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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.
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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:
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.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.
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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,
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„' 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
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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
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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;
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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.
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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
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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
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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
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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
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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.
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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
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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.
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(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
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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.
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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.
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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
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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
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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.
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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.
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