C.R.S. Section 7-80-108
Effect of operating agreement

  • nonwaivable provisions
  • statute of frauds

(1)

Intentionally left blank —Ed.

(a)

The operating agreement may contain any provisions for the affairs of the limited liability company and the conduct of its business to the extent such provisions are consistent with law. Except as otherwise provided in subsection (1.5), (2), or (3) of this section, an operating agreement governs the rights, duties, limitations, qualifications, and relations among the managers, the members, the members’ assignees and transferees, and the limited liability company. Such provisions shall control over any provision of this article to the contrary except as set forth in subsection (1.5), (2), or (3) of this section. To the extent the operating agreement does not otherwise provide, this article shall control.

(b)

A limited liability company is bound by any operating agreement of its members.

(c)

An operating agreement may be entered into before, after, or at the time of filing of articles of organization and, whether entered into before, after, or at the time of such filing, may be made effective as of the formation of the limited liability company or as of the time or date provided in the operating agreement.

(1.5)

To the extent that a member or manager or other person that is a party to, or is otherwise bound by, the operating agreement has duties, including, but not limited to, fiduciary duties, to a limited liability company or to another member, manager, or other person that is a party to or is otherwise bound by an operating agreement, the duties of such member, manager, or other person may be restricted or eliminated by provisions in the operating agreement, as long as any such provision is not manifestly unreasonable.

(2)

An operating agreement may not:
(a)(Deleted by amendment, L. 2006, p. 855, § 20, effective July 1, 2006.)(b) Unreasonably restrict the rights of members and managers under section 7-80-408;
(c)(Deleted by amendment, L. 2006, p. 855, § 20, effective July 1, 2006.)(d) Eliminate the obligation of good faith and fair dealing under section 7-80-404 (3); except that the operating agreement may prescribe the standards by which the performance of the obligation is to be measured, if such standards are not unreasonable;

(d.5)

Eliminate or modify the provisions of section 7-80-801 (1)(c)(I), except to extend the time set forth therein to a time not later than the first anniversary of the date of the termination of the membership of the last remaining member; or

(e)

Restrict rights of, or impose duties on, persons other than the members, their assignees and transferees, and the limited liability company without the consent of such persons.

(2.5)

Intentionally left blank —Ed.

(a)

An operating agreement may contain one or more provisions concerning the enforcement, interpretation, construction, application, severability of provisions, integration, effect of parole evidence, and other matters with respect to the operating agreement or any of its provisions.

(b)

Unless otherwise provided in the operating agreement, if any provision of an operating agreement or application thereof to any person or circumstance is unenforceable or otherwise invalid under subsection (1.5) or (2) of this section or otherwise, the provision shall be limited, construed, and applied in a manner that is valid and enforceable, and, in any event, the remaining provisions of the operating agreement shall be given effect without the invalid provision or application.

(c)

Unless otherwise provided in the operating agreement with respect to the unenforceability, invalidity, or application of any provision of the operating agreement under subsection (1.5) or (2) of this section, when it is claimed or appears to the court that any provision of the operating agreement may violate subsection (1.5) or (2) of this section, the parties shall be afforded a reasonable opportunity to present evidence as to its commercial setting, purpose, and effect, to aid the court in making the determination.

(3)

Unless contained in a written operating agreement or other writing approved in accordance with a written operating agreement, no operating agreement may:
(a)(Deleted by amendment, L. 2004, p. 936, § 3, effective July 1, 2004.)(b)(Deleted by amendment, L. 97, p. 1503, § 12, effective June 3, 1997.)(c)(Deleted by amendment, L. 2004, p. 936, § 3, effective July 1, 2004.)(d) Vary any requirement under this article that a particular action or provision be reflected in a writing.

(4)

It is the intent of this article to give the maximum effect to the principle of freedom of contract and to the enforceability of operating agreements.

(5)

An operating agreement is not subject to any statute of frauds, including section 38-10-112, C.R.S., regarding void agreements, but not including any requirement under this article that a particular action or provision be reflected in a writing.

Source: Section 7-80-108 — Effect of operating agreement - nonwaivable provisions - statute of frauds, https://leg.­colorado.­gov/sites/default/files/images/olls/crs2023-title-07.­pdf (accessed Oct. 20, 2023).

7‑80‑101
Short title 7‑80‑102
Definitions 7‑80‑103
Nature of business 7‑80‑104
Powers 7‑80‑105
Unauthorized assumption of powers 7‑80‑106
Transaction of business outside state 7‑80‑107
Application of corporation case law to set aside limited liability 7‑80‑108
Effect of operating agreement - nonwaivable provisions - statute of frauds 7‑80‑109
Construction of article 7‑80‑203
Formation 7‑80‑204
Articles of organization 7‑80‑207
Effect of filing of articles of organization 7‑80‑208
Notice of existence of limited liability company 7‑80‑209
Amendment of articles of organization 7‑80‑301
Limited liability companies - registered agents - service of process - periodic reports 7‑80‑401
Management of limited liability company 7‑80‑402
Designation of managers 7‑80‑403
Officers and other agents 7‑80‑404
Duties of members and managers 7‑80‑405
Members and managers as agents of the limited liability company 7‑80‑407
Reimbursement and indemnification of members and managers 7‑80‑408
Access to and confidentiality of information - records - accounting 7‑80‑501
Form of contribution 7‑80‑502
Liability for contributions 7‑80‑503
Sharing of profits and losses 7‑80‑504
Sharing of distributions 7‑80‑601
Interim distributions 7‑80‑602
Resignation of member 7‑80‑603
Interest of member upon resignation 7‑80‑604
Distribution in kind 7‑80‑605
Right to distribution 7‑80‑606
Limitations on distribution 7‑80‑701
Admission of members 7‑80‑702
Interest in limited liability company - transferability of interest 7‑80‑703
Rights of creditor against a member 7‑80‑704
Deceased or incompetent members who are individuals - dissolved or terminated members who are legal entities 7‑80‑705
Liability of members and managers 7‑80‑706
Voting 7‑80‑713
Derivative proceeding - standing - definitions 7‑80‑714
Derivative proceeding - demand 7‑80‑715
Stay of derivative proceeding 7‑80‑716
Dismissal of derivative proceeding 7‑80‑717
Discontinuance or settlement of derivative proceeding 7‑80‑718
Payment of expenses - derivative proceeding 7‑80‑719
Applicability of derivative proceeding to foreign limited liability companies 7‑80‑801
Dissolution - time and notice of dissolution 7‑80‑802
Statement of dissolution 7‑80‑803
Effect of dissolution 7‑80‑803.3
Right to wind up business 7‑80‑803.5
Manager’s or member’s power to bind limited liability company after dissolution 7‑80‑810
Judicial dissolution 7‑80‑811
Procedure for judicial dissolution 7‑80‑812
Receivership or custodianship 7‑80‑813
Decree of dissolution 7‑80‑901
Foreign limited liability companies 7‑80‑902
Registered agent - service of process 7‑80‑1101
Application to limited liability companies formed prior to July 1, 1994
Green check means up to date. Up to date

Current through Fall 2024

§ 7-80-108’s source at colorado​.gov