BYLAWS
of
CYPRESS LANDING MARINA ASSOCIATION, INC.
ARTICLE I
Purposes
Cypress Landing Marina Association, Inc.
(hereinafter called the “Corporation”) is organized by the Cypress Landing
Master Homeowners Association, Inc. (the “Homeowners Association”) and shall
be operated substantially for pleasure, recreation or other non-profitable
purposes that qualify as exempt under the provisions of section 501(c)(7) of
the Internal Revenue Code of 1986, or the corresponding provisions of any
future United States Internal Revenue law. Without limiting the
generality of the foregoing, the corporation is organized to provide for the
operation and maintenance of the marina, and related facilities in the
Cypress Landing residential community located on the Pamlico River near
Chocowinity, Beaufort County, North Carolina for the benefit of and on
behalf of its members, pursuant to the terms of, and in accordance with,
that certain Declaration of Protective Covenants,
Restrictions and Easements dated March 18, 1994, prepared by
Weyerhaeuser Real Estate Company and recorded at Book 997, Page 228,
and re-recorded at Book 998, Page 2, Beaufort County Registry (the
“Declaration”). The terms “Marina,” “Marina Committee,” “Marina
Association” and “members of the Marina” shall have the meanings set forth
in the Declaration.
Except as inconsistent with the Charter and as
limited by these Bylaws, the Corporation shall have the powers prescribed
for Non-Profit Corporations in Chapter 55A of the General Statutes of North
Carolina. Said powers may be exercised only in furtherance of the
purposes of the Corporation as set out above.
ARTICLE II
Offices
Section 1. Principal and Registered Office.
The Corporation shall have and continuously maintain in this State a
registered office and a registered agent whose office is identical with such
registered office. The registered office shall be located at 131
Pamlico Lane, Chocowinity, Beaufort County, North Carolina 27817, or
at such other place within the State of North Carolina as may from time to
time be fixed and determined by the Board of Directors. The principle office
shall be located at 100 Marina Drive, Chocowinity, Beaufort County, North
Carolina 27817, or at such other place within the State of North
Carolina as may from time to time be fixed and determined by the Board of
Directors.
Section 2. Other Offices. The
Corporation may have offices at such places, either within or outside the
State of North Carolina, as the Board of Directors may from time to time
determine.
ARTICLE III
Members
Section 1. Members. The Corporation
shall have one class of members who shall be the members of the Marina as
set forth in Section 20 of the Declaration, a copy of which is attached
hereto as Exhibit A and incorporated herein by reference.
Section 2. Rights and Privileges. The
members shall have such rights and privileges to use the Marina, Bay Club
and related facilities as are set forth in the Declaration. All funds
and properties of the Corporation shall be held and used for the benefit of
the Marina, and related facilities and the members hereof.
Section 3. Voting. Members shall have
the right to elect certain members of the Marina Committee as defined in the
Declaration. The members of the Marina Committee shall constitute the
Board of Directors of this Corporation. Except as stated herein, the
Members shall have no other voting rights.
Section 4. Meetings. The members shall
have such meetings as may be called from time to time by the President or
the Board of Directors, provided, however, that there shall be at least one
meeting of the Members called during each calendar year, which meeting shall
coincide with or immediately follow the annual meeting of the members of the
Homeowners Association as set forth in the Declaration. Meetings of
Members shall be held at such places as are permitted by the Declaration.
Section 5. Notices. Notice of each
meeting of the members shall be given at least ten (10) days prior thereto.
All notices shall be in writing delivered personally or sent by mail,
e-mail, telegram or facsimile transmission to each member at the member’s
address as shown on the records of the Corporation, provided, however, that
the Corporation may use such address for any member as is maintained by the
Homeowners Association. If mailed, such notice shall be deemed to be
delivered when deposited in the United States Mail in a sealed envelope so
addressed, with postage thereon prepaid. If notice be given by
telegram, such notice shall be deemed to be delivered when the telegram is
delivered to the telegraph company. If notice be given by e-mail, such
notice shall be deemed to be delivered when the transmission is completed
and a “non deliverable” notice has not been received within 24 hours. If
notice be given by facsimile transmission, such notice shall be deemed to be
delivered when the facsimile transmission is completed. Any member may
waive notice of any meeting. The attendance of a member at any meeting
shall constitute a waiver of notice of such meeting, except where a member
attends a meeting for the express purpose of objecting to the transaction of
any business because the meeting is not lawfully called or convened.
Neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the members need be specified in the notice or waiver of
notice of such meeting, unless specifically required by law, by the Articles
of Incorporation of the Corporation, or by these bylaws.
Section 6. Liability and Property Rights of
Members. The members of the Corporation shall not be liable or
responsible for the debts or obligations of the Corporation and shall have
no property rights with respect to the Corporation.
Section 7. Term. A member shall remain
a member of the Corporation only so long as he shall remain a member in good
standing of the Marina, as set forth in the Declaration and is a long term
lease holder.
Section 8. Members List. The Corporation
shall prepare an alphabetical list of the names of all its members who are
entitled to notice of a meeting. This list shall show the address and
number of votes each member is entitled to cast at the meeting.
Beginning two (2) business days after notice is given of the meeting for
which the list was prepared and continuing through the meeting, the list of
members shall be available at the Corporation's principal office or at a
reasonable place identified in the meeting notice in the city where the
meeting will be held for inspection by any member for the purpose of
communication with other members concerning the meeting. A member,
personally or by or with his representatives, is entitled on written demand
to inspect and to copy the list at a reasonable time during the period it is
available for inspection. The Corporation also shall make the list of
members available at the meeting, and any member, personally or by or with
his representatives, is entitled to inspect the list at any time during the
meeting or any adjournment.
ARTICLE IV
Board of Directors
Section 1. General Powers. The affairs
of the Corporation shall be managed by the Board of Directors except as
otherwise provided by law, by the Charter of the Corporation, or by these
bylaws.
Section 2. Number and Qualification.
The number of directors of the Corporation shall be five (5). All
directors shall be at least twenty-one (21) years of age.
Section 3. Election of Directors. The
initial directors shall be designated by the incorporator in the
organization of the corporation. Thereafter, directors shall be those
persons who are elected to serve as the Marina Committee pursuant to, and in
accordance with, the terms of the Declaration. In the event that the
Marina Committee is not duly elected in accordance with the Declaration and
the directors of this Corporation then in office shall request in writing
the Homeowners Association to cause such Marina Committee to be duly elected
and the Homeowners Association shall fail to cause the Marina Committee to
be duly elected within sixty (60) days after such notice, the directors of
the Corporation then in office shall elect the Board of Directors.
Section 4. Resignation. A director may
resign from membership on the Board at any time by giving notice of his
resignation in writing addressed to the President or Secretary of the
Corporation or by presenting his written resignation in person at an annual,
regular or special meeting of the Board.
Section 5. Vacancies. A vacancy
occurring among the elected directors shall be filled as provided in the
Declaration, provided, however, that if a vacancy on the Marina Committee
(and thereby the Board of Directors of this Corporation) shall occur, the
directors of the corporation then in office shall fill the vacancy by action
of eighty percent of the directors of the Corporation.
Section 6. Duties. Each Director shall discharge his duties
as a Director, including his duties as a member of a committee, in good
faith, with the care an ordinarily prudent person in a like position would
exercise under similar circumstances, and in a manner the Director
reasonably believes to be in the best interest of the Corporation.
ARTICLE V
Meetings of Directors
Section 1. Annual Meeting. The annual
meeting of the Board of Directors shall be held in each year as soon
as practicable following the annual meeting of the Board of Directors of the
Homeowners Association at such hour and such place as shall be
designated in the notice of the meeting or agreed upon by a majority of the
directors entitled to vote at the meeting, for the transaction of such
business as may be properly brought before the meeting. At the annual
meeting, an annual budget for the next calendar year shall be adopted.
If the annual meeting shall not be held as provided above in these bylaws, a
substitute annual meeting may be called in accordance with Section 2 of this
Article V, and a meeting so called shall be designated and treated for all
purposes as the annual meeting.
Section 2. Special Meetings. Special
meetings of the Board of Directors may be called by or at the request of the
President or any two directors.
Section 3. Place of Meeting. The annual
or any special meeting of the Board of Directors may be held at the
principal office of the Corporation or at such other place, either within or
without the City of Chocowinity, North Carolina, as shall be designated in
the notice of the meeting or in a waiver of notice of the meeting signed by
all of the directors then in office.
Section 4. Notice of Meetings. The
Secretary shall give notice (or cause notice to be given) of each annual
meeting of the Board of Directors by communicating such notice to each
director at least ten (30) days before the meeting. The President or
other person or persons calling a special meeting of the Board of Directors
shall give notice thereof (or cause notice to be given) by communicating
such notice to each director at least two (2) days before the meeting.
Unless otherwise indicated in the notice thereof, any and all business may
be transacted at a meeting of the Board of Directors. Attendance by a
director at a meeting shall constitute a waiver of notice of such meeting,
except where a director attends for the express purpose of objecting to the
transaction of any business because the meeting is not lawfully called.
Such notice may be sent by any usual means of communication.
Section 5. Quorum. Eighty Percent of
the directors in office shall constitute a quorum for the transaction of any
business at any meeting of the Board of Directors; provided, if less than a
quorum of the Directors shall be present at the time and place of any
meeting, the Directors present may adjourn the meeting from time to time
until a quorum shall be present, and notice of any adjourned meeting need
not be given.
Section 6. Manner of Acting. Except as
otherwise provided in these bylaws, or by law, the act of the majority of
the directors present at a meeting at which a quorum is present, but at
least 3 Directors, shall be the act of the Board of Directors. Any Director
who is present at a meeting at which action on any corporate matter is taken
shall be presumed to have assented to the action taken unless (i) he objects
at the beginning of the meeting (or promptly upon his arrival) to holding it
or transacting business at the meeting; or (ii) his dissent or abstention
from the action taken is entered in the minutes of the meeting; or (iii) he
files written notice of his dissent or abstention with the presiding officer
of the meeting before its adjournment or with the Corporation immediately
after adjournment of the meeting. Such right to dissent shall not
apply to a Director who voted in favor of such action.
Section 7.. Participation by
Telecommunications. Any Director may participate in, and be regarded
as present at, any meeting of the Board by means of conference telephone or
any other means of communication by which all persons participating in the
meeting can hear each other at the same time.
Section 8. Action Without Meeting. Any
action which may be taken at a meeting of the Board of Directors, or of a
committee of directors, may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
directors entitled to vote with respect to the subject matter thereof, or
all of the members of such committee, as the case may be. Such consent
shall have the same force and effect as a unanimous vote of the Board of
Directors or of such a committee, as the case may be, taken at a regularly
called and held meeting of the directors or of the committee.
Section 9. Compensation. Directors as
such will not receive any compensation for their services. Directors
may be compensated for rendering services to the Corporation in a capacity
other than as a director.
Section 10. Participation By
Telecommunications. Any or all Directors may participate in a meeting
of the Board by any means of communication by which all Directors
participating may simultaneously hear each other during the meeting.
Section 11. Director's Conflict of Interest. Any corporate
transaction in which a Director has a direct or indirect interest must be
authorized, approved, or ratified in good faith by a majority, not less than
two (2), of the Directors who have no direct or indirect interest in the
transaction even though less than a quorum; provided, however, no such
transaction shall be authorized, approved, or ratified by a single Director.
For purposes of this Section, a Director has an indirect interest in a
transaction if:
(a) Another entity in which he has a material financial interest or
in which he is a general partner is a party to the transaction; or
(b) Another entity of which he is a director, officer, or trustee
is a party to the transaction and the transaction is or should be considered
by the Board.
Section 12.
Certain Director Liability. In addition to other liabilities imposed
by law upon Directors, a Director shall be subject to the following
liabilities:
(a) All Directors who vote for or assent to any
distribution of assets of the Corporation contrary to any lawful
restrictions in the Act, the Articles of Incorporation, or these by-laws,
shall be jointly and severally liable to the Corporation for the amount of
the distribution that exceeds what could have been distributed without
violating such restrictions.
(b) All Directors who vote for or assent to the making of
any loan or guaranty or other form of security by the Corporation to or for
the benefit of the Directors or officers of the Corporation, or any of them,
except loans, guaranties or other forms of security made to full-time
employees of the Corporation who are also Directors or officers of the
Corporation and which were made in accordance with Section 6 of Article IV,
Section 10 of Article VIII, and this Section, shall be jointly and severally
liable to the Corporation for the repayment or return of the money or value
loaned, with interest thereon at the legal rate until paid, or for any
liability of the Corporation upon the guarantee.
(c) A
Director shall not be liable under the provisions of subparagraphs (a) or
(b), above, if he performed his duties in compliance with Section 6 of
Article IV or (unless his actual knowledge concerning the matter in question
makes such reliance unreasonable) he relied on information, opinions,
reports, or statements, including financial statements and other financial
data, if prepared or presented by (i) one or more officers or employees of
the Corporation whom the Director reasonably believes to be reliable and
competent in the matters presented; (ii) legal counsel, public accountants,
or other persons as to matters the Director reasonably believes are within
their professional or expert competence; or (iii) a committee of the Board
of which he is not a member if the Director reasonably believes the
committee merits confidence.
ARTICLE VI
Officers
Section 1. Titles. The officers of the Corporation shall be a
President, one or more Vice Presidents, a Secretary, and a Treasurer.
. The Board of Directors may also elect such other officers as it
shall deem necessary, who shall have such authority and perform such duties
as from time to time may be prescribed by the Board of Directors, except as
otherwise specifically provided in these bylaws.
Section 2. Qualifications. The President, Vice President,
Secretary and Treasurer shall be members of the Board of Directors, and the
term of office for the Secretary and Treasurer shall not in any event extend
beyond such date as they for any reason cease to be members of the Board.
Section 3. Election and Term. The officers of the Corporation
shall be elected by the Board of Directors immediately following the annual
meeting. Each officer shall hold office for a term of One (1) year
commencing on the following day or until his successor is elected and
qualifies.
Section 4. Vacancies and Removal. Vacancies among the officers
of the Corporation may be filled by vote of a majority vote of the Board at
any annual or special meeting of the Board. Any officer or agent
elected or appointed by the Board of Directors may be removed by the Board
when in the judgment of the Board the best interests of the Corporation will
be served thereby; but such removal shall be without prejudice to the
contract rights, if any, of the individual so removed.
Section 5. Resignations. Any officer may resign at any time by giving
written notice to the Board. Any such resignation shall take effect
upon its being accepted by the Board, unless it specifies in writing a later
effective date. If a resignation is made effective at a later date and
the Corporation accepts the future effective date, the Board may fill the
pending vacancy before the effective date if the Board provides that the
successor does not take office until the effective date.
Section 6. President. The President shall be the chief executive
officer of the Corporation and, subject to the control of the Board of
Directors, shall supervise and control the management of the Corporation in
accordance with these bylaws. The President shall, when present,
preside at all meetings of the members and of the Board of Directors.
He shall sign, with any other proper officer, instruments which may be
lawfully executed on behalf of the Corporation, except where required or
permitted by law to be otherwise signed and executed, and except where the
signing and execution thereof shall be delegated by the Board of Directors
to some other officer or agent. In general, he shall perform all
duties incident to the office of President and such other duties as may be
prescribed by the Board of Directors from time to time.
Section 7. Vice President(s). The Vice President(s) shall
exercise the powers of the President during that officer’s absence or
inability or unavailability to act and such other duties as may be assigned
by the Board of Directors or the President. Any action taken by the
Vice President in the performance of the duties of the President shall
be presumptive evidence of the absence or inability or unavailability to act
of the President at the time such action was taken. The Vice President
shall have such other powers and perform such other duties as may be
assigned to him by the Board of Directors.
Section 8. Treasurer. The Treasurer shall have custody of all
funds and securities belonging to the Corporation and shall receive, deposit
or disburse the same under the direction of the Board of Directors;
provided, that the Board may appoint a custodian or depository for any such
funds or securities, and provide upon whose signature or authority such
funds may be disbursed or transferred.
Section 9. Secretary. The Secretary shall keep accurate records
of the acts and proceedings of all meetings of the Board of Directors.
He shall give or cause to be given all notices required by law and by these
bylaws. He shall have general charge of the corporate books and
records. He shall sign such instruments as may require his signature
and, in general, shall perform all duties incident to the office of
Secretary and such other duties as may be assigned to him from time to time
by the President or by the Board of Directors.
Section 10. The Marina Association shall appoint a Recording
Secretary to record the minutes of all meetings of the Marina Board.
Section 11. Absence or Disability of Officers. In the event of
the absence or disability of any officer, the Directors may delegate his
powers and duties for the time being to any other officer.
Section 12. Other Employees or Agents. The Directors may employ
or authorize the employment of such other advisors, agents and employees as
shall be considered necessary or advisable for the conduct of the affairs of
the Corporation and shall assign their duties and fix or approve their
compensation.
Section 13. Salaries of Officers. No officer of the Corporation
shall receive a salary for his services as such officer if he is also a
Director of the Corporation.
ARTICLE VII
Committees
Section 1. Ad Hoc Committees. Other committees not having and
exercising the authority of the Board of Directors in the management of the
Corporation may be designated by a resolution adopted by a majority of the
directors present at a meeting at which a quorum is present. Except as
otherwise provided in such resolution, the President of the Corporation
shall appoint the members and the chairman thereof.
Section 2. Term of Office. Each member of a committee shall
serve as such until the next annual meeting or until his successor is
appointed, unless the committee shall be sooner terminated.
Section 3. Chairman. Except as otherwise provided in these
bylaws, one member of each committee shall be appointed chairman by the
person or persons authorized to appoint or elect the members thereof.
Section 4. Vacancies. Vacancies in the membership of any
committee may be filled in the same manner as the incumbent member was
elected or appointed.
Section 5. Quorum and Action of Committees. Unless otherwise
provided in the resolution designating a committee, a majority of the
members on a committee shall constitute a quorum, and the act of a majority
of the members present and voting at a meeting at which a quorum is present
shall be the act of the committee.
Section 6. Committee Action as Board Action. The designation of
any committee and the delegation thereto of authority shall not operate to
relieve the Board or any member thereof of any responsibility or liability
imposed by law; and any resolutions adopted or other action taken by any
such committee within the scope of authority delegated to it by the Board
shall be deemed for all purposes to be adopted or taken by the Board.
Section 7. Removal. Any committee or any member thereof may be
discharged or removed by action of a majority of the Directors then in
office (provided a quorum is present).
ARTICLE VIII
General Provisions
Section 1. Fiscal Year. The fiscal year of the Corporation shall
be established from time to time by resolution of the Board.
Section 2. Waiver of Notice. Whenever any notice is required to
be given to any member of the Board under the provisions of these bylaws, a
waiver thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, or attendance at
the meeting referred to in such notice, shall be equivalent to the waiving
of such notice.
Section 3. Checks. All checks, drafts or orders for the payment
of money or notes or other evidences of indebtedness issued in the name of
the Corporation shall be signed by such officer or officers or other
individuals as the directors may from time to time designate. In the
absence of such designation by the directors, such instruments shall be
signed by the Treasurer.
Section 4. Bond. The Board of Directors may by resolution
require any or all officers, agents and employees of the Corporation to give
bond to the Corporation, at the expense of the Corporation, with sufficient
sureties, conditioned on the faithful performance of the duties of their
respective offices or positions, and to comply with such other conditions as
may from time to time be required by the Board.
Section 5. Deposits. All funds of the Corporation shall be
deposited from time to time to the credit of the Corporation in such banks,
trust companies or other depositories as the Board of Directors may select.
Section 6. Capital Reserves. The Board of Directors shall have
the authority to designate and set aside in reserves for capital
expenditures such portion of the fees, charges and assessments received by
the Corporation from time to time as it deems appropriate. All such
capital reserves so designated shall be maintained separately from the other
funds of the Corporation.
Section 7. Gifts. The Board of Directors may accept on
behalf of the Corporation any contribution, gift, bequest or devise of real
or personal property for the general purposes or for any special purpose of
the Corporation.
Section 8. Contracts. Except as otherwise provided in these
by-laws, the Board may authorize any officer or officers, agent or agents to
enter into any contract or to execute or deliver any instrument on behalf of
the Corporation, and such authority may be general or confined to specific
instances.
Section 9. Loans. No loans shall be contracted on behalf of the
Corporation and no evidences of indebtedness shall be issued in its name,
unless and except as authorized by the Board. Any officer or agent of
the Corporation thereunto so authorized may effect loans or advances for the
Corporation and for such loans and advances may make, execute, and deliver
promissory notes, bonds, or other evidences of indebtedness of the
Corporation. Any such officer or agent, when thereunto so authorized,
may mortgage, pledge, hypothecate, or transfer as security for the payment
of any and all loans, advances, indebtedness, and liabilities of the
Corporation any real property and all stocks, bonds, other securities, and
other personal property at any time held by the Corporation, and to that
end, may endorse, assign, and deliver the same, and do every act and thing
necessary or proper in connection therewith. Such authority may be
general or confined to specific instances. No loan, guaranty, or other
form of security shall be made or provided by the Corporation to or for the
benefit of its Directors or officers, except that loans, guaranties, or
other forms of security may be made to full-time employees of the
Corporation who are also directors or officers by action of the Board in
accordance with Section 10 of Article V.
Section 10. Books and Records. The Corporation shall keep a
copy of the following records at the Corporation's principal office:
(a) It’s Articles of Incorporation
or restated Articles of Incorporation and all amendments to them currently
in effect.
(b) It’s by-laws or restated
by-laws and all amendments to them currently in effect.
(c) Resolutions adopted by members
or the Board relating to the number or classification of Directors or to the
characteristics, qualifications, rights, limitations, and obligations of
members or any class or category of members.
(d) The minutes of all membership
meetings, and records of all actions taken by the members without a meeting
pursuant to Sections 55A-7-04 or 55A-7-08 of the North Carolina General
Statutes, for the past three years.
(e) All written communications to
members generally within the past three years, and the financial statements,
if any, that have been furnished or would have been required to be furnished
to a member upon demand under Section 55A-16-20 of the North Carolina
General Statutes, during the past three years.
(f) A list of the names and
business addresses of its current Directors and officers.
Section 11. Officer, Director, Employee and Agent Indemnification.
(a) The Corporation shall
indemnify any director or officer or former director or officer of the
Corporation or any person who may have served at its request as a director
or officer of another Corporation, partnership, joint venture, trust or
other enterprise against liabilities and reasonable litigation expenses,
including attorneys’ fees, incurred by the director or officer in connection
with any action, suit or proceeding in which the director or officer is made
or threatened to be made a party by reason of being or having been such
director or officer, except in relation to matters as to which the director
or officer shall be adjudged in such action, suit or proceeding to have
acted in bad faith or to have been liable or guilty by reason of willful
misconduct in the performance of duty.
(b) The Corporation may purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Corporation or is or was serving at the
request of the Corporation as a director, officer, employee, or agent of
another Corporation, partnership, joint venture, trust, or other enterprise
against any liability asserted against the director, officer, employee or
agent and incurred in such capacity, or arising out of the director,
officer, employee or agent’s status as such, whether or not the Corporation
would have the power to indemnify the director, officer, employee or agent
against such liability.
(c) Expenses incurred by a
director, officer, employee or agent in defending a civil or criminal
action, suit or proceeding may be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding as authorized by the
Board of Directors in the specific case upon receipt of an undertaking by or
on behalf of the director, officer, employee or agent to repay such amount
unless it shall be ultimately determined that the director, officer,
employee or agent is entitled to be indemnified by the Corporation as
authorized in Sections 55A‑50, et. seq., of the North Carolina General
Statutes or as authorized in these by‑laws.
(d) Any person who is or was
serving as director, officer, employee or agent of the Corporation, or in
any such capacity at the request of the Corporation in any other
corporation, partnership, joint venture, trust or other enterprise, and who
is or was a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceedings, whether civil, criminal,
administrative or investigative, not brought by the Corporation nor brought
by any party seeking derivatively to enforce a liability of such a person to
the Corporation, shall be entitled to indemnification, or reimbursement by
the Corporation for any expenses, including attorneys’ fees, or any
liabilities which the director, officer, employee or agent may have incurred
in consequence of such action, suit or proceeding, under the following
conditions:
(1) If such person is wholly
successful in such person’s defense on the merits, or if the proceeding is
an administrative or investigative proceeding which does not result in the
indictment, fine or penalty of such person, such person is entitled to
reimbursement from the Corporation of all reasonable expenses of defense or
participation, including attorneys’ fees.
(2) If such person is wholly
successful in such person’s defense otherwise than solely on the merits, the
Corporation may pay or agree to pay to such person such expenses of defense
or participation, including attorneys’ fees, as the Board of Directors in
good faith deems reasonable, regardless of any adverse interest of any or
all of the directors.
(3) If such person is not wholly
successful or is unsuccessful in such person’s defense, or if the proceeding
to which such person is a party results in such person’s indictment, fine or
penalty, the Corporation may pay or agree to pay, in whole or in part, such
expenses of defense or participation, including attorneys’ fees, and the
amount of any judgment, money decree, fine, penalty or settlement for which
such person may have become liable if:
(A) a plan for such payment is approved
by a consent in writing signed by the directors entitled to such vote or
such plan is sent to the directors entitled to vote, with notice of a
directors’ meeting, whether annual or special, to be held to take action
thereon and if at such meeting a plan is approved by a majority of such
directors, exclusive of those directors to be benefited by the plan if
approved; or
(B) a majority of a quorum consisting of
directors who are not parties to such action, suit or proceeding determine
that such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Corporation,
and with respect to any criminal action or proceeding, had no reasonable
cause to believe such person’s conduct was unlawful; or
(C) in a proceeding brought by such
person for such determination in the superior court of the district where
the Corporation has its registered office it is determined that such person
acted in good faith and in a manner such person reasonably believed to be in
or not opposed to the best interests of the Corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe
such person’s conduct was unlawful.The termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon plea of nolo contendere or its equivalent,
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which the person reasonably believed to be in the
best interests of the Corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that the person’s conduct was
unlawful.
(e) When a present or former
director, officer, employee or agent of the Corporation or any person who
has served or is serving in such capacity at the request of the Corporation
in any other Corporation, partnership, joint venture, trust or other
enterprise, is sued, alone or with others, in the courts of North Carolina,
in any action seeking to establish the person’s liability to the Corporation
arising out of the person’s alleged dereliction of duty to the Corporation,
the person shall in turn be entitled to indemnification or reimbursement
from the Corporation for so much of the person’s expenses of defense,
including attorneys’ fees, as the court in its discretion, upon motion for
indemnification or reimbursement, duly made in such action, finds to be
reasonable, if: (1) such person is successful in whole or in part in the
action against such person or in any settlement thereof and the court finds
that such person’s conduct fairly and equitably merits such relief; or (2)
the court finds, despite such person’s adjudication of liability, that such
person has acted honestly and reasonably and that, in view of all the
circumstances of the case, such person’s conduct fairly and equitably merits
such relief.
(f) When such action is
brought in a state other than North Carolina and the result thereof is as
would have entitled the defendant officer or director to make a motion in
the cause for indemnification or reimbursement of the officer or director’s
expenses of defense if the action had been brought in North Carolina, but no
such relief is available in the state in which the action is actually
brought, the defendant officer or director may bring a separate action
against the Corporation in North Carolina for such indemnification or
reimbursement as the officer or director might have recovered had the suit
against the officer or director been brought in North Carolina. Notice of
said action for indemnification or reimbursement shall be sent, in such form
as the court may approve and at the Corporation’s expense, to the party or
parties plaintiff in the prior action who shall be entitled to be heard.
(g) As used in this Section 11,
the term “person” includes the legal representative of such person.
Section 12. Procedure. Proceedings will be governed by and
conducted according to the latest edition of Robert’s Rules of Order.
Section 13. Gender. As used in these bylaws, the masculine
pronoun shall include the feminine.
Section 14. Amendments. These bylaws may be amended or repealed
and new bylaws may be adopted by the affirmative vote at the Annual meeting
of eighty percent of the Directors present where a quorum exists, provided
that notice of the proposed action shall have been included in the notice of
the meeting or shall have been waived as provided in these bylaws.
Section 15. Amendments to the Bylaws may be proposed by any twenty
percent (20%) of the members in good standing. Such proposed amendments for
revision of the Bylaws must be submitted to the Board of Directors at least
75 days before the Annual Meeting so that they may be included in the
Meeting Notice which shall be sent to all members in good standing.
I do hereby certify that the foregoing constitute the By-Laws of Cypress
Landing Marina Association, Inc. which were adopted by the Board of
Directors of the Corporation on this _______ day of __________, 2002.
_________________________
Secretary
Excerpt from Declaration of Protective Covenants, Restrictions and Easements
dated March 18, 1994
20. OPERATION AND OWNERSHIP OF THE LANDING AND THE MARINA.
A. Construction and Lease. Declarant shall construct, at its own expense, a
Marina to include no more than three hundred two (302) boat slips and
necessary piling and decking to allow access to each slip and access from
each slip to The Landing. Declarant shall also construct at The Landing, at
its own expense, the Bay Club with appurtenant structures and with a
swimming pool. Declarant shall execute a lease with the Association, on
terms mutually satisfactory, whereby Declarant shall lease from the
Association a certain portion of the Bay Club, and certain of the designated
parking (either exclusively or nonexclusively) for use by those entitled to
utilize the Marina. Declarant shall, during its period of ownership of the
Marina, pay rental to the Association for the use of the Bay Club and
parking, which rental shall be in the amount of THREE HUNDRED DOLLARS
($300.00) per month. Declarant shall pay the utility expenses for the
portion of the Bay Club leased by it; the Association shall pay ail other
expenses associated with the Leased Premises except any cost associated with
the interior upfitting and interior maintenance of such leased space.
Declarant shall retain ownership of the Marina until conveyed to the
Association in accordance with the provisions contained within this
paragraph 20.
B. Operation by Declarant. During the time it retains ownership of the
Marina, Declarant shall be entitled, without claim by the owner of any Lot
or Living Unit or the Association, to retain all rental fees, charges, user
fees, assessments, proceeds from food sales' proceeds from merchandise sales
and any and all other revenues relating to the utilization of that portion
of the Bay Club leased by Declarant and the utilization of boat slips,
without any accounting thereof required to be given to any person or entity,
including the owner of any Lot or Living Unit or the Association. Declarant
shall also bear all expense associated with the construction, operation and
maintenance of the Marina and all of the interior of the Bay Club leased by
Declarant from the Association. As long as Declarant controls the Marina, no
part of any dues or assessments paid to or collected by the Association
shall be utilized for the construction, operation or maintenance of the
Marina.
It is the intent of Declarant to rent the utilization of Marina on a short
term basis to members of the Association, their guests and invitees, and
third parties unrelated to the Association or members thereof. It is also
the intent of Declarant to enter into long term [up to ninety-nine (99)
years] leases for utilization of boat slips within the Marina with any or
all of such parties. All proceeds received from any such rentals or leases
shall be the sole property of Declarant, without claim thereto by the owner
of any Lot or Living Unit or by the Association.
C. Conveyance to Association. Notwithstanding the above. Declarant shall
convey the Marina and its leasehold interest in a portion of the Bay Club to
the Association, without payment therefore, on a date designated by
Declarant, which date shall not be prior to January 1, 1998, nor later than
December 31, 2005 (except that all upland portions of The Landing may be
conveyed any time after construction). The Association shall be obligated to
accept the conveyance when tendered. Such conveyance shall be subject to all
rental and lease agreements executed prior to the date of such conveyance by
Declarant, and the Association shall abide by and honor all such
instruments. Furthermore, the Association shall be entitled to no payment
for any portion of any rental or lease term unexpired, all such payments
being retained by Declarant as compensation for the conveyance required
herein. Declarant shall furthermore convey to the Association all rights, if
any, retained by Declarant to construct additional improvements within the
Marina as allowed by the Permit. To the extent such right is conveyed, the
Association may or may not elect to construct additional improvements; any
such construction shall be at the sole cost and expense of the Association.
All boat slips rented or leased (or otherwise utilized to produce revenues)
by the Association after its acquisition of the Marina shall generate funds
which are the sole property of the Association, all of such receipts being
maintained in a separate, designated marina account, which account shall be
utilized, except as specified hereinafter, for the sole purpose of the
maintenance and upkeep of, first, the Marina, then, to the extent of excess
receipts, for the maintenance and upkeep (including reserves) of any and all
other Amenities owned by the Association. Notwithstanding this provision, no
such proceeds shall be utilized for the upkeep, operation or; maintenance of
the Cypress Landing Golf Club.
D. Memberships. There shall be designated a special category of membership
of Association members, all Association members who have elected at time of
Marina conveyance to the Association, for a period extending one (1) year or
more from said date, to lease utilization of a boat slip at the Marina. At
time of conveyance of the Marina to the Association, Declarant shall give to
the Association the name and address of each such member, as well as the
name and address of all other parties holding a rental or leasehold interest
in one
(1) or more boat slips (accompanied by a copy of the written
instrument setting out the respective rights and obligations of such parties
). All members of the -Association qualifying for membership in such
category shall hereinafter be deemed "Marina Association Members *.
The Association, through the Marina Committee (as hereinafter described)
shall establish a dues schedule whereby each Marina Association Member shall
pay dues to the Association on a periodic basis, based upon the size of boat
allowed to utilize a particular leased boat slip within the Marina.
Furthermore, special assessments shall be allowed to be charged by the
Association, upon request of the Marina Committee, from time to time, to
allow the proper maintenance and upkeep of the Marina. All such dues and
assessments shall be mandatory, and shall be collected as though an annual
charge or a special assessment as set in paragraph 6 of these Protective
Covenants.
The Association, upon request of the Marina Committee, shall further
establish fees and costs which shall be charged to all others utilizing the
Marina, and shall further establish dues and charges for those wishing to
lease on a long or short term basis use of the Marina. Such fees and charges
shall specifically allow a property owner within Cypress Landing, subject to
availability, to procure on a long term lease basis the right to utilize a
boat slip within the Marina. To the extent that such an owner makes such
payments or charges necessary to procure such right, as used herein such
user shall be considered a Marina Association Member. Notwithstanding these
provisions, the Association may not differentiate in charges to or
utilization privileges between Marina Association Members and those holding
long term leasehold interest in a boat slip, which interest was created
prior to the conveyance of the Marina to the Association by Declarant.
Furthermore, all such contracts or leases in existence at time of conveyance
may be freely assigned by the holder thereof.
E. Operation By Association. Upon acquisition of the Marina, all expenses
associated with the operation, maintenance and upkeep of the Marina shall be
borne by all members of the Marina (both Marina Association Members and
members not property owners), in proportion to boat slip size utilized, and
all revenues associated with the operation of the Marina shall enure to the
benefit of Marina Association Members and be utilized to offset the costs
incurred in the ownership, maintenance and upkeep of the Marina, subject to
the provisions hereinbefore set out.
All membership dues and other charges and assessments, as well as all
budgetary and management decisions relating to the Marina reserved primarily
to Marina users, shall be determined by a Marina Committee on behalf of the
Association, which committee shall consist of five (5) members. As long as
there are a minimum of ten (10) non-resident Marina users entitled to
utilization of a boat slip in accordance with a long term lease [lease
extending at least an additional one (1) year from date of transfer to the
Association], said members shall select one (1) member of the committee. The
Marina Association Members shall, by vote of the Marina Association Members,
select three (3) members of the Committee (or four (4) members if there are
not ten (10) nonproperty owner leaseholders as above-stated], and the
Association Board of Directors shall appoint one (1) member of said
committee, which member may be a Marina Association Member or any other
member of the Association. Such committee shall provide in a timely fashion
to the Association the amount of all dues and assessments to be charged to
members utilizing Marina, and the Association shall use due diligence and
all of its legal powers to collect such dues and assessments so imposed. All
funds related to the Marina shall be maintained in a designated and separate
banking account or accounts of the Association, until disbursed in
accordance with the provisions contained herein and other operating
procedures as may be adopted from time to time. It is the intent of this
provision that all decisions relating to the operation and maintenance of
the Marina and any facilities of the Bay Club leased by the Marina owner,
including adoption of budgets and establishment of fees and dues, be
determined by the Marina Committee, and enforced by the Association.