HOVERMC Articles of Incorporation
and Bylaws
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TO ALL TO WHOM THESE PRESENTS SHALL COME: I,
the undersigned Director of the Department of Commerce and Consumer Affairs of
the State of Hawaii, send Greeting: WHEREAS,
JOHN WALKER, LORAINE BARTHOLOMEW and ANNE SHILZONY, a majority of whom are
residents of the State of Hawaii, have filed with me as Director of the
Department of Commerce and Consumer Affairs a verified petition to grant to them
and their associates a charter of incorporation as a nonprofit corporation, in
accordance with the provisions of Section 416-20, Hawaii Revised Statutes, and WHEREAS,
the directors and members of said corporation have elected to amend the Articles
of Incorporation in accordance with Hawaii Revised Statutes 415(b)-37 in the
form hereinafter set forth, NOW,
THEREFORE, KNOW YE, that I, the said Director, in the exercise and execution of
every power and authority in anywise enabling be in this behalf, do hereby
constitute the said petitioners and their associates a corporation under the
laws of the State of Hawaii for the purpose and in the form hereinafter set
forth. ARTICLE I The
name of the corporation shall be: ARTICLE II The
location of the principal office of the corporation shall be in the District of
Ka'u, County and State of Hawaii, and the address of its initial office shall be
located in the Hawaiian Ocean View Estates Subdivision, District of Ka'u, County
and State of Hawaii, with its mailing address as S.R Box 6227, Captain Cook,
Hawaii 96704 (due to its geographically rural location a more definite address
is unavailable). ARTICLE III The
Purposes of the corporation are: (a)
To maintain, repair, restore or cause to be maintained, repaired and restored,
roads within the Hawaiian Ocean View Estates subdivision located in the District
of Ka'u, County and State of Hawaii. The corporation may make improvements to
the roadways within said subdivision which by their nature tend to reduce
expenses to maintain and/or promote safety. (b)
The corporation shall assume and perform the obligations and duties of the
"Sub Divider" under that certain road maintenance escrow agreement
dated December 12, 1962 by and between Hawaiian Ocean View Estates, a Nevada
corporation as subdivider, and the First Trust Company of Hilo, Limited, as
depository, as amended, as it may be amended from time to time. (c)
The corporation shall receive the property and fiends set forth in that certain
"Settlement Agreement, Release and Covenant Not to Sue" dated August
3, 1983, pertaining to that certain class action suit in the Circuit Court of
the Third Circuit, State of Hawaii, being Civil No. 4102, Hawaiian Ocean View
Estates Community Association, et al, vs. Exeter Equities, et al, and shall
perform the obligations required of it as set forth in said settlement
agreement. Article IV The
duration of the corporation shall be perpetual. Article V
The officers shall consist of a President; Vice President; Secretary and
Treasurer Article VI There
shall be a board of directors consisting of not less than three (3) members. The
following persons shall be the initial officers and directors, and shall hold
office for the first year or until their successors are duly elected pursuant to
the by-laws of the corporation: Director
DON SWANGEL Director
LUCIEN R. HOWSLEY President
JOHN WALKER V.P.
ELINOR McKINNEY Secretary
Anne SHILZONY Treasurer
LORAINE BARTHOLOMEW Due
to our geographically rural location, residence addresses are unavailable. Article VII The
corporation shall have the following powers:
(1) To receive, retain, invest and reinvest all funds and property in
income-producing investments in a manner that preserves principal as a
perpetual, non-diminishing fund, and produces income commensurate with such a
fund.
(2) To take title to Lots 16, 18, 20 and 22 of Block 47 of the
subdivision; and to sell, lease or otherwise convert such lots to
income-producing funds.
(3) To take title to Lots 3 and 4, Block 279 of the subdivision (the
cinder cone lots) and to hold, manage and use the cinders thereon or income
therefrom for the purposes for which the Corporation is organized.
(4) To pay out such sums as are available from earnings on the
Corporation's assets to individuals, persons, firms or corporations to:
(a) Maintain and repair the roads within the subdivision, including,
without limiting the generality of the foregoing, improvements which by their
nature tend to reduce expenses of maintenance and/or promote safety, including
comprehensive general liability insurance for the Corporation which names Exeter
Equities, Inc., as additional insured.
(b) Protect, preserve and manage the Corporation and the assets of the
Corporation.
(c) Pay reasonable costs and fees in connection with the management;
investment and distribution of the Corporation's principal and income.
(d) Maintain road equipment and machinery and hire and employ maintenance
workers and award contracts for maintenance and repairs to the roadways.
(5) To use principal to the extent necessary to purchase road equipment
and machinery and make emergency repairs or restoration or resurfacing of roads,
within and appurtenant to the subdivision when such repairs are made necessary
by extraordinary circumstances, provided, however, that the amount of principal
used in any one year shall not exceed five percent (5%) of the principal value
of the Corporation's assets as of the first day of each calendar year. Assets
shall include funds held in escrow accounts pursuant to said Road Maintenance
Escrow Agreement.
(6) To use principal and income to pay any taxes, penalties or interest
as may now or hereafter be determined to be due on account of the operation of
the corporation and the funds held in trust under the Road Maintenance
Agreement.
(7) To amend, from time to time, the Road Maintenance Escrow Agreement,
including provisions changing the depository or responsibility for investment
management of fiends held by the depository are used, to invade principal, or to
divert fiends for any purpose not presently authorized under the Road
Maintenance Escrow Agreement shall not be valid without approval of a court
having jurisdiction in an action to which all owners are parties or are duty
represented.
(8) To have and exercise solely in furtherance of, but not in addition to
the purpose set forth herein, all powers granted to non-profit corporations in
Chapter 476, Hawaii Revised Statutes (1968) as now or hereafter amended. Powers
Created by Further Court Order:
In addition to the powers and purposes set forth above, the Corporation
may exercise all of the powers and privileges and perform all the duties and
obligations of the Corporation as set forth in court orders in the case filed in
the Circuit Court of the Third Circuit known as H.O.V.E. Road Maintenance
Corporation, a Hawaii non-profit corporation v. Ann D. Pettingill, et al., Civil
No. 89-232, and which are related to the use, operation, safety, upkeep,
maintenance, repair and improvement of the H.O.V.E. road system, including
without limitation: 1) the power to implement and enforce assessments, as
provided in the Amended Bylaws and the Court Order, to generate income to
satisfy the purpose and obligations of the Corporation under the Articles of
Incorporation and the Bylaws; 2) to make improvements to promote safety of the
H.O. V.E. road system, including the installation of traffic signs and other
necessary road markings; 3) the authority
to control through tariff, charges or other means, the use of heavy and/or
commercial vessels on the H.O.V.E. road system; and 4) to levy fines and other
sanctions against those who abuse and damage the road system. The
Corporation shall utilize the assessments as follows:
(1) To repave, repair, maintain, upkeep and improve the H.O.V.E. road
system (such repaving, repair, maintenance, upkeep and improvement will
hereinafter be referred to as "road maintenance") or to provide for
the road maintenance by agreements with independent contractors;
(2) To make improvements to promote the safety of the H.O.V.E. road
system, including without limitation, the installation of traffic signs,
signals, and other necessary road markings;
(3) To control through tariff, charges or other means the use of heavy
and/or commercial vessels on the FLO.V.E. road system;
(4) To levy fines or other sanctions against those who abuse and damage
the road system;
(5) To perform any of the other acts, duties and obligations required and
permitted under these Articles of Incorporation and the amended Bylaws;
(6) To provide for die care, operation, management, maintenance, repair
and replacement of its property. Without limiting the generality of the
foregoing, said obligation shall include keeping the property in good, clean,
attractive and sanitary condition, order and'r°pair; repairing wind and other
damage caused by the elements;
(7) To pay for the services of any person to manage its affairs or any
part thereof, to the extent it deems advisable, as well as the services of such
other personnel, including independent contractors, as the corporation shall
determine to be necessary or desirable for the proper operation of its property
and performance of its duties, whether such personnel are furnished or employed
directly by the Corporation or by any person with whom or which it contracts;
(8) To undertake or contract for any lawful activity, function or service
for the benefit of its members, provided that such activity, function or service
is within the scope of the purposes of the Corporation as set forth in these
Articles and amended Bylaws. The Corporation shall obtain from any governmental
authority any licenses necessary or appropriate to carry out its functions
hereunder, The activities, functions, or services undertaken or contracted for
by the Corporation shall include, without limitation, the providing of legal and
accounting services necessary or desirable in connection with the enforcement of
the Bylaws; the granting or conveying of easements or rights of way over,
across, along or under any real property of the Corporation; and the enforcement
of all rights granted to the Corporation in any lease, sublease, easement or
other instrument;
(9) To acquire and hold tangible and intangible personal property and to
dispose of the same by sale or otherwise;
(10) To acquire fee simple title or leasehold or subleasehold interest
in, or any easement or right of use in, real property reasonably necessary for
the corporation's use in carrying out its purposes and powers set forth herein. Article VIII Membership: All
owners of lots within the Hawaiian Ocean View Estates subdivision shall be
entitled to be members upon payment of such reasonable dues, or none, as set by
the Board of Directors from time to time. ARTICLE IX: These
articles may be amended by a vote of not less than 75% of those members of the
Corporation who vote by ballot, proxy or in person at a meeting duly called and
held for that purpose.
(1) No shares of stock shall be issued and no dividends shall be paid and
no part of the net earnings of the Corporation shall enure to the benefit of, or
be distributed to any member, director, or officer of the Corporation, or any
private individual.
(2) No substantial part of the activities of the Corporation shall be the
carrying on of propaganda or otherwise attempting to influence legislation, and
the corporation shall not participate in or intervene in (including the
publication or distribution of statements) any political campaign on behalf of
any candidate for public office.
(3) The Corporation shall not make any loans to its officers or
directors. Any directors who vote for or assent to the making of a loan to a
director or officer of the Corporation, and any officers participating in the
making of such a loan shall be jointly and severally liable to the Corporation
of the amount of the loan until repayment.
(4) No compensation shall be paid to members of the Board of Directors,
for serving as directors, but this provision shall not prevent the Corporation
from reimbursing directors for actual expenses incurred while attending meetings
and performing duties assigned to individual directors. ARTICLE X The
Corporation may be dissolved in the event the roads within the subdivision shall
be dedicated to or maintained by the County of Hawaii. ARTICLE XI The
Corporation is not organized for profit, it will not issue any stock, and no
part of its assets, income, or earnings shall be distributed to its members,
directors, or officers, except for services actually rendered to the Corporation
and except upon liquidation of its property in case of corporate dissolution.
BYLAWS OF ARTICLE 1. DEFINITIONS 1.1
"Corporation property" means any real or personal property interest owned,
leased, licensed, or otherwise held by the Corporation. 1.2
"H.O.V.E. Lots"
means all of the land described as the Hawaiian Ocean View Estates designated
and shown on the map of the Hawaiian Ocean View Estates, duly recorded in the
Bureau of Conveyances of the State of Hawaii as File Plan Nos. 692, 738, 787,
and 1011 in Liber 4255, Pages 474-476. 1.3
"Lot"
means each of the subdivided lots designated and shown on the map of the
Hawaiian Ocean View Estates, duly recorded in the Bureau of Conveyances of the
State of Hawaii as File Plan Nos. 692, 738, 787, and 1011 in Liber 4255, Pages
474-476, except that contiguous lots that have been consolidated as one tax map
key number shall be considered one lot. 1.4
"Owner"
means any person who is the recorded owner of a fee simple interest in any lot;
provided, however, that the lessee (or if there is a sublease, then the
sublessee), under a recorded lease or sublease of any lot for an original term
of more than thirty (30) years, and the purchaser under a recorded agreement of
sale for any lot shall be deemed to be the owner of such lot, to the extent
provided in such lease or agreement of sale. In the event of a dispute or
conflict between the fee simple owner and any such lessee, sublessee, or
purchaser (under a recorded document), as to who shall be the owner for purposes
of these Bylaws, then such lessee, sublessee or purchaser under a recorded
document shall be deemed to be the owner until such dispute or conflict is
resolved. Any person who holds any interest in a lot merely as security for the
performance of any obligation shall not be deemed an owner. A trustee, personal
representative, or receiver shall be deemed an owner of lots held or
administered in that, capacity. 1.5
"Person"
means a natural individual, corporation, partnership, or any other legal entity. 1.6
"H.OV.E.
road system"
means those certain roadways designated and shown on the map of the Hawaiian
Ocean View Estates, duly recorded in the Bureau of Conveyances of the State of
Hawaii as File Plan Nos. 692, 738, 787, and 1011 in Liber 4255, Pages 474-476,
and shall be all roadways located within the above mentioned subdivision;
provided, however, that any portion or portions of the roadways which may be
dedicated or conveyed to the County of Hawaii, State of Hawaii, or other
governmental authority shall cease to be part of the H.O.V.E. road system
immediately upon such dedication or conveyance and the acceptance thereof by
said governmental authority. 1.7
"Primary
Road System"
means the road system defined as the main thoroughfares running east and west
and north and south in the H.O.V.E. road system and includes the roads as
designated on Exhibit A attached hereto. 1.8
"Corporation
Board"
means the Board of Directors of the Corporation. ("Corporation
officers" means the officers created under these Bylaws being president,
vice-president, secretary and treasurer.) 1.9
"Majority
of members"
means the members owning in the aggregate more than fify percent (50%) of the
lots in the subdivision. Any specified percentage of the members means members
owning the specified percentage of lots of the subdivision. 1.10
"Fiscal
year"
shall be the calendar year commencing January I st of each and every year. 1.11
"Master" means an individual or mediation service, appointed by the
Circuit Court for the Third Circuit, Island of Hawaii, to settle possible issues
of the proposed budget as set forth in section 6.3. ARTICLE 11. MEMBERSHIP 2.1
Membership.
Each owner of a lot within the HOVE. Subdivision, by virtue of being such an
owner, and for so long as he is an owner, shall be a member of the Corporation. 2.2
Transfer
of Membership.
Membership in the Corporation is appurtenant to the ownership of an interest in
a lot and cannot be granted separately from ownership of a lot. Any attempted
assignment, pledge, mortgage, conveyance, or other transferred disposition of
membership separately from the interest in a lot shall be void. The transfer of
title to a lot shall simultaneously transfer the membership appurtenant to the
lot to the grantee, whether or not such transfer is mentioned in the deed. The
lot owner and any purchaser shall do all things necessary to inform and provide
evidence to the Road Maintenance Corporation immediately of the change of
ownership with the name and address of the new owner. 2.3
Proof
of Status.
Upon challenge by the Corporation, no person shall exercise the rights of
membership in the Corporation until satisfactory proof has been furnished to the
secretary of the Corporation that he is an owner of a lot. Such proof may
consist of a copy of a duly executed, acknowledged and recorded deed, an
agreement of sale, or a lease for an original term of not less than thirty (30)
years, or a title insurance policy, or certificate of title from a licensed
abstractor, or as shown by county records, showing the person to be the owner of
a lot. Any such deed, agreement, lease, policy, or certificate shall be deemed
conclusive in the absence of a conflicting claim based upon a later deed,
agreement of sale, lease, policy, or certificate. In the event of a dispute as
to ownership, the Corporation shall treat the previously recognized owner as the
owner entitled to exercise the rights of membership in the Corporation and all
owners shall indemnify and hold the Corporation harmless from any such dispute. 2.4
Record
Date. The
Board of Directors may fix a time as a record date for the determination of
members entitled to notice of any meeting of the members. The record date so
fixed shall not be more than sixty (60) days prior to the date of the meeting.
When a record date is so fixed, only members of record on that date shall be
entitled to notice of the meeting. Proof of ownership of a lot for voting
purposes may be made at any time up to and including the time of any vote of the
members and proof of ownership as set forth in these Bylaws may be attached to
any ballot or proxy assigned for the purposes of a vote. 2.5
Membership
Records.
The Board of Directors shall do all things necessary to maintain a reasonably
up-to-date membership list. Such membership list should accurately reflect
changes of ownership within ninety (90) days of any actual change of ownership.
Ail ballots, notices of meetings and assessment notices shall contain a change
of ownership form and language notifying the recipient that if the recipient is
no longer the owner of a H.O.V.E. lot, he should so notify the Corporation Board
and such recipient should forward the notice and agenda to the new owner if
known. The Board may adopt such other procedures in its discretion necessary to
maintain this updated membership list. 2.6
Voting
Rights; Ballots; Proxies.
At annual or special meetings of the members of the Corporation, each member
shall be entitled to one vote for each lot owned. Votes may be cast in person,
by ballot or by proxy. If more than one person holds ownership interest in any
lot, the vote for such lot may be exercised by any one of them present at any
meeting in the absence of protest by the other co-owner or co-owners, and in
case of protest, each co-owner shall be entitled to only a share of such vote in
proporation to its share of ownership in such lot. Cumulative voting is
permitted as provided in Section 416-74 Hawaii Revised Statutes, as the same now
exist or is hereafter amended. A majority of the votes cast at any meeting in
person, by ballot, or by proxy shall determine all issues to be voted on by the
membership; except as specified in section 4.1. 2.7
Ballots.
Each member entitled to vote in accordance with the terms and provisions of
these Bylaws may vote by written ballots. Votes shall be placed in an envelope
plainly marked "ballot" and returned to the Corporation office on or
before the meeting date. Ballots received after the meeting will not be counted.
The Board shall enclose with the notice of the annual meeting or any special
meeting a ballot to be used for voting on all of the issues on the agenda for
such annual meeting or special meeting. Such issues shall include, without
limitation, the paving plan, budget, election of directors and officers, and
other matters to be voted on by the membership. In addition, the Board will
cause to be sent to any owner a ballot upon request by that owner. All ballots,
proxies, etc. will be sent to, and counted by, the League of Women Voters or
other independent, impartial organization. 2.8
Proxies.
Any member may attend and vote at meetings in person, or by a proxy holder duly
appointed by a written proxy signed by the member and' filed with the secretary
of the Corporation, on or before the date of the meeting. No proxy shall be
valid after eleven (11) months from the date of its execution. A proxy shall be
deemed revoked when the secretary shall receive actual notice of cancellation of
the proxy from the member or upon the death or judicially declared incompetence
of the member, or upon termination of the member's status as an owner, or upon
the appearance at the meeting of the member giving the proxy. 2.9
Annual
Meeting.
There shall be an annual meeting of the members held on the second Saturday in
October of each year. This date is subject to change by the Board in the event
of a natural disaster. 2.10 Special Meetings. Special meetings of the members of the Corporation may
be held at such time and at such place as may be designated by the Board of
Directors and for such purposes as shall be specified in a call for any such
meeting made by resolution of the Board of Directors or by a request for a
special meeting filed in writing with the secretary, signed by the president, or
by a majority of the directors, or by petition by 100 members. 2.11
Notice
of Meetings.
Except as otherwise required by law, notice of each meeting of the members of
the Corporation, specifying the day, time and place of meeting and the purposes
for which the meeting is called, and specifying whether it is an annual or
special meeting, shall be given by or under the direction of the secretary to
each member of the Corporation by newsletter at least thirty (30) days before
the date fixed for such meeting. Such notice shall be in writing and shall be
sent to the owner at his residence address or his usual place of business, as it
appears on the books of the Corporation, by mail, first class, postage prepaid,
addressed to him at such address. If notice is given pursuant to the provisions
of these Bylaws, non-receipt of the actual notice of any meeting by any member
of the Corporation shall in no way invalidate the meeting or any proceedings
taken or any business done at the meeting. Any legal requirement of a quorum
shall be deemed to have been met if notice is given pursuant to the provisions
of these Bylaws to at least two thirds (2/3) of the membership. Any member of
the Corporation may waive notice of any meeting either prior to or after the
meeting, with the same effect as though notice of the meeting had been given
him. The presence of any member of the Corporation at a meeting shall be the
equivalent of a waiver by him of notice of the meeting. Along with the notice of
the meeting the Board shall cause to be sent to each Owner an agenda of the
issues to be decided at such meeting and a ballot providing a space for the
owner to vote on all such issues as are set forth in the agenda. No issues or
votes which are not described in the agenda may be voted on at any membership
meeting. In addition to the right of the Board to set the agenda or place items
on the ballot, issues shall be added to the agenda or ballot in the following
manner: a signed petition of at least 100 lot owners delivered to the
Corporation office or any Director at least twenty five (25) days prior to the
notice of any annual or special meeting called pursuant to paragraph 2.10 for
that purpose shall cause that issue to be added to the agenda or ballot. 2.12
Annual
Report.
An annual report shall be sent to the members thirty (30) days prior to the
annual meeting. This annual report shall include statements of the income and
expenses of the budget for the previous year, the current year covering the
period January I to June 30, and next year's proposed budget. ARTICLE III. BOARD OF DIRECTORS 3.1
Number
of Directors.
There shall be a Board of Directors of the Corporation of not less than three
(3) nor more than eleven (11) members. Subject to the foregoing limitations, the
number of directors shall be not less than the number of members of the
Corporation willing to so serve. One third (1/3) of the directors shall be
elected each year by the members of the Corporation at their annual meeting to
hold office until their successors shall have been elected, provided that the
number of directors may be decreased or increased subject to the foregoing
limitations, and if increased, the additional directors may be elected by the
members at any special meeting called for such purpose to hold office until
their successors have been elected. All members of the Board of Directors must
be members of the Corporation in good standing and current with their dues and
assessments. 3.2
Nomination
of Directors.
Any group of members representing ownership of ten (10) lots may nominate
another member to be on the Board of Directors. Such nomination shall be
accomplished by the lot owner submitting the nomination in writing, signed by
the nominating members, to the Board of Directors at least thirty (30) days
prior to the date for notice of the annual meeting. Any such person so nominated
shall be placed on the ballot for election of directors, to be mailed with the
notice of meeting to all members. 3.3
Election
and Tenure.
Directors shall be elected to serve a term of three (3) years beginning when
installed at the annual meeting in October. Each director shall continue to
exercise the powers and duties of the office until his successor shall have been
installed by the Corporation. Any director elected before the adoption of these
Bylaws shall continue to serve until his term expires. 3.4
Removal
of Directors.
The entire Board of Directors or any individual director may be removed from
office without cause by vote of a majority of members voting by proxy, ballot or
in person at any annual or special membership meeting. Any director may be
subject to removal if a petition signed by 100 or more lot owners is delivered
to the Corporation or any Director at least twenty five (25) days prior to the
notice of annual or any special meeting called pursuant to paragraph 2.10 for
that purpose. 3.5
Vacancies.
Vacancies on the Board of Directors may be filled by the vote of a majority of
the remaining directors though less than a quorum, or by the sole remaining
director, and each director so elected shall hold office for the unexpired term
of the Director he replaces subject to the ratification by the members at the
next annual meeting. 3.6
Compensation.
No director shall receive compensation for the services he may render to the
Corporation, either during his tenure, or for one year following the termination
of his term. However, any director may be reimbursed for his actual expenses
incurred in the performance of his duties. 3.7
Meetings,
Notice, Quorum.
An open annual meeting of the Board of Directors shall be held each year
immediately after the adjournment of the annual meeting of the members of the
Corporation and at the place of such annual meeting, without call or formal
notice for the purpose of electing officers of the Corporation for the following
year. Newly elected board members shall be able to run and vote for officers of
the Corporation. Special meetings may be called by the president of the
Corporation or by any two (2) members of the Board of Directors, and any such
meeting shall be held on such day, at such time and such place in the community
as shall be specified by the person or persons calling the meeting. The Board
shall meet regularly once a month on a regular schedule as determined by the
Corporation Board. Interim Board meetings may be by telephone, however, such
telephonic Board meetings shall comply with the requirements for a quorum
present at one time. Board business shall not be conducted by telephonic means
unless a quorum of the directors are present on the telephone at the same time.
Interim Board of Directors meetings may be called at any time by the President
or Vice President to deal with financial matters requiring immediate attention
(matters that must be acted upon in a time that does not permit notice of a
regular board meeting), so long as the action does not alter the Corporation's
approved budget or paving plan, without fulfilling the notice requirements set
forth in paragraph 3.8 below. 3.8
Notices.
Notice of each regular meeting of the Corporation Board specifying the day, time
and place of the meeting and the proposed agenda shall be given at least seven
(7) days prior to the meeting or under the direction of the secretary, or by a
person calling the meeting, to each member of the Board of Directors, by
advising him in writing of the meeting, or by leaving written notice of the
meeting at his residence or usual place of business as shown on the
Corporation's books, or by mailing written notice of the meeting, postage
prepaid, addressed to him at such residence or usual place of business or by
telephone communication. Non-receipt of written notice actually mailed of any
meeting by any member of the Board of Directors shall not invalidate the meeting
or any proceedings taken or any business done at the meeting. Any member of the
Board of Directors may waive notice of any meeting either prior to or after the
meeting, with the same effect as though notice of the meeting had been given
him. The presence of any member of the Board of Directors at a meeting shall be
the equivalent of a waiver by him of notice of the meeting. 3.9
Agenda
for Regular Board Meetings.
The notice required for the regular meetings of the Board of Directors shall
include an agenda of the matters to be decided upon at such meeting. No matter
not on the agenda shall be decided at that meeting except as to financial
matters requiring immediate attention (matters that must be acted upon in a time
that does not permit notice or agenda to be published), so long as the action
does not alter the Corporation's approved budget or paving plan. 3.10
Quorum.
A majority of the members of the Corporation Board shall constitute a quorum for
the conduct of business and any decision of a majority if such quorum within the
scope of the authority of the Corporation Board shall be valid and binding on
the Corporation unless a greater number is required by law. 3.11
Notice
of Board of Directors' Meetings to Membership. In addition to the notice required above, at least seven
(7) days before any regular Corporation Board meeting, the notice of such
meeting and the agenda shall be posted at the H.O.V.E. Community Center, the
Corporation offices, on bulletin boards that are conspicuous in the H.O.V.E.
community and as determined by the Board and the Board shall cause the notice
and agenda to be published in at least two (2) newspapers or aired on any radio
station, that do not charge for such publication or airing. 3.12
Attendance
by Members.
Any member may attend any meeting of the Corporation Board, save that the Board,
in its discretion, may declare an executive session to discuss and make
decisions concerning the following issues provided that such resolved decisions
are announced to the next membership meeting: (a)
labor contracts; (b)
litigation involving the Corporation (c)
the hiring, firing and disciplinary action concerning employees. 3.13
Officers
and agents; Designation of Duties.
The officers of the Corporation shall be a president, one or more
vice-presidents, a secretary and a treasurer, who shall be appointed by the
Board of Directors and who shall hold office until their successors are
installed and qualified. The Corporation may have such other officers, agents,
and factors as may be deemed necessary, who shall be appointed in such a manner
and hold their offices for such terms and have such authority and duties as may
be determined by the Board of Directors. As far as is permitted by law,
directors may be appointed officers. In addition to the duties and powers set
forth herein, each officer shall have such duties and powers as are commonly
instant to his office and such duties and powers as the Board of Directors shall
from time to time designate. In all cases where the duties of any officer, agent
or employee are not specifically prescribed by these Bylaws, or by the Board of
Directors, such officer, agent or employee shall obey the orders and instruction
of the president. 3.14
President.
Subject to the control of the Board of Directors, the president shall be the
chief executive office of the Corporation and shall exercise general supervision
and direction over the management and conduct of affairs and business of the
Corporation. Unless the Board of Directors otherwise directs, he shall preside
at all meetings of the members and of the Board of Directors at which he is
present. 3.15
Vice-President.
The vice-president, or if more than one shall have been appointed the
vice-president in order of priority of appointment, shall assume and perform the
duties of the president in the absence or disability of the president or
whenever the office of president is vacated. Each vice-president shall have such
other powers and duties as may be given to him by law or in these Bylaws or as
may be assigned to him from time to time by the Board of Directors or by the
president. 3.16
Secretary.
The secretary shall be responsible for the membership records, all documents
pertaining to the title of all real property owned or held by the Corporation,
and all rules, regulations, and other documents required to be filed with the
Corporation or in the office of the Corporation by these Bylaws. The secretary
shall cause to be recorded all proceedings of the meetings of the members and
directors in a book which shall be the property of the Corporation, with the
original or duplicate copy to be kept for that purpose at the office of the
Corporation in Hawaii and perform such other duties as shall be assigned to him. 3.17
Treasurer.
Subject to the direction and under the supervision of the Board of Directors and
the provision of these Bylaws, the treasurer shall oversee the care and custody
of the funds and valuable papers of the Corporation, shall have power to endorse
for deposit or collection all notes, checks, drafts, and other obligations for
the payment of money to the Corporation or its order, and shall keep or cause to
be kept accurate financial books and accounts of the Corporation and to render
reports of the same on a cash basis as often as required by the Board of
Directors. 3.18
Removals,
Resignations, Vacancies.
The Board of Directors may, at any meeting called for the purpose by a vote of
the majority of their entire number, remove from office any officer of the
Corporation for or without cause. The Board of Directors, at any meeting by vote
of a majority of the directors present at such meeting, may accept the
resignation of any officer or director of the Corporation, or remove or accept
the resignation of any agent or any member of any committee appointed by the
Board of Directors, or by any committee appointed by the Board of Directors or
by any officer or agent of the Corporation. Any vacancy occurring in the office
of president, vice-president, secretary or treasurer, or any other office, shall
be filled by the Board of Directors and the officers so chosen shall hold office
for the unexpired term in respect of which the vacancy occurred and until their
successors shall be duly elected and qualified. A Director shall be removed for
absence of more than three (3) consecutive regular Board meetings unless the
absence is waived by the Board 3.19
Bonding.
All officers and directors with the authority to handle funds of the Corporation
shall be adequately bonded by standard fidelity bonds, provided, however, that
in all cases the president, treasurer, and office manager shall be bonded.
Adequate bonding as required hereunder shall mean a bond of sufficient size to
adequately protect the Corporation from any acts of malfeasance or misfeasance
of corporate personnel commensurate with the amount of money being handled by
such person or persons. ARTICLE IV. AMENDMENTS 4.1
These Bylaws may be altered, amended, added to or repealed by an affirmative
vote of two thirds (2/3) of the members voting by ballot, proxy or in person at
any annual or special meeting called for that purpose. Notice of the proposed
amendments shall have been given in the notice of annual or special meeting and
such proposes amendments included on the ballot sent with the notice to the
members. However, such amendments shall not change or alter the powers and
purposes as set forth in the Articles of Incorporation and these Bylaws.
Sections >.8, 5.9, 5.10, 6.1, 6.2, 6.3 and 6.4 can only be changed be a vote
of two thirds (2/3) of all members of the Corporation ARTICLE V. ASSESSMENTS 5.1 Definition of Road Maintenance Expenses.
Road maintenance expenses means all costs and expenses of operating and
administering the Corporation during a fiscal year. Road maintenance expenses
shall include, without limiting the generality of the foregoing, all costs and
expenses of repairing, maintaining and improving the H.O.V.E. road system, all
expenses for salaries, taxes, assessments, utilities, equipment purchases,
operating expenses, insurance and bond premiums, accounting and legal fees,
management fees, deficits and income from prior years, the establishment of
operating and other reserves, and all other charges and outgoings of every
description to which the Corporation or its property may be assessed or become
liable. 5.2 Purpose.
It is the intent of these Bylaws that each owner of a RO.V.E. lot will be
responsible for and pay a proportionate share of the road maintenance expenses.
Each lot owner's share of such road maintenance expenses shall be due and
payable in annual, semi-annual, quarterly or monthly installments, as determined
by the Board and shall be due within sixty (60) days after mailing notice of
assessment by the Corporation. The Board may determine that semi-annual,
quarterly or monthly installments may be assessed interest as set forth in
Paragraph 5.9. 5.3
Assessment for Road Maintenance Expenses. Each owner of a H.O. V.E. lot, or in the event of
multiple owners, such multiple owners jointly and severally, shall be
responsible for and shall pay to the Corporation a proportionate share of the
annual road maintenance expenses by way of assessment as set out in these
Bylaws. 5.4
Apportionment of Road Maintenance Assessments and Supplemental Assessments.
The assessment payable by each H.O.V.E. lot owner shall be equal to a fraction
of such total expenses, the numerator of which fraction shall be the total
number of H.O. V.E. lots owned by such owner; and the denominator of which shall
be the total number of all the H.O. V.E. lots. 5.5
Determination of Assessment. Subject to the provisions of these Bylaws and
the Articles of Incorporation, the Corporation Board shall have the power and
authority to determine all matters in connection with the respective assessments
payable to it, including, without limitation, power and authority to determine
where, when, and how such assessments shall be paid and, and each owner shall
comply with all such determinations. 5.6
Supplemental Assessments.
Subject to the provisions of these Bylaws and the Articles of Incorporation, in
addition to the road maintenance assessments, the Corporation Board may levy
supplemental assessments as a result of natural disasters, payable over such
period as the Corporation may determine for the purpose of defraying any expense
incurred as a direct result of actual material or labor cost increases from
those set forth in the approved budget. Such increase must be approved by a
majority of those members voting by ballot, proxy or in person at an annual or
special membership meeting. 5.7
Special Assessments.
In addition to road maintenance assessments and supplemental assessments, the
Corporation may levy special assessments against individual lot owners for
expenses which are incurred or to be incurred by the Corporation as provided in
these Bylaws, as a result of any owner's act or failure or refusal to act or
otherwise comply with the provisions of these Bylaws or regulations adopted
thereto. Specific actions which may call for a special assessment are: 1) Damage
by construction equipment, 2) Damage by delivery vehicles, 3) Misuse of vehicles
entering or leaving a driveway, 4) Any misuse of roads which causes damage to
them resulting in expenses to the Corporation, 5) Driveways built in such a way
that they cause rocks to enter the right of way. 5.8
Lien for Assessments and Other Amounts. All road maintenance assessments, supplemental
assessments, and special assessments, together with late charges, interest, cost
and reasonable attorneys' fees, shall be a charge on the land and the
Corporation shall have a continuing lien against the owner's interest in such
lot to secure payment of any assessments, charges or other amount due and owing
to the Corporation, plus late charges and interest as provided in paragraph 5.9,
from the date due and payable until paid, plus all cost and expenses of
collecting the unpaid amount, including attorneys fees. 5.9 Effect of Nonpayment of Assessment; Remedies of Corporation. Any assessment which is not paid within sixty (60) days of its due date shall be delinquent. In the event that an assessment becomes delinquent, the Corporation, in its sole discretion, may take any or all of the following actions:
5.10
Foreclosure of Lien.
In the event that any assessment is delinquent, the Corporation may file a
Notice of Delinquency and Statement of Lien by recording in the Bureau of
Conveyances of the State of Hawaii a written statement with respect to the lot,
setting forth the name of the lot owner, the legal description of the lot, the
name of the Corporation and the amount of delinquent assessment then owing,
which statement shall be duly signed and acknowledged by and officer, director
or legal agent of the Corporation. A copy of such statement shall be mailed by
certified mail, return receipt requested, to the owner at the address of the lot
or at such other address as the Corporation may have in its records for such
owner. If no return receipt or other proof of acceptance results from such
mailing, then the notice of default shall be posted on the property and
published in the West Hawaii Today and the Hilo Tribune newspapers. At any time
after one year after the mailing of such notice, or publication and posting, the
Corporation may proceed to foreclose the lien in the manner for foreclosure of
mortgages in the State of Hawaii. The foregoing remedies shall be in addition to
any other remedies provided by law for the enforcement of such obligations. 5.11
Foreclosure Restrictions.
The Corporation or board members may not purchase any property foreclosed by the
Corporation. Former board members may not purchase said properties for a period
of three years after leaving the board ARTICLE VI. BUDGET AND ROAD MAINTENANCE PLAN 6.1
Determination of Budget for Road Maintenance Assessments.
The fiscal year of the Corporation shall be the calendar year. Prior to sending
the notice of the annual membership meeting, as set forth on Paragraph 2.11, the
Corporation Board shall determine the total amount to be raised by road
maintenance assessments during that fiscal year and prepare a proposed budget as
set forth below. The amount to be raised by the assessments for any fiscal year
shall be determined in the following manner. The Corporation shall prepare, or
cause to be prepared, and approve a budget for the fiscal year showing, in
reasonable detail, the estimated road maintenance expenses which will be payable
in that fiscal year to fulfill the regular operating functions and obligations
of the Corporation in that fiscal year, including amounts necessary to cover
obligations made in connection with, or contemplated under, any previously
approved budgets, plus an amount sufficient to provide a reasonable carry over
reserve for the next fiscal year (the "operating budget") including
any amounts necessary to pay for improvements of the H.O.V.E. road system. The
Corporation Board shall subtract from the operating budget the amount equal to
the anticipated surplus attributed to Corporate income received and assessments
collected but not disbursed in the fiscal year immediately preceding the fiscal
year for which the operating budget has been prepared. If the Corporation Board
fails to determine or cause to be determined the total amount to be raised by
its assessments in any fiscal year, and/or fails to notify the, owners of the
amount of such assessments for any fiscal year, then the amounts of assessments
shall be deemed to be either the amount assessed in the previous fiscal year or
a maximum of $60.00 per lot, whichever is lower. 6.2
Determination for Road Maintenance Plan. Prior to giving notice of the annual meeting, as set
forth in Paragraph 2.11, the Corporation Board shall determine a plan for
maintenance, repair, and improvement to the H.O.V.E. road system to be completed
for that fiscal year. The road maintenance plan will specifically identify an
estimated schedule for completion, and the nature of the maintenance repair,
and/or improvement of the various roads and their costs. In developing the road
maintenance plan, the Corporation Board shall endeavor to utilize equitable
principles in allocating the resources fairly among lot owners, with priority
given to the primary road system. 6.3
Approval of Budget and Road Maintenance Plan at Annual Meeting.
At each annual meeting of the members, the proposed budget and road maintenance
plan will be submitted to the membership for voting. The proposed budget and
paving plan and ballot for approval or disapproval shall be submitted to the
membership with the notice of annual meeting and agenda to least thirty (30)
days prior to the annual meeting. The budget and road maintenance plan must be
approved by a majority of the lot owners voting in person, by ballot, or by
proxy at the annual membership meeting. In the event that a majority of the
voting members do not approve either the budget or the road maintenance plan, a
budget and/or road maintenance plan, proposed by the Corporation Board shall be
submitted to the Circuit Court for the Third Circuit, Island of Hawaii, for
approval. Any such proposed budget and paving plan submitted to the Circuit
Court for approval hereunder, may not exceed the previous year's budget or
paving plan by ten percent (10%). The Circuit Court and/or a master appointed by
the Circuit Court, which master may be a mediation service, will review the
proposed budget and/or proposed road maintenance plan, provide an opportunity
for comment and input on such plan by the membership, and then, prior to the
beginning of the next fiscal year, adopt a budget and/or road maintenance plan
for that fiscal year as such Court and/or master deems equitable. All costs of
such procedure shall be paid by the Corporation. 6.4
Designation of Road Building and Survey Officer.
On a yearly basis for a period of no more than seven years, or until the master
road program is finished, whichever is the lesser, there shall be appointed a
Committee of Three, one member by the Board of Directors, one member by HOVECA
Board of Directors and one member by the League of Women Voters, if available
(or, if not, then by a willing similar community-minded, non-profit
organization). Said Committee of Three will annually select an independent road
engineer or specialist who will have, and apply, in addition to other types of
road construction, knowledge of the specific terrain conditions of H.O.V.E. and,
for the immediate past year, make a survey of the H.O.V.E. roads which will
reveal the substance and quality of road construction by the Road Maintenance
Corporation over the previous year and who will give opinions and
recommendations regarding the subsequent year. Such survey or essence thereof,
shall be reported to the Board of Directors, published and delivered to all
property owners in the next occurring newsletter. The expense of said survey
will be borne by the Road Maintenance Corporation. In making its selection of an
independent road engineer or specialist, the Committee of Three will keep in
mind the wider availability and technical knowledge of a prospective appointee
from the mainland United States. ARTICLE VII. USE OF H.O.V.E. ROAD SYSTEM 7.1
Use by Owners.
All owners of H.O.V.E. lots shall utilize the H.O.V.E. road system in a
reasonable manner. 7.2
Road Use Regulations.
The Corporation Board may adopt reasonable regulations controlling the use of
the H.O.V.E. road system, including without limitation, speed limits, placement
of stop signs and other road signs, and use of and parking on road rights of
way. Such regulations may require permits for vehicles in excess of certain
weights or reasonable charges for special road usage as determined by the
Corporation Board. No track vehicles shall be allowed on the H.O.V.E. road
system. ARTICLE VIII. CONTRACTS, LOANS, CHECKS AND DEPOSITS 8.1
Contracts.
All notes, acceptances, conveyances, contracts, and other instruments shall be
signed by the president and vice-president or the president or vice-president
and the treasurer or secretary on behalf of the Corporation, only after
resolution by the Board of Directors. 8.2
Loans. No
loans shall be contracted on behalf of the Corporation and no evidences of
indebtedness shall be issued in its name unless specifically authorized by a
resolution of the Board of Directors. General authority will not be permitted.
Such loans shall be executed by the president and vice-president or the
president or vice-president and treasurer or secretary pursuant to such
resolution. 8.3
Checks, Drafts, Etc.
All checks, drafts, or other orders for the payment of money, notes or other
evidences of indebtedness issued in the name of the Corporation under the amount
of $1,000.00 shall be signed by such officer or officers, agent or agents, of
the Corporation and in such manner as shall from time to time be determined by
resolution of the Board of Directors. All checks, drafts, or other orders for
the payment of money, notes or other evidences of indebtedness in excess of
$1,000.00 shall only be executed upon specific resolution by the Board of
Directors and executed by the president and vice-president or the president or
vice-president and the secretary or treasurer. The
Board may authorize in advance, by resolution, the payment of certain items that
are over $1,000. These are: 1:
Purchase of oil or blue chip. 2: Two week salary checks. 3:
Payments of Social Security, SUTA, FUTA & FICA. 4:
Major equipment repair up to a limit of $3,000. 5:
Medical insurance payments. 6:
Regular insurance payments, (workers compensation, liability, equipment
insurance, etc.), provided that these payments are no more than 10% above the
previous year's payments. 7:
Postage and printing for one newsletter as called for in the Bylaws. Items 2
through 7 may be authorized in a general resolution of the Board at the
beginning of each fiscal year. Item 1 will be authorized when each contract or
purchase order for oil or chip is passed by the Board. 8.4
Deposits.
All funds of the Corporation, not otherwise employed, shall be deposited to the
credit of the Corporation in such banks, trust companies, or other depositories
in the State of Hawaii, the deposits of which are insured by an agency of the
United States government for the full amount of the balance of the account as
the Board of Directors may select. The Corporation Board in its discretion
subject to the advice and counsel of the Corporation accountant may deposit a
portion of corporate funds in non-insured investments and accounts for purposes
of obtaining higher interest on investments. However, such investments shall be
conservative and prudent ARTICLE IX. GENERAL PROVISIONS 9.1
Inspection of Records.
The membership register or duplicate membership register, the books of account,
and the original or duplicate minutes of proceedings of the members, the Board
of Directors, and the Executive Committee, if any, shall be open to inspection
at the Corporation office upon the written demand at any reasonable time. 9.2
Indemnification.
The corporation shall indemnify every director and officer and his personal
representative against all expenses actually and reasonably incurred by or
imposed on him in connection with any action, suit or proceeding to which he may
be made a party by reason of being or having been an agent of the Corporation if
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and with respect to any
criminal proceedings, had no reasonable cause to believe his action was
unlawful. No indemnification shall be made in relation to matters as to which a
party claiming indemnification shall be adjudged to be liable for negligence or
misconduct in the performance of his duties to the Corporation, unless a court
shall determine that despite the adjudication of liability but in view of the
circumstances, such person is entitled to indemnity for such expenses as the
court determines are proper. Any indemnification shall be made by the
Corporation in compliance with Section 416-35 Hawaii Revised Statutes (Supp.
1984). The foregoing right of indemnification shall not be exclusive of any
other rights to which such person maybe entitled. 9.3
Captions.
The captions herein are inserted only as a matter of convenience and for
reference, and in no way define, limit or describe the scope of these Bylaws, or
the intent of any provisions hereof 9.4
Annual Accounting.
An annual audit report and account, including statements of income and
disbursements on an accrual basis, shall be available for inspection by members
at the Corporation office not later than 220 days after the close of the
Corporation's fiscal year or sent to any member for a fee of four dollars
($4.00). 9.5
Inspection of Bylaws.
The Corporation shall keep in its principal office for the transaction of
business the original or a copy of these Bylaws as amended or otherwise altered
to date, certified by the Secretary, which shall be open to inspection by the
members at all reasonable times. 9.6
Gender.
The use of a pronoun of any gender in these Bylaws shall be deemed to include
the other gender and the use of the singular shall be deemed to include the
plural. 9.7
Waiver.
No restriction, condition, obligation, or provision contained in these Bylaws
shall be deemed to have been abrogated or waived by reason of any failure to
enforce the same, irrespective of the number of violations or breaches thereof
which may occur. 9.8
Severability.
The provisions of these Bylaws shall be deemed independent and severable, and
the invalidity or partial invalidity or enforceability of any one provision
shall not affect the validity or enforceability of any other provision. 9.9
Dedication.
In the event that the H.O. V.E. road system is dedicated to the County, or the
County accepts maintenance of such road system pursuant to any agreement or
otherwise, the Corporation shall dissolve and the assets of the Corporation will
be liquidated and distributed to the membership unless a majority of the members
vote otherwise. 9.10
Parliamentary Authority. The rules contained in the current edition of
Robert's Rules of Order Newly Revised shall govern officers and directors is all
cases to which they are not inconsistent with these Bylaws. ADOPTION
OF BYLAWS The
membership voted to approve the Amended and Restated Articles of Incorporation
and Bylaws of the H.O.V.E. Road Maintenance Corporation on the 7th day of March
1992.
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