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R2011-019 - 2011-02-14ATTEST: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, APPROVING THE SECOND AMENDED BYLAWS OF THE PEARLAND ECONOMIC DEVELOPMENT CORPORATION. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That certain Second Amended Bylaws of the Pearland Economic Development Corporation, a copy of which is attached hereto as Exhibit "A" and made a part hereof for all purposes, is hereby authorized and approved. PASSED, APPROVED and ADOPTED this the 14 day of February, A.D., 2011. APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY RESOLUTION NO. R2011 -19 TOM REID MAYOR SECOND AMENDED CORPORATE BYLAWS OF THE PEARLAND ECONOMIC DEVELOPMENT CORPORATION These Bylaws govern the affairs of the Pearland Economic Development Corporation (the Corporation), a public instrumentality and a non -profit corporation created pursuant to Chapter 505 of the Texas Local Government Code, the Development Corporation Act, as amended (the Act), by the City Council of the City of Pearland (the City Council) to act on behalf of the City of Pearland (City). ARTICLE I. PURPOSE 1.01. The Purpose of the Corporation is to promote, assist, and enhance economic development activities and quality of life opportunities within the City and its extraterritorial jurisdiction that promote economic development as authorized by the Act. The Corporation has no members and is a non -stock corporation. 1.02. The Corporation shall have and exercise all of the rights, powers, privileges, authority and functions given by the general laws of Texas to non - profit corporations incorporated under the Act including, without limitation, Article 1396 -1.01, et seq., Tex. Rev. Civ. Stat. Ann., as amended. 1.03. The Corporation shall have all other powers of a like or different nature not prohibited by law which are available to non - profit corporations in Texas and corporations created under the Act and which are necessary or useful to enable the Corporation to perform the purposes for which it is created, including, but not limited to, the power to issue bonds, notes, or other obligations, and otherwise exercise its borrowing power to accomplish the purposes for which it was created. 1.04. The Corporation is created as a local government corporation pursuant to the Act and shall be a governmental unit within the meaning of Subdivision (2), Section 101.001, of the Texas Civil Practices and Remedies Code, as amended. The operations of the Corporation are governmental and not proprietary functions for the purposes of the Texas Tort Claims Act, Section 101.001 et seq., of the Texas Civil Practices and Remedies Code, as amended. ARTICLE II. REGISTERED OFFICE AND AGENT 2.01. The registered agent for the Corporation shall be the Corporation's President. The registered office for the Corporation shall be within the boundaries of the City of Pearland. The Board of Directors (the Board) may move its administrative office or establish additional offices with the prior approval of the City Council. ARTICLE III. BOARD OF DIRECTORS Powers 3.01. The Corporation shall be managed by a Board of Directors which is authorized to exercise the powers authorized by the Act, subject to any limitations of these bylaws, including the following: a. To purchase or acquire for the Corporation any property, rights, or privileges and to pay therefore either wholly or partly in money, bonds, debentures, or other securities of the Corporation as may be lawful. b. To create, make and issue notes, mortgages, bonds, deeds of trust, trust agreements and negotiable or transferrable instruments and securities, secured by a mortgage or deed of trust on any real property of the Corporation or otherwise, and to do every other act or thing necessary to effect the same. c. To sell or lease the real or personal property of the Corporation on the terms the Board sees fit and to execute deeds, leases, and other conveyances or contracts as necessary for carrying out the purpose of this Corporation. Duties 3.02. Directors shall exercise ordinary business judgment in managing the affairs of the Corporation. In acting in their official capacity, directors shall act in good faith and take actions they reasonably believe to be in the best interests of the Corporation and which are lawful. The Board is further required to perform the following duties: a. Program. Simultaneous with development of the Corporation's Annual Budget, the Board shall cause to be prepared an Economic Development Plan (the Plan) and submit it to the City Council for its approval. The Plan shall include: 1. The short- and long -term objectives of the Corporation and how they might be achieved, including specific details of proposed efforts or programs to achieve those objectives; 2. Guidelines for how the Corporation proposes to use the sales and use tax funds received by the Corporation to achieve its objectives, including any limitations on the use of funds; and, 3. Any other information the City Council requests in writing be included in the Plan. b. Reports to City Council. With each annual submission of the Plan to the City Council, Page 2 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 and at any other times requested by the City Council, the Corporation shall submit a written Performance Report, detailing the activities and accomplishments of the Corporation since the prior Report. c. Briefings. The President shall appear before the City Council as requested, but no less than once per year, to brief the City Council on activities of the Corporation. d. Budget. At least sixty (60) days prior to commencement of each fiscal year, the Board shall adopt a proposed budget of expected revenues and proposed expenditures of the next ensuing fiscal year. The budget shall contain such classifications and shall be in such form as may be prescribed from time to time by the Finance Department of the City of Pearland. The Corporation budget shall not be effective until the same has been approved by the City Council. Number and Qualifications 3.03. The Board shall consist of seven (7) persons, who shall be appointed by the City Council. No Director shall be a person who is a City employee, City Councilmember, or any other publicly elected official, Chamber of Commerce director, or member of any City boards. 3.04. Each director shall be a resident of the City of Pearland. Term 3.05. Directors shall be appointed to serve two (2) year terms of office, and appointments or reappointments for expired terms shall occ . • : - -- : - !' of the year in which the term expires. In the event an appointment or reappointment of a Director is not made prior to the expiration of a term in conformance with this section, the Director whose term has expired mays 11 be allowed to continue serving in that position until an appointment or reappointment is made. Directors mayshall be eligible for reappointment without limit to the number of terms served. Directors serve at the pleasure of the City Council and are removable by a majority vote of the City Council at any time, with or without cause. Attendance 3.06. Directorship in the Corporation shall be accompanied by active participation in the activities of the Board, and any director who is absent from three (3) consecutive meetings of the Board without valid excuse as determined by the Board, shall automatically be dismissed from directorship. The Board shall at once notify the City Council that a vacancy on the Board exists. Vacancies 3.07. Vacancies on the Board shall be filled by appointment by the City Council within ninety (90) days from the date the v acancy was created, and the Board may make recommendations to the City council on proposed appointments. Any Director or officer may resign at any time. Such resignation shall be made in writing, delivered to the President, and shall take effect at the time Page 3 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 specified therein; or if no time is specified, at the time of receipt by the President. The acceptance of a resignation shall not be necessary to make it effective, and the City Council shall be promptly informed of any resignation. Non - Voting Directors; 3.08. The Mayor, City Manager, President of the Corporation, and the President/CEO of the Pearland Chamber of Commerce shall serve as non- voting directors of the Board. The Board may appoint additional non - voting directors subject to approval of the City Council. Such additional non - voting directors shall serve a term of one (1) year or until their successors are appointed, shall be given notice of all meetings of the Board, and may participate in discussions at Board meetings, but shall not be entitled to vote. Non- voting directors may participate in executive sessions at the request of the Board. Non- voting directors need not reside in the City. Compensation 3.09. The Directors shall not receive any salary or compensation for their services. However, Directors shall be reimbursed for their actual and reasonable expenses incurred in the performance of their duties, including but not limited to the cost of travel, lodging and incidental expenses reasonably related to the corporate duties of the Board. Travel expenses incurred by directors to attend regular and special meetings are not eligible for reimbursement. ARTICLE IV. OFFICERS Officer Positions 4.01. The officers of the Corporation shall be a Chair, a Vice Chair and a Secretary, whom shall be members of the Board. The Board may elect other officers as the City Council deems necessary. Any two (2) or more offices may be held by the same person except the offices of the president and secretary. Election and Terms of Office 4.02. The Chair, Vice Chair, Secretary and any other officers the City Council deems necessary shall be elected annually by the Board and vacancies in these officer positions may be filled by the Board for the unexpired terms. Each officer shall hold office until a successor is duly elected and qualified. All officers shall be subject to removal, with or without cause, at any time by a vote of a majority of the whole Board. Chair 4.03. The Chair shall be the chief executive officer of the Corporation, and shall preside at all Board meetings. The Chair shall supervise and control the business and affairs of the Corporation and perform any other duties prescribed from time to time by the Board. The Chair Page 4 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 shall have the right to vote on all matters coming before the Board, and may execute deeds, mortgages, bonds, contracts or other instruments, as authorized by the Board. The Chair shall appoint the members of all committees and all committee chairs. Vice Chair 4.04. The Vice Chair shall perform the duties assigned by the Board. In the absence of the Chair, or if the Chair is unable or refuses to act, the Vice Chair shall perform the duties of Chair. Secretary 4.05. The Secretary shall be the custodian of the Corporate records, and shall record and keep all votes and minutes of the meetings of the Board. The Secretary shall give notice of all meetings of the Board and its committees, and shall perform such other duties as may be prescribed by the Chair or the Board. The Chair may, in the absence of the Secretary, appoint any member of the Board to serve as an interim Secretary to carry out the duties described herein. An Assistant Secretary shall assist the secretary in performance of his or her duties. President 4.06. The City Manager, in consultation with the Board, may employ a President to serve as the general manager and chief administrative officer of the Corporation. The President shall be subject to the supervision of the City Manager and shall perform the duties specifically delegated to him or her by the Board, and such other economic development duties as assigned by the City Manager. The President shall serve at the pleasure of the City Manager and receive compensation from the funds of the Corporation approved by him or her in consultation with the Board. All incentive or merit provisions must be approved by the City Manager and a majority of the Board. The President shall be responsible for policy and program implementation and the day to day operations of the Corporation, including the hiring of employees, and the supervision and dismissal of those employees. The President shall compile and submit to the Board regular reports and recommendations regarding the programs, policies, and business affairs of the Corporation. The President shall be an employee of the City of Pearland. Assistant Secretary and Legal Counsel 4.07. A staff member of the Corporation shall serve as an Assistant Secretary to assist the Secretary and the Board in the conduct of the affairs of the Corporation. The City Attorney, or such other attorneys selected by the City Attorney with the approval of the City Council, shall represent the Corporation in all litigation. The City Attorney, or his designee, shall be the legal advisor of, attorney and counsel for, the Corporation and all officers thereof, in conformance with the City Charter, as amended. The Assistant Secretary and City Attorney shall be employees of the City. Page 5 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 ARTICLE V. BOARD COMMITTEES 5.01. The Chair may appoint persons to serve on standing or ad hoc committees, but in no event shall a committee consist of more than two (2) Directors. A committee may include persons who are not Directors of the Corporation and who may not reside in the City. Committees will operate under general rules adopted by the Board. Committees may be charged with specific duties or authority, but shall not have the authority to: a. Amend the articles of incorporation, amend, alter, or repeal the bylaws, or adopt a plan of merger or consolidation with another corporation. b. Authorize the sale, lease, exchange or mortgage of any of the property or assets of the Corporation or commit Corporation funds without the prior approval of the Board. c. Authorize or revoke proceedings for the voluntary dissolution of the Corporation or adopt a plan for the distribution of the assets of the Corporation. d. Approve any transaction to which the Corporation is a party, take any action outside the scope of authority delegated to it by the Board, take final action on a matter that requires the approval of the Board, or take any action that involves a potential conflict of interest as defined in these bylaws. Committee Terms 5.02. The members of each standing or ad hoc committee shall serve until successors are appointed, unless the Committee is terminated or a member is removed, resigns, or ceases to qualify as a member. Vacancies on committees may be filled in the same manner as the original appointment. ARTICLE VI. MEETINGS Regular Meetings 6.01. The Board shall hold at least ten (10) regular meetings each year with each regular meeting occurring in a different month of the calendar year. Special Meetings 6.02. Special meetings of the Board may be called at the written request of the Chair or at least two (2) directors. Page 6 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 Notice 6.03. Written or printed notice of each regular meeting of the Board shall be delivered to each director not less than seventy two (72) hours before the time of the meeting. The notice shall state the place, date, and time of the meeting. In the case of special meetings, notice may be issued to Directors by mail, telephone, fax, electronic transmission or in person at least seventy two (72) hours before the time of the meeting and shall include who called the meeting and the purpose of the meeting. Quorum 6.04. Four (4) Directors shall constitute a quorum for the transaction of business at any meeting of the Board. Action of Board 6.05. The vote of a majority of the Directors present and voting at a meeting at which a quorum is present shall be sufficient to constitute the act of the Board. Proxies 6.06. A Director may not vote by proxy. Open Meetings 6.07. All meetings and deliberations of the Board shall be called, posted, convened and conducted in accordance with the Texas Open Meetings Act, as amended. ARTICLE VII. FINANCIAL ADMINISTRATION Fiscal Year 7.01. The fiscal year of the Corporation shall run concurrently with the fiscal year of the City. Accounts to be Kept with City 7.02. The Corporation shall contract with the City for the administration of its accounts, expenditures, deposits, investment of funds and accounts, and other financial services for the Corporation. The City Finance Director shall designate the accounts and depositories to be created and designated for such purposes, and the methods of withdrawal of funds therefrom for use by and for the purposes of the Corporation shall be approved by the President and presented for the signature of the City Manager and Finance Director or other person as the Board shall designate. Page 7 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 Audits 7.03. The City shall cause the Corporation's books, records, accounts, and financial statements, and all other financial activities for the previous fiscal year to be audited at least once each fiscal year by an outside, independent, certified public accounting firm selected by the City Council. Any such audit shall include a written management letter which details suggested management controls and operating efficiencies. The audit and management letter shall include recommendations for improving cost reductions and safeguarding assets. A copy of any such audit and management letter shall be provided to each Director, and discussed in an open meeting prior to its submission to the City Council. Each audit and management letter shall be submitted annually to the City Council for approval. Such audit shall be at the expense of the Corporation. Limitations on Expenditures 7.04. Before expending funds to undertake a project, the Corporation shall hold at least one (1) public hearing on the proposed project, in accordance with the Act. Contracts — General 7.05. Unless otherwise specified herein, the Corporation shall follow and be bound by the same purchasing and contracting provisions of State law, including the provisions on competitive bidding, that are applicable to the City. The Board may, upon the affirmative vote of three - fourths (3/4) of the members present and voting, elect to utilize an alternate delivery method that would not otherwise be available to the City. The Board may by official action authorize any officer or agent of the Corporation to enter into a contract or execute and deliver any instrument in the name of and on behalf of the Corporation. This authority may be limited to a specific contract or instrument or it may extend to any number and type of possible contracts and instruments.. • : = : ' -• ' : - : • - AnyaAily contract of the Corporation the total value of which is greater than - - - $200,000.00,an amount equal to thrcc percent (3%) of the Corporations most recent annual audited gross sales tax receipts must be approved by the City Council before execution of the contract. - - « • . • - - - _, ° . - - - . - - - ; - - - . - - - - •• - - - -- (15%). Contracts - Administrative Services 7.06. Subject to the paramount authority of the city manager under the City Charter, the Corporation shall have the right to utilize the services and the staff and employees of the City, provided (i) that the Corporation shall pay reasonable compensation to the City for such services, and (ii) the performance of such services does not materially interfere with the other duties of such personnel of the City. An administrative services contract shall be executed between the Page 8of13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 Board and the City Council for the services provided by the city attorney, assistant secretary, finance department and other City departments, staff and employees. Gifts 7.07. The Board may accept on behalf of the Corporation any gift or bequest. Special funds shall include all funds from government contracts, grants, and gifts designated by a donor for special purposes. All other funds shall be general funds. Potential Conflicts of Interest 7.08. For purposes of this section, an "Affiliated Individual" is defined as any individual who, by nature of his or her position with the Corporation, has the ability to influence decisions within the Corporation and includes, without limitation, any and all directors, officers, employees, agents and representatives of the Corporation. The purpose of maintaining a Conflicts of Interest Policy is to ensure the legal and ethical integrity of the Corporation's decision - making process, to protect the interest of the Corporation the Citizens of the City, and to make clear that no organization or individual benefits inappropriately or unfairly from any relationship with a Director or other Affiliated Individual of the Corporation. It is anticipated that Affiliated Individuals will be actively involved in activities and organizations outside of the Corporation. The experience of Affiliated Individuals who serve as directors, officers, agents or representatives of for -profit or non -profit organizations enables them to provide insight to the Corporation in its funding and governance processes. From time to time actual or potential conflicts of interest will arise, and it is important that the Corporation maintain the trust and confidence of the public by requiring full and timely disclosure of any actual or potential conflict between any and all interests of an Affiliated Individual and those of the Corporation. For purposes of this Section, an actual or potential conflict of interest exists when an Affiliated Individual or a group, business or organization for which an Affiliated Individual has an ownership interest, or for which the affiliated Individual is an officer, board member, employee, agent or representative may directly or indirectly benefit from the Affiliated Individual's relationship with the Corporation. Affiliated Individuals have a fiduciary responsibility to the Corporation and the citizens of the City in that they are to act solely for the benefit of the Corporation. Therefore, each Affiliated Individual shall continually evaluate his/her interests outside of the Corporation for actual or potential conflicts and annually disclose and report to the Corporation any role as a director, officer, agent or representative with any and all for - profit and non - profit groups, businesses, entities, joint ventures, partnerships, charitable organizations or organization outside of the Corporation. In the event a Director becomes aware that the Corporation is considering taking any action that will directly or indirectly benefit (including, without limitation, receiving financial assistance or funding from the Corporation) any individual, company, organization or entity with which the Director has an actual or potential conflict of interest, any for - profit or non - profit group, business, entity, joint venture, partnership, charitable or other organization that exists independent of the Corporation and with which the Director serves as a director, officer, Page 9 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 employee, agent or in any other representative capacity, the Director must timely adhere to the following requirements: • Fully disclose the conflict of interest by filing a Conflict's Affidavit with the Corporation's staff prior to consideration of any matter related to the conflict of interest; • Not be counted in voting with respect to the Board's consideration of the matter; • Recuse himself or herself from consideration of the matter; • Refrain from influencing, directly or indirectly, any action taken by the Board including, without limitation, refraining from participating in any discussion with any other Director, whether formal or informal, whether in writing or orally, whether before or during any meeting at which the matter is considered and at any time prior to any meeting at which the Board takes action on the matter for which the Conflict of Interest exists and shall be absent from the room during any and all discussion and consideration of the matter. - - - . • • • - - - • - - • Failure of a Director to comply with the requirements of this Section may result in the City Council's removal of the Director from the Board. Bonds 7.09. Any bonds issued by the Corporation shall be in accordance with the Act and shall not be issued until approved by the City Council and by the bond counsel and financial advisers of the City. ARTICLE VIII. BOOKS, RECORDS, AUDITS Maintenance of Records 8.01. The Corporation shall keep and properly maintain, or contract with the City to keep and properly maintain, in accordance with GAAP, complete books, records, accounts, and financial statements pertaining to its corporate funds, activities, and affairs. In addition to proper financial records, the Corporation shall keep correct and complete minutes of all board and committee meetings and all records required by the City of Pearland, by contracting agents, or by funding sources. Compliance with State Law 8.02. All records shall be kept and administered in accordance with the Texas Public Information Act, as amended. Inspection Page 10 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 8.03. Any member of the City Council or Director or officer of the Corporation may inspect and receive copies of all books and records of the Corporation required to be kept by the Bylaws. ARTICLE IX. INDEMNIFICATION AND INSURANCE Corporation to Indemnify 9.01. The Corporation shall indemnify any Director or officer or former director or officer of the Corporation for expenses and costs, including attorney's fees, actually and necessarily incurred by the officer or Director in connection with any claim asserted against the officer or director by action in court or otherwise by reason of the person being or having been a Director or officer and acting in his or her official capacity, except in relation to matters as to which the person shall have been guilty of gross negligence or misconduct in respect of the matter in which indemnity is sought. Corporation Shall Provide Insurance 9.02. The Corporation or City shall contract for and maintain insurance on behalf of any person who is or was a director, officer, employee, or agent of the Corporation to insure such person against any liability asserted against the person by reason of the person being or having been a director, officer, employee, or agent of the Corporation. The premiums for the insurance shall be paid by the Corporation. ARTICLE X. AMENDMENTS TO BYLAWS 10.01. The Board may alter, amend, or repeal the bylaws or adopt new bylaws, but the change shall be effective only upon approval by the City Council. ARTICLE XI. PARLIAMENTARY AUTHORITY 11.01. Robert's Rules of Order, Newly Revised, shall be the parliamentary authority for all matters of procedure not specifically covered by the bylaws or any specific rules of procedure adopted by the Board. ARTICLE XII. DISSOLUTION OF THE CORPORATION 12.01. The Corporation is a non - profit corporation. Upon dissolution, all of the Corporation's assets shall be conveyed to the City of Pearland. ARTICLE XIII. MISCELLANEOUS PROVISIONS Legal Authorities Governing Construction Of Bylaws 13.01. The bylaws shall be construed in accordance with the laws of the State of Texas. All Page 11 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 references in the bylaws to statutes, regulations, or other sources of legal authority shall refer to the authorities cited, or their successors, as they may be amended from time to time. It is expressly provided that the provisions of the Development Corporation Act applicable to corporations governed under Chapter 505 of the Texas Local Government Code are incorporated within these bylaws by reference. In the event of any conflict between the applicable provisions of such Act and these bylaws, then the applicable provisions of such Act shall control. Legal Construction 13.02. If any Bylaw provision is held to be invalid, illegal or unenforceable in any respect, the invalidity, illegality or unenforceability shall not affect any other provision and the bylaws shall be construed as if the invalid, illegal or unenforceable provision had not been included in the bylaws. Seal 13.03. The board of directors may provide for a corporate seal. Such seal would consist of concentric circles containing the words, "Pearland Economic Development Corporation ", and, "Texas ", in one circle and the word, "Incorporated" together with the date of incorporation of the Corporation in the other circle. Headings 13.04. The headings used in the bylaws are used for convenience and shall not be considered in construing the terms of the bylaws. Parties Bound 13.05. The bylaws shall be binding upon and inure to the benefit of the directors, officers and agents of the Corporation and their respective heirs, executors, administrators, legal representatives, successors, and assigns except as otherwise provided in the bylaws. Effective Date 13.06. These bylaws, and any subsequent amendments thereto, shall be effective on and from the date upon which approval has been given both by the board of directors and the City Council. Page 12 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved , 2010 CERTIFICATE OF SECRETARY I certify that I am the duly elected and acting secretary of the PEARLAND ECONOMIC DEVELOPMENT CORPORATION, and the foregoing bylaws constitute the bylaws of the Corporation, These bylaws were approved by the City Council of the City of Pearland, Texas, at a meeting held on the 14 day of February 2011, and adopted at a meeting of the Board of Directors held on the 2� of January 2011. Signed this day of Page 13 of 13 Pearland Economic Development Corporation Second Amended Bylaws Approved January 26, 2011 These changes are reflected and highlighted in the attached copy. RECOMMENDED ACTION Consideration and approval of the Corporation's second amended bylaws. Revised 2009 -01 -14