HomeMy WebLinkAboutRESOLUTIONS - 05152007 - 2007-262 Recorded at the request of-
Contra
fContra 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 May 15, 2007 by the following vote:
AYES: Gioia,Uilkema, Bonilla,
Glover and Piepho
NOES: None
ABSENT: None
ABSTAIN: None
RESOLUTION NO. 2007/ ,%ew
SUBJECT: Approving Deferred Improvement Agreement along San Pablo Dam Road for Minor
Subdivision 04-00025, (APN 435-120-008), for project being developed by Pacific
Northwest Services, El Sobrante area. (District I)
The Public Works Director has recommended that he be authorized to execute a Deferred
Improvement Agreement with Pacific Norwest Services,as required by the Conditions of Approval
for Minor Subdivision 04-00025. This agreement would permit the deferment of construction of
permanent improvements along San Pablo Dam Road, in the El Sobrante area.
IT IS BY THE BOARD RESOLVED that the recommendation of the Public Works Director
is APPROVED.
AH:vz I hereby certify that this is a true and correct copy of an action
G:\EngSvc\BO\2007\05-15\BO-12 MS O4-0025.doc taken and entered on the minutes of the Board of Supervisors
Originator: Public Works(ES) on the date shown
Contact: S.Gospodchikov(313-2316)
Recording to be completed by Title Company ATTESTED: & /V
cc: Current Planning,Community Development JOHN CULLEN, CI of the Board of Supervisors and
North American Title Company
3211 Ante Plaza Drive County Administrator
Richmond,CA 94806
Attn:Kris Kirbam By , Deputy
RESOLUTION NO. 2007/ ��
Recorded at the request of.
Contra Costa County
Public Works Department
Engineering Services Division
Return to:
Public Works Department
Engineering Services Division
Records Section
r
Area: �PY+ �
Road: f'N PfV" PA1"✓L ZyA-
Co.Road No: 09,li 1 1D
Project: r 1--IS n�I1C2G�
APN:
DEFERRED IMPROVEMENT AGREEMENT
(Project: M D 9 — o0 Z S— )
THESE SIGNATURES ATTEST TO THE PARTIES'AGREEMENT HERETO:
CONTRA COSTA COUNTY OWNER: (See note below)
Maurice M. Shiu,Public Works Director
By: l"
RECOMMENDED FOR APPROVAL:
B �'
y' s gno urzl
Engineering Se ices Division
FORM APPROVED: Victor J. Westman, County Counsel
(NOTE: This document is to be acknowledged with signatures as they
appear on deed of title. If Owner is incorporated, signatures must
conform with the designated representative groups pursuant to
Corporations Code§313.)
(see attached notary)
1. PARTIES. Effective on `S� the County of Contra Costa, hereinafter referred to as
"County" and PA C /Gi L N n ILSfaD OMreinafter referred to as"Owner"mutually agree and promise as follows:
2. PURPOSE. Owner desires to develop the property described in Exhibit"A"attached hereto and wishes to defer construction of permanent
improvements,and County agrees to such deferment if Owner constructs improvements as herein promised.
3. AGREEMENT BINDING ON SUCCESSORS IN INTEREST. This agreement is an instrument affecting the title or possession of the real
property described in Exhibit"A." All the terms,covenants and conditions herein imposed are for the benefit of County and the real property or interest
therein which constitutes the County road and highway system and shall be binding upon and inure to the benefit of the land described in Exhibit"A"
and the successors in interest of Owner. Upon sale or division of the property described in Exhibit"A",the terms of this agreement shall apply separately
to each parcel,and the owner of each parcel shall succeed to the obligations imposed on Owner by this agreement. Upon annexation to any city,Owner,
or those who succeed him as owner of the property described in Exhibit"A,"shall fulfill all the terms of this agreement upon demand by such city as
though Owner had contract with such city originally. Any annexing city shall have all rights of a third party beneficiary.
4. STREET AND DRAINAGE IMPROVEMENTS:
A. The improvements set forth in this section may be deferred by Owner and shall be constructed when required in the manner
set forth in this agreement. The deferred improvements required by County Department of Public Works are generally described on Exhibit"B"attached
hereto. Each of said improvements relate to the use,repair,maintenance or improvement of,or payment of taxes,special assessments or fees on,the
property described in Exhibit"A."
B. When the County Public Works Director determines that there is no further reason to defer construction of the
improvements because their construction is necessary for the public health,welfare and safety and/or is necessary to the orderly development of the
surrounding area,he shall notify Owner in writing to commence their installation and construction. The notice shall be mailed to the current owner or
owners of the property as shown on the latest adopted County assessment roll. The notice shall describe the work to be done by Owner,the time within
which the work shall commence and the time within which the work shall be completed. All or any portion of said improvements may be required at
a specified time. Each Owner shall participate on a pro rata basis in the cost of the improvements to be installed. If Owner is obligated to pay a pro rata
share of a cost of a facility provided by others,the notice shall include the amount to be paid and the time when payments must be made.
5. PERFORMANCE OF THE WORK. Owner shall perform the work and make the payments required by County as set forth herein or as
modified by the Board of Supervisors. Owner shall cause plans and specifications for the improvements to be prepared by competent persons legally
qualified to do the work and shall submit said improvement plans and specifications for approval prior to commencement of the work described in the
notice and to pay County inspection fees. The work shall be done in accordance.with County standards in effect at the time improvement plans are
submitted for approval. Owner agrees to commence and complete the work within the time specified in the notice given by the Director of Public Works
and to notify the County at least 48 hours prior to start of work. In the event Owner or his successor(s) in interest fails to construct any of the
improvements required under this agreement,County may,at its option,do the work. A lien is hereby created on all property described in Exhibit"A"
for the cost of such work. If County sues to compel performance of this agreement,to recover the cost of completing the improvements or to enforce
the aforementioned lien,Owner shall pay all reasonable attorney's fees,costs of suit and all other expenses of litigation incurred by County in connection
therewith,and said attorney's fees,costs and other expenses shall also become a lien on the property described in Exhibit"A". If the property described
in Exhibit"A"is subdivided at the time said liens are imposed,the amount of said liens shall be divided proportionately among the various parcels.
Permission to enter onto the property of Owner is granted to County or its contractor as may be necessary to construct the improvements covered by this
agreement.
6. JOINT COOPERATIVE PLAN. Upon notice by County,Owner agrees to cooperate with other property owners,the County,and other public
agencies to provide the improvements set forth herein under a joint cooperative plan including the formation of a local improvement district,if this
method is feasible to secure the installation and construction of the improvements.
7. REVIEW OF REQUIREMENTS. If Owner disagrees with the requirements set forth in any notice to commence installation of improvements,
he shall,within 30 days of the date the'nonce was mailed,request a review of the requirements by the Board of Supervisors of County. The decision
of this Board shall be binding upon both County and Owner.
8. ACCEPTANCE OF IMPROVEMENTS. County agrees to accept those improvements specified in Exhibit"B"which are constructed and
completed in accordance with County standards and requirements and are installed within rights of way or easements dedicated and accepted by resolution
of the Board of Supervisors. Owner agrees to provide any necessary temporary drainage facilities,access road or other required improvements,to assume
responsibility for the proper functioning thereof, to submit plans to the appropriate County agency for review, if required, and to maintain said
improvements and facilities in a manner which will preclude any hazard to life or health or damage to adjoining property.
9. BONDS. Prior to County approval of improvement plans,Owner may be required to execute and deliver to the County a faithful performance
bond and a payment bond in an amount and form acceptable to County to be released by the Board of Supervisors in whole or in part upon completion
of the work required and payment of all persons furnishing labor and materials in the performance of the work.
10. INSURANCE. Owner shall maintain, or shall require any contractor engaged to perform the work to maintain, at all times during the
performance of the work called for herein a separate policy of insurance in a form and amount acceptable to County.
11. INDEMNITY. The Owner shall defend,indemnify and save harmless the County,it's officers,agents and employees,from every expense,
liability or payment by reason of injury(including death)to persons or damage to property suffered through any act or omission,including passive
negligence or act of negligence, or both, of Owner, his developer, contractors, subcontractors, employees, agents, or anyone directly or indirectly
employed by any of them,or arising in any way from work called for by this agreement,on any.part of the premises,including those matters arising out
of the deferment of permanent drainage facilities or the adequacy, safety, use or non-use of temporary drainage facilities, or the performance or
nonperformance of the'work. This provision shall not be deemed to require the Owner to indemnify the County against the liability for damage arising
from the sole negligence or willful misconduct of the County or its agents,servants,or independent contractors who are directly responsible to the County.
:kw
G:\GrpData\EngSvc\For \AG WORD\AG-12.doc
Rev. April 6,2000
1
STATE OF CALIFORNIA /_
COUNTY OF /)y� /mo-
On ebefore me,
personally appeared�R jai ZTz4in—�,7
sonally known to me—OR—( )proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)
is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies),and that by his/her/their signature(s)on the
instrument the person(s),or the entity upon behalf of which the
GRACE RILVERIA person(s)acted,execut 'the instrument.
Commission#1595306
Notary Public•Californla WITNESS m ha and official seal.
Contra Costa County
tvly Comm.Explres Aug 12,2009
(This area for official notarial seal)
DESCRIPTION OF ATTACHED DOCUMENT
DESCRIPTION OF DOCUMENT(OPTIONAL)
STATE OF CALIFORNIA
COUNTY OF
On before me,
personally appeared
( )personally known to me—OR—( )proved to me on the basis of satisfactory evidence to be the person(s)whose name(s)
is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized
capacity(ies),and that by his/her/their signature(s)on the
instrument the person(s),or the entity upon behalf of which the
person(s)acted,executed the instrument.
WITNESS my hand and official seal.
(This area for official notarial seal)
DESCRIPTION OF ATTACHED DOCUMENT
DESCRIPTION OF DOCUMENT(OPTIONAL)
I
MS O4-0025 (D.,No.mfumce)
EXHIBIT "A"
All that real property situated in the County of Contra Costa,State of California,described as
follows:
All of Parcels A and B, shown on the parcel map of Subdivision MS 04-0025 on file at
the County Recorder's Office as follows:
Date:
Book:
Page:
JD:mw
WDaM Svc\Eor \EXHIBITS WORD\EXHIBIT-A.doc
RE: MS 04-0025
EXHIBIT "B"
IMPROVEMENTS
Improvements required by Contra Costa County Community Development Department and the
County Ordinance Code as a condition of approval for the above-referenced development are located
along San Pablo Dam Road for Parcels A and B described in
Exhibit "A":
1. Approximately 85 linear feet of curb, face of curb located 3 meters (10 feet)
from the right of way line.
2. Approximately 85 linear feet of 4-foot 6-inch sidewalk,width measured from
curb face, built monolithic with the curb.
3. Approximately 255 square feet of street paving to pave between the
existing pavement and the lip of gutter.
4. Necessary longitudinal and transverse drainage.
5. Necessary street lights. The final number and location of the lights will be determined by the
County Public Works Department.
6. Temporary conforms for paving and drainage as may be necessary at the time of
construction.
7. Submit improvement plans to the Public Works Department,Engineering Services Division,
for review; pay an inspection and plan review fee and applicable lighting fee.
CONSTRUCTION
Any necessary relocation of utility facilities shall be the responsibility of the owner or his agent.
The construction of the above deferred improvements shall begin as outlined in Item 4B of the
agreement or when either of the following occurs:
1. San Pablo Dam Road is constructed to
its ultimate planned width by the County or by an assessment district.
2. Frontage improvements are constructed adjacent to the subject property.
It is the intent at this time that the"pro rata basis"of costs,as specified in Item 4B of the agreement,
shall mean that the owners of each parcel shall pay 50% of the costs.
:mW
G:\GrpData\EngSvc\Forms\EXFBBITS WORD\EXMBIT-B.doe
Rev.April 25,2007
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SECRETARY OF STATE RY
I, BILL JONES, Secretary of State of the State of California,
hereby certify:
That the attached transcript of page(s)- was
prepared by and in this office from the record on file, of
which it purports to be a copy, and that it is full, true
and correct'.
IN WITNESS WHEREOF, I execute this
certificate and affix the Great Seal of
the State of California this day of
e
APR 0 5 2001
l -6
Secretary of State
rf�fl`Fi
L59c/Swa Form cF-1 oe(rem.3.,59)
OSP W 42419
1
JVL 1V LVVV IMI vv• iv Ip, yyvyLJ1 , , ,��, ��
State of California 000LA 10/P9
File# D
Bill Jones
FILED
Secretary Of State of
the office of the Secretary of State
of the State of califof;l a
LIMITED LIABILITY COMPANY MAR 14 201
ARTICLES OF ORGANIZATION
A $70.00 filing fee must accompany this form. '
IMPORTANT— Read instructions before completing this form. BR!XWES,Secretary of State
This Space For Filing Use Only
1. Name of the limited liability company (end the name with,the words'Llmhad Liability Company," Ltd.Llablllty Co or the abbreviations"LLC"or
"L.L,C,") Pacific Northwest: Services , L .L .C.
2. The purpose of the limited liability company Is to engage in any lawful act or activity for which a limited liability company may be:
organized under the Beverly-Killea limited liability company act.
3. Name the agent for service of process and check the appropriate provision below: ,
Patricia Johnson which is
ec;d an individual residing in California. Proceed to item 4.
[ ) a corporation which has filed a certificate pursuant to section 1506• Proceed to item 5.
4, If an individual,California address of the agent for service otprocess:
Address: 3223 Blume Drive
city: Richmond State: CA Zip Code:
S. The limited liability company will be managed by: (check one) --•- ... -
k)ono manager [ ]more than one manager [ )single member limited liability company'( ]all limited liability company members
6. Other matters to be included in this certificate may be set forth �n separate attached pages and are made a part of this certificate.
Other matters may include the latest date on which the limited liability company is to dissolve,
7- Number of pages attached, if any:
8. Type of business of the limited liability company.(For informational purposes only)
The acquisition , management and selling of real property.
9. DECLARATION; It is hereby declared that I am the person who executed this instrument,which execution is my act and deed.
MATJA PFT7Y
Signature of c6banizer Type or Print Name of Organizer
— 31/3./ pl
Date
10. RETURN TO:
�F�cE of
NAME � MAIJ.A PELLY, ESQ.
FIRM ARCHER NORRIS N
ADDRESS 2300 NORTH MAIN STREET, SUITE 800
CITWSTATE k1AINUT CREEK, C.A 94596
ZIP CODE L J R1►��
SECISTATE (REV. 12f99) FORM LLC-1—FILING FEE$70.00
Approved by Secretary of State
OPERATING AGREEMENT for
PACIFIC NORTHWEST SERVICES,LLC
a California Limited Liability Company
This Operating Agreement is entered as of March_, 2001 by Gary Torretta and The
Bums Family 1996 Trust, Jack D. Bums, Special Trustee (referred to individually as a Member
and collectively as the Members).
RECITALS
A. The Members desire to form a limited liability company("Company") under the
Beverly-Killea Limited Liability Company Act.
B. The Members enter into this Operating Agreement in order to form and provide
for the governance of the Company and the conduct of its business and to specify their relative
rights and obligations.
NOW THEREFORE, the Members hereby agree as follows:
ARTICLE I: DEFINITIONS
The following capitalized terms used in this Agreement have the meanings specified in
this Article or elsewhere in this Agreement and when not so defined shall have the meanings set
forth in California Corporations Code section 17001.
I.I. "Act"means the Beverly-Killea Limited Liability Company Act(California.
Corporations Code sections 17000-17705), including amendments from time to time.
1.2. "Agreement"means this Operating Agreement, as originally executed and as
amended from time to time.
1.3. "Articles of Organization" is defined in California Corporations Code section
17001(b) as applied to this Company.
1.4. "Assignee"means a person who has acquired a Member's Economic Interest in
the Company,by way of a Transfer in accordance with the terms of this Agreement, but who has
not become a Member.
1.5. "Assigning Member"means a Member who by means of a Transfer has
transferred an Economic Interest in the Company to an Assignee.
1.6. "Capital Account"means, as to any Member, a separate account maintained and
adjusted in accordance.with Article III, Section 3.3.
1.7. "Capital Contribution"means,with respect to any Member, the amount of the
money and the Fair Market Value of any property(other than money) contributed to the
S0111033/15Z285-1 1
I
Company (net of liabilities secured by such contributed property that the Company is considered
to assume or take "subject to"under IRC section 752) in consideration of a percentage Interest
held by such Member. A Capital Contribution shall not be deemed a loan.
I.S. "Capital Event"means a sale or disposition of any of the Company's capital
assets, the receipt of insurance and other proceeds derived from the involuntary conversion of
Company property, the receipt of proceeds from a refinancing of Company property, or a similar
event with respect to Company property or assets. The Company's capital assets shall not
include any real property that the Company acquires in the normal course of its business for
management and/or resale
1.9. "Code"or"TRC" means the Internal Revenue Code of 1986, as amended, and any
successor provision.
1.10. "Company"means the company named in Article 11, Section 2.2.
1.11. "Economic Interest"means a Person's right to share the income, gains, losses,
deductions, credit or similar items of, and to receive distributions from, the Company,but does
not include any other rights of a Member, including the right to vote or to participate in
management of the Company.
1.12. "Encumber"means the act of creating or purporting to create an Enpumbran.ce,
whether or not perfected under applicable law.
1.13. "Encumbrance"means,with respect to any Membership Interest, or any element
thereof, a mortgage, pledge, security interest, lieg, proxy coupled with an interest(other than as
contemplated in this Agreement), option or preferential right to purchase.
1.14. "Gross Asset Value"means,with respect to any item of property.of the Company,
the item's adjusted basis for federal income tax purposes, except as follows:
(a) The Gross Asset Value of any item of property contributed by a Member
to the Company shall be the Fair Market Value of such property, as mutually agreed by the
contributing Member and the Company; and
(b) The Gross Asset Value of any item of Company property distributed to
any Member shall be the Fair Market Value of such item of property on the date of distribution.
1.15. "Initial Member" or"Initial Members" means those Persons whose names are set
forth in the fast sentence of this Agreement. A reference to an "Initial Member"means any of
the Initial Members.
1.16. "Involuntary Transfer"means, with respect to any Membership Interest, or any
element thereof, any Transfer or Encumbrance, whether by operation of law,pursuant to court
order, foreclosure of security interest, execution of a judgment or other legal process, or
soiiioaa/mazes-i 2
I
uptcy,receiver, or assignee
otherwise, including a purported transfer to or from a trustee in banh
for the benefit of creditors.
1.17. "Losses." See"Profit and Losses."
1.19. "Majority of Members"means a Member or Members whose Percentage Interests
represent more than 50 percent of the Percentage Interests of all the Members.
1.19 "Manager" or"Managers"means the Person(s) named " such in Article 11,
Section 2.7 or the Person(s) who from time to time succeed any Person as Manager and who, in
either case, are serving at the relevant time as a Manager.
1.20. "Member"means an Initial Member or a Person who otherwise acquires a
Membership Interest, as permitted under this Agreement, and who remains a Member.
1.21. "Notice"means a written notice required or permitted under this Agreement. A
notice shall be deemed given or sent when deposited, as certified mail or for overnight delivery,
postage and fees prepaid, in the United States mails; when delivered to Federal Express, United
Parcel Service, DHL World-Wide Express, or Airborne Express, for overnight delivery, charges
prepaid or charged to the sender's account;when personally delivered to the recipient; when
transmitted by electronic means, and such transmission is electronically confirmed as having
been successfully transmitted; or when delivered to the home or office of a recipient in the care
of a person whom the sender has reason to believe will promptly communicate the notice to the
recipient.
1.22. "Officer" or"Officers"means the�Persou(s)named as such in Article II, Section
2.8 or the Person(s) who from time to time succeed any Personas Officer and who, in either
case, are serving at the relevant time as an Officer.
1.23. "Percentage Interest"means the percentage interest of each Member, as set forth
opposite the name of each Member below:
The Burns Family 1996 Trust, 50%
Jack D. Burns, Special Trustee
Gary Torretta 50%
Total 100%
1.24. "Person"means an individual,partnership, limited partnership, trust, estate,
association, corporation, limited liability company, or other entity, whether domestic or foreign.
1.25. "Profits and Losses"means, for each fiscal year or other period specified in this
Agreement, an amount equal to. the Company's taxable income or loss for such year or period,
determined in accordance with IRC section 703(a).
50111033/1922ES-1 3
I
1.26. "Proxy" has the meaning set forth in the first paragraph of California
Corporations code section 17001(ai). A Proxy may not be transmitted orally.
1.27. "Regulations"("Reg") means the income tax regulations promulgated by the
United States Department of the Treasury and published in the Federal Register for the purpose
of interpreting and applying the provisions of the Code, as such Regulations may be amended.
from time to time, including corresponding provisions of applicable successor regulations.
1.28. "Substituted Member" is defined in Article VIII, Section 8.8.
1.29. "Successor in Interest"means an Assignee, a successor of a Person by merger or
otherwise by operation of law, or a transferee of all or substantially all of the business or assets
of a Person.
1.30. "Transfer"means, with respect to a Membership Interest, or any element of a
Membership Interest, any sale, assignment, gift, Involuntary Transfer, or other disposition of a
Membership Interest or any element of such a Membership Interest, directly or indirectly, other
than an Encumbrance that is expressly permitted under this Agreement.
1.31. "Triggering Event"is defined in Article VIII, Section 8.3.
1.32. . "Vote" means a written consent or approval, a ballot cast at a Meeting, or a voice
vote.
1.33. "Voting Interest"means,with respect to a Member, the right to Vote or
participate in management and any right to infor>nation concerning the business and affairs, of the
company provided under the Act, except as limited by the provisio4s of this Agreement. A
Member's Voting Interest shall be directly proportional to that Member's Percentage Interest.
ARTICLE II: ARTICLES OF ORGANIZATION
2.1. Promptly following execution of this Agreement, the Members shall cause
Articles of Organization, in the form attached to this Agreement as Exhibit A, to be filed with the
California Secretary of State.
2.2. The name of the Company shall be Pacific Northwest Services, LLC.
2.3. The principal executive office of the Company shall be at 3223 Blume Drive,
Richmond, California, 94806, or such other place or places as the Members may determine.from
time to time.
2.4. The initial agent for service of process on the Company shall be Patricia Johnson,
3223 Blume Drive, Richmond, California 94806. A Majority of Members may from time to time
change the Company's agent for service of process.
50111033/192285-1 4
2.5. The Company will be formed foF the purposes of engaging in any lawful act or
activity for which a limited liability company may be organized under the Beverly-Killea
Limited Liability Company Act, including the business of acquiring, managing, and selling real
property.
2.6. The term of existence of the Company shall commence on the effective date of
filing of Articles of Organization with the California Secretary of State, and shall continue until
March 1, 2050, unless sooner terminated by the provisions of this Agreement or as provide by
law.
2.7. The name and business address of the Manager of the Company is Patricia
Johnson, 3223,Blume Drive, Richmond, California 94806.
2.8 The Officers of the Company are-Jack D. Burns, Vice-President and Gary Toretta,
Vice-President.
ARTICLE III: CAPITALIZATION
3.1. Each Member shall contribute to the capital of the Company as the Member's
Capital Contribution the money and property specified in Exhibit B to this Agreement. The Fair
Market Value of each item of contributed property as agreed between the Company and the
Member contributing such property is set forth in Exhibit B. Unless otherwise agreed in writing
by all Members,no Member shall be required to make additional Capital Contributions.
3.2. If a Member fails to make a requi{ed Capital Contribution within 30 days after the
effective date of this Agreement, that Member's entire Membership Interest shall terminate and
that Member shall indemnify and hold the Company and the other Members harmless from any
loss, cost, or expense, including reasonable attorney fees, caused by the failure to make such
Capital Contribution.
3.3. An individual Capital Account shall be maintained for each Member consisting of
that Member's Capital Contribution, (1) increased by that Member's share of Profits, (2)
decreased by that Member's share of Losses, and (3) adjusted as required in accordance with
applicable provisions of the Code and Regulations.
3.4, A Member shall not be entitled to withdraw any part of the Member's Capital
Contribution or to receive any distributions, whether of money or property from the Company
except as provided in this Agreement.
3.5. No interest shall be paid on funds or property contributed to the capital of the
Company or on the balance of a Member's Capital Account.
3.6. A Member shall not be bound by, or be personally liable for, the expenses,
liabilities, or obligations of the Company except as otherwise provided in the Act or in this
Agreement.
50111033/1922BS-1 5
turn
3.7. No Member shall have priority over any other Member, with respect to the re
of a Capital Contribution, or distributions or allocations of income, gain, losses, deductions,
credits, or items thereof.
ARTICLE IV: ALLOCATIONS AND DISTRIBUTIONS
4.1. The Profits and Losses of the Company and all items of Company income, grain,
loss, deduction, or credit shall be allocated, for Company book purposes and for tax purposes, to
a Member in accordance with the Member's Percentage Interest.
4.2. If any Member unexpectedly receives any adjustment, allocation, or distribution
described iu Reg sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)2(ii)(d)(5), or 1.704-
I(b)(2)(ii)(d)(6), items'of Company gross income and gain shall be specially allocated to that
Member in an amount and manner sufficient to eliminate any deficit balance in the Member's
Capital Account created by such adjustment, allocation, or distribution as quickly as possible.
Any special aIIocation under this Section 4.2 shall be taken into account in computing
subsequent allocations of Profits and Losses so that the net amount of alloeptions of income and
loss and all other items shall, to the extent possible,be equal to the net amount that would have
been allocated if the unexpected adjustment, allocation, or distribution had not occurred. The
provisions of this Section 4.2 and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Reg sections 1.704-1(b) and
1.704-2 and shall be interpreted and applied in a manner consistent with such Regulations.
4.3. Any unrealized appreciation or unrealized depreciation in the values of Company
property distributed in kind to all the Members s�all be deemed to be Profits or Losses realized
by the Company immediately prior to the distribution of the property and such Profits or Losses
shall be allocated to the Members' Capital Accounts in the same proportions as Profits are
allocated under Section 4.1. Any property so distributed shall be treated as a distribution to the
Members to the extent of the Fair Market Value of the property less the amount of any liability
secured by and related to the property. Nothing contained in this Agreement is intended to treat
or cause such distributions to be treated as sales for value. For the purposes of this Section 4.3,
"unrealized appreciation"or"unrealized depreciation"shall mean the difference between'the
Fair Market Value of such property and the Company's basis for such property.
4.4. In the case of a Transfer of an Economic Interest during any fiscal year, the:
Assigning Member and Assignee shall each be allocated the Economic Interest's share of Profits
or Losses based on the number of days each held the Economic Interest during the fiscal year.
4.5. All cash resulting from the normal business operations of the Company and from
a Capital Event shall be distributed among the Members in proportion to their Percentage
Interests at such times as the Members may agree.
4.6. If the proceeds from a sale or other disposition of a Company asset consist of
property other than cash, the value of such property shall be as determined by the Members.
Such non-cash proceeds shall then be allocated among all the Members in proportion to their
S0ll 1033/2.92265^1 Is
I
Percentage Interests. If such non-cash proceed$ are subsequently reduced to cash, such cash
shall be distributed to each Member in accordance with Section 4.5.
4.7. Notwithstanding any other provisions of this Agreement to the contrary, when
there is a distribution in liquidation of the Company, or when any Member's interest is
liquidated, all items of income and loss first shall be allocated to the Member's Capital Accounts
under this Article IV, and other credits and deductions to the Members' Capital Accounts shall
be made before the final distribution is made. The final distribution to the Members shall be
made to the Members to the extent of and in proportion to their positive Capital Account
balances.
ARTICLE V: MANAGEMENT
5.1. The Manager named in Article II, Section 2.7, or a successor Manager selected in
the manner provided in Article V, Sections 5.2 and/or 5.3, shall manage the business of the
Company. Except as otherwise set forth in this Agreement, the Manager shall make all decisions
contenting the management of the Company's business.
r.
5.2 The Manager shall serve until the earlier of: (1) the Manager's.resignation,
retirement, death, or disability; (2) the Members' removal of the Manager;'or(3) the expiration
of the Manager's term as Manager, if the Members have designated a term for the Manager. The
Members shall appoint a new Manager upon the occurrence of any of the above events.
5.3 A Majority of Members shall appoint the Manager for a term that expires either
(a)with the appointment of a successor Manager or (b) at a time that the Majority of Members.
specifies in connection with the appointment. A.Majority of Members may remove any Manager
who is also not a Member with or without cause at any time.
5.4 The Manager shall have the duties and powers described in this Section 5.4 and
such other powers as the Members or this Agreement may prescribe. The Manager shall have
the responsibility to manage the day-to-day operations of the Company and to keep the Members
informed of such operations. However,the Manager shall not, without the prior approval of at
least one Member, execute any documents on the Company's behalf, sign any Company checks;
or make, perform or agree to any transaction on the Company's behalf or that obligates the
Company in any amount or manner. Notwithstanding any of the foregoing,the Manager shall not
take any of the following actions on behalf of the Company without the prior consent or approval
of a Majority of Members:
(a) .Any act that would make it impossible to cavy on the ordinary business of
the Company;
(b) A confession of judgment against the Company;
(c) The dissolution of the Company;
S0111033/152285-1 7
I
(d) The disposition of all or substantial part of the Company's assets not in
the ordinary course of business;
(e) The incurring of any debt not in the ordinary course of business;
(f) A change in the nature of the principal business of the Company;
(g) The incurring of any contractual obligation or the malting of any capital
expenditure with a total cost of more than S 10,000;
(h) The filing of a petition in bankruptcy or entering into of an arrangement
among creditors; and
(i) The entering into, on behalf of the Company, of-any transaction
constituting a "reorganization"within the meaning of California Corporations Codes §17600.
5.5. The Members acknowledge that the Manager has other business interests and
duties to which the Manager devotes part of his or her time. The Manager, hall devote such time
to the conduct of the Company's business as the Members, in their own discretion, deem
necessary.
5.6 The Manager shall be entitled to compensation for the Manager's services to the
Company as the Members determine, and to reimbursement for all expenses reasonably incurred
by the Manager in the performance of the Manager's duties.
5.7 The Manager shall cause all assets of the Company, whether real or personal, to
be held in the name of the Company.
5.8 All funds of the Company shall be deposited in one or more accounts with one or
more recognized financial institutions in the name of the Company, at such locations as the
Majority of Members shall determine. Withdrawal from such accounts shall require only the
signature of the Manager.
ARTICLE VI: OFFICERS
6.1 The Officers named in Article II, Section 2.8, or successor Officers selected in the
manner provided in Article Vl, Sections 6.2 and/or 6.3, shall assist the Manager in the
management of the Company.
6.2 Each Officer shall serve until the earlier of. (1)the Officer's resignation,
retirement, death, or disability; (2) the Members' removal of the Officer; or(3)the expiration of
the Officer's term as Officer, if the Members have designated a term for the Officer. The
Members may appoint a new Officer upon the occurrence of any of the above events.
6.3 Officers shall serve for a term that expires either(a) with the appointment of
successor Officers or(b) at a time that the Members specify in connection with the appointment.
50111633/192285-2
6.4 The Officers shall have the duties and powers described in this Section 6.4 and
such other powers as the Members or this Agreement may prescribe. The Officers shall assist
the Manager with the management duties described in Article V. Each Officer shall have the
authority, acting alone, to bind the Company, to execute contracts or other documents on the
Company's behalf and to sign Company checks in any amount. For purposes of the preceding
sentence, the signature of one Officer is sufficient.
ARTICLE VTI: ACCOUNTS AND RECORDS
7.1. Complete books of account of the Company's business, in which each Company
transaction shall be fully and accurately entered, shall be kept at the Company's principal
executive office and shall be open to inspection and copying by each Member or the Member's
authorized representatives on reasonable Notice during normal business hours. The Member
shall bear the costs of such inspection and copying.
7.2. Financial books and records of the Company shall be kept on the accrual method
of accounting, which shall be the method of accounting followed by the Company for federal
income tax purposes. A balance sheet and income statement of the Company shall be prepared
promptly following the close of each fiscal year in a manner appropriate tc and adequate for the
Company's business and for carrying out the provisions of this Agreement. The fiscal year of
the Company shall be January 1 through December 31.
7.3. At all times during the term of existence of the Company, and beyond that term if
a Majority of the Members deem it necessary, the Manager shall keep or cause to be kept the
books of account referred to in Section 7.2, and the following:
11
(a) A current list of the full name and last known business or residence
address of each Member, together with the Capital Contribution and the share in profits and
Losses of each.Member;
(b) The full name and last known business or residence address of each
Manager;
(c) A copy of the Articles of Organization, as amended;
(d) Copies of the Company's federal, state, and local income tax or
information returns and reports, if any, for the six most recent taxable years;
(e) Executed counterparts of this Agreement, as amended;
(f) Any powers of attorney under which the Articles of Organization or any
amendments thereto were executed;
(g) Financial statements of the Company for the six most recent fiscal years;
and
30111033/192285-1 9
(h) The Books and Records Of the Company as they relate to the Company's
r h' internal affairs for the current and past four fiscal years.
If a Majority of the Members deem that any of the foregoing items shall be kept beyond
the term of existence of the Company, the repository of said items shall be as designated by a
Majority of Members.
7.4. Within 90 days after the end of each taxable year of the Company, the Company
shall send to each of the Members all information necessary for the Members to complete their
federal and state income tax or information returns, and a copy of the Company's federal, state,
and local income tax or information returns for such year.
ARTICLE VIII: MEMBERS AND VOTING
8.1. There shall be only one class of membership and no Member shall have any rights
or preferences in addition to or different from those possessed by any other Member. Each.
Member shall Vote in proportion to.the Member's Percentage Interest as of the governing record
date, determined in accordance with Section 8.2. Any action that the Members may or must take
shall be by a Majority of Members, except that the following actions shall all require the
unanimous Vote of the Members:
(a) The transfer of a Membership Interest and the admission of the Assignee .
as a Member of the Company;
(b) Any amendment of the Articles of Organization or this Agreement; or
(c) Compromise of the obligation of a Member to make a Capital
Contribution,
8.2. The record date for determining the Members entitled to Notice of any Meeting,
to Vote, to receive any distribution, or to exercise any right in respect of any other lawful action,
shall be the date set by a Majority of Members, provided that such record date shall not be more
than 60, nor less than 10 days prior to the date of the Meeting,nor more than 60 days prior to any
other action.
8.3. At all Meetings of Members, a Member may Vote in person or by Proxy. Such
proxy shall be filed with any Member before or at the time of the Meeting, and may be filed by
facsimile transmission to a Member at the principal executive office of the Company or such
other address as may be given by a Majority of Members to the Members for such purposes.
ARTICLE IX: TRANSFERS OF MEMBERSHIP INTERESTS
9.1. A Member may withdraw from the Company at any time by giving Notice of
Withdrawal to all other Members at least 180 calendar days before the effective date of
SO 111033/19228.-1 ],Q
withdrawal. Withdrawal shall not release a Member from any obligations and liabilities under
this Agreement accrued or incurred before the effective date of withdrawal. A withdrawing
Member shall divest the Member's entire Membership Interest before the effective date of
withdrawal in accordance with the transfer restrictions and option rights set forth below.
9.2. Except as expressly provided in this Agreement, a Member shall not Transfer any
part of the Member's Membership Interest in the Company, whether now owned or hereafter
acquired, unless (1)the other Members unanimously approve the transferee's admission to the
Company as a Member upon such Transfer and (2) the Membership Interest to be transferred,
when added to the total of all other Membership Interests transferred in the preceding 12 months,
will not cause the tennination of the Company under the Code. No Member may.Encumber or
permit or suffer any Encumbrance of all or any part of the Member's Membership Interest in the
Company unless such Encumbrance has been approved in writing by all the other Members.
Any Transfer or Encumbrance of a Membership Interest without such approval shall be void.
Notwithstanding any other provision of this Agreement to the contrary, a Member who is a
natural person may transfer all or any portion of his or her Membership Interest to any revocable
trust created for the benefit of the Member, or any combination between or among the Member,
the Member's spouse, and the Member's issue; provided that the Member Fetains a beneficial
interest in the trust and all of the Voting Interest included in such Membership Interest. A
transfer of a Member's entire beneficial interest in such trust or failure to retain such Voting
Interest shall be deemed a Transfer of a Membership Interest.
9.3. (a) If a Member wishes to transfer any or all of the Member's Membership
Interest in the Company pursuant to a Bona Fide Offer(as defined below), the Member shall
give Notice to the Manager and all other Members at least 30 days in advance of the proposed
sale or Transfer, indicating the terms of the Bona Fide Offer and the identify of the offeror. The
Company and the other Members shall have the option to purchase the Membership Interest
proposed to be transferred at the price and on the terms provided in this Agreement. If the price
for the Membership Interest is other than cash, the fair value in dollars of the price shall be as
established in good faith by the Company. For purposes of this Agreement, "Bona Fide Offer"
means an offer in writing setting forth all relevant terms and conditions of purchase from an
offeror who is ready, willing, and able to consummate the purchase and who is not an Affiliate of
the selling Member. For 30 days atter the Notice is given, the Company shall have the right to
purchase the Membership Interest offered, on the terms stated in the Notice, for the lesser of(a)
the price stated in the Notice (or the price plus the dollar value of noncash consideration, as the
case may be) and (b) the price determined under the procedures set forth in Section 9.8.
(b) If the Company does not exercise the right to purchase all of the
Membership Interest, then, with respect to the portion of the Membership Interest that the
Company does not elect to purchase, that right shall be given to the other Members for an
additional 30-day period, beginning on the day that the Company's right to purchase expires.
Each of the other Members shall have the right to purchase, on the same terms, a part of the
interest of the offering Member in the proportion that the Member's Percentage Interest bears to
the total Percentage Interests of all of the Members who choose to participate in the purchase;
provided, however, that the Company and the participating Members may not, in the aggregate,
purchase less than the entire interest to be sold by the offering Member.
50111033/192285-1 1 1
(c) If the Company and the other Members do not exercise their rights to
purchase all of the Membership Interest, the offering Member may, within 90 days from the date
the Notice is given and on the terms and conditions stated in the Notice, sell or exchange that
Membership Interest to the offeror named in the Notice. Unless the requirements of Section 9.2
are met, the offeror under this section shall become an Assignee, and shall be entitled to receive
only the share of Profits or other compensation by way of income and the return of Capital
Contribution to which the assigning Member would have been entitled.
9.4. On the happening of any of the following events (Triggering Events)with respect
to a Member, the Company and the other Members shalt have the option to purchase all or any
portion of the Membership Interest in the Company of such Member (Selling Member) at the
price and on the terms provided in Section 9.8 of this Agreement:
(a) the death or incapacity of a Member or of Jack D. Burns;
(b) the bankruptcy of a Member;
(c) The winding up and dissolution of a corporate Member, or merger or other
corporate reorganization of a corporate Member as a result of which the corporate Member does
not survive as an entity;
(d) the withdrawal of a Member; or
(e) except for the events stated in Section 9.5,the occurrence of any other
event that is,or that would cause, a Transfer in cpntravention of this Agreement.
Each Member agrees to promptly give Notice of a Triggering Event to all other Members..
9.5. Notwithstanding any other provisions of this Agreement:
(a) If, in connection with the divorce or dissolution of the marriage of a
Member or of Jack D. Bums, any court issues a decree or order that transfers, confirms, or
awards a Membership Interest, or any portion thereof,to a Member's or Jack D. Burn's spouse
(an Award), then, notwithstanding that such transfer would constitute an unpermitted Transfer
under this Agreement, that Member or Jack D. Burns shall have the right to purchase from his or
her former spouse the Membership Interest, or portion thereof that was so transferred, and such
former spouse shall sell the Membership Interest or portion thereof to that Member at the price
set forth in Section 9.8 of this Agreement. If the Member has failed to consummate the purchase
within 180 days after the Award (the Expiration Date), the Company and the other Members
shall have the option to purchase from the fonner spouse the Membership Interest or portion
thereof pursuant to Section 9.6 of this Agreement; provided that the option period shall
commence on the later of(1) the day following the Expiration Date, or(2) the date of actual
notice of the Award.
80111033/193225-1 12
I
(b) If, by reason of the death;of a spouse of a Member, any portion of a
Membership Interest is transferred to a Transferee other than(1) that Member or(2) a trust
created for the benefit of that Member (or for the benefit of that Member and any combination
between or among the Member and the Member's issue) in which the Member is the sole Trustee
and the Member, as Trustee or individually possesses all of the Voting Interest included in that
Membership Interest, then the Member shall have the right to purchase the Membership Interest
or portion thereof from the estate or other successor of his or her deceased spouse or Transferee
of such deceased spouse, and the estate, successor, or Transferee shall sell the Membership
Interest or portion thereof at the price set forth in Section 9.8 of this Agreement. If the Member
has failed to consummate the purchase within 180 days after the date of death (the Expiration
Date),the Company and the other Members shall have the option to purchase from the estate or
other successor of the deceased spouse the Membership Interest or portion thereof pursuant to
Section 9.6 of this Agreement;provided that the option period shall commence on the later of(1)
the day following the Expiration Date, or(2)the date of actual notice of the death.
9.6. On the receipt of Notice by the other Members as contemplated by Section 9.1,
and on receipt of actual notice of any Triggering Event(the date of such receipt is hereinafter
referred to as the"Option Date"),the Manager shall promptly give notice o�fthe occurrence of
such a Triggering Event to each Member, and the Company shall have the option, for a period
ending 30 calendar days following the determination of the purchase price as provided in Section
9.8,to purchase the Membership Interest in the Company to which the option relates, at the price
and on the terms provided in Section 9.8, and the other Members,pro rata in accordance with
their prior Membership Interests in the Company, shall then have the option, for a period of 30
days thereafter, to purchase the Membership Interest in the Company not purchased by the
Company, on the same terms and conditions as apply to the Company. If all other Members do
not elect to purchase the entire remaining MembQrship Interest in the Company, then the
Members electing to purchase shall have the right, pro rata in accordance with their prior
Membership Interest in the Company, to purchase the additional Membership Interest in the
Company available for purchase. The transferee of the Membership Interest in the Company that
neither the Company nor a Member purchases shall hold such Membership Interest in the
Company subject to all of the provisions of this Agreement.
9.7. No Member shall participate in any Vote or decision in any matter pertaining to
the disposition of that Member's Membership Interest in the Company under this Agreement.
9.8. Subject to Section 9.3(a), the purchase price of the Membership Interest that is the
subject of an option under this Agreement shall be the Fair Market Value of such Membership
Interest as determined under this Section 9.8. Each of the selling and purchasing parties shall use
his, her, or its best efforts to mutually agree on the Fair Market Value. If the parties are unable
to so agree within 30 days of the date on which the option is first exercisable (the Option Date),
the parties shall use their best efforts to mutually agree on the appointment of a single appraiser,
whose appraisal of the Membership Interest shall be the Fair Market Value and the purchase
price hereunder. In the event that the parties cannot agree on a single appraiser within thirty(3 0)
days of the Option Date, the selling party shall appoint, within 40 days of the Option Date, one
appraiser, and the purchasing party shall appoint within 40 days of the Option Date, one
appraiser. The two appraisers shall within a period of five additional days, agree on and appoint
SD111D33/192265-1 13
I
j
an additional appraiser. The tIu-ee appraisers.shall, within 60 days after the appointment of the
third appraiser, determine the Fair Market Value of the Membership Interest in writing and
submit their report to all the parties. The Fair Market Value shall be determined by disregarding
the appraiser's valuation that diverges the greatest from each of uie other two appraisers'
valuations, and the arithmetic mean of the remaining two appraisers' valuations shall be the Fair
Market Value. Each purchasing party shall pay for the services of the appraiser selected by it,
plus one-half of the fee charged by the third appraiser. The option purchase price as so
determined shall be payable in thirty-six (36) equal monthly installments of principal and
interest, commencing on the first day of the month following the later of(1) the Company's or
(2)the remaining Members' exercise of their option to purchase the Membership Interest
pursuant to Section 9.6, with interest payable at 8%. The agreement to purchase, and any note
executed in connection with such purchase, shall be secured by an assignment to the selling party
of the purchased Membership Interest.
9.9. Except as expressly permitted under Section 9.2, a prospective transferee (other
than an existing Member) of a Membership Interest may be admitted as a Member with respect
to such Membership Interest (Substituted Member) only (1) on the unanimous Vote of the other
Members in favor of the prospective transferee's admission as a Member, find (2) on such
prospective transferee's executing a counterpart of this Agreement as a party hereto. Any
prospective transferee of a Membership Interest shall be deemed an Assignee, and, therefore, the
owner of only an Economic Interest until such prospective transferee has been admitted as a
Substituted Member.
9.10. Any person admitted to the Company as a Substituted Member shall be subject to
all provisions of this Agreement.
9.11. The initial sale of Membership Interests in the Company to the initial Members
has not been qualified or registered under the securities laws of any state, or registered under the
Securities Act of 1933, as amended, in reliance upon exemptions from the registration provisions
of those laws. No attempt has been made to qualify the offering and.sale of Membership
Interests to Members under the California Corporate Securities Law of 1968, as amended, also in
reliance upon an exemption from the requirement that a permit for issuance of securities be
procured. Notwithstanding any other provision of this Agreement,Membership Interests may
not be Transferred or Encumbered unless registered or qualified under applicable state and
federal securities law or unless, in the opinion of legal counsel satisfactory to the Company, such
qualification or registration is not required, The Member who desires to transfer a Membership
Interest shall be,responsible for all legal fees incurred in connection with said opinion.
ARTICLE X: DISSOLUTION AND WINDING UP
10,1. The Company shall be dissolved on the first to occur of the following:
(a) The death, incapacity, or withdrawal of a Member; or the banlcruptcy or
corporate dissolution of a Member;provided,however, that the remaining Members may, by the
Vote of a Majority of Members within 90 days of the happening of that event, Vote to continue
S0111033/1922B5-1 14
1
I
the Company, in which case the Company shall not dissolve. If the remaining Members fail to
so Vote, the Manager and/or the remaining Members shall wind up the Company. For purposes
of this Paragraph (a), in determining a Majority of Members, the Percentage Interest of the
Member who has died, become incapacitated, withdrawn, or who has become bankrupt or
dissolved shall not be taken into account.
(b) The expiration of the term of existence of the Company.
(c) The written agreement of all Members to dissolve the Company.
(d) The sale or other disposition of substantially all of the Company assets.
(e) Entry of a decree of judicial dissolution pursuant to California
Corporations Code section 27351.
10.2. On dissolution of the Company,the Company shall,engage in no further business
other,than that necessary to wind up the business and affairs of the Company. The Manager,
subject to the limitations set forth in Article V, Section 5.4, and/or the Members who have not
wrongfully dissolved the Company shall wind up.the affairs of the Company. 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 against the Company whose addresses
appear in the records of the Company. After paying or adequately providing for the payment of
all known debts of the Company (except debts owing to Members) the remaining assets of the
Company shall be distributed or applied in the following order of priority:
(a) To pay the expenses of liquidation.
(b) To repay outstanding loans to Members. If there are insufficient funds to
pay such loans in full, each Member shall be repaid in the ratio that the Member's respective
loan, together with interest accrued and unpaid thereon,bears to the total of all such loans from
Members, including all interest accrued and unpaid on those Ioans. Such repayment shall first be
credited to unpaid principal and the remainder shall be credited to accrued and unpaid interest.
(c) Among the Members in accordance with the provisions of Article IV,
Section 4.7.
10.3. Each Member shall look solely to the assets of the Company for the return of the
Member's investment, and if the company property remaining after the payment or discharge of
the debts and liabilities of the Company is insufficient to return the investment of any Member,
such Member shall have no recourse against any other Members for indemnification,
contribution, or reimbursement.
S0111033 A 92285-1 is
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ARTICLE XI:;ARBITRATION
11.1. Any action to enforce or interpret this Agreement or to resolve disputes between
the Members or by or against any Member shall be settled by arbitration in accordance with the
rules of the American Arbitration Association. Arbitration shall be the exclusive dispute
resolution process in the State'of Califon-iia, but arbitration shall be a nonexclusive process
elsewhere. Any party may commence arbitration by sending a written demand for arbitration to
the other parties. Such demand shall set forth the nature of the matter to be resolved by
arbitration. Arbitration shall be conducted in Contra Costa County, California. The arbitrator
shall apply the substantive law of the State of California to the resolution of the dispute. The
parties shall share equally all initial costs of arbitration. The prevailing party shall be entitled to
reimbursement of attorney fees, costs and expenses incurred in connection with the arbitration,
including those incurred to enter and/or confirm any arbitration award in a court of competent
jurisdiction and/or to enforce any judgment. All decisions of the arbitrator shall be final,
binding, and conclusive on all parties. Judgment may be entered upon any such decision in
accordance with applicable law in any court having jurisdiction thereof.
ARTICLE XII: GENERAL PROVISIONS
12.1. This Agreement constitutes the whole and entire agreement of the parties with
respect to the subject matter of this Agreement, and it shall not be modified or amended in any
respect except by a written instrument executed by all the parties. This Agreement replaces and
supersedes all prior written and oral agreements by and among the Members or any of them.
12.2. This Agreement maybe executed�in one or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
12.3. This Agreement shall be construed and enforced in accordance with the internal
laws of the State of California. If any provision of this Agreement is determined by any court of
competent jurisdiction or arbitrator to be invalid, illegal or unenforceable to any extent, that
provision shall, if possible, be construed as though more narrowly drawn, if a narrower
construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible,
such provision shall, to the of extent such invalidity, illegality, or unenforceability, be severed,
and the remaining provisions of this Agreement shall remain in effect.
12.4. This Agreement shall be binding on and inure to the benefit of the parties and
their heirs, personal representatives, and permitted successors and assigns.
12.5. Whenever used in this Agreement, the singular shall include the plural, the plural
shall include the singular, and the neuter gender shall include the male and female as well as a
trust, firm, company, or corporation, all as the context and meaning of this Agreement may
require.
12.6. The parties to this Agreement shall promptly execute and deliver any and all
additional documents, instruments, notices, and other assurances, and shall do any and all other
3D111033/19226s-1 16
I
f aw':
�A--,` acts and things,reasonably necessary in conneFtion with the performance of their respective
..,-
obligations under this Agreement and to carry out the intent of the parties.
12.7. Except as provided in this Agreement, no provision of this Agreement shall be
construed to limit in any manner the Members in the carrying on of their own respective business
or activities.
12.8. Except as provided in this Agreement, no provisions of this Agreement shall be
construed to constitute a Member, in the Member's capacity as such, the agent of any other
Member.
12.9. .Each Member represents and warrants to the other Members that the Member has
the capacity and authority to enter into this Agreement.
12.10. The Article, section, and paragraph titles and headings contained in this
Agreement are inserted as a matter of convenience and for ease of reference only and shall,be
disregarded for all other purposes, including the construction or enforcement of this Agreement
or any of its provisions.
12.11. This Agreement may be altered, amended, or repealed only by a writing signed by
all of the Members.
12.12. Time is of the essence of every provision of this Agreement that specifies a.time
for performance.
12.13. This Agreement is made solely fad the benefit of the parties to this Agreement and
their respective permitted successors and assigns, and no other person or entity shall have or
acquire any right by virtue of this Agreement.
12.14. The Members intend the Company to be a limited liability company under the
Act. No Member shall take any action inconsistent with the express intent of the parties to this
Agreement.
ARTICLE XIII: INDEMNIFICATION AND ARBITRATION
13.1. The Company shall have the power to indemnify any Person who was or is a
party, or who is threatened to be made a party, to any litigation, arbitration or other proceeding
by reason of the fact that such Person was or is a Member,Manager, Officer, employee, or other
agent of the Company, or was or is serving at the request of the Company as a director, Officer,
employee, or other agent of another limited liability company, corporation,partnership,joint
venture, trust, or other enterprise, against defense costs, expenses,judgments, fines, settlements,
and other amounts actually and reasonably incurred by such Person in connection with such
proceeding, if such Person acted in good faith and in a manner that such Person reasonably
believed to be in the best interests of the Company, and, in the case of a criminal proceeding,
such Person had no reasonable cause to believe that the Person's conduct was unlawful. The
termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
50111033/192285-1 1,7
contendere or its equivalent, shall not, of itself,;create a presumption that the Person did not act
in good faith and in a manner that such Person reasonably believed to be in the best interests of
the Company, or that the Person had reasonable cause to believe that the Person's conduct was
unlawful.
To the extent that an agent of the Company has been successful on the merits in defense
of any litigation, arbitration or proceeding, or in defense of any claim, issue, or matter in any
such litigation, arbitration or proceeding, the agent shall be indemnified against expenses
actually and reasonably incurred in connection with the litigation, arbitration or proceeding. 1n
all other cases, indemnification shall be provided by the Company only if authorized in the
specific case by aMajority of Members.
"Agent," as used in this Section 13.1, means a trustee or other fiduciary of a plan, trust, or
other entity or arrangement described in Corporations Code section 207(f).
Expenses of each Person indemnified under this Agreement actually and reasonably
incurred in connection with the defense or settlement of litigation, arbitration or other proceeding
may be paid by the Company in advance of the final disposition of such prgceeding, as
authorized by the Members who are not seeking indemnification or, if there are none, by a
Majority of the Members, upon receipt of an undertaking by such Person to repay such amount
unless it shall ultimately be determined that such Person is entitled to be indemnified by the
Company. "Expenses," as used in this Section 13.1, includes,without limitation, attorney fees
and expenses of establishing a right to indemnification, if any under this Section 13.1.
IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Agreement on the day and year first above written.
The Burns Family 1996 Trust, Member
By: L J. r�-
Jack D. Bums, Special Trustee
Torretta, Member
SPOUSAL CONSENT
The undersigned are the spouses of Gary Torreta and Jack Bums, Jr., respectively, and
each acknowledges that she has read the foregoing Agreement dated March_, 2001, and
understands its provisions. Each of the undersigned is aware that, by the provisions of the
Agreement, she and her spouse have agreed to sell or transfer all her Membership Interest:in the
Company, including any community property interest or quasi-community property interest, in
soiiioaa/i9zzes-i 18
accordance with the terms and provisions of the Agreement. Each of the undersigned hereby
expressly approves of and agrees to be bound by the provisions of the Agreement in its entirety,
including,but not limited to, those provisions relating to the sales and transfers of Membership
Interests and the restrictions thereon. If either or both of the undersigned predeceases her spouse
when her spouse owns any Membership Interest in the Company, she hereby agrees not to devise
or bequeath whatever community property interest or quasi-community property interest she may
have in the Company in contravention of the Agreement.
Date: 2001 z
'--
Reg Torretta
Date: , 2001 ,lam
Kristina Burns
E
50111033/192:99-1
19
E3MBIT A TO OPERATING AGREEMENT FOR
PACIFIC NORTHWEST SERVICES,LLC
a California Limited Liability Company
ARTICLES OF ORGANIZATION
r
i
S0111033/192255-1 2 Q
1
Y�
EXHIBIT B TO OPERATING AGRI!;FMENT :FOR
PACIFIC NORTHWEST SERVICES, ILC
a California Limited Liability Company
CAPITAL CONTRIBUTIONS OF MEMI3I`+.`,RS
Amount of
Member ame capital Contribution Form 0Fco11ti,:ini Uti,)
The Burns Family $100 cash
1996 Trust
Gary Torretta $100 Cash
3
SO11I033 j192265.1
21
Pacific Northwest Services
3223 Blume Drive
Richmond, CA 94806
June 30, 2006
Re: 5586 San Pablo Dam Road
El Sobrante, CA
To Whom It May Concern:
This is to verify that Patricia Johnson is the manager of Pacific Northwest Services and
is authorized to sign on our behalf'as stated in the attached Articles of Organization. Do
not hesitate to call should you have any questions. I may be reached at (510) 662-8502.
Sincerely,
Jack Burns Jr., Member