The URL can be used to link to this page

Home My WebLink AboutC09-027 Riverview ApartmentsOPERATING AGREEMENT FOR RIVERVIEW APARTMENTS PRESERVATION LLC This Operating Agreement is entered into as of February 2, 2009, by EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a body corporate and politic, by and through its Board of Commissioners (the "Member"), as the sole member of RIVERVIEW APARTMENTS PRESERVATION LLC (the "Company"), in order to specify the business and operation of the Company. A. The Company was formed as a limited liability company by the filing of its Articles of Organization with the Colorado Secretary of State on February 2, 2009. B. The Member desires to enter into this Operating Agreement in order to provide for the governance of the Company and the conduct of its business. NOW THEREFORE, the Member agrees as follows: 1. DEFINITIONS. The following capitalized terms used in this Agreement have the meanings specified below. 1.1. "Act" means the Colorado Limited Liability Company Act, C.R.S. Title 7, Article 80, Section 101 et seq., including amendments from time to time. 1.2. "Agreement" means this operating agreement, as originally executed and as amended from time to time. 1.3. "Articles of Organization" means the Company's Articles of Organization filed with the Colorado Secretary of State, as amended. 1.4. "Capital Account" means an account maintained and adjusted in accordance with Section 3.2. 1.5. "Capital Contribution" means the amount of the money and the Fair Market Value of any property (other than money) contributed to the Company (net of liabilities secured by such contributed property that the Company is considered to assume or take "subject to" under IRC section 752) in consideration of a Membership Interest. A Capital Contribution shall not be deemed a loan. 1.6. "Capital Event" means a sale or disposition of any of the Company's capital assets, the receipt of insurance and other proceeds derived from the involuntary conversion of Company property, the receipt of proceeds from a refinancing of Company property, or a similar event with respect to Company property or assets. Operating Agreement -Riverview LLC (00186651-4) 1.7. "Code" or "IRC" means the Internal Revenue Code of 1986, as amended, and any successor provision. 1.8. "Company" has the meaning set forth in the first paragraph of this Agreement. 1.9. "Economic Interest" means a Person's right to share in the income, gains, losses, deductions, credit, or similar items of, and to receive distributions from, the Company, but does not include any other rights of a Member, including the right to vote or to participate in management. 1.10. "Encumber" means the act of creating or purporting to create an Encumbrance, whether or not perfected under applicable law. 1.11. "Encumbrance" means, with respect to any Membership Interest, or any element thereof, a mortgage, pledge, security interest, lien, proxy coupled with an interest (other than as contemplated in this Agreement), option, or preferential right to purchase. 1.12. "Gross Asset Value" means, with respect to any item of property of the Company, the item's adjusted basis for federal income tax purposes, except as follows: (a) The Gross Asset Value of any item of property contributed by the Member to the Company shall be the fair market value of such property, as mutually agreed by the Member and the Company; and (b) The Gross Asset Value of any item of Company property distributed to the Member shall be the fair market value of such item of property on the date of distribution. 1.13. "Involuntary Transfer" means, with respect to any economic interest, or any element thereof, any Transfer, or encumbrance, whether by operation of law, pursuant to court order, foreclosure of a security interest, execution of a judgment or other legal process, or otherwise, including a purported transfer to or from a trustee in bankruptcy, receiver, or assignee for the benefit of creditors. 1.14. "Membership Interest" shall mean the Member's entire interest in the Company and all rights, benefits and privileges pertaining thereto, including the Member's Economic Interest. 1.15. "Person" means an individual, partnership, limited partnership, trust, estate, association, corporation, limited liability company, or other entity, whether domestic or foreign. 1.16. "Profits and Losses" means, for each fiscal year or other period specified in this Agreement, an amount equal to the Company's taxable income or loss for such year or period. 1.17. "Regulations" ("Reg") means the income tax regulations promulgated by the United States Department of the Treasury and published in the Federal Register for the purpose of interpreting and applying the provisions of the Code, as such Regulations may be amended from time to time, including corresponding provisions of applicable successor regulations. Operating Agreement -Riverview LLC (00186651-4) 2 1.18. "Successor in Interest" means an assignee, a successor of a Person by merger or otherwise by operation of law, or a transferee of all or substantially all of the business or assets of a Person. 1.19. "Transfer" means, with respect to a Membership Interest, or any element of a Membership Interest, any sale, assignment, gift, Involuntary Transfer, or other disposition of a Membership Interest or any element of such a Membership Interest, directly or indirectly, other than an Encumbrance that is expressly permitted under this Agreement. 2. ORGANIZATIONAL MATTERS. 2.1. Articles of Organization. The Member has caused Articles of Organization, in the form attached to this Agreement as Exhibit A to be filed with the Colorado Secretary of State. 2.2. Name. The name of the Company shall be Riverview Apartments Preservation LLC. 2.3. Office and Agent. The principal executive office and agent for service of process shall be as set forth in the Articles of Organization. The Member may from time to time change the Company's agent for service of process. 2.4. Purpose. The Company may engage in any lawful act or activity for which a limited liability company may be formed within the State of Colorado. 2.5. Term. The term of existence of the Company shall commence on the effective date of filing of Articles of Organization with the Colorado Secretary of State, and shall continue until terminated by the provisions of this Agreement or as provided by law. 3. CAPITALIZATION. 3.1. Initial Capital Contribution. The Member shall contribute such cash or property as is set forth on Exhibit B as its Capital Contribution. 3.2. Capital Account. Although the Company will not be a separate entity for federal and Colorado income tax purposes, a Capital Account shall be maintained for the Member consisting of that Member's Capital Contribution (1) increased by the Member's share of Profits, (2) decreased by the Member's share of Losses, and (3) adjusted as required in accordance with applicable provisions of the Code and Regulations. 3.3. No Interest. No interest shall be paid on funds or property contributed to the capital of the Company or on the balance of a Member's Capital Account. 3.4. Liability of the Member. The Member shall not be bound by, or be personally liable for, the expenses, liabilities, or obligations of the Company except as otherwise provided in the Act or in this Agreement. Operating Agreement -Riverview LLC (001 8665 1-4) 3 4. ALLOCATIONS AND DISTRIBUTIONS. 4.1. Allocation of Profits and Losses. The Company shall be treated as a division of the Member pursuant to Regulations §§ 301.7701-2(a), 301.7701-2(c)(i) and 301.7701-3(b)(ii). Accordingly, the Profits and Losses of the Company and all items of Company income, gain, loss, deduction, or credit shall be reported, for Company book purposes and for tax purposes, by the Member. 4.2. Transfer of Economic Interest. In the event of a Transfer of an Economic Interest during any fiscal year, the assigning Member and assignee shall each be allocated the Economic Interest's share of Profits or Losses based on the number of days each held the Economic Interest during that fiscal year. 4.3. Distributions. All cash resulting from the normal business operations of the Company and from a Capital Event shall be distributed to the Member at such times as the Member deems appropriate. 5. MANAGEMENT. 5. L Management of the Company. The business, property and affairs of the Company shall be managed by the Member. The Member may appoint one or more non-Members as co- managers or may resign as Manager at any time and appoint anon-Member as the manager of the Company on such terms and conditions as the Member and such manager may agree. 5.2. Compensation. The Member as such shall not be entitled to compensation for the Member's services. However, the Member, acting as the manager, shall be entitled to such compensation for service as the Member may decide. The non-Member managers, if any, shall be compensated as agreed among the Member and the non-Member manager. 5.3. Officers. The Company may have a President who may, but need not, be the Member. The Member may provide for additional officers of the Company, and may alter the powers, duties, and compensation of the President and of all other officers. 5.4. Title to Assets. All assets of the Company, whether real or personal, shall be held in the name of the Company. 5.5. Bank Accounts. All funds of the Company shall be deposited in one or more accounts with one or more recognized financial institutions in the name of the Company, at such locations as shall be determined by the Member. Withdrawal from such accounts shall require the signature of such person or persons as the Member may designate. 6. ACCOUNTS AND RECORDS. 6.1. Accounts. Complete books of account of the Company's business, in which each Company transaction shall be fully and accurately entered, shall be kept at the Company's principal executive office. Operating Agreement -Riverview LLC (00186651-4) 4 6.2. Accountin;;. Financial books and records of the Company shall be kept on the accrual method of accounting, which shall be the method of accounting followed by the Company for federal income tax purposes. A balance sheet and income statement of the Company shall be prepared promptly following the close of each fiscal year in a manner appropriate to and adequate for the Company's business and for carrying out the provisions of this Agreement. The fiscal year of the Company shall be that of its Member. 6.3. Records. At all times during the term of existence of the Company, the Member shall keep or cause to be kept the books of account referred to in Section 6.2, and the following: (a) A current list of the full name and last known business or residence address of the Member, together with the Capital Contribution and the share in Profits and Losses of the Member; (b) A copy of the Articles of Organization, as amended; (c) Copies of the Company's federal, state, and local income tax or information returns and reports, if any, for the six most recent taxable years, if any; (d) Executed counterparts of this Agreement, as amended; (e) Financial Statements of the Company for the six most recent fiscal years; and (f) The Books and Records of the Company as they relate to the Company's internal affairs for the current and past four fiscal years. 6.4. Income Tax Returns. The Company shall be treated for federal and Colorado income tax purposes as a division of its Member pursuant to Regulations §§ 301.7701-2(a), 301.7701-2(c)(i) and 301.7701-3(b)(ii). Within 90 days after the end of each taxable year of the Company, the Company shall provide the Member with all information necessary for the Member to complete the Member's federal and state income tax or information returns. 7. RESTRICTIONS ON TRANSFER. 7.1. Transfer of Membership Interests. The Member may Transfer any part of the Member's Membership Interest in the Company. 8. DISSOLUTION AND WINDING UP. 8.1. Events of Dissolution. The Company shall be dissolved on the first to occur of the following events: (a) The decision of the Member to dissolve the Company. (b) The sale or other disposition of substantially all of the Company's assets. Operating Agreement -Riverview LLC (00 1 8665 1-4) 5 (c) Entry of a decree of judicial dissolution under Section 7-80-813 of the Act. 8.2. Winding Up. On the dissolution of the Company, the Company shall engage in no further business other than that necessary to wind up the business and affairs of the Company. The Member shall wind up the affairs of the Company and give written Notice of the commencement of winding up by mail to all known creditors and claimants against the Company whose addresses appear in the records of the Company. After paying or adequately providing for the payment of all known debts of the Company (except debts owing to the Member), the remaining assets of the Company shall be distributed or applied in the following order of priority: (a) To pay the expenses of liquidation. (b) To repay outstanding loans to the Member. (c} To the Member. 9. GENERAL PROVISIONS. 9.1. Entire Agreement. This Agreement constitutes the whole and entire agreement with respect to the subject matter of this Agreement. 9.2. Governing Law. This Agreement shall be construed and enforced in accordance with the internal laws of the State of Colorado. If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Agreement shall remain in effect. 9.3. Captions. The article, section, and paragraph titles and headings in this Agreement are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Agreement or any of its provisions. 9.4. Amendment. This Agreement may be altered, amended, or repealed only by a writing signed by the Member. 9.6. No Third Party Beneficiary Intended. This Agreement is made solely for the benefit of the parties to this Agreement and their respective permitted successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement. [Remainder of Page Intentionally Left Blank] Operating Agreement -Riverview LLC (001 8665 1-4) 6 IN WITNESS WHEREOF, the Member has executed or caused to be executed this Agreement as of the day and year first above written. Member: EAGLE COUNTY HOUSING AND DEVELOPMENT AUTHORITY, a body corporate and politic, by and throHgh its Board of B y: Jon Operating Agreement -Riverview LLC (00186651-4) EXHIBIT A ARTICLES OF ORGANIZATION (attached) Operating Agreement -Riverview LLC (00186651-4) EXHIBIT B CAPITAL CONTRIBUTION The Member has made an initial Capital Contribution of $100. Operating Agreement -Riverview LLC (00186651-4)