By Trish Mikkelson
I know that our ecovillage needs to have a legal situation so that members know that the land will be handed down to future members through the generations in a way that preserves the original intention. An LLC (Limited Liability Company) is often used to facilitate this. So it is likely that this document will be a starting point.
Community Autonomy, LLC
This Operating Agreement of Community Autonomy, LLC (the “Community”) is made as of day of , by and between the persons listed as Members on Exhibit A attached hereto.
WHEREAS, the Community was formed as a limited liability company under the Ohio Limited Liability Company Act (as amended from time to time, the “Act”) on January 28, 2010; and
WHEREAS, the Members wish to set out fully their respective rights, obligations and duties regarding the Community and its assets and liabilities;
NOW, THEREFORE, in consideration of the mutual covenants expressed herein, the parties hereby agree as follows:
ARTICLE I – ORGANIZATION AND POWERS
1.1. Organization - The Community has been formed by its filing with the Ohio Secretary of State pursuant to statute. The Articles of Organization may be amended or restated by the Members from time to time.
1.2. Purposes and Powers - The principal business activity and purpose of the Community shall initially be to purchase land/property together in order to develop and build an intentional community of individuals with shared common facilities which, through the balance of individual autonomy and group opportunities, enhances the social and economic quality of life of the residents based upon the guiding principles set forth on Exhibit B hereto and to engage in any activity related thereto or useful in connection therewith. Notwithstanding the foregoing, the business and purposes of the Community shall not be limited to its initial principal business activity and, unless the Community otherwise determines, the Community shall have authority to engage in any other lawful business, trade, purpose or activity permitted, and it shall possess and may exercise all of the powers and privileges granted by law together with any powers incidental thereto, so far as such powers or privileges are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the Community, including without limitation the following powers:
(a) to conduct its business and operations in any state, territory or possession of the United States or in any foreign country or jurisdiction;
(b) to purchase, receive, take, lease or otherwise acquire, own, hold, improve, maintain, use or otherwise deal in and with, sell, convey, lease, exchange, transfer or otherwise dispose of, mortgage, pledge, encumber or create a security interest in all or any of its real or personal property, or any interest therein, wherever situated;
(c) to borrow or lend money or obtain or extend credit and other financial accommodations, to invest and reinvest its funds in any type of security or obligation of or interest in any public, private or governmental entity, and to give and receive interests in real and personal property as security for the payment of funds so borrowed, loaned or invested;
(d) to make contracts, including contracts of insurance, incur liabilities and give guaranties, whether or not such guarantees are in furtherance of the business and purposes of the Community, including without limitation, guaranties of obligations of other persons who are interested in the Community or in whom the Community has an interest;
(e) to employ officers, employees, agents and other persons, to fix the compensation and define the duties and obligation, establish and carry out retirement, incentive and benefit plans for, and to indemnify such personnel to the extent permitted by this Agreement and the Act;
(f) to make donations irrespective of benefit to the Community for the public welfare or for community, charitable, religious, educational, scientific, civic or similar purposes; and
(g) to institute, prosecute, and defend any legal action or arbitration proceeding involving the Community, and to pay, adjust, compromise, settle, or refer to arbitration any claim by or against the Community or any of its assets.
1.3. Principal Place of Business - The principal address of the Community shall initially be 64 King Ave, Columbus, Ohio 43201. The Members may change the principal office or place of business of the Community at any time and may cause the Community to establish other offices or places of business.
1.4. Fiscal Year - The fiscal year of the Community shall end on December 31 in each year.
ARTICLE II – MEMBERS
2.1. Members - The corporation shall have two classes of members - Full Member (herein 'Member') and Provisional Member. Any minor child of a Member or Provisional Member shall be considered as one with their parent or guardian Member during application and Provisional and Full Membership. No Member shall hold more than one Membership in the corporation. Except as expressly provided in or authorized by the Articles of Organization, Operating Agreement, or Exhibits C1 and C2 of this corporation, all Members shall have the same rights, privileges, restrictions and conditions. The initial Members of the Community shall be listed on Exhibit A and said Exhibit shall be amended from time to time to reflect the withdrawal of Members or the admission of additional Members pursuant to this Agreement. Members shall be notified of changes in Exhibit A, which shall constitute the recorded list of the Members for all purposes of this Agreement.
2.2. Qualifications of Members - The qualifications for Membership in this corporation are as follows: A) Only adult, real persons are eligible. B) A person must sign and adhere to the provisions of the Community Autonomy, LLC, Membership Agreement, contained in Exhibits C1 and C2.
2.3. Admission of Members - Applicants shall be admitted to membership by a clearly defined process determined by the current membership of the Community. This process shall include reading and signing the Membership Agreement.
2.4. Consensus Policy/Voting - Decisions that impact the entire Community will be made by the Community by seeking consensus as described in Exhibit D: Consensus Policy.
2.5. Expulsion of Member - A Member may be expelled from the Community by a unanimous consensus decision of the Community in a Special Meeting of all Members except the Member(s) under consideration for expulsion. Members may be expelled for physical violence or threats of physical violence, destruction of property, financial impropriety, fraud or any other action which is inconsistent with the Community purpose and values, as determined by the other Members at such meeting. Accused Members shall be entitled to appear at the Special Meeting concerning their expulsion to defend themselves from the charges upon which the potential expulsion is based. Members that are expelled for any of the reasons stated in the preceding sentence may be subject to forfeiture of a reasonable and relevant portion of their capital account.
2.6. Meetings of Members
(a) Regular Meetings. Regular meetings of Members shall be held as needed or as determined by consensus of the Members at any regular or special meeting, but at least once a year, on the second Sunday of January.
(b) Special Meetings. Special Meetings of Members may be called for any proper purpose at any time by a majority of the Members. The Members calling the Special Meeting shall determine the date, time and place of each meeting of Members, and written notice thereof shall be given to each Member. The business of each meeting of Members shall be limited to the purposes described in the notice.
(c) There is no in-person quorum for decision making; absent members will be involved through email and phone, or paper and postal mail, and will be given a reasonable amount of time and sufficient information to give their opinion. Members may also participate in a Special Meeting by means of conference telephone or similar communications equipment that permits all Members present to hear each other. If it is felt that few Members are present, all or part of the meeting may be adjourned by the facilitator to a later date, time and place, and the meeting may be held as adjourned without further notice. When an adjourned meeting is reconvened, any business may be transacted that might have been transacted at the original meeting.
(d) A facilitator selected by the Members shall preside at all meetings of the Members. The facilitator shall recommend the order of business and the procedures to be followed at each meeting of Members.
2.7. Action Without a Meeting - There is no requirement that the Members hold a meeting in order to take action on any matter. Any action required or permitted to be taken by the Members may be taken without a meeting if one or more written consents to such action shall be signed by Members representing the number of Members required to approve the action being taken, as contained in Exhibit D. Such written or recorded verbal consents shall be delivered to the Community and unless otherwise specified shall be effective on the date when the first consent is so delivered.
2.8. Limitation of Liability of Members - Except as otherwise provided in the Act, no Individual Member of the Community shall be obligated personally for any debt, obligation or liability of the Community or of any other Individual Member, whether arising in contract, tort or otherwise, solely by reason of being an Individual Member of the Community. Except as otherwise provided by law or expressly in this Agreement, no Individual Member shall have any fiduciary or other duty to another Individual Member with respect to the business and affairs of the Community, and no Individual Member shall be liable to the Community or any other Individual Member for acting in good faith reliance upon the provisions of this Agreement. The failure of the Community to observe any formalities or requirements relating to the exercise of its powers or the management of its business or affairs under this Agreement or law shall not be grounds for making its Individual Members responsible for the liabilities of the Community.
2.9. Authority - Unless specifically authorized by the Community, no Individual Member shall be an agent of the Community or have any right, power or authority to act for or to bind the Community or to undertake or assume any obligation or responsibility of the Community or of any other Member.
2.10. Right to Withdraw - Subject to the terms and conditions hereof, Members may resign or withdraw from the Community at any time upon written notice to the Community. All assessments shall be non-refundable. Any outstanding loans between the Community and the Withdrawing Member shall be repaid according to the terms of such loan.
2.11. Powers and Duties of the Members - The business and affairs of the Community shall be managed under the direction of the Members, who shall have and may exercise on behalf of the Community all of its rights, powers, duties and responsibilities under Section 1.2 or as provided by law, including without limitation the right and authority:
(a) to manage the business and affairs of the Community and for this purpose to employ, retain or appoint any officers, employees, consultants, agents, brokers, professionals or other persons in any capacity for such compensation and on such terms as the Members deem necessary or desirable and to delegate to such persons such of their duties and responsibilities as the Members shall determine;
(b) to enter into, execute, deliver, acknowledge, make, modify, supplement or amend any documents or instruments in the name of the Community;
(c) to borrow money or otherwise obtain credit and other financial accommodations on behalf of the Community on a secured or unsecured basis as provided in Section 1.2(c), and to perform or cause to be performed all of the Community’s obligations in respect of its indebtedness and any mortgage, lien or security interest securing such indebtedness;
(d) to enter into such arrangements, partnerships, joint ventures or relationships as may be necessary or appropriate; and
(e) to make elections and prepare and file returns regarding any federal, state or local tax obligations of the Community.
Unless otherwise provided in this Agreement, any action taken by a duly authorized Member, and the signature of an Individual Member on any agreement, contract, instrument or other document on behalf of the Community, shall be sufficient to bind the Community and shall conclusively evidence the authority of that Individual Member and the Community with respect thereto.
2.12. Rights to Information - Individual Members shall have the right to receive, upon request, a copy of the Certificate and of this Agreement, as amended from time to time, and such other information regarding the Community as is required by the Act, subject to reasonable conditions and standards established by the Individual Members, as permitted by the Act, which may include, without limitation, withholding or restrictions on the use of confidential information.
2.13. Committees - The Community may appoint from the Community a Committee or Committees, each having such number of members as the Community shall determine but not fewer than two (2) Members. In the event that any member of a committee shall cease to be a Member of the Community for any reason, such Member shall forthwith cease to a member of such Committee. Any Committee shall possess and may exercise any powers expressly delegated to such Committee by the Community, other than those powers the delegation of which is expressly forbidden by law. All action taken by a Committee shall be subject to revision or alteration by the Members; provided that no rights or acts of third parties shall be affected by any such revision or alteration. Each Committee shall fix its own rules of procedure, shall meet as provided by such rules or by resolution of the Community, and shall keep records of its actions and proceedings, which records shall be made available for examination by the Individual Members. Quorum and decision-making during Committee meetings shall operate the same way as General and Special meetings of all Members, as described above.
ARTICLE III – INDEMNIFICATION
3.1. Definitions. - For purposes of this Article:
“Officer” includes (i) Any Individual Member or other person serving as an officer of the Community or in a similar executive capacity appointed by the Community and exercising rights and duties delegated by the Community, (ii) a person serving at the request of the Community as a director, officer, employee, committee member or other agent of another organization, and (iii) any person who formerly served in any of the foregoing capacities;
“Expenses” means all expenses, including attorneys' fees and disbursements, actually and reasonably incurred in defense of a proceeding or in seeking indemnification under this Article, and except for proceedings by or in the right of the Community or alleging that an Officer received an improper personal benefit, any judgments, awards, fines, penalties and reasonable amounts paid in settlement of a proceeding; and
“Proceeding” means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, and any claim which could be the subject of a proceeding.
3.2. Right to Indemnification - Except as limited by law and subject to the provisions of this Article, the Community shall indemnify each of its Officers against all expenses incurred by them in connection with any proceeding in which an Officer is involved as a result of serving in such capacity, except that no indemnification shall be provided for an Officer regarding any matter as to which it shall be finally determined that said Officer did not act in good faith and in the reasonable belief that their action was in the best interests of the Community. Subject to the foregoing limitations, such indemnification may be provided by the Community with respect to a proceeding in which it is claimed that a Officer received an improper personal benefit by reason of its position, regardless of whether the claim arises out of the Officer’s service in such capacity, except for matters as to which it is finally determined that an improper personal benefit was received by the Officer.
3.3. Award of Indemnification - The determination of whether the Community is authorized to indemnify an Officer hereunder and any award of indemnification shall be made in each instance by the consensus of the Members who are not parties to the proceeding in question. The Community shall be obliged to pay indemnification applied for by an Officer unless there is an adverse determination (as provided above) within forty five (45) days after the application. If indemnification is denied, the applicant may seek an independent determination of its right to indemnification by a court, and in such event, the Community shall have the burden of proving that the applicant was ineligible for indemnification under this Article. Notwithstanding the foregoing, in the case of a proceeding by or in the right of the Community in which an Officer is adjudged liable to the Community, indemnification hereunder shall be provided to said Officer only upon a determination by a court having jurisdiction that in view of all the circumstances of the case, said Officer is fairly and reasonably entitled to indemnification for such expenses as the court shall deem proper.
3.4. Successful Defense - Notwithstanding any contrary provisions of this Article, if an Officer has been wholly successful on the merits in the defense of any proceeding in which it was involved by reason of its position as Officer or as a result of serving in such capacity (including termination of investigative or other proceedings without a finding of fault on the part of the Officer), the Officer shall be indemnified by the Community against all expenses incurred by the Officer in connection therewith.
3.5. Advance Payments - Except as limited by law, expenses incurred by an Officer in defending any proceeding, including a proceeding by or in the right of the Community, shall be paid by the Community to the Officer in advance of final disposition of the proceeding upon receipt of its written undertaking to repay such amount if the Officer is determined pursuant to this Article or adjudicated to be ineligible for indemnification, which undertaking shall be an unlimited general obligation but need not be secured and may be accepted without regard to the financial ability of the Officer to make
repayment; provided, however, that no such advance payment of expenses shall be made if it is determined on the basis of the circumstances known at the time (without further investigation) that the Officer is ineligible for indemnification.
3.6. Insurance - The Community shall have power to purchase and maintain insurance on behalf of any Officer, against any liability or cost incurred by such person in any such capacity or arising out of its status as such, whether or not the Community would have power to indemnify against such liability or cost.
3.7. Heirs and Personal Representatives - The indemnification provided by this Article shall take effect to the benefit of the heirs and personal representatives of each Officer.
3.8. Non-Exclusivity - The provisions of this Article shall not be construed to limit the power of the Community to indemnify its Officers to the full extent permitted by law or to enter into specific agreements, commitments or arrangements for indemnification permitted by law. The absence of any express provision for indemnification herein shall not limit any right of indemnification existing independently of this Article.
3.9. Amendment - The provisions of this Article may be amended or repealed in accordance with Section 8.5. However, no amendment or repeal of such provisions that adversely affects the rights of an Officer under this Article with respect to his/her acts or omissions at any time prior to such amendment or repeal shall apply to said Officer without his/her consent.
ARTICLE IV – CONFLICTS OF INTEREST
4.1. Transactions with Interested Persons - Unless entered into in bad faith, no contract or transaction between the Community and one or more of its Members, or between the Community and any other corporation, partnership, association or other organization in which one or more of its Members have a financial interest or are directors, partners, or officers, shall be voidable solely for this reason or solely because said Member was present or participated in the authorization of such contract or transaction if:
(a) the material facts as to the relationship or interest of said Member and as to the contract or transaction were disclosed or known to the Community and the contract or transaction was authorized by the disinterested Member; or
(b) the contract or transaction was not patently unfair to the Community as of the time it was authorized, approved or ratified by the disinterested Member; and no Individual Member interested in such contract or transaction, because of such interest, shall be considered to be in breach of this Agreement or liable to the Community, any Individual Member, or any other person or organization for any loss or expense incurred by reason of such contract or transaction or shall be accountable for any gain or profit realized from such contract or transaction.
ARTICLE V – CAPITAL ACCOUNTS AND CONTRIBUTIONS
5.1. Capital Accounts
(a) There shall be established on the books of the Community a separate capital account (a “Capital Account”) for the Community.
(b) The Capital Account for the Community (regardless of the time or manner in which such Member Household’s interest was acquired) shall be maintained in accordance with the rules of Section 704(b) of the Internal Revenue Code of 1986, as amended, from time to time (the “Code”) (together with Section 1.704 1(b)(2)(iv) of the Treasury Regulations). Adjustments shall be made to the Capital Accounts for distributions and allocations as required by the rules of Section 704(b) of the Code and the Treasury Regulations thereunder.
5.2. Contributions - As described in Exhibit E: Egalitarian Economics, the Community will set an annual budget to determine the amount of expected regular contributions from Members. From time to time, Members may decide to contribute additional resources to enable the Community to conduct its operations and achieve its goals. At the beginning of Membership, each Member shall make the contributions to the capital of the Community specified on Schedule A. All Contributions shall be paid in cash unless otherwise specified on Schedule A or agreed to by the Members. No Members shall have any liability for the repayment of the Contribution of any other Members and each Member shall look only to the assets of the Community for the return of any additional Contributions, as approved by the Members.
5.3. Loans - The Community may borrow from its Members as well as from banks or other lending institutions to finance its working capital or the acquisition of assets upon such terms and conditions as shall be approved by the Members, and any such borrowing from Members shall not be reflected in their Capital Accounts. No Member shall be entitled to any interest or compensation with respect to its Contribution or any services rendered on behalf of the Community except as specifically provided in this Agreement or approved by the Members.
ARTICLE VI – PROFITS, LOSSES, AND DISTRIBUTIONS
6.1. Profits, Losses and Distributions
(a) All profits and losses arising from the normal course of business operations, or otherwise and all cash available for distribution from whatever source, except those which Members are sheltered from as described as Article 3 Indemnification, commencing with the date of this Agreement, shall be allocated or distributed to the Members, at the discretion of a relevant Committee.
(b) All profits and losses allocated to the Members shall be credited or charged, as the case may be, to their Capital Accounts. The terms “profits” and “losses” as used in this Agreement shall mean income and losses, and each item of income, gain, loss, deduction or credit entering into the computation thereof, as determined in accordance with the accounting methods followed by the Community and computed in a manner consistent with Treasury Regulation Section 1.704 1(b)(2)(iv).
6.2. Distributions Upon Dissolution
(a) Upon dissolution and termination, after payment of, or adequate provision for, the debts and obligations of the Community, the remaining assets of the Community (or the proceeds of sales or other dispositions in liquidation of the Community assets, as may be determined by the remaining or surviving Members) shall be distributed to the Members in accordance with the positive balances in their Capital Accounts after taking into account all Capital Account adjustments for the Community taxable year.
(b) With respect to assets distributed in kind to the Member Households in liquidation or otherwise, (i) any unrealized appreciation or unrealized depreciation in the values of such assets shall be deemed to be profits and losses realized by the Community immediately prior to the liquidation or other distribution event; and (ii) such profits and losses shall be allocated to the Member Households and credited or charged to their Capital Accounts, and any property so distributed shall be treated as a distribution of an amount in cash equal to the excess of such fair market value over the outstanding principal balance of and accrued interest on any debt by which the property is encumbered. For the purposes of this Section 6.2(b), “unrealized appreciation” or “unrealized depreciation” shall mean the difference between the fair market value of such assets, taking into account the fair market value of the associated financing but subject to Section 7701(g) of the Code, and the Community’s basis in such assets as determined under Treasury Regulation Section 1.704-1(b). This Section 6.2(b) is merely intended to provide a rule for allocating unrealized gains and losses upon liquidation or other distribution event, and nothing contained in this Section 6.2(b) or elsewhere in this Agreement is intended to treat or cause such distributions to be treated as sales for value. The fair market value of such assets shall be determined by an appraiser to be selected by the Members.
6.3. Distribution of Assets in Kind - No Member shall have the right to require any distribution of any assets of the Community to be made in cash or in kind. If the Members determine to distribute assets of the Community in kind, such assets shall be distributed on the basis of their fair market value as determined by the Members. Any Member entitled to any interest in such assets shall, unless otherwise determined by the Members, receive separate assets of the Community, and not an interest as tenant-in-common with other Members so entitled in each asset being distributed. Distributions in kind need not be made on a pro-rata basis but may be made on any basis which the Members determine to be reasonable under the circumstances.
ARTICLE VII – DISSOLUTION, LIQUIDATION, AND TERMINATION
7.1. Dissolution - The Community shall dissolve and its affairs shall be wound up upon the first to occur of the following:
(a) the written consent of the Members;
(b) the entry of a decree of judicial dissolution under law; or
(c) The consolidation or merger of the Community in which it is not the resulting or surviving entity.
7.2. Liquidation - Upon dissolution of the Community, the Members may appoint one or more Individual Members as liquidating trustee. The liquidating trustees shall proceed diligently to liquidate the Community and wind up its affairs and shall dispose of the assets of the Community as provided by law hereof. Until final distribution, the liquidating trustees may continue to operate the business and properties of the Community with all of the power and authority of the Members. As promptly as possible after dissolution and again after final liquidation, the liquidating trustees shall cause an accounting by the accounting firm then serving the Community of the Community’s assets, liabilities, operations and liquidating distributions to be given to the Members.
7.3. Certificate of Cancellation - Upon completion of the distribution of Community assets as provided herein, the Community shall be terminated, and the Community (or such other person or persons as the Act may require or permit) shall file a Certificate of Cancellation with the Secretary of State of Ohio, cancel any other filings made, and take such other actions as may be necessary to terminate the existence of the Community.
ARTICLE VIII – GENERAL PROVISIONS
8.1. Offset - Whenever the Community is obligated to make a distribution or payment to any Member, any amounts that Member owes the Community may be deducted from said distribution or payment.
8.2. Notices - Except as expressly set forth to the contrary in this Agreement, all notices, requests, or consents required or permitted to be given under this Agreement must be in writing and shall be deemed to have been properly given if sent by registered or certified mail, postage prepaid, by commercial overnight courier, by facsimile email or if delivered in hand to Members at their addresses on Schedule A, or such other address as a Member may specify by notice to the Community at the address of the principal office of the Community specified in Section 1.3. Whenever any notice is required to be given by law, the Certificate or this Agreement, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.
8.3. Entire Agreement - This Agreement constitutes the entire agreement of Members relating to the Community and supersedes all related prior oral or written agreements or understandings.
8.4. Binding Effect - This Agreement is binding on and inures to the benefit of the parties and their respective successors, permitted assigns and legal representatives.
8.5. Amendment or Modification - Except as specifically provided herein, this Agreement may be amended or modified from time to time upon the consensus of the Members pursuant to Section 2.4 authorizing such amendment, provided, however, an amendment or modification to reflect the admission of new Members, shall be subject to approval as provided in Section 2.3.
8.6. Governing Law; Severability - This Agreement is governed by and shall be construed in accordance with the law of the State of Ohio, exclusive of its conflict of laws principles. In the event of a conflict between the provisions of this Agreement and any provision of the Certificate or the Act, the applicable provision of this Agreement shall control, to the extent permitted by law. If any provision of this Agreement or the application thereof to any person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision shall be enforced to the fullest extent permitted by law.
8.7. Dispute Resolution - Any dispute, controversy or claim arising out of or in connection with this Agreement shall be resolved by face to face negotiations between the parties involved, such negotiations to be conducted in the spirit of the Community's guiding principles. If the dispute cannot be resolved by face to face negotiation, either party may demand such mediation proceedings to occur at a mutually acceptable time and place, with a mutually acceptable mediator and mutually acceptable procedures as soon as possible following the demand for mediation. In the event that the dispute, controversy or claim cannot be settled by negotiations or mediation, either party may demand, by written notice to the other party, that the dispute be submitted to arbitration. The arbitration shall be conducted according to the provisions of this Section. If the parties to the dispute mutually agree upon one or more individuals to arbitrate the dispute, such individuals shall arbitrate the dispute. If the parties mutually agree upon the rules for conducting the arbitration, such rules shall govern the arbitration. If, however, the parties cannot agree upon the identity of the arbitrators and/or the rules for conducting the arbitration within seven (7) days after the notice demanding arbitration, either party may request the American Arbitration Association (the “AAA”) to appoint, on an expedited basis, one arbitrator who shall have substantial experience as an arbitrator, be experienced in the subject matter of the dispute and be able to commence the arbitration proceedings (with at least an initial hearing), according to the requirements of this Section and other complimentary rules of the American Arbitration Association, within fourteen (14) days after the appointment.
The arbitration proceedings shall be completed within thirty (30) days after the initial hearing and the arbitrator’s decision shall be provided to the parties within seven (7) days thereafter. The decision of the arbitrator shall be final and binding provided such decision is set forth in a writing by the arbitrator which recites the decision and all findings and orders relative to the implementation thereof including, without limitation, the amount and/or nature of any awards and the allocation of responsibility among the parties to pay the AAA fees and the fees of the attorneys and other professionals incurred by the parties, in accordance with this Section. The arbitrator’s decision may be enforced by a court of competent jurisdiction located in the State of Ohio. The parties hereby expressly submit to the jurisdiction of all federal and state courts located in the State of Ohio in connection with any action brought to enforce or otherwise relating to this Agreement.
Except where clearly inconsistent with the subject matter of the dispute, the parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved. Prior to receipt of the arbitrator’s decision, each of the parties shall pay their own expenses in connection with the mediation and/or arbitration and shall share the costs of any mediator and/or arbitrator. Members may request some or all of their arbitration expenses be covered by the Members, at a General or Special Meeting. The arbitrator may order that either of the parties that is entitled to an award on the merits of the dispute shall have its costs (including AAA fees and attorney and other professional fees), paid by the other party; provided, however, that the arbitrator shall have discretion to apportion the responsibility for the costs of the parties in the event that the arbitrator’s decision is not solely in favor of one of the parties.
Notwithstanding the foregoing requirement to arbitrate any dispute, in the event either of the parties determines it necessary to seek injunctive relief against another, the party seeking the injunction may seek such injunction without complying with the prerequisite of mediation and arbitration. The parties hereto agree that any arbitrator(s) utilized hereunder shall have the authority to issue injunctive orders for specific enforcement.
8.8. Waiver of Dissolution Rights - Each Individual Member irrevocably waives any right it may have to maintain any action for dissolution of the Community or for partition of the property of the Community.
8.9. Third Party Beneficiaries - The provisions of this Agreement are not intended to be for the benefit of any creditor or other person to whom any debts or obligations are owed by, or who may have any claim against, the Community or any of its Individual Members. Notwithstanding any contrary provision of this Agreement, no such creditor or person shall obtain any rights under this Agreement or shall, by reason of this Agreement, be permitted to make any claim against the Community or any Individual Member.
8.10. Interpretation - For the purposes of this Agreement, terms not defined in this Agreement shall be defined as provided in the Act; and all nouns, pronouns, and verbs used in this Agreement shall be construed as masculine, feminine, neuter, singular, or plural, whichever shall be applicable. Titles or captions of Articles of Organization and Sections contained in this Agreement are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof.
8.11. Counterparts - This Agreement may be executed in any number of counterparts with the same effect as if all parties had signed the same document, and all counterparts shall be construed together and shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto, have executed this Agreement under seal as of the date set forth above.
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