Less Than 85 Percent of Reconstruction Costs.
If the proceeds of insurance carried pursuant to Section 17.1 areless than eighty-five percent(85%) of the costs of repair and
reconstruction, the Improvements shall be promptly rebuilt unless,
within ninety(90) days from the date of destruction, Members then
holding at least seventy-five percent(75%) of the total voting power
of the Cooperative(excluding the number of votes as to which voting
rights are suspended at the time of the subject meeting), in person or
by proxy, at a duly constituted meeting, determine that repair and
reconstruction shall not take place. If such a meeting is called, the
Board shall solicit and obtain bids from at least two reputable
contractors to repair and reconstruct the Improvements in accordance
with the original plans and shall present this information to the
Members at the meeting. If repair and reconstruction is to take
place, the Board shall be required to execute, acknowledge, and record
in the office of the Alameda County Recorder not later than one
hundred twenty(120) days from the date of destruction, a certificate
declaring the intention of the Members to rebuild.
(C) Apportionment of Assessments. If any damage or
destruction to the Project is to be rebuilt pursuant to this Section,
the Members shall be obligated to contribute such funds as shall be
necessary to pay their proportionate share of the cost of rebuilding
or reconstruction, over and above the available insurance proceeds.
The proportionate share of each such Member shall be based upon the
ratio that the square footage of the living area of such Member’s Unit
bears to the total square footage of the living area of all Units. If
any Member fails to pay his or her proportionate share, the
Cooperative may levy a Special Assessment against such Member and such
Member’s Lease and appurtenant Membership, which may be enforced in
any manner provided in these Bylaws or by law.
(D) Improvements Not Being Rebuilt. In the event the
Members opt not to rebuild the Improvements, the Cooperative shall
raze and remove from the Property the Improvements within sixty(60)
days(or such additional time as may be reasonably required to obtain
the necessary permits). In the event the Ground Lease is terminated
pursuant to its terms as a result of such destruction, the insurance
proceeds shall be paid in accordance with Section 20.6, subject to any
security interest in the Improvements held by the Sponsor.
ARTICLE 19 - EMINENT DOMAIN
19.1 Total or Partial Taking.
(A) Improvements Owned By Sponsor. If, during the time
the Sponsor owns the Improvements, an action for condemnation of all
or a portion of the Project is proposed or threatened by any
governmental agency having the right of eminent domain, then, in
accordance with the Ground Lease, the Project or a portion of it may
be sold and conveyed to the condemning authority by the Sponsor.
(B) Improvements Owned By Cooperative. If, after the
Cooperative purchases the Improvements, and only with respect to those
Improvements, an action for condemnation of all or a portion of the
Improvements is proposed or threatened by any governmental agency
having the right of eminent domain, then on the written consent of at
least seventy-five percent(75%) of the Members entitled to vote, that
portion of the Improvements threatened by an action for condemnation
may be sold and conveyed to the condemning authority by the
Cooperative or its designees acting as the attorney-in-fact of all of
the Members under an irrevocable power of attorney, which each Member
by accepting a Lease grants to the Cooperative and which shall be
coupled with the interest of all other Members, for a price deemed
fair and equitable by the Board. If the requisite number of Members
do not consent to a sale of such Improvements, and the condemning
authority institutes condemnation proceedings, the court shall fix and
determine the condemnation award.
19.2 Distribution of Award Upon Dissolution of Cooperative. In
the case of a total taking of the Project or of the Improvements, the
Cooperative shall be dissolved and the condemnation award for any
Cooperative-owned Improvements shall be distributed in accordance with
Section 20.6. In case of a partial sale or taking of the Project or of
the Improvements, and the Ground Lease is terminated pursuant to its
terms, the Cooperative shall be dissolved and the condemnation award
for any Cooperative-owned Improvements shall be distributed in
accordance with Section 20.6.
19.3 Distribution of Award Upon Continuation of Cooperative. In
case of a partial sale or taking of the Project or of the
Improvements, if the Ground Lease is not terminated pursuant to its
terms and the Members opt to not dissolve the Cooperative, the
condemnation award for any Cooperative owned Improvements shall be
distributed as follows:
(A) To the payment of expenses of the Cooperative in
effecting the sale or to any prevailing party in any condemnation
action to whom such expenses are awarded by the court to be paid from
the amount awarded; then
(B) To Owners of Leases in the Project whose Units have
been sold or taken, in an amount up to their equity in such Lease
(after such payment the recipient shall no longer be deemed a Member,
and the Board or individuals authorized by the Board, acting as
attorney-in-fact of all Members shall amend the Plan, the Map(if
necessary) and these Bylaws to eliminate from the Project the Units so
sold or taken); then
(C) To any remaining Member whose equity has been
diminished as a result of the sale or taking of a portion of his or
her Unit, an amount up to the total diminution in equity; then
(D) To the Cooperative, the balance of the sale
proceeds or award.
19.4 Reconstruction of Remaining Improvements. If the remaining
Members have voted to continue the Project and the funds held for
restoration by the Board are less than the cost of restoration and
repair, a Special Assessment of the remaining Members may be levied
by the Board to provide the necessary additional funds for such
reconstruction. The proportionate share of each such Member shall be
based upon the ratio that the square footage of the living area of
such Member’s Unit bears to the total square footage of the living
area of all Units. If any Member fails to pay his or her
proportionate share, the Cooperative may levy a Special Assessment
against such Member and such Member’s Lease and appurtenant
Membership, which may be enforced in any manner provided in these
Bylaws or by law.
19.5 Awards for Members’ Personal Property and Relocation
Allowances. Where all or part of the Project is taken by eminent
domain, each Member shall have the exclusive right to claim all of the
awards made for such Member’s personal property and any relocation,
moving expense or other allowance of a similar nature designed to
facilitate relocation. Notwithstanding the foregoing provisions,
however, the Board shall represent each Member in an action to recover
all awards with respect to such portion, if any, of a Member’s
personal property which is at the time of any taking, as a matter of
law, part of the real estate comprising the Unit Leased to such
Member, and shall allocate to such Member so much of any awards as is
allotted by the Board to such Member’s personal property. The amount
so allocated shall be paid to the Member entitled thereto, whether or
not the Unit in which such Member’s personal property was located is
to be restored. Notwithstanding restoration of the Unit, the Board
shall have no responsibility for restoration of such Member’s personal
property.
20. FISCAL MANAGEMENT
20.1 Fiscal Year. The fiscal year of the Cooperative shall be a
calendar year, except that the first fiscal year of the Cooperative
shall begin at the date of incorporation.
20.2 Preparation and Distribution of Financial Statements,
Reports, and Copies of Governing Instruments. This section is
intended to implement the requirements established by Section 1365 of
the California Civil Code. To the extent that Section 1365 is amended
or replaced, the provisions of this Section shall be automatically
amended and replaced by the new statutory provisions. The Board shall
prepare and distribute to its Members the following financial
statements, reports, and copies of the governing instruments as
follows:
(A) A balance sheet rendered as of an accounting date that
is the last day of the month closest in time to six(6) months from
the date of closing of the first sale of a Lease(“the accounting
date”) and an operating statement for the period commencing with the
date of closing of the first sale and ending on the accounting date.
The operating statement shall include a schedule of Assessments
received or receivable identified by the Unit number and the name of
the Member assessed. Copies of the balance sheet and operating
statement shall be distributed to each Member within sixty(60) days
after the accounting date;
(B) A pro forma operating budget for each fiscal year
shall be distributed not less than forty-five(45) days nor more than
sixty(60) days before the beginning of the fiscal year consisting of
at least the following:
(1) the estimated revenues and expenses on an accrual basis;
(2) a summary of the Cooperative’s reserves based on
the most recent reserves review or study conducted under California
Civil Code §1365.5, which shall be printed in bold type and shall
include the following.
(i) the current estimated replacement cost,
estimated remaining life, and estimated useful life of each major
component of the Project that the Cooperative is obligated to maintain
(collectively the “major components”);
(ii) as of the end of the fiscal year for
which the study was prepared:(a) the current estimate of cash
reserves necessary to repair, replace, restore or maintain the major
components;(b) the current amount of accumulated cash reserves
actually set aside to repair, replace, restore or maintain the major
components; and(c) the percentage of the amount in(ii)(a) that the
amount in(ii)(b) represents;
(iii) a statement as to whether the Board
has determined or anticipates that the levy of one or more Special
Assessments will be required to repair, replace or restore any major
component or to provide adequate reserves therefor;
(iv) a general statement addressing the
procedures used for the calculation and establishment of those
reserves to defray the future repair, replacement, or additions to
those major components the Cooperative is obligated to maintain; and
(v) a general statement regarding the
Members’ right to have copies of the minutes of meetings of the Board
and how and when these minutes may be obtained.
Instead of distributing the pro forma operating budget, the Board may elect to distribute a summary of the budget to all of its Members with a written notice that the budget is available at the business office of the Cooperative or at another suitable location within the boundaries of the Project and that copies
will be provided on request at the expense of the Cooperative. The
notice must be in at least 10-point bold type and must appear on the
front page of the summary of the budget. Any Member who requests a
copy of the budget shall be provided a copy by the Cooperative by
first-class mail at the Cooperative’s expense within five(5) days of
the date the Cooperative receives the request.
(C) An annual report consisting of a balance sheet
rendered as of the last day of the fiscal year, an operating statement
for the fiscal year, and a statement of changes in financial position
for the fiscal year. A copy of the annual report shall be distributed
to each Member within one hundred twenty(120) days after the close of
the fiscal year. In any fiscal year in which the gross income of the
Cooperative exceeds $75,000, a review of the annual report shall be
prepared by a licensee of the California State Board of Accountancy in
accordance with generally accepted accounting principles, and a copy
of the review shall be distributed with the annual report. If the
annual report is not reviewed by an independent accountant, the report
shall be accompanied by the certificate of an authorized officer of
the Cooperative that the report was prepared from the books and
records of the Cooperative without independent audit or review;
(D) A statement of the Cooperative’s policies and
practices in enforcing its remedies against Members for delinquent
Annual or Special Assessments including the recording and foreclosing
of liens against a delinquent Member’s Lease and appurtenant
Membership. A copy of this statement shall be distributed to each
Member that has requested a copy within sixty(60) days prior to the
beginning of each fiscal year; and
(E) Copies of the Governing Documents shall be provided to
any Member within ten(10) days of the mailing or delivery of a
written request. The Board may impose a fee to provide these
materials not to exceed the Cooperative’s reasonable costs in
preparing and reproducing the materials.
20.3 Inspection of Cooperative Books and Records. Any Member,
or that Member’s duly appointed representative, after giving
reasonable notice to the secretary or to the appropriate custodian,
shall have access to the Cooperative’s membership register, including
mailing addresses and telephone numbers, books of account, and minutes
from any meeting of the Members, the Board, or any committee of the
Board, in order to inspect and copy such records for any purpose
reasonably related to his or her interest as a Member. Access shall
be at any reasonable time at the office of the Cooperative or such
other place within the Project as the Board prescribes. The Board
shall establish rules regarding the notice the Member must give to the
custodian of the records to obtain access, the hours and days of the
week when the records may be inspected and copied, and the charges
imposed by the Cooperative for copying records requested by the
Member.
Any member of the Board may at any reasonable time inspect, copy
or make extracts of any books, records and documents of the
Cooperative and inspect the physical properties owned or controlled by
the Cooperative.
20.4 Records Kept at the Cooperative. Commencing as soon as
reasonably available, but not later than thirty(30) days after the
closing and recording of the sale of the first Lease, the following
documents shall be maintained at the office of the Cooperative or at
such other place within the Project as the Board shall prescribe:
(A) The recorded Map and the Plan and all amendments
thereto, and a copy of the Ground Lease;
(B) The Cooperative’s Bylaws and filed Articles, and all
amendments thereto;
(C) All Cooperative Rules promulgated by the Cooperative,
including architectural guidelines;
(D) Any insurance policy procured by the Cooperative and
any lease or contract to which the Cooperative is a party;
(E) The Membership register, including mailing addresses
and telephone numbers, books of account and any minutes of meetings of
the Members, the Board and any committees of the Board; and
(F) Any other instrument which establishes or defines the
common, mutual and reciprocal rights and responsibilities of the
Members as Members of the Cooperative.
20.5 Execution of Cooperative Documents. With the prior
authorization of the Board, all notes and contracts, including Leases,
shall be executed on behalf of the Cooperative by at least two(2)
officers, one(1) of which shall be the president or vice-president.
20.6 Cooperative Equity. Cooperative equity is the excess of
taxable, fair market value of the property over the sum of current
transfer value of all Membership interests, reduced by outstanding
encumbrances. By a vote of seventy-five percent(75%) of the Members
of record, the Cooperative equity may be used for the following
purposes only:
(A) For the benefit of the Cooperative; or
(B) For the public’s benefit. Such distribution may occur
in the event of
1. termination and non-renewal of the Ground Lease;
2. other reversion of possession of the property
leased by the Cooperative;
3. destruction of the Improvements and a decision
not to rebuild; or
4. dissolution of the Cooperative as a result of
condemnation of all or a portion of the Property.
Under no circumstances may the Cooperative equity be assigned to or
become a component of Member equity. All Cooperative equity shall be
disbursed to a public agency and/or a Non-Profit corporation for use
in the provision or production of low- to moderate-income housing upon
the occurrence of any one of the following conditions:(i) dissolution
of the Cooperative;(ii) termination of the business of the
Cooperative; or(iii) sale of the Improvements owned by the
Cooperative.
ARTICLE 21 - NOTICE AND HEARING PROCEDURE
21.1 Suspension of Privileges. In the event of an alleged
violation of these Bylaws or the Cooperative Rules by a Member or
Person deriving their rights of use and enjoyment of the Project from
such Member, the Board shall have the right, upon an affirmative vote
of a majority of the Board(excluding the number of votes as to which
voting rights are suspended at the time of the subject meeting), to
take any one or more of the following actions:(i) levy a
Reimbursement Assessment against such offending Member(the
“respondent”),(ii) suspend the respondent’s voting privileges as a
Member;(iii) suspend the respondent’s voting privileges as a director
if such Member is also a director; and/or(iv) record a Notice of
Noncompliance against the respondent’s Lease and Unit. Any such
suspension shall be for a period of not more than thirty(30) days for
any noncontinuing infraction, but in the case of a continuing
infraction(including nonpayment of any Assessment after the same
becomes delinquent) may be imposed for so long as the violation
continues. Prior to taking action hereunder, the Board shall deliver
(either personally or by first-class mail sent to the Member’s last
address shown in the records of the Cooperative) to the Member alleged
to be in violation written notice of the proposed action and the
reasons therefor. Such notice shall specify a date and time for a
hearing before the Board at which the Member may be heard orally or in
writing. No action against such Member arising from the alleged
violation shall take effect prior to the expiration of(i) fifteen
(15) days after the Member’s receipt of the notice required herein and
(ii) five(5) days after the hearing required herein. The failure of
the Board to enforce the Cooperative Rules, these Bylaws or the Leases
shall not constitute a waiver of the right to enforce the same
thereafter. The remedies set forth above and otherwise provided by
these Bylaws shall be cumulative and none shall be exclusive.
21.2 Written Complaint. A hearing to determine whether a right
or privilege of the respondent under these Bylaws should be suspended
or conditioned, or whether a Reimbursement Assessment should be
levied, shall be initiated by the filing of a written Complaint by any
Member or by any officer or director with the president of the
Cooperative or other presiding member of the Board. The Complaint
shall constitute a written statement of charges which shall set forth
in ordinary and concise language the acts or omissions with which the
respondent is charged and a reference to the specific provisions of
these Bylaws, the Leases or the Cooperative Rules which the respondent
is alleged to have violated. A copy of the Complaint shall be
delivered to the respondent in accordance with the notice procedures
set forth in Section 21.1, together with a statement which shall be
substantially in the following form:
“Unless a written request for a hearing signed by or on behalf
of the person named as respondent in the accompanying Complaint is
delivered or mailed to the Board within fifteen(15) days after the
Complaint was delivered or mailed to you, the Board may proceed upon
the Complaint without a hearing, and you will have thus waived your
right to a hearing. The request for a hearing may be made by
delivering or mailing the enclosed form entitled ‘Notice of Defense’
to the Board at the following address: (the suitable address shall be
inserted here) If you desire the names and addresses of witnesses or
an opportunity to inspect any relevant writings or items on file in
connection with this matter in the possession, custody or control of
the Board, you may contact (the name of a suitable person shall be
inserted here)”
The respondent shall be entitled to a hearing on the merits of
the matter if the Notice of Defense is timely filed with the Board.
The respondent may file a separate statement by way of mitigation,
even if he or she does not file a Notice of Defense.
21.3 Notice of Hearing. The Board shall serve a notice of
hearing, as provided herein, on all parties at least ten(10) days
prior to the hearing, if such hearing is requested by the respondent.
The hearing shall be held no sooner than thirty(30) days after the
Complaint is mailed or delivered to the respondent as provided in
Section 21.2. The notice to the respondent shall be substantially in
the following form but may include other information:
“You are hereby notified that a hearing will be held before the
Board at _____________________________________, on the _____ day of
________, 20_
at the hour of _______________ upon the charges made in the
Complaint served upon you. You may be present at the hearing, may
present any relevant evidence, and will be given full opportunity to
cross-examine all witnesses testifying against you. You are entitled
to request the attendance of witnesses and the production of books,
documents or other items by applying to the Board.”
21.4 Hearing. The hearing shall be held before the Board in
executive session pursuant to this notice affording the Member a
reasonable opportunity to be heard. Prior to the effectiveness of any
sanction hereunder, proof of notice and the invitation to be heard
shall be placed in the minutes of the meeting. Such proof shall be
deemed adequate if a copy of the notice together with a statement of
the date and manner of delivery is entered by the officer or director
who mailed or delivered such notice. The notice requirement shall be
deemed satisfied if a violator appears at the meeting. The minutes of
the meeting shall contain a written statement of the results of the
hearing and the sanction, if any, imposed. No action against the
Member arising from the alleged violation shall take effect prior to
the expiration of(i) fifteen(15) days after the Member’s receipt of
the notice of hearing and(ii) five(5) days after the hearing
required herein.
ARTICLE 22 - GENERAL PROVISIONS
22.1 Legal Proceedings. The failure of any Member, his or her
Family, guests, employees, or invitees to comply with any provision of
the Governing Documents shall be grounds for relief which may include,
without limitation, an action to recover sums due for damages,
injunctive relief, foreclosure of lien, unlawful detainer, or any
combination thereof. Failure to enforce any provision hereof shall
not constitute a waiver of the right to enforce said provision, or any
other provision hereof. The Board or any Member(not at the time in
default hereunder shall be entitled to bring an action for damages
against any defaulting Member, and in addition may enjoin any
violation of the Governing Documents. Any judgment rendered in any
action or proceeding to enforce the Governing Documents shall include
a sum for attorneys’ fees in such amount as the court may deem
reasonable in favor of the prevailing party, as well as the amount of
any delinquent payment, interest thereon, costs of collection and
court costs. Each remedy provided for in the Governing Documents
shall be cumulative and not exclusive or exhaustive.
22.2 Construement of Provisions. The provisions of these Bylaws
shall be liberally construed to effect its purpose of creating a
uniform plan for the development and operation of a Limited Equity
Cooperative.
22.3 Independence of Provision. The provisions of these Bylaws
shall be independent and severable. Invalidation or partial
invalidation of any provision of these Bylaws by judgment or court
order shall not affect any other provision of these Bylaws, and the
remaining provisions shall remain in full force and effect.
22.4 Failure Not a Waiver. The failure of Sponsor, any Member,
the Cooperative or its officers or agents to enforce any of the
covenants, conditions, restrictions, limitations, reservations, grants
or easements, rights, rights-of-way, liens, charges or equitable
servitudes contained in the Governing Documents shall not constitute a
waiver of the right to enforce the same thereafter.
22.5 Notices. Unless otherwise indicated herein, notices shall
be in writing and shall be addressed as follows: if to a Member, to
the address of his or her Unit; if to Sponsor, to Ms. Teresa Clarke,
3126 Shattuck Avenue, Berkeley, CA 94705, and, if to the Cooperative,
to the address of the secretary or president of the Cooperative.
Sponsor may designate a different address for notices by giving
written notice of such change of address to the Cooperative.
22.6 Headings. The headings used in these Bylaws are for
convenience and reference only and the words contained therein shall
not be held to expand, modify, or aid in the interpretation,
construction, or meaning of these Bylaws.
22.7 Number/Gender. The singular shall include the plural and
the plural the singular unless the context requires the contrary; and
the masculine, feminine and neuter shall each include the masculine,
feminine or neuter, as the context may require.
22.8 Amendments. These Bylaws may be amended only by the
affirmative vote(in person or by proxy) or written consent of(i)
Sponsor, when required by Article 23 below, and(ii) Members
representing a two-thirds(2/3) of the total voting power of the
Cooperative. However, the percentage of voting power necessary to
amend a specific clause shall not be less than the prescribed
percentage of affirmative votes required for action to be taken under
that clause. Any amendment must be certified in a writing executed
and acknowledged by the president of the Cooperative and Recorded in
the Recorder’s Office of the County of Alameda. Amendments to House
Rules are described in Section 11.1 above. Any amendment to the Lease
or other governing document of this Cooperative shall be effective
thirty(30) days from the date of adoption thereof by the Board or at
such later date as the Cooperative may designate at the time of
adoption of the amendment. A copy of any such amendment shall be
delivered to each Member either in person or by mail, postage prepaid,
at least thirty(30) days before the effective date of such amendment.
22.9 Successor Statutes.Any reference in the Governing
Documents to a statute shall be deemed a reference to any amended or
successor statute.
22.10 Recitals. The recitals contained on page 1 shall be
incorporated in and made a part of these Bylaws.
22.11 Exhibits. All Exhibits attached to these Bylaws are
incorporated herein and made a part hereof by this reference.
ARTICLE 23 - RIGHTS OF SPONSOR
23.1 Interest of Sponsor. The Sponsor has offered this
Cooperative the land and improvements through a ground lease that is
substantially below market rate. It has done so because of its
charitable purpose involving the development and preservation of
decent, affordable housing for low- and moderate-income people in the
Berkeley and Oakland area; the conservation of land and natural
resources by means such as fostering responsible long-term occupancy;
the promotion of neighborhood stability and the creation of a more
equitable and stable system of property and housing opportunities in
the Berkeley and Oakland area; and the creation of home ownership
opportunities for low- and moderate-income people who otherwise would
be denied such opportunities because of limited financial resources.
In return for providing the ground lease at below market rate, it must
obtain from this Cooperative certain rights, specifically identified
herein, to assure that its charitable purposes will in fact be
achieved.
23.2 Rights of Sponsor. As mentioned in Section 9.1 above,
Sponsor will be entitled to one position on the Board of Directors,
and, by virtue of that position, Sponsor will be entitled to access to
all information regarding the affairs of this Cooperative to which any
other Board Member would have access. To facilitate this disclosure
of information, Sponsor is entitled to ask for regular quarterly
financial reports in a format to be mutually agreed upon between the
Sponsor and the remaining Members of the Board of Directors. Sponsor
must consent to any change of the Articles of Incorporation or Bylaws
before they become effective, where such change affects the ability of
the Sponsor to achieve its charitable goals through this Cooperative
or impacts its financial interest in the land which is the subject of
the ground lease. Notwithstanding anything to the contrary contained
in these Bylaws, Sponsor, its agents, employees and contractors, for
so long as Sponsor owns a Lease and appurtenant Membership for
purposes of resale to another, shall have the right to do such things
or take such actions as they deem necessary, advisable or convenient
for the sale, rental or other disposition of Leases and appurtenant
Memberships owned by Sponsor. The rights of Sponsor, its agents,
employees and contractors shall include, without limitation, the right
of ingress in, over and upon the Project for the purpose of performing
acts deemed necessary, advisable or convenient for the sale of the
Leases and appurtenant Memberships owned by Sponsor.
CERTIFICATE OF SECRETARY
I certify that I am the duly elected and acting secretary of
SAMPLE NAME HOUSING COOPERATIVE, a California non-profit public
benefit corporation, and that the above Bylaws, consisting of __
pages, are the Bylaws of this Cooperative as adopted by the Members on
______ , 20, and that they have not been amended or
modified since that date.
Executed on _____ , 20_ , at __________________, California.
Secretary