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HomeMy WebLinkAboutCC Resolution 8128 (Baypoint Lagoons Map)RESOLUTION NO. 8128 RESOLUTION APPROVING FINAL 14AP OF SUBDIVISION ENTITLED, " MAP OF BAYPOINT LAGOONS it (FORMERLY ENTITLED "SPINNAKER ON -THE -BAY, PHASE I") WHEREAS, the Planning Commission of the City of San Rafael, State of California, did on February 20 , 19 90, in writing, recommend to the City Council of said City the approval of the final map of " MAP OF BAYPOINT LAGOONS Of six sheets, hereinafter referred to; and ", consisting WHEREAS, it appears to said City Council and said City Council hereby finds and determines said map is in conformity with the re- quirements of the Subdivision Ordinance, Title 15 of the San Rafael Municipal Code, and that said City Council is satisfied with the plan of the subdivision; NOW, THEREFORE, IT IS HEREBY RESOLVED by the City Council of the City of San Rafael, California, that the final map of said sub- division, approved by the Planning Commission of said City on February 13 , 19 90, and entitled, 11 MAP OF BAYPOINT LAGOONS be and the same is hereby approved, and that the City Clerk of said City be and she is hereby authorized and directed to execute the certificate upon the face of the map of the approval thereof and, upon the filing with the City Clerk of the agreement and bond (or deposit) with the approval thereof all as required by Sections 15.20.060, 15.20.080, and 15.20.090 of said Subdivision Ordinance, to transmit said map to the Clerk of the Board of Supervisors of Marin County; IT IS FURTHER RESOLVED that that certain agreement entitled, "AGREEMENT (SUBDIVISION IMPROVEMENTS) MAP OF BAYPOINT LAGCONS ", being the agreement required.by Section 15.20.080 of said ordinance, shall, when executed and filed by or on behalf of the subdivider and approved by the City Attorney and City Manager as provided in Section 15.20.060 of said ordinance, be executed on behalf of said City by the Mayor and City Clerk, and said officers are hereby authorized and instructed so to do; IT IS FURTHER RESOLVED that upon the execution, filing and approval of said agreement and bond and the recordation of said ORIGIiiA L g,a� final map, all in accordance with the requirements of said ordinance appertaining to said agreement and bond and the recordation of said map, the City accepts the dedication of all public streets, public utility easements and anchor easements, all as shown thereon for public use as such, and the City does hereby remove any one (1) foot non -access strips on any public dedicated right-of-way adjacent to this subdivision. I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, California, hereby certify that the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of the Council of said City held on the 20th day of February 19 90, by the following vote, to wit: AYES: COUNCILNIEMBERS: Boro, Brei ner, Thayer & Mayor Mul ryan NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None ABSTAINED: COUNCILMEMBERS: Shippey (due to absence from previous actions on Spinnaker - On -The -Bay, Phase I.) E M. LYNN , City Clerk 2. 9 Y• � �� �� • -fir �r -'J� �:°9 51 m r Inon z � •; �-v PARCEL 'A' ' S; n mov n+• r ger „• PARCEL -O' tl:: 'rte 99 . A 4 C l P • " : tl P •• . J =D iiom �•�;; � D >e � ;. cz Inon z � •; �-v PARCEL 'A' ' S; n mov n+• r ger „• PARCEL -O' tl:: 'rte 99 . A 4 C l P • " : tl P •• . 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PAR' or -5-3 -A mr swrr Nog 0 r PT All, 5 SITT T- �k 1 'S. C to L XOJ O N m c .r - CD c .W 0. U i 44- O O 3 U •r- Z S O Q a 4- O O t0 O +-3 O c i O to E� 4-3 M L d* earn CL m ea o •� c ,— o 4J 4- 4- r - ea ea CC U c ea N N to 4 -4- 4 -J -4- +J c 'r ea U N Ju L Z 0 4 4 A G R E E M E N T (SUBDIVISION IMPROVEMENTS) J r ,•,..vv..a.a, xt� i�ct{tJGJI Vr AGENCY SHOWN 1990 MAY 18 A,,411: 00 MARIN CG : I' ! CALIFORNIA JAPE~'S J 0 11 L BGS! THIS AGREEMENT is made this 20th day of February , 19 90 and is entered into by and between the City of San Rafael, hereinafte referred to as "City", and Spinnaker Point Development, Inc. hereinafter referred to as "Subdivider" both of whom understand as follows: RECITALS: Subdivider has presented to City for approval a final subdivi- sion map (hereinafter called "Map" entitled BAY POINT LAGOONS 71 The map has been filed with the City Clerk of City for presen- tation to the City Council of the City for its approval, which map is hereby referred to and incorporated herein; Subdivider has requested approval of the map prior to the construction and completion of improvements, including all streets, highways or public ways and public utility facilities which are a part of, or appurtenant to, the subdivision (hereinafter called "subdivision") designated in the map, all in accordance with, and as required by, the plans and specifications for all or any of said im- provements in, appurtenant to, or outside the limits of subdivision, which plans and specifications are now on file in the office of the City Engineer of City. Council of said City on the 20th day of February , 1990 , adopted its Resolution approving map, and has accepted the dedications therein offered, or some thereof, on condition that Subdivider first enter into and execute this agreement with City, and meet the requirements of said resolution; and This agreement is executed pursuant to the provisions of the Subdivision Map Act of the State of California and Ordinance No. 546 (as amended) of City. 2-q Z ORIGINAL —�— JU IUB` I NOW THEREFORE, for and in consideration of the approval of the Map and of the acceptance of the dedications or some thereof, therein offered, and in order to insure satisfactory performance by Subdivider's obligations under said Subdivision Map Act and said ordinance, the parties agree as follows: 1. Performance of Work. Subdivider will do and perform, or cause to be done and performed, at Subdivider's own expense, in a good and workmanlike manner, and furnish all required materials, all under the direction and to the satisfaction of the City Engineer of City, all of the following work and improve- ments as shown on the improvement plans dated February 20, 1990; said plans approved and signed by the City Engineer on February 20, 1990; and Subdivider will comply with all provisions of the San Rafael Municipal Code, the Subdivision Map Act, and all conditions of ap- proval of said subdivision map. Subdivider shall construct and complete all of the improve- ments, including all, but not limited to, streets, highways or public ways and public utility facilities which are a part of, or appurtenant to, the subdivision designated in said map, all in accordance with, and as required by, said improvement plans and specifications for all or any of said improvements in, or appurtenant to, or outside the limits of said subdivision, which improvement plans and specifica- tions are now on file in the office of the City Engineer of City, and Subdivider shall also do all other work and furnish all other materials necessary in the opinion of the City Engineer, and on his order, to complete the improve- ments in accordance with said improvement plans and specifications on file as hereinbefore specified, or with any changes required or ordered by said Engineer, which in his opinion are necessary or required to complete the work. ONM I,; 1-_� U!: Ju ZU04i 2. Work; Places and Grades to be Fixed by Engineer. All of said work is to be done at the places, of the materials, in the manner, and at the grades, all as shown upon the plans and specifications therefor, heretofore approved by the City Engineer and which are now on file in his office, and to the satisfaction of said City Engineer. 3. Work; Time for Commencement and Performance. City hereby fixes the time for the commencement of said work to be on the 20th day of FebrUary 1990 , and for its completion to be within 760 calendar days thereafter. At least fifteen calendar days prior to the commencement of work hereunder, Subdivider shall notify City Engineer in writing of the date fixed by Subdivider for commencement thereof, so that City Engineer shall be able to provide services of inspection. 4. Time of Essence - Extension. Time is of the essence of this agreement; provided, that in the event good cause is shown therefor, the City Council may extend the time for completion of the improvements hereunder. Any such extension may be granted without notice to the Subdivider's surety, and extensions so granted shall not relieve the surety's liability on the bond to secure the faithful performance of this agreement. The City Council shall be the sole and final judge as to whether or not good cause has been shown to entitle Subdivider to an extension. 5. Repairs and Replacement. Subdivider shall replace, or have replaced, or repair, or have repaired, as the case may be, all pipes and monuments shown on the map which have been destroyed or damaged, and Subdivider shall replace or have replaced, repair, or have repaired, as the case may be, or pay to the owner, the entire cost of replacement or repairs, of any and all property damaged or destroyed by reason of any work done "MM 90 29542 hereunder, whether such property be owned by the United States or any agency thereof, or the State of California, or any agency or political subdivision thereof, or by the City or by any public or private corporation, or by any person whomsoever, or by any combination of such owners. Any such repair or replacement shall be to the satisfac- tion, and subject to the approval, of the City Engineer. 6. Utility Deposits - Statement. Subdivider shall file with the City Clerk, prior to the commencement of any work to be performed within the area delineated on the map, a written statement signed by Subdivider, and each public utility corporation involved, to the effect that Subdivider has made all deposits legally required by such public utility corporation for the connec- tion of any and all public utilities to be supplied by such public utility corporation within the subdivision. 7. Permits; Compliance with Law. Subdivider shall, at Subdivider's expense, obtain all necessary permits and licenses for the construction of such improvements, give all necessary notices and pay all fees and taxes required by law. S. Superintendence by Subdivider. Subdivider shall give personal superintendence to the work on said improvement, or have a competent foreman or super- intendent, satisfactory to the City Engineer, on the work at all times during progress, with authority to act for Subdivider. 9. Inspection by City Engineer. All improvements required hereunder shall be inspected by City Engineer. Subdivider shall at all times maintain proper facilities, and provide safe access for inspection by City Engineer, to all parts of the work, and to the shops wherein the work is in preparation. 10. Contract Security. Concurrently with the execution hereof, Subdivider shall furnish: - 4 - .1 J. j :.IL 4. 4J U L J U Y L (1) a surety bond in amount equal to at least one hundred percent of the contract price as security for the faithful performance of this agreement; and (2) a separate surety bond in an amount equal to at least fifty percent of the contract price as security for the payment of all persons performing labor and furnishing materials in connection with this agreement. The surety on each of said bonds and the form thereof shall be satisfactory to the City Attorney. 11. Hold -Harmless Agreement. Subdivider hereby agrees to, and shall, hold City, its elective and appointive boards, commissions, officers, agents and employees, harmless from any liability for damage or claims for damage for personal injury, including death, as well as from claims for property damage which may arise from Subdivider's or Subdivider's contractors', subcontractors', agents' or employees' operations under this agreement, whether such operations be by Subdivider or by any of Subdivider's contractors, subcontractors, or by any one or more persons directly or indirectly employed by, or acting as agent for, Subdivider or any of Subdivider's contractors or subcontractors. Subdivider agrees to, and shall, defend City and its elective and appointive boards, commissions, officers, agents and employees from any suits or actions at law or in equity for damages caused, or alleged to have been caused, by reason of any of the aforesaid operations; provided as follows: a. That City does not, and shall not, waive any rights against Subdivider which it may have by reason of the aforesaid hold -harmless agreement, because of the acceptance by City, or the deposit with City by Subdivider, of any of the insurance policies described in paragraph 12 hereof. - 5 - b. That the aforesaid hold -harmless agreement by Subdivider shall apply to all damages and claims for damages of every kind suffered, or alleged to have been suffered, by reason of any of the aforesaid operations referred to in this paragraph, regardless of whether or not City has prepared, supplied or approved of, plans and/or specifications for the subdivision, or regard- less of whether or not such insurance policies shall have been determined to be applicable to any of such damages or claims for damages. 12. Subdivider's Insurance. Subdivider shall not commence work under this agreement until Subdivider shall have obtained all insurance required under this paragraph, nor shall Subdivider allow any con- tractor or subcontractor to commence work on his contract or subcontract until all similar insurance required of the contractor or subcontractor shall have been so obtained and approved. All requirements herein provided shall appear either in the body of the insurance policies or as endorse- ments and shall specifically bind the insurance carrier. a. Compensation Insurance. Subdivider shall maintain, during the life of this agreement, Worker's Compensation Insurance for all Subdivider's employees employed at the site of improve- ment, and in case any work is sublet, Subdivider shall require any contractor or subcontractor similarly to provide Worker's Compensation insurance for all con- tractor's or subcontractor's employees, unless such employees are covered by the protection afforded by Subdivider. In case any class of employees engaged in work under this agreement at the site of the project is not protected under any Worker's Compensation law, - 6 - 1: 7 U L J V T L Subdivider shall provide, and shall cause each contrac- tor and sub -contractor to provide, adequate insurance for the protection of employees not otherwise protected. Subdivider hereby indemnifies City for any damage resulting to it from failure of either Subdivider or any contractor or subcontractor to take out or maintain such insurance. b. Public Liability and Property Damage Insurance. Subdivider shall take out and maintain during the life of this agreement such public liability and property damage insurance as shall insure City, its elective and appointive boards, commissions, officers, agents and employees, Subdivider and any contractor or subcontrac- tor performing work covered by this agreement from claims for damages for personal injury, including death, as well as from claims for property damage which may arise from Subdivider's or any contractor's or subcontractor's operations hereunder, whether such operations be by Subdivider or any contractor or sub- contractor, or by any one directly or indirectly employed by either Subdivider or any contractor or subcontractor, and the amounts of such insurance shall be as follows: (1) Public Liability Insurance. In an amount not less than 1,000,000 for injuries, including, but not limited to, death, to any one person and, subject to the same limit for each person, in an amount not less than 3,000,000 on account of any one occurrence; (2) Property Damage Insurance. In an amount of not less than 1 A00,000 for damage to the property of each person on account of any one occurrence. - 7 - au L J U" C. Cross -Liability Endorsement. In the event that any of the aforesaid insurance policies provided for in this paragraph 12 insures any entity, person, board or commission other than those mentioned in this paragraph, such policy shall contain a standard form of cross -liability endorsement, insur- ing on such policy City, its elective and appointive boards, commissions, officers, agents and employees, Subdivider and any contractor or subcontractor perform- ing work covered by this agreement. 13. Evidence of Insurance. Subdivider shall furnish City concurrently with the execu- tion hereof, with satisfactory evidence of the insurance required, and evidence that each carrier is required to give City at least ten days' prior notice of the cancella- tion or reduction in coverage of any policy during the effective period of this agreement. 14. Title to Improvements. Title to, and ownership of, all improvements within ac- cepted public rights of way and public easements constructed hereunder by Subdivider shall vest absolutely in City, upon completion and acceptance of such improve- ments by City, as evidenced by the filing of the Notice of Completion with the County Recorder. 15. Repair or Reconstruction of Defective Work. Subdivider guarantees and warranties all work performed under this agreement for a period of one (1) year after final acceptance of the work. If within said one year period, any structure or part of any structure furnished and/or installed or constructed or caused to be installed or constructed by Subdivider, or any of the work done under this agreement, fails to fulfill any of the requirements of this agreement or the specifications referred to herein, - 8 - „' J'-4 W .."'.. 4%O4!4 • Subdivider shall without delay and without any cost to City, repair or replace or reconstruct any defective or otherwise unsatisfactory part or parts of the work or structure. Should Subdivider fail to act promptly or in accordance with this requirement, or should the exigencies of the case require repairs or replacements to be made before Subdivider can be notified, City may, at its option, make the necessary repairs or replacements or perform the necessary work and Subdivider shall pay to City the actual cost of such repairs plus fifteen (15) percent. 16. Subdivider not Agent of City. Neither Subdivider nor any of Subdivider's agents or con- tractors are or shall be considered to be agents of City in connection with the performance of Subdivider's obligations under this agreement. 17. Cost of Engineering and Inspection. Subdivider shall pay to the City all inspection costs as required by Section 15.20.070 of the San Rafael Municipal Code. 18. Notice of Breach and Default. If Subdivider refuses or fails to obtain prosecution of the work, or any severable part thereof, with such diligence as will insure its completion within the time specified, or any extensions thereof, or fails to obtain completion of said work within such time, or if the Subdivider should be adjudged a bankrupt, or Subdivider should make a general assignment for the benefit of Subdivider's creditors, or if a receiver should be appointed in the event of Subdivider's insolvency, or if Subdivider, or any of Subdivider's con- tractors, subcontractors, agents or employees, should violate any of the provisions of this agreement, City Engineer or City Council may serve written notice upon Subdivider and Subdivider's surety declaring breach of this agreement, or of any portion thereof, and default of Subdivider. 19. Breach of Agreement; Performanc; of Surety or City. In the event of any such notice, Subdivider's surety shall - 9 - Ju tav'tc have the duty to take over and complete the work and the improvement herein specified; provided, however, that if the surety, within five days after the serving upon it of such notice of breach, does not give City written notice of its intention to take over the performance of the contract, and does not commence performance thereof within five days after notice to City of such election, City may take over the work and prosecute the same to completion, by contract or by any other method City may deem advisable, for the account and at the expense of Subdivider; and Subdivider and Subdivider's surety shall be liable to City for any excess cost or damages occasioned City thereby; and, in such event, City, without liability for so doing, may take possession of, and utilize in completing the work, such materials, appliances, plant and other property belonging to Subdivider as may be on the site of the work and neces- sary therefor. 20. Notices. All notices herein required shall be in writing, and delivered in person or sent by registered mail, postage prepaid. Notices required to be given to City shall be addressed as ti fol rows CITY OF SAN RAFAEL, C/O CITY ENGINEER, CITY HALL, SAN RAFAEL, CALIFORNIA. Notices required to be given to Subdivider and/or Subdivider's surety shall be addressed as follows: SPINNAKER POINT DEVELOPMENT, INC. P. 0. BOX 3389, SAN RAFAEL, CA. 94912 provided that any party or the surety may change such address by notice in writing to the other party, and there- after notices shall be addressed and transmitted to the new address. 21. Warranty that Plans and Specifications are Adequate. Subdivider warrants that the plans and specifications above described are adequate to accomplish all of the improvement - 10 - HU [5a c work contemplated by this agreement in a good and workman- like manner. and in accordance with accepted construction practices. Should said plans, specifications, and/or work contemplated by this agreement at any time within a period of one year after final acceptance of the work performed hereunder prove to be inadequate in any respect, then Subdivider does agree to make such changes as are necessary to said plans and specifications and accomplish said work in a good, workmanlike manner, and in accordance with accepted construction practices. 22. Attorney's Fees and Expenses of Litigation. Should City be required to institute legal action to compel performance of this agreement, Subdivider agrees to pay all reasonable attorney's fees, costs of suit, and all other expenses of litigation incurred by City in connection therewith. 23. "As Built Plans". A complete improvement and grading plan "as built" shall be filed with the City Engineer upon completion of the said work and improvements. CITY OF SAN RAFAEL (Seal) Mayor:�i ra By V City C.' �r - SUBDIVIDER SPINNAKER POINT DEVELOPMENT, INC., a California GamoLation (If the Subdivider executing C„z this agreement is a corporation, S a certified copy of the By -Laws or Resolution of the Board of B Directors authorizing officers ar of said corporation to execute By this agreement shall be annexed Dennis heret ) AP ROVE AS TO S ICIENCY: r City Engineer ks - exesident b - Vice President/Secretary APPROVED AS TO FORM: (Mayor's and Subdivider's Signatures must be Notarized) Cit ttorney _ - 11 - J v r v — . ILorpornuon 1 STATE OF CALIFORNIA ) } Ss. COUNTY OF Marin J Or February 14, 199U beforemP the undersigned, SidJ. Hendricks a Notary Public Sidney in and for said State, personally appeared y (known to me) for proved to me on the basis of aatiafactory evidence) to be tI? President, xodr 9tMMW of the corporation that executed the within Instrument (known to me) for proved to me on the basis of satisfactory evidence) to be the persons who executed the within Instrument on behalf of the corporation#erein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board of directors OFFICIAL SEAL WITNESS my han •and official seal. ARLINE J BASTIEN I•IOTA.RY PUBLIC - CALIFORNIA SignarurP /G •-�`� //� � � � VARIN COUNT l My comm expires DEC 14, 1990 Form 3216 (CA 12.82) 175E ar" for offww 40"'W &"D Worporatiou) STATE OF CALIFORNIA Ss. COUNTY OF Marin rV,, February 15, 1990 before me, the undersigned a Notary Public in and for said State, personally appeared Dennis R. Horne (known to me) for proved to me on the basis of satisfactory evidence) to be thr �XXx Vire PrPsident and (known to me) for proved to me on the basis of satisfactory evidence) to boo Secretary of the corporation that executed the within Instrument (known to me) for proved to me on the basis of satisfactory evidence) to be the persons who executed the within Instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its by-laws or a resolution of its board directors. o OFFICIAL SEAL WITNESS my and official seal ARLINE J BASTIEN PJOTAR'i PUCLIC -CALIFORNIA Si tune L !�+ y� �' MARIN CC' NT 8 My comm. expires DEC 14, 1990 Form 3216 (CA 1241Z (7U &ma /or officW no"rWmat) U LJ04Z SLATE OF CALIFORNIA SS. COUNTY OF KAR I N On this 16th day of APRIL , 1990, before me, JEANNE M. LEONCINI, a Notary Pubic in and for the said County and State, residing therein, duly commissioned and sworn, personally appeared LAWRENCE E. MULRYAN personally known to me (or-pre-ve{i--to-Ai,-- -ofl-44e- &.-549-ef-Sat+s-f-a-ct-orrr ev4def�ee-) to be the Mayor of the City of San Rafael that executed the within document and acknowledged to me that said City of San Rafael did execute the same. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written. OFFICIAL SERI, A''' JEANNE FO. ►LEONCINI ` y�+�- :r, NOTARY PUBLIC - CALIFORNIA JEAN �LEONCINI, 01V TARP PUBLIC in and for ;4 ' MARINCOUNTY a5t said County and State. My COMM. ExPirosNov. 29,1991 1400 5th Av .. P.O. @ox 60, San itafMI CA 94915 0060 90 " 1642 EXCERPT OF MINUTES OF BOARD OF DIRECTORS' MEETING In a meeting of the Board of Directors of the Spinnaker Paint Development, Inc., a California Corporation, met on 25th day of January, 1989 at San Rafael, California, the Board of Directors unanimously approved the following: It was proposed by Dennis Horne and unanimously approved that Sidney J. Hendricks serve as the president and chief financial officer of the corporation. It was proposed by Sidney J. Hendricks and unanimously approved that Dennis Herne serve as the secretary of the Corporation. It was proposed by Dennis Horne and unanimously approved that the corporation undertake the ownership and development of Baypoint Lagoon (previously known as Spinnaker On The Bay) and that the corporation and its officers are authorized to take all steps reasonably necessary and proper to achieve said objectives, and any one of its officers is authorized to execute Subdivision Agreement required by proper authority. Certification I, Dennis R. Horne, Secretary of Spinnaker Point Development, Inc., a California Corporation, do hereby certify that the foregoing is a true and correct excerpt from the minutes of the Board of Directors' meeting held on January 25, 1989, at which meeting a quorum � •f the Board of Directors was present and voted. IN WITNESS WHEREOF, I have set my hand d affixed the corporate seal of said corporation this day of ^' 1 -"---- -- DENNIS R. HORNE�• f fec ltory of SPINNAKER POINT DEVELOPMENT, INC. "-•t� l 'fornia Corporation 90 Z964Z CERTIFICATE OF SECRETARY I, the undersigned, do hereby certify: (1) That I was acting secretary of the meeting of the Incorporators � �f Spinnaker Point Development, Inc. a California corporation; and (2) That the foregoing By -Laws, comprising 23 pages, constitute the Hy -Laws of such corporation as duly adapted by action of the Inc•rporators of the corporation duly taken on January 20, 1989. IN WITNESS WHEP.EDF, I have subscribed my name and a ffiff'' ,ed the seal � f such corporation this ---�-- day of 1990. L;=Im IS R. HORNE .;'- n.Secre:tary of SPINNAKER POINT DEVELOPMENT, INC. -A-California Corporation J Z 9 6 4 Z BY-LAWS OF SPINNAKER POINT DEVELOPMENT, INC. A CALIFORNIA CORPORATION Article I. OFFICES Section 1. PRINCIPAL EXECUTIVE OFFICES. The principal executive office of the corporation shall be located at such place as the Board of Directors shall, from time to time, determine. Initially, the principal executive office shall be located at 1919 Van Ness Avenue, San Francisco, California. Section 2. OTHER OFFICES. Other offices may, at any time, be established by the Board of Directors or the president at any place or places where the corporation is qualified to do business. Article II. MEETINGS OF SHAREHOLDERS Section 1. PLACE OF MEETINGS. All meetings of shareholders shall be held at the principal executive office of the corporation or at any other place within or without the State of California which may be designated either by the Board of Directors or by the shareholders in accordance with these By - Laws. 9V Z 9 6 4 Z Section 2. ANNUAL MEETINGS. The annual meetings of shareholders shall be held on the third Wednesday of January at 10:00 a.m. , or such other date and time as shall be designated from time to time by the Board of Directors or by the shareholders in accordance with these By -Laws. If the date set forth in these By - Laws falls upon a legal holiday, then such annual meeting of shareholders shall be held at the same time and place on the next day thereafter ensuing which is not a legal holiday. At such annual meetings, Directors shall be elected, and any other business may be transacted which is within the powers of the shareholders. Section 3. SPECIAL MEETINGS. Special meetings of the shareholders, for the purpose of taking any action which is within the powers of the shareholders, may be called at any time by the chairman of the board of the president or by the Board of Directors, or by the holders of shares entitled to case not less than ten percent of the votes at the meeting. Upon request in writing that a special meeting of shareholders be called for any proper purpose, directed to the chairman of the board, president, vice president or secretary by any person (other than the board entitled to call a special meeting of shareholders, the officer forthwith shall cause notice to be given to the shareholders entitled to vote that a meeting will be held at a time requested by the person or persons calling the meeting, not less than fifteen nor more than sixty days after mailing of the request. Section 4. NOTICE OF MEETINGS OF SHAREHOLDERS. Written notice of each meeting of shareholders, whether annual or special, shall be given to each shareholder entitled to vote thereat, either personally or by mail or other means of written communication, charges prepaid, addressed to such shareholder at the address of such shareholder appearing on the books of the corporation or given by such shareholder to the corporation for the purpose of notice. If any notice addressed to the shareholder at the address of such shareholder appearing on the books of the corporation is returned to the corporation by the United States Postal Service marked to indicate that the United States Postal Service is unable to deliver the notice to the shareholder at such address, all future notices shall be deemed to have been duly given without further mailing if the same shall be available for the shareholder upon written demand of the shareholder at the principal executive office of the corpor- ation for a period of one year from the date of the giving of the notice to all other shareholders. If no address appears on the -2- �U '�b41 books of the corporation or is given by the shareholder to the corporation for the purpose of notice, notice shall be deemed to have been given to such shareholder if sent by mail or other means of communication addressed to the place where the principal executive officer of the corporation is located, or if published at least once in a newspaper of general circulation in the county in which the principal executive office is located. All such notices shall be given to each shareholder entitled thereto not less than fifteen days nor more than sixty days before the meeting. Any such notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by other means of written communication. An affidavit of mailing of any such notice in accordance with the foregoing provisions, executed by the secretary, assistant secretary or any transfer agent of the corporation shall be prima facie evidence of the giving of notice. All such notices shall state the place, date and hour or such meeting. In the case of a special meeting such notice shall also state the general nature of the business to be transacted at such meeting, and no other business may be transacted thereat. In the case of an annual meeting, such notice shall also state those matters which the Board of Directors at the time of the mailing of the notice intends to present for action by the shareholders. Any proper matter may be presented at an annual meeting of shareholders though not stated in the notice, provided that unless the general nature of a proposal to be approved by the shareholders relating to the following matters is stated in the notice or a written waiver of notice, any such shareholder approval will require unanimous approval of all shareholders entitled to vote: (a) A proposal to approve a contract or other transaction between the corporation and one or more of its directors or any corporation, firm or association in which one of more of its directors has a material financial interest or is also a director; (b) A proposal to amend the Articles of Incorporation; (c) A proposal to approve the principal terms of a re -organization as defined in Section 181 of the General Corporation Law; -3- 90 7-64Z (d) A proposal to wind up and dissolve the corporation; (e) If the corporation has preferred shares outstanding and the corporation is in the process of winding up, a proposal to adopt a plan of distribution of shares, obligations or securities of any other corporation or assets other than money which is not in accordance with the liquidation rights of the preferred shares. The notice of any meeting at which the directors are to be elected shall include the names of nominees intended at the time of the notice to be presented by management for election. Section 5. QUOROM. The presence in person or by proxy of the holders of a majority of the shares entitled to vote at any meeting shall constitute a quorum for the transaction of business. The shareholders present at a duly called or held meeting at which a quorum is present may continue to transact business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum, if any action taken (other than adjournment) is approved by at least a majority of the shares required to constitute a quorum. Section 6. ADJOURNED MEETINGS AND NOTICE THEREOF. Any shareholders' meeting, annual or special, whether or not a quorum is present, may be adjourned from time to time by a vote of a majority of the shares the holders of which are either present in person or by proxy thereat, but in the absence of a quorum, no other business may be transacted at any such meeting, except as provided in Section 4 of this Article II. When any shareholders' meeting, either annual or special, is adjourned for forty-five days or more, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the adjourned meeting as in the case of an original meeting. Except as set forth in this Section 6 of Article II, it shall not be necessary to give any notice of an adjourned meeting or of the business to be transacted at an adjourned meeting, other than by announcement of the time and place thereof at the meeting at which such adjournment is taken. -4- 90 2964Z Section 7. VOTING. At all meetings of shareholders, every shareholder entitled to vote shall have the right to vote in person or by proxy the number of shares standing in the name of such shareholder on the stock records of the corporation on the record date for such meeting. Shares held by an administrator, executor, guardian, conservator, custodian, trustee, receiver, pledgee, minor, corporation or fiduciary or held by this corporation or a subsidiary of this corporation in a fiduciary capacity or by two or more persons shall be voted in the manner set forth in Sections 702, 703 and 704 of the General Corpoation Law. Shares of this corporation owned by this corporation or a subsidiary (except shares held in a fiduciary capacity) shall not be entitled to vote. Unless a record date for voting purposes is fixed pursuant to Section 1 of Article V of these By -Laws, then only persons in whose names shares entitled to vote stand on the stock records of the corporation at the close of business on the business day next preceding the day on which notice was given or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held, shall be entitled to vote at such meeting, and such day shall be the record date for such meeting. Votes at a meeting may be given by voice vote or by ballot; provided, however, that all elections for Director must be by ballot upon demand made by a shareholder at any election and before the voting begins. If a quorum is present at the beginning of the meeting, except with respect to the election of Directors (and subject to the provisions of Section 5 of this Article II should shareholders withdraw thereafter) the affirmative vote of the majority of the shares represented at the meeting and entitled to vote on any matter shall be the act of the shareholders and shall decide any question properly brought before the meeting, unless the vote of a greater number or voting by classes is required by the General Corporation Law or the Articles of Incorporation, in which case the vote so required shall govern and control the decision of such question. Subject to the provisions of the next sentence, at all elections of Directors of the corporation, each shareholder shall be entitled to cumulate his votes and give one candidate a number of votes equal to the number of Directors to be elected multiplied by a number of votes to which his shares are entitled, or to distribute his votes on the same principle among as many candidates as he shall think fit. No shareholder shall be entitled to cumulate his votes unless the name of the candidate or candidates for whom such votes would be cast has been placed in nomination prior to the voting and any shareholder has given notice at the meeting prior to the voting of such -5- 90 29642 shareholder's intention to cumulate his votes. The candidates receiving the highest number of votes up to the number of Directors to be elected shall be elected. Section 8. WAIVER OF NOTICE AND CONSENT OF ABSENTEES. The proceedings and transactions of any meeting of shareholders, either annual or special, however called and noticed and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present either in person or by proxy, and if, either before or after the meeting, each of the persons entitled to vote, not present in person or by proxy, signs a written waiver of notice or a consent to the holding of such meeting, or an approval of the minutes thereof. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person objects, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened and except that attendance at a meeting is not a waiver of any right to object to the consideration of matters required by law or these By -Laws to be included in the notice but which was not so included, if such objection is expressly made at the meeting, provided however, that any person making such objection at the beginning of the meeting or to the consideration of matters required to be but not included in the notice may orally withdraw such objection at the meeting or thereafter waive such objection by signing a written waiver thereof or a consent to the holding of the meeting or the consideration of the matter or an approval of the minutes of the meeting. Neither the business to be transacted at nor the purpose of any annual or special meeting of the shareholders need be specified in any written waiver of notice except that the general nature of the proposals specified in subsections (a) through (e) of Section 4 of this Article II, shall be so stated. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 9. ACTION WITHOUT A MEETING. Directors may be elected without a meeting by a consent in writing, setting forth the action so taken, signed by all of the persons who would be entitled to vote for the election of Directors, provided that, without notice except as hereinafter set forth, a Director may be elected at any time to fill a vacancy not filled by the Directors -6- on 29642 by the written consent of persons holding a majority of the outstanding shares entitled to vote for the election of Directors. Any other action which, under any provision of the General Corporation Law may be taken at any annual or special meeting of the shareholders, may be taken without a meeting, and without notice except as hereinafter set forth, if a consent in writing, setting forth the action so taken, is signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Unless the consents of all shareholders entitled to vote have been solicited in writing, (a) Notice of any proposed shareholder approval of, (i) a contract or other transaction between the corporation and one or more of its Directors or any corporation, firm or association in which one or more of its Directors has a material financial interest or is also a Director, (ii) indemnification of an agent of the corporation as authorized by Section 16, of Article III, of these By -Laws, (iii) a reorganization of the corporation as defined in Section 181 of the General Corporation Law, or (iv) the distribution of shares, obligations or securities of any other corporation or assets other than money which is not in accordance with the liquidation rights of preferred shares if the corporation is in the process of winding up, without a meeting by less than unanimous written consent, shall be given at least ten days before the consummation of the action authorized by such approval; and (b) Prompt notice shall be given of the taking of any other corporate action approved by shareholders without a meeting by less than unanimous written consent, to those shareholders entitled to vote who have not consented in writing. Such notices shall be given in the manner and shall be deemed to have been given as provided in Section 4 of Article II of these By -Laws. Unless, as provided in Section 1 of Article V of these By -Laws, the Board of Directors has fixed a record date for the determination of shareholders entitled to notice of and to give such written consent, the record date for such determination shall be the day on which the first written consent is given. All such written consents shall be filed with the secretary of the corporation. Mn �U Z � 6 4 Z Any shareholder giving a written consent, or the shareholder's proxyholders, or a transferee of the shares or a personal representative of the shareholder or their respective proxyholders, may revoke the consent by a writing received by the corporation prior to the time that written consents of the number of shares required to authorize the proposed action have been filed with the secretary of the corporation, but may not do so thereafter. Such revocation is effective upon its receipt by the secretary of the corporation. Section 10. PROXIES. Every person entitled to vote or execute consents shall have the right to do so either in person or by an agent or agents authorized by a written proxy executed by such person or the duly authorized agent of such person and filed with the secretary of the corporation, or the persons appointed as inspectors of election of Directors or the chief executive officer to receive proxies; provided, that no such proxy shall be valid after expiration of eleven months from the date of its execution, unless the shareholder executing it specifies therein the length of time for such proxy is to continue in force. Every proxy duly executed continues in full force and effect until revoked by the person executing it prior to the vote pursuant thereto. Except as otherwise provided by law, such revocation may be effected by attendance at the meeting and voting in person by the person executing the proxy or by a writing stating that the proxy is revoked or by a proxy bearing a later date executed by the person executing the proxy and filed with the secretary of the corporation or the persons appointed as inspectors of election or such other persons as may be designated by the Board of Directors or the chief executive officer to receive proxies. Section 11. INSPECTORS OF ELECTION. In advance of any meeting of shareholders, the Board of Directors may appoint any persons as inspectors of election to act at such meeting or any adjournment thereof. If inspectors of election are not so appointed, or if any persons so appointed fail to appear or refuse to act, the chairman of any such meeting may, and on the request of any shareholder or his proxy shall, make such appointment at the meeting. The number of inspectors shall be either one or three. If appointed at a meeting on the request of one or more shareholder or proxies, the majority of shares represented in person or by proxy shall determine whether one or three inspectors are to be appointed. y [l6f4Z The inspectors of election shall determine the number of shares outstanding and the voting power of each, the shares represented at the meeting, the existence of a quorum and the authenticity, validity and effect of proxies, receive votes, ballots or consents, hear and determine all challenges and questions in any way arising in connection with the right to vote, count and tabulate all votes of consents, determine when the polls shall close, determine the result and do such acts as may be proper to conduct the election or vote with fairness to all shareholders, In the determination of the validity and effect of proxies the dates contained on the forms of proxy shall presumptively determine the order of execution of the proxies, regardless of the postmark dates on the envelopes in which they are mailed. The inspectors of election shall perform their duties impartially, in good faith, to the best of their abilities and as expeditiously as is practical. If there are three inspectors of election, the decision, act or certificate of a majority is effective in al respects as the decision, act or certificate of all. Any report or certificate made by the inspectors of election is prima facie evidence of the facts stated therein. Article III. DIRECTORS Section 1. POWERS. subject to the General Corporation Law and any limitations in the Articles of Incorporation relating to action requiring shareholder approval, and subject to the duties of Directors as prescribed by the By -Laws, the business and affairs of the corporation shall be managed and all corporate powers shall be exercised by or under the direction of the Board of Directors. Section 2. NUMBER AND QUALIFICATIONS OF DIRECTORS. The authorized number of Directors shall be two (2). After the issuance of shares, this number may be changed only by an amendment to the By -Laws approved by the affirmative vote or written consent of a majority of the outstanding shares entitled to vote. Directors need not be residents of the State of California nor shareholders of the corporation. cm 30 20942 Section 3. ELECTION AND TERM OF OFFICE. The Directors shall be elected at each annual meeting of shareholders, but if any such annual meeting is not held or the Directors are not elected at any annual meeting, the Directors may be elected at any special meeting of shareholders held for that purpose, or at the next annual meeting of shareholders held thereafter. Each Director shall hold office at the pleasure of the shareholders until the next annual meeting of shareholders and until his successor has been elected and qualified or until his earlier resignation or removal or his office has been declared vacant in the manner provided in these By -Laws. Section 4. RESIGNATION AND REMOVAL OF DIRECTORS. Any Director may resign effective upon giving written notice to the chairman of the board, the president, the secretary or the Board of Directors of the corporation, unless the notice specifies a later time for the effectiveness of such resignation, in which case such resignation shall be effective at the time specified. Unless such resignation specifies otherwise, its acceptance by the corporation shall not be necessary to make it effective. The Board of Directors may declare vacant the office of a Director who has been declared of unsound mind by an order of court or convicted of a felony. Any or all of the Directors may be removed without cause if such removal is approved by the affirmative vote of a majority of the outstanding shares entitled to vote provided that no Director may be removed (unless the entire board is removed) when the votes cast against removal (or, if such action is taken by written consent, the shares held by persons not consenting in writing to such removal) would be sufficient to elect such Director if voted cumulatively at an election at which the same total number of votes were cast (or, if such action is taken by written consent, all shares entitled to vote were voted) and the entire number of Directors authorized at the time of the Director's most recent election were then being elected. No reduction of the authorized number of Directors shall have the effect of removing any Director before his term of office expires. Section 5. VACANCIES. Vacancies on the Board of Directors (except vacancies created by the removal of a Director) may be filled by a majority of the Directors then in office, whether or not less than a quorum, or by sole remaining Director, and each Director elected in this manner shall hold office until the next annual meeting of shareholders and until a successor has been elected and qualified or until his earlier resignation or removal or his office has been declared vacant in the manner -10- 90 ?9642 provided by these By -Laws. A vacancy or vacancies on the Board of Directors shall exist on the death, resignation or removal of any Director, or if the board declares vacant the office of a director if he is declared of unsound mind by an order of court or is convicted of a felony, or if the authorized number of Directors is increased, or if the shareholders fail to elect the full authorized number of Directors to be voted for at any shareholders meeting at which an election of Directors is held. The shareholders may elect a Director at any time to fill any vacancy not filled by the directors or which occurs by reason of the removal of a Director. Any such election by written consent of shareholders shall require the consent of a majority of the outstanding shares entitled to vote. If the resignation of a Director states that it is to be effective at a future time, a successor may be elected to take office when the resignation becomes effective. Section 6. PLACE OF MEETINGS. Regular and special meetings of the Board of Directors shall be held at any place within or without the State of California which has been designated in the notice or written waiver of notice of the meeting, or, if not stated in the notice of waiver of notice or there is no notice, designated by resolution of the Board of Directors or, either before or after the meeting, consented to in writing by all members of the board who were not present at the meeting. If the place of a regular or special meeting is not designated in the notice or waiver of notice or fixed by a resolution of the board or consented to in writing by all members of the board not present at the meeting, it shall be held at the corporation's principal executive office. Section 7. REGULAR MEETINGS. Immediately following each annual shareholders' meeting, the Board of Directors shall hold a regular meeting to elect officers and transact other business. Such meetings shall be held at the same place as the annual meeting or such other place as shall be fixed by the Board of Directors. Other regular meetings of the Board of Directors shall be held at such times and places as are fixed by the Board. Call and notice of regular meetings of the Board of Directors shall not be required and is hereby dispensed with. -11- U [yb41 Section 8. SPECIAL MEETINGS. Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairman of the board, the president, any vice president, the secretary, any assistant secretary or any three Directors. Notice of the time and place of special meetings shall be delivered personally or by telephone or telegraph or sent to the Director by mail. In case notice is given by mail or telegram, it shall be sent, charges prepaid, addressed to the Director at his address appearing on the corporate records, or, if it is not on these records or is not readily ascertainable, at the place where the meetings of the Directors are regularly held. If notice is delivered personally or given by telephone or telegraph, it shall be given or delivered to the telegraph office at least 48 hours before the meeting. If notice is mailed, it shall be deposited in the United States mail at least four days before the meeting. Such mailing, telegraphing or delivery, personally or by telephone, as provided in this Section, shall be due, legal and personal notice to such Director. Section 9. QUORUM. A majority of the authorized number of Directors shall constitute a quorum of the Board for the transaction of business, except to adjourn a meeting under Section 11. Every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present is the act of the Board of Directors, unless the vote of a greater number or the same number after disqualifying one or more Directors from voting, is required by law, the Articles of Incorporation or these By -Laws. A meeting at which a quorum is initially present may continue to transact business notwith- standing the withdrawal of Directors, provided that any action taken is approved by at least a majority of the required quorum for such meeting. Section 10. WAIVER OF NOTICE OR CONSENT. . The transactions of any meeting of the Board of Directors, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum is present and if, either before or after the meeting, each of the Directors not present or who, though present, has prior to the meeting or at its commencement, protested the lack of proper notice to him, signs a written waiver of notice, or a consent to holding the meeting, or an approval of the minutes of the meeting. All such waivers, consents and approvals shall be filed with the corporate records -12- aQ 2964Z or made a part of the minutes of the meeting. A notice of waiver of notice need not specify the purpose of any regular or special meeting of the Board of Directors. Notice of a meeting need not be given to any Director who signs a waiver of notice, whether before or after the meeting, or who attends the meeting without protesting, prior to or at its commencement, the lack of notice to such Director. Section 11. ADJOURNMENT. A majority of Directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. If the meeting is adjourned for more than 24 hours, notice of the adjournment to another time of place shall be given prior to the time of the adjourned meeting to the Directors who were not present at the time of the adjournment. Section 12. MEETINGS BY CONFERENCE TELEPHONE. Members of the Board of Directors may participate in a meeting through the use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Participation by Directors in a meeting in the manner provided in this Section constitutes presence in person at such meeting. Section 13. ACTION WITHOUT A MEETING. Any action required or permitted to be taken by the Board of Directors may be taken without a meeting, if all members of the Board shall individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as a unanimous vote of such Directors. Section 14. FEES AND COMPENSATION. Directors and members of committees shall receive neither compensation for their services as Directors or members of committees or reimbursement for their expenses incurred as Directors or members of committees unless these payments are fixed by resolution of the Board. Directors and members of committees may receive compensation and reimbursement for their expenses incurred as officers, agents or employees of or for other services performed for the corporation as approved by the Board of Directors. -13- 90 '9642 Section 15. COMMITTEES. The Board of Directors may, at its discretion, by resolution adopted by a majority of the authorized number of Directors, designate one or more committees, each of which shall be composed of two or more Directors, to serve at the pleasure of the Board. The Board may designate one or more Directors as alternate members of any committee, who may replace any absent member at any meeting of the committee. The Board may delegate to any such com_mittep; to the extent provided in such resolution, any of the Board's powers and authority in the management of the corporation's business and affairs, except with respect to: (a) the approval of any action for which the General Corporation Law or the Articles of Incorporation also requires approval by the shareholders; (b) the filling of vacancies on the Board of Directors or any committee; (c) the fixing of compensation of Directors for serving on the Board or on any committee; (d) the amendment or repeal of By -Laws or the adoption of new By -Laws; (e) the amendment or repeal of any resolution of the Board which, by its express terms, is not so amendable or repealable; (f) a distribution to the shareholders of the corporation, except at a rate or in a periodic amount or within a price range determined by the Board; (g) the authorization of the issuance of shares; and (h) the appointment of other committees of the Board or the members thereof. The Board may prescribe appropriate rules, not inconsistent with these By -Laws, by which proceedings of any such committee shall be conducted. The provisions of these By -Laws relating to the calling of meetings of the Board, notice of meetings of the Board and waiver of such notice, adjournments of meetings of the Board, written consents to Board meetings and -14- JU .79642 approval of minutes, action by the Board by consent in writing without a meeting, the place of holding such meetings, meetings by conference telephone or similar communications equipment, the quorum for such meetings, the vote required at such meetings and the withdrawal of Directors after commencement of a meeting shall apply to committees of the Board and action by such committees. In addition, any member of the committee designated by the Board as the chairman or as secretary of the committee or any two members of a committee may call meetings of the committee. Regular meetings of any committee may be held without notice if the time and place of such meetings are fixed by the Board of Directors or the committee. Section 16. INDEMNIFICATION OF AGENTS. (a) For the purpose of this section, "agent" means any person who is or was a Director, officer, employee or other agent of this corporation, and who is or was serving at the request of this corporation as a Director, officer or employee; "proceeding" means any threatened, pending or completed action or proceedings, whether civil, criminal, adminstrative or investigative; and "expenses" includes, without limitation, attorneys' fees and any expenses of establishing a right to indemnification. (b) This corporation shall indemnify any agent who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of this corporation) by reason of the fact that such person is or was a director, officer, or employee of this corporation, against expenses, judgments, fines, settlements approved by the Board of Directors and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of this corporation. (c) Expenses incurred in defending any proceeding may be advanced by this corporation prior to the final disposition of such proceeding. -15- Q0 2 42 (d) Nothing contained in this Section shall affect any right to indemnification to which persons other than Directors and officers of this corporation or any subsidiary hereof may be entitled by contract or otherwise. ARTICLE IV OFFICERS Section 1. OFFICERS. The officers of the corporation shall be a chairman of the board or a president, or both, a secretary and a chief financial officer. The corporation may also have, at the discretion of the Board of Directors, one or more vice presidents, one or more assistant secretaries, one or more assistant treasurers and such other officers as may be appointed in accordance with the provisions of Section 3 of this Article IV. Any two or more offices may be held by the same person. Section 2. ELECTIONS. The officers of the corporation, except such officers as may be appointed in accordance with the provisions of Section 3 or Section 5 of this Article IV, shall be chosen annually by the Board of Directors, and each such officer shall serve at the pleasure of the Board of Directors until the regular meeting of the Board of Directors following the annual meeting of shareholders and until his successor is elected and qualified or until his earlier resignation or removal. Section 3. OTHER OFFICERS. The Board of Directors may appoint, and may empower the Chairman of the Board or the President or both of them, to appoint such other officers as the business of the corporation may require, each of whom shall hold office for such period, have such authority and perform such duties as are provided in the By -Laws or as the Board of Directors may, from time to time, determine. Section 4. REMOVAL AND RESIGNATION. Any officer may be removed with or without cause either by the Board of Directors or, except for an officer chosen by the Board, by any officer upon whom the power of removal may be conferred by the Board (subject, in each case, to the rights, if any, of an officer -16- 90 2 9 6 4 Z under any contract of employment). Any officer may resign at any time upon written notice to the- corporation (without prejudice however, to the rights, if any, of the corporation under any contract to which the officer is a party). Any such resignation shall take effect upon receipt of such notice or at any later time specified therein. If the resignation is effective at a future time, a successor may be elected to take office when the resignation becomes effective. Unless a resignation specified otherwise, its acceptance by the corporation shall not be necessary to make it effective. Section 5. VACANCIES. A vacancy in any office because of death, resignation, removal, disqualification or any other cause shall be filled in a manner prescribed in the By -Laws for regular appointments to the office. Section 6. CHAIRMAN OF THE BOARD. The Board of Directors may, in its discretion, elect a Chairman of the Board, who, unless otherwise determined by the Board of Directors, shall preside at all meetings of the Board of Directors at which he is present and shall exercise and perform any other powers and duties assigned to him by the Board or prescribed by the By -Laws. If the office of president is vacant, the Chairman of the Board shall be the general manager and chief executive officer of the corporation and shall exercise the duties of the president as set forth in Section 7. Section 7. PRESIDENT. Subject to any supervisory powers, if any, that may be given by the Board of Directors of the By -Laws to the Chairman of the Board, if there be such an officer, the president shall be the corporation's general manager and chief executive officer and shall, subject to the control of the Board of Directors, have general supervision, direction and control of the business, affairs and officers of the corporation. Unless otherwise determined by the Board of Directors, he shall preside as Chairman at all meetings of the shareholders, and in the absence of the Chairman of the Board, or if there be none, at all meetings of the Board of Directors. He shall have the general powers and duties of management usually vested in the office of president of a corporation; shall have any other powers and duties that are prescribed by the Board of Directors or the By -Laws; and shall be primarily responsible for carrying out all orders and resolutions of the Board of Directors. -17- 90 19642 Section 8. VICE PRESIDENTS. In the absence or disability of the chief executive officer, the vice presidents in order of their rank as fixed by the Board of Directors, or if not ranked, the vice president designated by the Board of Directors, or if there has been no such designation, the vice president designated by the chief executive officer, shall perform all the duties of the chief executive officer, and when so acting, shall have all the powers of, and be subject to all the restrictions on, the chief executive officer. Each vice president shall have any of the powers and perform any other duties that, from time to time, may be prescribed for him by the Board of Directors or the By -Laws or the chief executive officer. Section 9. SECRETARY. The secretary will keep, or cause to be kept, a book of minutes of all meetings and actions by written consent of all Directors, shareholders and committees of the Board of Directors. The minutes of each meeting shall state the time and place that it was held and such other information as shall be necessary to determine whether the meeting was held in accordance with law and these By -Laws and the actions taken thereat. The secretary shall keep, or cause to be kept, at the corporation's principal executive office, or at the office of its transfer agent or registrar, a record of the shareholders of the corporation, giving the names and addresses of all shareholders and number and class of shares held by each. The secretary shall give, or cause to be given, notice of all meetings of shareholders, Directors and committees required to be given under these By -Laws or by law, shall keep or cause the keeping of the corporate seal in safe custody and shall have any other powers and perform any other duties that are prescribed by the Board of Directors of the By -Laws or the chief executive officer. If the secretary refuses or fails to give notice of any meeting lawfully called, any other officer of the corporation may give notice of such meeting. The assistant secretary, or if there be more than one, any assistant secretary, may perform any or all of the duties and exercise any or all of the powers of the secretary unless prohibited from doing so by the Board of Directors, the chief executive officer or the secretary, and shall have such other powers and perform any other duties as are prescribed for him by the Board of Directors of the chief executive officer. Section 10. CHIEF FINANCIAL OFFICER. The chief financial officer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and records of 90 Zgb4L account. The chief financial officer shall cause all money and other valuables in the name and to the credit of the corporation to be deposited at the depositories designated by the Board of Directors or any person authorized by the Board of Dirctors to designate such depositories. He shall render to the chief executive officer and Board of Directors, when either of them request it, an account of all his transactions as chief financial officer and of the financial condition of the corporation; and shall have any other powers and perform any other duties that are prescribed by the Board of Directors or the By -Laws or the chief executive officer. The assistant treasurer, or if there be more than one, any assistant treasurer, may perform any or all of the duties and exercise any or all of the powers of the chief financial officer unless prohibited from doing so by the Board of Directors, the chief executive officer or the chief financial officer, and shall have such other powers and perform any other duties as are prescribed for him by the Board of Directors, the chief executive officer or the chief financial officer. ARTICLE V MISCELLANEOUS Section 1. RECORD DATE. The Board of Directors may fix a time in the future as a record date for the determination of the shareholders entitled to notice of and to vote at any meeting of shareholders or entitled to give consent to corporate action in writing without a meeting, to receive any report, to receive payment of any dividend or other distribution, or allotment of any rights, or to exercise rights in respect to any change, conversion or exchange of shares or any other lawful action. The record date so fixed shall be not more than sixty days nor less than ten days prior to the date of such meeting, nor more than sixty days prior to any other action for the purposes of which it is fixed. When a record date is so fixed, only shareholders of record on that date are entitled to notice of, and to vote at any such meeting, to give consent without a meeting, to receive any report, to receive a dividend, distribution, or allotment of rights, or to exercise the rights,as the case may be, notwithstanding any transfer of any shares on the books of the corporation after the record date, except as otherwise provided in the Articles of Incorporation or By -Laws. -19- an Z 9 b 4 1 Section 2. INSPECTION OF CORPORATE RECORDS. The books of account, record of shareholders and minutes of proceedings of the shareholders and the board and committees of the board of this corporation shall be open to inspection upon the written demand on the corporation of any shareholder or holder of a voting trust certificate at any time during usual business hours, for a purpose reasonably related to such holder's interests as a shareholder or as the holder of such voting trust certificate. Such inspection by a shareholder or holder of a voting trust certificate may be made in person or by agent or attorney, and the right of inspection includes the right to copy and make extracts. Any shareholder shall have (in person or by agent or attorney) the absolute right to inspect and copy the record of shareholders' names and addresses and shareholdings during usual business hours upon five business days' prior written demand upon the corporation and to obtain from the transfer agent for the corporation, upon written demand and the tender of its usual charges, a list of the shareholders' names and addresses who are entitled to vote for the election of directors, and their shareholdings, as of the most recent record date for which it has been compiled or as of a date specified by the shareholders subsequent to the date of demand. The list shall be made available on or before the later of five business days after the demand is received or the date specified therein as the date as of which the list is to be compiled. Every director shall have the absolute right at any reasonable time to inspect and copy all books, records and documents of every kind and to inspect the physical properties of this corporation and any subsidiary of this corporation. Such inspection by a director may be made in person or by agent or attorney and the right of inspection includes the right to copy and make extracts. Section 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for payment of money, notes or other evidences of indebtedness issued in the name of, or payable to the corpora- tion, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board of Directors. The Board of Directors may authorize one or more officers of the corporation to designate the person or persons authorized to sign such documents and the -20- y[1 Z9b41 manner in which such documents shall be signed. Section 4. ANNUAL AND OTHER REPORTS. The Board of Directors shall cause an annual report to be sent to the shareholders not later than ninety (90) days after the close of the fiscal year and at least ten (10) days prior to the annual meeting of shareholders to be held during the next fiscal year. Such report shall contain a balance sheet as of the end of such fiscal year and an income statement accompanied by any report thereon of independent accountants. Monthly financial statements shall be prepared and mailed to all shareholders. The corporation shall, upon the written request of any shareholder, mail to the shareholder a copy of the last annual, semi-annual or quarterly income statement which it has prepared and a balance sheet as of the end of the period. The quarterly income statements and balance sheets referred to in this Section shall be accompanied by the report thereon, if any, of any independent accountants engaged by the corporation or the certificate of an authorized officer of the corporation that such financial statements were prepared without audit from the books and records of the corporation. Unless otherwise determined by the Board of Directors or the chief executive officer, the chief financial officer and any assistant treasurer are each authorized officers of the corporation to execute the certificate that the annual report and quarterly income statements and balance sheets referred to in this Section were prepared without audit from the books and records of the corporation. Section 5. CONTRACTS, ETC., HOW EXECUTED. The Board of Directors, except as the By -Laws or Articles of Incorporation otherwise provide, may authorize any officer or officers to enter into any contract or execute any instrument in the name of, and on behalf of, the corporation, and such authority may be general or confined to specific instances. Section 6. CERTIFICATE FOR SHARES. Every holder of shares in the corporation shall be entitled to have a certificate -21- 90 2ng42 or certificates signed in the name of the corporation by the chairman of the board or the president or a vice president and by the chief financial officer or an assistant treasurer or the secretary or an assistant secretary, certifying the number of shares and the class or series of shares owned by the shareholder. Any such certificate shall also contain such legend or other statement as may be required by Section 418 of the General Corporation Law, the Corporate Securities Law of 1968, and any agreement between the corporation and the issuee thereof, and may contain such legend or other statement as may be required by any other applicable law or regulation or agreement. Section 7. INSPECTION OF BY-LAWS. The corporation shall keep at its principal executive office the original or a copy of the By -Laws as amended to date, which shall be open to inspection by the shareholders at all reasonable times during office hours. Section 8. CONSTRUCTION AND DEFINITIONS. Unless the context otherwise requires, the general provisions, rules of construction and definitions contained in the General Corporation Law shall govern the construction of these By -Laws. Without limiting the generality of the foregoing, the masculine gender includes the feminine and neuter, the singular number includes the plural and the plural number includes the singular and the term "person" includes a corporation as well as a natural person. ARTICLE VI AMENDMENTS Section 1. POWER OF SHAREHOLDERS. New By -Laws may be adopted or these By -Laws may be amended or repealed by the affirmative vote of a majority of the outstanding shares entitled to vote such shares, except as otherwise provided by law or by the Articles of Incorporation. -22- 90 .79642 Section 2. POWER OF DIRECTORS. Subject to the right of shareholders as provided in Section 1 of this Article VI to adopt, amend or repeal By -Laws, By -Laws other than a By -Law or amendment thereof changing the authorized number of directors may be adopted, amended or repealed by the Board of Directors. -23-