ARTICLES OF INCORPORATION OF THE HIGHLANDS COMMUNITY ASSOCIATION, INC.
We, the undersigned, hereby associate to form a non-st ock corporation under the provisions of Chapter 10 of Title 13.1 of the Code of Virginia, as amended, and to that end adopt the following Articles of Incorporation for such Corporation: ARTICLE I The name of the Corporation is TH E HIGHLANDS COMMUNITY ASSOCIATION, INC.
ARTICLE II The purposes and powers of the Corporation are as follows: (a) To manage, maintain, and care fo r the Common Properties in the planned community development known as The Highlands, lo cated in Chesterfield County, Virginia, and to assess, collect and disburse the charges due the Corporation from its members, as hereinafter provided.
(b) To acquire (by gift, purchase or ot herwise), own, hold, improve, build upon, operate, maintain, sell, lease, transfer, mortgage , encumber, dedicate for public use or otherwise dispose of real or personal property in connecti on with the affairs of the corporation, but only in accordance with the purposes of the Corporation.
(c) To do any and all things and acts that the Corporation, from time to time, in its discretion, may to be for the be nefit of the Propertie s and the owners inhabitants thereof or advisable, proper or convenient the promotion of the peace, health, comfort, safety or general welfare of the owners and inhabitants thereof; an d further, the Corporatio n shall have the powers, rights and privileges to conduct any and all bus iness that a Corporation organized under the Virginia Non-Stock Corporation Act by law may now or hereafter have or exercise and that is not required to be specifically set forth in th ese Articles; provided, howev er, that notwithstanding
r the Virginia Non-Stock Corporation Act by law may now or hereafter have or exercise and that is not required to be specifically set forth in th ese Articles; provided, howev er, that notwithstanding any other provisions of these Articles, the Co rporation shall not ca rryon any activities not permitted to be carried on by a homeowners asso ciation exempt from federal income tax under Section 528 of the Internal Revenue Code of 1954 or the corresponding provision of any future Internal Revenue law.
(d) The Corporation is not organized for prof it, nor shall it have any power to issue certificates of stock or ay divide nds, and no part of the net earnings or assets of the Corporation shall inure to the benefit of or be distributed, upon dissolution or otherwise, to any member of the Corporation, Director Officers of other pr ivate person. The Corpor ation may enter into contracts with the Proprietors or with any ot her person (including any Member, Officer, or Director), and may pay compensation in r easonable amounts for services rendered.
ARTICLE III Provisions relating to the memb ers of the Corporation are: (a) The members of the Corporation shall be every Owner nd Residential Tenant as defined in the Covenants.
(b) There shall be the following two ,(2) cl asses of membership in the Corporation: (1) Type "A" Members shall be all Owners, including the Proprietors, their successors and assigns, of Residential Lots, and/or Tenants occupying Family Dwelling Units. A Type "A" Member shall be entitled to two (2 ) votes except that if a Family Dwelling Unit is occupied by a Tenant as is principal resi dence, the Owner shall be entitled to one (1) vote and the Tenant shall be entitled to one (1) vote.
o two (2 ) votes except that if a Family Dwelling Unit is occupied by a Tenant as is principal resi dence, the Owner shall be entitled to one (1) vote and the Tenant shall be entitled to one (1) vote.
(2) Type "B" Members shall be the Proprieto rs. The Type "B" Member shall be entitled to cast votes for the election of Members of the Board of Directors as set out in Article IV herein.
When any property entitling the Owner to memb ership as a Type "A" or 'B' Member of the Association is owned of record in the name of two (2) or more persons or entities, whether fiduciaries, joint tenants, tenants in common, tena nts in partnership or in any other manner of joint or common ownership, or if two (2) or more persons or entities have the same fiduciary relationship respecting the same pr operty, then unless the instrument or order appointing them or creating the tenancy otherwise dire cts and it or a copy thereof is f iled with the Secretary of the Association, their acts with respect to voting shall have the following effect: ' (1) If only one (1) votes, in person or by proxy, his act shall bind all; (2) If more than one (1) vote, in person or by proxy, the act of the majority so voting shall bind all; (3) If more than one (1) vote, in person or by proxy, but the vote is evenly split on any particular matter, each fraction sh all be entitled to its proportiona te share of the vote or votes; (4) If the instrument or order filed with th e Secretary of the Association shows that any such Tenancy is held in unequal interest, a majority or even sp lit under sub-paragraphs (2) and (3) immediately above shall be a majority or even split in interest in the property to which the vote(s) is attributable;
d in unequal interest, a majority or even sp lit under sub-paragraphs (2) and (3) immediately above shall be a majority or even split in interest in the property to which the vote(s) is attributable; (5) The principles of this paragraph shall apply, insofar as possible, to execution of proxies, waivers, consents or objections and fo r the purpose of ascertaining the presence of a quorum.
The voting rights of any Owner may be assigne d by said Owner to his lessee; provided, however, that the Owner may not assign to such le ssee any vote or votes not attributable to the property actually leased by such lessee.
(c) The members of the corporation shall ha ve the right to vote for the election and removal of directors and upon such other matters with respect to which a vote of members is required under the Covenants, th ese Articles of Incorporation or under the provisions of Chapter 2 of Title 13.1 of the Code of Virginia, as amended.
ARTICLE IV The affairs of the Corporati on shall be managed by a Board of Directors, who shall hold office until the election of their successor or succe ssors. Initially, the Board shall consist of three (3) members, with the number in subsequent years to be determined by the Board of Directors as provided for in the By-Laws of the Corporation. The Directors shall be elected by the members of the Corporation or the Proprietors according to the following formula: (i) Each Member of Type "A" and "B" Member ship class shall be entitled to as many votes as equals the number of votes he is entitled to , based on his Ownership of or Tenancy in a residential lot or dwelling unit as computed by the formula set out hereinabove in Article III he reof, multiplied by the number of Directors to be elected by
based on his Ownership of or Tenancy in a residential lot or dwelling unit as computed by the formula set out hereinabove in Article III he reof, multiplied by the number of Directors to be elected by Type "A" Members. Members may cast all of su ch votes for any one (1) director or may distribute them among the number to be elect ed by Type "A" Members, or any two (2) or more of them, as he may see fit, provided, how ever, that all votes must be cast in whole numbers and not fractions thereof. This ri ght, when exercised, is termed cumulative voting. Members, except the Type "B" Membersh ip, are divided into classes for the sole purpose of computing voting rights and shall not vot e as a class.
(ii) The Type "A" Members shall elect the Class I Director(s), and Type "B" members shall elect the Class II Director(s ) according to the following formula: (a) The number of Class I Directors shall be determined by (a) dividing the number of Residential Lots owned by Type "A" members by 1500, and (b) then multiplying the resulting quotient by the total number of Directors an d (c) rounding the result to the nearest whole Director from the total number of Directors.
(iii) For the purposes of this formula, the number of Residential Lots owned by Type "A" members shall be determined by the Board of Directors as of the date on which notice of the meeting of the members t which the Board of Directors is to be elected is mailed.
ARTICLE V The names and addresses of those persons wh o are to constitute the initial Board of Directors until the election of their successors are: NAME A D D R E S S George P. Emerson, Jr_ 200 River's Bend Circle Chester, VA 23831
ersons wh o are to constitute the initial Board of Directors until the election of their successors are: NAME A D D R E S S George P. Emerson, Jr_ 200 River's Bend Circle Chester, VA 23831 Oliver D. Rudy 12672 Winfree Street Chester, VA 23831 Gurpal S. Bhuller 14713 Green Forest Drive Colonial Heights, VA 23834 ARTICLE VI The post office address of the in itial registered office of the Corporation is Post Office Box 58, Chesterfield, Virginia 23832. The name of th e initial registered agen t is Oliver D. Rudy, who is a member of the Virginia State Bar and a reside nt of Virginia, whos e business address is Rudy, Evans & Mikula, Cogbill Law Building, Courthouse Square, Chesterfield, Virginia 23832, in the County of Chesterfield.
ARTICLE VII The Corporation shall have perpetual existence.
ARTICLE VIII To the .extent provided by law, the Cor poration may participate in mergers and consolidation with other non-pr ofit associations organized fo r the same purpose, provided, however, that any such mergers or cons olidation shall require approval by the vote of more than two-thirds (2/3) of the Type "A" membership at a meeting duly called for such purpose.
ARTICLE IX Upon dissolution of the Corporation, the asse ts, both real and personal, shall be transferred in the manner set forth the covenant s for the transfer of the Common Properties in event the Covenants are declared void, invalid, illegal or otherwis e unenforceable. In the event of such a dissolution and transfer, the assets sha ll continue to be used and maintained for the purposes set out herein.
ARTICLE X The names and addresses of those persons who are to act as incorporators are: NAME Oliver D. Rudy 12672 Winfree Street Chester, Virginia 23831
es set out herein.
ARTICLE X The names and addresses of those persons who are to act as incorporators are: NAME Oliver D. Rudy 12672 Winfree Street Chester, Virginia 23831 George P. Emerson, Jr. 200 River's Bend Circle Chester, Virginia 23831 ARTICLE XI (1) The Corporation shall indemn ify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbi trative or investigative (including an action or suit by or in the right of the Corporation to procure a judgment in its favor) by reason of the fact that he is or was a director or officer of the Corpor ation, or is or was se rving at the request of the Corporation-as a director or officer of another co rporation, partnership, joint ventur e, trust or other enterprises, against judgments, fines, amounts paid in settlement, and expenses (including attorneys' fees) actually and reasonable incurred by him in connection with such action, suit or proceeding if he acted in good faith and in the ma nner he reasonable believed to be in or not opposed to the best interests of the Corporation, a nd, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was un lawful. The termination of any action, suit or proceeding by judgment, order, settlement, c onviction, or upon a plea of nolo contendere or its equivalent, shall not of itse lf create a presumption that the person did not act in good faith and in the manner he reasonable believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
nable believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
(2) Notwithstanding the provision s of section (1) of this Article, no indemnification shall be made in any action or suit by or in the right of the Corporat ion to procure a judgment in its favor with respect to any claim, issue or matter as to which such person shall have been finally adjudged to be liable to gross negligence or willful misconduct in the performance of his duty to the Corporation unless, and only to the extent th at, the court in which such-action or suit was brought shall determine upon applicati on that, despite the adjudication of liability but in view of all circumstances of the case, such person is fair ly and reasonable entitle d to indemnification.
(3) To the extent that any such person has been successful on the merits or otherwise in defense of any Action, suit or proceeding referred to in section (1) of this Article, or in defense of any claim, issue or matter therein, he sha ll be indemnified agains t expenses (including attorneys' fees) actually and reasonable incurred by him in connection therewith.
(4) any indemnification under se ctions (1) and (2) of this Article (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of any such pe rson is proper in the circumstances because he had met the applicable standard of conduct set forth in such sections (1) and (2). Such determination shall be made eith er (i) by the Board of a majority vote of a quorum consisting of
ces because he had met the applicable standard of conduct set forth in such sections (1) and (2). Such determination shall be made eith er (i) by the Board of a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding; or (ii) if such a quorum is not obtainable, or even if obtainable , a quorum of disinterested direct ors so directs, by independent legal counsel in a written opinion; or (iii) by the Me mbers. If the determination is to be made by the Board, it may rely as to all questions of law, on the advice of independent counsel.
(5) Expenses (including attorneys' fees ) incurred in defending an action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, may e paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized in the manner provided in section (4) of this Artic le, upon receipt of an undertaking by or on behalf of such person to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the Corporation as authorized in this Article.
(6) The Board is hereby empowered, by a majo rity vote of a quorum of disinterested directors, to cause the Corporation to indemnify or contract in advance to indemnify any person not to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative, by reason of the fact that such person is or was an employee or agent of the Cor poration, or is or was se rving at the request of the Corporation as an employee or agent of anot her corporation, partnershi p, joint venture, trust
h person is or was an employee or agent of the Cor poration, or is or was se rving at the request of the Corporation as an employee or agent of anot her corporation, partnershi p, joint venture, trust or other enterprise, to the same extent as if such person were specified as one to whom indemnification is granted in se ction (1). The provisi ons of sections (2) through (5) of this Article shall be applicable to any indemnification provided hereafter pursuant to this section (6).
(7) The Corporation may purchase and mainta in insurance to indemnify it against the whole or any portion of the liab ility assumed by it in accordance w ith this Article and, may also procure insurance, in such amounts as the Board may determine, on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against him and incurred by him in any such capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article.
(8) Every reference herein to director, offi cer, employee or agent shall include former directors, officers, employees, and agents and their respective heirs, executors and administrators. The indemnification hereby pr ovided and provided hereafter pursuant to the power hereby conferred on the Bo ard shall not be exclusive of any other rights to which any person may be entitled, including any right under policies of insurance that may be purchased
rsuant to the power hereby conferred on the Bo ard shall not be exclusive of any other rights to which any person may be entitled, including any right under policies of insurance that may be purchased and maintained by the Corporation or others, with re spect to claims, issues or matters in relation to which the Corporation would not have th e power to indemnify such person under the provisions of this Article.
ARTICLE XII The following words and terms when used in th ese Articles of Inco rporation (unless the context shall clearly indicate otherwis e) shall have the following meanings: (a) "Association" shall mean and refer to The Highlands Community Association, Inc., a Virginia non-profit corporation, its successors and assigns.
(b) "The Highlands" when used herein shall refer to the lands in Chesterfield County, Virginia, which are shown as a part of the Proprie tors' Master Development Plan as revised from time to time, which plan has been filed with and approved by the Ches terfield County Planning Commission and is in the office of the Ches terfield Community De velopment Department.
(c)"Proprietor" shall refer to Nash Road/W oodpecker 'Road and Oliver D. Rudy, Trustee under the provisions of a trust agreement dated March 20,1988, designated as NASH ROAD/WOODPECKER ROAD TRUST AGREEMEN T, his successors and assigns.
(d) The "Properties" shall mean and refer to the real property described in the following paragraph (1), together with su ch additions as the Proprietors may from time to time make.
(1) SEE EXHIBIT "A" ATTACHED (e) "Residential Lot" shall mean any subdi vided parcel of land located within the Properties for which no building permit has b een issued by the appr opriate governmental
1) SEE EXHIBIT "A" ATTACHED (e) "Residential Lot" shall mean any subdi vided parcel of land located within the Properties for which no building permit has b een issued by the appr opriate governmental authorities and which parcel is intended for use as a site for a Single Family Detached Dwelling as shown upon any recorded final su bdivision map of any part of th e Properties. No parcel shall, however, be classified as a Residential Lot until the first day of the quarter of the year following the recording of a plat in the Clerk's Office of the Circuit Court of Chesterfield County, Virginia, showing such Residential Lot.
(f) "Unsubdivided Land" shall mean and refe r to all land in the Existing Property described in (d) (1) above and additions thereto, which has not been subdi vided into residential lots. The following classificati ons of Property shall not be deemed "Unsubdivided Land" and shall be expressly excepted from the definition thereof: (1) All lands committed to the Association through express, written notification by the Proprietors to the Association of in tent to convey to the Association; (2) All lands designated on the Master Plan for intended use, or by actual use if applicable, for outdoor recreation facilities; operating farms and/ or animal pastures; woodland marsh and swamp conservancies.
(3) All lands designated, in a ny way, as Common Properties.
(g) "Family Dwelling Unit" shall mean and refer to any improved property or any property for which a building permit has been issued by the appropr iate governmental authorities, which property is intended for use as a Single Family Dwelling.
(h) "Owner" shall mean and refer to the Owner as shown by the Real Estate Records in
sued by the appropr iate governmental authorities, which property is intended for use as a Single Family Dwelling.
(h) "Owner" shall mean and refer to the Owner as shown by the Real Estate Records in the Clerk's Office of the Circuit Court of Cheste rfield County, Virginia, whether it be one (1) or more persons, firms, associations, corporations, or other legal entities, of fee simple title to any Residential Lot situated upon the Pr operties but, notwithst anding any applicable theory of a deed of trust, shall not mean or refer to the mortgagee or (holder of a deed of trust, its successors or assigns, unless and until such mortgagee or holder of a deed of trust has acquired title pursuant to foreclosure or a proceeding or deed in lieu of fo reclosure; nor shall the term "Owner" mean or refer to any lessee or tenant of an Owner. In the event that there is recorded in the Office of the Clerk of the Circuit Cour t of Chesterfield County, Virginia, a long-term co ntract of sale covering any Lot or 'Parcel of land within the Properties, the Owner of such Lot or Parcel of land shall be the Purchaser under said contract and not the fee simple title holder. A long-term contract of sale shall be one where the Purchase r is required to make payments for the Property for a period extending beyond nine (9) months from the date of the contract, and where the purchaser does not receive title to the Propert y until such payments are made, although the Purchaser is given the use of said Property.
(i) "Tenant" shall mean and refer to the lessee under a written agreement for the rent and hire of a Dwelling Unit.
(j) "Resident” shall mean and refer to each Owner and Tenant of a Dwelling Unit who resides in The Highlands.
nd refer to the lessee under a written agreement for the rent and hire of a Dwelling Unit.
(j) "Resident” shall mean and refer to each Owner and Tenant of a Dwelling Unit who resides in The Highlands.
(k) "Member" shall mean and refer to all those Owners and Tenants who are Members of the Association as defined in Section (a) of Article III.
(1) "Master Plan" shall mean and refer to th e drawing which represents the conceptual plan for the future development of The Highlands . Since the concept of the future development of The Highlands is subject to continuing revi sion and change by the Proprietors, present and future references to the "Master Plan" shall be refe rences to the latest revision thereof. Said plan is on file in the Chesterfield County Department of Community Development.
(m) "Common Properties” shall mean and re fer to those tracts of land with any improvements thereon which are deeded to the Association and designated in said deed as "Common Properties." The term "C ommon Properties" shall also include any personal property acquired by the Association if said property is designated a "Commo n Property." All Common Properties are to be devoted to and intended for the Comm on use and enjoyment of the Proprietors, Residents, and their guests, and visiting members of th e general public (to the extent permitted by the Board of Directors of the Asso ciation) subject to the fee schedules and operating rules adopted by the Association.
(n) "Referendum" shall mean and refer to the power of all or some specific portion of the Members to vote by mailed ballots on certain actions by the Board of Directors of the Association more particularly set forth herein including, without limita tion: the levy of any
fic portion of the Members to vote by mailed ballots on certain actions by the Board of Directors of the Association more particularly set forth herein including, without limita tion: the levy of any Special Assessment; the levy of any Capital assessment; the increase of the maximum regular annual assessment in excess of that provided for herein; and the addition and deletion of functions or services which the Association is authorized to pe rform. In the event fifty-one (51%) per cent of the votes actual ly returned to the Association within the specified time shall be in favor of such action, the Referendum shall be deemed to "pass" and the action voted upon will be deemed to have been authorized by the Me mbers, provided, howeve r, that if a higher percentage required to "pass" sh all be specifically expressed here in, that higher percentage shall control in that instance.
WITNESS our hands and seals this 8 th day of April 1992 GEORGE P. EMERSON, JR., Incorporator