HomeMy WebLinkAboutPIP 98-02; Carlsbad Corporate Plaza; Planned Industrial Permit (PIP) (9)CARLSBAD - ENGINEERING DEF**&TMENT
APPLICATION
FOR ENGINEERING PLAN CHECK OR PROCESSING
Complete all appropriate information. Write N/A when not applicable.
PROJECT NAME: flfr&j^&AS) (^a£Jti(Pi^£~7£A<^A DATE: J2~A~99
PROJECT DESCRIPTION: T^^A^WI^^rfA*7"" *>? AvOj"
PROJECT ADDRESS:
LOTNO(S).: MAP NO.: /<^>^f APN(S).: "^I^-G^-O- j^^ti ,£7
NO. OF DWELLING UNITS: LFMP ZONE: # LOTS: # ACRES:
OWNER: ~7jJrp'fi-&Jfjy CjrfTFfr? &JT?J?P£KJ$
Mailing Address: ^;'?/ Pfa onSfP fyrkPofThf^-"
^TH-fTTt ^>&£> ./^A^-^RJ^ LjffStfTi
Phone Number^ Cfa £> ) ^ 2 / •- 5~7«3 /
1 certify that 1/arrJthe \eaa\efAneffand that all the above
information is true and iofrfirctifj the best of my knowledg^
Siqnatur^/A^^ '(/S(/*) Date 2~/^7
( f
CIVIL ENGINEER: Kprf^fVL^L-o^jc,
Firm: X ^ ^ £ **^ ^\£? feii-J^— '
Mailing Address: I^^O ) H / ociojO CftJTfk /^^n S>*T
5™JT£ ^2£» > ^~7^ • £-& ^f<3L)"T)fi>
Phone Number: (^/^^JU— '£?Z~?a~Z~~~
State Registration Number: VSc5c?e^
LANDSCAPE ARCHITECT:
Firm:
Mailing Address:
Phone Number: ( )
State Registration Number:
APPLICANT: - V^t -
Mailing Address:
Phone Number: ( )
Signature Date
SOILS ENGINEER:
Firm:
Mailing Address:
Phone Number: ( )
State Registration Number:
ADDITIONAL COMMENTS:
IMPROVEMENT VALUATION
1 . What water district is the proposed project located in (circle one)?
Carlsbad Municipal Water District Olivenhain Vallecitos
2. If in the Carlsbad Municipal Water District, what is the total cost estimate, including the 15%
contingency fee, for water and reclaimed water improvements (if applicable)? $
3. What is the total cost estimate, including the 15% contingency fee, for sewer (for Carlsbad
Municipal Water District only), street, public (median) landscape and irrigation, and
drainage improvements (if applicable)? $
4. What is the total cost of landscape and irrigation improvements on private property (if $
applicable)?
GRADING QUANTITIES
cut cy fill cy remedial cy import/export cy
DOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING REV. 6/10/97
c
APPLICATION FOR:
(y all that apply)
Q Adjustment Plat
Q Certificate of Compliance
Q Dedication of Easement
Type:
Type:
Q Encroachment Permit
Q Engineering Standards Variance
Q Final Map
Q Grading Plancheck
Q Grading
£t Improvement Plancheck
Q Landscape Plancheck
Q Parcel Map
Q Quitclaim of Easement
Type:
Type:
Q Reversion to Acreage
Q Street Vacation
Q Tentative Parcel Map
Q Certificate of Correction
Q Covenant for Easement
Q Substantial Conformance Exhibit
FOR CITY USE ONLY
Plancheck
Number Type
ADJP
COC
DOE
ENCROACH
ESV
FM
GRPC
GRADING
IPC
LPC
PM
QUITO
RTA
STV
MS
CCOR
COVE
SCE
APPLICATION ACCEPTEOB¥rJ\Ar^--^U_^ 1—CTTp • -MASTER PROJECT ID: ^LJ
RECEIPT NUMBER:
PRELIMINARY SIERRA SYSTEM INPUT INITIAL:
SIERRA SYSTEM INPUT INITIAL:
R:BASE INPUT INITIAL:
MASTER FILE NUMBER: F
Q OTHER:
Drawing
Number
S?^UX 3. 7& -8
Project I.D.
Ftef^-oa
Deposit/Fees
Paid
2Z&3.6Y
RECEIVED
FEB 0 1 1999
ENGINEERING
DEPARTMENT
DATE STAMP
APPLICATION RECEIVED
DOCS/MISFORMS/APPLICATION ENG PLANCHECK OR PROCESSING REV. 6/10/97
l^^^r "'sssyM*
City of Carlsbad
Public Works — Engineering
December 27, 2000
n MO „ RECEIVEDDan McRoskey
INTEGRATED CAPITAL ENTERPRISES D E C 2 8 2COO
2131 Palomar Airport Road Suite 300
Carlsbad, CA 92009 ENGfNFrr.'NG
'' '•-•"'•°»!\ i u/LihlT
PIP 98-02/ROW 99-142 WARRANTY INSPECTION
Dear Mr. McRoskey,
The City of Carlsbad has recently performed a warranty inspection of the
improvements you installed. We have noted heaving and/or settlement of some
of the surface improvements between Stations 19+79 and 20+99.
These issues must be addressed before the City can fully release all securities
currently being held.
Please contact Duane Soileau at 760-602-2780 ext. 7316 to coordinate
inspection of this remedial work. Please note that our address has changed and
is noted below.
Sincerely, _
, —^>~
SAMUEL A. SMALLEY, PE
Construction Manager
C: Michele Masterson
Jennifer Gowen
Duane Soileau
5950 El Camino Real • Carlsbad, CA 92008 • (760) 6O2-2780 • FAX (76O) 438-4178
City of Carlsbad
Public Works — Engineering
March 18, 1999
Integrated Capital Enterprises
2131 Palomar Airport Road, Suite 200
Carlsbad, CA 92108
COMPLETION OF IMPROVEMENT PLANCHECK FOR: PIP 98-02, DWG 376-8
PROJECT NAME: CARLSBAD CORPORATE PLAZA
The purpose of this correspondence is to inform you that the City Engineer has signed the
improvement plans for the project noted above. These plans are now the property of the City of
Carlsbad and have been filed for permanent record with this office.
The City of Carlsbad requires that contractors obtain a right-of-way permit prior to constructing any
improvements within publicly dedicated streets or easements. Since the improvements reflected on
your improvement plans fall within this category, you must first obtain a right-of-way permit prior to
initiating your construction activities. You may obtain a right-of-way permit by making application at
our Engineering Development Services Counter at 2075 Las Palmas Drive. This is a "no-fee"
permit. A Right-of Way Permit Submittal Package is attached for your convenience.
The following items need to be submitted and/or approved prior to the issuance of a right-of-way
permit:
1. Completed application form.
2. Contractors state license number and class (type).
3. City of Carlsbad Business License number.
4. Certificate of insurance in the amount of $1,000,000 naming the City of Carlsbad as
"additional insured" and as "certificate holder".
5. Traffic Control Plan (if not included in the improvement plan).
6. Five blueline sets of the signed improvement plans (one set of bluelines is for
CMWD).
7. As part of your permit approval, application with CMWD will be required to tap into
sewer, water and/or reclaimed water lines.
In addition, if your project requires a grading permit you must complete the items listed on the
completion of Grading Plancheck Letter and receive approval on a grading permit prior to or
concurrent with the issuance of a right-of-way permit. You may obtain the blueline sets and any
other plan reproductions you desire through one of the several bonded blue print firms in the area at
your cost.
Your Right of Way Permit will be issued when all the above noted requirements have been
completed. After permit issuance, contact the Engineering Inspection Request Line at 760/438-
3891 to set up a preconstruction meeting with your inspector. You will receive your copy of the
permit during the preconstruction meeting with your inspector. DO NOT BEGIN CONSTRUCTION
UNTIL YOU HAVE RECEIVED YOUR PERMIT FROM THE PUBLIC WORKS INSPECTOR.
2075 Las Palmas Dr. • Carlsbad, CA 92009-1576 • (760) 438-1161 • FAX (760) 431-5769
March 18,1999 "*"'
COMPLETION OF IMPROVEMENT PLANCHECK FOR: PIP 98-02 DWG 376-8
PROJECT NAME: CARLSBAD CORPORATE PLAZA
Page 2
Thank you for your cooperation and assistance in this matter. It has been a pleasure working with
you through the plancheck process. If you have project related questions, please feel free to give
me a call at 760/438-1161, extension 4353.
In an effort to improve our customer service, the Community Development Department is soliciting
your comments on the service you have received in processing your project. Enclosed is a
Customer Service Survey form. Please take a few minutes to complete this form and return it to the
City. Your help is greatly appreciated.
r\Respectfully, /-,
'-',Uyi--" ^ V(V
Associate Engineer - Land Use Review Division
c: Inspection Senior Office Specialist
Permit Station
File
Attachments - Right-of-Way Permit Submittal Package
Customer Service Survey
FOR OFFICE USE ONLY
DWG NO.
PROJECT LOCATION:
..Word/Docs/Misforms/lmprovement Plancheck Letter REV. 03/31/97
STATE OF CALIFORNIA
ACTING SECRETARY OF STATE /
TONY MILLER
LIMITED LIABILITY COMPANY
ARTICLES OF ORGANIZATION
TNfPORTANT - Read instructions before completing the form.
This document is presented for filing pursuant to Section 17050 of the California Corporations Code.
1. Limited liability company name: Integrated Capital Enterprises LLC
(U dtt MM «vk OUT <r 1JM4 l*M<7 CM*UT'. N» pcnak kavm *c Iran • OtC. T mmf **• tit'M* XO
2. Latest date on which the limited liability company is to dissolve: September 1, 2997
3. 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 Bcverly-Killea Limited Liability Company Act.
4. Enter the name of initial agent for service of process and check the appropriate provision below:
Daniel Adam McRoskey
[ X ] an individual residing in California. Proceed to Item 5.
, which is
[ ] a corporation which has filed a certificate pursuant to Section 1505 of the California Corporations
Code. Skip Item 5 and proceed to Item 6.
5. If the initial agent for service of process is an individual enter a business or residential street address in California:.
Street address: 6959 Carnation Drive
City: Carlsbad State: CALIFORNIA Zip Code: 92009
6. The limited liability company will be managed by : (check one)
[ ] one manager [ ] more than one manager [ X ] limited liability company members
7. If other matters are to be included in the ankles of organization attach one or more separate pages.
Number of pages attached, if any:
8. It is hereby declared mat I am the person who
executed this instrument, which execution is
my act and desd.
signature of organizer /
Daniel A. McRoskev
Type or prim name of organizer
Date: August 13 . 19 97
IXC-1««., F* ua iry »f Slttc
For Secretary of Scale Use
In the HUD
AUG 1 5 1997
-243-
.J)1NG REQUESTED BY AND
# HEN RECORDED MAIL TO:-„•<*•
SPACE ABOVE TfflS LINE FOR RECORDER'S USE
fll Hi MS
SACRAMENTO
/, £//,£ JONES, Secretary of State of California, hereby certify:
That the annexed 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
AUG 1 9 19*7
Secretary of State
SEC STATE FORM LP-222A (Rev 5/95)
UO/01/80 MO.N 13; 38 FAX 618 -JJ4 8204
Vs../
ROBERT M DAHLBO ESQ
CERTIFICATION BY PRESIDENT
OF ABSTRACT OF OPERATING AGREEMENT
I am the duly elected and acting President of Integrated Capital Enterprises
LLC established by the persons named in the Operating Agreement on September / .
1997. The attached abstracted copy of said Operating Agreement is a true and correct copy
of the original Operating Agreement as executed September ' , 1997, except that the
sections dealing with the accounting and transfer of membership interests have been omitted.
The Operating Agreement has not been revoked or amended.
I hereby certify, under penalty of perjury under the laws of the State of
California, that the foregoing is true and correct and that this Certification was executed at
California, this __/ ^d*y of hA#Cj+ . 19.33
INTEGRATED CAPITAL ENTERPRISES LLC
Daniel A. McRoskey, President
OPERATING AGREEMENT
for
INTEGRATED CAPITAL ENTERPRISES LLC
This Operating Agreement is entered into as of September _J_, 1997 by Dan
McRoskey, a married man as his sole and separate property, Joseph McRoskey, a married
man as his sole and separate property, Peter McRoskey, a married man as his sole and
separate property, Guy McRoskey, a married man as his sole and separate property, John W.
McRoskey, as Trustee of the McRoskey Family Revocable Trust dated September 15, 1982,
and Cecilia McRoskey Haynor as Trustee of the Cecilia Haynor Separate Property Trust
established August 19, 1993 (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.
1.1. "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.
RMD\ ATTYMNTE10 H.OPA
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 3.4.
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
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 to
include a loan.
1.8. "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.
1.9. "Code" or "IRC" means the Internal Revenue Code of 1986, as amended, and
any successor provision.
1.10. "Company" means the company named in Article II, Section 2.2.
1.11. "Economic Interest" means a Person's right to share in 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.
1.12. "Encumber" means the act of creating or purporting to create an Encumbrance,
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, lien, proxy coupled with an interest (other than
as contemplated in this Agreement), option, or preferential right to purchase.
1.14. "Fair Market 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 Fair Market Value of any property contributed by a Member to the
Company shall be the value of such property, as mutually agreed by the contributing Member
and the Company;
RMD\ATTY\INTE1014.OP A
(b) The Fair Market Value of any item of Company property distributed to any
Member shall be the value of such item of property on the date of distribution, as mutually
agreed by the distributee Member and the Company; and
(c) Fair Market Value for purposes of Article VIII, Section 8.7 shall be as
determined under that section.
1.15. "Initial Member" or "Initial Members" means those Persons whose names are
set forth in the first 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 a security interest, execution of a judgment or other legal process,
or otherwise, including a purported transfer to or from a trustee in bankruptcy, receiver, or
assignee for the benefit of creditors.
1.17. "Losses." See "Profits and Losses."
1.18. "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. "Meeting" is defined in Article V, Section 5.2.
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 Worldwide 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. "Percentage Interest" means a fraction, expressed as a percentage, the numerator
of which is the total of a Member's Capital Account and the denominator of which is the
total of all Capital Accounts of all Members.
1.23. "Person" means an individual, partnership, limited partnership, trust, estate,
association, corporation, limited liability company, or otK'er entity, whether domestic or
foreign.
RMD\ ATTYMNTE1014.OP A
1.24. "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).
1.25. "Proxy" has the meaning set forth in the first paragraph of California
Corporations code section 17001(ai). A Proxy may not be transmitted orally.
1.26. "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.
1.27. "Substituted Member" is defined in Article VIII, Section 8.8.
1.28. "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.
1.29. "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.
1.30. "Triggering Event" is defined in Article VIII, Section 8.3.
1.31. "Vote" means a written consent or approval, a ballot cast at a Meeting, or a
voice vote.
1.32. "Voting Interest" means, with respect to a Member, the right to Vote or
participate in management and any right to information concerning the business and affairs
of the Company provided under the Act, except as limited by the provisions of this
Agreement. A Member's Voting Interest shall be directly proportional to that Member's
Percentage Interest.
ARTICLE H: ARTICLES OF ORGANIZATION
2.1. The Articles of Organization were filed with the California Secretary of State on
August 15, 1997, File Number 101997227038. A copy of the Articles of Organization as filed
is attached to this Agreement as Exhibit A.
Name
2.2. The name of the Company shall be Integrated Capital Enterprises LLC.
RMD\ATTY\INTE1014.OPA 4
Address
2.3. The principal executive office of the Company shall be at 6959 Carnation Drive,
Carlsbad, California 92009, or such other place or places as may be determined by the
Members from time to time.
Agent for Service of Process
2.4. The initial agent for service of process on the Company shall be Dan McRoskey,
whose address is 6959 Carnation Drive, Carlsbad, California 92009. A Majority of Members
may from time to time change the Company's agent for service of process.
Business Purposes
2.5. The Company will be formed for the purposes of engaging in any business which
involves a lawful act or activity for which a limited liability company may be organized under
the Act.
Term of Company's Existence
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 the date specified in the Articles of Organization, unless sooner terminated by the
provisions of this Agreement or as provided by law.
Members as Managers
2.7. The Members shall be the managers of the Company.
ARTICLE HI: CAPITAL AND CAPITAL CONTRIBUTIONS
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. The initial Fair Market
Value of each item of contributed property (net of liabilities secured by such property) that
the Company is considered to assume or to take "subject to" under IRC section 752, is also
set forth in Exhibit B, together with the description and amount of these liabilities. If a
Member fails to make the initial Capital Contributions specified in this Section within 30 days
after the effective date of this Agreement, that Member's entire Membership Interest shall
terminate.
3.2 The President 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; provided, however, that such additional Capital Contributions may
not exceed $5,000 in any single month except pursuant to a Vote in which a Voting Interest
RMD\ATTY\INTE1014.OPA 5
s»/ - *
of Seventy-Five percent (75%) or more is cast in favor of the action. On making such a
determination, the President shall give notice to all Members in writing at least 30 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; provided, however, that a Member who
cannot make the entire required additional Capital Contribution shall be permitted to make
a partial Capital Contribution in which case only the arrearage shall be subject to the
provisions of section 3.3 below. No Member may voluntarily make any additional Capital
Contribution.
3.3 If a Member fails to make an additional Capital Contribution required under
Section 3.2 above within 30 days after it is required to be made (a Defaulting Member), the
President shall within five days after said failure 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 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 President 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 to
reflect the ratio that the Member's Capital Account bears to the total Capital Accounts of all
of the Members.
Capital Accounts
3.4. An individual Capital Account shall be maintained for each Member consisting
of (1) that Member's Capital Contributions, (2) increased by that Member's share of Profits,
(3) decreased by that Member's share of Losses, and (4) adjusted as required in accordance
with applicable provisions of the Code and Regulations.
Withdrawals
3.5. 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.
RMD\ ATTYNINTE1014.OP A
Interest
3.6. 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.
Limited Liability
3.7. 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.
No Priority of Return
3.8. No Member shall have priority over any other Member, with respect to the return
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, gain,
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.
Qualified Income Offset
4.2. If any Member unexpectedly receives any adjustment, allocation, or distribution
described in Reg sections 1.704- l(b)(2)(ii)(d)(4), 1.704-l(b)(2)(ii)(d)(5), or 1.704-l(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 allocation under this Section 4.2 shall be taken into account in computing subsequent
allocations of Profits and Losses so that the net amount of allocations 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-l(b) and
1.704-2 and shall be interpreted and applied in a manner consistent with such Regulations.
Allocations Respecting Asset Distributions
4.3. Any unrealized appreciation or unrealized depreciation in the values of Company
property distributed in kind to all the Members shall 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
RMD\ATTY\INTE1014.OPA 7
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.
Allocations Between Assignor and Assignee
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 that
fiscal year.
Distributions
4.5. 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 and in such amounts as the Members may agree.
Non-Gash Proceeds
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
Percentage Interests. If such non-cash proceeds are subsequently reduced to cash, such cash
shall be distributed to each Member in accordance with Section 4.5.
Liquidating Proceeds
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 Members' 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 business of the Company shall be managed by all the Members. A Member
shall be a manager only during the time the Member is a Member of the Company. Unless
RMDXATTYMNTEIOU.OPA 8
otherwise provided in this Agreement, all decisions concerning the management of the
Company's business shall be made by the Vote of a Majority of Members.
Procedure for Action by Members
5.2. The Members are not required to hold meetings, and decisions may be reached
through one or more informal consultations followed by agreement among a Majority of
Members, provided that all Members are consulted (although all Members need not be
present during a particular consultation), or by a written consent signed by a Majority of
Members. In the event that Members wish to hold a formal meeting (a "Meeting") for any
reason, the following procedures shall apply:
(1) Any two Members may call a Meeting of the Members by giving Notice of
the time and place of the Meeting at least 48 hours prior to the time of the holding of the
Meeting. The Notice need not specify the purpose of the Meeting, or the location if the
Meeting is to be held at the principal executive office of the Company.
(2) A majority of Members shall constitute a quorum for the transaction of
business at any Meeting of the Members.
(3) The transactions of the Members at any Meeting, however called or noticed,
or wherever held, shall be as valid as though transacted at a Meeting duly held after call and
notice if a quorum is present and if, either before or after the Meeting, each Member not
present signs a written waiver of Notice, a consent to the holding of the Meeting, or an
approval of the minutes of the Meeting.
(4) Any action required or permitted to be taken by the Members under this
Agreement may be taken without a Meeting if a Majority of the Members individually or
collectively consent in writing to such action.
(5) Members may participate in the Meeting through the use of a conference
telephone or similar communications equipment, provided that all Members participating in
the Meeting can hear one another.
(6) The Members shall keep or cause to be kept with the books and records of
the Company full and accurate minutes of all Meetings, Notices, and waivers of Notices of
Meetings, and all written consents in lieu of Meetings.
Compensation
5.3. The Members as such and as managers shall not be entitled to compensation for
their services.
RMD\ ATTYNINTE1014.OP A
Officers of the Company
5.4. The Company may have a President, who may, but need not be a Member. A
Majority of the Members may provide for additional officers of the Company and for their
election, and may alter the powers, duties, and compensation of the President and of all other
officers. The President, if there is one, shall attend any Meetings of Members called pursuant
to Section 5.2(l)-(6). By affixing their signatures hereto the Members agree that the initial
officers of the Company shall be constituted as follows:
President Dan McRoskey
Vice President Guy McRoskey
Vice President Joseph McRoskey
Vice President Cecilia McRoskey Haynor
Vice President Peter McRoskey
Title to Assets
5.5. All assets of the Company, whether real or personal, shall be held in the name of
the Company.
Banking
5.6. 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
shall be determined by a Majority of Members. Withdrawal from such accounts shall require
the signature of such person or persons as all of the Members may designate. By affixing
their signatures hereto the Members agree that initially the sole signature required shall be
that of Dan McRoskey.
Limitations on Actions
5.7 Notwithstanding any other provision of this Agreement, the following actions
may not be taken except pursuant to a Vote in which a Voting Interest of Seventy-Five
percent (75%) or more is cast in favor of the action:
(a) Any act that would make it impossible to carry on the ordinary business
of the Company;
(b) Any confession of a judgment against the Company;
(c) The dissolution of the Company;
(d) The disposition of all or a substantial part of the Company's assets not
in the ordinary course of business;
RMD\ATTY\INTE1014.OPA 10
Securities Laws
8.10. 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 LX: DISSOLUTION AND WINDING UP
9.1. The Company shall be dissolved on the first to occur of the following events:
(a) The death, incapacity, or withdrawal of a Member; or the bankruptcy 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
the Company, in which case the Company shall not dissolve. If the remaining Members fail
to so Vote, 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.
Winding Up
9.2. On the 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
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
RMD\ATTYMNTE1014.OPA 17
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 from 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 loans. 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.
Deficits
9.3. 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.
ARTICLE X: ARBITRATION
10.1. 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 California, 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 at San Diego, California. The substantive law of
the State of California shall be applied by the arbitrator 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. 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 XI: GENERAL PROVISIONS
11.1. 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
RMD\ATTYMNTE1014.OPA 18
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.
Counterpart Executions
11.2. This Agreement may be 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.
Governing Law; Severability
11.3. 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 extent of such invalidity, illegality, or unenforceability,
be severed, and the remaining provisions of this Agreement shall remain in effect.
Benefit
11.4. This Agreement shall be binding on and inure to the benefit of the parties and
their heirs, personal representatives, and permitted successors and assigns.
Number and Gender
11.5. 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.
Further Assurances
11.6. 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 acts and things, reasonably necessary in connection with the performance of their
respective obligations under this Agreement and to carry out the intent of the parties.
Members' Other Business
11.7. 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
businesses or activities.
RMD\ATTY\INTE!OU.OPA 19
Agent
11.8. Except as provided in this Agreement, no provision of this Agreement shall be
construed to constitute a Member, in the Member's capacity as such, the agent of any other
Member.
Authority to Contract
11.9. Each Member represents and warrants to the other Members that the Member
has the capacity and authority to enter into this Agreement.
Titles and Headings
11.10. 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.
Amendment
11.11. This Agreement may be altered, amended, or repealed only by a writing signed
by all of the Members.
Time of the Essence
11.12. Time is of the essence of every provision of this Agreement that specifies a time
for performance.
No Third Party Beneficiary Intended
11.13. This Agreement is made solely for 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.
Limited Liability Company
11.14. 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.
RMD\ATTY\INTE)014.OPA 20
Execution Clause
IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Agreement on the day and year first above written.
L
£^ ^ ssPeter McRoskey^x
Cecilia McRoskey Haynor, Trastee
ohn W. McRoskey, Trustee
RMD\ ATTYXINTE1014.OPA 21