ARTICLE I
CORPORATE IDENTIFICATION
SECTION 1.1 Enchanted Lake Residents Association The name of the Non-Profit Corporation is Enchanted Lake Residents Association.
SECTION 1.2 Corporate Character. The Corporation shall be a Non-Profit Corporation. The Corporation shall not authorize or issue shares of stock and no dividends shall be paid.
SECTION 1.3 Principal Office. The initial principal or registered office of the Corporation shall be the home address of the current President of the Association, or at such other location within or without the State of Hawaii as the Board of Directors shall determine. The Corporation’s mailing address shall be P.O. Box 1485, Kailua, Hawaii 96734. The Corporation may have such other offices, either within or without the State of Hawaii, as the Board of Directors may designate or as the business of the Corporation may require from time to time.
SECTION 1.4 Corporate Seal. The Corporation shall have no corporate seal.
SECTION 1.5 Fiscal Year. The fiscal year of the Corporation shall be July 1 through June 30 each year unless otherwise fixed by resolution of the Board of Directors.
SECTION 1.6 Books and Records. The Corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of its Members and Board of Directors, and shall keep at its registered office, or principal office in the State, a record of the names and addresses of its Members entitled to vote. All books and records of the Corporation may be inspected by any Member or Member’s agent or attorney for any proper purpose at any reasonable time.
ARTICLE II
MEMBERS
SECTION 2.1 Eligible Members. The eligible Members of the Association shall be as follows:
(a) Owners and/or lessees of residential lots abutting Enchanted Lake, said Lake being as described in that certain deed dated December 18,1987 and recorded with the Bureau of Conveyances in Liber 21622, Page 476:
(b) Owners and/or lessees of townhouse condominiums known as Kukilakila Phase I (File Plan 1298) and Kukilakila Phase II (File Plan 1299) as registered at the Bureau of Conveyances in the State of Hawaii.
(c) Such other owners and/or lessees of residential lots (other than as described above in subsections “a” and “b” of Section 2.1 as the Board of Directors may recommend. Such owners and/or lessees will be awarded Associate Membership.
SECTION 2.2 Members. Acting Members of the Association shall be those qualified under Section 2.1 above who have paid all prescribed lake maintenance fees and additional assessments, if any.
SECTION 2.3 Annual Meetings. The Annual Meeting of the Members of the Corporation shall be held on a Saturday during either September or October as designated by the current Board of Directors. Notice of this meeting shall be published one month in advance of said meeting date.
SECTION 2.4 Special Meetings. Special meetings of the Association may be held at any time upon the call of the President, the Board of-Directors, or within ten days after the President receives a petition signed by at least twenty five percent (25%) of the active members. Upon receipt of such call or petition, the Secretary shall send out notices of the meeting to all Members.
SECTION 2.5 Notice of Meetings. A written or printed notice of every meeting of Members, stating the place, day and hour of the meeting, and in the case of a special meeting, shall be delivered not less than seven (7) days before the date of the meeting (except where the meeting is at the request of at least twenty five percent 25% of the active Members, then not less than three days before the date of the meeting), either personally or by mail or at the direction of the President, Secretary or other Officers or any person calling the meeting, to each Member entitled to vote at the meeting. If mailed, the notice shall be deemed to be delivered when deposited in the United States mail addressed to the Member at the Member’s address as it appears on the records of the Corporation, with postage thereon prepaid.
SECTION 2.6 Waiver of Notice. Whenever any notice is required to be given to any Members of the Corporation, a waiver thereof in writing signed by the person or persons entitled to the notice, whether before or after the time stated therein, shall be equivalent to the giving of the notice.
SECTION 2.7 Quorum and Voting. At any meeting, the presence in person or by proxy of twenty five percent (25%) of Members entitled to vote at said meeting shall constitute a quorum. The affirmative vote of a majority of the Members present or represented at the meeting at which a quorum is present shall be the act of the Members. A quorum, once established, shall not be broken by the absence or withdrawal of one or more Members before the meeting is adjourned.
SECTION 2.8 Voting Proxies. Each active Member shall be limited to one (1) vote per residential lot or townhouse condominium unit Associate Members shall be non-voting members.
A member may vote either in person or by proxy executed in writing by the Member. No proxy shall be valid after eleven (11) months from the date of its execution, unless otherwise provided in the proxy. The proxy can provide for the appointment of a designated director to be the proxy for all matters raised during the General Membership Meeting.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1 Number; qualifications; Election. The Board of Directors shall consist of fourteen (14) active Members of the Corporation. The term of office of an elected Director shall be three (3) years. Only those members who reside in Kailua, Oahu, Hawaii shall be eligible for election to the Board of Directors.
Directors shall be elected by the Members at each Annual Meeting. Each Director shall hold office for a term ending on the date of the third Annual Meeting following the Annual Meeting at which such Director was elected and thereafter until his/her successor is elected and qualified or until his/her death, retirement, resignation or removal.
SECTION 3.2 Powers. The Board of Directors shall have the following powers in addition to those expressly granted by applicable law in the State of Hawaii:
(a) To acquire and dispose of property, real, personal or mixed.
(b) To appoint agents or employees of the Corporation and to delegate to them by power of attorney or otherwise such power or authority as it shall determine.
(c) To fix the salaries and in its discretion, require security of any of them for the faithful performance of any of their duties.
(d) To make rules and regulations consistent with law or the Articles of Incorporation for the operation of the Corporation.
(e) To suspend any Officer for cause, subject to the limitations hereinafter provided.
(f) To directly control all general funds of the Corporation.
(g) To establish such late fees, penalties, and fines as it deems appropriate with respect to enforcement of the provisions of the “Supplemental Declaration” dated September 23, 1987 and these by-laws, provided such penalties and fines are not inconsistent with public law or the provisions of these bylaws, and the unpaid amount of such penalties and fines against any residential owners shall constitute a lien against his interest in his property.
(h) And generally to do any and every lawful act necessary or proper to carry into effect the powers, purposes and objectives of the Corporation.
SECTION 3.3 Chairman. The Board of Directors may appoint from among its members a Chairman, who shall preside at all meetings, serve during the pleasure of the Board, and perform such other duties as may be assigned to him/her by the Articles of Incorporation; these Bylaws or by the Board of Directors.
SECTION 3.4 Registration: Meetings: Notice.
(a) Each Director shall, upon election to such office, register with the Corporation his/her mailing address.
(b) The Board of Directors shall hold an annual meeting for the purpose of organization, and for the election of the Officers of the Corporation, as soon as may be practicable after each annual meeting of the Members. Written notice need not be given if the Directors’ annual meeting is held immediately after the annual Members’ meeting.
(c) The Board of Directors may schedule regular or special meetings of the Board to be held at a stated time and place. Special meetings of the Board of Directors may be called by either the President, Chairman of the Board, or any three (3) Directors. The Board may alter the time and place for such meetings from time to time
(d) The Secretary or President shall give notice of every meeting of the Board of Directors orally or by mailing or delivering a copy of the notice to each Director at his/her registered mailing address, not less than seven (7) days prior to any such meeting, with the exception of an Annual Meeting that is held immediately after the Annual Membership Meeting.
SECTION 3.5 Action by Directors Without a Meeting. Any action required or permitted to be taken at any meeting of the Directors may be taken without a meeting if all of the Directors or a committee of the Directors or all of the members of the committee, as the case may be, sign a written consent setting forth the action taken or to be taken at any time before or after the intended effective date of the action. The consent shall be filed with the minutes of the Directors’ meetings or committee meetings, as the case may be, and shall have the same effect as a unanimous vote.
SECTION 3.6 Conference Telephone Calls. Any meeting, regular, annual or special, nay be held by conference telephone or similar communications equipment, by means of which all persons participating in the meeting can hear each other at the same time and participation by such means shall constitute presence in person at a meeting.
SECTION 3.7 Quorum and Voting. A majority of the members of the Board of Directors shall constitute a quorum for the transaction of any business. Any act or business must receive the approval of a majority of such quorum. The act of the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. A quorum, once established, shall not be broken by the absence or withdrawal of one or more Directors before the meeting is adjourned. In the absence of a quorum, the Chairman, or a majority of the Directors present, may adjourn the meeting from time to time without further notice until a quorum shall be had.
SECTION 3.8 Vacancies. Any vacancy occurring within the Board of Directors may be filled by the affirmative vote of a majority of the remaining Directors, though less than a quorum of the Board of Directors. A Director elected to fill a vacancy shall be elected for the unexpired term of the Director’s predecessor in office. Any directorship to be filled by reason of an increase in the number of Directors may be filled by the Board of Directors for of a term of office continuing only until the next election of Directors by the members.
SECTION 3.9 Executive, Audit, Nominating and Other Committees. The Board of Directors may designate from among its members an Executive Committee, and from among the active members of the Corporation one or more other committees.
The Board of Directors shall annually appoint three (3) active members who shall comprise the Audit committee. It shall be the responsibility of the Audit Committee to inspect and detail the Treasurer’s accounts once each year and to report the results of said inspection in a written report to the Board of Directors.
The President shall appoint a Nominating Committee which shall regulate, conduct and supervise all elections. The Committee shall nominate active members of the Corporation as candidates for the Board of Directors. Nominations of active members of this Corporation by written petition signed by not less than fifteen (15) active members shall be added to any slate recommended by the Committee. The consent of each candidate shall be obtained before he shall be put on the slate.
ARTICLE IV
OFFICERS AND MANAGEMENT
SECTION 4.1 Election; Term; Removal. The Officers of the Corporation shall consist of a President, 1st Vice President, 2nd Vice President, Secretary and Treasurer. All Officers shall be elected by the Board of Directors to serve for one (1) year or until their respective successors have been elected. Any Officers shall be subject to removal at any time, with or without cause, by the affirmative vote of a majority of the whole Board or by majority vote of active members present at any annual or special meeting of the membership.
SECTION 4.2 The President. The President shall be the Chief Executive Officer of the Corporation. He/She shall preside at all meetings of the Members and Board of Directors. He/She may call special meetings of Members at his/her discretion and may call annual meetings of Members, as provided by these Bylaws. Subject to the directions and control of the Board of Directors, the President shall:
(a) be in personal charge of the principal office of the Corporation;
(b) have the general management, supervision and control of all of the property, business and affairs of the Corporation;
(c) appoint and discharge all employees, representatives and independent contractors of the Corporation, and fix their duties and compensation.
He/She shall at all times keep the Board of Directors fully advised as to all of the Corporation’s business.
SECTION 4.3 1st Vice President. The 1st Vice President shall assume and perform all of the duties and exercise all of the powers of the President provided by these Bylaws or otherwise during the absence or disability of the President or whenever the office of President shall be vacant, and shall perform all of the duties assigned by the Board of Directors or the President.
SECTION 4.4 2nd Vice President. The 2nd Vice President shall assume and perform all of the duties and exercise all of the powers of the 1st Vice President during absence or disability of the 1st Vice President, and shall perform all other duties assigned by the Board of Directors or President.
SECTION 4.5 The Treasurer. The Treasurer, except as the Board of Directors may otherwise order and direct from time to time and subject to its control at all times shall:
(a) have custody of all the funds, notes, bonds and other evidences of property of the Corporation;
(b) keep full and accurate books of account of the Corporation’s transactions and business which shall be and remain the property of the Corporation;
(c) deposit or cause to be deposited in the name of the Corporation all monies or other valuable effects in such banks, trust companies or other depositories as shall from time to time be designated by the Board of Directors;
(d) pay out and disburse funds as directed by the Board of Directors or is authorized by the Bylaws;
(e) receive all monies and funds and sign all receipts and vouchers and endorse for collection or deposit all notes, checks, drafts and similar commercial instruments payable to the Corporation or its order received for payments made to the Corporation, and in the absence of specific instruments from the Board of Directors may delegate this authority to an employee or independent contractor of the Corporation;
(f) make and render to the proper municipal, state, federal and other governmental officials, all exhibits, all returns and reports required by law;
(g) make and render to the Board of Directors such reports and financial statements as it may request;
(h) upon request, present and exhibit to the Members of the Corporation or to the Executive Board all the books, accounts, records and evidence therefore kept by him;
(i) perform all other duties incident to the office of Treasurer or which may be assigned by the President or the Board of Directors.
SECTION 4.6 The Secretary. The Secretary shall attend all meetings of the Members, the Board of Directors and, if created, the Executive Committee, and shall record, or shall cause to be recorded, the proceedings thereof in the Minute book or books of the Corporation. The Secretary shall give notice, in conformity of these Bylaws, of meetings of Members and, where required, of the Board of Directors. The Secretary shall perform all other duties incident to the Office of Secretary or which may be assigned by the President or Board of Directors.
SECTION 4.7 Assistant Secretary and Assistant Treasurer. The Assistant Secretary and Assistant Treasurer, if appointed, shall in such order as the Board of Directors may determine, perform all of the duties and exercise all of the powers of the Secretary or Treasurer, as applicable, during the absence or disability, or upon delegation of certain responsibilities, and shall perform all of the duties assigned by the President, the Secretary in the case of Assistant Secretary, the Treasurer in the case of Assistant Treasurer, or the Board of Directors.
ARTICLE V
EXECUTION OF INSTRUMENTS
SECTION 5.1 Proper Officers. Except as hereinafter provided or as required by law, all notes, deeds, leases, contracts, licenses, endorsements, powers of attorney, proxies, waivers, consents, returns, reports, applications, notices, mortgages and other instruments or writings of any nature, which require execution on behalf of the Corporation, shall be signed by (a) the President or a Vice President, and (b) the Secretary, the Treasurer, and Assistant Secretary or an Assistant Treasurer. All bank checks and drafts shall be signed by any two officers.
ARTICLE VI
LAKE MAINTENANCE FEES
SECTION 6.1 Generally. Lake Maintenance Fees shall be billed and paid annually. The Association operates on a fiscal year beginning July 1 and ending on June 30.
SECTION 6.2 Annual Lake Maintenance Fees. Annual Lake Maintenance Fees for Members shall be set by the Board of Directors, and will not exceed the sum of Fifty Dollars ($50.00) per month/Six Hundred Dollars ($600.00) per annum.
SECTION 6.3 Additional Assessments. Additional assessments may be levied by a majority vote of those present at any Annual or Special Meeting of the Members. Funds derived from assessment shall be used for such purposes as the Members, or in the absence of direction by the Members, the Board of Directors may direct. Additional assessments will not exceed them sum of Two Hundred Fifty Dollars ($250.00) per Member per annum.
SECTION 6.4 Assessments for Lake Improvements. Any Member specially benefited by any improvements to the Lake, as requested by them in writing, or who themselves or by any persons under them cause any damage to the Lake or appurtenances thereto which necessitate repairs, shall be liable for the cost of such improvements or repairs.
SECTION 6.5 Failure to Pay Lake Maintenance Fees. In the event of a default or defaults in payment of any Lake Maintenance Fees and/or any additional assessments, and in addition to any other remedies the Board of Directors may have, the Board of Directors may give a notice to the defaulting Member stating the date of the delinquency, the amount of the delinquency, and making demand for payment thereof. If such delinquency is not paid within thirty (30) days delivery of the notice, the Board may:
(a) By suit or suits, enforce such assessment obligations. Each such action must be authorized, by a majority of the Board at a regular or special meeting thereof, and any such suit may be instituted by any one member of the Board. Each such action shall be brought in the name of the Corporation, and the Corporation shall be deemed to be acting on behalf of all the Members. Any judgment rendered in such action shall include a sum for attorneys’ fees in such amount as the court may adjudge against such defaulting Member. Upon full satisfaction of any such judgment, it shall be the duty of the Board to execute and deliver to the Judgment Debtor an appropriate satisfaction thereof.
(b) File a lien against the property of such delinquent Member. Said lien shall state: (1) the name of the delinquent owner; (2) a designation of the property against which the claim of lien is made; (3) the amount claimed to be due and owing: (4) that the claim of lien is made by the Board pursuant to the terms of these Bylaws; and (5) that a lien is claimed against the property in an amount equal to the net amount of the stated delinquency plus any accrued interest and costs of enforcement, including attorneys’ fees, if any. Said lien shall be signed and acknowledged by any two or more members of the Board of Directors, by the attorney for the Board and shall be dated as of the date of the execution by such attorney or the last such Board member to execute said lien. The lien shall then be duly filed with the Bureau of Conveyances and/or the Land Court.
SECTION 6.6 Waiver. The failure of the Board to insist in any one or more instances upon a strict performance of or compliance with any of the covenants, rules and regulations, and/or restrictions by the Member or to exercise any right or option herein contained or to serve any notice or to institute any action or summary proceeding shall not be construed as a waiver or a relinquishment for the future, of such covenant, option, or right, but such covenant, option, or right shall continue and remain in full force and effect. The receipt by the Board of any sum paid by the Member, with or without knowledge by the Board of the breach of any covenant, rules and regulations, and/or restrictions, shall not be deemed a waiver of such breach; and no waiver, express or implied, by the Board of any provision hereof shall be deemed to have been made unless expressed in writing and signed by the President pursuant to authorized contained in a resolution of the Board.
ARTICLE VII
INITIAL BYLAWS; AMENDMENT
SECTION 7.1 Amendment of Bylaws. The Bylaws, or any part thereof, may, from time to time and at any time, be amended, altered, repealed, and new Bylaws may be adopted by a majority vote of the active Members at any annual or special meeting of the membership; provided, that the notice of said meeting shall state that a purpose of said meeting is to consider the adoption, amendment, alteration, or repeal of the Bylaws.
SECTION 7.2 Initial Bylaws. The initial Bylaws of this Corporation shall be adopted by the Board of Directors.
Article VIII
INDEMNIFICAION OF OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS
SECTION 8.1 Indemnification of Officers, Directors, Employees and Agents
(a) As used in this Article, unless the context otherwise requires:
” Agent” means any person who is or was a Director, Officer, employee or other agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the Corporation or of another enterprise at the request of the predecessor corporation.
“Expenses” include, without limitation, attorney’s fees and any expenses of a completed action or proceeding, whether civil, criminal, administrative or investigative.
(b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the corporation) by reason of the fact that the person is or was an agent of the Corporation against expenses (including reasonable attorneys’ fees), judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal proceeding, had no reasonable cause to believe the conduct of the person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction or upon a 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 or not opposed to the best interests of the Corporation, or that the person had reasonable cause to believe that the persons’ conduct was unlawful.
(c) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was an agent of the Corporation against expenses (including reasonable attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation. No indemnification shall be made in respect of any claim, issue or matter as to which the person shall have been adjudged to be liable for gross negligence or misconduct in the performance of the person’s duty to the Corporation unless and only to the extent that the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all circumstances of the case, the person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper.
(d) To the extent that an agent has been successful on the merits or otherwise in defense of proceeding referred to in subsection (b) or (c) of this Article, or in defense of any claim, issue or matter therein, the agent shall be indemnified by the Corporation against expenses (including reasonable attorneys’ fees) actually and reasonably incurred by the agent in connection therewith.
(e) Any indemnification under subsection (b) or (c) of this Article shall be made by the Corporation upon a determination that indemnification of the agent is proper in the circumstances because the agent has met the applicable standard of conduct set forth in subsection (b) or (c) of this Article. The determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of Directors who were not parties to the proceeding, or (2) if a quorum is not obtainable, by independent legal counsel in a written opinion, or (3) by the Members, or (4) the court in which the proceeding is or was pending upon application made by the Corporation or the agent or the attorney or other person rendering services in connection with the defense, whether or not the application by the agent, attorney or other person is opposed by the Corporation.
(f) Expenses incurred in defending any proceeding shall be paid by the Corporation in advance of the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the agent to repay such amount unless it shall ultimately be determined that the agent is entitled to be indemnified by the Corporation as authorized in this Article.
(g) The indemnification provided by this Article is not exclusive of any other rights to which those indemnified may be entitled under any Bylaw, agreement, vote of the Members or disinterested Directors, or otherwise, both as to action in a person’s official capacity and as to action in another capacity while holding office, and shall continue as to a person who has ceased to be an agent and shall inure to the benefit of the heirs and personal representatives of such a person.
(h) The Corporation shall have the power to purchase and maintain insurance on behalf of any agent of the Corporation against any liability asserted against or incurred by the agent in any such capacity or arising out of the agent’s status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article. Any such insurance may be procured from any insurance company designated by the Board of Directors, including any insurance company in which the Corporation shall have an equity or other interest through stock ownership or otherwise.
(1) This Article does not apply to any proceeding against any trustee, investment manager or other fiduciary of an employee benefit plan in such person’s capacity, though such person may also be an agent of the employer corporation as defined in subsection (a) of the Article. Nothing contained in this Article shall limit any right to indemnification to which such a trustee, investment manager or other fiduciary may be entitled by contract or otherwise.
SECTION 8.2 The Directors, Officers, Employees, Agents, and Members of the Corporation shall not be liable for the Corporation’s obligations.
ARTICLE IX
DEFINITIONS
The word “person” or any pronoun used in place thereof, where the context so requires or admits, shall include and mean individuals, firms, corporations, partnerships and associations. The singular shall include and mean the plural, or vice versa. Masculine, feminine and neuter genders shall include or interchange each of the other genders as the context shall imply.
“Active Member” as used herein shall mean Eligible Members qualifying under Section 2.1 (a) and (b) only. “Associate Member” shall mean Eligible Members, if any, qualifying under Section 2.1 (c).
*These Bylaws amended by majority vote of General Membership Meeting on May 19, 2001 and Special Membership Meeting on February 15, 2007.
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