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CERTIFICATE OF PRESIDENT
of
THOUSAND OAKS PROPERTY OWNERS ASSOCIATION, INC.
regarding
AMENDMENT :
to
AMENDED AND RESTATED BYLAWS OF
THOUSAND OAKS PROPERTY OWNERS ASSOCIATION, INC.
THE STATE OF TEXAS
wm umn
COUNTY OF MONTGOMERY §
ola L SYK President of Thousand Oaks Property Owners Association, Inc. (the “Association”), do hereby certify that at a meeting of the Board of Directors of the Association (the “Board”) duly called and held on the 28% day of November, 2016, with at least a quorum of the Board members being present and remaining throughout, and being duly authorized to transact business, the following resolution was duly made and approved by a majority vote of the members of the Board:
WHEREAS, Section 22.102(c) of the Texas Business Organizations Code provides:
The board of directors may amend or repeal the bylaws, or adopt new bylaws, unless:
(1) this chapter or the corporation's certificate of formation wholly or partly reserves the power exclusively to the corporation's members;
(2) the management of the corporation is vested in the corporation's members; or
(3) in amending, repealing, or adopting a bylaw, the members expressly provide that the board of directors may not amend or repeal the bylaw.
WHEREAS, there is no such restriction or reservation in the Association’s Articles of Incorporation or Bylaws nor are there any vested rights specifically provided to the Association’s Members;
WHEREAS, Section 209.00593(b) of the Texas Property Code provides that a board of a property owners’ association may amend the
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bylaws of the property owners’ association to provide for elections to be held as required by Subsection 209.00593(a).
WHEREAS, state law supersedes any language contained in the Association’s Bylaws regarding the procedure to amend the Bylaws;
WHEREAS, the Association has not held an election for the Board of Directors since at least 2012 due to the August 15, 2013, Temporary Restraining Order and the September 9, 2013, Agreed Temporary Injunction (‘Temporary Injunction’) signed in Cause No. 13-08-08723-CV; Schight Montgomery, LLC, 1488 Land Development, Inc., Live Oak Land Development, LTD, and L.O. Development, Inc. v. Thousand Oaks Property Owners Association, Inc,; In the District Court of Montgomery County, Texas, 359 Judicial District (“Lawsuit”);
WHEREAS, the Temporary Injunction was not dissolved until the Lawsuit was dismissed per the November 8, 2016, Order Granting Agreed Motion to Dismiss with Prejudice; and
WHEREAS, the Board has determined that it would be in the best interest of the Association to amend the Bylaws in order to provide for an election to be held as of the February 2017 annual meeting of the Members in which all positions on the Board will be up for election;
NOW THEREFORE, BE IT RESOLVED, the Bylaws are amended as follows:
1. Article IV, Section 2 of the Bylaws entitled “Term of Office” is hereby deleted in its entirety.
2 Article V of the Bylaws is amended and restated to read as follows:
ARTICLE V
NOMINATION AND ELECTION OF DIRECTORS BY
MEMBERS OF THE ASSOCIATION
Section 1. Term of Office. All five positions on the Board of Directors will be up for election in calendar year 2017. Notwithstanding any other language in these Bylaws: (1) the three candidates who receive the most votes in the 2017 election will serve a term of two years; (2) the next two candidates who receive the most votes in the 2017 election will serve a term of one year. Thereafter, each director will serve until the election results are announced in the second year after the year the director was elected.
Section 2. Election Procedures. All voting in the election of directors shall be by ballots mailed to the last known address of each
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member. The last known address shall be the current address of the member as reflected in the Association’s records as of the date the ballots are mailed. Before the ballots are distributed to the members, the Association shail solicit candidates for election to the Board of Directors in accordance with Section 209.00593 of the Texas Property Code or its successor statute. The name of each person who submits his/her name in response to the candidate solicitation shall be placed on the ballot in alphabetical order based on the candidates’ surnames. The only ballot to be used and counted in the election of directors will be the “Official Ballot” distributed by the Association, Each vote will be indentified by a lot, block and section number, stating the lot owned and the number of votes represented thereby. Each ballot must be signed by at least one record owner of the property for which the ballot is being cast and must include the property address in Thousand Oaks, The ballot will include all candidate names and shall be mailed to each member within fourteen (14) days of the date of the annual meeting, A “Candidacy Statement” in a form prepared and distributed by the Board will be included in the mailing of the ballot for each candidate who has returned the Candidacy Statement. The Board of Directors may include any other documentation it sees fit in the mailing of the ballot and Candidacy Statement to the members. A candidate for election has three (3) business days from the date of the annual meeting to return a Candidacy Statement to be mailed with the ballot. No other information on each candidate other than the Candidacy Statement will be mailed with the ballots. The ballots must be mailed back by the member within thirty (80) days to a certified public accountant (“CPA”) designated by the Association. The Association shall provide the CPA’s name and mailing address on the bailot or in the mailing of the ballot to the members. The date the ballot must be received by the CPA will be stated on each ballot. A member's vote may not be changed once the ballot is mailed to the CPA. After the date on which the ballots must be received by the CPA, the CPA will tally all votes and certify the results to be true. Notwithstanding any other language in these Bylaws, there is no quorum requirement to conduct the election for the Board of Directors. The persons receiving the most votes based on the ballots received by the CPA will be elected to the open positions. In the event of a tie, the CPA will place the names of the candidates that have the tie vote in a container and draw the name of the winning candidate(s). There will be no proxy voting in the election of directors, In the event that there are not more candidates then there are open positions up for election, the candidates shall be named to the open positions without the need for the voting and ballot process described in this Section 2.
Certificate of President regarding Amendment to Amended and Restated Bylaws for
Thousand Oaks Property Owners Association, Inc.
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Section 3. Nominations From the Floor. The Association may, but is not required to, allow for nominations for candidates for the Board of Directors from the floor at the annual meeting, The Board of Directors shall determine if nominations from the floor will be accepted in its sole and absolute discretion. The annual meeting notice shall state if nominations from the floor will be accepted. Any person nominated from the floor must be in attendance at the annual meeting and must verbally accept the nomination. In the event that nominations from the floor are taken: (a) any person nominated from the floor may submit a Candidacy Statement in the prescribed time frame; and (b) the name of the person nominated from the floor will be added to the ballot in alphabetical order based on the candidates’ surnames.
Section 4. Candidate Statements. Each candidate nominated for the Board of Directors shall be given the opportunity to make a verbal statement at the annual meeting. Each candidate statement shall be no more than five minutes long. The candidates shall take turns speaking in alphabetical order based on the candidates’ surnames.
Section 5. Election Results. The results of each Board of Directors election will be announced to the members in a manner to be determined by the Board of Directors before the date of the next board meeting after the election (but no later than April 30 of each year) and newly elected board members will assume their board positions on the date that the elections results are announced.
Section 6. Election Committee/Election Guidelines, The Board of Directors may, but is not required to, appoint an Election Committee to assist in the election process. The chairperson of the Election Committee shall be a member of the Board. The Board of Directors may, but is not required to, adopt Election Guidelines to:
(a) define and/or clarify any election related issue; or (b) add additional election procedures; or (c) address any election related issue that is not otherwise addressed in the applicable restrictive covenants [as that term is defined in Section 202.001(4) of the Texas Property Code or its successor statute]. The Board of Directors may, but is not required to, instruct the Election Committee to review each Candidacy Statement received in response to the candidate solicitation and designate as many candidates as the Election Committee sees fit as an “Election Committee Candidate.” Each ballot shall note each candidate, if any, that is an Election Committee Candidate. In the event that nominations from the floor are taken, the Election Committee is not obligated to review the Candidacy Statement from such nominees.
Certificate of President regarding Amendment to Amended and Restated Bylaws for Thousand Oaks Property Owners Association, Inc.
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Section 7. Election Challenge Procedure. An owner may request a recount of the votes in an election for the Board of Directors in accordance with Section 209,0057 of the Texas Property Code or its successor statute,
3, Article IX of the Bylaws is amended and restated to read as follows:
ARTICLE IX
COMMITTEES
The Association shall appoint all committees as provided in the Declaration(s) of Covenants, Conditions and Restrictions. In addition, the Board of Directors shall appeint other committees as deemed appropriate in carrying out its purpose.
All other provisions of the Bylaws of the Association shall remain in full force and effect.
I hereby certify that I am the duly elected, qualified and acting President of the Association and that the foregoing resolution was approved by a majority vote of the Board of Directors as set forth above and now appears in the books and records of the Association.
TO CERTIFY which witness my hand this the { day of De ,
THOUSAND OAKS PROPERTY OWNERS
Its; President
STATE OF TEXAS §
COUNTY OF Na cas §
This instrument was _ acknowledged before me on \st day of
2016 by Vay 3 as President of Thousand Oaks Property Owners Association, Inc. on said corporation.
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