HomeMy WebLinkAboutC-6744 - Encroachment Agreement EPN N2006-0264 for 705 Goldenrod Avenue(—
RECORDING REQUESTED AND
S
WHEN RECORDED RETURN TO:
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Public Works Department
City of Newport Beach
Post Office Box 1768
Newport Beach, CA 92659-1768
Recorded in Official Records, Orange County
Tom Daly, Clerk -Recorder
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Space above this line for Recorder's use only.
ENCROACHMENT AGREEMENT
(EPN2006-0264)
THIS AGREEMENT is made and entered into this 3(9t day of
2006, by and between Michael A. Kahn (authorized signature) on behalf
of Titan Development Company, LLC, (hereinafter "OWNER"), and the City of Newport Beach,
California, a municipal corporation organized and existing under and by virtue of its Charter
and the Constitution and the laws of the State of California, (hereinafter "CITY"). OWNER is
the owner of property located at 705 Goldenrod Avenue, Newport Beach, California 92625 and
legally described as Lot 5, Block 733 of the Corona del Mar Tract, as shown on a map
recorded in Book 3, Pages 41 through 42 inclusively of Miscellaneous Maps in the office of the
County Recorder of Orange County, California.
WITNESSETH:
WHEREAS, OWNER desires to construct certain non-standard improvements
(hereinafter "PERMITTED IMPROVEMENTS") within the Goldenrod Avenue right-of-way
(hereinafter "RIGHT-OF-WAY") that is located adjacent to the parcel legally described as Lot
5, Block 733 of the Corona del Mar Tract, as shown on a map recorded in Book 3, Pages 41
through 42 inclusively of Miscellaneous Maps in the office of the County Recorder of Orange
County, California; also known as 705 Goldenrod Avenue, Newport Beach, California 92625;
and
WHEREAS, said PERMITTED IMPROVEMENTS may interfere in the future with
CITY's ability to construct, operate, maintain, and replace CITY and other public facilities and
improvements within RIGHT-OF-WAY; and
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WHEREAS, the parties hereto desire to execute an agreement providing for fulfillment
of the conditions required by CITY to permit OWNER to construct and maintain said
PERMITTED IMPROVEMENTS.
WHEREAS, Michael A. Kahn has the legal authority to sign and enter into this
Agreement on behalf of OWNER, pursuant to that certain LLC Operating Agreement of Titan
Development Company, LLC designated Exhibit "B" and incorporated herein by reference.
NOW, THEREFORE, in consideration of the mutual promises, the parties hereto agree
as follows:
1. It is mutually agreed that PERMITTED IMPROVEMENTS shall be defined as: (1)
a 1'0" x 4'8" red brick entry walkway grouted and set in concrete sub -base located at the back
of sidewalk; and (2) appurtenances in the Goldenrod Avenue right-of-way as shown on
EXHIBIT "A" attached hereto and as approved by the Public Works Department. In addition, if
any of the PERMITTED IMPROVEMENTS actually built or installed during the time of
construction vary from the PERMITTED IMPROVEMENTS approved herein, such variations or
changes must be approved in advance by the Public Works Department and shall be shown
on the "As Built" plans.
2. CITY will permit OWNER to construct, reconstruct, install, maintain, use,
operate, repair and replace said PERMITTED IMPROVEMENTS and appurtenances
incidental thereto, within a portion of RIGHT-OF-WAY, if in substantial conformance with the
plans and specifications on file in the CITY. CITY will further allow OWNER to take all
reasonable measures necessary or convenient in accomplishing the aforesaid activities.
3. Rights granted under this Agreement may be terminated by CITY at any time by
giving 60-day notice, specifying in said notice the date of termination. CITY shall incur no
liability whatsoever in the event of the termination of this Agreement, or subsequent removal of
improvements by CITY.
4. OWNER and CITY further agree as follows:
a. OWNER may construct and install PERMITTED IMPROVEMENTS and
appurtenances incidental thereto, in substantial conformance with the plans and specifications
PA
on file in the CITY's Public Works Department, and as described on Exhibit "A" attached
hereto.
b. OWNER shall maintain the PERMITTED IMPROVEMENTS in accordance
with generally prevailing standards of maintenance, and pay all costs and expenses incurred
in doing so. However, nothing herein shall be construed to require OWNER to maintain,
replace or repair any CITY -owned pipeline, conduit or cable located in or under said
PERMITTED IMPROVEMENTS, except as otherwise provided herein.
C. If City or other public facilities or improvements are damaged by the
installation or presence of PERMITTED IMPROVEMENTS, OWNER shall be responsible for
the cost of repairs.
d. That should CITY be required to enter onto said RIGHT-OF-WAY to
exercise its primary rights associated with said RIGHT-OF-WAY, including but not limited to,
the maintenance, removal, repair, renewal, replacement or enlargement of existing or future
public facilities or improvements, CITY may remove portions of the PERMITTED
IMPROVEMENTS, as required, and in such event:
(i) CITY shall notify OWNER in advance of its intention to accomplish
such work, provided that an emergency situation does not exist.
(ii) OWNER shall be responsible for arranging for any renewal,
replacement, or restoration of the PERMITTED IMPROVEMENTS
affected by such work by CITY.
(iii) CITY agrees to bear only the cost of any removal of the
PERMITTED IMPROVEMENTS affected by such work by CITY.
(iv) OWNER agrees to pay all costs for the renewal, replacement, or
restoration of the PERMITTED IMPROVEMENTS.
5. In the event either party breaches any material provision of this Agreement, the
other party at its option may, in addition to the other legal remedies available to it, terminate
this Agreement, and, in the event the breaching party is OWNER, CITY may enter upon the
RIGHT-OF-WAY and remove all or part of the improvements installed by OWNER.
Termination because of breach shall be upon a minimum of ten- (10) day notice, with the
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notice specifying the date of termination. In the event of litigation, commenced with respect to
any term of condition of this Agreement, the prevailing party shall be entitled to reasonable
attorneys fees and costs incurred.
6. OWNER shall defend, indemnify and hold harmless CITY, its City Council,
boards and commissions, officers and employees from and against any and all loss, damage,
liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees
(when outside attorneys are so utilized), regardless of the merit or outcome of any such claim
or suit arising from or in any manner connected with the design, construction, maintenance, or
continued existence of the PERMITTED IMPROVEMENTS.
7. OWNER agrees that this Agreement shall remain in full force and effect from
execution thereof; shall run with the land; shall be binding upon the heirs, successors, and
assigns of OWNERS' interest in the land, whether fee or otherwise, and shall be recorded in
the Office of the County Recorder of Orange County, California.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM:
By: 4,, C `
Aaron Harp, Asst. City Attorney
ATTEST:
By. V
&� � /� / �J/�o
LaVonne Harkless, City C'���
f:\users\pbw\shared\encroach\row agreeme
CITY OF NEWPORT BEACH,
a Municipal corporation
By:10 . 4�
Homer Blud , City Manager
OWNER:
Michael A. Kahn
Authorized Signature
rod (titan dev co Ilc).doc
4
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On , 200_, 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 has 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 acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(This area for official notarial seal)
STATE OF CALIFORNIA )
ss:
COUNTY OF ORANGE )
On Aw o , 200�Li� before me, O'�W �'t/ /�Cb•(���/ 411'��
personally appeared
personally known to
me (or proved to me on the basis of satisfactory evidence) to be the persong whose nameX is/af6-
subscribed to the within instrument and acknowledged to me that he4s�Wtbeyhas executed the same
in his/fi r authorized capacityDes`), and that by his/ rhtleirsignatureX on the instrument the
person 6 or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
DARLEEN DIXON
Commission # 1519855
Notary Public - California
Orange County
01MV Comm. Expires Oct 16,2004
(This area for official notarial seal)
F:\Users\PBW\Shared\ENCROACH\ROW Agreements\2006\N2006-0264 705 Goldenrod (Titan Dev Co Llc).doc
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LLC OPERATING AGREEMENT
OF
TITAN DEVELOPMENT COMPANY, LLC
This OPERATING AGREEMENT is made and entered into as of the date written
hereinbelow by and between those persons who have executed this Operating Agreement
or a counterpart hereof.
The parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
ORGANIZATION
1. Formation of Limited Liability Company
On January 27, 2004, Michael A. Kahn organized a California Limited Liability
Company (the "Company") pursuant to the Act, as hereinafter defined. The Articles of
Organization as filed on behalf of MICHAEL A. KAHN are hereby adopted and ratified. In
the event of a conflict between the terms of this Operating Agreement and the terms of the
Articles of Organization, the terms of the Articles of Organization shall prevail.
2. Name
The business of the Company shall be conducted under the name of TITAN
DEVELOPMENT COMPANY, LLC or such other name as the Manager(s) may designate
in writing to the Members.
3. Principal Office, Registered Office and Registered Agent
The principal business office of the Company shall be located at 29901 Santa
Margarita Parkway, Rancho Santa Margarita, CA 92688. The Company's registered office
shall be located at 29901 Santa Margarita Parkway, Rancho Santa Margarita, CA 92688
and its initial registered agent shall be Michael A. Kahn. The Manager(s) may, within their
sole and unrestricted discretion, change the principal office, registered office or registered
agent of the Company, in such event, shall give written notice thereof to all Members, and
the Manager(s) may establish additional offices of the Company.
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4. Purpose
The purpose of the Company is to engage in real estate development and to pursue
other business and investment opportunities as the Manager(s) shall determine may be
beneficial for the Company.
5. Fiscal Years
The fiscal year of the Company shall be the calendar year or such other fiscal year
as the Manager(s) shall determine pursuant to the provisions of Code Sec. 706(b).
6. Term
The term of existence of the Company shall commence on the effective date of
filing of the Articles of Organization with the California Secretary of State, and shall
continue until terminated by the provisions of this Agreement or as provided by law.
7. Investment Representations
Each Member hereby represents, warrants, and agrees as follows:
Prior Relationship or Ability to Evaluate Investment. He or she has had a business or
personal relationship with the Company or one or more of the Members of the Company
prior to learning of the opportunity to become a Member of the Company, or he or she has
sufficient business or financial experience to be capable of evaluating the merits and risks
of investing in the Company and to protect his or her own interests in connection therewith,
or is being advised by an individual with such experience and ability who is not affiliated
with or compensated by the Company or any Affiliate of the Company, either directly or
indirectly.
Investment Not Advertised. He or she has not seen, received, been presented with, or
been solicited by any leaflets, pamphlets, public promotional meetings or seminars, articles
or any other form of advertisement or solicitational materials with respect to the sale of
interests in the Company.
Investment Intent. He or she is purchasing a Membership Interest in the Company for his
or her own account for investment purposes only and not with a view to or for sale in
connection with a distribution of all or any partof the Membership Interest. No other person
shall have any beneficial interest, direct or indirect, or any right to the Membership Interest.
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ARTICLE II
GENERAL DEFINITIONS
As used in this Agreement, the following terms shall each have the meaning set
forth in this Article (unless the context otherwise requires). For purposes of this
Agreement, the -term "person" shall include individuals, corporations, associations,
partnerships, limited liability companies, trusts, estates and other entities.
1. Act
Act shall mean the California Liability Company Act, as now in effect or as hereafter
amended or revised.
2. Affiliate of a member
Affiliate of a Member shall mean any person directly or indirectly controlling,
controlled by or under common control with a Member or Members.
3. Agreement
Agreement shall mean this Operating Agreement, and the same may be amended
or supplemented from time to time in accordance with the provisions hereof.
4. Cash Flow
Cash Flow shall mean all cash received by the Company from all sources (including
capital contributions and borrowings), less cash expended or reserved in the discretion of
the Manager(s) for liabilities (contingent or otherwise), expenses, working capital, capital
expenditures and obligations of the Company or obligations secured by the assets of the
Company.
5. Code
Code shall mean the Internal Revenue Code of 1986, as now in effect or as
hereafter amended.
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6. Company
Company shall mean TITAN DEVELOPMENT COMPANY, LLC, the limited liability
company formed by the filing of the Articles of Organization, as constituted from time to
time.
7. Managers
Managers shall mean Michael A. Kahn and any successor or additional Manager
elected in accordance with Article VII, in such person's capacity as a Manager.
8. Members
Members shall mean the persons set forth on Schedule A attached hereto, and any
person admitted as an additional or substitute Member in accordance with Article VIII, in
such person's capacity as a Member.
9. Membership Interest
Membership Interest shall mean, with respect to a Member, the percentage of
ownership interest in the Company of such Member, as set forth on Schedule A. Each
Member's percentage of Membership Interest in the Company shall be based on his
relative capital contributions to the Company. In the event that any proposed Member
should fail to make the capital contribution provided on Schedule A, then the Membership
Interests otherwise provided to that proposed Member shall not be issued to that proposed
Member but may then be purchased by the Members who have made their scheduled
capital contributions, in proportion to those other Members' Membership Interests.
10. Property
Property shall mean, at any time, all property, whether real or personal, interests,
assets or rights owned or held by or on behalf of the Company at such time.
rd
ARTICLE III
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
Capital Contributions
Upon execution of this Agreement, each Member shall contribute to the Company
cash, securities and/or other assets in the amount set forth opposite his or her respective
name on Schedule A attached hereto.
2. Capital Accounts
Separate capital accounts shall be maintained by the Company for each Member.
The capital account of each Member shall be credited with his capital contributions (at net
fair market value with respect to contributed property) and shall be appropriately adjusted
to reflect each Member's allocations of profits, gains, losses, deductions, the net fair
market value of distributions made to the Member and such other adjustments as shall be
required by Code Sec. 704(b) and the regulations promulgated thereunder.
3. Limited Liability
The Members shall not have any personal liability for liabilities or obligations of the
Company except to the extent of their capital contribution set forth in Section 3.01, and the
Members shall not be required to make any further or additional contribution to the
Company or to lend or advance funds to the Company for any purpose.
4. No Interest on or Right to Withdraw Capital Contributions
No interest shall be paid by the Company on capital contributions or on the balance
in any capital account and no Member shall have the right to withdraw his capital
contribution or to demand or receive a return of his capital contribution.
ARTICLE IV
COMPANY FUNDS
All funds received by the Company shall be utilized for Company purposes as
determined by the Manager(s) in the best interests of the Company. Until required for the
61
Company's business, all Company funds shall be deposited and maintained in such
accounts in such banks or other financial institutions as shall be selected by the
Manager(s) or shall be invested in securities of the United States government, certificates
of deposit or money market funds designated by the Manager(s). The Manager(s) or their
designee shall have the right to draw checks payable in such funds and make, deliver,
accept and endorse negotiable instruments in connection with the Company's business.
Company funds shall not be commingled with the funds of any other person.
ARTICLE V
ALLOCATIONS AND DISTRIBUTIONS
1. Distributions
Cash flow shall be distributed to the Members in such amounts and at such intervals
as the Manager(s) shall determine and among the Members in proportion to their
respective Membership Interests. Provided, however, that as Member's estimated tax
payments may be due, but in no event later than ninety (90) days following the end of each
fiscal year, reasonable efforts shall be made to distribute to each Member a distribution in
an amount equal to such Member's presumed tax liability for the prior fiscal year. Any
amount so distributed shall be deemed to be an advance distribution of amounts that may
otherwise be distributable to the Members and shall reduce the amounts that would
subsequently otherwise distributable to the Members in the order that they would have
been distributed. Presumed tax liability for any fiscal year shall mean an amount equal to
the product of (a) the amount of taxable income allocated to such Member for that fiscal
year, and (b) the combined effective federal and state income tax rate, adjusted for the
federal deduction of state income taxes, applicable during the fiscal year for computing
ordinary income tax liabilities (without reference to minimum taxes, alternative minimum
taxes, or income tax surcharges) of a natural person residing in California in the highest
bracket of taxable income.
2. Allocation Of Profits And Losses
All profits and losses of the Company shall be allocated among the Members in
proportion to their respective Membership Interests; provided, however, that for federal
income tax purposes, income, gain, loss and deduction, with respect to property
contributed to the Company, shall be shared by the Members so as to take account of the
variation between the federal income tax basis of the property to the Company and its fair
market value at the time of its contribution to the Company utilizing any such method as
is selected by the Manager(s) that is authorized to Code Sec. 704(c) and regulations
relating thereto.
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ARTICLE VI
MANAGEMENT: RIGHTS, POWERS AND OBLIGATIONS OF THE MANAGER(S)
1. Management And Control In General
(a) Except as set forth in Article VI Subsection 1(b), the Manager(s) shall
have full and exclusive power to manage and control the business and affairs of the
Company, and the Members shall have no right to act on behalf of or bind the Company.
The Manager(s) shall have all the rights, powers and obligations of a manager as provided
in the Act and as otherwise provided by law, and any action taken by the Manager(s) shall
constitute the act of and serve to bind the Company. In dealing with the Manager(s), no
persons shall be required to inquire into, and all persons are entitled to rely conclusively
on, the authority of the Manager(s) to bind the Company.
(b) Notwithstanding the provisions of Article VI Subsection 1(a), the
Manager(s) shall not (i) confess a judgment against the Company or execute or deliver any
assignment for the benefit of creditors of the Company or (ii) sell or assign substantially all
the Property in bulk, without the written consent of the Members holding a majority of the
Membership Interests.
2. Number and Appointment of Manager(s)
(a) The initial number of Managers of the Company shall be one (1).
Such number may be changed from time to time upon the affirmative vote of Members
holding a majority in interest of the Membership Interests who are present at a meeting
called for such purpose, an a Manager may be removed at a meeting called such purpose
upon the same vote.
(b) Manager may resign at any time upon prior written notice to the
Company. In the event of a vacancy in the position of Manager by reason of voluntary
resignation, removal, or death, a successor shall be appointed by the affirmative vote of
the Members holding a majority of the Membership Interests who are present at a meeting
called for such purpose.
(c) A Manager shall not be required to be a Member of the Company or
a resident of California.
3. No Seal Required
No seal shall be required on any document executed on behalf of the Company.
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4. Employment of Others, Including Affiliates
The Manager(s) shall not be required to devote full time to the affairs of the
Company and shall devote such time to Company affairs as they in their sole and
unrestricted discretion deem necessary to manage and supervise the operations and
business of the Company. Nothing contained in this Agreement shall preclude the
employment by the Manager(s), on behalf of and at the expense of the Company, of
themselves or any agent or third party to operate and manage all or any portion of the
Property or to provide any service relating to the business, subject to the control of the
Manager(s). The Manager(s) may, on behalf of the Company, engage one or more
Affiliates of any of the Manager(s) to render services to the Company, that any such
engagement shall be upon terms and conditions no less favorable to the Company than
could be obtained from an independent third party. Neither the Company nor any of the
Members shall have, as a consequence of the relationship created hereby, any right in or
to any income or profits derived by the Manager(s) or an Affiliate of any of the Manager(s)
from any business arrangements with the Company which are consistent with this Section.
5. Compensation To Manager(s)
The compensation of the Manager(s) shall be established from time to time by the
affirmative vote of the Member(s) holding a majority of the Membership Interests who are
present at a meeting called for such purpose.
6. Expenses
The Company shall pay all costs and expenses arising from or relating to the
organization of the Company, the acquisition of Property and the commencement and
continuation of Company operations. The Company shall not be required to reimburse the
Manager(s) or their Affiliates for overhead expenses incurred by them in providing services
to the Company, but shall be required to reimburse such parties for reasonable out-of-
pocket expenses so incurred by them.
7. Title to Property
Title to Property shall be taken in the name of the Company.
8. Liability of a Manager
Each Manager and any Affiliate of a Manager, and their respective officers,
shareholders, controlling persons, directors, agents and employees, shall not be liable,
responsible or accountable in damages or otherwise to the Company or to any of the
Members, their successors or permitted assigns, except by reason of acts or omissions
due to gross negligence or willful misconduct. Any action taken in good faith in reliance
upon and in accordance with the advice or opinion of counsel shall be conclusively deemed
not to constitute gross negligence or willful misconduct.
9. Indemnification
The Company shall indemnify, defend and hold harmless any person (the
"Indemnified Party") who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, against losses, damages, claims or expenses actually and
reasonably incurred by it for which such Indemnified Party has not otherwise been
reimbursed (including reasonable attorneys' fees, judgments, fines and amounts paid in
settlement) in connection with such action, suit or proceeding, by reason of any acts,
omissions or alleged acts or omissions arising out of the Indemnified Party's activities as
a Member, or as an officer, shareholder, director, agent or employee of a Member, on
behalf of the Company or in furtherance of the interests of the Company, so long as the
Indemnified Party did not act in a manner constituting gross negligence or willful
misconduct. The termination of any action, suit or proceeding by judgment, order,
settlement, or upon a plea of nolo contendere or its equivalent, shall not of itself create a
presumption that the Indemnified Party's conduct constituted gross negligence or willful
misconduct
10. Tax Matters Partner
Michael A. Kahn shall be the "tax matters partner" for purposes of Subchapter C of
Chapter 63 of Subtitle F of the Internal Revenue Code (Code Secs. 6221-6233) and shall
have the authority to exercise all functions provided for in said Act, or in regulations
promulgated thereunder by Treasury, including, to the extent permitted by such
regulations, the authority to delegate the function of "tax matters partner" to any other
person. Michael A. Kahn shall be reimbursed for all reasonable expenses incurred as a
result of his duties as tax matters partner. In the event Michael A. Kahn resigns as tax
matters partner or as a Manager, or his entire Membership Interest is disposed of or
terminated, Tami L. Kahn shall become the tax matters partner.
E
ARTICLE VII
MEETINGS AND VOTING
1. Meetings
Meetings of the Members may be called by any Manager or by Members holding at
least 10% of the Membership Interests upon forty-eight (48) hours prior written notice to
each Member of the Company. Such notice shall set forth the time and place of the
meeting. If no place for the meeting is designated, the place of meeting shall be the
principal office of the Company. Members holding a majority in interest of all Membership
Interests shall constitute a quorum at any meeting of Members, whether present in person
or by proxy.
2. Manner of Acting
If a quorum is present at a meeting, the affirmative vote of Members holding at least
a majority in interest of all Membership Interests shall be the act of the Members, unless
the vote of a greater or lesser proportion or number is otherwise required by the Act, by the
Articles of Organization or by this Agreement.
3. Action by Members
Any action required or permitted to be taken at a meeting of Members may be taken
without a meeting if the action is evidenced by a written consent describing the action
taken, executed by each Member and delivered to the Manager(s) for inclusion in the
Company records. Any action taken pursuant to this Article VII Subsection 3 shall be
effective when all Members have executed the consent, unless the consent specifies a
different effective date.
4. Waiver of Notice
When any notice is required to be given to any Members, a waiver thereof in writing
executed by the person entitled to such notice, whether before, at or after the time stated
therein, shall be equivalent to the giving of such notice.
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ARTICLE VIII
TRANSFERS OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS
Restrictions on Transfer
A Member may not sell or transfer all or any part of his Membership Interest except
as provided herein. Any sale or transfer without said consent shall be null and void and
confer no rights on the transferee as against the Company or as against the Members.
2. Sale of Membership Interest During Lifetime of Member
(a) Notice by Selling Member. Except as provided herein, no Member
shall sell his or her Membership Interest(s) or any right or interest therein without the prior
Mitten consent of all the other Member, unless he shall first have given written notice, via
registered mail, to the Company of the intention to do so.
(b) The notice must name the proposed transferee, specify the number of
Membership Interests offered for sale and specify the price per Membership Interest. The
Company shall have an option for thirty (30) days after receipt of notice to purchase the
offered Membership Interests on those terms.
(c) Failure of Company to Exercise Option. If all of the offered
Membership Interests are not purchased before the expiration of the time period specified
above, the Selling Member shall be under no obligation to sell any of the offered
Membership Interests to the Company, but may dispose of those Membership Interests in
any lawful manner, except that the selling Member shall not sell any such Membership
Interests to any other person without first giving the Company the right to purchase them
at the price and on the terms offered by that other person.
3. Termination of Member's Interest in Company
Upon a Member's death or the termination of a Member's interest in the Company,
such Member's legal representative shall have all the rights of the Member for the purpose
of settling the Member's estate and such power as the Member possessed to transfer his
Membership Interest and to join with the transferee thereof in satisfying the conditions
precedent to such transferee becoming a substitute Member which are set forth in this
Article VIII.
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4. Substitute or Additional Member
(a) A person shall only be admitted as a substitute or additional Member
under this Agreement in compliance with the following:
(i) a transfer contemplated by Article VIII Subsection 1 shall be
made only by written document, signed by the transfer Member and accepted in
writing by the transferee, and a duplicate original of such document shall be
delivered to the Company and consented to by all Members (which consent may be
withheld in the sole and unrestricted discretion of any Member);
(ii) the transferee shall execute and deliver to the Company a
written agreement, in form reasonably satisfactory to the Manger(s), pursuant to
which said person agrees to be bound by this Agreement and grants the power of
attorney contained in this Agreement.
(b) In the event a transfer is made in accordance with the terms of this
Article, unless otherwise required by the Code:
(i) the effective date of such transfer shall be the date the written
documents described in Article VIII Subsection 4(a)(i) and (ii) are approved by all
Members; and
(ii) the Company shall be entitled to treat the transferor Member
as the absolute owner of the transferred Membership Interests in all respects and
shall incur no liability for distributions or allocations made pursuant to Article V in
good faith to such transferor until such time as the written documents described in
Article VIII Subsection 4(a)(i) and (ii) are approved by all Members.
(c) The costs incurred by the Company associated with the admission of
a substitute or additional Member contemplated by this Article (including reasonable
attorneys' fees) shall be borne by the transferee.
ARTICLE IX
REPORTS AND TAX MATTERS
1. Books, Records and Reports
(a) Accurate books, records and reports shall be maintained by the
Company showing its assets, liabilities, operations, transactions and financial condition,
as well as the names and addresses of the Members. The Company books and records
12
may be kept under such permissible method of accounting as the Manager(s) may
determine. The Company books shall be maintained at the principal office of the
Company, and each Member shall have the right upon reasonable notice given to the
Company to inspect, extract and copy such books during regular business hours of the
Company.
(b) The Manager(s) shall cause income tax returns for the Company to
be prepared and filed with the appropriate authorities. Within ninety (90) days after the
close of each fiscal year of the Company, the Manager(s) shall send to each person who
was a Member at any time during such fiscal year such information as will be sufficient to
prepare documents which may be required to be filed under relevant federal and state
income tax laws.
(c) Within ninety (90) days after the close of the Company's fiscal year,
the Manager(s) shall use their best efforts to cause each Member to receive financial
statements of the Company for the fiscal year then ended including a balance sheet and
statement of income.
2. Section 754 Election
In the event of a distribution of property made in the manner provided in Section 734
of the Code, or in the event of a transfer of any Membership Interest permitted by this
Agreement made in the manner provided in Section 743 of the Code, the Manager(s), on
behalf of the Company, may, but shall not be required to, file an election under Section 754
of the Code in accordance with the procedures set forth in the applicable regulations
promulgated thereunder.
ARTICLE X
DISSOLUTION AND TERMINATION
1. Dissolution of the Company
The Company shall dissolve and be terminated on or before the thirtieth anniversary
of its creation or upon the earlier happening of any one of the following:
(a) upon written agreement of Members holding a majority in interest of
the Membership Interests;
(b) upon the death, voluntary retirement, voluntary resignation, court
declaration of incompetence with respect to, or dissolution of, a Member, unless within
ninety (90) days thereafter, the remaining Member(s) holding a majority in interest of the
Membership Interests agree to continue the business of the Company;
(c) upon the sale of substantially all of the Property or other conversion
of substantially all the Company's assets to cash; or
(d) upon the occurrence of any other event other than one specified in this
Article X Subsection 1 which, under the Act or as otherwise provided by law, causes a
dissolution and termination of the Company.
2. Liquidator
(a) Upon dissolution of the Company, the Manager(s), or if there is no
Manager, such person as the Members holding a majority ofthe Membership Interests may
designate, shall act as liquidator of the Company (in either case, the "Liquidator"). The
Liquidator shall, with reasonable speed, wind up the affairs of the Company and liquidate
the Property. The Liquidator shall have unlimited discretion to determine the time, manner
and terms of any sale of Property having due regard to the activity and condition of the
relevant market and general financial and economic conditions. The Liquidator shall
distribute any proceeds received from the disposition of the Property and any other assets
of the Company in accordance with the provisions of Article V.
(b) If any Member shall be indebted to the Company, then until payment
of such amount by him, the Liquidator shall retain such Member's distributive share of
Property and apply the same to the liquidation of such indebtedness.
(c) The Liquidator shall comply with all requirements of the Act and other
applicable law pertaining to the winding up of a limited liability company, following which
the Company shall stand liquidated and terminated.
3. Source of Distributions
Each Member shall look solely to the assets of the Company for all distributions with
respect to the Company, the return of his capital contribution thereto and his share of
profits or losses thereof, and shall have no recourse therefor (upon dissolution or
otherwise) against any other Member or Manager.
14
ARTICLE XI
POWER OF ATTORNEY
1. Power of Attorney
Each Member, by executing this Agreement or a counterpart hereof, does hereby
irrevocably constitute and appoint each Manager, and any successor Manager of the
Company, with full power of substitution, as such Member's true and lawful attorney -in -fact
(the "Attorney -in Fact"), in his name, place and stead, to execute, acknowledge, swear to,
deliver, file and record such documents which are now or may hereafter be required by law
to be filed on behalf of the Company or are deemed necessary or desirable by the
Manager(s) to carry out fully the provisions of this Agreement in accordance with its terms.
2. Nature of Power of Attorney
The grant of authority in Article XI Subsection 1 by each Member (i) is a special
power of attorney coupled with an interest in favor of the Attorney -in -Fact and as such shall
be irrevocable and shall survive the death or legal incapacity of the Member; (ii) may be
exercised for the Member by a facsimile signature of the Attorney -in -Fact; and (iii) shall
survive the assignment by the Member of all or any portion of his Membership Interest,
except that where the assignee of the entire Membership Interest of the Member has
furnished a power of attorney and has been approved by the Company for admission to
the Company as a substitute Member pursuant to Article VI11, the power of attorney granted
in Article XI Subsection 1 shall survive such assignment for the sole purpose of enabling
the Attorney -in -Fact to execute, acknowledge and file any instrument necessary to effect
such substitution and shall thereafter terminate.
ARTICLE XII
MISCELLANEOUS PROVISIONS
1. Notices
All notices or other communications required or permitted to be given pursuant to
this Agreement shall be in writing and shall be considered as properly given: (i) in the case
of a report to be given to a Member, if personally delivered or if mailed by United States
first-class mail, postage prepaid, addressed to such Member at his address on the records
of the Company; and (ii) in the case of notices or communications to be given to any
Member, if personally delivered or if mailed by United States first-class certified or
15
registered mail, return receipt requested, postage prepaid, or if sent by prepaid telegram
or telex, addressed to such Member at his address on the records of the Company. A
Member may change his address for notices by giving notice in like manner. Any notice
or other communication shall be deemed to have been given to, or received by, the
appropriate party as of the date on which it is personally delivered or, if mailed, on the third
business day after the date on which it is deposited in the United States mail, or if
telegraphed or telexed, on the business day after it is transmitted.
2. Governing Law
This Agreement shall be governed by and construed in accordance with the laws
of the State of California.
3. Successors and Assigns
This Agreement and all the terms and provisions hereof shall be binding upon and
shall inure to the benefit of the Members and their respective heirs, executors,
administrators, successors and permitted assigns. Any person acquiring or claiming an
interest in the Company, in any manner whatsoever, shall be subject to and bound by all
the terms, conditions and obligations of this Agreement to which his predecessor in interest
was subject or bound, without regard to whether such person has executed this Agreement
or a counterpart hereof or any other document contemplated hereby. No person shall have
any rights or obligations relating to the Company greater than those set forth in this
Agreement, and no person shall acquire an interest in the Company or become a Member
thereof except as permitted by the terms of this Agreement.
4. Counterparts
This Agreement may be executed in any number of identical counterparts, each of
which, for all purposes, shall be deemed an original, and all of which constitute,
collectively, one and the same Agreement. In addition, this Agreement may contain more
than one counterpart signature page and may be executed by the affixing of the signature
of each of the Members to one of such counterpart signature pages, and all such
counterpart signature pages shall be read as one and shall have the same force and effect
as though all the signers had signed the same signature page.
5. Additional Assurances
Upon the request of a Manager, each Member agrees to perform all further acts and
execute, acknowledge and deliver any documents which the Manager deems reasonably
16
necessary to effectuate the provisions of this Agreement.
6. Modification to be in Writing
This Agreement constitutes the entire understanding of the parties hereto with
respect to the subject matter hereof and supersedes any and all prior negotiations,
understandings and agreements in regard hereto. No amendment, modification or
alteration of the terms hereof shall be binding unless the same is in writing and is effected
in accordance with this Agreement.
7. Partition
Each of the parties hereto irrevocably waives during the term of the Company any
right that he may have to maintain any action for partition with respect to Company
Property.
8. No Waiver
Failure ordelay of any party in exercising any right or remedy underthis Agreement,
or any other agreement between the parties, or otherwise, will not operate as a waiver
thereof. The express waiver by any party of a breach of any provision of this Agreement
by any other party shall not operate or be construed as a waiver of any subsequent breach
by said party. No waiver will be effective unless and until it is in written form and signed
by the waiving party.
9. Gender And Number
Wherever from the context it appears appropriate, each term stated in either the
singular or plural shall include the singular and plural, and pronouns stated in either the
masculine, the feminine or the neuter gender shall include the masculine, feminine and
neuter.
10. Headings
The captions in this Agreement are inserted for convenience of reference only and
shall not affect the construction of this Agreement. Reference in this Agreement to any
Article, Section, Paragraph, Subparagraph or Schedule are to the same contained in this
Agreement.
17
11. Validity And Severability
If any provision of this Agreement contravenes any law and such contravention
would thereby invalidate this Agreement, or if the operation of any provision hereof is
determined by law, administrative regulation or otherwise to result in classification of the
Company as an association taxable as a corporation for federal income tax purposes, or
to make a Member generally liable for the obligations of the Company, then such provision
is declared to be invalid and subject to severance from the remaining portion of this
Agreement, and this Agreement shall be read and construed as though it did not contain
such provision in a manner to give effect to the intention of the parties to the fullest extent
possible.
12. No Third -Party Rights
This Agreement and the covenants and agreements contained herein are solely for
the benefit of the parties hereto and their Affiliates. No other person shall be entitled to
enforce or make any claims, or have any right pursuant to the provisions of this Agreement.
IN WITNESS WHEREOF, the Members have caused this Agreement to be
executed on this 'rvi day of January, 2004.
Y
The Michael and Tami L. Kahn Family Trust
dated S_epte er 10, 1991
Michael A. Kahn
Tami L. Kahn
SCHEDULE A
OPERATING AGREEMENT OF TITAN DEVELOPMENT COMPANY, LLC
Ownership
Name of Member Amount of capital contribution Percentage
The Michael and Tami L. Kahn Family Trust $1,000.00 100%
dated September 10, 1991
`e7
200403010074
State of California
File #
Kevin Shelley
Secretary of State
Cal IFOpH'
LIMITED LIABILITY COMPANY
ARTICLES OF ORGANIZATION
J AN
A $70.00 filing fee must accompany this form.
IMPORTANT — Read instructions before completing this form.
This Space For Filing Use Only
1.
NAME OF - THE LIMITED LIABILITY COMPANY (END THE NAME WITH THE WORDS "LIMITED LIABILITYCOMPANY," 'LTD. LIABILITY CO., -OR THE
ASSREVIATIONS"Ll-C- OR -L.L.C.-)
Titan Development Company, LLC
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.
CHECK THE APPROPRIATE PROVISION BELOW AND NAME THE AGENT FOR SERVICE OF PROCESS.
AN INDIVIDUAL RESIDING IN CALIFORNIA. PROCEED TO ITEM 4.
A CORPORATION WHICH HAS FILED A CERTIFICATE PURSUANT TO SECTION 1505. PROCEED TO ITEM 6.
AGENTS NAME: Jack W. St 'th, Jr.
4,
ADDRESS OF THE AGENT FOR SERVICE OF PROCESS IN CALIFORNIA, IF AN INDIVIDUAL:
ADDRESS 29901 Santa Margarita Parkway
CITY Rancho Santa Margarita STATE CA ZIP CODE 92688
S.
THE LIMITED LIABILITY COMPANY WILL BE MANAGED BY: (CHECK ONE)
177/1 ONE MANAGER
MORE THAN ONE MANAGER
ALL LIMITED LIABILITY COMPANY MEMBER(S)
6.
OTHER MATTERS TO BE INCLUDED IN THIS CERTIFICATE MAY BE SET FORTH ON 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)
Real Estate Investment
9.
IT IS HEREBY DECLARED THAT I AM THE PERSON WHO EXECUTED THIS INSTRUMENT, WHICH EXECUTION IS MY ACT AND DEED.
January 26, 2004
SidiaT—GRE OF ORGANIZER DATE
CARL F.AGREN n -
TYPE OR PRINT NAME OF ORGANIZER
10- RETURN TO:
r
NAME CARL F. AGREN
FIRM LAW OFFICES OF CARL F. AGREN
ADDRESS 2600 MICHELSON, STE. 850
CITY]STATE IRVINE, CA 92612
ZIP CODE
SEC/STATE FORM LLCA (Rev. 12,'2003) - FILING FEE $7U.U0 r rrmuv=u 0 T -Dc�m= i � , 1 0 -
�` `•� State of California
Kevin Shelley
` Secretary of State
'�. C'rtIFO Mt► .
Filing Fee $20.00 - If Amendment, See Instructions
IMPORTANT -.Read Instructions Before Completing This Form
1. LIMITED LIABILITY COMPANY NAME (Do not alter if name is preprinted.)
Titan.Development Company, LLC
This Space For Filing Use Only
ySECRETARY OF STATE FILE NUMBER 13. STATE OR PLACE OF ORGANIZATION.
'aT20/.t�f�"�61�C'AYk�.V"���d�ithrt 4�:5�.^'knt5'av�d.i?.e, rst.:i.�.. �r�� 'l • � !C"A
STRE ADDRESS
CITY 2600 Michelson, Ste. 850, Irvine STATE CA ZIP CODE 92612
S. CAUFORNIA OFFICE WHERE RECORDS ARE MAINTAINED (FOR DOMESTIC ONLY)
STREETADDRESS 2600 Michelson, Ste. 850
CrIY. Irvine. STATE CA zip CODE 92612
6.
CHECK THE APPROPRIATE -PROVISION. BELOW AND NAME THE AGENT FOR SERVICE OF PROCESS
RX] AN INDMDUAL RESIDING IN CALIFORNIA.
[ ] A CORPORATION WHICH HAS FILED A CERTIFICATE PURSUANT TO CALIFORNIA CORPORATIONS CODE SECTION 1505.
AGENTS NAME: Jack W. Smith, Jr.
ADDRESS OF THE AGENT FOR SERVICE OF PROCESS IN CALIFORNIA, IF AN INDIVIDUAL
2600 Michelson, Ste. 850
ADDRESS
CITY Irvine STATE CA ZIP CODE 92612
8.
DESCRIBE TYPE OF BUSINESS OF THE LIMITED LIABILITY COMPANY.
Real Estate Investment
9.
LIST THE NAME AND COMPLETE ADDRESS OF ANY MANAGER OR MANAGERS, OR IF NONE HAVE BEEN APPOINTED OR ELECTED,
PROVIDE THE NAME AND ADDRESS OF EACH MEMBER. ATTACH ADDITIONAL PAGES, IF NECESSARY.
ga.
NAME Michaei F7aH—n
App 2600 Michelson, Ste. 850
t;�jY Ivine,,. STATE CA ZIP CODE 92612
9b.
NAME
ADDRESS
CRY STATE. ZIP CODE
9c.
NAME
ADDRESS
C TY STATE ZIP CODE
10.
CHIEF EXECUTIVE OFFICER (CEO), IF ANY
NAME Michael Kahn
ADDRESS 2600 Michelson, Ste. 850
CITY Irvine, STATE CA ZIP CODE 92612.
11.
NUMBER OF PAGES ATTACHED, IF ANY:
12.
THIS STATEMENT IS TRUE, CORRECT, AND COMPLETE.
Michael Kahn.ZZ1
TYPE OR PRINT NAME OF PERSON COMPLETING FORM SIGNATURE TITLE DATE
DUE DATE: APR 2 7 2004
APPROVED BY SECRETARY OF STATE
SEC/STATE
FORM LLC-12 (REV. 01103103)
CITY CLERK'S ACKNOWLEDGMENT
State of California )
County of Orange )
On May 31 , 2006, before me, LAVONNE M. HARKLESS,
CITY CLERK OF THE CITY OF NEWPORT BEACH, personally appeared
Homer L. Bludau , personally known to me to be the
person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity,
and that by his signature on the instrument, the person, or the entity upon
behalf of which person acted, executed the instrument.
Dated this 31 st day of M
CAPACITY OF SIGNER
Municipal Corporation Officer
City Manager
SIGNER IS REPRESENTING:
2006.
WITNESS my hand and official seal.
LAVONNE M. HARKLESS, CITY CLERK
CITY OF NEWPORT BEACH, CALIFORNIA
DESCRIPTION OF ATTACHED
DOCUMENT:
Encroachment Aareement
EPN2006-0264
# of Pages 28
City of Newport Beach Document Date: 05-31-2006
Signer(s) other than named:
Michael A. Kahn
Aaron C. Harp