HomeMy WebLinkAboutResolution 2740A Resolution
NO a7~
A RESOLUTION APPROVING THE ARTICLES OF INCORPORATION AND
BYLAWS OF CITIES AGGREGATION POWER PROJECT, INC., A
POLITICAL SUBDIVISION CORPORATION, ACCEPTING MEMBERSHIP IN
SUCH CORPORATION, APPOINTING A REPRESENTATIVE TO SERVE ON
BEHALF OF THE CITY OF FORT WORTH, APPROVING PAYMENT OF AN
INITIAL MEMBERSHIP FEE, AND ESTABLISHING 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 thie political subdivisions for which the corporation is created, with respect to their own electricity use
for their respective public facilities and
WHEREAS Cities Aggregation Power Project, Inc. is a political subdivision corporation
organized under said Chapter and
WHEREAS, the negotiation for electricity by the corporation should result m lower electricity
costs to the City of Fort Worth, and
WHEREAS, the TXU Cities Steering Committee has participated m numerous rate proceedings
and rulemakmgs over the course of the last decade and having investigated the impacts of electric
deregulation, recommends participation of cities m aggregation projects and the creation of a political
subdivision corporation to maximize opportunities for cost savings,
WHEREAS, the TXU Cities Steering Committee has facilitated the creation of Cities
Aggregation Power Project, Inc and
WHEREAS, the City of Fort Worth seeks to become a Member of Cities Aggregation Power
Project, Inc and
WHEREAS, the Bylaws of Cities Aggregation Power Project, Inc. require an initial membership
fee of/~ of 1 % of the total annual electric bill of 2000 Such fee shall not exceed $14 000
NOW THEREFORE, BE IT RESOLVED B'Y THE CITY COUNCIL OF THE
^ITY OF FORT WORTH, THAT
Section 1 The recitals contained m the preamble of this Resolution aze determined to be true
and correct and are hereby adopted as a part of this Resolution.
Section 2 The Articles of Incorporation and Bylaws of Cities Aggregation Power Project, Inc., a
political subdivision corporation, attached hereto and incorporated herein for all purposes as Exhibits A
and B respectively are hereby approved.
Section 3 The City of Fort Worth accepts membership m Cities Aggregation Power Project, Inc.
Section 4 The City Council approves payment of an imtial fee assessment equivalent to %z of 1%
of the total annual electric bill The City of Fort Worth in the year 2000 Such fee shall not exceed
$14 000
Section 5 City Council hereby appoints the Crty Manager or his designee to serve as Fort
Worth s representative to the corporation and to act on Fort Worth's behalf.
Section 6 This Resolution shall take effect immediately from and after its adoption.
AND IT IS SO RESOLVED
Adopted this _'~_(,~ day of ___ 2001
EXIiIBIT "A
•
(`~~e ~St~~P of C~ex~~
SECRETAR Y OF STATE
CERTIFICATE OF INCORPORATION
OF
CITIES AGGREGATION POWER PROJECT, INC.
FILE NUMBER 1621720-O1
'he undersigned, as Secretary of State of Texas, hereby certifies that Articles of
"incorporation for the above corporation, duly signed and verified pursuant to the
provisions of Chapter 303, Texas Local Government Code, have been received in this office
and are found to conform to law
ACCORDINGLY, the undersigned, as such Secretary of State, and by virtue of the
authority vested in the Secretary by law, hereby issues this Certificate of Incorporation and
attaches hereto a copy of the Articles of Incorporation.
Dated. March 14, 2001
las
Henry Cuellar
Secretary of State
Fii.ED
In the Office of the
Secretary of State of Texas
ARTICLES OF INCORPORATION MAR 14 2001
OF
Corporations Section
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 pohtrcal 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 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 then citizens, negotiating on behalf of its members for the purchase of
electricity malang contracts for the purchase of electricity and tiling any other actions
necessary to purchase electricity for use in the public facilities of the political subdivision or
subdivisions represented by the corporation, and for all other purposes as may be permitted by
law for political subdivision corporations.
C~
i AR~'ICLE FIVE
The street address for the corporation s initial registered office is Lloyd, Gosselmk, Blevins,
Rochelle, Baldwin & Townsend, P C., 111 Congress Avenue, Suite 1800, Austin, Texas 78701,
and the registered agent for the corporation. at this address is Geoffrey M. Gay
ARTICLE SIX
The corporation shall have members. Membership shall be determined under the terms and
condirions provided in the corporation s bylaws.
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
ongmal number of directors shall be three (3). The names and addresses of the persons who are ~i
to serve as Directors of the corporation until their successors are duly elected and qualified are:
1 Jay Doegey
City of Arlington
201 East Abram Dnve
State 300
Arlington, Texas 76010
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
2
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. The
governing bodies of at least three political subdivisions have approved these articles and the
bylaws of Cities Aggxegahon Power Project, Inc. by resolution, ordinance or order
ARTICLE rTINE
The names and addresses of the incorporators aze:
1 Jay Doegey
City of Arlington
201 East Abram Dnve
State 300
Arlington, Texas 76010
2. Danny Reed
• City of Fort Worth
1000 Throclanorton
` Fort Worth, Texas 76102
3 Steven L. Bacchus
City of Lewisville
P O Box 299002
Lewisville, Texas 75029-9002
•
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'lie rsndcrsigncd incorporator who is over the age of eighteen (] 8) and is a citizen of ffie State of
Texas, signs these Articles of Incorporat~an subject to the penalty imposed by Article 9 03A,
1'cxas Non-Profit Corporation Act..
Jay g y
THE STATE Oh' TEXAS §
COUNTY OF~ ~rQ §
BEFORE ME, a notary public, on 'this day personally appearcd~~ known to me to
be the person whose name is subscribed to the foregoing document and, beru by me first duly
sworn, declared that the statements therein contained arc true and correct
Given trader my hand and seal of office this ~1~ day of br~ 2001
~` v ~ SETlYE KAREN KEMPER ~,~,~_~ -~~"'~_
t Notary Pubik ~-
sr~rE of ~xAS Notary Public, Stare of Texas
~ ~ My Comm. Erp. o~2orzooz My Commissiaa Exprres: ~~'O /at~o ~--
•
4
• The undersigned incorporator, who is over the age of eighteen (l 8) and is a citizen of the State of
Texas, signs these Articles of Incorporation subject to the penalty imposed by Article 9.03A,
Texas NoirPre fit Corporshon Act.
Danny Reed
THE STATE C>F TEXAS
COUNTY OF I`/_.~
BEFOPE ME, a notary public, oq~ this day personally appeared ~.~ known to
me to be the p~;rson whose name is subscribed to the foregoing document and, being by me first
duly sworn, de~_lared that the statements therein contained are true and correct.
Given u nder my hand and seal of office this ~~day of ~I~.~•. 2041
..o.
I_Ol5 O. THREATT
i ~ i ~'y~
STATE 0~ TF1(A8
M r Ate. ~. 1o~OBf20D1
Public, State of Texas
M.y Commission Expires. ~D ' !~~-!J /
S
• 'i'he undersigned mcozporator, who is over the age of eighteen, (18} and is a citizen of the State of
exas, signs these ,Articles of Incorporation subject to the penalty imposed by Article 9 03A,
Texas Non-Profit Corporation Act.
Steven ~.. Bacchus
TITE STATE OF TEXAS §
COUN"IY OF D2r,kdn §
BEFORE ME, a notary public, on this day personally appeared 5+-eva., 1 R.,=1,.,slaiown to
me to be the person whose name is subscribed to the foregoing document and, bung by me first duly
swots, declared t1~at the statements therein contained are true and corzect.
Given under my hand and seal of offace this k-1. day of (Ylar~~, 2001
st~x.o'9u~rt ~L~3--~--0
- Mrcoar~vss~or~ oc~s~s Notary Public, State of Texas
~-r6'zoos My Commission Expires: ~ 111 G, 1n ~
6
E~IIBIT 'B
• BYLAWS
OF
CITIES AGGREGATION
POWER PROJECT, INC.
ARTICLE I. Name and Purpose
1 1 Name. This corporation shall be known as Cities Aggregation Power Project, Inc
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 Chau on the board and such other
directors as required for the performance of dunes.
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 m 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.
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,
2
• and filed with the Secretary of the Corporation at least sixty (60) days pnor to the date of
the meeting at which said nomnations 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 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 dul
Y
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 greater than 100 000 but not greater
than 500 000 will be guaranteed one seat for the group
• all participating cities with a population greater than 50 000 but not greater
than 100 000 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
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• the remauung board members necessary to bnng 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 deterrruned 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 m place
numbers that are odd elected m odd numbered years and those serving m place numbers
that are even elected in even numbered years, except that the initial even place numbered
directors will stand for re-election after one year
(d) Except for the mrtial Board, each Director of the Board must be an official or full
time salaned employee of a Member Any Director who is an official or full-time
salaned employee of an entity that ceases to be a Member participant of the Corporation,
and any Director who ceases to be an official or full-time salaned employee of a
Member shall be automatically disqualified to serve as a Director and the position shall
become vacant, such vacancy to be filled m 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 ma~onty 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 wntten
4
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 wntten 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 occumng In the Board may be filled by the
affirmative vote of a ma~onty 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 affinnahve vote of a ma~onty of the Directors
then m office. A Director chosen to fill a position resulting from an increase m the
• number of Directors shall hold office until the next annual meeting of Members, at which
time a successor shall be elected to serve until the expiration date set for his or her
designated place.
2.6 Regular Meetings. A regular meeting of the Board shall be held annually m 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 Boazd may be called by the Chair of the Boazd
or at the wntten request of any two Directors. The person or persons authonzed 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 pnncipal office of
the Corporation in Texas.
2.8 Voting; Quorums. A ma~onty of the number of Directors described m by Section 2.3
shall constitute a quorum for the transaction of business. The act of the ma~onty 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
m part, temporanly or permanently to any Director or committee of Directors then
acting;. any such delegation shall be by wntten instrument filed in the records of the
• . Corporation.
2.9 Notice of Meetings. Nonce 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
appropnate 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 m wntmg, setting forth the action so
6
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 unanunous vote of the
Directors.
2.11 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 authonzed 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 a omt an Executive Committee of
PP
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 authonzed to form any committees as needed in order to
assist the Board with its information gathering and deliberations.
2.15 Specific Powers and Duties. The Board, m addition to other powers and duties herein
conferred, imposed, and authonzed by law shall have the following powers and duties.
•
(a) It shall carry out all of the duties necessary for the proper operation and
admimstration of the Corporation on behalf of the Members and to that end shall have all
of the powers necessary and desirable for the effective admimstration of the affairs of the
Corporation.
(b) It shall be authorized to contract with any qualified individual, firm or
organization to perform any of the functions necessary for the effective admmnstration or
operation of the Corporation, or to provide for the fiscal protection of the Corporation or
m keeping with its fiduciary responsibilities as Directors.
(c) 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 m the contract for hire as executed by the Chair of the Board.
(d) It shall have the general power to make and enter into all contracts, leases and
agreements necessary or convement to carry out any of the powers granted under these
bylaws or by any other law
(e) 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.
• e
(f) It shall have the authonty to tennmate membership of any Member that fails to
abide by the reasonable requirements of the Boazd concerning payment of annual dues or
aggregation fees as provided m Article V cooperate with any of the agents lured to
provide adnunistrative services on behalf of the Board, or takes any other action that may
be detrinental to the Corporation.
(g) It may collect interest on all past due accounts not to exceed the amounts allowed
under applicable law
ARTICLE III. 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 Boazd may appoint
such other officers, assistant officers, committees and agents, including a treasurer
assistant secretanes and assistant treasurers, as they may 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 Boazd. No person may
simultaneously hold two offices. In all cases where the dunes of any officer agent or
employee are not prescribed by the bylaws or by the Boazd, such officer agent or
employee shall follow the orders and instructions of the Chair of the Boazd.
• 9
3.2 Election, Tenure. The Chair of the Boazd, the Vice-Chair and the Secretary shall be
elected at the organizational meetmg 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 meetmg may be
conveniently convened. Other officers may be chosen by the Directors at such meeting
or at any other time. Each officer shall hod office until the first of the following occur
until lus or her successor shall have been duly elected and shall have qualified, or until
lus 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 m the manner
hereinafter provided.
3.3 Removal. Any officer or agent maybe removed by ma~onty 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 heanng need be 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 nghts.
3 4 Vacancies. A vacancy in any office, however occumng, 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
10
• with all such powers as may be reasonably incident to such responsibilities, may agree
} upon and execute all leases, contracts, evidences of indebtedness and other obligations in
the name of the Corporation, and shall have such other powers and duties as designated
m accordance with these bylaws and as from time to time may be assigned to nun or her
by the Board. He or she shall preside at all meetings of the Members and 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 or by the Board. In the absence of the Chair the
Vice-Chair shall have the powers and perform the dunes 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 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 contaimng 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 he maybe assigned to loin or her by the Chair or 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
11
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 shall be entitled to reimbursement of expenses for
attendance at official meetings of and official functions for the Corporation.
ARTICLE IV Membership
4 1 Eh ibih Any political subdivision that approves the Articles of Incorporation and
these Bylaws by ordinance, resolution, or order adopted by the govermng body of the
political subdivision and .that purchases electncity for one or more of their respective
public facilities is eligible for membership in Cities Aggregation Power Project, Inc
subject to the nght of the Board to determine eligibility and conditions of membership,
and subject further to the authonty of the Board to terminate membership of any Member
as provided herein, or m any agreement made between the Member and the Corporation.
4.2 Representation. Each Member shall appoint, by formal action by its govermng body a
representative to act for it at the meetings of Members and shall give to the chair of the
Board of Directors in venting 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
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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 m 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 Board of Directors and shall have no 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 Voting 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 matters of business, which vote or votes may be exercised in person or by mail
by a representative of the Member duly authorized m 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 nonce 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
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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 Meetings. 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 pnncipal
office of the Corporation in Texas.
4 8 Notice of Meeting: Voting by Ballots Forwarded by Mail. (a) Wntten or panted notice
stating the place, day and hour of the meeting, and, m 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.
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(b) Whenever notice is required in this Section 4 8 of Article IV a waiver thereof m
venting 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 nonce of such meeting unless the Member at the beginning of the
meeting, objects to the holding of the meeting 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 obi ects to considenng the matter when it is presented.
4 9 uonun. A quorum for the election of Directors, and conducting normal business at all
meetings of the Members shall be twenty five percent of the Members present m 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 venting, 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.
• 15
•
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
combmahon of both as determined appropriate by the Board of Directors.
5.2 Irrrtial Membership. Fee. The antral membership fee shall be based upon '/z 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 rs
permissible for political subdivisions to pay the fee prior to formally ~ommg the
corporation and be credited with payment of the fee after a resolution approving the
articles of incorporation and by laws rs passed by the political subdivision.
5.3 Board Authon 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.
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.
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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 mdrvidual employees.
ARTICLE VI. Indemnification
6 1 Liabih A Director officer employee or agent of the Corporation who performs his or
her duties in good faith, in a manner he or she reasonably believes to be in the best
interests of the Corporation, and with such care as an ordinarily prudent person m 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 any 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 WHO, WHILE A
DIRECTOR, OFFICER, EMPLOYEE OR AGENT OF THE CORPORATION, IS
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OR WAS SERVING AT ITS REQUEST AS A DIRECTOR, OFFICER,
PARTNER, VENTURER, PROPRIETOR, 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 PROFIT CORPORATION ACT OR ANY SUCCESSOR
STATUTORY PROVISION, AS FROM TIME TO TIME AMENDED, SUCH
ARTICLE OR SUCCESSOR PROVISION, AS SO AMENDED, BEING
J
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 OTHER
ARRANGEMENT IT IS EXPRESSLY ACKNOWLEDGED THAT THE
INDEMNIFICATION PROVIDED IN THIS ARTICLE COULD INVOLVE
INDEMNIFICATION FOR NEGLIGENCE OR UNDER THEORIES OF STRICT
LIABILITY
6.3 Advance Payment. The nght to mdemmfication conferred m this Article VI shall include
the nght to be paid m 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
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is threatened to be made a named defendant or respondent m 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 m advance of the final disposition of a proceeding,
shall be made only upon delivery to the Corporation of a wntten affirmation by such
Director or officer of lus or her good faith belief that he or she has met the standard of
conduct necessary for mdemmfication under this Article VI and a wntten undertaking, by
or on behalf of such person, to repay all amounts so advanced if it shall ultimately be
determined that such mdemmfied 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 m
connection with his or her appearance as a witness or other participation in a proceeding
involving the Corporation or its business at a time when he or she is not a named
defendant or respondent m the proceeding.
6.5 Non-exclusivity of Rights. The nght to indemnification and the advancement and
payment of expenses conferred in this Article VI shall not be exclusive of any other nght
which a Director or officer or other person indemmfied 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.
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6 6 Savings Clause. If this Article VI or any portion hereof shall be invalidated on any
ground by any court of competent ~unsdiction, then the Corporation shall nevertheless
indemmfy and hold harmless each Director officer or any other person indemmfied
pursuant to this Article VI as to costs, charges and expenses (including attorneys fees),
judgments, fines and m amounts paid m settlement with respect to any action, suit or
proceeding, whether civil, cnmmal, admmistrahve or investigative, to the full extent
pennrtted by any applicable portion of this Article VI that shall not have been invalidated
and to the fullest extent permitted by applicable law
ARTICLE VII. Code Of Conduct
7 1 Policy and Purposes. (a) It is the policy of the Corporation that Directors and
officers conduct themselves m a manner consistent with sound business and ethical
practices, that the public interest always be considered m conducting corporate business,
that the appearance of impropnety 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 d;scnmination.
(b) This Code of Ethics has been adopted as part of the Corporation's Bylaws for the
following purposes: (a) to encourage high ethical standards in official conduct by
Directors and corporate officers, and (b) to establish guidelines for such ethical standards
of conduct.
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7.2 Conflicts of Interest. (a) Except as provided in subsection (c), a Director or officer is
prohibited from participating m a vote, decision, or award of a contract involving a
business entity or real property m which the Director or the officer has a substantial
interest, if it is foreseeable that the business entity or real property will be econornically
benefitted by the action. A person has a substantial interest m a busmess (i) if lis or her
ownership interest is ten 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 percent of the person's gross income. A
person has a substantial interest m 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 m
the first degree by affinity (mamage 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 m a business entity or real property
that would be pecuniarily affected by any 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 Boazd.
(c) A Director who has a substantial interest m a busmess 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 similaz interest m the same action or if all other similar busmess entities m
the Corporation will receive a similaz pecuniary benefit.
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(d) An employee of a public entity may serve on the Boazd. It is specifically
recognized that as an official or employee of a public entity that person s pnmary 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 Boazd member represents.
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 m 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 legitiamate
consideration m a capacity other than as a Director or officer
(b) a gift or other benefit conferred on account of kinship or a 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
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(1) not more than one honoranum is received from the same person m a
calendar year
(2) not more than one honoranum is received for the same service• and
(3) the value of the honoranum does not exceed $50 exclusive of
reimbursement for travel, food, and lodging expenses incurred by the
Director or officer m performance of the services,
(d) a benefit consisting of food, lodging, transportation, or entertainment accepted as
a guest if reported as maybe 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, or agree to accept from another
(a) any benefit as consideration for the Director's or officer's decision, opimon,
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 m a judicial or administrative
proceeding; or
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,~ (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 an 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, clerkship,
employment or duty at least thirty (30) days pnor 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
appropnate cases, and vice versa.
•
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,_
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8 4 Appropnations and Grants. The Corporation shall have the power to request and accept
any appropnahon, grant, contribution, donation, or other form of aid from the federal
government, the State, any political subdivision, or mumcipahty 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 pnor to
the day of the meeting to consider same. The Board shall recommend such changes as rt
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
y 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.
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