HomeMy WebLinkAboutRES 2008-028 RESOLUTION NO. 2008-28
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, 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 GRAPEVINE; APPROVING PAYMENT OF AN INITIAL
MEMBERSHIP FEE AND PROVIDING AN EFFECTIVE
DATE
WHEREAS, Chapter 304 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, Cities Aggregation Power Project, Inc. ("CAPP") is a political
subdivision corporation organized under said Chapter; and
WHEREAS, more than one hundred cities and other political subdivisions have
joined CAPP since the Texas electric retail market deregulated January, 2002; and
WHEREAS, CAPP member cities and other political subdivisions work
collaboratively with the assistance of legal and procurement experts hired by CAPP to
negotiate lower cost, stable, reliable electric power; and
WHEREAS, the negotiation for electricity by the corporation should result in
lower, more stable electricity costs to the City of Grapevine; and
WHEREAS, the City of Grapevine seeks to become a Member of CAPP; and
WHEREAS, CAPP By-Laws require an initial membership fee of 'A of 1% of the
total annual electric bill of the last full year of billing information available prior to
membership application. Such fee shall not exceed $14,000.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF GRAPEVINE, TEXAS:
Section 1. That 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 2. That the Articles of Incorporation and Bylaws of CAPP, a political
subdivision corporation, attached hereto and incorporated herein for all purposes as
Exhibits "A" and "B" respectively, are hereby approved.
Section 3. That the City of Grapevine accepts Membership in CAPP.
Section 4. That the City of Grapevine approves payment of an initial fee
assessment equivalent to 1/2 of 1% of the total annual electric bill of the City of
Grapevine for the last full year of billing information available prior to membership
application. Such fee shall not exceed $14,000.
Section 5. That the City of Grapevine hereby appoints the Director of Public
Works, or his designee to serve as the City of Grapevine's representative to the
corporation and to act on the City of Grapevine's behalf.
Section 6. That all resolutions and parts thereof in conflict herewith are hereby
expressly repealed insofar as they conflict herewith.
Section 7. That if any one or more sections or clauses of this resolution is
adjudged to be unconstitutional or invalid, such judgment shall not affect, impair or
invalidate the remaining provisions of this resolution and the remaining provisions of the
resolution shall be interpreted as if the offending section or clause never existed.
Section 8. That a copy of this resolution shall be sent to Jay Doegey, CAPP
Board Chair, c/o City of Arlington City Attorney's Office, MS 63-0300, P.O. Box 90231,
Arlington, Texas 76004-3231, along with the initial assessment fee.
Section 9. That this resolution shall take effect from and after the date of its
passage.
PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF
GRAPEVINE, TEXAS on this the 5th day of August, 2008.
APPROVED:
William D. Tate
Mayor
41
RES. NO. 2008-28 2
ATTEST:
431
Linda Huff
City Secretary
APPROVED AS TO FORM:
Matthew Boyle
City Attorney
RES. NO. 2008-28 3
Corporations Section PTE Roger Williams
P.O.Box 13697 � ,. Secretary of State
Austin,Texas 78711-3697 �e -p- �l tr
EXHIBIT "A" TO RES. 2008-28
PAGE 1 OF 4
Office of the Secretary of State
CERTIFICATE OF AMENDMENT
OF
CITIES AGGREGATION POWER PROJECT, INC.
162172001
The undersigned, as Secretary of State of Texas,hereby certifies that the attached Articles of Amendment
for the above named entity have been received in this office and have been found to conform to law.
ACCORDINGLY the undersigned, as Secretary of State, and by virtue of the authority vested in the
Secretary by law hereby issues this Certificate of Amendment.
Dated: 10/06/2006
Effective: 10/06/2006
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•G��'•.� Roger Williams
Secretary of State
Come visit us on the internet at http://www.sos.state.tx.us/
Phone:(512)463-5555 Fax: (512)463-5709 TTY: 7-1-1
Prepared by:Pat Cantrell Document: 146856340002
EXHIBIT "A" TO RES. 2008-28 FILED
PAGE 2 OF 4 In the Office of the
Secretary of State of Texas
ARTICLES OF AMENDMENT OCT 0 6 2006
OF Corporations Section
CITIES AGGREGATION POWER PROJECT, INC.
Pursuant to the provisions of article 1396-4.03 of the Texas Non-Profit Corporation Act,
the undersigned corporation adopts the following Articles of Amendment:
1. The Name of the Corporation is Cities Aggregation Power Project,Inc.
2. The following amendments to the Articles of Incorporation were adopted on
October 6,2005. The following Articles Three and Four were added to read as follows:
ARTICLE THREE
The corporation is a non-profit political subdivision corporation under Chapter 304,
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 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, and for all other purposes as may be permitted by
law for political subdivision corporations. No part of the net earnings of the corporation shall
inure to the benefit of or be distributable to, its directors, officers, or other private persons,
EXHIBIT "A" TO RES. 2008-28
PAGE 3 OF 4
except that the corporation shall be authorized and empowered to pay reasonable compensation
for services rendered and to make payments and distributions in furtherance of the purposes set
forth in this Article. The corporation hereby pledges all of its assets for use solely in performing
the corporation's aforementioned purposes. Upon dissolution of the corporation, (1) all liabilities
and obligations of the corporation shall be paid, satisfied, and discharged, (2) all assets held by
the corporation upon a condition requiring return, transfer or conveyance, which condition
occurs because of the corporation's dissolution, shall be returned, transferred or conveyed in
accordance with such requirements and (3) all remaining assets of the corporation shall be
distributed to the corporation's members,pursuant to a plan of distribution adopted by the Board
of Directors.
3. The amendment was adopted at a meeting of members held on October 6,2005, at
which a quorum was present, and the amendment received at least two-thirds of the votes which
members present or represented by proxy were entitled to case.
The undersigned incorporator,who is over the age of eighteen(18) and is a citizen of the State of
Texas, signs these Articles of Incorporation subject to the penalty imposed by Article 9.03A,
Texas Non-Profit Corporation Act.
d
®\W
Jay Dot&y,'Chai :i v
Cities Aggregation Power Project,Inc.
EXHIBIT "A" TO RES. 2008-28
PAGE 4 OF 4
THE STATE OF TEXAS §
COUNTY O §
BEFORE ME, a notary public, on this day personally appearedy Deey 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 d2g1A2006.
Notary Public, State of Texas
PAT L.SINN UM y p /O3 � '9
MY COMMI881oN EXPIRES M Commission Expires: �Y
a Msy 3,
Revised April 2005
BYLAWS EXHIBIT "B" TO RES. 2008-28
OF PAGE 1OF13
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 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.
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. A Nominating Steering Committee shall be
appointed by the chair and shall assemble and publish said nominations for a vote of the
membership. 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. Nominations for Board positions are open
EXHIBIT "B" TO RES. 2008-28
PAGE 2 OF 13
to the entire membership. From the nominations so made and no others, and from the
slate presented by the Nominating Steering Committee to the Board, Directors shall be f'
elected, and the person or persons receiving the highest number of votes shall be declared
Mfitow0 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 Board of Directors shall consist of 10 members. Places 1, 2, 3, 4, 5, 6 and 10
will be selected by electricity consumption through CAPP. "At Large" places 7, 8 and 9,
will be filled with the candidate receiving the highest votes after the board places are
filled for places 1, 2, 3, 4, 5, 6 and 10. The Board shall appoint a nominating committee
which shall divide the membership by kWh usage through CAPP. Directors serving in
place numbers that are odd shall be elected in odd numbered years and directors serving
in place numbers that are even shall be elected in even numbered year.
The usage allocation will be determined as follows:
Places 1 and 2 30 million kWh, but less than 350 million kWh
Places 3 and 4 At least 15 million kWh, but less than 30
million kWh
Places 5 and 6 Less than 15 million kWh
Places 7,8,9 At Large
Place 10 350 million kWh, or more
The number of Directors may be increased or decreased by resolution of the Board, but
no increase shall have the effect of shortening the term of an incumbent Director.
(c) Only the CAPP member's officially designated CAPP representative is entitled to vote.
One vote shall be cast for each place on the ballot and no more than one vote may be cast
for the same nominee. If voting results in a tie vote for any Board Place, the Chairman
will call for a run-off election. Each CAPP Representative will be asked to cast one vote
per Board Place. The member receiving the most votes will be declared the winner.
(d) Each Director of the Board must be an elected 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
an official or full-time salaried employee of 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
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EXHIBIT "B" TO RES. 2008-28
PAGE 3 OF 13
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 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 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 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.
2.8 Voting; Quorums. A majority of the number 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; any such delegation shall be by written instrument filed in the records of the
Corporation.
2.9 Notice of Meetings. 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
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EXHIBIT "B" TO RES. 2008-28
PAGE 4 OF 13
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.
2.11 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 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.
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:
(a) 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.
(b) 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.
(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 in 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 convenient 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.
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EXHIBIT "B" TO RES. 2008-28
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(1) It shall have the authority to terminate membership of any 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.
(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 Board may appoint
such other officers, assistant officers, committees and agents, including a treasurer,
assistant secretaries 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 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 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 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 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,
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EXHIBIT "B" TO RES. 2008-28
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management and control of the properties, business and operations of the Corporation
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
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 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 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 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 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
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 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
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EXHIBIT "B" TO RES. 2008-28
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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
4 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 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. Each Member shall be entitled to
one vote in any regular or special meeting of the members upon all matters of business.
Such vote 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.
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 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 principal
office of the Corporation in Texas.
4.8 Notice of Meeting: Voting by Ballots Forwarded by Mail. (a) Written or printed notice
stating the place, day and hour of the meeting, and, in 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, e-mail,
facsimile 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
k, 7
EXHIBIT "B" TO RES. 2008-28
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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 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 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 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 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 'A of 1% of the
total annual electric bill of the last full year of billing information available prior to
membership application. Such fee shall not exceed $14,000. The initial fee will be
credited against future administrative fees. 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 by-laws 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 RES. 2008-28
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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.
Irv; =.gr
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 reasonably 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 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
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
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.
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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 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 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 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 Savings 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.
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.
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(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.
7.2 Conflicts of Interest. (a) Except as provided in subsection(c), 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
benefitted by the action. A person has a substantial interest in a business (i) if his 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 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 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 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.
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:
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EXHIBIT "B" TO RES. 2008-28
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(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 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:
(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
asa 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, or 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 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 prior to the appointment of the Director or
officer so appointing or voting.
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ARTICLE VIII. Miscellaneous Provisions
8.1 Fiscal Year. The fiscal year for the Corporation shall begin January 1 and end December
31. 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 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.
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