HomeMy WebLinkAboutMINUTES - 09132005 - C11 TO: BOARD OF SUPERVISORS
06,011
FROM: MAURICE M. SHIU,PUBLIC WORKS DIRECTOR
DATE: September 13, 2005
SUBJECT: Accepting Offer of Dedication for Roadway Purposes, for DP 02-03045, being developed by M
Central LLC,North Richmond area. (District n
SPECIFIC REQUEST(S)OR RECOMMENDATIONS)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION(S):
ADOPT Resolution No. 20051*SS4 for DP 02-03045,accepting Offer of Dedication for Roadway Purposes,for
project being developed by M Central LLC,North Richmond area. (District n
FISCAL IMPACT:
None.
BACKGROUND/REASON(S) FOR RECOMMENDATION(S):
Condition of Approval number 26 of DP 02-03 045 requires the applicant to dedicate an area 10 feet wide along the
property frontage of Central Street to the County for Roadway Purposes. The Public Works Department has
reviewed the legal description and Plat Map and have determined that they satisfy the condition.
CONSEQUENCES OF NEGATIVE ACTION:
The Offer of Dedication for Roadway Purposes will not be recorded and Condition of Approval number 26 will not
be satisfied.
Continued on Attachment: ✓ SIGNATURE:
,COMMENDATION OF COUNTY ADMINISTRATOR
RECOMMENDATION OF BOARD COMMITTEE
.,,e �PROVE OTHER
)Z01" 16 2
SIGNATURE(S):
ACTION OF BOV ON cO v Af APPROVED AS RECOMMENDED OTHER
I hereby certify that this is a true and correct
copy of an action taken and entered on the
minutes of the Board of Supervisors on the
VOTE OF SUPERVISORS � date shown.
UNANIMOUS(ABSENT
AYES: NOES:
ABSENT: ABSTAIN: �,,, /�
ATTESTED: �-�A 10* 00 S§M0
%W
JOHN SWEETEN, Clerk of the Board of
Ls:n►,
G:\GtpData\EngSvc\B0\2005\09-13\DP 02-02045 B0-30.doc Supervisors and County Administrator
Originator. Public Works(ES)
Contact: S.Gospodchikov(313-2316)
cc: Current Planning,Community Development Department
M Central LLC
Attn:Marvin Mendelsohn Byz4cDeputy
385 Pittsburg Ave.
Richmond,CA 94801
l
Recorded at the request of:
Contra Costa County
Board of Supervisors
Return to:
Public Works Department
Engineering Services Division
THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA
Adopted this Resolution on September 13, 2005 by the following vote:
AYES: Gioia,Piepho,DeSaulnier,Glover and Uilkema
NOES: None
ABSENT: None
ABSTAIN: None
RESOLUTION NO, 2005/"ff**ft6f
SUBJECT: Accepting Offer of Dedication for Roadway Purposes, for DP 02-03045, being
developed by M Central LLC,North Richmond area. (District n
IT IS BY THE BOARD RESOLVED that the following instrument is hereby ACCEPTED FOR
RECORDING ONLY:
INSTRUMENT REFERENCE GRANTOR AREA DISTRICT
Offer of Dedication for DP 02-03045 M Central LLC North I
Roadway Purposes Richmond
APN: 408-190-044
Ls:rn, I hereby certify that this is a true and correct copy of an
G:\GrpData\EngSvc\B0\2005\09-13\DP 02-02045 B0-30.doc action taken and entered on the minutes of the Board of
Originator: Public Works(ES)
Contact: S.Gospodchikov(313-2316) Supervisors on the date shown.
Recording to be completed by COB
cc: Current Planning,Community Development Depardnent
M Central LLC
Atte:Marvin Mendelsohn ` Y �� e
ass Pittsburg Ave. ATTESTED: �TG s"��o�
Richmond,CA 94801 JOHN SWEETEN, Clerk of the Board of Supervisors and
County Administrator
By ,Deputy
RESOLUTION NO,2005/
Recorded at the request of: CONTRA COSTA Co Recorder Office
Contra Costa County
Board of Supervisors STEPHEN L. WEIR Clerk-RetarderReturn to: �DOC
Public Works Department Wednlst�iy, SEP 14, 2005 15:15:37
Engineering Services Division FRE
y0.00
Area: North Richmond Tt I Pd $0100 Nbr-0002898296
Road: Central StreetI rc/R!3/1—26
Co.Road No.: 0565Y
Development No.: DP 02-3045
APN: 408-190-044
OFFER OF DEDICATION-ROAD PURPOSES
�. Y-c.)\ the undersigned,being the present title
owner of record of the herein described parcel of land, do hereby make an irrevocable offer of
dedication to Contra Costa County-,-a political subdivision of the State of California and its
successors or assigns, for street, highway landscaping and other public purposes, including
maintenance thereof, the fee title to real property situated in the County of Contra Costa, State of
California, as described in Exhibit "A" (written description) and shown on Exhibit "B" (plat map)
attached hereto.
It is understood and agreed that Contra Costa County and its successors or assigns shall incur no
liability with respect to such offer of dedication, and shall not assume any responsibility for the
offered parcel of land or any improvements thereon or therein,until such offer has been accepted by
appropriate action of the Board of Supervisors, or of the local governing bodies of its successors or
assims,,
%MOO
The provisions hereof shall inure to the benefit of Contra Costa County and it successors or assigns
and will be binding upon the title owner of record and that owner's heirs, successors or assigns.
The undersigned executed this instrument on le--1/ Cf
(Due)
Ivl Ce���` SLC
(Naw of owner as shown in tide report)
(Signature) V
(Print Name&TA4r I
M kf--V I N M ev Pi�ug ftw
(Signature)
(Print Nam&Title)
(See attached notary)
JD:Iad:rm
G:\GrpData\EngSvc\Laurie\projects\DP 3045-02\OF-6 5.26.04.doc
Approved by County Counsel—4/29/03
1
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
ss.
County of
f
l
On before me, 0A 0
,
Date Name and Titl of Off' r(e.g.,"Jan Doe,No blic
personally appeared A&-oi -.JAI
Name(s)of Signer(s)
❑personally known to me
roved to me on the basis of satisfactory
evidence
to be the personX whose nameb
LISA A.DALZIEL subscribed to the with' instrument and
'' Commission# 1377110
acknowledged to me that s� executed
Z � � Notary Public - California h /tV authorized
Contra Costa County
t MY Comm.Expires Sep 28,200 �, Y capac�ty(! and that b (9)/*/tr
signature
on the instrument the person%j,or
the entity upon behalf of which the person
acted, executed the instrument.
N S rpy hand and fficial s
SignatOFe of Notary Public .�
OPTIONAL
Though the info ation below is not required by law,it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document.
Description of Aft ed Document
Title or Type of Document:
Document Date: Number of es:
Signer(s)Other Than Named Above: f�
Capacity(ies) Claimed by Signer
Signer's Name:
RIGHT THUMBPRINT
OF SIGNER
❑ Individual Top of thumb here
❑ Corporate Officer —Titl •
❑ Partner —❑Limite General
❑ Attorney-in-Fac
❑ Trustee
❑ Guardian r Conservator
❑ Other:
Signer Is Representing:
01999 National Notary Association-9350 De Soto Ave.,P.O.Box 2402-Chatsworth,CA 91313-2402-www.nationainotary.org Prod.No.5907 Reorder:Call Toll-Free 1-800-876-6827
EXHIBIT "A"
CENTRAL STREET AREA DEDICATED TO CONTRA COSTA
COUNTY FOR ROADWAY PURPOSES
REAL PROPERTY IN TIS COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA,
DESCRIBED AS FOLLOWS:
BEING A PORTION OF THE PROPERTY GRANTED TO M CENTRAL LLC,RECORDED
SEPTEMBER 28, 2001,AT RECORDERS SERIES NO. 2001-291946,DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT ON THE WESTERLY LINE OF CENTRAL STREET, SAID
POINT BEARS SOUTH 010 2013911 WEST,43.36 FEET FROM THE INTERSECTION OF
THE NORTHERLY LINE OF BROOKSIDE DRIVE AND THE WESTERLY LINE OF
CENTRAL STREET. THENCE FROM TIS POINT OF BEGINNING,ALONG THE
WESTERLY LINE OF CENTRAL STREET, SOUTH 0102013911 WEST, 191.21 FEET;
THENCE ALONG TIS SOUTHERLY LINE OF SERIES N0.2001-291946,NORTH
88°50'1 8" WEST,, 10.00 FEET;
THENCE PARALLEL TO THE WESTERLY LINE CENTRAL STREET,NORTH 0102013911
EAST, 191.24 FEET,, TO THE NORTHERLY LINE OF SERIES N0.2001-291946; THENCE
SOUTH 88°40'32" EAST,, 10 FEET TO POINT OF BEGINNING.
O ��N0 S
0
AWN 0All
ob�3� 6K �
RbBEkT CT'ROCKEY L. 3050 E 6/3(� �
3
OF C Atli�F
BASIS OF'BEARINGS: BEARINGS ARE BASED ON THE EXHIBIT 19B)l
CALIFORNIA COORDINATE SYSTEM ZONE 111 (NAD27). 40, �N
THE BEARING IN 88° 50'13" W BETWEEN THE FOUND
2"IRON PIPE AND THE STANDARD CONTRA COSTA
COUNTY STREET MONUMENT ON PITTSBURG AVENUE � v �m
AS SHOWN ON THE RECORD OF SURVEY FILED APRIL w `o' w o
14, 1992, IN BOOK 100 OF LICENSED SURVEYORSMAPS I w luIAT PAGE 3 7 WAS USED AS THE BASIS OF BEARINGS (860' PER 1 M 7) � N ��i W
FOR THIS SURVEY. 859.86' _ U) o N_
o�
� M Z 2 0
E.B.M.U.D. N m o _c%j
N R_8*47384 900.00'N
17255 0.R.835
BROOKSIDE DR. N
S88'040'32"E 1001.39'(T)
10' P.O.B.
w PLAT OF CENTRAL
E w STREET DEDICATION
w
M CENTRAL LLC PREPARED BY:
SERIES N0.2001-291946
tiU) ROBERT C. TKOCKEY
a, E.. 'm LAND PLANNER, SURVEYOR, CIVIL ENGINEER
,ft-aft
u Z 5406 HEAVENLY RIDGE LN., EL SOBRANTE,
W 3 CA. 94803-2667 510) 232-6737
cr) U Q E—MAIL trockey@inf*iionlne.net
N N �
p
Z C) Z
W
U
AREA DEDICATED TO C.C.Co.
FOR ROADWAY PURPOSES . 07119105
ROBERT . TR Y S.3050 EXqfRES 06/30/06
0 LAND S
C.
t0' * LS 3050 �
N88c'50'18"W 1001-29*(T)>_ too Exp. 06/30/06 \Q
� a
M CC CORP.,
o
3:: 1633b OR 921 � I F OF- C
A�F
V < 90°11I'00"PER KISTER
SURVEY N0. 9196 22.86'
� Z 90°09'00"PER lo�
�I
10 100 LSM 37� o\py� 0 20 40 100
w = Ap �� � 17.14', mommor=_ mc ---- - ------
10 30 50
M BASIS OF BEARINGS U a SCALE: I I = 40'
Q 746.94MEAs. � PITTSBURG AVE. N" ON"�
(74 6.8 6 GRID)
� NB8°50'l3"W • N88°50'13"W 1095.t5/"s RESET RR SPIKE STAMPED LS 3 05 0 PER CONTRA
- COSTA COUNTY FILE N0. PA 0572B-72 DATED
(1095.08' GRID) JANUARY 1972 AND SURVEY BY DONALD KISTER
FOUND 2°IRON PIPE L.S.1712 FOUND STD. MONUMENT L.S. 1712 DATED 8/13/62. SURVEY N0. 9196, DWGNO.
PER C. C. CO. FILE N0. PA PER C. C. CO. FILE ND. PA K-2455 ON FILE WITH KSR INC.
05728-72 8 100 L.S.M. 37.1 0572B-72 & 100 L.S.M. 37, A.P.N. 408-190-044
4Q9JL94G
Basic Operating Agreement _
M Central, LLC
In accordance with the Beverly-Killea Limited Liability Company Act and subject to
the Articles of Organization, to be filed with the Secretary of State of California, the
members of West Ohio Avenue Land Company, listed on the signature page, make
the following agreement as of February 22, 2000, regarding the conduct of the
business and affairs of M Central, a California limited liability company
("Company"):
ARTICLE 1. DEFINITION OF TERMS
1.01. When used in this agreement, the following terms have the meanings set
forth here:
(a) "Act to, means California's Beverly,Killea Limited Liability Company Act, as set
forth in Corporations Code Title 2.5.
(b) "Agreement" means this operating agreement, as originally executed and as
amended from time to time.
(c) "Articles" means the Articles of Organization for the Company filed under Corp.
Code §17050, including all amendments thereto or restatements thereof.
(d) "Available cash" of the Company means all cash funds of the Company on hand
from time to time (other than cash funds obtained as contributions to the capital of
the Company by the members and cash funds obtained from loans to the
Company), after (1) payment of all
operating expenses of the Company as of such time, (2) provision for payment of all
outstanding and unpaid current obligations of the Company as of such time, and (3)
provision for a working capital reserve, as defined below.
(e) "Bankrupt" or "bankruptcy" means, with respect to any person, being the
subject of any order for relief under Title 11 of the United States Code, or any
successor statute.
(f) "Capital account" means the individual accounts established and maintained
pursuant to Paragraph 3.04.
(g) "Capital contribution" means the total value of cash and agreed fair market
value of property contributed and agreed to be contributed to the Company by each
member, as shown in Exhibit A. as the same may be amended from time to time.
M Central
Basic Operating Agreement
Page 1 of 18
#e4-v 9k4 G
(h) "Code" means the internal Revenue Code of 1986, as amended. All references
in this Agreement to sections of the Code include any corresponding provision or
. provisions of succeeding law.
(i) "Company" means M Central, a California limited liability company.
(j) "Entity" means any association, corporation, general partnership, limited
partnership, limited liability company, joint.stock association, joint venture, firm,
trust, business trust,
cooperative, and foreign association of like structure..
(k) "Interest" in the Company means the entire ownership interest of a Member in
the Company at any particular time, including the right of the member to any and
all benefits to which a Member may be entitled as provided in this Agreement and
under the Act, together with the obligations of the member to comply with all of the
terms and provisions of this Agreement.
(!) "Manager" means the person designated by the Members as the Chief Executive
Officer of the company, who is initially Marvin Mendelsohn.
(m) "Member" means a person who:
(1) Has been admitted to the Company as a Member in accordance with the
Articles of Organization or Operating Agreement, or an assignee of an interest in the
Company who has become a Member pursuant to Corp. Code §17303.
(2) Has not resigned, withdrawn, or been expelled as a Member or, if other
than an individual, been dissolved.,
(n) "Percentage interest"' of a Member means the percentage of the member set
forth opposite the name of the Member in Exhibit A attached to this Agreement,, as
the percentage may be adjusted from time to time pursuant to the terms of this
Agreement.
(o) "Principal office" means the office of the agent of this Company as shown in its
Articles.
(p) "Pro Rata Part" means the proportion that a percentage interest of a Member
bears to the aggregate interest in the Company of all Members.
(q) "Share" refers to an interest in the Company. Whenever reference is made to
"percentage interest," a share may be converted into the same by dividing a
Member's number of shares by the total of all shares outstanding.
M Central
Basic Operating Agreement
Page 2 of 18
291946
(r) "'Substitute Member" means any individual or entity that is admitted into
membership on the written consent of all Members in accordance with Paragraph
3.11.
(s) "Tax Matters Member" means the member chosen pursuant to Internal Revenue
Code §6231(a)(7)to deal with the Internal Revenue Service on tax matters.
ARTICLE 2. -ORGANIZATION OF COMPANY
Formation of Company
2.01. The Members have formed a limited liability company under the Act by
properly executing and filing the Articles and executing this Agreement. The rights,
duties, and liabilities of the Members and the Managers are determined pursuant to
the Act, the Articles, and this Agreement.
Company Name
2,,02, The name of the Company is M Central. The Company will transact business
under that name. However, the Company may conduct business under another
name if the Members think it advisable, provided that the Members comply with the
Act and any other applicable laws, file fictitious name certificates and the like, and
file any necessary amendments.
Company Purpose
2.03. The purpose of the Company is to purchase, sell, lease and develop real
property.
Duration of Company and Agreement
2.04. The duration of the Company and this Agreement is until February 22, 2020,
as provided in the Articles, unless the Company is dissolved earlier pursuant to
Article 25.
ARTICLE 3. MEMBERS AND MEMBERSHIP INTERESTS
Names, Addresses, and Initial Capital Contributions of Members
3,.01(a). Members, their respective addresses, their initial capital contributions to
the Company, and their respective percentage interests in the Company are set
forth on Exhibit A, attached to this Agreement and made a part of it. Each Member
M Central
Basic Operating Agreement
Page 3 of 18
��3.y46
agrees to make the initial contribution set out in Exhibit A in time-for escrow to
close on the acquisition of the West Ohio Avenue real property.
(b). If a Member fails to make an initial Capital Contribution required under section
3.01(a) (a Defaulting Member), the Manager shall notify each other Member (a
Nondefaulting Member) in writing of the total amount of Defaulting Member Capital
Contributions not made (the Capital Shortfall) and shall specify a number of days
within which each Nondefaulting Member may make an additional Capital
Contribution, which shall not be less than an amount bearing the same ratio to the
amount of Additional Capital Shortfall as the Nondefaulting Member's Capital
Account balance bears to the total Capital Accounts of all Nondefaulting Members.
If the total amount of Additional Capital Shortfall is not so contributed, the Manager
may use any reasonable method to provide Members the opportunity to make
additional Capital Contributions, until the Additional Capital Shortfall is as fully
contributed as possible. Following the Nondefaulting Members' making of such
additional Capital Contributions, each Member's Percentage Interest shall be
adjusted so that the proportion of the percentage share of the defaulting member
equal to the proportion of the shortfall to the defaulting member's total initial
capital contribution is distributed among the non-defaulting members in proportion
to their additional contributions.
Future Contributions
3.02(a). A majority of the Members may determine from time to time that Capital
contributions in addition to the Members' initial Capital Contributions are needed to
enable the Company to conduct its business. On making such a determination, the
Manager shall give notice to all Members in writing at least 90 days before the date
on which such additional Capital Contribution is due. The Notice shall set forth the
amount of additional Capital Contribution needed, the purpose for which it is
needed, and the date by which the Members shall contribute. Each Member shall
be required to make an additional Capital Contribution in an amount that bears the
same proportion to the total additional Capital Contribution .that such Member's
Capital Account balance bears to the total Capital Account balances of all Members.
No Member may voluntarily make any additional Capital Contribution.
(b). If a Member fails to make an additional Capital Contribution required under
section 3.02(x) within 90 days after notice is given by the Manager (a Defaulting
Member), the Manager shall notify each other Member (a Nondefaulting Member) in
writing of the total.amount of Defaulting Member Capital Contributions not made
(the Additional Capital Shortfall) and shall specify a number of days within which
each Nondefaulting Member may make an additional Capital Contribution, which
shall not be fess than an amount bearing the same ratio to the amount of Additional
Capital Shortfall as the Nondefaulting Member's Capital Account balance bears to
M Central
Basic Operating Agreement
Page 4 of 18
o6o%91946
the total Capital Accounts of all Nondefa'ulting Members. if the total amount of
Additional Capital Shortfall is not so contributed, the Manager may use any
reasonable method to provide Members the opportunity to make additional Capital
Contributions, until the Additional Capital Shortfall is as fully contributed as
possible. Following the Nondefaulting Members' making of such additional Capital
Contributions, each Member's Percentage Interest shall be adjusted so that the
proportion of the percentage share of the defaulting member equal to the
proportion of the shortfall to the defaulting member's total initial capital
contribution is distributed among the non-defaulting members in proportion to their
additional contributions.
M Central
Basic Operating Agseemer►t
Page 5 of 18
Member Loans or Services
3.03. Loans or services by any Member to the Company may not be considered to
be contributions to the capital of the Company. Any compensation which the
Company pays to a Member for services, and any payment made by the Company
to a Member on that Member's loan to the Company, shall not be treated as
payment made to that Member acting in his, her, or its capacity as a Member under
Internal Revenue Code Section 707.
Capital and Capital Accounts
3.04. (a) The initial Capital Contribution of each Member is as set forth in Exhibit
A. No interest may be paid on any Capital Contribution.
(b) The Company will establish and maintain individual Capital Accounts for each
Member pursuant to Treasury Regulation Section 1.704-1(b)(2Xiv).
(c) No Member has the right to withdraw his or her capital contribution or to
demand and receive property.of the Company or any distribution in return for his or
her Capital Contribution, except as may be specifically provided in this Agreement
or required by law. No Member may receive out of Company property any part of
his, her, or its capital contribution until (1) all liabilities of the Company, except
liabilities to Members on account of their loans, have been paid or sufficient
Company property remains to pay them, and (2) all Members consent, unless the
return of the contribution to capital is rightfully demanded as provided in the Act.
(d) Subject to the provisions of subparagraph (c) of this paragraph, a Member may
rightfully demand the return of his or her or its Capital-Contribution (1) after the
Company has been dissolved and wound up pursuant to Article 21 of this
Agreement, or (2) as may otherwise be provided in the Act. A member may
demand and receive only cash in return for the Member's Capital Contribution.
Admission of Additional Members
3.05. The Members may admit to the Company additional members to participate
in the profits, losses, available cash flow, and ownership of the assets of the
Company on such terms as are determined by all of the Members. Admission of
any additional Member requires the written consent of all members then having any
interest in the Company. Any additional Members are allocated gain, loss, income,
or expense by the method provided in this Agreement.,
M Central
Basic Operating Agreement
Page 6 of 18
2yIL946
Limitation on Liability
3.06. No Member is liable under a judgment, decree, or order of the court, or in
any other manner, for a debt, obligation, or liability of the Company, except as
provided by law. No Member is required to loan any funds to the Company.
No Individual Authority
3,,07, Unless expressly provided in this Agreement, no Member, acting alone, has
any authority to act for, or to undertake or assume, any obligation, debt, or
responsibility on behalf of, any other Member of the Company.
No Member Responsible for Other Member's Commitment
3,,08. In the event that a Member (or a Member's shareholders, partners,
members, owners, or affiliates) has incurred any indebtedness or obligation before
the date of this Agreement that relates to or otherwise affects the Company, neither
the Company nor any other Member has any liability or responsibility with respect
to the indebtedness or obligation unless the indebtedness or obligation is assumed
by the Company pursuant to a written instrument signed by all Members.
Furthermore, neither the Company nor any Member is responsible or liable for any
indebtedness or obligation that is subsequently incurred by any other Member (or a
Member's shareholder, partners, members, owners, or affiliates). In the event that
a Member (or a Members" shareholders, partners,, members, owners, or affiliates;
collectively called the "liable Member"), whether before or after the date of this
Agreement, incurs (or has incurred) any debt or obligation for which neither the
Company nor any of the other Members is to have any responsibility or liability, the
liable Member must indemnify and hold harmless the Company and the other
Members from any liability or obligation they may incur in respect of the debt or
obligation.
Transfer and Assignment of Membership Interests
3.09. No Member may assign, convey, sell, encumber, or in any way alienate all or
any part of his or her interest in the Company as a Member without the prior written
consent of all the other Members, which consent may be given or withheld,
conditioned or delayed (as
allowed by this Agreement or the Act), as the remaining Members may determine in
their sole discretion. Transfers in violation of this section are effective only to the
extent set forth in Subparagraph 3,12(b), below.,
Further Restrictions on Membership Transfers
M Central
Basic operating Agreement
Page 7 of 18
4
3.10. No Member may assign, convey, sell, encumber, or in any way alienate all or
any part of his or her interest in the Company(1) without registration under
applicable federal and state securities laws, or unless he or she delivers an opinion
of counsel satisfactory to the Company that registration under those laws is not
required; or (2) if the interest to be sold or exchanged would result in the tax
termination of the Company under Internal Revenue Code Section 708.
Substitute Members
3.11. A transferee may become a Substitute Member if(1) the requirements of
Subsections 3.09 and 3.10. above, are met; (2)the person executes an instrument
satisfactory to the remaining Members accepting and adopting the terms and
provisions of this Agreement; and
(3) the person pays all reasonable expenses in connection with his or her admission
as a remaining Member.
Effect of Transfer
3.12. (a) Any permitted transfer of all or any portion of a Member's interest in the
company takes effect on the first day of the month following receipt by the
Members of written notice of transfer. Any transferee of an interest in the company
takes subject to the restrictions on transfer imposed by this Agreement.
(b) On a transfer of a Member's interest in the Company in violation of this
Agreement-, the transferee has no right to participate in the management of the
business and affairs of the Company or to become a Member, but the transferee is
entitled only to receive the share of profits or other compensation by way of income
and the return of contributions to which the transferor of the interest in the
Company would otherwise be entitled. The transferring Member, also loses his, her
or its right to participate in the management of the business and affairs of the
Company, or, if the Member transfers less than all of the Member's interest, the
transferring Member's voting power is reduced to the proportion the Member's
remaining interest bears to the total of all interests held by Members.
Effect of Death,, Disability, or Loss of Control
3.13: If an individual Member dies, becomes permanently disabled, is
incarcerated, or loses control over the Member's financial affairs because, for
example, of appointment of a conservator or Bankruptcy Trustee, or if a Member
that is a business entity is dissolved or a controlling interest therein changes
ownership or control, or if a Member's interest is involuntarily transferred because,
for example, of a division of property pursuant to a dissolution of marriage or
execution of a judgment, then the remaining Members may, at their sole discretion,
M Central
Basic Operating Agreement
Page 8 of 18
2o.631946
(f) Commission of an act that would make it impossible for the Company to
carryon its ordinary business;
(g) Commission of an act that would contravene this Agreement; or
(h) Undertaking a new development project.
ARTICLE 8. ALTERATION OF MANAGEMENT RESPONSIBILITIES
8.01. Management responsibilities may not be altered except by the action of a
majority in interest of all Members at a meeting called on written notice expressly
describing alteration of management responsibilities as one of the purposes of the
meeting.
ARTICLE 9. MANAGING MEMBER COMPENSATION
9.01. Members may receive compensation as determined by all Members for
services provided in the management of the Company.
ARTICLE 10. REIMBURSEMENT OF EXPENSES
10,01,, Each Member is entitled to reimbursement from the Company of all
expenses of the Company reasonably incurred and paid by the Member on behalf of
the Company..
ARTICLE 11. POWERS OF MANAGERS
11,901 Except as otherwise expressly provided, all necessary powers to carry out
the purposes, business, and objectives of the Company, including the right to enter
into and carry out contracts of all kinds; to employ employees, agents, consultants,
and advisors on behalf of the Company; to lend or borrow money and to issue
evidences of indebtedness; to bring and defend actions in law or at equity; to pay
out Company funds; and to buy, own, manage, sell, lease, mortgage, pledge, or
otherwise acquire or dispose of Company property, may be exercised by the
Manager.
ARTICLE 12. COMPANY BOOKS AND RECORDS
12.01. The Members may employ a competent person to be responsible for
authenticating the records of the Company, including keeping correct and complete
books of account that show accurately at all times the financial condition of the
Company; safeguarding all funds, notes, securities, and other valuables that may
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from time to time come into possession of the Company; and depositing all funds of
the Company with such depositories as the Members designate. The employee may
have other duties that the Members from time to time jointly prescribe, but under
no circumstances does the employee have any of the rights, powers,
responsibilities, or duties of a Member of the Company. Any person responsible for
the above-described duties may be terminated at any time by the Members, and the
Members may restrict the duties and/or authority of the person responsible for
these duties at any time,
ARTICLE 13a QUORUM
13.01. At all meetings of the Members, all Members must be present to constitute
a quorum for transaction of business.
ARTICLE 14,. ACTIONS BY MEMBERS AND VOTING RIGHTS
Votes Required to Act
14.01. Except as otherwise provided in this Agreement, an act of the Members of
record is effective if the majority of Members" votes adopt the act at a meeting at
which a quorum of Members is present,, The voting rights of the Members are to be
distributed in proportion to each Member's contribution to capital.
Actions of Tax Matters Member
14,02, The Tax Matters Member of the Company, chosen pursuant to Internal
Revenue Code Section 6231(a)(7), is Marvin Mendelsohn, who has the same
authority as granted by the Internal Revenue Code to a tax matters partner.
ARTICLE 15. ACTION BY CONSENT WITHOUT MEETING
15.01. Any action permitted to be taken by the Members may be taken without a
meeting if all Members individually or collectively consent by signing a written
0 1k a
approval of the action. Any action by written consent shall have the sa-1-le force and
effect as a unanimous vote of the Members.,
ARTICLE 16, RECORD DATE
16.,01, Only persons whose names are listed as members in the official records of
the Company 10 days before any meeting of the Members are entitled to notice of
or to vote at that meeting,
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ARTICLE 17. VOTE BY PROXY
17.01. Members may vote either in person or by proxy. Proxies must be executed
in writing by the Members. A telegram, cablegram, or similar transmission by the
member or a photographic, photostatic. facsimile, or similar reproduction of a
writing executed by a Member is .deemed an execution in writing for purposes of
this Agreement.
ARTICLE 18. ALLOCATIONS: DISTRIBUTIONS AND INTERESTS
Allocation of Net Income, Net Loss, or Capital Gains
18.01. (a) Except as may be expressly provided otherwise in this Article 20, and
subject to the provisions of Internal Revenue Code Section 704(c), the net income,
net loss, or capital gains of the Company for each fiscal year of the Company is
allocated to the Members, first, until the Members' capital contributions have been
repaid in full without interest, in proportion to their capital contributions, and
thereafter pro rata in accordance with their percentage interests in the Company.
(b) If a Member, on formation of the Company or at any time thereafter, contributes
property with an adjusted income tax basis different from the fair market value at
which the property is accepted and credited to that Member's capital account, then
solely for income tax purposes and the determination of each Member's distributive
share of the net Company profits and losses, any depreciation, depletion, gain, or
loss with respect to that property shall, pursuant to Internal Revenue Code Section
704(c) of 1986 and Treasury Regulation Section 1.704-3 , be allocated according to
the traditional method with remedial allocations.
Distribution of Available Cash
18.02. Periodically, but not less frequently than at the end of each calendar
quarter,, the available cash of the Company, if any, must be distributed to the
Members, pro rata in accordance with their percentage interests,, For any calendar
quarter, available cash need not be distributed to the extent that the cash is
required for a reasonable working capital reserve for the Company; the amount of
the reasonable working capital reserve is to be determined by the Manager.
Allocation of Income and Loss and Distributions in Respect of Interests Transferred
18.03. (a) If any interest in the company is transferred, or is increased or
decreased by reason of the admission of a new Member or otherwise, during any
fiscal year of the Company, each item of income, gain, loss,, deduction, or credit of
the Company for the fiscal year must be assigned pro rata to each day in the
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particular period of the fiscal year to*wWich the item is attributable (that is, the day
on or during which it is accrued or otherwise incurred). The amount of each item
so assigned to any day shall, if the Members' capital contributions have not been
fully repaid, be allocated to the Member based on his or her capital contribution in
the Company at the close of the day or, if the members' capital contributions have
been fully.repaid, be allocated to the Member based on his or her percentage
interest in the Company at the close of the day,, For the purpose of accounting
convenience and simplicity, the Company may treat a transfer of, or an increase or
decrease in, an interest in the Company that occurs at any time during a
semimonthly period (commencing with the semimonthly period including the date
of this Agreement) as having been consummated on the first day of the
semimonthly period. regardless of when during the semimonthly period the
transfer, increase, or decrease actually occurs (that is, sales and dispositions made
during the first 15 days of any month are deemed to have been made on the 16th
day of the month).
(b) Distributions of the Company assets in respect of any interest in the Company
shall be made only to the Members who, according to the books and records of the
Company, are holders of record of the interests in respect of which the distributions
are made on the actual date of distribution. Neither the Company nor any Member
incurs any liability for making distributions in accordance with the provisions of the
preceding sentence, whether or not the Company or Member has knowledge or
notice of any transfer or purported transfer of ownership of interest in the Company
that has not been approved by unanimous vote of the Members. Notwithstanding
any provision above to the contrary, gain or loss of the Company realized in
connection with a sale or other disposition of any of the assets of the Company
must be allocated solely to the parties owning interests in the Company as of the
date the sale or other disposition occurs.
ARTICLE 19. INDEMNIFICATION OF MEMBERS AND MEMBERS' FIDUCIARY
DUTIES
19.01. The Company will indemnify Members for any act taken in the capacity of a
Member, other than acts that involve a breach of fiduciary duty. The standard of
the fiduciary duty a Member owes to the Company and to its members are those of
a partner to a partnership and to the partners of the partnership. A Member's
standard of conduct owed to the Company and other Members is to act in the
highest good faith to the Members, and a Member may not seek to obtain an
advantage in the Company affairs by the slightest misconduct, misrepresentation,
concealment, threat, or adverse pressure of any kind.
ARTICLE 20. COMPANY RECORDS AND REPORTS
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Required books and Records
20.01. The Company shall keep the following books and records in compliance with
Corp. Code § 17058 :
(a) A current list setting forth, in alphabetical order, the full name and last known
business or residence address of each Member and of each holder of an economic
interest in the Company, together with the contribution and the share in profits and
losses of each Member and holder of an economic interest.
(b) A copy of the Company's articles of-organization and all amendments thereto,
together with any powers of attorney pursuant to which the articles of organization
or any amendments thereto were executed.
(c) Copies of the Company's federal, state, and local income tax or information
returns and reports, it any, for the six most recent taxable years.
(d) A copy of this Agreement, and any amendments thereto, together with any
powers of attorney pursuant to which any written operating agreement or any
amendments thereto were executed.
(e) Copies of the Company's financial statements, if any, for the six most recent
fiscal years.
(f) Accurate books' and records of the Company's internal affairs for at feast the
current and past four fiscal years.
Records and Accounting; Fiscal Year
20.02 The books and records of the Company must be kept, and the financial
position and the results of its operations recorded, in accordance with the
accounting methods elected to be followed by the Company for federal and state
income tax.purposes, The books and records of the Company must reflect all
Company transactions and must be appropriate and adequate for the Company's
business. The fiscal year of the Company for financial reporting and for federal
income tax purposes is the calendar year.
Access to Accounting Records
20.03. All books and records of the Company must be maintained at any office of
the Company or at the Company's principal place of business, and each Member,
and his or her duly authorized representative, must have access to them at the
office of the Company and the right to inspect and copy them at reasonable times.
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Annual and Tax Information
20.44. The Members must use their best efforts to cause the Company to deliver to
each Member, within thirty days after the end of each fiscal year, all information
necessary for the preparation of each Member's federal income tax return. The
Members must also use their best efforts to cause the Company to prepare, within
sixty days after the end of each fiscal year, a financial report of the Company for the
fiscal year, which must contain a balance sheet as of the last day of the year then
ended, an income statement for the year then ended, a statement of sources and
applications of funds, and a statement of reconciliation of the capital accounts of
the Members.
ARTICLE 21. DISSOLUTION AND WINDING UP OF COMPANY
Events Causing Dissolution
21.01. The Company shall be dissolved, its assets shall be disposed of, and its
affairs shall be wound up on the first to occur of the following events:
(a) A determination by members owning more than 50 percent of the interests in
the Company that the Company should be dissolved..
(b) The expiration of the Company term, as stated in the Articles.
(c) On the death, insanity, bankruptcy, retirement, resignation,, or expulsion of any
Member unless at least 50 percent of the remaining Members consent to continue
the Company within 90 days of the dissolution event.
(d) At any earlier time as may be provided by applicable law.
Persons Who May Conduct Winding Up
21.02 (a) The Members who have not wrongfully dissolved the Company may wind
up the Company's affairs. The persons winding up the affairs of the Company shall
give written notice of the commencement of winding up by mail to all known
creditors and claimants whose addresses appear on the records of the Company.
(b) The Members winding up the Company's affairs shall be entitled to reasonable
compensation.
Distribution of Assets After Provision for Payment of Creditors.
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21.03 (a) After determining that all the'known debts and liabilities of the Company
including, without limitation, debts and liabilities to Members who are creditors of
the Company, have been paid or adequately provided for, the remaining assets shall
be distributed among the Members according to their respective rights and
preferences as
follows:
(1) To members in satisfaction of liabilities for distributions pursuant to
Corporations Code Sections 17201, 17202, or 17255.
(2) To Members for the return of their contributions.
(3) To Members in the proportions in which those Members share in
distributions.
(b) The payment of a debt or liability, whether the whereabouts of the creditor is
known or unknown, has been adequately provided for if the payment has been
provided for by either of the following means:
(1) Payment thereof has been assumed or guaranteed in good faith by one or
more financially responsible persons or by the United States government or any
agency thereof, and the provision, including the financial responsibility of the
person, was determined in good faith and with reasonable care by the Members to
be adequate at the time of any distribution of the Company's assets pursuant to
this Paragraph 24,.03.
(2) The amount of the debt or liability has been deposited with the Controller
of the State of California-pursuant to Corporations Code Section 2008.
ARTICLE 22. MISCELLANEOUS PROVISIONS
Complete Agreement
22.01. This Agreement and the Articles of this Company constitute the complete
and exclusive statement of agreement among the members with respect to the
subject matter described. This Agreement and the Articles replace and supersede
all prior agreements by and among any of the Members., This Agreement and the
Articles supersede all prior written and oral statements; no representation,
statement, or condition or warranty not contained in this Agreement or the Articles
is binding on the members or has any force or effect.
Governing Law
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22,,02. This Agreement and the rights.of the parties under this Agreement will be
governed by, interpreted, and enforced in accordance with the laws of the State of
California.
Binding Effect
22.03. Subject to the provisions of this Agreement relating to transferability, this
Agreement is binding on and inures to the benefit of the Members,, and their
respective distributees, successors, and assigns.
Severability
22.04. If any provision of this Agreement is held to be illegal, invalid, or
unenforceable under the present or future laws effective during the term of this
Agreement, the provision is fully severable; this Agreement is construed and
enforced as if the illegal, invalid. or unenforceable provision had never comprised a
part of this agreement; and the remaining provisions of this Agreement will remain
in full force and effect and will not be affected by the illegal, invalid. or
unenforceable provision; and there will be added automatically as a part of this
Agreement a provision as similar in terms to the illegal, invalid, or unenforceable
provision as may be possible and be legal, valid, and enforceable.
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Multiple Counterparts
22.05. This Agreement may be executed in several counterparts, each of which is
deemed an original but all of which constitute one and the same instrument.
However, in making proof only one copy signed by the party to be charged is
required.
Additional Documents and Acts
22.06. Each Member agrees to execute and deliver additional documents and
instruments and to perform all additional acts necessary or appropriate to
effectuate, carry out, and perform all of the terms, provisions, and conditions of this
Agreement and the transactions contemplated by it.
No Third Party Beneficiary
22.07. This Agreement is made solely and specifically among and for the benefit of
the parties to it, and their respective successors and assigns, subject to the express
provisions of the agreement relating to successors and assigns, and no other
person has or will have any
rights, interest, orclaimsunder this Agreement as a third-party beneficiary or
otherwise.
Tax Consequences
22,,08. Members acknowledge that the tax consequence of each Member's
investment in the Company is dependent on each Member's particular financial
circumstances. Each Member will rely solely on the Member's financial advisors
and not the Company.. The Company makes no warranties as to the tax benefits
that the Members receive or will receive as a result of the Member's 'investment in
the Company,
Notices
22.09. Any notice to be given.or to be served on the Company or any party to this
Agreement in connection with this Agreement must be in writing and is deemed to
have been given and received when delivered to the address specified by the party
to receive the notice. Notices must be given to each Member at the address
specified in Exhibit A. Any Member or the Company may, at any time, designate
any other address in substitution of the foregoing.address by giving written notice
to the other Members and the Company.
Amendments
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22.10. Any provision of this Agreement may be amended only with affirmative vote
of the number of Members that would be required to approve the action authorized
by the provision prior to its amendment. All amendments to this Agreement must
be in writing and signed by all of the Members.
Title to Company Property
22.11. Legal title to all property of the Company must be held and, conveyed in the
name of the Company.
Reliance on Authority of Person Signing Agreement
22.12. In the event that a Member is not a natural person, neither the Company
nor any Member will (1) be required to determine the authority of the individual
signing this agreement to make any commitment or undertaking on behalf of the
entity or to determine any fact or circumstance bearing on the existence of the
authority of the individual, or (2) be required to see to the application or
distribution of proceeds paid or credited to individuals signing this Agreement on
behalf of the entity,
IN WITNESS WHEREOF, the undersigned have executed this Agreement, to be
effective as of the date of the Articles of Organization of the Company are accepting
for fi I i ng by the Secretary of State.
Dated. 9IZG/o/ ,�,,�
Lester B. Finkel And Dalorie Finkel
Trustees oftfe Finckel Family Trust
Dated: �� O/
r
Adele MendetsoA
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Exhibit A
NAME CAPITAL PERCENTAGE SHARE
CONTRIBUTION
Lester Finckel and Dalorie Finckel $ 5p,p96
Trustees of the Finckel Family Trust
2 St. James Drive
Piedmont, CA 94611
Adele Mendelsohn $ 50,0%
5 Van Ripper Lane
Orinda, CA 94563
Dated:
Lester B. Finkel and Dalorie Finkel
Trustees of the Finckel Family Trust
Dated: a� GI --
Adele Mendelso(?�
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