The Commons at Windekind Association, LLC BY-LAWS
ARTICLE I - NAME
The name of the organization shall be The Commons at Windekind Association, LLC and shall be referred to in this document as the Commons. Capitalized terms used and not otherwise defined herein shall have the meaning set forth in the definitions below.
ARTICLE II- DEFINITIONS
For the purposes of this By-Laws:
- Annual Assessment - shall mean funds levied annually for the purposes of managing and maintaining the Commons and all relevant expenses thereto.
- Articles - shall mean the Articles of Organization filed with the Vermont Secretary of the Stat. on ______ __, 2015.
- By-Laws - shall mean the By-Laws of the Community, as amended from time to time.
- Commons Area - shall mean all real property and related improvements that are intended for the mutual benefit or use of all Members of the Commons and shall consist of all property that is not a part of one of the 9 House Lots. The Commons Area shall be inclusive of but not limited to such areas as the Shared System, Commons house, roads, ponds, garden, underground utilities, forest and agricultural lands, and any future improvements.
- Commons Expenses - shall mean expenses for the management, maintenance, repair, operation and enforcement of the Declaration of Covenants, Conditions and Restrictions and this By-Laws.
- Commons - shall mean the Commons at Windekind Association, LLC a Vermont, Corporation formed by its Members as the organization of homeowners at the farm.
- Commons Policies - shall mean policies that may be established from time to time by the Community, in accordance with Declaration of Covenants, Conditions and Restrictions.
- Covenants, Conditions and Restrictions (CC&R) or Declaration - shall mean the recorded land use restrictions, design controls, construction requirements and the like established by the Community.
- Decision of the Commons - shall mean consensus or vote of the Commons as provided herein.
- Design Review Committee - shall consist of three (3) Members selected by the Community, who shall develop rules and procedures to assist in the review of proposed House and Commons Area improvements, and shall administer the provisions of the Declaration of Covenants.
- Design Objectives - shall mean guidelines that may be established from time to time by the Commons and enforced by the Design Review Committee.
- House Parcel (s) - shall consist of the 9 separate House Parcels on the Property.
- Member(s) - shall mean any adult individual who owns a recorded interest in a House Lot.
- Member Household(s) - shall mean a Member or Members of a single household owning and/ or occupying a House Parcel who shall act as the governing board of the Community.
- Member’s Family – shall mean The spouse, parent, child or grandchild of the Member or such other family member as approved by the unanimous written consent of the Member Households.
- Property - shall mean all real property and improvements that are subject to the Declaration of Covenants, including all Commons Area and all House Parcels.
- Shared System – shall mean an on-site sewage disposal system and water supply system serving all of the House Parcels and Commons Areas of the Community.
- Special Assessments - shall mean funds levied from time to time for the purpose of paying non-recurring capital expenses.
ARTICLE IIl - PURPOSE, POWERS AND DUTIES
Purpose and Powers of the Community.
The Commons has been organized for the purposes and shall have the powers set forth in its Articles duly filed with Vermont Secretary of State. The By-Laws may be amended or restated by the Member Households, from time to time, as provided in the General Provisions.
The Community’s purpose is to function as a homeowner’s association for the development, management, maintenance and care of the Commons of 9 private households and shared Commons facilities and property owned by the Commons which, through the balance of individual autonomy and group opportunities, enhances the social and economic quality of life of the residents based upon the Guiding Principles set forth in Exhibit A.
The business and purposes of the Commons shall not be limited to its initial principal business activity and, unless the Commons otherwise determines, the Commons shall have authority to engage in any other lawful business, trade, purpose or activity permitted by the General Laws.
- to conduct its business and operations in any state, territory or possession of the United States or in any foreign country or jurisdiction.
- to purchase, receive, take, lease or otherwise acquire, own, hold, improve, maintain, use or otherwise deal in and with, sell, convey, lease, exchange, transfer or otherwise dispose of, mortgage, pledge, encumber or create a security interest in all or any of its real or personal property, or any interest therein, wherever situated;
- to borrow or lend money or obtain or extend credit and other financial accommodations, to invest and reinvest its funds in any type of security or obligation of or interest in any public, private or governmental entity, and to give and receive interests in real and personal property as security for the payment of funds so borrowed, loaned or invested;
- to make contracts, including contracts of insurance, incur liabilities and give guaranties.
- to employ employees, agents and other persons, to fix the compensation and define the duties and obligations of such personnel, to establish and carry out retirement, incentive and benefit plans for such personnel, and to indemnify such personnel to the extent permitted by these By-Laws.
- to make donations for the public welfare or for community, charitable, religious, educational, scientific, civic or similar purposes; and
- to institute, prosecute, and defend any legal action or arbitration proceeding involving the Community, and to pay, adjust, compromise, settle, or refer to arbitration any claim by or against the Commons or any of its assets.
- to collect assessments from Commons Board as necessary to defray the Community’s operating expenses, impose liens, foreclose on House Lots.
- to exercise any other rights or powers of a homeowner’s association under Vermont law.
ARTICLE lV - OFFICE
The principle office of the Commons shall be located in the Town of Huntington, Vermont at such location as the Commons Board may determine from time to time.
ARTICLE V. – MEMBERSHIP
A Member of the Commons is any adult individual who owns a recorded interest in a House Parcel, as well as their successors in interest. Membership shall be appurtenant to and may not be separated from ownership of a House Parcel. Members cannot act except in their capacity as members of a Member Household. A Member Household may have one or more Members.
- LIMATATION OF LIABILITY OF MEMBERS: No Member or officer of the Commons shall be obligated personally for any debt, obligation or liability of the Commons or of any other Member, whether arising in contract, tort or otherwise, solely by reason of being a Member or officer of the Community. No Member or officer shall have any fiduciary or other duty to another Member with respect to the business and affairs of the Community, and no Member shall be liable to the Commons or any other Member for acting in good faith reliance upon the provisions of these By-Laws. The failure of the Commons to observe any formalities or requirements relating to the exercise of its powers or the management of its business or affairs under these By-Laws shall not be grounds for making its Members responsible for the liabilities of the Community.
- Unless specifically authorized by the Community, no Member shall be an agent of the Commons or have any right, power or authority to act for or to bind the Commons or to undertake or assume any obligation or responsibility of the Commons or of any other Member.
- TRANSFER/ADMISSION OF NEW MEMBERS, Household Membership cannot be transferred other than in connection with the sale of a house in the Community. The members of the Commons shall be listed as the active members and this list shall be amended as needed to reflect the withdrawal or admission of members or the transfer of Members Households pursuant to these By-Laws. This list shall constitute the recorded list of membership for all purposes of these By-Laws.
- RIGHT TO WITHDRAW/TRANSFER- Subject to the terms and conditions hereof, a Member shall resign or withdraw from the Commons upon ceasing to be a resident of a Member Household upon written notice to the Community. Membership cannot be transferred other than in connection with the sale of a house. Any outstanding assessments due from any Member shall be paid according to the terms of the Declaration of Covenants, Conditions and Restrictions.
ARTICLE V- THE COMMONS BOARD
The Commons Board shall manage the business of the corporation. A Member Household is composed of a Member or Members of a single household owning and/or occupying a House Parcel. The Commons Board shall be represented and participate in the activities and the governance of the Commons as set forth herein. Each Member shall cause his or her Member Household to pay their assessments, attend meetings and participate on committees, and participate in Commons chores and projects.
ARTICLE VI-POWERS AND DUTIES OF THE COMMONS BOARD
The business and affairs of the Commons Board shall be managed under the direction of the Member Households, who shall have and may exercise on behalf of the Commons all of its rights, powers, duties and responsibilities under as provided by law, including without limitation the right and authority for:
- Operation, care, upkeep and maintenance of the Commons Area
- Appointment of committees to facilitate and manage the affairs of the Community.
- Election of Officers from the Member Households;
- Determination of the assessments required for the affairs of the Commons including, without limitation, the operation and maintenance of the Community;
- Employment and dismissal of the personnel necessary for the maintenance and
operation of the Commons Area;
- Adoption and amendments of the Declaration of Covenants, Conditions and
Restrictions and Commons Policies and Design Objectives covering the details of the operation and use of the Community;
- Opening of bank accounts on behalf of the Commons and designating the signatories required therefore;
- Leasing, managing and otherwise dealing with the Commons Area;
- Owning, conveying, encumbering, leasing and other wise dealing with House Lots conveyed to it or purchased by it as the result of enforcement of the lien for
Assessments, or otherwise;
- Obtaining of insurance for the Community, including the House Parcels, pursuant to the provisions hereof;
- Making of repairs, additions and improvements, or alternations of the Commons;
- Enforcement of obligations of Member Households; enforcement of the Declaration of Covenants, Conditions and Restrictions and Commons Policies and Design Objectives of the Commons; allocation of income and expenses; anything and everything else necessary and proper for the sound management of the Community. In the case of persistent violation of the Declaration of Covenants, Conditions and Restrictions and Commons Policies and Design Objectives by a Member Household, the Commons shall have the power to require such Member Household to post a bond to secure adherence to the covenants or policies;
- Granting or relocating easements;
- Connecting House Lots and Commons Areas in the Commons to the Shared System or connecting such facilities to a public sewer line when and if said line is in place and connection is authorized;
- Managing, operating, inspecting, maintaining and repairing the Shared System, preventing the discharge of any wastewater to the Shared System and restoring the surfaces of roads, ways and the surface of the Property which may be disturbed in connection with the maintenance, repair and replacement of the Shared System;
- Upgrading, expanding or replacing the Shared System to the extent required to comply with State and Local permit requirements. Collecting and reporting monitoring and other data in accordance with, and otherwise insuring compliance with, local and state approvals for the Shared System;
- Preparing from time to time, at least annually, an operating and capital expense
budget in order to determine the amount of Commons Expenses payable by Member Households to meet the expenses of the Shared System;
- Assessing each Member Household from time to time as Commons Expenses, such Member Household’s proportionate share of the total expenses incurred by the Commons for the management, operation, inspection, maintenance, upgrade, expansion and repair of the Shared System and a reserve for the replacement of said Shared System in accordance with a maintenance and replacement plan and budget. The initial Operating Costs and Replacement Plan for the Shared System is attached as Exhibit C;
- Assessing each Member Household, from time to time, such Special Assessments as the Commons shall in its discretion determine are necessary to pay extraordinary expenses related to the Shared System;
- Adopting reasonable rules and regulations governing the use by Commons Board of the Shared System;
- Making contracts and other agreements and opening bank accounts and escrow accounts in the name of the Commons which the Commons deems convenient to the performance of its duties hereunder;
- Enforcing compliance with, and administering the provisions of the Declaration regarding the Shared System;
ARTICLE VII- THE CONSENSUS POLICY
If a consensus (unanimity or non-objection of the attending Commons Board providing there is a quorum as set forth of the Commons cannot be achieved during two consecutive facilitated meetings of the Commons Board separated by a minimum of 24 hours and if requested by any member participant of the meeting, all actions, approvals or consents to be taken or given by the Commons Board shall require the affirmative vote of 75% of the Commons Board in attendance at a meeting at which a quorum is present or the written consent of 75% of the Member Households.
Proxies shall be allowed, but cannot block consensus or fill a quorum. The Commons as Commons Board of unsold units cannot constitute the 75% vote required. Each Member Household shall be afforded one vote on all matters to be decided by vote of the Member Households, regardless of the number of Members in such Member Household.
Members within a Member Household shall jointly decide how to exercise their vote. If the Members within a Member Household cannot decide how the Member Household's vote is to be cast at the time a vote is to be taken, the Member Household shall abstain from such vote. Any purported vote of a Member Household that is contested by any Member of a Member Household shall be of no force or effect.
ARTICLE VIII- MEETINGS OF THE COMMONS BOARD
- Regular Meetings. Regular meetings of the Commons Board shall be held on the first Sunday and of each month or on such other days as may be determined by decision of the Commons Board at any regular or special meeting. No notice of regular meetings will be delivered to Member Households.
- Special Meetings. Special Meetings of Commons Board may be called for any proper purpose at any time by a majority of the Member Households. The Member House holds calling the Special Meeting shall determine the date, time and place of each meeting of Member Households, and written notice thereof shall be given to each Member Household not less than three days or more than 60 days prior to the date of the Special Meeting. The business of each meeting of Commons Board shall be limited to the purposes described in the notice.
- Quorum. Sixty percent (60%) of the Commons Board shall constitute a quorum for the transaction of any business at a meeting of Member Households. Proxies are allowed, but cannot block consensus or fill quorum. Members may attend a Special Meeting by proxy for purposes of a 75% override vote. Members may also participate in a Special Meeting by means of conference telephone or similar communications equipment that permits all Members present to hear each other.
- Facilitator. The Presiding Officer, or a person that he or she appoints, shall preside at all meetings of the Community. The Presiding Officer shall recommend the order of business and the procedures to be followed at each meeting of the Community.
- Recorder. The Recording Officer appointed by the Commons Board shall take minutes at all meetings of the Community. The Recording Officer shall distribute and keep organized minutes and agendas for each meeting of the Community.
ARTICLE IX –OFFICERS
- The officers of the Commons shall be the Presiding Officer, the Financial Officer and the Recording Officer. The Commons Board may select additional officers as they deem appropriate. The Presiding Officer, Financial Officer and Recording Officer shall be Members, as shall other officers of the Commons as may be designated.
- Selection and Removal of Officers. The officers shall be chosen annually at a Regular Meeting of the Commons Board and shall hold office at the discretion thereof or until their successors are chosen. Any officer may be removed, either with or without cause, at a Regular or Special Meeting of the Commons Board called for that purpose, and at which 75% of the Commons Board are present and his or her replacement chosen as herein provided.
- Presiding Officer. The Presiding Officer shall be the chief executive officer of the Community. He or she, or his or her designee, shall preside at all meetings of the Commons Board of the Community. Subject to the direction and authorization of the Member Households, he or she shall have all of the general powers and duties that are incidental to the office of president of a non-profit corporation under the laws of the State of Vermont
- Financial Officer. The Financial Officer shall have the responsibility for Community's funds and securities, and such other funds and securities as are entrusted to the Community, and shall be responsible for keeping full and accurate financial records and books of account showing all receipts and disbursements and for the preparation of required financial data. He or she shall be responsible for the deposit of all monies and other valuable effects in the name of the Commons in such depositories as may from time to time may be designated by the Board, no payment voucher shall be paid unless and until approved by the Financial officer, or in his or her absence, by the Assistant Financial officer, if any, or the Presiding Officer.
- Recording Officer. The Recording Officer shall keep the minutes of all meetings of the Member Households; shall have charge of such books and papers as the Commons Board may direct; and shall perform all the duties incidental to the office of the Clerk of a corporation under the laws of Vermont and as described elsewhere in the By-Laws of the Community.
- Execution of Documents. All agreements, contracts, deeds, leases, checks and other instruments of the Commons shall be executed by such officer or officers of the Commons or by such other person(s) as may be authorized by the Member Households, and in the absence of designation, by the Presiding Officer and/or Financial Officer.
- Compensation of Officers. No Officer, with the possible exception of the Financial Officer, shall receive any compensation from the Commons for acting as such, except for reimbursement of necessary and duly incurred expenses.
In the case of the Financial Officer the work demands may be at a level to warrant compensation or the hiring of a professional bookkeeper/account.
- Resignation. Any officer may resign at any time by giving written notice to the
Member Households, the Presiding officer or the Recording Officer. Any such resignation shall take effect on the date of the receipt of such notice or any later time specified therein.
- No Personal Liability. The Presiding Officer, Financial Officer or Recording Officer shall not under any circumstance be held liable or accountable out of his or her personal assets or be deprived of compensation, if any, by reason of any action taken, suffered or omitted in good faith, in the reasonable belief that his or her action was in the best interests of the Community. Or to be liable, accountable or deprived of compensation by reason of honest errors of judgment or mistakes of fact or law or by reason of anything except his or her own personal and willful malfeasance and defaults.
- Officers May Deal with the Community. No officer shall be disqualified by his or her office, or status, from contracting or dealing, directly or indirectly, with the Commons as vendor, purchaser or otherwise because of his or her, interest in any corporation, firm, trust, partnership or other organization connected with such contracting or dealing, providing that the Officer shall act in good faith and shall disclose the nature of his or her interest before the dealing, contract or arrangement is entered into.
- The Commons shall, to the extent legally permissible, indemnify
each officer and Member against all liabilities and expenses, including amounts paid in satisfaction of judgments, in compromise or as fines and penalties, and counsel fees, reasonably incurred by him or her in connection with the defense or disposition of any action, suit or other proceeding, whether civil or criminal, in which he or she may be involved or with which he or she may be threatened, while in office. The Commons shall have the power to obtain and maintain policies of casualty and physical damage insurance for the benefit and protection of the Community's Commons Area.
ARTICLE X- COMMITTEES:
The Commons Board may appoint Members to committees, each having not fewer than two (2) Members. Each committee shall appoint a chairperson from amongst its members who will facilitate the affairs of the committee. Members of all such committees shall serve during the pleasure of the Community. In the event that any member of a committee shall cease to be a Member of the Commons for any reason, such Member shall forthwith cease to a member of such committee. Any committee shall possess and may exercise any powers expressly delegated to such committee by the Community, other than those powers the delegation of which is expressly forbidden by law. All action taken by a committee shall be subject to revision or alteration by the Members.
Each committee shall fix its own rules of procedure, shall meet as provided by such rules or by resolution of the Community, and shall keep records of its actions and proceedings, which records shall be made available for examination by the Members. The greater of two (2) members or a majority of the members of a committee shall constitute a quorum and in every case where a quorum is present, the consensus of the members of such committee present at any meeting shall be necessary for the adoption of any resolution by such committee.
- DESIGN REVIEW COMMITTEE: The Commons hereby establishes a Design Review Committee as a permanent committee of the Community, which shall administer and perform the architectural and landscape review and control functions of the Commons set forth in the Design Standards to all construction and improvements made by the Commons or Member Households. The Design Review Committee will consist of no less than three (3) and no more than five (5) members and shall be appointed from the Community.
ARTICLE XI - ASSESSMENTS
Assessments: Member Household’s shall be assessed proportionally for Commons Expenses based on the size of their house (number of bedrooms, as defined by zoning).
- "Annual Assessments" will be levied annually for the purpose of managing and maintaining the Commons and all relevant expenses thereto.
- The Commons Board shall determine the Annual Assessment needed to enable the Commons to conduct its operations and achieve its goals, and the amount shall be announced to the Commons Board by notice mailed to each Member Household. Annual Assessments shall be established as of July 1st of each calendar year for the ensuing twelve months, which assessments shall be levied against each Member Household for the purposes set forth in the Declaration of Covenants, Conditions and Restrictions. Assessments will be payable in advance on the 1st of each month, on which date the unpaid amount shall accrue interest at 1.5% per month and become a lien, after six months of nonpayment, on the property of the delinquent Member Household.
- “Special Assessments” may be levied from time to time against Commons Board for the purpose of paying non-recurring capital expenses such as the acquisition of property; the cost of construction of capital improvements to the Commons Area; the cost of reconstruction or unexpected repair or replacement of a capital improvement. All Special Assessments shall be assessed at rates to be determined by the Community. All such Special Assessments shall be payable on the payment date determined by the Commons. In the event that the Commons makes any Special Assessment, the amount thereof and the date for payment shall be announced to the Member Household by notice sent by mailed to each Member Household at such Member Household's address shown on Schedule A. Nonpayment of these assessments are subject to the same rules a those for Annual Assessments.
The Commons may bring an action to foreclose such a lien against any one or more of the House Parcels in the manner in which deeds of trust on real property are foreclosed, and/or a suit on the personal obligation of the Member Household, or by any other available process. All costs and expenses incurred by the Commons in enforcing or collecting any such Commons Expense or Special Assessment, including reasonable attorney’s fees, shall be paid by the Member Household responsible for the assessment.
ARTICLE XII- FINANCIAL
- Records and Audits: The Commons Board shall keep detailed records of the actions of the Member Households, minutes of the meetings of the Board. The Board shall as soon as reasonably possible after the close of the fiscal year submit to the Commons Board a report of the operations of the Commons for such year, which shall include financial statements.
The Commons Board shall keep and maintain the financial records and books of accounting of the Commons as well as a separate account for each House Parcel, which among other things shall contain the amount of each assessment of Annual Assessments and Special Assessments against each House Parcel, the date when due, the amounts paid thereon and the balance remaining unpaid. Copies of the Declaration, these By- Laws and any rules and regulations, as the same may be amended from time to time, shall be maintained at the office of the Commons Board and shall be available for inspection by Members, their authorized agents during reasonable business hours.
- CHECKS DRAFTS AND OTHER INSTRUMENTS Check, notes, drafts and other instruments for the payment of money drawn or endorsed in the name of the Commons shall be signed by a duly selected officers or by any other person or persons to whom such power may be designated by the Community.
ARTICLE XIII– GENERAL PROVISIONS
- Offset. Whenever the Commons is obligated to make a distribution or payment to any Member Household, any amounts that Member Household owes the Commons may be deducted from said distribution or payment.
- Notices. Except as expressly set forth to the contrary in these By-Laws, all notices, requests, or consents required or permitted to be given under these By-Laws must be in writing and shall be deemed to have been properly given if hand delivered to Commons Board at their addresses.
- Amendment or Modification. Except as specifically provided herein, these By-Laws may be amended or modified from time to time but only with the unanimous written consent of the Member Households.
- Governing Law; Severability. These By-Laws are governed by and shall be construed in accordance with the laws of the State of Vermont. If any provision of these By-Laws or the application thereof to any person or circumstance is held invalid or unenforceable to any extent, the remainder of these By-Laws and the application of that provision shall be in effect.
- Dispute Resolution. Any dispute, controversy or claim arising out of or in connection with these By-Laws shall be resolved by face-to-face negotiations between the parties involved, such negotiations to be conducted in the spirit of the Community's Guiding Principles.
If the dispute cannot be resolved by face-to-face negotiation the parties shall submit to mediation proceedings to occur at a mutually acceptable time and place, with a mutually acceptable mediator and mutually acceptable procedures. In the event that the dispute, controversy or claim cannot be settled by negotiations or mediation, either party may demand, by written notice to the other party, that the dispute be submitted to arbitration.
The arbitration shall be conducted according to the provisions of this Section. If the parties to the dispute mutually agree upon one or more individuals to arbitrate the dispute, such individuals shall arbitrate the dispute. If the parties mutually agree upon the rules for conducting the arbitration, such rules shall govern the arbitration. If, however, the parties cannot agree upon the identity of the arbitrators and/or the rules for conducting the arbitration within seven (7) days after the notice demanding arbitration, either party may request the American Arbitration Association (the “AAA”) to appoint, on an expedited basis, one arbitrator who shall have substantial experience as an arbitrator, be experienced in the subject matter of the dispute and be able to commence the arbitration proceedings (with at least an initial hearing), according to the requirements of this Section and other complimentary rules of the American Arbitration Association, within fourteen (14) days after the appointment.
The arbitration proceedings shall be completed within thirty (30) days after the initial hearing and the arbitrator’s decision shall be provided to the parties within seven (7) days thereafter. The decision of the arbitrator shall be final and binding provided such decision is set forth in writing by the arbitrator which recites the decision and all findings and orders relative to the implementation thereof including, without limitation, the amount and/or nature of any awards and the allocation of responsibility among the parties to pay the AAA fees and the fees of the attorneys and other professionals incurred by the parties, in accordance with this Section. A court of competent jurisdiction located in the State of Vermont may enforce the arbitrator's decision. The parties hereby expressly submit to the jurisdiction of all federal and state courts located in the State of Vermont, in connection with any action brought to enforce or otherwise relating to these By-Laws.
Except where clearly inconsistent with the subject matter of the dispute, the parties agree to continue performing their respective obligations under these By-Laws while the dispute is being resolved. Prior to receipt of the arbitrator’s decision, each of the parties shall pay their own expenses in connection with the mediation and/or arbitration and shall share the costs of any mediator and/or arbitrator. The arbitrator may order that either of the parties that is entitled to an award on the merits of the dispute shall have its costs (including AAA fees and attorney and other professional fees), paid by the other party; provided, however, that the arbitrator shall have discretion to apportion the responsibility for the costs of the parties in the event that the arbitrator’s decision is not solely in favor of one of the parties.
Notwithstanding the foregoing requirement to arbitrate any dispute, in the event either of the parties determines it necessary to seek injunctive relief against another, the party seeking the injunction may seek such injunction without complying with the prerequisite of mediation and arbitration. The parties hereto agree that any arbitrator(s) utilized hereunder shall have the authority to issue injunctive orders for specific enforcement.
- Third-Party Beneficiaries. The provisions of these By-Laws are not intended to be for the benefit of any creditor or other person to whom any debts or obligations are owed by, or who may have any claim against, the Commons or any of its Members. Notwithstanding any contrary provision of these By-Laws, no such creditor or person shall obtain any rights under these By-Laws or shall, by reason of these By-Laws, be permitted to make any claim against the Commons or any Member.
- This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document, and all counterparts shall be construed together and shall constitute the same instrument.
- Fiscal Year. The fiscal year of the Commons shall end on June 30 each year. The Commons Board may change such fiscal year as they, in their discretion, determine is appropriate.
ARTICLE XIV– CONFLICT OF INTEREST:
Transactions with Interested Persons. Unless entered into in bad faith, no contract or transaction between the Commons and one or more of its Members, or between the Commons and any other corporation, partnership, association or other organization shall be voidable providing they meet the following criteria:
- That the material facts as to the relationship or interest of said Member and as to the contract or transaction were disclosed or known to the Commons and the contract or transaction was authorized by the disinterested Member Households; or
- The contract or transaction was not patently unfair to the Commons as of the time it was authorized, approved or ratified by the disinterested Member Households; or
- Member interested in such contract or transaction, because of such interest, shall be considered to be in breach of these By-Laws or liable to the Community, any Member, or any other person or organization for any loss or expense incurred by reason of such contract or transaction or shall be accountable for any gain or profit realized from such contract or transaction.
ARTICLE XIV– TRANSFER OF INTEREST
- Any person who acquires in any manner an interest or any part thereof in the Community, whether or not such person has accepted and assumed in writing the terms and provisions of these By-Laws or been admitted as a Member Household, shall be deemed by the acquisition of such interests to have agreed to be subject to and bound by all of the provisions of these By-Laws with respect to such interest.
- Transfer of a Member Household shall automatically follow ownership of a House Lot and cannot be otherwise transferred.
- Upon the transferee becoming a Member Household, the Member Household transferring its interest shall be relieved of liability with respect to the transferred interest arising or accruing under these By-Laws on or after the effective date of the transfer, unless the transferor affirmatively assumes such liability; provided, however, that the transferor shall not be relieved of any liability for prior distributions and unpaid contributions unless the transferee affirmatively assumes such liabilities.
ARTICLE XV– SALE OF HOUSE LOTS
- No Severance of Ownership. No Member shall execute any deed, mortgage, or other instruments conveying or mortgaging title to his or her House Lot without including therein the undivided interest of a Household Member's interest in the Commons Area; it being the intention hereof to prevent any severance of such combined ownership.
- Payment of Assessments. No Member shall convey, mortgage, pledge, hypothecate, sell, or lease his or her House Lot unless and until he or she shall have paid in full to the Commons all unpaid assessments assessed by the Commons against his house and until he or she shall have satisfied all unpaid liens against such house.
- Option to Purchase.
The Commons shall have an option to purchase a Member’s Property at its fair market value in accordance with the terms and provisions of this Option to Purchase (“this Option”). This Option constitutes a restriction and a right and interest in real property that runs with the land. This Option shall be perpetual in duration and is given on the following terms and conditions.
- Option Trigger. A Member shall not sell, transfer or convey his, her, or its Property, in whole or in part, without first offering the Property for sale to the Commons pursuant to this Section XV; provided, however, that the following described transactions shall not trigger the Commons’ rights under this Option:
- Any mortgage, pledge, or other assignment of the Property to a lender as security for indebtedness, provided the Commons’ interest under this Option is treated as an interest in real estate such that in the event of foreclosure the Commons is deemed a necessary party defendant in such foreclosure case and have the right to redeem the Property from the foreclosure action; and
- Any conveyance by the Member to the Member’s Family, as the latter term is defined herein, by gift, inheritance, sale or other transfer; and
This Option shall apply to all other sales and conveyances of the Property, including any sale or conveyance of any interest in the Property including any conveyance by, or conveyance of any interest in a corporation, limited liability company, partnership or other holding entity.
- Notice of Intent to Sell. Whenever Member desires to sell its Property, the Member shall deliver to the Commons at their principal places of business by certified mail, return receipt requested, a Notice of Intent to Sell.
- Exercise of Option. This Option may be exercised by the Commons as follows:
- The Commons or shall give written Notice of Intent to Exercise not more than thirty (30) days following receipt of the Notice of Intent to Sell; failure by the Commons to provide such notice shall constitute a waiver of its rights under this Option; and
- Thereafter, the Member shall obtain an appraisal of the Property to be performed by a Vermont licensed appraiser to establish the Fair Market Value and to fix the purchase price for the Property.
- The Commons, if so desired, shall exercise this Option by giving written Notice of Intent to Purchase not more than thirty (30) days following the fixing of the price as provided for herein before.
- If the Commons declines to purchase the Property, then one, some or all of the other Members shall have the right (but not the obligation) to purchase the Selling Member's Property.
- Some, but fewer than all, of the Members may elect to exercise the Option to purchase the Selling Member's Interest. In that event the term "Members" as hereinafter used in this Section shall mean the Member or group thereof making such election.
- Every Member (other than the Selling Member) electing to exercise the Members' Option to purchase the Selling Member's Interest shall have an unconditional preemptive right (but not an obligation) to purchase such amount of the Selling Member's Interest that will maintain such electing Member's proportionate Interest in the Company.
Notices required by this Section shall be delivered by certified mail, return receipt requested
- Closing of the Purchase. If this Option is exercised, the parties shall close on the sale on or before thirty (60) days from the delivery of the Notice of Intent to Purchase described above. The following conditions shall apply to said closing:
- The Member shall, by Vermont Warranty Deed, deliver good, clear, record and marketable title to the Commons, free of all liens or other encumbrances (including discharge or release of outstanding mortgages), sufficient for the Commons to secure title insurance at its sole expense. The state of title to the Property shall be determined by a title examination paid for by the Commons.
- The Member agrees to use reasonable efforts to deliver marketable title. In the event the Member is unable to give marketable title, then the Commons may elect to terminate its exercise of this Option. The Commons shall have the right to elect to accept such title as Member can deliver and to pay the purchase price without reduction.
- c) The Member agrees to obtain at its sole expense any and all permits and approvals required under law or regulation for the conveyance of the Protected Property to the Commons under this Option. The parties shall extend the closing date as necessary to enable the Member to obtain all such final permits and approvals.
- d) The Member and the Commons shall prorate property taxes as of the date of closing.
- e) The Member shall not physically alter the Property or the improvements on the Property or enter into any lease after the Commons delivers the Notice of Intent to Exercise provided herein. In the event any structure is substantially destroyed by fire or other casualty, Commons may elect to (1) proceed to closing and accept the proceeds of any insurance policy the Member may have with respect to such destruction; or (2) if such insurance proceeds are less than the value of the structure, proceed to closing and accept the proceeds of said insurance policy and reduce the purchase price by the difference between such value and insurance proceeds; or (3) withdraw its election to exercise this Option.
- f) The Property shall be conveyed free of all leases, tenancies, tenants and occupants, unless the Commons otherwise agrees in writing.
- g) After closing, this Option shall remain in full force and effect with respect to all subsequent conveyances of the Property.
- Partial Release of Option. At the request of a Member, the Commons shall execute a partial release of their rights under this Option Agreement (”the Partial Release”), and upon the first to occur of the following events, the Commons shall immediately deliver the Partial Release to the Huntington Town Clerk for recording in the Huntington Land Records:
- Commons’ failure to timely deliver the Notice of Intent to Exercise;
- Commons’ failure to timely deliver the Notice of Intent to Purchase; or
- Commons’ election to terminate its exercise of this Option.
- The Option herein granted shall be subject and subordinate to any and all mortgages of record presently or conveyed in the future by a Member.
ARTICLE XVI – DISSOLUTION, LIQUIDATION, LIQUIDATION AND TERMINATION
Dissolution. Subject to the rights of the mortgagees, the Commons shall dissolve and its affairs shall be wound up upon the first to occur of the following:
- the written unanimous consent of the Member Households;
- the consolidation or merger of the Commons in which it is not the resulting or surviving entity.
- Upon dissolution of the Community, the Commons Board may appoint one or more Officers as liquidating trustee. The liquidating trustees shall proceed diligently to liquidate the Commons and wind up its affairs and shall dispose of the assets of the Community. Until final distribution, the liquidating trustees may continue to operate the business and properties of the Commons with all of the power and authority of the Member Households. As promptly as possible after dissolution and again after final liquidation, the liquidating trustees shall cause an accounting by the accounting firm then serving the Commons of the Community’s assets, liabilities, operations and liquidating distributions to be given to the Member Households.
Duly adopted by consensus by the. this _____ day of ________, 2017.
___________________________________ Recording Officer