HomeMy WebLinkAboutSungold Operating AgreementDocuSign Envelope lD: CDA52822-8721 -4237 -A3OE-09034F1 F27E4
OPERATING AGREEMENT
OF
SUNGOLD HEIGHTS LLC
(l M.LNa.crR MANAcED CoLoRÁ.Do LIMTTED LrABrLrrY CoMPAI\tY)
DocuSign Envelope lÐ: CD A52822-87 21 -4237 -A30E-09034F1 F27E4
OPERATING AGREEMENT
OF
SUNGOLD HEIGHTS LLC
The undersigned hereby make and enter into the following Operating Agreement for
Sungold Heights LLC ("the Company"), which Agreement shall serve as the governing
document for the internal affairs of the Company.
SECTION 1
FORMATION AND PURPOSE
1.1 Formation. The Organizer has caused to be formed a limited liability company
pursuant to the Colorado Limited Liability Company Act, Colorado Revised Statutes $ 7-80-101,
et. seq! All references hereafter to "C.R.S." shall be assumed to refer to the Colorado Revised
Statutes as they may be amended from time to time.
1.2 Name of Limited Liability Company. The name of the limited liability company
is Sungold Heights LLC.
1.3 Effective Date and Term. The Company shall be deemed to have commenced
existence on the date of the filing of the Articles of Organization with the Secretary of State,
State of Colorado, and, shall continue until dissolved pursuant to the provisions of this Operating
Agreement or statute.
I.4 Location of Principal Office. The location of the principal office of the
Company shall be 22}Harmony Lane, Carbondale,CO 81623-
1.5 Purpose and Permitted Activities. The purpose and permitted activities of the
Company shall be all activities permitted by law in which limited liability companies in the State
of Colorado shall be permitted to engage.
1.6 Registered Agent and Offices. The Articles of Organization of the Company has
designated Victoria Stulgis to be its initial registered agent. In the event of her inability or
unwillingness to act in such capacity, the Company shall at all times appoint and maintain a
substitute registered agent and comply with the provisions of Part 7 of Article 90, C.R.S. The
registered office of the Company shall be maintained at 220 Harmony Lane, Carbondale, CO
8t623.
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SECTION 2
MANAGEMENT RIGHTS, POWERS, AUTHORITYAND OBLIGATIONS OF
MEMBERS
2.1 Management. The management and control of the Company and its business and
affairs shall rest exclusively with the Managers (Manager if only one) of the Company. The
Managers shall manage and control the business of the Company to the best of the Managers'
ability and shall have full, exclusive, and complete power and discretion to make all decisions
and to do all things that the Managers deem necessary or desirable for that pu{pose. Persons
dealing with the Company shall be entitled to rely conclusively on the rights, powers, authority,
and obligations of the Managers as set forth in this Operating Agreement and the Articles of
Organization as filed with the Colorado Secretary of State. Expenditures in excess of twelve
thousand dollars ($12,000.00) or conveyances or encumbrances of Company real property shall
require written approval or consent of all Managers. For all other actions, any Manager, acting
individually,may act on behalf of Company.
2.2 Initial Manager. The name(s) and es of thê
Jonathan Stulgis
1 Prescott St.
Charlestown,MA02129
Victoria Stulgis
220Harmony Lane
Carbondale, CO 81623
2.3 RemovaVReplace of Managers.removed and replaced
by the vote of a majority in membership interest in the Company.
SECTION 3
MEMBERS
3.1 Names of Members. The names of the Members of the Company are: RC
CHUCKROW TRUST FOR BENEFIT OF AMY P. CHUCKROW.
3.2 Admission of New Members. Additional Members may be admitted to the
Company only upon the written consent of the Members.
J.J
Company.
Meetings. There shall be no requirement for annual or special meetings of the
3.4 Liability for Debts. No Member shall be liable under a judgment, decree, or
order of a court, or in any other manner, for a debt, obligation, or liability of the Company,
unless such Member shall have assumed or personally guaranteed a debt or obligation of the
Company in such Member's capacity as an individual and not as a Member of the Company"
However, if the Member has received the return of any part of such Member's capital
contribution in violation of this Operating Agreement or the provisions of Sections l-80-10I, et
seq., C.R.S., the Member is liable to the Company for a period of six (6) years thereafter for the
amount of the contribution wrongfully returned. For purposes of the foregoing, in determining
whether the Member has received a return of such Member's capital contribution, the provisions
of Section 7-80-607(3), C.R.S. shall govern and control over any conflicting provisions in this
Operating Agreement.
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3.5 Transfer on Death/Incapacity, or Dissolution or Termination of Entity. If a
Member dies or a court of competent jurisdiction adjudges a Member to be incompetent to
manage such Member's person or property, the Member's executor, administrator, guardian,
conservator, or other legal representative may exercise all of the powers of the Member. If a
Member is a corporation, trust, or other entity and is dissolved or terminated, the legal
representative or successor of the Member may exercise all of the powers of the Member.
3.6 Limitation on Transfer. Except as provided in Section 3.5, no Member shall
transfer such Member's membership interest in the Company without the written consent of all
of the Members.
3.7 Resignation or Withdraw. No Member shall withdraw or resign from the
Company without the written consent of all of the Members.
3.8 Indemnifïcation of Members. The Company shall indemnifu the Member to the
broadest extent permitted by law pursuant to 7-80-407, C.R.S.
3.9 Operating Agreement Priority. The provisions contained in this Section shall be
in lieu of any and all provisions contained in Sections 7-80-70I through 7-80-706, C.R.S. as
amended; provided, however, that the provisions of 7-80-703, C.R.S. establishing the rights of a
creditor against a Member shall continue to be applicable.
SECTION 4
MEMBER'S CONTRIBUTIONS
4.I Member's Current Contributions. The Members have made contributions of
capital to the Company in the form of cash in the amount of $285,000.00.
4.2 Contributions Free and Clear. The Members represent and warrant that the
Capital contribution made by them, respectively, to the Company are free and clear of all liens
and encumbrances.
4.3 Additional Capital Contributions. The Members shall not have any obligations
to make future contributions to the Company. Any additional capital contributions made and
accepted by the Manager shall be added to the then capital account of the contributing Member.
4.4 Withdrawal of Contributions. The Members shall not have the right to
withdraw or reduce their respective contributions to the capital of the Company except as a result
of the dissolution of the Company and the Members shall have no right to demand or receive
property, other than cash, in return for their respective conhibution to the Company, except as
specifically set forth in this Agreement.
4.5 No Interest on Capital. Interest earned on Company funds shall inure solely to
the benefit of the Company, and except as specifically provided in this Agreement, no interest
shall be paid upon any contributions or advances to the capital of the Company nor upon any
undistributed or reinvested income or profits of the Company.
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4.6 Application of Internal Revenue Code Rules. The determination and
maintenance of the member's capital accounts shall be in accordance with the rules of $1.704-
1(bX2Xiv).
SECTION 5
PROFITS AND LOSSES; DISTRIBUTIONS TO MEMBERS
5. 1 Definition of "Profits and Losses." The term "profits and losses" shall mean the
income, gain, loss, deductions and credits of the Company in the aggregate or separately stated,
as appropriate, determined in accordance with generally accepted accounting principles at the
close of such taxable year on the Company's financial statements.
5.2 Profits and Losses. Profits and losses shall be allocated to the Members prorated
in accordance with their respective capital accounts.
5.3 Net Available Cash Flow. Any net available cash flow from profits (other than
liquidation proceeds) shall be distributed at reasonable intervals as determined by the Manager,
all in his discretion. The term "net available cash flow," as used in this Agreement, shall mean
the excess of cash received from operations of the Company, less (1) operational cash
disbursements, and (2) if the Member shall so determine, a reasonable reserve shall be deducted
for working capital needs or to provide funds for capital improvements or for any other
contingencies of the Company.
5.4 Limitation on Distributions. A Member may not receive distributions from the
Cornpany to the extent that, after giving effect to the distribution, all liabilities of the Company,
other than liabilities to the Member on account of such Member's membership interest, would
exceed the fair market value of the Company assets.
SECTION 6
BOOKS AND RECORDS
6.1
records:
Records. The Company shall keep at its principal place of business the following
a. A current list of the full name and last-known business, residence, or mailing
address of each Member, both past and present;
b. A copy of the Articles of Organization and all amendments thereto, together with
executed copies of any powers of attorney pursuant to which any amendment has been
executed;
c. Copies of the Company's federal, state, and local income tax retums and reports,
if any, for the three most recent years;
d. Copies of any currently effective written operating agreement, copies of any
writings permitted or required under 7-80-502, C.R.S., and copies of any financial
statements of the Company for the three most recent years; and
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e. Minutes of all general and special meetings and copies of all unanimous consents
in lieu of meetings.
6.2 Books of Account of the Company. The books and accounting records of the
Company shall be kept by the Members in accordance with generally accepted accounting
practices and principles applied in a consistent manner by the Company, shall reflect all
transactions of the Company, and shall be appropriate and adequate for the business of the
Company. All such books and records shall be maintained at the principal business office of the
Company.
6.3 Financial Statement and Tax Records. Financial statements shall be prepared
not less than annually by the Manager, and copies of the statements shall be delivered to the
Members.
6.4 Fiting of Reports. The Company shall file with the Colorado Secretary of State
all reports required by Part 7 of Article 90.
6.5 Right to Inspect and Copy. Each Member shall have the right to inspect and
copy the records of the Company for appropriate purposes.
6.6 Financial Information. The Members shall have the right to obtain from the
Company from time to time information regarding the state of the business and financial
condition of the Company.
6.7 Bank Accounts. All funds of the Company are to be deposited in such bank
account or accounts as shall be designated by the Members. 'Withdrawal from such bank account
or accounts shall be made upon the signature or signatures as the Members may designate.
6.8 Title to Company Property. All real and personal property owned or purchased
by the Company shall be held and owned, and conveyance made, in the Company's name. Any
documents conveying or encumbering any real property owned by the Company shall require the
signature of all Managers to be effective.
SECTION 7
ACCOUNTING
7 .I Method of Accounting. The Company shall keep its accounting records and shall
report for income tax purposes on the cash basis.
7.2 Fiscal Year. The fiscal year of the Company shall commence on January lst and
end on December 31st.
1.3 Colorado Tax Compliance. If a Member of the Company is not a resident of the
State of Colorado, such Member shall be obligated to file a Colorado income tax return in
accordance with the provisions of 39-22-601 C.R.S. Such non-resident Member also agrees to
comply with all of the provisions of 39-22-601 C.R.S. and to file any tax returns with the
Colorado Department of Revenue as may be required by 39-32-601 C.R.S. For Colorado tax
pu{poses, the nonresident Member shall execute and deliver to the Company a Form DR 0107 -
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COLORADO LIMITED LIABILITY COMPANY NONRESIDENT MEMBER INCOME TAX
AGREEMENT (The "Nonresident Tax Agreement") no later than 60 days after becoming a
Member. The Company shall timely file with the Colorado Department of Revenue, a
Nonresident Tax Agreement with respect to each Nonresident Member.
7.4 Partnership Tax Treatment. The Company shall be considered a partnership
for Federal income tax purposes. However, the foregoing shall not be construed to preclude
modification of such tax treatment by hereafter validly electing Sub S tax treatment if permitted
under the Internal Revenue Code.
SECTION 8
DISSOLUTION AND DISSOLUTION PROCEDURES
8.1 Dissolution Events. The Company shall be dissolved upon the unanimous written
consent of the Members.
8.2 Winding Up. As required pursuant to the provisions of 7-80-802, C.R.S., the
Company shall upon dissolution cease to carry on its business, except as shall be necessary for
the winding up of its business, but its separate existence shall continue until a Statement of
Dissolution has been filed with the Secretary of State or until a decree of dissolving the
Company has been entered by a court of competent jurisdiction.
8.3 Distribution of Assets Upon Dissolution. If the Company is dissolved and its
affairs are to be wound up, the Managers shall:
a. Sell or Liquidate Assets. Sell or otherwise liquidate all of the Company's assets as
promptly as practicable (except to the extent the Company may determine to distribute
any assets to the Members in kind).
b. Discharge Liabilities. Discharge all liabilities of the Company, including
liabilities to the Members if the Members or any of them, are a creditor, to the extent
otherwise permitted by law, other than liabilities to the Member for distributions, and
establish such reserves as may be reasonably necessary to provide for contingent or other
liabilities of the Company.
c. Distribute Remaining Assets. Distribute the remaining assets to the Members.
8.5 Statement of Dissolution. At such time as all debts, liabilities, and obligation of
the Company have been paid or discharged or adequate provision has been made therefor and all
of the remaining property and assets have been distributed to the Members, a Statement of
Dissolution shall be executed in duplicate and filed in the office of the Colorado Secretary of
State as provided for and required pursuant to 7-80-802, C.R.S.
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SECTION 9
MISCELLANEOUS
9.I Parties in Interest. Except as otherwise provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto their respective heirs, beneficiaries,
assigns, successors and adminishators. No provision hereunder is intended to (nor shall it)
confer any right, privilege or benefit on any third party, and no third party shall have the right to
enforce any provision hereunder.
9.2 Amendment of Articles. The Articles of Organization of the Company shall be
amended when any event requiring such amendment as provided for in 7-80-209, C.R.S. shall
occur or condition provided therein shall exist requiring such amendment.
9.3 Section and Paragraph Headings. The section and paragraph headings of this
Agreement are for convenience and ease of reference only and do not define, limit, augment or
describe the scope, content or intent of this Agreement or any part or parts hereof.
9.4 Law Governing. This Agreement shall be construed and enforced in accordance
with the laws of the State of Colorado, including but not limited to, the Colorado Limited
Liability Company Act, at 7-80-101 C.R.S., et s-gq.
9.5 Entire Agreement Amendment. This Agreement shall constitute the entire and
whole Agreement between the parties hereto and may not be modified or amended except by
written instrument signed by each of the parties hereto.
9.6 Gender, Singular and Plural. The words in this Agreement in one gender shall
be deemed to include all other genders and the singular shall be deemed to include the plural and
the plural the singular.
of
IN \ryITNESS WHEREO
: u1y
F, the parties have signed this Agreement as of the t6 duy
2020.
fur-f{ffi'*ut4s
Jonãh"áff Tffiilpl3o; Manager
--Docusigned
by:12,* ,S'l*I-_
fli*eæi,æeamgis, Manager
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