Exhibit 3.104
MOUNTAIN VIEW COUNTRY CLUB
BY-LAWS
ARTICLE I
PURPOSE AND DURATION OF CLUB
The nature and purpose of Mountain View Country Club, Inc. (hereinafter
referred to as the "Club") is to own and operate a private golf, tennis,
swimming, exercise and social oriented club for the recreation, pleasure and
benefit of its members and their immediate family members and guests. The Club
and the Company (as defined below) shall offer equity memberships and non-equity
memberships pursuant to a membership plan and its exhibits (the "Membership
Plan"), which may be amended from time to time in accordance with its terms. The
period of duration of the Club is perpetual.
ARTICLE II
CLUB EMBLEM
The emblem of the Club shall be of a style and design to be approved by
the Board of Directors.
ARTICLE III
MEMBERS MEETINGS
1. Annual Meeting
An annual meeting of the Equity Members shall be held for the purposes
of receiving reports of officers and others, to elect Directors and for such
other business as may be properly brought before the meeting.
2. Date And Place Of Annual Meeting
The first annual meeting of the Equity Members shall be held within one
(1) year after the date of the turnover of management and control of the
facilities provided at Mountain View Country Club (hereinafter referred to as
the "Turnover Date") to the members of the Club by TOLL CA V, L.P., a California
limited partnership (hereinafter referred to as the "Company") as further
described in the Subscription Agreement dated as of _________ entered into by
and between the Club and the Company (hereinafter referred to as the
"Subscription Agreement"). Each annual meeting shall be held at the time and
place designated by the Board of Directors.
3. Special Meeting
Until the Turnover Date, the Company may call a special meeting of the
Equity Members. After the Turnover Date special meetings of the Equity Members
may be called by the President, a majority of the members of the Board of
Directors or by the written request of at least twenty-five percent (25%) of the
votes associated with the outstanding Equity Memberships. A request for a
special meeting shall be submitted to the President who shall call a special
meeting within thirty (30) days of the date of receipt of the request. Notices
of any special meeting must contain a statement of the purpose(s) for which the
special meeting is called and no other business may be transacted at that
meeting.
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4. Notices
The Secretary shall give at least ten (10) days, but not more than
sixty (60) days, prior notice, by mail, prepaid, to all Equity Members, stating
the place, day and hour of the meeting, and in the case of a special meeting,
the purpose or purposes for which the special meeting is called. Notice of any
meeting shall be posted on the official bulletin board at the clubhouse on the
date of its mailing to the Equity Members.
5. Quorum
The presence, either in person or by proxy, of Equity Members having
twenty percent (20%) of the votes then entitled to be voted shall constitute a
quorum at any meeting of the Equity Members.
6. Voting Percentage
A majority of the votes cast, either in person or by proxy, is
necessary for passage of any motion, except as otherwise expressly provided
herein.
7. No Action without Meetings
Action may be taken by the Equity Members only at a properly called and
noticed annual or special meeting of the Equity Members. Action may not be taken
by the written consent of the Equity Members in lieu of such annual or special
meeting.
8. Fixing of Record Date
For the purpose of determining the Equity Members entitled to notice of
or to vote at any meeting of the Equity Members, or in order to make a
determination of the Equity Members for any other proper purpose, the Board of
Directors of the Club may fix in advance a date as the record date for any such
determination of the Equity Members, such date in any case to be no more than
sixty (60) days and not less than ten (10) days, before the date of such
meeting. If no record date is fixed for the determination of the Equity Members
entitled to notice of, or to vote at, a meeting of the Equity Members, the date
on which notice of the meeting is mailed shall be the record date for such
determination of the Equity Members. When determination of the Equity Members
entitled to vote at any meeting of the Equity Members has been made, such
determination shall apply to any adjournment of the meeting.
ARTICLE IV
BOARD OF DIRECTORS
1. Number and Qualifications
The government and administration of the affairs and the property of
the Club shall be vested in a Board of Directors. Prior to the Turnover Date,
all members of the Board of Directors of the Club shall be designated by the
Company. Members of the Board of Directors appointed by the Company prior to the
Turnover Date are not required to be members of the Club. Subsequent to the
Turnover Date, the Board of Directors shall consist of nine (9) members unless
otherwise determined by the Equity Members from time to time. Subsequent to the
Turnover Date, all members of the Board of Directors must be Equity Members.
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Only Equity Members in good standing may be nominated or appear on any
ballot as a candidate for election to the Board of Directors of the Club after
the Turnover Date.
2. Elections
a. There shall be no cumulative voting and no preemptive rights.
b. Voting shall either be in person or by proxy.
c. The number of candidates necessary to fill the vacancies on the
Board of Directors receiving the highest number of votes at the annual meeting
of the Equity Members for each designated term shall be declared elected.
d. Until the Turnover Date, the Company will designate all the members
of the Board of Directors. Subsequent to the Turnover Date, the Equity Members
will elect the members of the Board of Directors at the annual meeting of the
Equity Members.
3. Term
Immediately prior to the Turnover Date, the President of the Club shall
call a special meeting of the Equity Members for the purpose of electing nine
(9) Equity Members to serve as the Advisory Board of Governors (as hereinafter
defined) until the Turnover Date and to serve as the Board of Directors of the
Club commencing on the Turnover Date. Of the nine (9) Equity Members who become
the Board of Directors at that time, the three (3) Equity Members receiving the
highest number of votes shall be elected to serve for three (3) years commencing
on the Turnover Date, the three (3) Equity Members receiving the next highest
number of votes shall be elected to serve for two (2) years commencing on the
Turnover Date and the three (3) Equity Members receiving the next highest number
of votes shall be elected to serve for one (1) year commencing on the Turnover
Date. Each year following the Turnover Date, the Equity Members will elect three
(3) Equity Members to the Board of Directors who will serve for a term of three
(3) years.
ARTICLE V
MEETINGS OF BOARD OF DIRECTORS
1. Annual Meeting
Each year the Board of Directors shall hold its annual meeting to elect
officers and to consider any other matters that may be properly brought before
the meeting. After the Turnover Date, the annual meeting of the Board of
Directors shall be held within ten (10) days after the annual meeting of the
Equity Members.
2. Quorum
A majority of all of the members of the Board of Directors shall
constitute a quorum at any meeting for the transaction of business.
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3. Regular Meetings
After the Turnover Date, the Board of Directors shall have a minimum of
six (6) regular meetings in each year at such times as the Board of Directors
shall determine. Except as otherwise expressly provided herein, a majority of
the votes cast at any meeting of the Board of Directors where a quorum is
present is necessary for passage of any motion.
4. 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 for holding any special meeting of the Board of Directors called by them.
5. Notice
Notice of any regular or special meeting of the Board of Directors
shall be given at least five (5) days previous thereto by written notice to each
Director at his or her address as shown by the records of the Club, except that
no special meeting of Directors may remove a Director unless written notice of
the proposed removal is delivered to all Directors at least twenty (20) days
prior to such meeting. If mailed, such notice shall be deemed to be delivered
when deposited in the United States mail in a sealed envelope so addressed, with
postage thereon prepaid. Notice of any special meeting of the Board of Directors
may be waived in writing signed by the person or persons entitled to notice
either before or after the time of the meeting. The attendance of a Director at
any 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
regular or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting, unless specifically required by law
or these By-Laws.
6. Telephonic Meetings
Members of the Board of Directors may participate in any meeting by
means of a conference telephone or similar communications equipment. All persons
participating in the meeting must be able to hear each other at the same time.
Participation by such means will constitute presence in person at the meeting.
ARTICLE VI
POWERS OF THE BOARD OF DIRECTORS
1. Management of the Club
The Board of Directors shall exercise all powers of the Club and do all
acts and things necessary to carry out the purposes of the Club.
2. Duties and Powers
The Board of Directors shall:
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a. Elect the officers of the Club;
b. Appoint committees and assign duties;
c. Fill vacancies on the Board of Directors due to death, resignation,
inability to perform duties, or otherwise, until the next election of Directors
by the Equity Members except for those Directors to be appointed by the Company;
d. Appoint managers and other employees and delegate such authority as
is considered necessary for the proper operation and management of the Club;
e. Adopt, alter, amend or repeal the Rules and Regulations governing
use of the Club Facilities by members, immediate family members and their
guests;
f. Establish the amount of the membership contribution for each
classification of membership and its terms of payment, and the amount of dues,
fees, dining minimums, assessments and other charges, except as otherwise
provided in the Subscription Agreement;
g. Have the power to replace any Director who shall fail to attend
fifty percent (50%) of the regular meetings of the Board of Directors in any one
(1) membership year;
h. Subject to the limitations and restrictions contained in the
Subscription Agreement, have the power to expend funds to the extent of the
amount in the Club's treasury or owing to the Club; to make contracts with third
parties, including, but not limited to, Mountain View Master Property Owners
Association, Inc.; to borrow money and incur indebtedness on behalf of the Club;
and, to cause promissory notes, bonds, mortgages, deeds of trust or other
evidences of indebtedness to be executed and issued;
i. Have the power to exchange privileges to use the Club Facilities
with members of other clubs; and
j. All such other acts and things as are permitted by the laws of the
State of California with respect to not-for-profit corporations, as those laws
now exist or as they may hereafter provide.
3. Issuance of Memberships
The Board of Directors shall have authority to issue, cancel and
transfer memberships and shall have certificates of membership prepared in form
and content consistent with the provisions of the Articles of Incorporation and
these By-Laws of the Club.
4. Compensation
No Director shall receive a salary or any other compensation
whatsoever, but shall be entitled to reimbursement for all expenses reasonably
incurred in performing any duties pursuant to these By-Laws.
5. Interpretation of By-Laws
The Board of Directors shall have the corporate power to generally do
everything permitted by non-for-profit corporations by law, statute, its
Articles of Incorporation and these By-Laws, and to determine the interpretation
or construction of these By-Laws, or any parts thereof, which may be in conflict
or of doubtful meaning, and its decision shall be final and conclusive.
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6. Action without Meetings
Any action which may be taken by the Board of Directors, or any
committee thereof, may be taken without a meeting if consent in writing setting
forth the action taken, signed by all of the Directors entitled to vote, or all
of the members of the committee, as the case may be, is filed in the minutes of
the proceedings of the Board of Directors or the committee. A consent shall have
the effect of a unanimous vote.
ARTICLE VII
OFFICERS
The Board of Directors at each annual meeting shall elect, to serve for
a term of one (1) year and until their successors shall be elected, a President,
Vice President, Treasurer and Secretary, and such other officers as the Board of
Directors may from time to time determine appropriate. Commencing with the
Turnover Date, each officer must be a member of the Board of Directors of the
Club, and the President and the Treasurer must be a Golf Member. The officers
shall not be liable for the debts of the Club.
ARTICLE VIII
DUTIES OF OFFICERS
1. President
The President shall preside at all meetings of the Equity Members and
the Directors and enforce observance of the provisions of these By-Laws and all
Rules and Regulations of the Club. The President may call special meetings of
the Board of Directors, shall be an ex-officio member of all committees and is
empowered to execute all papers and documents requiring execution in the name of
the Club.
2. Vice President
The Vice President shall assist the President in his/her duties, and in
the absence or disability of the President, the Vice President shall perform and
carry out all duties and responsibilities of the President.
3. Secretary
The Secretary shall keep, or cause to be kept, records and minutes of
all meetings of the Board of Directors and the membership, and the Secretary
shall be responsible for giving all required notices of meetings. The Secretary
shall have custody of the Seal of the Club and all membership records shall be
kept under the Secretary's supervision.
4. Treasurer
The Treasurer shall be Chairman of the Finance Committee. The Treasurer
shall cause to be collected, held and disbursed, under the direction of the
Board of Directors, all monies of the Club, and it shall be the Treasurer's duty
to collect monies due the Club from the issuance of memberships, dues, fees,
dining minimums, assessments and charges of members of the Club, and all amounts
due from others. The Treasurer shall keep or cause to be kept, at the Club,
regular books of account and all financial records of the Club, and shall
prepare budgets and financial statements, when and in the form requested by the
Board of Directors. The Treasurer shall deposit or cause to be deposited all
monies of the Club in an account or accounts in the Club's name, in the bank or
banks designated by the Board of Directors, and shall give a surety bond for
faithful performance in the amount directed by the Board of Directors, which
surety bond premium shall be paid by the Club. Any other person or persons
having access to monies of the Club or its bank accounts shall be similarly
bonded.
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5. Other Officers
The Board of Directors may fill vacancies in any office or new office
created at any meeting of the Board of Directors.
6. Duties of Officers
Any officer may be given additional assignments and duties by the Board
of Directors.
7. Removal from Office
Any officer may be removed from office, with or without cause, by a
two-thirds (2/3) vote of the members of the Board of Directors.
8. General Manager
A General Manager shall be employed by the Club and his/her salary
shall be fixed by the Board of Directors. The General Manager shall be the
operating head of all departments. All employees of the Club, except as
otherwise specified herein, shall be employed, discharged, or otherwise
controlled by the General Manager in keeping with the organizational chart and
salary ranges approved by the Board of Directors. The General Manager shall
establish all charges for food, beverage and services, in and about the
clubhouse, subject to the approval of the Board of Directors.
The General Manager is responsible for the proper management of all
aspects of the Club's activities so as to assure maximum membership
satisfaction; a sound financial operation compatible with the best interests of
the members and their guests and Club employees; the maintenance and improvement
of the quality of the Club's services; and the security and protection of the
Club's assets and facilities. The General Manager reports to the Board of
Directors and administers all policies established by the Board of Directors.
The General Manager administers and manages all Club operations, except
as stated herein, and shall devote his/her time and abilities exclusively to the
operations of the Club and its facilities within the framework of the general
policy promulgated by the Board of Directors. The duties of the General Manager
include the following:
(a) Provide the overall administration of the Club pursuant to the
policies adopted by the Board of Directors and within the general provisions of
these By-Laws, house rules, etc.
(b) Responsible for the hiring, terminating and supervising of all Club
personnel and establishing specific personnel policies, hourly wages,
compensation benefits programs, job descriptions and personnel procedures in
coordination with standing committees and broad guidance and general approval of
the Board of Directors, and consistent with the rules and these By-Laws.
Remuneration of salaried employees and independent contractors shall be reviewed
normally on an annual basis by an ad hoc committee appointed by the President
and chaired by the chairman of the Finance Committee. Recommended changes shall
be submitted to the Board of Directors for approval.
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(c) Coordinate the various activities of the Club and achieve the
appropriate cooperation and coordination of the various operations and
departments of the Club.
(d) Communicate with Equity Members, committees, the Board of Directors
and the Club personnel as necessary to accomplish the goals and objectives of
the Club.
(e) Attend meetings of the Board of Directors and the various
committees with respect to which he/she shall be designated an ex-officio
member. The General Manager shall arrange for proper minutes to be maintained
for meetings of the Board of Directors, standing committees and ad hoc
committees as appropriate.
(f) Although the General Manager may delegate some authority to the
Golf Course Superintendent and other sports professionals, the General Manager
shall remain responsible for all operations of the Club.
(g) The Golf Course Superintendent shall report to the General Manager
on all administrative matters including the following: accounting and financial
aspects including payroll, purchasing procedure on approved budgeted items, both
capital and operational, personnel procedures, acquisitions of necessary
licenses and permits, club policy matters, course preparation and care, as well
as course layout and all other physical aspects of the golf course and grounds
and reporting requirements imposed by various regulatory agencies. The General
Manager may delegate to the Golf Course Superintendent responsibility for hiring
(and layoff) of his/her crew, salaries and wages as budgeted, and work
schedules.
(h) The sports professionals shall report to the General Manager on all
administrative matters including but not limited to the following:
implementation of individual contract provisions, accounting and financial
aspects, including payroll, accounting for charges to members billed through the
Club, maintenance and repair of Club space and property allotted to their
operations and purchasing and procedure on approved budget items, both capital
and operations.
(i) The General Manager shall use sound fiscal methods in order to
achieve the budget objective approved by the Board of Directors in the annual
operating budget. The General Manager shall prepare the annual budget in
conjunction with appropriate standing committees.
(j) The General Manager shall discharge such duties as may be assigned
to him/her by the Board of Directors or the President.
ARTICLE IX
COMMITTEES
1. Advisory Board of Governors
Prior to the Turnover Date, an Advisory Board of Governors may be
established to serve as a liaison between management of the Club Facilities and
the members at the Club (the "Advisory Board of Governors"). If established, the
Company will designate all of the members of the Advisory Board of Governors and
all of the members of the Advisory Board of Governors must be Equity Members at
Mountain View Country Club. The Advisory Board of Governors shall have no duty
or power to negotiate or otherwise act on behalf of the members and shall serve
only in an advisory capacity until the Turnover Date except as expressly
provided otherwise.
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In general, the role and responsibility of the Advisory Board of
Governors include the following:
o To advise on any modification to the Plan for the Offering of Memberships
which is materially adverse to the privileges of the Equity Members,
o To advise on the use of the Club Facilities by non-members,
o To advise on modifications to the Rules and Regulations,
o To advise on questions of conduct, mode of dress and other related
disciplinary matters,
o To advise on the needs and interests of the membership,
o To advise management of the Club Facilities in the organization of member
events and programs at Mountain View Country Club, and
o To participate in and attend Club events and programs for the membership.
Management of the Club Facilities will meet with the Advisory Board of
Governors regularly to discuss the operation of the Club Facilities. The members
of Mountain View Country Club are encouraged to utilize the Advisory Board of
Governors by voicing their suggestions and concerns through the Advisory Board
of Governors. Not more than sixty (60) days prior to the Turnover Date the
members of the Advisory Board of Governors appointed by the Company shall
resign, and the Equity Members shall elect nine (9) Equity Members to serve as
the Advisory Board of Governors until the Turnover Date. On the Turnover Date,
these nine (9) Equity Members shall become the Board of Directors of the Club.
The Advisory Board of Governors will terminate on the Turnover Date.
2. Executive Committee
The Executive Committee shall consist of the President as Chairman, the
Vice President, the Secretary, the Treasurer and, in addition, one (1) member of
the Board of Directors. The Executive Committee shall have, to the extent not
restricted by law, the powers of the Board of Directors during the interval
between meetings of the Board of Directors. A quorum shall be a majority of the
members of the Executive Committee. Actions and resolutions of the Executive
Committee shall require unanimous approval of the members present.
3. Nominating Committee
a. At a meeting of the Board of Directors held not more than ninety (90) days
and not less than sixty (60) days prior to the first election of the Board of
Directors by the Equity Members prior to the Turnover Date and at each annual
meeting of the Equity Members after the Turnover Date, the Board of Directors
shall appoint a Nominating Committee. Except for the first election of the Board
of Directors by the Equity Members immediately prior to the Turnover Date, the
Nominating Committee shall consist of five (5) Equity Members, three (3) of whom
shall be members of the Board of Directors. Members of the Nominating Committee
shall serve for a term of one (1) year or until their successors are appointed
and qualified. Unless specifically requested by a majority of the Board of
Directors, the Nominating Committee shall not nominate candidates to fill any
vacancies occurring by reason of death, resignation or otherwise, for any
unexpired term.
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b. The Nominating Committee shall recommend to the Board of Directors,
at least thirty (30) days prior to the Equity Member's annual meeting, the names
of the Equity Members selected by a majority vote of the Nominating Committee to
be submitted to the Equity Members at any annual meeting at which an election to
the Board of Directors is held.
c. Ten percent (10%) or more of the total number of Equity Members
entitled to vote who are not members of the Nominating Committee or the Board of
Directors may also nominate candidates for the Board of Directors by petition
signed by these Equity Members and filed with the Secretary of the Club at least
thirty (30) days prior to the Equity Members' annual meeting. The names of these
nominees, after having been certified by the Secretary or any other officer that
they are qualified for election and have been nominated in accordance with the
provisions of these By-Laws, shall be posted on the official bulletin board at
the clubhouse and shall be included on any proxy mailing to members of the Club.
4. Standing Committees
Each year after the Turnover Date, the President, subject to the
approval of the Board of Directors, shall designate the chairman (who shall be a
Director) and the members of each of the following committees: Membership,
Finance, House, Golf, Tennis, Long-Range Planning, Grievance, and Legal and
By-Laws. Prior to the Turnover Date, any of these committees may be organized in
the sole discretion of the Board of Directors.
a. The Membership Committee shall investigate all applications for
membership other than those memberships to be sold by the Company and shall
report thereon to the Board of Directors with its recommendation as to approval
of each application. The Board of Directors shall make the final determination
whether to approve or disapprove an application.
b. The Finance Committee shall in general supervise, direct and control
all matters pertaining to the Club's finances including, but not limited to, the
placing of insurance, the filing of tax returns, the payment of taxes, the
preparation of the annual operating budget, the preparation of the current
reports for the Board of Directors on the Club's financial condition and the
issuance to Equity Members of a condensed quarterly operating statement. The
Finance Committee shall have the power, with the approval of the Board of
Directors, to direct the General Manager to employ, at the expense of the Club,
such clerical aid and assistance as may be necessary to handle the accounts. The
account books and vouchers shall at all times be open to the inspection of any
member of the Board of Directors.
c. Each of the following committees, subject to the approval of the
Board of Directors, shall formulate programs in coordination with the General
Manager and submit them with recommendations to the Board of Directors for
approval. The General Manager shall have control of the execution of the
programs and recommendations approved by the Board of Directors. Each committee
shall act only as a consultant and advisor to the Board of Directors and may not
act on behalf of the Club or bind it to any actions.
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(i) House Committee
The House Committee shall advise the Board of Directors on matters
concerning the food and beverage operations of the Club, the social activities
and entertainment of members, immediate family members and their guests. The
House Committee shall advise the Board of Directors on matters concerning the
maintenance and repair of all buildings, both interior and exterior, the
supervision of all building construction and the maintenance, repair and
supervision of all water and electrical lines and the facilities and equipment
used in connection therewith, except those directly related to and concerning
the maintenance or repair of the golf course. The trees, lawn, garden and
shrubbery area of the Club's grounds which are not within the scope of the Golf
Committee and the maintenance, repair and construction of wells, water tanks,
pumps, fences and parking lots shall come under the jurisdiction of the House
Committee.
(ii) Golf Committee
The Golf Committee shall be comprised of Golf and Limited Golf Members
and shall advise the Board of Directors on matters concerning the employment of
a Golf Professional and the scope of the operation of the professional, the
promulgation of playing rules for members, immediate family members and their
guests, the programming of golfing events for members, immediate family members
and their guests and the maintenance of members' handicaps. United States Golf
Association rules and regulations shall govern all golf play except where
superseded by local rules.
The Golf Committee shall also advise the Board of Directors on matters
concerning the employment of a Greens Superintendent and the scope of the Greens
Superintendent's operations and the maintenance of the golf course, roads,
facilities and equipment used in connection therewith. No live trees shall be
removed nor shall any alteration be made in the golf course except with the
prior approval of the Board of Directors.
(iii) Tennis Committee
The Tennis Committee shall advise the Board of Directors on matters
concerning the possible employment of a Tennis Professional, the scope of
operations of the professional, the promulgation of playing rules for members,
immediate family members and their guests and the programming of tennis events
for members, immediate family members and their guests. The Tennis Committee
shall advise the Board of Directors on the condition of, and make
recommendations concerning the tennis courts and related equipment and
facilities.
(iv) Long-Range Planning Committee
The Long-Range Planning Committee shall develop a long-range master
plan for capital improvements for the Club including replacements and expansions
of facilities; recommend to the Board of Directors a course or courses of action
in pursuit of the long-range master plan including assignment of priorities
within the plan; and perform other duties as may be otherwise specified by the
Board of Directors.
(v) Grievance Committee
The Grievance Committee shall consist of five (5) members, three (3) of
whom shall be members of the Board of Directors. All written complaints relative
to any member's conduct shall be first referred to the Grievance Committee. The
Grievance Committee shall perform investigations as it deems necessary and shall
present its recommendation to the Board of Directors in executive session. If
the Grievance Committee's recommendation of a formal charge is approved by the
Board of Directors, the committee shall draft and submit to the Board of
Directors a letter of complaint. The Grievance Committee shall have no power of
suspension or expulsion, but may have such powers of censure as may be directed
by the Board of Directors.
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(vi) Legal and By-Laws Committee
The Legal and By-Laws Committee shall be charged with the publication
of the Rules and Regulations and any other regulations and By-Laws of the Club
and, will advise and make recommendations to the Board of Directors concerning
all matters of a legal nature pertaining to the Club and the Club Facilities.
5. Ad Hoc Committees
The President, subject to the approval of the Board of Directors, may,
from time to time, (i) appoint ad hoc committees, with the powers and
composition as the President shall determine, (ii) determine the powers and
composition of the committees and the term of committee chairman and members,
and (iii) replace committee chairmen or members at any time, without cause.
6. Powers of Committees
The several committees shall act only as advisory committees to the
Board of Directors, and the individual members thereof shall have no power or
authority. The chairman of each committee may appoint from the members of the
committee such sub-committees as he or she deems desirable. All sub-committees
shall report directly to the committee as a whole, which shall approve, amend or
disapprove the report of the sub-committee.
7. Terms of Committee Chairmen and Committee Members
Each committee chairman and each member of a committee shall serve
until their replacement is designated as provided in Section 5 of this Article.
ARTICLE X
EQUITY MEMBERSHIPS
1. Number of Equity Memberships
The Club shall issue three classifications of Equity Membership known
as Golf Memberships, Limited Golf Memberships and Social Memberships
(collectively, the "Equity Memberships"). Although Equity Memberships do not
grant to the member any ownership interest in the Club Facilities, each Equity
Membership will represent an equity ownership interest in the Club. A person who
obtains a Golf Membership is sometimes hereinafter referred to as a "Golf
Member" or collectively as "Golf Members", a person who obtains a Limited Golf
Membership is sometimes hereinafter referred to as a "Limited Golf Member" or
collectively as "Limited Golf Members", a person who obtains a Social Membership
is sometimes hereinafter referred to as a "Social Member" or collectively as
"Social Members" and a person who obtains an Equity Membership is sometimes
hereinafter referred to as an "Equity Member" or collectively as "Equity
Members." Each person who owns a residence or homesite in Mountain View will be
required to become a Social Member at the close of escrow upon the purchase of a
residence or homesite at Mountain View and must thereafter maintain at least a
Social Membership at the Club at all times a residence or homesite in Mountain
View is owned.
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The Club reserves the right to issue and make available other
classifications of membership, including but not limited to, a non-equity,
re-callable, and non-transferable license to be known as an Invitational
Membership. If additional classifications of membership are made available, the
Club will establish the number of memberships available, the use privileges of
the additional membership classifications and the membership contribution, dues,
fees, dining minimums and other charges to be paid for these additional
classifications of membership.
In order to provide continued enjoyment of the Club Facilities to all
members, the maximum number of Golf Memberships is limited to three hundred
twenty-five (325). Although there is no limit on the number of Limited Golf
Memberships and Social Memberships, either the Company prior to the Turnover
Date or the Club thereafter may limit the number of Limited Golf Memberships
and/or Social Memberships from time to time.
2. Eligibility for Equity Membership
Golf Memberships and Limited Golf Memberships are being offered to
initial retail purchasers of residences or homesites in Mountain View from the
Company and/or its affiliates who are approved for membership. Any
classification of Equity Membership may also be offered to persons designated by
the Company or the Club who do not own a residence or homesite in Mountain View
who are approved for membership.
Each prospective member must submit an Application for Equity
Membership, be approved for membership and pay the required membership
contribution prior to obtaining a membership.
All property owners in Mountain View are required to maintain at least
a Social Member at Mountain View Country Club. Each purchaser of a residence or
homesite in Mountain View must submit a Social Member Information Profile (if
only a Social Membership is desired) at the time of executing a purchase
agreement to purchase a residence or homesite in Mountain View and will have
until sixty (60) days after the close of escrow on the purchase of a residence
or homesite in Mountain View to upgrade and submit an Application for Equity
Membership (if a Limited Golf Membership or Golf Membership is desired). Upon
closing on the purchase of a residence or homesite in Mountain View, the
purchaser will acquire a Social Membership at the Club and must maintain at
least a Social Membership at the Club at all times while a residence or homesite
is owned in Mountain View. As a Social Member, the purchaser shall have the
privileges described herein and shall pay the dues, fees, dining minimums,
assessments and other charges established by the Club from time to time.
Furthermore, the owner of a residence or homesite in Mountain View shall not be
permitted to resign or otherwise terminate the Social Membership and shall be
required to pay such dues, fees, dining minimums, assessments and other charges
associated with the Social Membership until the closing of the sale or other
transfer of their residence or homesite in Mountain View to another owner.
Initial retail purchasers of previously unsold residences or homesites
in Mountain View from the Company and/or its affiliates will have an opportunity
to upgrade from the Social Membership and apply for an available Golf Membership
or Limited Golf Membership for each residence or homesite purchased in Mountain
View until sixty (60) days after the close of escrow on the purchase of their
residence or homesite in Mountain View. Only one Golf Membership or Limited Golf
Membership may be acquired for each residence or homesite. The number of
memberships available in a particular classification of Equity Membership may be
limited. The membership contribution to be paid for an Equity Membership will be
the membership contribution charged on the date that the purchaser submits the
Application for Equity Membership and pays the required portion of the
membership contribution to the Director of Membership.
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The Company has retained until the Turnover Date the absolute right to
reserve Golf Memberships and Limited Golf Memberships for sale to future initial
retail purchasers of residences or homesites in Mountain View from the Company
and/or its affiliates. The Company may also reserve until the Turnover Date Golf
Memberships and Limited Golf Memberships for sale to any other party designated
by the Company in its discretion. Reserved memberships are not considered as
available memberships and neither the Company nor the Club may be compelled to
issue a reserved membership. Golf Memberships and Limited Golf Memberships not
acquired by the initial retail purchasers of residences or homesites in Mountain
View from the Company and/or its affiliates on or before sixty (60) days after
the close of escrow on the purchase of a residence or homesite in Mountain View
shall be reserved by the Company until the Turnover Date for future sale or may
be offered for sale by the Company as available memberships to any person
designated by the Company, including but not limited to, persons who do not own
a residence or homesite in Mountain View. The Company in its sole discretion may
also make reserved Golf Memberships or Limited Golf Memberships available for
Members desiring to upgrade a membership classification.
Initial retail purchasers of residences or homesites in Mountain View
from the Company and/or its affiliates who do not acquire an available Golf
Membership or Limited Golf Membership on or before sixty (60) days after the
close of escrow on the purchase of their residence or homesite in Mountain View,
and the subsequent purchasers of residences or homesites from persons who are
not Golf Members or Limited Golf Members, may upgrade to an available Golf
Membership or Limited Golf Membership through the regular membership upgrade
process described herein. Therefore, following sixty (60) days after the close
of escrow on the purchase of a residence or homesite in Mountain View, there can
be no guarantee or assurance that a Golf Membership or Limited Golf Membership
will ever subsequently be available and neither the initial retail purchaser nor
any subsequent purchaser of the residence or homesite in Mountain View, will
have any continuing opportunity to obtain a Golf Membership or Limited Golf
Membership. IF AN INITIAL RETAIL PURCHASER OF A RESIDENCE OR HOMESITE IN
MOUNTAIN VIEW FROM THE COMPANY AND/OR ITS AFFILIATES DOES NOT ACQUIRE A GOLF
MEMBERSHIP OR LIMITED GOLF MEMBERSHIP ON OR BEFORE SIXTY (60) DAYS AFTER THE
CLOSE OF ESCROW ON THE PURCHASE OF THEIR RESIDENCE OR HOMESITE IN MOUNTAIN VIEW,
THERE IS NO GUARANTEE OR ASSURANCE THAT SUCH GOLF MEMBERSHIP OR LIMITED GOLF
MEMBERSHIP WILL BE AVAILABLE AT A LATER DATE.
There is no assurance that a membership in the desired classification
will be available at the time of application. If a membership is not available
in a particular classification of membership at the time of application, the
Club will maintain a waiting list consisting of applicants who have submitted an
Application for Membership Privileges and Membership Agreement to the Club.
Those initial purchasers of previously unsold residences or homesites in
Mountain View who were not able to obtain a Golf Membership or Limited Golf
Membership prior to the expiration of the sixty (60) days after the closing of
their purchase because their desired classification of membership was not
available at such time and therefore were placed on the Club's waiting list for
such membership, shall have first priority and shall be placed on the waiting
list for an available membership ahead of all other persons, including other
members of the Club desiring to upgrade and persons who are not members of the
Club, to obtain the desired classification of Club Membership. Other members of
the Club desiring to upgrade their classification of membership shall have
second priority and shall be placed on the waiting list for an available
membership ahead of persons who are not members of the Club and those persons
who are not members of the Club shall have third priority on a waiting list for
an available membership in a particular classification. However, once persons
have been placed on a waiting list in the order described above then within each
particular priority set forth above for each classification of membership, those
persons who have obtained the highest classification of membership (i.e.,
Limited Golf Members have priority over Social Members) shall have the greater
priority for an available membership.
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In the event the desired classification of membership is not available
at the time of application, the Club may defer the payment of the required
membership fee until the desired membership becomes available. The Club may also
require persons on the waiting list for an available membership to obtain
another classification of membership until the desired membership classification
becomes available.
The initial retail purchaser of a residence or homesite in Mountain
View from the Company and/or its affiliates who has either submitted a Social
Member Information Profile or Application for Equity Membership for an available
Golf Membership or Limited Golf Membership may request to activate their
membership use privileges prior to actually closing on the purchase of the
residence or homesite. The Company and the Club, in their discretion, may
permit, upon approval of the member and payment of the required portion of the
membership contribution, dues, fees, dining minimums and other charges, the
purchaser to activate the membership privileges and use the Club Facilities
prior to actually closing on the purchase of the residence or homesite in
Mountain View. However, the continuation of membership privileges at Mountain
View Country Club is conditional upon the closing of the purchase of the
residence or homesite in Mountain View. In the event the purchaser does not
close on the purchase of the residence or homesite in Mountain View, then the
Company and/or the Club may recall the membership and terminate membership
privileges, in which event that portion of the membership contribution
previously paid by the member and a prorata portion of any unused dues and fees
paid in advance will be refunded.
3. Use Privileges of Equity Membership
Each Equity Member shall have the privileges and may use the Club
Facilities as provided by the classification of membership selected by the
member and all membership privileges are subject to these By-Laws and the Rules
and Regulations established by the Club. Upon approval by the Club, payment of
the applicable membership contribution, dues, fees, dining minimums,
assessments, and other charges and compliance with the Rules and Regulations,
Equity Members obtain the following use privileges.
Golf Membership. A Golf Membership allows the member to use the golf,
tennis, swimming, fitness center/spa and clubhouse facilities provided
at Mountain View Country Club and to attend club-sponsored events held
at the Club. Golf Members shall not be charged green fees or court fees
for use of the golf and tennis facilities, but shall pay the applicable
golf cart fees or annual trail fees, and spas treatment fees. Golf
Members shall have such advance sign-up privileges to reserve golf
starting times and tennis court times as may be established by the
Club.
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Limited Golf Membership. A Limited Golf Membership allows the member to
use the golf facilities, clubhouse, the fitness center/spa and
swim/tennis facilities provided at Mountain View Country Club and to
attend club-sponsored events held at the Club. Limited Golf Members
shall have an advance sign-up privilege to reserve golf starting times,
which advance sign-up privilege shall be shorter in duration than the
advance sign-up privilege of the full Golf Memberships. Limited Golf
Members shall pay preferred green fees for the golf facilities, and
such golf cart fees or annual trail fee, and spa treatment fee as
established by the Club from time to time. The Club reserves the right
to further limit or restrict access to the golf facilities by Limited
Golf Members during certain times of the day and certain days of the
week from time to time. Limited Golf Members shall have the same
advance sign-up privilege to reserve tennis court times as Golf Members
and shall not pay court fees for use of the tennis facilities.
Accompanied guests of Limited Golf Members receive preferred guest fees
for use of the golf facilities.
Social Membership. A Social Membership allows the member to use the
dining facilities provided at the clubhouse, the fitness center/spa and
the swim/tennis facilities provided at Mountain View Country Club and
attend club-sponsored non-golf events held at the Club. Social Members
shall have such advance sign-up privileges to reserve tennis court
times as may be established by the Club and shall not be charged court
fees for use of the tennis facilities. Social Members have no access to
the golf facilities except as a guest of a Golf or Limited Golf Member.
All property owners in Mountain View are required to maintain at least
a Social Member at Mountain View Country Club.
In order to provide for the orderly administration of the Club, the
Club reserves the right, from time to time, to promulgate and modify rules
governing access, sign-up privileges and starting times with respect to the
golf, tennis and other recreational facilities provided at the Club in order to
optimize the use of the Club Facilities.
In order to better control golf play during peak playing times on the
golf course, the Club may designate certain times on the golf course as "primary
playing times." During times designated by the Club as "primary playing times",
only one golf starting time may be reserved per membership.
Memberships at Mountain View Country Club shall be issued in the name
of the individual applying for membership in the Application for Equity
Membership. An Equity Membership allows the individual member and immediate
family members (or the designee of a company-held membership and immediate
family members) to use the facilities in accordance with the classification of
membership selected and upon payment of the required dues, fees, dining
minimums, assessments and other charges. The immediate family of a member or
designee includes the spouse of the member or designee who is living in the
member's or designee's home, and unmarried children who are under the age of
twenty-three and either living in the member's or designee's home or attending
school on a full-time basis. The Club reserves the right to restrict access to
the golf and tennis facilities by immediate family members who are children
during peak periods of play.
4. Procedure for Upgrading an Equity Membership
Because of the limited number of Golf Memberships and the reservation
of memberships by the Company, it is unlikely that a Golf Membership will be
available for an Equity Member desiring to upgrade. However, if a higher
classification of membership becomes available, an Equity Member may upgrade to
such higher classification of membership if permitted by the Company and the
Club. An upgrading member shall pay the difference between the actual membership
contribution originally paid, if any, for the classification of Equity
Membership owned by the upgrading member and the membership contribution being
charged for the higher classification of Equity Membership at the time the
member desires to upgrade. In order to downgrade a Golf Membership or a Limited
Golf Membership, the Golf Member or Limited Golf Member must first resign his or
her current membership. Only after the current membership is resigned will the
Club issue a lower classification of membership, if available at that time, to
the member upon full payment of the required membership contribution.
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Notice to Upgrade: Limited Golf Members and Social Members must provide written
notice informing the Club of their desire to upgrade and will then be placed on
a waiting list maintained by the Club for an available membership in the desired
classification. The member may not withdraw the decision to upgrade without
obtaining the Club's prior written consent.
Waiting List: Upon receipt of the notice to upgrade from the Member and approval
by the Club, if the desired membership classification is not available, the Club
will place the Member's name on a waiting list for the desired classification of
membership. The Company has reserved all Golf Memberships and Limited Golf
Memberships for sale to initial retail purchasers of residences or homesites in
Mountain View until the Turnover Date, but may in the Company's discretion use
such reserved Golf Memberships and Limited Golf Memberships for Members seeking
to upgrade a membership classification. Unless the Company releases a reserved
Golf Membership or Limited Golf Membership to be used for an upgrade, the only
Memberships which are available in an upgrade situation are those memberships
that become available as a result of the resignation of a Golf Membership or
Limited Golf Membership which is not being transferred to the subsequent
purchaser of their residence or homesite in Mountain View.
Purchase of a Higher Classification of Membership: If a membership becomes
available in the desired classification of membership, the Club will notify in
writing the next individual on the waiting list according to the priority set
forth herein. The upgrading member shall pay the amount required for upgrading
to the higher classification of membership within fifteen (15) days after the
date of the Club's notice. At that time, the member assumes responsibility for
all dues, fees, dining minimums, assessments and other charges associated with
the higher classification of membership.
Resignation of the Lower Classification of Membership: At the time of upgrade,
the lower classification of membership shall be considered terminated and
unissued and may be resold by the Company prior to the Turnover Date and
thereafter by the Club. The member will not be responsible for dues, fees,
dining minimums, assessments or any other charges accruing in the lower
classification of membership after the date of resignation and will not receive
a refund of any amount when the lower classification of membership is reissued
by the Company or the Club, as the case may be.
5. Memberships May Be Held In The Name Of A Company, Partnership, Trust Or Other
Form Of Multiple Ownership
The Club may allow from time to time an Equity Membership to be held in
the name of a company, corporation, limited liability company, partnership,
trust or other form of multiple ownership (collectively, the "company"). If
permitted by the Club, the company, as the actual member and owner of the
membership, shall designate one person as the designee of the membership use
privileges. Immediate family members of the designee may also use the
facilities. Either the company or the designee of the membership use privileges
must own a residence or homesite in Mountain View. The designee of the
membership use privileges must be an officer, director, partner, owner or
employee of the company (or a trustee, donor or principal beneficiary of the
trust), must submit an application and be approved. The company shall be
responsible for the payment of the required membership contribution which may be
higher than the membership contribution charged for a membership held by an
individual and both the company and the designee of the membership use
privileges shall be jointly and severally liable for the payment of all dues,
fees, dining minimums and other charges incurred by the designee, immediate
family members and their guests. The designee shall have the same use and voting
privileges and shall pay the same dues, fees, dining minimums and other charges
as any other member in the same classification of membership. The company may
not change the designee of the membership more than one time in any calendar
year, and any such change shall require prior Company approval in writing and be
subject to a designation change fee and such terms and conditions as may be
established by the Club from time to time.
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The Club may limit the number of companies that acquire a membership in
a particular classification from time to time.
6. Membership Contribution
Persons acquiring an Equity Membership at Mountain View Country Club
shall pay the membership contribution set forth in the Application for Equity
Membership. Until the Turnover Date, the Company will establish the required
membership contribution and the manner of payment of the membership contribution
for all Equity Memberships. In addition, the membership contribution for
resigned Equity Memberships, which are available for reissuance by the Club
because of the resignation of an Equity Membership, shall be equal to the
membership contribution then currently established by the Club for a previously
unissued Equity Membership. After the Turnover Date, the Board of Directors of
the Club will establish the required membership contribution and the manner of
payment of the membership contribution for all Equity Memberships.
The failure to pay all amounts of the membership contribution when due
will be cause for suspension of the privileges of membership at the Club.
7. Voting
Equity Membership allows the member to vote on all matters to be voted
upon by the Equity Members of the Club. However, Equity Members will not be
permitted to vote on any Club matters until immediately prior to the Turnover
Date unless otherwise specifically provided in the Plan Documents (as defined in
the Subscription Agreement). After the Turnover Date, only those Equity Members
with golfing privileges shall vote on any matter relating to the ownership,
operation, use and/or maintenance of the golf facilities. Full Golf Members
shall have two (2) votes and Limited Golf Members shall have one (1) vote for
matters related to the golf facilities. For matter unrelated to the golf
facilities, all members shall have one vote for each membership.
8. Application for Membership
a. Until the Turnover Date, all applicants acquiring a Golf Membership
or Limited Golf Membership being initially sold by the Company must be approved
by the Company. After the Turnover Date, all applicants acquiring a Golf
Membership or a Limited Golf Membership or a resigned Golf Membership or Limited
Golf Membership being reissued by the Club must be approved by the Club.
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b. An initial purchaser of a residence or homesite in Mountain View
from the Company and/or its affiliates who does not desire to upgrade to a Golf
Membership or Limited Golf Membership must submit to the Director of Membership
at Mountain View Country Club a fully completed and signed Social Member
Information Profile and those persons who desire to acquire a Golf Membership or
Limited Golf Membership must submit to the Director of Membership at the Club a
fully completed and signed Application for Equity Membership and the required
membership contribution then due. The Application for Equity Membership must be
completed in full and must be accompanied by the membership contribution then
due as set forth in the Application for Equity Membership. Upon receipt of the
Application for Equity Membership and the applicable membership contribution, a
determination will be made whether the applicant has satisfied the relevant
conditions of membership. All applicants will be evaluated on the basis of their
interest in Mountain View Country Club, their financial responsibility, and
their compatibility with other members at the Club.
c. If approved for membership at the Club, the member agrees to be
bound by the terms and conditions of these By-Laws and the Plan Documents, as
amended from time to time and irrevocably agrees to fully substitute the
membership privileges acquired pursuant to the Plan Documents for any present or
prior rights in or to use the Club Facilities.
9. Membership Certificates
a. Every Equity Member who has paid the required membership
contribution in full shall receive a membership certificate. Each membership
certificate shall be in a form approved by the Board of Directors and shall be
subscribed by the President and Secretary and under the seal of the Club.
b. Membership certificates are not redeemable or transferable except as
specifically provided by these By-Laws and then only through the Treasurer of
the Club. Whenever any person shall cease to be an Equity Member, whether by
death, resignation, recall, expulsion or other provisions of these By-Laws, such
cessation shall operate to authorize the Treasurer of the Club to effectuate the
redemption, cancellation or transfer of the Equity Membership in accordance with
and in the manner prescribed by these By-Laws.
10. Resignation-Transferability of Memberships
a. Equity Memberships are not transferable or assignable except as
provided in this Section 10 or Section 11 hereof. Equity Members may not sell,
transfer or otherwise assign their memberships except to the Club. Equity
Memberships held by those persons who own a residence or homesite in Mountain
View shall automatically be resigned once such member no longer owns a residence
or homesite in Mountain View.
b. Golf Members and Limited Golf Members who desire to resign their
membership privileges must give the Club written notice of their intention to
resign membership privileges. The resignation of membership privileges must be
on a form provided by the Club, which may be obtained from the Membership
Office, and should be submitted to the Director of Membership. Memberships that
have been resigned will only be reissued by the Club in accordance with the
procedures set forth in the Plan Documents. Any attempt to transfer or reassign
a membership at Mountain View Country Club, either voluntarily, involuntarily or
by operation of law, which is not in accordance with the Plan Documents shall be
null and void and no person or entity may obtain a membership except as provided
therein. A Golf Member or Limited Golf Member who owns a residence or homesite
in Mountain View may resign their Golf Membership or Limited Golf Membership and
receive a partial refund as further described below, provided however, that such
owner must always remain at least a Social Member at Mountain View Country Club
and pay all of the required dues, fees, dining minimums, assessments and other
charges associated with the Social Membership until the closing of the sale or
other transfer of their residence or homesite in Mountain View to another owner.
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c. Social Members who own a residence or homesite in Mountain View may
not resign or otherwise terminate their Social Membership and are required to
maintain the Social Membership in good standing at all times and to pay to the
Club all required dues, fees, dining minimums, assessments and other charges
associated with the Social Membership until the closing of the sale or other
transfer of the member's residence or homesite in Mountain View to another
owner. Therefore, Social Memberships at the Club are not transferable and
terminate upon the closing of the sale or other transfer of the residence or
homesite in Mountain View to another owner or on such earlier date as otherwise
set forth in the Plan Documents.
d. The Club shall maintain two resigned membership lists. One resigned
membership list will be maintained for resigned Golf Memberships and the other
resigned membership list will be maintained for resigned Limited Golf
Memberships. Upon the resignation of membership privileges, the resigned Golf
Membership or Limited Golf Membership will be placed on the appropriate resigned
membership list in the order of resignation on a first-come, first-served basis.
In order to be placed on a resigned membership list, the resigned member must
have paid the required membership contribution and all dues, fees, dining
minimums, assessments and other charges in full. Resigned members who have been
placed on a resigned membership list must continue to pay the required dues,
fees, dining minimums, assessments and other charges as they become due and
failure to do so may result in being removed from the resigned membership list
or suspension of the privileges of membership. Once placed on the resigned
membership list, the resigned member will not be permitted to rescind the
resignation of membership privileges and the resigned membership must be
reissued by the Club at the time the membership has rotated to the top of the
resigned membership list as described below.
e. Until the initial issuance of all of the Golf Memberships permitted
to be issued at Mountain View Country Club, every fourth Golf Membership issued
will be the first resigned Golf Membership on the resigned membership list
maintained by the Club for Golf Memberships, provided a resigned Golf Membership
is on the resigned membership list at that time. The other three Golf
Memberships issued will be issued from the unissued Golf Memberships. After the
initial issuance of all of the Golf Memberships permitted to be issued at
Mountain View Country Club, then every Golf Membership issued will be the next
resigned Golf Membership on the resigned membership list maintained by the Club
for Golf Memberships.
f. Until the initial issuance of all of the Limited Golf Memberships
permitted to be issued at Mountain View Country Club, every fourth Limited Golf
Membership issued will be the first resigned Limited Golf Membership on the
resigned membership list maintained by the Club for Limited Golf Memberships,
provided a resigned Limited Golf Membership is on the resigned membership list
at that time. The other three Limited Golf Memberships issued will be issued
from the unissued Limited Golf Memberships. If the Company and the Club are not
offering Limited Golf Memberships for initial issuance, then every Limited Golf
Membership issued will be the next resigned Limited Golf Membership on the
resigned membership list maintained by the Club for Limited Golf Memberships.
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g. As an exception to the general rule for the reissuance of Golf
Memberships and Limited Golf Memberships described above, Golf Members and
Limited Golf Members who own a residence or homesite in Mountain View shall have
the opportunity for the thirty-day period immediately following the closing of
the sale of their residence or homesite in Mountain View to arrange for the Club
to reissue their membership to the purchaser of their residence or homesite in
Mountain View. Golf Members and Limited Golf Members shall have this opportunity
even though all of the memberships in their classification of Equity Membership
have not been issued and even though a resigned membership list for their
classification of membership or a waiting list of persons desiring to obtain
their classification of membership has been established. In order for the
subsequent purchaser of the residence or homesite in Mountain View to be
eligible to apply for the resigned member's Golf Membership or Limited Golf
Membership, the resigned member must have paid the membership contribution and
all of the dues, fees, dining minimums, assessments and other charges in full at
the time of transfer. The purchaser of the resigned member's residence or
homesite in Mountain View must submit an Application for Equity Membership, be
approved for membership and pay the membership contribution charged at that
time. The reissuance of a Golf Membership or Limited Golf Membership to a
subsequent purchaser of a resigned member's residence or homesite in Mountain
View, as described herein, is excluded from and is not included in determining
when every fourth membership or every membership has been issued.
Since property owners in Mountain View must maintain at least a Social
Membership, the Club will reissue a Social Member's membership to the subsequent
owner of their property.
If a Golf Member or Limited Golf Member resigns from the Club and is
not selling his or her residence or homesite in Mountain View or does not
arrange for the purchaser of his or her residence or homesite in Mountain View
to acquire his or her Golf Membership or Limited Golf Membership, then the
membership shall be placed on the appropriate resigned membership list described
above for reissuance by the Club and there is no guarantee that the Club will
reissue the membership or that the resigned member will be able to recover any
portion of the membership contribution paid for their membership, except as may
be otherwise provided in the Subscription Agreement.
h. The Club shall refund to the Equity Member a pro-rata portion of any
unused dues, fees, dining minimums and other charges paid in advance beginning
with the first full month after the Equity Membership is reissued by the Club to
a new member.
i. Equity Members may take their memberships with them to another
residence or homesite they own in Mountain View. If a member wants to take the
Equity Membership to a residence or homesite which is being sold by a Golf
Member or Limited Golf Member, the prior written approval of both members to the
transfer must be delivered to the Club on such forms as may be provided by the
Club from time to time.
j. Upon the reissuance of a resigned member's Golf Membership or
Limited Golf Membership (excluding the transfer of a membership to a surviving
spouse or an heir upon the death of an Equity Member or the transfer of a
membership to a spouse upon the legal separation or divorce of a member), the
Club shall pay to the resigned Golf Member or Limited Golf Member a Transfer
Payment equal to a certain percentage (as set by the Company or the Club from
time to time) of the membership contribution charged for the membership
classification of the resigned membership at the time of reissuance of the
resigned membership to a new member, provided that such amount does not exceed
the amount originally contributed tby the resigned member. The Transfer Payment
shall be paid to the resigned member within thirty days after the resigned
member's membership is reissued by the Club to a successor member who has been
approved for membership and paid the required membership contribution in full to
the Club and the resigned member has surrendered their membership certificate to
the Club.
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k. In order for a resigned Equity Member to be paid the transfer
payment described above, the required membership contribution and all dues,
fees, dining minimums, assessments and other charges must be paid in full. The
Club will deduct from the amount to be paid to a resigned member any amount that
the resigned member owes to the Company or to the Club.
l. The difference between the membership contribution paid by a new
member and the transfer payment paid to a resigned member shall be paid to the
Company if the resigned membership is reissued prior to the Turnover Date and
shall be retained by the Club if the resigned membership is reissued after the
Turnover Date.
m. The Club reserves the right to change the amount of the transfer
payment and the terms of payment of the transfer payment for unissued
memberships in the Club, including resigned memberships reissued by the Club.
Any such change will not affect, in any way, the rights of members of the Club
who have obtained a membership prior to the time the change takes effect. The
Club shall have this right after the Turnover Date.
n. The Club is not obligated to reissue a resigned Equity Membership or
repay any portion of membership contribution under any circumstances other than
those described above. However, the Club may repay a member's membership
contribution or any portion thereof in such hardship situations deemed
appropriate by the Club, in its discretion.
o. Golf Members and Limited Golf Members who have resigned membership
privileges shall continue to be responsible for dues, fees, dining minimums and
other charges associated with their resigned membership until the earlier of:
(i) the reissuance of the resigned membership by the Club, or (ii) six months
after the effective date of membership resignation. Social Members shall pay
dues, fees and other charges until the closing of the sale or other transfer of
their residence or homesite in Mountain View to another owner. The resigned
member shall be permitted to use the Club Facilities as long as such dues, fees,
dining minimums and other charges continue to be paid.
11. Transfer upon Death or Divorce
a. Upon the death of an Equity Member who owns a residence or homesite
in Mountain View, the membership will automatically pass to the member's
surviving spouse, if any, provided the surviving spouse is the owner of the
residence or homesite in Mountain View, without the payment of any additional
membership contribution. If a deceased member is not survived by a spouse or the
surviving spouse is not the owner of the deceased member's residence or homesite
in Mountain View, then the heir of the deceased member's residence or homesite
in Mountain View may continue with the deceased member's membership without the
payment of any additional membership contribution, subject only to the approval
of the Club and the payment by the heir of all outstanding amounts owed to the
Club (including all dues, fees, dining minimums, assessments and other charges
associated with the deceased member's membership for the intervening time
between the date of the member's death and the date of the application by the
heir). The continuation of a deceased member's membership by a surviving spouse
or an heir of the deceased member's residence or homesite does not require a
transfer payment by the Club and the opportunity to be paid the transfer payment
upon the subsequent reissuance of the deceased member's membership by the Club
as further described herein shall be transferred to the surviving spouse or heir
that continues with the membership.
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Upon the death of a member at Mountain View Country Club who does not
own a residence or homesite in Mountain View, the membership privileges shall be
transferred to the member's surviving spouse, without the payment of any
additional membership contribution. If the deceased member is not survived by a
spouse or the surviving spouse does not desire to continue membership
privileges, then the membership of the deceased member shall be resigned and
placed on the appropriate resigned membership list and reissued by the Club on
the same basis as any other resigned membership. In this event, the obligation
to pay dues, fees, dining minimums, assessments and other charges associated
with the deceased member's membership shall terminate upon the death of the
member.
b. In the event an Equity Member is legally separated or divorced,
title to the membership, including all rights and benefits given to the holder
thereof, shall continue and vest in the spouse awarded the residence or homesite
in Mountain View. In the event the Equity Member does not own a residence or
homesite in Mountain View, then title to the membership, including all rights
and benefits given to the holder thereof, shall continue and vest in the spouse
awarded the membership in a written separation agreement or final divorce
decree. Until written notice has been provided to the Club, each spouse shall be
jointly and severally responsible for the payment of all dues, fees, dining
minimums, assessments and other charges associated with such membership. The
Club will not be involved in any dispute and reserves the right to suspend all
membership privileges in the event of disagreement over which spouse retains the
membership privileges. The Club shall not pay any transfer payment upon the
legal separation or divorce of a member.
12. Privileges of Tenants
Golf Members, Limited Golf Members and Social Members, who own a
residence in Mountain View and lease that residence in Mountain View for at
least four months, have the opportunity to designate the tenant of their
residence in Mountain View as the beneficial user of their membership use
privileges at Mountain View Country Club. This opportunity is subject to, and
may be modified by, the Rules and Regulations established by the Club from time
to time. The tenant must submit an application to the Club, pay a tenant
administrative fee to the Club and be approved prior to use of any of the Club
Facilities. Applications submitted by tenants shall be evaluated on the same
basis as any other application submitted by a member who does not own a
residence or homesite in Mountain View. A tenant who is designated as the
beneficial user of the member's membership use privileges must comply with all
rules established by the Club and is allowed, upon payment of all required use
fees and other charges (including but not limited to, green fees, golf cart
fees, tennis court fees and other personal charges incurred at the Club), to the
same use privileges to use the facilities provided at the Club as the member who
owns the residence in Mountain View being leased.
During the time an Equity Member has designated a tenant to use their
membership use privileges, the member shall have no privileges to use the Club
Facilities by virtue of the membership at the Club, except the dining facilities
provided at the clubhouse and shall be required to continue paying the
applicable dues associated with their particular Equity Membership. A membership
must be acquired for each residence for which the member desires a tenant to be
able to use the Club Facilities. The member shall continue to be responsible for
all charges incurred by their tenant which remain unpaid after the customary
billing and collection procedure of the Club and for the conduct of each tenant.
The Club reserves the right to establish other rules relating to the use of the
Club Facilities by tenants from time to time.
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ARTICLE XI
OTHER MEMBERSHIP/USE PRIVILEGES
1. Invitational Memberships
The Club may issue recallable non-equity, non-transferable licenses
known as "Invitational Memberships." The privileges of Invitational Memberships
will be established by the Board of Directors of the Club from time to time and
will be described in a separate Invitational Membership Plan or Application for
Invitational Membership. Invitational Memberships are not entitled to vote on
any Club matters and will not have any equity or ownership interest in the Club
or the Club Facilities.
The maximum number of Invitational Golf Memberships at the Club shall
be the difference between three hundred twenty-five and the actual number of
dues-paying Golf Memberships issued at Mountain View Country Club on the first
day of each membership year.
2. Use of Other Club Facilities
The Company and the Club reserve the right, but have no obligation, to
enter into reciprocal use arrangements with other clubs, including but not
limited to, other clubs owned, controlled or managed by the Company, the Club or
their affiliates, which would allow members at Mountain View Country Club to use
the facilities at other clubs and the members at other clubs to use the
facilities provided at Mountain View Country Club. The terms of such use and the
fees to be paid for the reciprocal use privileges will be established by the
Company or the Club from time to time. The reciprocal use privileges may extend
and continue until the Turnover Date and may be terminated at any time in the
discretion of the Company.
3. Honorary Memberships
A limited number of Honorary Memberships may be issued to persons
designated by the Club or the Company from time to time. These memberships are
in addition to all other memberships to be issued at Mountain View Country Club
and shall be available on terms and conditions and allow such privileges as
shall be established by the Club and the Company. Honorary Memberships may be
changed at any time by either the Club or the Company (depending on which entity
designated the user as an Honorary Member initially) and a new user designated
to use the membership privileges from time to time. Notwithstanding the
foregoing, all rights of the Company to designate Honorary Memberships shall
terminate on the Turnover Date.
ARTICLE XII
GUEST PRIVILEGES
Guests of members may be extended guest privileges subject to
applicable guest fees, charges and the Rules and Regulations established from
time to time by the Board of Directors. Guest privileges may be denied,
withdrawn or revoked at any time for reasons considered sufficient by the Board
of Directors. All guests shall be either houseguests or day guests. A houseguest
is defined as a guest temporarily residing in a member's residence in Mountain
View. All other guests of a member shall be considered day guests.
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Day guests must be accompanied by the member at all times when using
the Club Facilities, unless otherwise permitted by the Club from time to time.
Day guests will be charged guest fees established by the Board of Directors for
their use of the Club Facilities.
Houseguests are permitted to use the Club Facilities unaccompanied by
the member. In addition to all use fees as established by the Board of
Directors, houseguests may be charged a temporary houseguest membership fee for
each one week period.
ARTICLE XIII
DUES, FEES AND CHARGES
The Club's membership year will constitute the twelve-month period
commencing November 1 and ending on October 31, unless otherwise established by
the Club.
The Board of Directors of the Club will determine the amount of dues,
fees, dining minimums and other charges to be paid by each member from time to
time. The amount of dues, fees and other charges payable by each member will
depend upon the classification of membership selected. Members will also be
obligated to pay all applicable sales taxes and/or admission taxes imposed by
the State of California on dues, fees, dining minimums, assessments and other
charges established by the Club. The payment of dues, fees, charges, dining
minimums, state taxes, service charges and other personal charges that the Club
may establish from time to time is required to obtain and maintain membership
privileges at Mountain View Country Club and is not considered either an
operating assessment or capital assessment. Until the Turnover Date dues will be
commensurate with the nature of the facilities completed and their availability
for use. After the Turnover Date, dues may be established at any level deemed
appropriate by the Board of Directors of the Club. Commencing with the first
membership year after all of the Club Facilities have been completed and open
for use for a period of at least twelve months, the dues charged to Social
Members shall not increase on a cumulative basis by more than the greater of:
(i) the increase in the consumer price index (as published by the U.S Department
of Labor, Bureau of Labor Statistics, All Urban Consumers, U.S. City Average,
All Items, 1982-84=100), or (ii) eight percent. The amount of dues payable by
each member will depend upon the classification of membership selected. In order
to properly maintain the Club Facilities and continue to offer members quality
facilities and services, dues of Golf Members and Limited Golf Members will be
based on member demand, market conditions and other pertinent factors.
The Club is also obligated to pay assessments to the Mountain View
Master Property Owners Association, Inc. pursuant to the Declaration of Master
Covenants for Mountain View Country Club recorded in the Public Records of
Riverside County.
After the Turnover Date, the obligation to pay dues is not dependent on
the availability of all the facilities or the frequency of use. Repair and
maintenance of the facilities and/or other occurrences may make it necessary for
the Club to change hours of use or restrict the use of the facilities or to
close certain facilities temporarily. The Club will not reduce or suspend dues
during the time when the facilities, in whole or in part, are not available.
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Dues shall be due and payable in advance, on or before the first day of
each membership year, unless otherwise established by the Club. The current dues
for use of the Club Facilities are set forth on the Schedule of Dues, Fees and
Charges. The amount of dues for subsequent years is subject to change.
Monthly statements reflecting all fees and charges incurred by the
member and all payments received by the Club from the member will be closed on
the last day of each month and will normally be mailed to the members of the
Club within five (5) days. All statements are due and payable upon receipt and
in no event later than the twentieth day of the month in which the statement was
mailed. Interest will be added to all outstanding balances in accordance with
the Rules and Regulations if the statement is not paid by the twentieth day of
the month. In addition, the Club reserves the right to place any member whose
account is not paid in full by the twentieth day of the month on a cash-only
basis for any or all services and merchandise otherwise provided for credit at
any time.
The failure of any member of the Club to timely pay all fees and other
charges by the twentieth day of the month and the failure to pay dues and all
amounts of the membership contribution when due shall constitute grounds for
suspension of the privileges of membership at the Club. In the event a person
who owns a residence or homesite in Mountain View fails to pay the required
dues, fees, dining minimums, assessments and other charges, then the Club may
suspend the privileges of membership or take any other disciplinary action
relating to his or her membership in the Club. Upon suspension of the privileges
of a membership held by a person who owns a residence or homesite in Mountain
View, the dues obligation of the Social Membership shall continue to accrue
until the closing of the sale or other transfer of such individual's residence
or homesite in Mountain View to another owner. In the event the privileges of a
membership are suspended, the member will no longer have any membership
privileges to use the Club Facilities and will not be paid a transfer payment or
be entitled to a refund of any portion of the membership contribution previously
paid until any delinquency has been cured.
Each member shall be legally and financially responsible for his or her
acts or omissions as well as those of the member's immediate family, guests and
tenants.
ARTICLE XIV
DELINQUENCIES
1. Statement
Monthly statements reflecting all activity including all fees and
charges incurred by the member and all payments received by the Club from the
member will be closed on the last day of each month and will normally be mailed
to the members of the Club within five days. All statements are due and payable
upon receipt and in no event later than the twentieth day of the month in which
the statement was mailed. Interest will be added to all outstanding balances in
accordance with the Rules and Regulations if the statement is not paid by the
twentieth day of the month. Any member failing to pay his or her indebtedness to
the Club by the twentieth day of the month shall be subject to action as is
determined appropriate by the Board of Directors. The failure of any member to
pay dues within the prescribed period shall constitute grounds for suspension of
the privileges of his or her membership.
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2. Liens
No member shall be permitted to create, incur, assume or suffer to
exist upon the member's membership any liens or security interests whatsoever
except to the extent the lien or security interest represents a purchase money
lien and security interest incurred as a result of acquiring the membership and
is approved in advance by the Club. In the event of foreclosure of the purchase
money lien or security interest incurred as a result of acquiring the
membership, the party foreclosing on the membership must give the Club written
notice of the pending foreclosure, and the Club shall have the right to
repurchase the membership before the foreclosure on the same basis as if the
member had resigned membership privileges in the Club.
ARTICLE XV
DISCIPLINE
Any member, immediate family member or guest of the member whose
conduct shall be deemed by the appropriate committee to be improper or likely to
endanger the welfare, safety, harmony or good reputation of the Club or its
members, may be reprimanded, fined or suspended from the Club by action of the
Board of Directors. The Board of Directors shall be the sole judge of what
constitutes improper conduct or conduct likely to endanger the welfare, safety,
harmony or good reputation of the Club or its members.
1. Board Action
A member shall be notified of any proposed disciplinary action and
shall be given an opportunity to be heard by the Board of Directors to show
cause why the member should not be disciplined in accordance with this Article.
If the member desires to be heard, the member must provide a written request for
a hearing to the General Manager within seven (7) days after the date of the
Club's notice to the member of the proposed action. Upon receipt of the written
request for a hearing, the Board of Directors shall set a time and date for such
hearing, which shall in no event be less than five (5) days after such request.
Depending on the severity of the violation in the discretion of the Board of
Directors, the membership/use privileges of the offending member, designee or
immediate family member may be suspended pending a final resolution.
2. Suspension
The Board of Directors may suspend a member and/or any immediate family
member or guest of the member from some or all of the privileges of the Club for
a period of up to one (1) year if the appropriate committee of the Club and the
Board of Directors determine that the member's conduct was improper or likely to
endanger the welfare, safety, harmony or good reputation of the Club or its
members. Dues and other obligations shall accrue during such suspension and must
be paid in full when due.
3. Resignation-Request by Board of Directors
The Board of Directors may, by a two-thirds (2/3) vote of the Directors
present, request the resignation of any member of the Club for cause deemed
sufficient by the Board of Directors.
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ARTICLE XVI
CORPORATE SEAL
The Corporate Seal of the Club shall be circular in form and shall have
inscribed thereon the name of the corporation and the words "seal",
"California", "Not-For-Profit Corporation" and the year of incorporation. The
corporate seal shall be in the possession of the Secretary of the Club and be
affixed by the Secretary to all documents relating to the official acts of the
Club, as authorized by the Board of Directors.
ARTICLE XVII
MISCELLANEOUS
1. Fiscal Year
The fiscal year of the Club shall commence on the first day of November
and conclude on the last day of October.
2. Assessments
There will be no assessments for operating deficits prior to the
Turnover Date. The term "operating deficits" shall mean that amount by which all
operating cash expenses incurred by the Club (whether direct, indirect or
apportioned) in connection with the normal course of conducting and operating
all of the Club Facilities and providing all of the services at the Club
determined in accordance with generally accepted accounting principles, applied
consistently from year to year (excluding depreciation expense and amortization
expense) shall exceed all cash revenue received by the Club including all
interest earned (excluding all membership contributions received from the
issuance of memberships) determined in accordance with generally accepted
accounting principles, applied consistently from year to year. However, the
Board of Directors of the Club may find it necessary to make assessments, in
addition to dues, to cover any operating deficits that occur after the Turnover
Date. Any assessments imposed by the Board of Directors of the Club after the
Turnover Date to cover operating deficits shall be prorated among all
outstanding dues-paying Equity Memberships based on the annual dues charged to
each such Equity Member during the year in which the operating deficit occurs.
Prior to the Turnover Date, there will be no assessments for capital
expenditures. After the Turnover Date, there will be no assessments for capital
expenditures to the Club Facilities unless such capital assessment is approved
by a majority of the members of the Board of Directors of the Club and sixty
percent of all of the members that would be required to pay such capital
assessment. All proposed assessments for capital expenditures to the golf
facilities shall be paid equally by all Golf Members and Limited Golf Members.
Social Members shall not pay any assessment for capital expenditures to the golf
facilities provided at the Club. All other assessments for capital expenditures
shall be paid equally by all Equity Members.
The Club will make no capital or operating assessment nor charge any
dues, fees, dining minimums, assessments or other charges on any Equity
Membership during the period while the Equity Membership is held for sale by the
Company, including but not limited to, those resigned Equity Memberships which
the Company purchases from the Club. Invitational Licenses will not be assessed
for capital assessments or operating assessments.
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Failure to pay any assessment shall subject an Equity Member to the
same penalties as failure to pay any other indebtedness to the Club.
3. Conflict Between By-Laws and Articles Of Incorporation
In the event of conflict between the terms of these By-Laws and
Articles of Incorporation, the Articles of Incorporation shall prevail.
4. Dissolution of Club
In the event of dissolution or final liquidation of the Club after the
Turnover Date, all of the property and assets of the Club, after payment of its
debts, shall be distributed, as permitted by applicable California law and a
court having jurisdiction, among the holders of the outstanding dues-paying
Equity Memberships of the Club in proportion to the value of their Equity
Memberships as fixed by the Club at that time.
5. Indemnification by the Club
The Club shall indemnify and hold harmless each person who shall serve
at any time hereafter as a member of the Board of Directors, the Advisory Board
of Governors or as an officer of the Club from and against any and all claims
and liabilities to which such person shall become subject by reason of his or
her having been, or hereafter being, a member of the Board of Directors, the
Advisory Board of Governors or an officer of the Club, or by reason of any
action alleged to have been taken or omitted by him or her as such member of the
Board of Directors, the Advisory Board of Governors or officer of the Club, and
shall reimburse each such person for all legal and other expenses reasonably
incurred by him or her in connection with any such claim or liability to the
fullest extent permitted by applicable California law. However, no such person
shall be indemnified against, or be reimbursed for, any expense incurred in
connection with any claim or liability arising out of his or her unlawful or
willful misconduct.
ARTICLE XVIII
AMENDMENTS
1. By Board of Directors
Prior to the Turnover Date, these By-Laws may be amended by a majority
of all of the members of the Board of Directors of the Club, provided that the
amendment or alteration is approved by the Company and is set forth in the
notice of the meeting at which the matter is to be acted upon and provided that
the amendment is not materially adverse to the rights of the Equity Members of
the Club.
2. By Equity Members
Subject to the restrictions set forth in Section 3 below, these By-Laws
may be altered, amended, or repealed or new By-Laws may be adopted except as
otherwise provided herein, only by: (a) a majority vote of all of the members of
the Board of Directors, and (b) a majority of the votes cast by the Equity
Members in person or by proxy at any duly called and constituted annual or
special meeting of the Equity Members of the Club at which a quorum of the
Equity Members is present either in person or by proxy. The proposed amendment
must be set forth in the notice of the meeting.
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3. Restrictions on Amendments
Prior to the Turnover Date, neither the Club nor the Equity Members may
change, modify or delete the provisions of these By-Laws and the Plan Documents
without the prior written consent of the Company.
After the Turnover Date, the following provisions may only be changed,
modified or deleted if such change is approved by a majority of all of the
members of the Board of Directors of the Club and seventy-five percent of all of
the members in each classification of Equity Membership that would be affected
by such change or modification: (a) the total number of Equity Memberships or
the number of members allowed in any particular classification of membership as
described in the Plan Documents as of the Turnover Date, (b) the restrictions or
limitations on assessments on Equity Members as described in the Plan Documents
as of the Turnover Date, (c) the eligibility to acquire an Equity Membership as
described in the Plan Documents as of the Turnover Date, (d) the rights of
tenants to use the Club Facilities as described in the Plan Documents as of the
Turnover Date, and (e) this Section 3, Article XVIII of the By-Laws of the Club
as of the Turnover Date.
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