HomeMy WebLinkAboutResolution No. 01-19 RESOLUTION NO. O !--- / ~
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS,
APPROVING THE ARTICLES OF INCORPORATION AND BYLAWS OF CITIES
AGGREGATION POWER PROJECT, INC., A POLITICAL SUBDIVISION
CORPORATION; ACCEPTING MEMBERSHIP IN SAID CORPORATION;
APPOINTING A REPRESENTATIVE TO SERVE ON BEHALF OF THE CITY OF THE
COLONY; APPROVING PAYMENT OF AN INITIAL MEMBERSHIP FEE; AND
PROVIDING A REPEALER CLAUSE, A SEVERABILITY CLAUSE, AND AN
EFFECTIVE DATE.
WHEREAS, Chapter 303 of the Texas Local Government Code, entitled "Energy
Aggregation Measures for Local Governments," allows political subdivisions to form a
political subdivision corporation to act as an agent to negotiate the purchase of
electricity, or to likewise aid or act on behalf of the political subdivisions for which the
corporation is created, with respect to their own electricity use for their respective public
facilities; and
WHEREAS, the T×U Cities Steering Committee has participated in numerous
rate proceedings and rule-makings over the course of the last decade and having
investigated the impacts of electric deregulation, recommends participation of cities in
aggregation projects and creation of a political subdivision corporation to maximize
opportunities for cost savings; and
WHEREAS, the T×U Cities Steering Committee has facilitated the creation of
Cities Aggregation Power Project, Inc., and Cities Aggregation Power Project, Inc. is a
political subdivision corporation organized under such Chapter 303 of the Texas Local
Government Code; and
WHEREAS, it is anticipated that the negotiation for electricity by the corporation
will result in lower electricity costs to the City of The Colony; and
WHEREAS, upon review and consideration of the Articles of Incorporation and
Bylaws for Cities Aggregation Power Project, Inc., the City Council is of the opinion that
it is in the best interest of the City to become a member of Cities Aggregation Power
Project, Inc., and that an initial membership fee equal to ½ of 1% of the total annual
electric bill for Fiscal Year 1999-2000, not to exceed $14,000, should be remitted to
Cities Aggregation Power Project, Inc.; and
RESOLUTION NO. O 1- ! ~ Page 2
WHEREAS, the City Council further finds that Robert S. Sparkman should be
appointed as the official representative for the City of The Colony to Cities Aggregation
Power Project, Inc. and should be authorized to act in the City of The Colony's behalf.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF THE COLONY, TEXAS, THAT:
Section I. The recitals contained in the preamble of this Resolution are
determined to be true and correct and are hereby adopted as a part of this Resolution.
Section II. The Articles of Incorporation and Bylaws of Cities Aggregation
Power Project, Inc., a political subdivision corporation created under Chapter 303 of the
Texas Local Government Code, attached hereto as Exhibits "A" and "B," respectively,
are hereby approved.
Section III. The City of The Colony accepts Membership in Cities Aggregation
Power Project, Inc.
Section IV. The City Council hereby approves payment to Cities Aggregation
Power Project, Inc. of an initial fee assessment equivalent to ½ of 1% of the City of The
Colony's total annual electric bill for Fiscal Year 1999-2000, not to exceed $14,000.
Section V. The City Council hereby appoints Robert S. Sparkman to serve as
the City of The Colony's representative to the corporation and to act on the City of The
Colony's behalf.
Section VI. All provisions of the Resolutions of the City of The Colony, codified
or uncodified, in conflict with the provisions of this Resolution are hereby repealed upon
the effective date of this Resolution, and all other provisions of the Resolutions of the
City of The Colony, codified or uncodified, not in conflict with the provisions of this
Resolution, shall remain in full force and effect.
Section VII. It is the intention of the City Council that this Resolution, and every
provision hereof, shall be considered severable, and the invalidity or unconstitutionality
of any section, clause, provision or portion of this Resolution shall not affect the validity
or constitutionality of any other portion of this Resolution.
RESOLUTION NO. _. O/-. / ~_ Page 3
Section VIII. This Resolution shall become effective immediately upon its passage.
SIGNED this c,~ day of ~~'f ,2001.
Bernetta Henville-Shannon, MAYOR
,ATT~S~:
Patti A. Hicks, CI'J'Y SECRETARY
APPROVED AS TO FORM: ~
n HikeI,.C-f'~'Y'ATTORN EY"
EXHIBIT "A" TO RESOLUTION NO. 0/'""! ~
ARTICLES OF INCORPORATION
OF
CITIES AGGREGATION POWER PROJECT, INC.
ARTICLE ONE
The corporation will conduct business under the name Cities Aggregation Power
Project, Inc.
ARTICLE TWO
The period of its duration is perpetual.
ARTICLE THREE
The corporation is a non-profit political subdivision corporation under Chapter
303, Texas Local Government Code, entitled "Energy Aggregation Measures for
Local governments," as amended.
ARTICLE FOUR
The corporation has been organized for any and all lawful business for which
corporations may be organized under the Texas Non-Profit Corporations Act, for
the purposes of purchasing electricity, aiding or acting on behalf of its members
with respect to their own electricity use for their respective public facilities and
that of their citizens, negotiating on behalf of its members for the purchase of
electricity, making contracts for the purchase of electricity, and taking any other
actions necessary to purchase electricity for use I the public facilities of the
political subdivision or subdivisions represented by the corporation, for the
purposes of acting as a local cooperative organization to purchase goods and
services for its members, and for all other purposes as may be permitted by law
for political subdivision corporations.
ARTICLE FIVE
The street address for the corporation's initial registered office is Lloyd,
Gosselnk, Blevins, Rochelle, Baldwin & Townsend, P.C., 111 Congress Avenue,
Suite 1800, Austin, Texas 78701, and the registered agent for the corporation at
this address in Geoffrey M. Gay.
ARTICLE SIX
The corporation shall have members. Membership shall be determined under
the terms and conditions provided in the corporation's bylaws.
EXHIBIT "A" TO RESOLUTION NO. _,L'') ! "' I~/
ARTICLE SEVEN
The direction and management of the affairs of the corporation and the control
and disposition of its properties and funds shall be vested in a Board of Directors
composed of such number of persons, but not less than three, as may be fixed
by the bylaws. Until changed by the bylaws, the original number of directors
shall be three (3). The names and addresses of the persons who are to serve as
Directors of the corporation until their successors are duly elected and qualified
are:
1. Jay Doegey
City of Arlington
P O Box 231
Arlington, Texas 76004-0231
2. Danny Reed
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
3. Steven L. Bacchus
City of Lewisville
P O Box 299002
Lewisville, Texas 75029-9002
ARTICLE EIGHT
The bylaws of the corporation shall be adopted by the Board of Directors and
shall be approved by the governing body of each political subdivision for which
the corporation is created.
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EXHIBIT "A" TO RESOLUTION NO. O/- lq
ARTICLE NINE
The names and addresses of the incorporators are:
1. Jay Doegey
City of Arlington
P O Box 231
Arlington, Texas 76004-0231
2. Danny Reed
City of Fort Worth
1000 Throckmorton
Fort Worth, Texas 76102
3. Steven L. Bacchus
City of Lewisville
P O Box 299002
Lewisville, Texas 75029-9002
The undersigned incorporators, all of whom are over the age of eighteen (18)
and are citizens of the State of Texas, sign these Articles of Incorporation subject
to the penalty imposed by Article 9.03A, Texas Non-Profit Corporation Act.
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EXHIBIT "A" TO RESOLUTION NO. ~)/-! ~
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME; a notary public, on this day personally appeared
known to me to be the person whose name is subscribed to the foregoing
document and, being by me first duly sworn, declared that the statements therein
contained are true and correct.
Given under my hand and seal of office this day of ,2001.
Notary Public, State of Texas
My Commission Expires:
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME; a notary public, on this day personally appeared
known to me to be the person whose name is subscribed to the foregoing
document and, being by me first duly sworn, declared that the statements therein
contained are true and correct.
Given under my hand and seal of office this day of ,2001.
Notary Public, State of Texas
My Commission Expires:
THE STATE OF TEXAS §
COUNTY OF §
BEFORE ME; a notary public, on this day personally appeared
known to me to be the person whose name is subscribed to the foregoing
document and, being by me first duly sworn, declared that the statements therein
contained are true and correct.
Given under my hand and seal of office this day of ,2001.
Notary Public, State of 'Texas
My Commission Expires:
4
EXHIBIT "B" TO RESOLUTION NO.
BYLAWS
OF
CITIES AGGREGATION
POWER PROJECT, INC.
ARTICLE I. Name and Purpose
1.1 Name: This corporation shall be know as Cities Aggregation Power
Project
1.2 Purpose: The corporation has been organized for any and all lawful
business for which corporations may be organized under the Texas Non-
Profit Corporations Act, for the purposes of purchasing electricity, aiding or
acting on behalf of its Members with respect to their own electricity use for
their respective public facilities and that of their citizens, negotiating on
behalf of its Members for the purchase of electricity, making contracts for
the purchase of electricity, and taking any other actions necessary to
purchase electricity for use in the public facilities of the political subdivision
or subdivisions represented by the corporation, for the purposes of acting
as a local cooperative organization to purchase goods and services for its
members, and for all other purposes as may be permitted by law for
political subdivision corporations.
ARTICLE II. Board of Directors
2.1 Composition: There shall be a Chair and a Vice Chair on the board and
such other directors as required for the performance of duties.
2.2 Powers: The affairs of the Corporation shall be managed by the Board of
Directors, which may exercise all such powers of the corporation
and do all such lawful acts and things as are not prohibited by
statute, by the Articles of Incorporation of the Corporation, or by
these Bylaws. By illustration and without limitation, included among the
powers of the Board of Directors is the power to negotiate the
purchase of electricity, aid or act on behalf of the political subdivisions for
which the corporation is created, make contracts for the purchase of
electricity, purchase electricity, and take any other action necessary
to purchase electricity for use in the public facilities or by the citizens
of the political subdivision or subdivisions represented by the
Corporation; provided, however, no Member shall be obligated under any
such contract unless the Member approves such contract.
EXHIBIT "B" TO RESOLUTION NO. OI -! ~
2.3 Number, Tenure and Qualification: (a) Directors shall be elected to the
Board at annual meetings of the Members as hereinafter described from a
slate presented by the Board and from nominations by Members.
Nominations for membership on the Board made by Members shall not be
considered at any meeting of the Members unless such nomination has
been presented in writing, signed by the Member or Members proposing
the same, and filed with the Secretary of the Corporation at least sixty (60)
days prior to the date of the meeting at which said nominations are to be
considered. From the nominations so made and no others, and from the
slate presented by the Board, Directors shall be elected, and the person or
persons receiving the highest number of votes shall be declared elected.
If the election of Directors shall not be held on the day designated herein
for any annual meeting of the Members, or at any adjournment thereof,
the Board shall cause the election to be held at a special meeting of the
Members, which shall be convened as soon thereafter as is possible. (b)
The initial Board of Directors shall consist of three (3) directors, and will be
expanded to nine (9). At the first annual meeting of the Corporation, the
Members shall elect nine (9) Directors (Places 1,2, 3, 4, 5, 6, 7, 8, and 9)
from the participating Corporation Membership, which Directors will serve
from their election until their successors are duly elected and shall qualify.
The number of Directors may be increased or decreased by resolution of
the Board, but no decrease shall have the effect of shortening the term of
an incumbent Director. The first elected directors shall be selected based
on the following:
· Each participating city with a population above 500,000 will be
guaranteed one seat.
· All participating cities with a population of 100,000 but not greater
than 500,000 will be guaranteed one seat for the group.
· All participating cities with a population not greater than 50,000 will
be guaranteed one seat for the group.
· The remaining board members necessary to bring the number of
Directors to nine (9) will be elected at large.
(C) The first elected directors shall serve until December 31,2003. The
subsequent Board Member Selection Process will be determined by the
first elected Board based upon aggregation project load of participants
and must be established before December 31, 2003. The directors
elected as a result of using the subsequent Board Member Selection
Process shall serve two (2) year staggered terms with directors serving in
place numbers that are odd elected in odd numbered years and those
serving in place numbers that are even elected in even numbered years,
except that the initial even place numbered directors will stand for re-
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EXHIBIT "B" TO RESOLUTION NO. O/-./~'
election after one year. (d) Except for the initial Board, each Director of
the Board must be an official or full-time salaried employee of a Member.
Any Director who is an official or full-time salaried employee of an entity
that ceases to be a Member participant of the Corporation, and any
Director who ceases to be a Member, shall be automatically disqualified to
serve as a Director, and the position shall become vacant, such vacancy
to be filled in the manner provided in Section 2.5 of this Article II.
2.4 Removal: Directors may be removed from office, with or without cause, by
an affirmative vote of the majority of the Members then entitled to
vote at an election of the Directors at an annual meeting of the
Members or a meeting called expressly for that purpose; provided,
no action to remove any Director shall be sufficient unless written
notice that such action is to be considered shall have been given to
all Members by the Chair or Secretary at least sixty (60) days before
the meeting.
2.5 Vacancies: Any Director may resign at any time by giving written notice to
the Secretary of the Corporation. Such resignation shall take effect
at the time specified therein; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective. Any vacancy occurring in the Board may be filled by the
affirmative vote of a majority of the remaining Directors though less than
a quorum. A Director elected to fill a vacancy shall be elected for
the unexpired term of his or her predecessor in office. Any place on
the Board to be filled by reason of an increase in the number of
Directors shall be filled by the affirmative vote of a majority of the
Directors then in office. A Director chosen to fill a position resulting
from an increase in the number if Directors shall hold office until the next
annual meeting of Members, at which tie a successor shall be elected to
serve until the expiration date set for his or her designated place.
2.6 Regular Meetinqs: A regular meeting of the Board shall be held annually
in conjunction with the annual meeting of Members, for the purpose of
organization, election of officers, and consideration of any other business
that properly may come before the Board. The Board may provide, by
resolution, the time and place for the holding of additional regular
meetings.
2.7 Special Meetings: Special meetings of the Board may be called by the
Chair of the Board or at the written request of any two (2) Directors. The
person or persons authorized to call special meetings of the Board may fix
the place for holding any special meeting of the Board so called. If no
place is fixed, the place of meeting shall be the principal office of the
Corporation in Texas.
3
EXHIBIT "B" TO RESOLUTION NO. (")/-! ~
2.8 Voting Quorums: A majority of the umber of Directors described in by
Section 2.3 shall constitute a quorum for the transaction of business. The
act of the majority of the Directors present at a meeting at which a quorum
is present shall be the act of the Board, provided, however, the Board
may, by resolution, delegate any of its powers in whole or in part,
temporarily or permanently, to any Director or committee of Directors then
acting; and such delegation shall be by written instrument filed in the
records of the Corporation.
2.9 Notice of Meetinqs: Notice for board meetings shall be provided to all
Directors and Members either by mail not less than seventy-two (72)
hours before the date of the meeting, by telephone, telegram, or telecopy
on twenty-four (24) hours notice or on such shorter notice as the person or
persons calling such meeting may deem necessary or appropriate in the
circumstances.
2.'10 Informal Action by Directors: Any action required to be taken at a meeting
of the Directors, or any other action which may be taken at a meeting of
the Directors, may be taken without a meeting if a consent or consensus
in writing, setting forth the action so taken, shall be signed by all of the
Members with respect to the subject matter thereof. Such consent or
consents shall have the same force and effect as a unanimous vote of the
Directors.
2.1 1 Compensation: Duly elected or appointed Directors shall serve without
compensation, but shall be reimbursed for reasonable costs of travel,
meals, lodging and incidental expenses while on official business for the
Corporation.
2.12 Reliance on Professionals and Experts: Directors are authorized to rely
on information, opinions, reports and statements, including financial
statements and other financial data, prepared or presented by others to
the fullest extent permitted by applicable law.
2.13 Executive Committee: The Chair of the Board may appoint an Executive
Committee of the Board to handle the affairs of the Board when regular or
special Board meetings are not in session, with such functions as may be
designated to the Executive Committee by the Board through a resolution
properly adopted. The Executive Committee may consist of the Chair,
Vice-Chair, and one or two other Directors as designated by the Chair.
2.14 Other Committees: The Chair is authorized to form any committees as
needed in order to assist the Board with its information gathering and
deliberations.
4
EXHIBIT "B" TO RESOLUTION NO. O I-I ~
2.15 Specific Powers and Duties: The Board, in addition to other powers and
duties herein conferred, imposed and authorized by law, shall have the
following powers and duties.
· It shall carry out all of the duties necessary for the proper operation and
administration of the Corporation on behalf of the Members and to that
end shall have all of the powers necessary and desirable for the effective
administration of the affairs of the Corporation.
· It shall be authorized to contract with any qualified individual, firm or
organization to perform any of the functions necessary for the effective
administration or operation of the Corporation, or to provide for the fiscal
protection of the Corporation or in keeping with its fiduciary responsibilities
as Directors.
· It may hire attorneys, accountants, consultants, or such other professional
persons that it may deem necessary aid to or for the Corporation. Those
persons shall be paid as provided in the contract for hire as executed by
the Chair of the Board.
· It shall have the general power to make and enter into all contracts, leases
and agreements necessary or convenient to carry out any of the powers
granted under these bylaws or by any other law.
· It shall provide for an annual audit of the books of the Corporation to be
supplied to the Membership within 120 days following the close of each
Corporation Year, or as soon thereafter as practicable.
· It shall have the authority to terminate Member that fails to abide by the
reasonable requirements of the Board concerning payment of annual dues
or aggregation fees as provided in Article V, cooperate with any of the
agents hired to provide administrative services on behalf of the Board, or
takes any other action that may be detrimental to the Corporation.
· It may collect interest on all past due accounts not to exceed the amounts
allowed under applicable law.
ARTICLE II1. Officers
3.1 Generally, the Board shall elect from among their number a Chair of the
Board and a Vice-Chair of the Board. The Board shall designate a
Secretary, who may or may not be a Director, to keep the minutes
and the records of the Board. The Board may appoint such other
officers, assistant officers, committees and agents, including a
treasurer, assistant secretaries and assistant treasurers, as they ay
consider necessary, who shall be chosen in such manner and hold their
offices for such terms and have such authority and duties as may from
time to time be determined by the Board. No person may
simultaneously hold two offices. In all cases where the duties of any
officer, agent or employee are not prescribed by the bylaws or by the
5
EXHIBIT "B" TO RESOLUTION NO. O ! - I'~
Board, such officer, agent or employee shall follow the orders and
instructions of the Chair of the Board.
3.2 Election; Tenure: The Chair of the Board, the Vice-Chair, and the
Secretary shall be elected at the organizational meeting of the Board. If
the election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as a meeting may be conveniently
convened. Other officers may be chosen by the Directors at such meeting
or at any other time. Each officer shall hold office until the first of the
following occur: Until his or her successor shall have been duly elected
and shall have qualified; or until his or her death; or until he or she shall
resign; or until he or she shall be disqualified pursuant to these bylaws; or
until he or she shall have been removed in the manner hereinafter
provided.
3.3 Removal: Any officer or agent may be removed by majority vote of the
entire Board for cause or without cause whenever in its judgment the best
interests of the Corporation will be served thereby. Neither notice nor a
hearing need by given to any officer or agent proposed to be so removed.
Election or appointment of an officer or agent shall not in itself create
contract rights.
3.4 Vacancies: A vacancy in any office, however occurring, may be filled by
the Board for the unexpired portion of the term.
3.5 Powers and Duties of the Chief Executive Officer: The Chair of the Board
shall be the Chief Executive Officer of the Corporation. Subject to the
control of the Board and the Executive Committee, the Chief Executive
Officer shall have general executive charge, management and control of
the properties, business and operations of the Corporation with all such
powers as may me reasonably incident to such responsibilities; may agree
upon and execute all leases, contracts, evidences of indebtedness and
other obligation in the name of the Corporation; and shall have such other
powers and duties as designated in accordance with these bylaws and as
from time to time may be assigned to him or her by the Board. He or she
shall preside at all meetings of the Members of the Board.
3.6 Vice-Chair: The Vice-Chair shall assist the Chair and shall perform such
duties as may be assigned to him or her by the Chair of the Board. In the
absence of the Chair, the Vice-Chair shall have the powers and perform
the duties of the Chair. In addition, the Vice-Chair shall have such other
powers and duties as from time to time may be assigned to him or her by
the Chair or by the Board.
3.7 Secretary: The Secretary shall: (a) keep the minutes of the proceedings
of the Members, the Executive Committee and the Board; (b) see that all
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EXHIBIT "B" TO RESOLUTION NO. O./-/~
notices are duly given in accordance with the provisions of these bylaws
or as required by law; (c) be custodian of the records and of the seal of the
Corporation and affix the seal to all documents when authorized by the
Board; (d) keep at the Corporation's principal place of business within the
State of Texas a record containing the names and addresses of all
Members; and (e) in general, perform all duties incident to the office of
Secretary and such other duties as from time to time may be assigned to
him or her by the Chair of by the Board.
3.8 Executive Director; Other Officers: The Board may select and appoint an
Executive Director and any other employees to serve at the pleasure of
the Board. At the discretion of the Board, the Executive Director may be
an independent contractor or an employee of the Corporation. The
Executive Director and any other such employees duly selected and
appointed employees shall receive such compensation and other benefits
as the Board may determine, and, additionally, be entitled to
reimbursement of expenses for attendance at official meetings of and
official functions for the Corporation.
ARTICLE IV. Membership
4.1 Eligibility: Any political subdivision that approves the Articles of
Incorporation and these Bylaws by ordinance, resolution, or order adopted
by the governing body of the political subdivision and that purchases
electricity for one or more of their respective public facilities is eligible for
membership in Cities Aggregation Power Project, Inc., subject to the right
of the Board to determine eligibility and conditions of membership, and
subject further to the authority of the Board to terminate membership of
any Member as provided herein, or in any agreement made between the
Member and the Corporation.
4.2 Representation: Each Member shall appoint, by formal action by its
governing body, a representative to act for it at the meetings of Members
and shall give to the chair of the Board of Directors in writing the name of
the person thus appointed. Only appointed representatives may act on
behalf of Members in the conduct of business of the Corporation. If at any
time a Member withdraws from participation or otherwise has its
membership status terminated, that Member shall no longer have a
representative in the Membership, on the Board, or on any committee of
the Corporation. Each Representative will serve until a successor is
appointed.
4.3 Withdrawal: Any Member may withdraw from participation in the activities
of the Corporation at any time upon thirty (30) days notice, whereupon it
shall cease to be a Member, shall cease to be entitled or obligated to
participate in the activities of all committees and subcommittees of the
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EXHIBIT"B" TO RESOLUTION NO. OI- lq
Board of Directors and shall have to further obligations as a Member;
provided, however, that if such notice is given more than thirty (30) days
after such Member's receipt of its statement of annual dues, fees and
expenses for a fiscal year, the Member shall be obligated to pay for the full
fiscal year within which such termination is effective.
4.4 Votinq Rights: Voting rights are limited to Members. Until December 31,
2003 each Member shall be entitled to one vote at any regular or special
meeting of the Members upon all matter of business, which vote or votes
may be exercised in person or by mail by a representative of the Member
duly authorized in writing; provided, however, that proxy and cumulative
voting shall be prohibited. Thereafter, votes will be based upon the
proportionate aggregation electric load of the Members.
4.5 Annual Meetings: The annual meeting of the Members shall be held at a
time and on a date selected by the Chair of the Board, with written notice
to each Member, for the purpose of electing Directors, receiving the
annual report from the Board, and for the transaction of such other
business as may come before the meeting. If the day fixed for the annual
meeting shall be a legal holiday in the State of Texas, such meeting shall
be held on the next succeeding business day.
4.6 Special Meetinqs: Special meetings of the Members, for any purpose,
unless otherwise prescribed by statute, may be called by the Board, and
shall be called by the Chair of the Board or by the Secretary at the request
of not less than one-tenth (1/10) of all of the outstanding Members of the
Corporation.
4.7 Place of Meeting: The Board may designate the place for any annual
meeting or for any special meeting called by the Board. If no designation
is made, or if a special meeting shall be called otherwise than by the
Board, the place of meeting shall be the principal office of the Corporation
in Texas.
4.8 Notice of Meetin.q: Voting by Ballots Forwarded bv Mail: (a) Written or
printed notice stating the place, day and hour of the meeting, and, in a
case of a special meeting, the purposes for which the meeting is called,
shall be delivered, not less than ten (10) nor more than fifty (50) days
before the date of the meeting (either personally or' by mail), by or at the
direction of the Chair of the Board or the Secretary to each Member
entitled to vote at such meeting. If mailed, such notice shall be deemed to
be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. In order that Members may vote by mail, each
notice of meeting shall include a ballot containing each issue to be voted
at that meeting and instructions as to the date by which such ballot must
be postmarked in order for the vote to be counted. (b) Whenever notice is
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EXHIBIT "B" TO RESOLUTION NO.
required in this Section 4.8 of Article IV, a waiver thereof in writing signed
by the Member, whether before, at, or after the time stated therein, shall
be equivalent to such notice. By attending a meeting, a Member waives
objections to lack of notice or defective notice of such meeting unless the
Member, at the beginning of the meeting, objects to the holding of the
meting or the transacting of business at the meeting. Further, a Member
waives objection to consideration at such meeting of a particular matter
not within the purpose or purposes described in the meeting notice unless
the Member objects to considering the matter when it is presented.
4.9 Quorum: A quorum for the election of Directors, and conducting normal
business at all meetings of the Members shall be twenty-five (25%)
percent of the Members present in person or voting by mail.
4.10 Informal Action by Members: Any action required to be taken at a meeting
of the Members, or any other action which may be taken at a meeting of
the Members, may be taken without a meeting if a consent or consents in
writing, setting forth the action so taken, shall be signed by all of the
Members with respect to the subject matter thereof. Such consent or
consents shall have the same force and effect as a unanimous vote of the
Members.
ARTICLE V. Funding
5.1 Generally: Funding of the Corporation shall be by member political
subdivisions through the assessment of dues or through an aggregation
fee charged per kilowatt-hour, or a combination of both as determined
appropriate by the Board of Directors.
5.2 Initial Membership Fee: The initial membership fee shall be based upon
½ of 1% of the total annual electric bill of 2000. Such fee shall not exceed
$14,000. The initial fee will be credited against future administrative fees
imposed after December 31,2003. It is permissible for political
subdivisions to pay the fee prior to formally joining the Corporation and be
credited with payment of the fee after a resolution approving the articles of
incorporation and bylaws is passed by the political subdivision.
5.3 Board Authority: The Board shall have the authority to establish
membership dues, an aggregation fee, or both, to be applicable to all
Members of the Corporation. The Board may amend such dues and fees
at its discretion. The Board shall have the authority to establish
appropriate penalties that may be assessed against a Member for failure
to pay the dues, aggregation fee, or both, established by the Board.
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EXHIBIT "B" TO RESOLUTION NO. 0!- I q
5.4 Statements: Membership fees will be billed annually; statements for other
fees and expenses will be provided monthly as needed. Due dates for
fees and expenses will be determined by the Board.
5.5 Books and Records: All Members of the Corporation will have access to
the books and records of the Corporation, including financial statements
and budgets; however, the Board of Directors may adopt policies that
provide reasonable protection against the unnecessary disclosure of
information to individual employees.
ARTICLE VI. Indemnification
6.1 Liability: A Director, officer, employee or agent of the Corporation who
performs his or her duties in good faith, in a manner he or she reasonable
believes to be in the best interests of the Corporation, and with such care
as an ordinarily prudent person in a like position would use under similar
circumstances, shall not have any liability by reason of being or having
been a Director, officer, employee or agent of the Corporation and shall
not have any liability for any action taken by an employee, agent or
independent contractor selected with reasonable care, or for any loss
incurred through the investment of or failure to invest monies of the
Corporation or any Trust Account. No Director, officer, employee or agent
shall be liable for any action taken or omitted by another Director, officer,
employee or agent.
6.2 INDEMNIFICATION: EACH PERSON WHO AT ANY TIME SHALL
SERVE, OR SHALL HAVE SERVED, AS A DIRECTOR, OFFICER,
EMPLOYEE OR AGENT OF THE CORPORATION, OR ANY PERSON
WH, WHILE A DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE
CORPORATION, IS, OR WAS, SERVING AT ITS REQUEST AS A
DIRECTOR, OFFICER, PARTNER, VENTURER, PROPIIETOR,
TRUSTEE, EMPLOYEE, AGENT OR SIMILAR FUNCTIONARY OF
ANOTHER FOREIGN OR DOMESTIC CORPORATION, PARTNERSHIP,
JOINT VENTURE, SOLE PROPRIETORSHIP, TRUST EMPLOYEE
BENEFIT PLAN OR OTHER ENTERPRISE, SHALL BE ENTITLED TO
INDEMNIFICATION AS, AND TO THE FULLEST EXTENT, PERMITTED
BY ARTICLE 1396 SECTION 2.22A OF THE TEXAS NON-PROFIC
CORPORATION ACT OR ANY SUCCESSOR STATUTORY
PROVISION, AS FROM TIME TO TIME AMENDED, SUCH ARTICLE OR
SUCCESSOR PROVISION, AS SO AMENDED, SUCH ARTICLE OR
SUCCESSOR PROVISION, AS SO AMENDED, BEING
INCORPORATED IN FULL IN THESE BYLAWS BY REFERENCE, THE
FOREGOING RIGHT OF INDEMNIFICATION SHALL NOT BE DEEMED
EXCLUSIVE OF ANY OTHER RIGHTS TO WHICH THOSE TO BE
INDEMNIFIED MAY BE ENTITLED AS A MATTER OF LAW OR UNDER
ANY AGREEMENT, VOTE OF DISINTERESTED DIRECTORS, OR
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EXHIBIT "B" TO RESOLUTION NO. O !- / ~
OTHER ARRANGEMENT. IT IS EXPRESSLEY ACKNOWLEDGED
THAT THE INDEMNIFICATION PROVIDED IN THIS ARTICLE COULD
INVOLVE INDEMNIFICATION FOR NEGLIGENCE OR UNDER
THEORIES OF STRICT LIABILITY.
6.3 Advance Payment: The right to indemnification conferred in this Article VI
shall include the right to be paid in advance or reimbursed by the
Corporation the reasonable expenses incurred by a person of the type
entitled to be indemnified under Section 2 who was, is or is threatened to
be made a named defendant or respondent in a proceeding in advance of
the final disposition of the proceeding and without any determination as
the person's ultimate entitlement to indemnification; provided, however,
that the payment of such expenses incurred by any such person in
advance of the final disposition of a proceeding, shall be made only upon
the delivery to the Corporation of a written affirmation by such Director or
officer of his or her good faith belief that he or she has met the standard of
conduct necessary for indemnification under this Article VI and a written
undertaking, by or on behalf of such person, to repay all amounts so
advanced if it shall ultimately be determined that such indemnified person
is not entitled to be indemnified under this Article VI or otherwise.
6.4 Appearance as a Witness: Notwithstanding any other provision of this
article VI, the Corporation may pay or reimburse expenses incurred by a
Director or officer in connection with his other appearance as a witness or
other participation I a proceeding involving the Corporation or its business
at a time when he or she is not a named defendant or respondent in the
proceeding.
6.5 Non-exclusivity of Rights: The right to indemnification and the
advancement and payment of expenses conferred in this Article VI shall
not be exclusive of any other right which a Director or officer or other
person indemnified pursuant to this Article VI may have or hereafter
acquire under any law (common or statutory), provision of the Articles of
Incorporation of the Corporation or these Bylaws, agreement, vote of
members or disinterested Directors or otherwise.
6.6 Savinqs Clause: If this Article VI or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Corporation
shall nevertheless indemnify and hold harmless each Director, officer or
any other person indemnified pursuant to this Article VI as to costs,
charges and expenses (including attorneys' fees), judgments, fines and in
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, to the full extent
permitted by any applicable portion of this Article VI that shall not have
been invalidated and to the fullest extent permitted by applicable law.
11
EXHIBIT "B" TO RESOLUTION NO. g)/'"'/5
ARTICLE VII. Code of Conduct
7.1 Policy and Purposes: (a) It is the policy of the Corporation that Directors
and officers conduct themselves in a manner consistent with sound
business and ethical practices; that the public interest always be
considered in conducting Corporate business; that the appearance of
impropriety be avoided to ensure and maintain public confidence in the
Corporation; and that the Board establish policies to control and manage
the affairs of the Corporation fairly, impartially, and without discrimination.
(b) This Code of Ethics has been adopted as part of the Corporation's
Bylaws for the following purposes: (1) to encourage high ethical standards
in official conduct by Directors and Corporate officers; and (2) to establish
guidelines for such ethical standards of conduct.
7.2 Conflicts of Interest: (a) Except as provided in subsection (a), a Director
or officer is prohibited from participating in a vote, decision, or
award of a contract involving a business entity or real property in which
the Director or the officer has a substantial interest, if it is foreseeable that
the business entity or real property will be economically benefited by the
action. A person has a substantial interest in a business (i) if his or her
ownership interest is ten (10%) percent or more of the voting stock or
shares of the business entity or ownership of $15,000 or more of the fair
market value of the business entity, or (ii) if the business entity provides
more than ten (10%) percent of the person's gross income. A person has
a substantial interest in real property if the interest is an equitable or legal
ownership with a fair market value of $2,500 or more. An interest of a
person related in the first degree by affinity (marriage relationship) or
consanguinity (blood relationship) to a Director or officer is considered a
substantial interest. (b) If a Director or a person related to a Director in
the first degree by affinity or the first degree by consanguinity has a
substantial interest in a business entity or real property that would be
pecuniarily affected by an official action taken by the Board, such Director,
before a vote or decision on the matter, shall file an affidavit stating the
nature and extent of the interest. The affidavit shall be filed with the
Secretary of the Board. (c) A Director who has a substantial interest in a
business entity that will receive a pecuniary benefit from an action of the
Board may vote on that action if a majority of the Board has a similar
interest in the same action or if all other similar business entities in the
Corporation will receive a similar pecuniary benefit. (d) An employee of a
public entity may serve on the Board. It is specifically recognized that as
an official or employee of a public entity, that person's primary loyalty is to
the political subdivision that employs them. It shall not be a conflict of
interest for said Board member to express opinions or vote in a manner
that reflects the self-interest of the public entity that the Board member
represents.
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EXHIBIT "B" TO RESOLUTION NO. 0/-I t
7.3 Acceptance of Gifts: No Director or officer shall accept any benefit as
consideration for any decision, opinion, recommendation, vote or other
exercise of discretion in carrying out official acts for the Corporation. No
Director or officer shall solicit, accept, or agree to accept any benefit from
a person known to be interested in or likely to become interested in any
contract, purchase, payment, claim or transaction involving the exercise of
the Director's or officer's discretion. As used here, a benefit does not
include: (a) a fee prescribed by law to be received by a Director or officer
or any other benefit to which the Director or officer is lawfully entitled or for
which he or she gives legitimate consideration in a capacity other than as
a Director or officer, (b) a gift or other benefit conferred on account of
kinship or personal, professional or business relationship independent of
the official status of the Director or officer, (c) an honorarium in
consideration for legitimate services rendered above and beyond official
duties and responsibilities if:
(1) not more than one honorarium is received from the same
person in a calendar year;
(2) not more than one honorarium is received for the same
service; and
(3) the value of the honorarium does not exceed $50 exclusive
of reimbursement for travel, food, and lodging expenses
incurred by the Director or officer in performance of the
services;
(d) a benefit consisting of food, lodging, transportation, or entertainment
accepted a guest if reported as may be required by law.
7.4 Bribery: A Director or officer shall not intentionally or knowingly offer,
confer or agree to confer on another, or solicit, accept, ore agree to accept
from another: (a) any benefit as consideration for the Director's or officer's
decision, opinion, recommendation, vote or other exercise of discretion as
a Director or officer; (b) any benefit as consideration for the Director or
officer's decision, vote, recommendation, or other exercise of official
discretion in a judicial or administrative proceeding; or (c) any benefit as
consideration for a violation of duty imposed by law on the Director or
officer.
7.5 Nepotism: No Director or officer shall appoint, or vote for, or confirm the
appointment to any office, position, clerkship, employment or duty, of a
person related within the second degree by affinity or within the third
degree of consanguinity to the Director or officer so appointing, voting or
confirming, or to any other Director or officer. This provision shall not
prevent the appointment, voting for, or confirmation of any person who
shall have been continuously employed in any such office, position,
13
EXHIBIT "B" TO RESOLUTION NO. 01-1~/
clerkship, employment or duty at least thirty (30) days prior to the
appointment of the Director or officer so appointing or voting.
ARTICLE VIII, Miscellaneous Provisions
8.1 Fiscal Year: The fiscal year for the Corporation shall begin October 1 and
end September 30. This fiscal year shall also be referred to as the
Corporation year.
8.2 Seal: The seal of the Corporation shall be such as from time to time may
be approved by the Board.
8.3 Gender: References herein to the masculine gender shall also refer to the
feminine in all appropriate cases, and vice versa.
8.4 Appropriations and Grants: The Corporation shall have the power to
request and accept any appropriation, grant, contribution, donation, or
other form of aid from the federal government, the State, any political
subdivision, or a municipality in the State, or from any other source.
8.5 Amendments: These bylaws may be amended by the Board after notice
of the proposed amendments has been mailed to each Director of the
Board at least ten (10) days prior to the day of the meeting to consider
same. The Board shall recommend such changes, as it deems necessary
or desirable from time to time. Any amended Bylaws shall be signed by
the Chair and attested to by the Secretary. A copy of any amendment
shall be mailed immediately after its adoption to each Member.
8.6 Conflicts of Interest: Each Director, committee member and
subcommittee member shall have an affirmative duty to disclose to the
Board of Directors, the committee or subcommittee (as the case may be)
any actual or potential conflicts of interest between such Director,
committee member or subcommittee member, and the Corporation where,
and to the extent that, such conflicts or potential conflicts directly or
indirectly affect any matter that comes before the Board of Directors, or
any committee or subcommittee. It shall not be a conflict of interest for a
Director, committee member or subcommittee member to express
opinions or vote the interests of the political subdivision Member that
employs that individual.
14