HomeMy WebLinkAboutR01-034 appointing Michael Roerper to Board of Eagle Riverview Affordable HousingC
Commissioner
(9 i¢d moved adoption
es
of the followi Rolution:
BOARD OF COUNTY COMMISSIONERS
COUNTY OF EAGLE, STATE OF COLORADO
RESOLUTION NO. 2001-
APPOINTING MICHAEL ROEPER
TO THE BOARD OF DIRECTORS OF'
EAGLE RIVERVIEW AFFORDABLE HOUSING CORPORATION
WHEREAS, the Board of County Commissioners by Resolution No. 93 -42 had directed
the County Manager and County Attorney to incorporate a Colorado not - for -profit corporation to
develop, maintain and operate safe, sanitary housing at affordable rental; and
WHEREAS, the County Manager and County Attorney have caused to be drafted Articles
of Incorporation and By -Laws as directed by the Board, which are attached as Exhibit A; and
WHEREAS, as stated in said By -Laws, three to seven members of the Board of Directors
shall be appointed by the Board of County Commissioners of Eagle County.
NOW THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF THE COUNTY OF EAGLE, STATE OF COLORADO:
THAT, the Board appoints Michael Roeper to the Board of Directors of the Eagle
Riverview Affordable Housing Corporation to serve as the Treasurer until the first annual
meeting of 2002 or until a successor is appointed and qualified.
C1c
MOVED, READ AND ADOPTED by the Board of County Commissioners of the
County of Eagle, State of Colorado, at its regular meeting held th of
2001.
COUNTY OF EAGLE, STATE OF
COLORADO, By and Through Its
BOARD OF COUNTY COMMISSIONERS
Clerk to the Board of
County Commissioners
Commissioner seconded adoption of the foregoing resolution. The roll
having been called, t 6 vote was as follows:
Commissioner Stone
Commissioner Gallagher
Commissioner Menconi
RNA
W
This Resolution passed by 3 - o vote of the Board of County Commissioners of
the County of Eagle, State of Colorado.
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Commissioner
ARTICLES OF INCORPORATION $ 65_ � 0
SECRETARY OF STATE
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OF '
EAGLE RIVERVIEW AFFORDABLE HOUSING CORPORATION
The undersigned adult natural person, acting as incorporator, hereby establishes a
nonprofit corporation pursuant to the laws of the State of Colorado governing nonprofit
corporations and adopts the following articles of incorporation:
FIRST: Name The name of the corporation is Eagle Riverview
Affordable Housing Corporation.
SECOND: Principal Office. The address of the initial principal office of the
corporation shall be 500 Broadway, Eagle, Colorado 81631 -0850, and may be changed as
deemed appropriate by the Board of Directors of the corporation.
THIRD: Duration The corporation shall have perpetual existence.
FOURTH: (a) Purposes The corporation is organized and shall be
operated exclusively on behalf of and for the benefit and in furtherance of the purposes of Eagle
County, Colorado, and the inhabitants thereof. All monies realized by the corporation shall be
used exclusively for the operation, maintenance and development of property used to provide
decent, safe and sanitary housing at affordable rental rates to individuals or families of low or
moderate income, including payment of obligations of the corporation in connection therewith,
all as determined by the board of directors of the corporation from time to time. Any such
property shall be located within Eagle County, Colorado, or shall have a substantial connection
therewith.
(b) Powers In furtherance of the foregoing purposes and
objectives and subject to the restrictions set forth in section (c) of this article, the corporation
shall have and may exercise all of the powers now or hereafter conferred upon nonprofit
corporations organized under the laws of Colorado and may do everything necessary or
convenient for the accomplishment of any of the corporate purposes, either alone or in
connection with other organizations, entities or individuals, and either as principal or agent,
including but not limited to exercising the power and authority to issue its own bonds or other
obligations and to secure the same by a pledge of any property of the corporation, subject to such
limitations as are or may be prescribed by law. If the corporation shall exercise its authority to
issue its own bonds or other obligations, said bonds or other obligations shall not constitute a
direct or indirect debt or financial obligation whatsoever of Eagle County, Colorado or the State
of Colorado.
(c) Restrictions on Powers
(1) No part of the net earnings of the corporation shall
inure to the benefit of or be distributable to any director or officer of the corporation, or any other
EXHIBIT
A
private person (except that reasonable compensation may be paid for services rendered to or for
the benefit of the corporation affecting one or more of its purposes), and no director or officer of
the corporation, or any other individual, shall be entitled to share in any distribution of any of the
corporate assets on dissolution of the corporation or otherwise.
(2) No substantial part of the activities of the
corporation shall consist of carrying on propaganda or otherwise attempting to influence
legislation. The corporation shall not participate or intervene in (including the publishing or
distribution of statements) any political campaign on behalf of or in opposition to any candidate
for public office.
(3) All property of the corporation shall be owned for
the benefit of Eagle County, Colorado, and subject to the condition that, upon dissolution of the
corporation, all of the corporation's assets remaining after payment of or provision for all of its
liabilities shall be paid over or transferred to Eagle County, Colorado. This limitation shall not
restrict the ability of the corporation to pledge its property to secure the payment of its
obligations.
(4) The corporation at all times shall be one not
organized for profit.
FIFTH: Registered Office and Agent The address of the initial registered
office of the corporation is 500 Broadway, Eagle, Colorado 81631 -0850. The name of its initial
registered agent at such office is James R. Fritze. The consent of the initial registered agent to
such appointment is being filed with the Secretary of State in connection with these articles of
incorporation.
SIXTH: Members The corporation shall have no members, voting or
nonvoting.
SEVENTH: (a) Board of Directors The management of the affairs of the
corporation shall be vested in a Board of Directors, except as otherwise provided in the laws of
the State of Colorado governing nonprofit corporations, these articles of incorporation or the
bylaws of the corporation. The number of directors, their classifications, if any, their terms of
office and the manner of their election or appointment shall be determined according to the
bylaws of the corporation from time to time in force.
(b) Liability of Directors The personal liability of a director
to the corporation for monetary damages for any breach of fiduciary duty as a director is limited
to the fullest extent permitted by the laws of the State of Colorado, as the same exist or may
hereafter be amended, and as further provided in the bylaws of the corporation. Any repeal or
modification of this Article SEVENTH (b) shall be prospective only and shall not adversely
affect any right or protection of a director of the corporation under this Article SEVENTH (b), as
in effect immediately prior to such repeal or modification, with respect to any liability that would
have accrued, but for this Article SEVENTH (b), prior to such repeal or modification.
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(c) Initial Board Three directors shall constitute the initial
Board of Directors. Their names and addresses are as follows:
Name
David Carter
Address
P.O. Box 850
500 Broadway
Eagle, Colorado 81631 -0850
James Hartmann
James E. Johnson, Jr.
P.O. Box 850
500 Broadway
Eagle, Colorado 81631 -0850
P.O. Box 850
500 Broadway
Eagle, Colorado 81631 -0850
EIGHTH: Bylaws The initial bylaws of the corporation shall be as adopted
by the Board of Directors. The Board of Directors shall have power to alter, amend or repeal the
bylaws from time to time in force and adopt new bylaws. The bylaws of the corporation may
contain any provisions for the regulation of management of the affairs of the corporation that are
not inconsistent with the law or these articles of incorporation, as these articles may from time to
time be amended. However, no bylaw at any time in effect, and no amendment to these articles,
shall have the effect of giving any director or officer of the corporation any proprietary interest in
the corporation's property or assets, whether during the term of the corporation's existence or as
an incident to its dissolution.
NINTH: Amendment Any provision of these articles of incorporation and
the bylaws of the corporation may be altered, amended, repealed or adopted only by resolution
duly adopted by a majority of the board of directors, with the approval of the Board of County
Commissioners of Eagle County, Colorado.
TENTH: Incorporator The name and address of the incorporator is:
James R. Fritze
500 Broadway, P.O. Box 50
Eagle, Colorado 81631 -0850
Dated: (�
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CONSENT OF REGISTERED AGENT
The undersigned hereby consents to his appointment as initial registered agent for
Eagle Riverview Affordable Housing Corporation.
Dated:
ACKNOWLEDGMENT
STATE OF COLORADO
COUNTY OF EA&!E - DEN V6'?—
ss.
Acknowledged before me this 3_1: day of March, 1999 by James R. Fritze, as
incorporator and registered agent.
Witness my hand and official seal.
�Y pv My commission expires
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(SEAL)
BREE Notary Public
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BYLAWS
m
EAGLE RIVERVIEW AFFORDABLE HOUSING CORPORATION
(Adopted April 30,1999)
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TABLE OF CONTENTS
Page
ARTICLEI OFFICES ........................................................................... ..............................1
Section 1.1 Business Offices .......................................................... ..............................1
Section1.2 Registered Office ...................................................:..... ..............................1
ARTICLEII MEMBERS ...................................................................... ..............................1
Section2.1 No Members ....:........................................................... ..............................I
ARTICLE III BOARD OF DIRECTORS ............................................. ..............................1
Section 3.1 General Powers .................`........................................... ..............................1
Section 3.2 Number, Election, Tenure and Qualifications ............ ...............................
I
Section3.3 Vacancies ..................................................................... ..............................2
Section3.4 Regular Meetings ......................................................... ..............................2
Section 3.5 Special Meetings .......................................................... ..............................2
Section3.6 Notice ........................................................................... ..........•---- ...............3
Section 3.7 Presumption of Assent ................................................. ..............................3
Section 3.8 Quorum and Voting ..................................................... ..............................3
Section3.9 Compensation .............................................................. ..............................3
Section3.10 Committees ................................................................ ..............................3
Section 3.11 Meetings by Telephone .............................................. ..............................4
Section 3.12 Action Without a Meeting ......................................... ..............................4
ARTICLE IV OFFICERS AND AGENTS ........................................... ..............................4
Section 4.1 Number and Qualifications .......................................... ..............................4
Section 4.2 Election and Term of Office ........................................ ..............................4
Section4.3 Compensation .............................................................. ..............................5
Section4.4 Removal ....................................................................... ..............................5
Section4.5 Vacancies ..................................................................... ..............................5
Section 4.6 Authority and Duties of Officers ................................. ..............................5
ARTICLEV INDEMNIFICATION ...................................................... ..............................6
Section5.1 Definitions ................................................................... ..............................6
SECTION 5.2 RIGHT TO INDEMNIFICATION ................................ ..............................8
5.3 Court- Ordered Indemnification of Directors or Officers .......... ..............................9
Section 5.4 Prior Authorization Required ...................................... ..............................9
Section 5.5 Advancement of Expenses .......................................... .............................10
Section 5.6 Payment Procedures .......:............................................ .............................10
Section5.7 Insurance .................................................................... ..............................1
l
Section 5.8 Right to Impose Conditions to Indemnification ......... .............................11
Section 5.9 Other Rights and Remedies ....................................... ..............................I
1
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Section 5. 10 Applicability; Effect ................................................. .............................11
Section 5.11 Indemnification of Agents ........................................ .............................12
Section 5.12 Savings Clause; Limitations ..................................... .............................12
ARTICLE VI. MISCELLANEOUS ..................................................... .............................12
Section 6.1 Account Books, Minutes, Etc ..................................... .............................13
Section 6.2 External Audit and Operating Summaries .................. .............................13
Section6.3 Fiscal Year .................................................................. .......:.....................13
Section 6.4 Conveyances and Encumbrances ................................ .............................13
Section 6.5 Designated Contributions ........................................... .............................13
Section 6.6. Conflicting Interest Transactions ............................... .............................13
Section 6.7 Loans to Directors and Officers Prohibited ................ .............................14
Section 6.8 References to Internal Revenue Code ......................... .............................14
Section6.9 Amendments ............................................................... .............................14
Section6.10 Severability ............................................................... .............................15
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BYLAWS
OF
EAGLE RIVERVIEW AFFORDABLE HOUSING CORPORATION
ARTICLE I
OFFICES
Section 1.1 Business Offices The principal office of the corporation shall be
located in Eagle County, Colorado. The corporation may have such other offices, either within
or outside Colorado, as the board of directors may designate or as the affairs of the corporation
may require from time to time.
Section 1.2 Registered Office The registered office of the corporation
required by the laws of the State of Colorado governing nonprofit corporations to be maintained
in Colorado may be, but need not be, the same as the principal office if in Colorado, and the
address of the registered office may be changed from time to time by the board of directors or by
the officers of the corporation.
ARTICLE H
0 1 D1
Section 2.1 No Members The corporation shall have no members.
ARTICLE III
Section 3.1 General Powers The business and affairs of the corporation shall
be managed by its board of directors, except as otherwise provided in the laws of the State of
Colorado, the articles of incorporation or these bylaws.
Section 3.2 Number, Election, Tenure and Qualifications The number of
directors of the corporation shall be from three to seven, as determined by the Eagle County
Board of County Commissioners from time to time. Appointments of directors shall be made or
confirmed by the Eagle County Board of County Commissioners. At the first annual meeting of
the board of directors, classification of the directors shall be made by dividing them into three
classes, each class to be as near equal in number as possible. The term of office of the directors
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of the first class shall expire at the first annual meeting of the board of directors held after such
classification; the term of office of the directors of the second class shall expire at the second
annual meeting of the board of directors held after such classification; and the term of office of
the directors of the third class shall expire at the third annual meeting of the board of directors
held after such classification. At each annual meeting after such classification, the number of
directors equal to the number in the class whose term expires at the time of such meeting shall be
appointed by the Board of County Commissioners to hold office until the third succeeding
annual meeting. In addition, in the event that the Board of County Commissioners determines to
increase the number of directors from the number appointed as of the first annual meeting, any
directors appointed to fill such additional seats shall hold office until the third succeeding annual
meeting after such appointment.
Each director shall hold office until the director's term expires and thereafter until
the director's successor shall have been appointed and qualified, or until the director's earlier
death, resignation or removal. Directors must be at least eighteen years old, but need not be
residents of Colorado. Any director may be removed at any time, with cause, by the Board of
County Commissioners.
Section 3.3 Vacancies Any director may resign at any time by giving written
notice to the president or to the secretary of the corporation. Such resignation shall take effect at
the time specified therein, and unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective. Any vacancy occurring in the board of
directors must be filled by an appointment by the Eagle County Board of County
Commissioners. A director appointed to fill a vacancy shall be appointed for the unexpired term
of such director's predecessor in office.
Section 3.4 Regular Meetings A regular annual meeting of the board of
directors shall be held during the month of June at the time and place, within the State of
Colorado, determined by the board, for the purpose of electing officers and for the transaction of
such other business as may come before the meeting. The board of directors may provide by
resolution the time and place, within the State of Colorado, for the holding of additional regular
meetings.
Section 3.5 Special Meetings Special meetings of the board of directors may
be called by or at the request of the president or any two directors. The person or persons
authorized to call special meetings of the board of directors may fix any place as the place,
within the State of Colorado, for holding any special meeting of the board called by them.
Section 3.6 Notice Notice of each meeting of the board of directors stating the
place, day and hour of the meeting shall be given to each director at the director's business
address at least five days prior thereto by the mailing of written notice by first class, certified or
registered mail, or at least two days prior thereto by telephonic notice or written notice given
personally or by telegraph, teletype, electronically transmitted message or facsimile or other form
of wire or wireless communication (and the method of notice need not be the same as to each
director). If mailed, such notice shall be deemed to be given when deposited in the United States
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mail, with postage thereon prepaid. If telegraphed, such notice shall be deemed to be given when
the telegram is delivered to the telegraph company. If transmitted by teletype, electronic
message, facsimile, or other wire or wireless communication, such notice shall be deemed to be
given when the transmission is completed. Any director may waive notice of any meeting
before, at or after such meeting. The attendance of a director at a meeting shall constitute a
waiver of notice of such meeting, except where a director 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 meeting of the
board of directors need be specified in the notice or waiver of notice of such meeting unless
otherwise required by statute.
Section 3.7 Presumption of Assent A director of the corporation who is
present at a meeting of the board of directors at which action on any corporate matter is taken
shall be presumed to have assented to the action taken unless such director's dissent shall be
entered in the minutes of the meeting or unless the director shall file a written dissent to such
action with the person acting as the secretary of the meeting before the adjournment thereof or
shall forward such dissent by registered mail to the secretary of the corporation immediately after
the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in
favor of such action.
Section 3.8 Quorum and Voting A majority of the directors shall constitute a
quorum for the transaction of business at any meeting of the board of directors, and the vote of a
majority of the directors present in person at a meeting at which a quorum is present shall be the
act of the board of directors. If less than a quorum is present at a meeting, a majority of the
directors present may adjourn the meeting from time to time without further notice other than an
announcement at the meeting, until a quorum shall be present. No directors may vote or act by
proxy at any meeting of directors.
Section 3.9 Compensation Directors shall not receive compensation for their
services as such, although the reasonable expenses of directors of attendance at board meetings
may be paid or reimbursed by the corporation. Directors shall not be disqualified to receive
reasonable compensation for services rendered to or for the benefit of the corporation in any
other capacity.
Section 3.10 Committees By one or more resolutions adopted by a majority of
the directors then in office, the board of directors may designate from among its members one or
more committees, each of which, to the extent provided in the resolution establishing such
committee, shall have and may exercise all of the authority of the board of directors, except as
prohibited by statute. The delegation of authority to any committee shall not operate to relieve
the board of directors or any member of the board from any responsibility imposed by law.
Rules governing procedures for meetings of any committee of the board shall be as established
by the board of directors, or in the absence thereof, by the committee itself.
Section 3.11 Meetings by Telephone Members of the board of directors or any
committee thereof may participate in a meeting of the board or committee by means of
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conference telephone or similar communications equipment by which all persons participating in
the meeting can hear each other at the same time. Such participation shall constitute presence in
person at the meeting, no matter where such person is actually located.
Section 3.12 Action Without a Meeting Any action required or permitted to be
taken at a meeting of the directors or any committee thereof 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 or
committee members entitled to vote with respect to the subject matter thereof. Such consent
(which may be signed in counterparts) shall have the same force and effect as a unanimous vote
of the directors or committee members taken at a duly -held meeting thereof, and shall be
effective when all of the directors have signed the consent, unless the consent specifies a
different effective date.
ARTICLE IV
OFFICERS AND AGENTS
Section 4.1 Number and Qualifications The executive officers of the
corporation shall be a president, one or more vice - presidents, a secretary and a treasurer. The
board of directors may also appoint such other officers, assistant officers and agents, including an
executive director, a controller, assistant secretaries and assistant treasurers, as it may consider
necessary. One person may hold more than one office at a time, except that no person may
simultaneously hold the offices of president and secretary. Officers need not be residents of
Colorado or directors of the corporation. All officers must be at least eighteen years old.
Section 4.2 Election and Term of Office The elected officers of the
corporation shall be elected by the board of directors at each regular annual meeting. If the
election of officers shall not be held at such meeting, such election shall be held as soon as
convenient thereafter. Each officer shall hold office until the officer's successor shall have been
duly elected and shall have qualified, or until the officer's earlier death, resignation or removal.
Section 4.3 Compensation Officers shall not receive compensation for their
services as such. However, officers shall not be disqualified to receive reasonable compensation
for services rendered to or for the benefit of the corporation in any other capacity.
Section 4.4 Removal Any officer or agent may be removed by the board of
directors whenever in its judgment 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 person so
removed. Election or appointment of an officer or agent shall not in itself create contract rights.
Section 4.5 Vacancies Any officer may resign at any time, subject to any
rights or obligations under any existing contracts between the officer and the corporation, by
giving written notice to the president or to the board of directors. An officer's resignation shall
take effect at the time specified in such notice, and unless otherwise specified therein, the
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acceptance of such resignation shall not be necessary to make it effective. A vacancy in any
office, however occurring, may be filled by the board of directors for the unexpired portion of the
term.
Section 4.6 Authority and Duties of Officers The officers of the corporation
shall have the authority and shall exercise the powers and perform the duties specified below and
as may be additionally specified by the president, the board of directors or these bylaws, except
that in any event each officer shall exercise such powers and perform such duties as may be
required by law.
(a) President The president shall, subject to the direction and
supervision of the board of directors, (i) be the chief executive officer of the corporation and
have general and active control of its affairs and business and general supervision of its officers,
agents and employees; (ii) preside at all meetings of the board of directors; (iii) see that all orders
and resolutions of the board of directors are carried into effect; and (iv) perform all other duties
incident to the office of president and as from time to time may be assigned to the president by
the board of directors.
(b) Vice - Presidents The vice - president or vice - presidents shall assist
the president and shall perform such duties as may be assigned to them by the president or by the
board of directors. The vice- president (or if there is more than one, then the vice - president
designated by the board of directors, or if there be no such designation, then the vice - presidents
in order of their election) shall, at the request of the president, or in the president's absence or
inability or refusal to act, perform the duties of the president and when so acting shall have all
the powers of and be subject to all the restrictions of the president.
(c) Secretary The secretary shall (i) keep the minutes of the
proceedings of the board of directors and any committees of the board; (ii) see that all notices are
duly given in accordance with the provisions of these bylaws or as required by law; (iii) be
custodian of the corporate records and of the seal of the corporation; and (iv) in general, perform
all duties incident to the office of secretary and such other duties as from time to time may be
assigned to the secretary by the president or by the board of directors. Assistant secretaries, if
any, shall have the same duties and powers, subject to supervision by the secretary.
(d) Treasurer The treasurer shall (i) be the principal financial officer
of the corporation and have the care and custody of all its funds, securities, evidences of
indebtedness and other personal property and deposit the same in accordance with the
instructions of the board of directors; (ii) receive and give receipts and acquittances for moneys
paid in on account of the corporation, and pay out of the funds on hand all bills, payrolls and
other just debts of the corporation of whatever nature upon maturity; (iii) unless there is a
controller, be the principal accounting officer of the corporation and as such prescribe and
maintain the methods and systems of accounting to be followed, keep complete books and
records of account, prepare and file all local, state and federal tax returns and related documents,
prescribe and maintain an adequate system of internal audit, and prepare and furnish to the
president and the board of directors statements of account showing the financial position of the
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corporation and the results of its operations; (iv) upon request of the board, make such reports to
it as may be required at any time; and (v) perform all other duties incident to the office of
treasurer and such other duties as from time to time may be assigned to the treasurer by the
president or the board of directors. Assistant treasurers, if any, shall have the same powers and
duties, subject to supervision by the treasurer.
(e) Secretary /Treasurer In lieu of the separate offices of secretary and
treasurer, the board of directors may elect one individual to the position of secretary /treasurer,
who shall perform all of the duties and have such powers as are set forth herein for the secretary
and the treasurer of the corporation.
. Section 4.7 Surety Bonds The board of directors may require any officer or
agent of the corporation to execute to the corporation a bond in such sums and with such sureties
as shall be satisfactory to the board, conditioned upon the faithful performance of such person's
duties and or the restoration to the corporation of all books, papers, vouchers, money and other
property of whatever kind in such person's possession or under such person's control belonging
to the corporation.
ARTICLE V
INDEMNIFICATION
Section 5.1 Definitions For purposes of this Article V, the following terms
shall have the meanings set forth below:
(a) " Corporation " means the corporation and, in addition to the
resulting or surviving corporation, any domestic or foreign predecessor entity of the corporation
in a merger, consolidation or other transaction in which the predecessor's existence ceased upon
consummation of the transaction.
(b) " Expenses " means the actual and reasonable expenses, including
attorneys' fees, incurred by a party in connection with a proceeding.
(c) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax benefit plan) or expense incurred with respect to a
proceeding.
(d) " Official Capacity when used with respect to a director of the
corporation means the office of director in the corporation, and when used with respect to a
person in a capacity other than as a director (even if such person is also a director) means the
office in the corporation held by the officer or the employment relationship undertaken by the
employee on behalf of the corporation in the performance of his or her duties in his or her
capacity as such officer or employee. "Official capacity" does not include service for any other
foreign or domestic corporation or for any partnership, joint venture, trust, other enterprise or
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employee benefit plan when acting directly on behalf of such other corporation, partnership, joint
venture, trust, enterprise or plan as a director, officer, employee, fiduciary or agent thereof.
(e) " Party " means any person who was, is, or is threatened to be made,
a named defendant or respondent in a proceeding by reason of the fact that such person is or was
a director, officer or employee of the corporation, and any person who, while a director, officer
or employee of the corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, fiduciary or agent of any other foreign or domestic
corporation or of any partnership, joint venture, trust, other enterprise or employee benefit plan.
A party shall be considered to be serving an employee benefit plan at the corporation's request if
such party's duties to the corporation also impose duties on or otherwise involve services by such
party to the plan or to participants in or beneficiaries of the plan.
(f) " Proceeding " means any threatened, pending or completed action,
suit or proceeding, or any appeal therein, whether civil, criminal, administrative, arbitrative or
investigative (including an action by the corporation) and whether formal or informal.
Section 5.2 Right to Indemnification
(a) Standards of Conduct Except as provided in Section 5.2(d) below,
the corporation shall indemnify any party to a proceeding against liability incurred in or as a
result of the proceeding if (i) such party conducted himself or herself in good faith, (ii) such party
reasonably believed (A) in the case of a director acting in his or her official capacity, that his or
her conduct was in the corporation's best interests, or (B) in all other cases, that such party's
conduct was at least not opposed to the corporation's best interests, and (iii) in the case of any
criminal proceeding, such party had no reasonable cause to believe his or her conduct was
unlawful. For purposes of determining the applicable standard of conduct under this Section 5.2,
any party acting in his or her official capacity who is also a director of the corporation shall be
held to the standard of conduct set forth in Section 5.2(a)(ii)(A), even if such party is sued solely
in a capacity other than as such director.
(b) Employee Benefit Plans A party's conduct with respect to an
employee benefit plan for a purpose such party reasonably believed to be in the interests of the
participants in or beneficiaries of the plan is conduct that satisfies the requirements of
Section 5.2(a)(ii)(B). A party's conduct with respect to an employee benefit plan for a purpose
that such party did not reasonably believe to be in the interests of the participants in or
beneficiaries of the plan shall be deemed not to satisfy the requirements of Section 5.2(a)(i).
(c) Settlement The termination of any proceeding by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, is not of itself
determinative that the party did not meet the applicable standard of conduct set forth in
Section 5.2(a).
(d) Indemnification Prohibited Except as hereinafter set forth in this
Section 5.2(d), the corporation may not indemnify a party under this Section 5.2 either, (i) in
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connection with a proceeding by or in the right of the corporation in which the party is or has
been adjudged liable to the corporation, or (ii) in connection with any other proceeding charging
that the party derived an improper personal benefit, whether or not involving action in the party's
official capacity, in which proceeding the party was adjudged liable on the basis that the party
derived an improper personal benefit.
(e) Claims by Corporation Indemnification permitted under this
Section 5.2 in connection with a proceeding by or in the right of the corporation shall be limited
to expenses incurred in connection with the proceeding.
(f) Combined Proceedings If any claim made by the corporation
against a party is joined with any other claim against such party in a single proceeding, the claim
by the corporation (and all expenses related thereto) shall nevertheless be deemed the subject of a
separate and distinct proceeding for purposes of this Article.
(g) Success on Merits or Otherwise Notwithstanding any other
provision of this Article V, the corporation shall indemnify a party who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to which the party was a party
because the party is or was a director or officer, against reasonable expenses incurred by such
party in connection with the proceeding.
5.3 Court- Ordered Indemnification of Directors or Officers A director or
officer who is or was a party to a proceeding may apply for indemnification to the court
conducting the proceeding or another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court considers necessary, may order
indemnification in the following manner:
(a) If it determines that the director or officer is entitled to mandatory
indemnification under Section 5.2(g), the court shall order indemnification, in which case the
court shall also order the corporation to pay the director's or officer's reasonable expenses
incurred to obtain court- ordered indemnification.
(b) If it determines that the director or officer is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether or not the director
met the standard of conduct set forth in Section 5.2(a) or was adjudged liable in the
circumstances described in Section 5.2(d), the court may order such indemnification as the court
deems proper; except that the indemnification with respect to any proceeding in which liability
shall have been adjudged in the circumstances described in Section 5.2(d) is limited to
reasonable expenses incurred in connection with the proceeding and reasonable expenses
incurred to obtain court- ordered indemnification.
Section 5.4 Prior Authorization Required
(a) The corporation may not indemnify a party under Section 5.2(a),
(b), or (c) unless authorized in the specific case after a determination has been made that
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indemnification of the parry is permissible in the circumstances because the party has met the
standard of conduct set forth in. Section 5.2(a). The corporation shall not advance expenses to a
party under Section 5.5 unless authorized in the specific case after the written affirmation and
undertaking requirement by Section 5.5 are received and the determination required by Section
5.5 has been made.
(b) The determination required to be made by Section 5.4(a) shall be
made:
(I) By the board of directors by a majority vote of those
present at a meeting at which a quorum is present, and only those directors not parties to the
proceeding shall be counted in satisfying the quorum; or
(II) If a quorum cannot be obtained, by a majority vote of a
committee of the board of directors designated by the board of directors, which committee shall
consist of two or more directors not parties to the proceeding; except that directors who are
parties to the proceeding may participate in the designation of directors for the committee.
(c) If the quorum cannot be obtained as contemplated in paragraph (I)
of subsection (b) of this section, and a committee cannot be established under paragraph (II) of
subsection (b) of this section, or, even if a quorum is obtained or a committee is designated, if a
majority of the directors constituting such quorum or such committee so directs, the
determination required to be made by Section 5.4(a) shall be made by independent legal counsel
selected by a vote of the Board of Directors or the committee in the manner specified in
subparagraph (I) or (II) of paragraph (b) of this Section 5.4, or, if a quorum of the full board of
directors cannot be obtained and a committee cannot be established, by independent legal
counsel selected by a majority vote of the full board of directors.
(d) Authorization of indemnification and advance of expenses shall be
made in the same manner as the determination that indemnification or advance of expenses is
permissible; except that, if the determination that indemnification or advance of expenses is
permissible is made by independent legal counsel, authorization of indemnification and advance
of expenses and evaluation as to reasonableness of expenses shall be made by the body that
selected such counsel.
Section 5.5 Advancement of Expenses The corporation shall pay for or
reimburse the expenses, or a portion thereof, incurred by a party in advance of the final
disposition of the proceeding if: (a) the party furnishes the corporation a written affirmation of
such parry's good -faith belief that he or she has met the standard of conduct described in
Section 5.2(a)(i); (b) the party furnishes the corporation a written undertaking, executed
personally or on behalf of such party, to repay the advance if it is ultimately determined that the
party did not meet such standard of conduct; and (c) authorization of payment and a
determination that the facts then known to those making the determination would not preclude
indemnification under this Article have been made in the manner provided in Section 5.4. The
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undertaking required by clause (b) must be an unlimited general obligation of the party, but need
not be secured and may be accepted without reference to financial ability to make repayment.
Section 5.6 Payment Procedures The corporation shall promptly act upon any
request for indemnification, which request must be in writing and accompanied by the order of
the court or other reasonably satisfactory evidence documenting disposition of the proceeding in
the case of indemnification under Section 5.2(g) and by the written affirmation and undertaking
to repay as required by Section 5.5 in the case of indemnification under such Section. The right
to indemnification and advances granted by this Article shall be enforceable in any court of
competent jurisdiction if the corporation denies the claim, in whole or in part, or if no disposition
of such claim is made within ninety days after written request for indemnification is made. A
party's expenses incurred in connection with successfully establishing such parry's right to
indemnification, in whole or in part, in any such proceeding shall also be paid by the corporation.
Section 5.7 Insurance By action of the board of directors, notwithstanding
any interest of the directors in such action, the corporation may purchase and maintain insurance
in such amounts as the board of directors deems appropriate to protect itself and any person who
is or was a director, officer, employee, fiduciary or agent of the corporation, or who, while a
director, officer, employee, fiduciary or agent of the corporation, is or was serving at the request
of the corporation as a director, officer, partner, trustee, employee, fiduciary or agent of any other
foreign or domestic corporation or of any partnership, joint venture, trust, other enterprise or
employee benefit plan against any liability asserted against or incurred by such person in any
such capacity or arising out of such person's status as such, whether or not the corporation would
have the power to indemnify such person against such liability under applicable provisions of
law or this Article. Any such insurance may be procured from any insurance company
designated by the board of directors, whether such insurance company is formed under the laws
of Colorado or any other jurisdiction, including any insurance company in which the corporation
has an equity or any other interest, through stock ownership or otherwise. The corporation may
create a trust fund, grant a security interest or use other means (including, without limitation, a
letter of credit) to ensure the payment of such sums as may become necessary to effect
indemnification as provided herein.
Section 5.8 Right to Impose Conditions to Indemnification The corporation
shall have the right to impose, as conditions to any indemnification provided or permitted in this
Article, such reasonable requirements and conditions as may appear appropriate to the board of
directors in each specific case and circumstances, including but not limited to any one or more of
the following: (a) that any counsel representing the party to be indemnified in connection with
the defense or settlement of any proceeding shall be counsel mutually agreeable to the party and
to the corporation; (b) that the corporation shall have the right, at its option, to assume and
control the defense or settlement of any claim or proceeding made, initiated or threatened against
the party to be indemnified; and (c) that the corporation shall be subrogated, to the extent of any
payments made by way of indemnification, to all of the indemnified party's right of recovery, and
that the party to be indemnified shall execute all writings and do everything necessary to assure
such rights of subrogation to the corporation.
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cl)
Section 5.9 Other Rights and Remedies Except as limited by law, the
indemnification provided by this Article shall be in addition to any other rights which a party
may have or hereafter acquire under any law, provision of the articles of incorporation, any other
or further provision of these bylaws, vote of the board of directors, agreement, or otherwise.
Section 5.10 - Applicability; Effect The indemnification provided in this Article
shall be applicable to acts or omissions that occurred prior to the adoption of this Article, shall
continue as to any party entitled to indemnification under this Article who has ceased to be a
director, officer or employee of the corporation or, at the request of the corporation, was serving
as and has since ceased to be a director, officer, partner, trustee, employee, fiduciary or agent of
any other domestic or foreign corporation, or of any partnership, joint venture, trust, other
enterprise or employee benefit plan, and shall inure to the benefit of the estate and personal
representatives of each such person. The repeal or amendment of this Article or of any Section
or provision hereof that would have the effect of limiting, qualifying or restricting any of the
powers or rights of indemnification provided or permitted in this Article shall not, solely by
reason of such repeal or amendment, eliminate, restrict or otherwise affect the right or power of
the corporation to indemnify any person, or affect any right of indemnification of such person,
with respect to any acts or omissions that occurred prior to such repeal or amendment. All rights
to indemnification under this Article shall be deemed to be provided by a contract between the
corporation and each party covered hereby. The provisions of this Article shall not limit the
corporation's power to pay or reimburse expenses incurred by a director in connection with an
appearance as a witness in a proceeding at a time when the director has not been made a named
defendant or respondent in the proceeding.
Section 5.11 Indemnification of Agents The corporation shall have the right,
but shall not be obligated, to indemnify any agent of the corporation to the same extent as a
director, officer or employee. The corporation also shall have the right, but shall not be
obligated, to indemnify an agent who is not a director of the corporation to the fullest extent
permissible by the laws of Colorado. Unless otherwise provided in any separate indemnification
arrangement, any such indemnification shall be made only as authorized in the specific case in
the manner provided in Section 5.4.
Section 5.12 Savings Clause; Limitations If this Article or any provision
hereof shall be invalidated by any court on any ground, then the corporation shall nevertheless
indemnify each parry otherwise entitled to indemnification hereunder to the fullest extent
permitted by law or any applicable provision of this Article that shall not have been invalidated.
Notwithstanding any other provision of these bylaws, the corporation shall neither indemnify any
person nor purchase any insurance in any manner or to any extent that would jeopardize or be
inconsistent with the qualification of the corporation as an entity eligible to issue tax- exempt
bonds or as an entity that is not subject to federal income taxation under the Internal Revenue
Code, or that would otherwise result in the imposition of any liability under the Internal Revenue
Code.
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ARTICLE VI.
MISCELLANEOUS
Section 6.1 Account Books Minutes Etc. The corporation shall keep correct
and complete books and records of account and shall keep minutes of the proceedings of its
board of directors and committees. All books and records of the corporation may be inspected
by any director, or that director's authorized agent or attorney, for any proper purpose at any
reasonable time.
Section 6.2 External Audit and Operating Summaries The corporation shall
obtain an external audit from a certified public accounting firm for each fiscal year. The
corporation shall require the project manager of the Riverview Apartments project to provide
quarterly operating summaries for the project including, but not limited to, current and projected
revenue, expense and capital expenditure reports.
Section 6.3 Fiscal Year The fiscal year of the corporation shall be as
established by the board of directors.
Section 6.4 Conveyances and Encumbrances Property of the corporation may
be assigned, conveyed or encumbered by such officers of the corporation as may be authorized to
do so by the board of directors, and such authorized persons shall have power to execute and
deliver any and all instruments of assignment, conveyance. and encumbrance; however, the sale,
exchange, lease or other disposition of all or substantially all of the property and assets of the
corporation shall be authorized only in the manner prescribed by applicable statute.
Section 6.5 Designated Contributions The corporation may accept any
designated contribution, grant, bequest or devise consistent with its general tax- exempt purposes,
as set forth in the articles of incorporation. As so limited, donor - designated contributions will be
accepted for special funds, purposes or uses, and such designations generally will be honored.
However, the corporation shall reserve all right, title and interest in and to and control of such
contributions, as well as full discretion as to the ultimate expenditure or distribution thereof in
connection with any such special fund, purpose or use. Further, the corporation shall acquire and
retain sufficient control over all donated funds (including designated contributions) to assure that
such funds will be used to carry out the corporation's tax- exempt purposes.
Section 6.6. Conflicting Interest Transactions (1) As used in this section,
"Conflicting Interest Transaction" means a contract, transaction, or other financial relationship
between the corporation and a director of the corporation, or between the corporation and a party
related to a director or between the corporation and an entity in which a director of the
corporation is a director or officer or has a financial interest.
(2) No loans shall be made by the corporation to its directors or officers. Any
director or officer who assents to or participates in the making of any such loan shall be liable to
the corporation for the amount of such loan until the repayment thereof.
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(3) No Conflicting Interest Transaction shall be void or voidable or be
enjoined, set aside, or give rise to an award of damages or other sanctions in a proceeding in the
right of the corporation, solely because the Conflicting Interest Transaction involves a director of
the corporation or a party related to a director or an entity in which a director of the corporation
is a director or officer or has a financial interest or solely because the director is present at or
participates in the meeting of the corporation's board of directors or of the committee of the
board of directors that authorizes, approves, or ratifies the Conflicting Interest Transaction or
solely because the director's vote is counted for such purpose if:
(a) The material facts as to the director's relationship or interest and as
to the Conflicting Interest Transaction are disclosed or are known to the board of directors or the
committee, and the board of directors or committee in good faith authorizes, approves, or ratifies
the Conflicting Interest Transaction by the affirmative vote of a majority of the disinterested
directors, even though the disinterested directors are less than a quorum; or
(b) The Conflicting Interest Transaction is -fair as to the corporation.
(4) Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the board of directors or of a committee which authorizes,
approves, or ratifies the Conflicting Interest Transaction.
(5) For purposes of this section, a parry related to a director shall mean a
spouse, a descendent, an ancestor, a sibling, the spouse or descendent of a sibling, an estate or
trust in which the director or a party related to a director has a beneficial interest, or an entity in
which a party related to a director is a director, officer, or has a financial interest.
Section 6.7 Loans to Directors and Officers Prohibited No loans. shall be
made by the corporation to any of its directors or officers. Any director or officer who assents to
or participates in the making of any such loan shall be liable to the corporation for the amount of
such loan until it is repaid.
Section 6.8 References to Internal Revenue Code All references in these
bylaws to provisions of the Internal Revenue Code are to the provisions of the Internal Revenue
Code of 1986, as amended, and to the corresponding provisions of any subsequent federal tax
laws.
Section 6.9 Amendments The power to alter, amend or repeal these bylaws
and adopt new bylaws shall be vested in the board of directors subject to prior approval of the
Board of County Commissioners of Eagle County. Amendment to these bylaws which would
change the number of members of the board of directors or the manner of appointment described
in Section 3.2 shall not be made without first receiving an opinion of counsel to the effect that
such amendment will not adversely affect the corporation's qualification under I.R.S. Revenue
Ruling 63 -20 or any rule or regulation superseding such ruling.
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C;
Section 6.10 Severability The invalidity of any provision of these bylaws shall
not affect the other provisions hereof, and in such event these bylaws shall be construed in all
respects as if such invalid provision were omitted.
The undersigned hereby certifies that the foregoing Bylaws of Eagle Riverview
Affordable Housing Corporation as adopted April 30, 1999, are in full force and effect as of
_, 1999.
[SEAL]
Secretary
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