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HomeMy WebLinkAboutResolution No. 05-P5RESOLUTION NO. 05-P5 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE AZUSA PUBLIC FINANCE AUTHORITY, ACTING IN ITS CAPACITY AS THE SOLE MEMBER -OWNER OF THE AZUSA VALLEY WATER COMPANY, TO ADOPT AMENDED AND RESTATED BYLAWS, TO SET THE TERM FOR THE BOARD OF DIRECTORS, AND TO ELECT DIRECTORS TO THE AZUSA VALLEY WATER COMPANY BOARD OF DIRECTORS. WHEREAS, on December 5, 2005, the Azusa Public Finance Authority met at a publicly noticed meeting held at 213 East Foothill Boulevard, Azusa, California; and WHEREAS, the Azusa Public Finance Authority ("Authority') is the sole member of the Azusa Valley Water Company ("Corporation'); and WHEREAS, legal counsel has recommended revisions to the existing Amended and Restated Bylaws of the Corporation dated December 14, 1993, to streamline management and render the Bylaws consistent with the current ownership structure; and WHEREAS, the revised Amended and Restated Bylaws of the Corporation have been submitted to the Board of Directors of the Authority for review, a copy of which is attached to this resolution as Exhibit "A" (the "Revised Bylaws"); and WHEREAS,. pursuant to the Revised Bylaws, the Authority, as the sole member of the Corporation, must set the term for members of the Board of Directors, and elect a new Board of Directors that can meet and conduct the official business of the Corporation; NOW, THEREFORE, THE AUTHORITY, ACTING IN ITS CAPACITY AS SOLE MEMBER OF THE CORPORATION, DOES FIND AND DECLARE THAT: SECTION 1: Adoption of Bylaws. The Revised Bylaws are hereby approved and adopted as the Bylaws of the Corporation. SECTION 2: Term of Directors. The term of the members of the Board of Directors of the Corporation shall be co -terminus with the term of the City Council of the City of Azusa. SECTION 3: Election of Directors. The Board of Directors of the Corporation shall call a meeting of the sole member no later than four (4) weeks following each election for City Council to elect a new Board of Directors; persons occupying the following position titles with the City of Azusa, a California municipal corporation, are hereby elected and shall constitute the Board of Directors of the Corporation: Count Position Title 1 Mayor 1 Mayor Pro -Tem 1 City Council Member 1 City Council Member 1 City Council Member SECTION 4. Effective Date. This Resolution shall become effective upon its adoption. SECTION 5. Authorization. The Chairperson shall sign and the Secretary shall certify to the passage and adoption of this Resolution. PASSED, APPROVED AND ADOPTED this 5th day of December, 2005. D ane airpe s n ATTEST: Vera Mendoza, Secretary APPROVED AS TO FORM: By: _ p B `st Best & Crieger LLP City Attome 0 0 I HEREBY CERTIFY that the foregoing Resolution No. 05-P5 was duly adopted by the Azusa Public Finance Authority, at a regular meeting thereof, held on the 5th day of December, 2005 by the following vote of the Board. AYES: BOARD MEMBERS: HARDISON, HANKS, ROCHA, CARRRILLO, CHAGNON NOES: BOARD MEMBERS: NONE ABSENT: BOARD MEMBERS: NONE 0 0 AMENDED AND RESTATED BYLAWS OF AZUSA VALLEY WATER COMPANY ARTICLE I. OFFICES Section 1.01. Principal Office The principal office of the Corporation for its transaction of business is located at 729 North Azusa Avenue, Azusa, California 91702. Section 1.02. Change of Address The Board of Directors is hereby granted full power and authority to change the principal office of the Corporation from one location to another in the County of Los Angeles, California. Any such change shall be noted by the Secretary in these Bylaws, but shall not be considered an amendment of these Bylaws. ARTICLE II. MEMBER Section 2.01. Membership The Corporation shall have a single member, the Azusa Public Finance Authority, which shall exercise all authority and voting rights granted pursuant to the articles and bylaws of this Corporation to the member. Section 2.02. Assessments The Corporation shall not charge annual dues. The member shall be subject to assessments which may be levied and collected by resolution of the Board of Directors. Section 2.03. Transferability of Membership Until such time as any public financing used for the acquisition of the Corporation has been paid in full or becomes transferable pursuant to the terms of such financing, the membership interest of the sole member shall be non -transferable. At any time following the expiration of such restriction, but subject to the prior approval of the Board of Directors, the member may transfer or assign its interest in the Corporation for value or otherwise. Section 2.04. Inspection Rights of Member The member shall have full and unrestricted access to inspect the books and records of the Corporation during normal business hours. Section 2.05. Nontiabitity of Member A member of the Corporation shall not solely, because of such membership, be liable for the debts, obligations, or liabilities of the Corporation. RVBUS\GWP\688680.2 0 0 Section 2.06. Amendment to Articles and Bylaws Only the member shall have the power to amend the Corporation's Articles of Incorporation and Bylaws. ARTICLE III.MEETINGS OF MEMBER Section 3.01. Place Meetings of the member shall be held at the principal office of the Corporation, the Azusa City Hall or at such location within the State of California as may be designated from time to time by resolution of the Board of Directors. Section 3.02. Meetings Meetings of the member shall not be required, except as may be necessary for the election of directors and transacting such proper business as may come before the meeting, but may be held at such time or place as shall be designated from time to time by the Board of Directors. The member shall have the right to call a meeting at any time. Section 3.03. Notice of Meetings Written notice of every meeting of the member shall be personally delivered or mailed by first-class United States mail, postage prepaid not less than ten (10) days before the date of the meeting to each member who on the record date for notice of the meeting is entitled to vote thereat. Notice given pursuant to this section shall be addressed to the member at the address of such member appearing on the books of the Corporation or at the address given by the member to the Corporation for the purpose of notice. Where no such address appears or is given, notice shall be given at the principal office of the Corporation. The Secretary of the Corporation, or any transfer agent specially designated by the Secretary for the purpose herein mentioned, shall execute an affidavit of the giving of the notice of the meeting of the member. In the case of a specially called meeting of the member, notice that a meeting will be held at a time requested by the person or persons calling the meeting not less than thirty-five (35) days nor more than ninety (90) days after receipt of the written request from such person or persons by the President of the corporation shall be sent to the member forthwith and in any event within twenty (20) days after the request was received. No meeting of the member may be adjourned more than 45 days. if a meeting is adjourned to another time and place, and thereafter a new record date is fixed for notice or voting, a notice of the adjourned meeting shall be given to each member of record who, on the record date for notice of the meeting, is entitled to vote at the meeting. Section 3.04. Contents of Notice The notice shall state the place, date, time and purposes of the meeting. The notice shall specifically state if a meeting is being called for the election of directors. -- RV13US\GWP5688680.2 2 Section 3.05. Waivers, Consents, and Approvals The transactions of any meeting of the member, however called and noticed, and wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if the member signs a written waiver of notice, a consent to the holding of the meeting, or an approval of the minutes of the meeting. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 3.06. Action Without Meeting by Written Ballot or Consent Any action which may be taken at any meeting of member may be taken without a meeting. If an action is taken without a meeting, the Corporation may distribute a written ballot to every member entitled to vote on the matter. The ballot shall set forth the proposed action, provide an opportunity to specify approval or disapproval of any proposal, and provide a reasonable time within which to return the ballot to the Corporation. Unless otherwise provided in the Nonprofit Corporation Law, any action which may be taken at any meeting of the member may be taken without a meeting and without prior notice if a consent in writing, setting forth the action so taken, shall be signed by the member. Section 3.07. Conduct of Meeting (a) President The President of the Corporation or, in his or her absence, any other person chosen by, the member shall .be Chairman of and shall preside over the meetings of the member. (b) Secretary of Meetings The Secretary of the Corporation shall act as the secretary of all meetings of the member; provided that in his or her absence, the Chairman of the meetings of the member shall appoint another person to act as secretary of the meetings. ARTICLE IV. DIRECTORS Section 4.01. Number The corporation shall have five (5) Directors. The Directors shall be known collectively as the Board of Directors. Section 4.02. Qualifications All Directors of the Corporation shall come from one of the following categories: (i) elected or appointed officials of the City of Azusa or any of its departments, agencies or instrumentalities; or (ii) employees of the City of Azusa or any of its departments, agencies or instrumentalities. RVBUS\GWP\688680.2 Section 4.03. Terms of Office Each Director shall hold office for a term set from time to time by resolution of the member, not to exceed four years from the date of such Director's election, and until such Director's successor is elected and qualifies under Section 4.02 of these Bylaws. Section 4.04. Nomination . Any person qualified to be a Director under Section 4.02 of these Bylaws may be nominated by the member or pursuant to the recommendation of the Board of Directors. Section 4.05. Election The Directors shall be elected at a meeting of the member, by the written consent of the member, or by written ballot as authorized by Section 3.06 of these Bylaws. The candidates receiving the highest number of votes up to the number of Directors to be elected are elected. Directors shall be elected to hold office for the duration of the term specified by the member pursuant to Section 4.03 of these Bylaws. Directors shall be eligible for reelection without limitation on the number of terms they may serve, provided they continue to meet the qualifications required by Section 4.02 of these Bylaws. Section 4.06. Removal, Resignation and Replacement Any Director who ceases to meet the qualifications set forth in Section 4.02 shall automatically be removed without further action required by the Board or the member. Upon such removal or the resignation of a Director, the Board shall fill the vacancy with the individual who filled the same position within the City of Azusa, its departments, agencies or instrumentalities, that was vacated by the Director who was removed. It such position is not filled within ninety (90) days of the vacancy, a majority of the Board of Directors may fill such vacancy with any person who meets the qualifications set forth in Section 4.02. Section 4.07. Compensation Directors of the Corporation shall not be entitled to compensation. Section 4.08. Meetings (a) Call of Meetings Meetings of the Board may be called by the President or any Vice - President or the Secretary or any Director. (b) Place of Meetings All meetings of the Board shall be held at the principal office of the Corporation, the Azusa City Hall or at such other place within the State of California as a majority of Directors may approve. RVBUS\GWP\688680.2 4 i (c) Special Meetings Special meetings of the Board may be called by the President or any Vice - President or the Secretary or any Director. Special meetings shall be held on four (4) days' notice by first-class mail, postage prepaid, or on twenty-four (48) hours, notice delivered personally or by telephone or telegraph. Notice of the special meeting need not be given to any Director who signs a waiver of notice or a written consent to holding the meeting of an approval of the minutes thereof, whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of such notice to such Director. All such waivers, consents, and approvals shall be filed with the corporate records or made a part of the minutes of the meetings. (d) Quorum A majority of the authorized number of Directors constitutes a quorum of the Board for the transaction of business, except as hereinafter provided. (e) Transactions of Board Except as otherwise provided in the Articles, in these Bylaws, or by law, every act or decision done or made by a majority of the Directors present at a meeting duly held at which a quorum is present is the act of the Board provided, however, that any meeting at which a quorum was initially present may continue to transact business notwithstanding the withdrawal of Directors if any action taken is approved by at least a majority of the required quorum for such meeting, or such greater number as is required by law, the Articles, or these Bylaws. (f) Conduct of Meetings The President or, in his or her absence, any Director selected by the Directors present shall preside at meetings of the Board of Directors. The Secretary of the Corporation or, in the Secretary's absence, any person appointed by the presiding officer shall act as Secretary of the Board. Members of the Board may participate in a meeting through use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another. Such participation shall constitute personal presence at the meeting. (g) Adjournment A majority of the Directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. If the meeting is adjourned for more than twenty-four (24) hours, notice of the adjournment to another time or place must be given prior to the time of the adjourned meeting to the Directors who were not present at the time of the adjournment. �" � 4RV13US\GWP\688680.2 0 0 Section 4.09. Action Without Meeting Any action required or permitted to be taken by the Board may be taken without a meeting, if all members of the Board individually or collectively consent in writing to such action. Such written consent or consents shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as the unanimous vote of such Directors. Section 4.10. Directors' Powers (a) General Corporate Powers Subject to the provisions and limitations of the California Nonprofit Public Benefit Corporation Law and any other applicable laws, and subject to any limitations of the Articles of Incorporation or Bylaws regarding actions that require approval of the member, the Corporation's activities and affairs shall, be managed, and all corporate powers shall be exercised, by or under the direction of the Board. (b) Specific Powers Without prejudice to the general powers set forth in Section 4.09(a) of these Bylaws, but subject to the same limitations, the Directors shall have the power to: (1) , Appoint and remove, at the pleasure of the Board, all the Corporation's officers, agents, and employees; prescribe powers and duties for them that are consistent with law, with the Articles of Incorporation, and with these Bylaws; and fix their compensation and require from them security for faithful performance of their duties. (2) Change the principal office or the principal business office in California from one location to another; cause the Corporation to be qualified to conduct its activities in any other state, territory, dependency, or country and conduct its activities within or outside California; and designate any place within or outside California for holding any meeting of the member. (3) Adopt and use a corporate seal; prescribe the forms of membership certificates; and alter the forms of the seal and certificates. (4) Borrow money and incur indebtedness on behalf of the Corporation and cause to be executed and delivered for the Corporation's .purposes, in the Corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations, and other evidences of debt and securities. RVBUS\GWP\6886802 6 0 0 Section 4.11. Standard of Care; Liability (a) Each Director shall exercise such powers and otherwise perform such duties in good faith, in the matters such Director believes to be in the best interests of the Corporation, and with such care including reasonable inquiry, using ordinary prudence, as a person in a like position would use under similar circumstances. (b) In performing the duties of a Director, a Director shall be entitled to rely on information, opinions, reports, or statements, including financial statements and other financial data, in which case prepared or presented by: (1) one or more officers or employees of the Corporation whom the Director believes to be reliable and competent in the matters presented, (2) Counsel, independent accountants or other person as to matters which the Director believes to be within such person's professional or expert competence, or ARTICLE V. OFFICERS Section 5.01. Number and Titles The officers of the Corporation shall be a President, Chief Operations Officer, Treasurer, Secretary, and such other offices with such titles and duties as shall be determined by the Board. The President is the chief executive officer of the Corporation and the Chief Operations Officer shall manage day to day operations. Any number of offices may be held by the same person, except that neither the Secretary nor the Treasurer may serve concurrently as the President. Section 5.02. Appointment and Resignation The officers shall be chosen by the Board and serve at the pleasure of the Board, subject to the rights, if any, of any officer under any contract of employment. Any officer may resign at any time on written notice to the Corporation without prejudice to the rights, if any, of the Corporation under any contract to which the officer is a party. Section 5.03. Responsibilities of Officers (a) President Subject to the control of the Board, the President shall be the chief executive officer of the Corporation and shall supervise the Corporation's activities, affairs, and officers. The President shall preside at all member meetings and at all Board meetings. The President shall have such other powers and duties as the Board or the Bylaws may prescribe. (b) Chief Operations Officer Subject to the direction of the President and the Board of Directors, the Chief Operations Officer shall be responsible for the day to day management of the Corporations RVBUS\GWP\6886802 0 0 activities, administration and affairs. The COO shall be authorized to bind the Corporation and to execute documents and agreements on behalf of the Corporation. Unless otherwise specified by the Board of Directors, the position of COO shall be held by the Director of Azusa Light and Water. The Treasurer, Secretary and all employees of the Corporation shall report to the COO. If the President is absent or disabled, the COO shall perform all duties of the President. When so acting, the COO shall have all powers of and be subject to all restrictions on the President. The COO shall have such other powers and perform such other duties as the Board may prescribe. (c) Secretary (1) Book of Minutes The Secretary shall keep or cause to be kept, at the Corporation's principal office or such other place as the Board may direct, a book of minutes of all meetings, proceedings and actions of the Board, of Committees of the Board, and of member meetings. The minutes of meetings shall include the time and place that the meeting was held, whether the meeting was annual, regular, or special, and, if special, how authorized, the notice given, and the names of those present at member, Board and Committee meetings. The Secretary shall keep or cause to be kept, at the principal office in California, a copy of the Articles of incorporation and Bylaws, as amended to date. (2) Notices, Seal, and Other Duties The Secretary shall give,. or cause to be given, notice of all meetings of the member, of the Board and of Committees of the Board required by these Bylaws to be given. The Secretary shall keep the Corporate seal in safe custody and shall have such other powers and. perform such other duties as the Board or the Bylaws may prescribe. (d) Treasurer (1) Books of Account The Treasurer shall keep and maintain, or cause to be kept and maintained, adequate and correct books and accounts of the Corporation's properties and transactions. The Treasurer shall send or cause to be given to the member and Directors such financial statements and reports as are required to be given by law, by these Bylaws, or by the Board The books of account shall be open to inspection by any Director at all reasonable times. (2) Deposit and Disbursement of Money and Valuables The Treasurer shall deposit, or cause to be deposited, all money and other valuables in the name and to the credit of the Corporation with such depositories as the Board may designate, shall disburse the Corporation's funds as the Board may order, shall render to the President, if any, and the Board, when requested, an account of all transactions as Treasurer and of the financial condition of the Corporation, and shall have such other powers and perform such other duties as the Board or the Bylaws may prescribe. RVBUSIGWP\6886802 0 0 (3) Bond If required by the Board, the Treasurer shall give the Corporation a bond in the amount and with the surety or sureties specified by the Board for faithful performance of the duties of the office and for restoration to the Corporation of all of its books, papers, vouchers, money, and other property of every kind in the possession or under the control of the Treasurer on his or her death, resignation, retirement, or removal from office. The Corporation shall pay the premium for any such Bond. ARTICLE VI. INDEMNIFICATION; INSURANCE Section 6.01. Right of Indemnity To the fullest extent permitted by law, this Corporation shall indemnify its Directors, officers, employees, and other persons described in Section 5238(a) of the California Corporations Code, including persons formerly occupying any such position, against all expense, judgments, fines, settlements and other amounts actually and reasonably incurred by them in connection with any "proceeding," as that term is used in that section, and including an action by or in the right of the Corporation, by reason of the fact that the person is or was a person described in that section. "Expenses", as used in this Bylaw, shall have the same meaning as in Section 5238(a) of the California Corporations Code. Section 6.02. Approval of Indemnity On written request to the Board by any person seeking indemnification under Section 5238(b) or Section 5238(c) of the California Corporations Code, the Board shall promptly determine under Section 5238(e) of the California Corporations Code whether the applicable standard of conduct set forth in these Bylaws or in Section 5238(b) or Section 5238(c) has been met, and if so, the Board shall authorize indemnification. If the Board cannot authorize indemnification because the number of Directors who are parties to the proceeding with respect to which indemnification is sought prevents the formation of a quorum of Directors who are not parties to that proceeding, the Board shall promptly call a meeting of the member. At that meeting, the member shall determine under section 5238(e) of the California Corporations code whether the applicable standard of conduct set forth, in Section 5238(b) or Section 5238(c) has been met and, if so, the member present at the meeting in person or by proxy shall authorize indemnification. Section 6.03. Advancement of Expenses To the fullest extent permitted by law and except as otherwise determined by the Board in a specific instance, expenses incurred by a person, seeking indemnification under Sections 6.01 and 6.02 of these Bylaws in defending any .proceeding covered by those Section shall be advanced by the Corporation before final disposition of the proceeding, on receipt by the Corporation of an undertaking by or on behalf of that personthat the advance will be repaid unless it is ultimately determined that the person is entitled to be indemnified by the Corporation for those expenses. RVBUS\G WP\688680.2 9 Section 6.04. Insurance The corporation shall have the right to purchase and maintain insurance to the full extent permitted by law on behalf of its officers, Directors, employees, and other agents, against any liability asserted against or incurred by any officer, Director, employee, or agent in such capacity or arising out of the officer's, Director's, employee's, or agent's status as such. ARTICLE VIL CORPORATION RECORDS, REPORTS, AND SEAL Section 7.01. Keeping Records The Corporation shall keep adequate and correct records of account and minutes of the proceedings of its member, Board, and committees of the Board. The minutes shall be kept in written form. Other books and records shall be kept in either written form or in any other form capable of being converted into written form. Section 7.02. Annual Report The Board shall cause an annual report to be sent to the member not later than one hundred twenty (120) days after the close of the Corporation's fiscal year. The report shall contain all the information required by Section 6321(a) of the Corporations Code and shall be accompanied by any report thereon of independent accountants, or if there is no such report, the certificate of an authorized officer of the Corporation that such statements were prepared without audit form the books and records of the Corporation. The annual report shall be furnished to all Directors. Section 7.03. Annual Statement of Certain Transactions and Indemnifications The Corporation shall furnish annually to its member a statement of any transaction or indemnification described in Section 6322(d) and (e) of the Corporations Code, if such transaction or indemnification took place. Such annual statement shall be affixed to and sent with the annual report described in Section 7.02 of these Bylaws. Section 7.04. Corporate Seal The Board of Directors shall adopt a corporate seal. The Secretary of the Corporation shall have the custody of the seal and affix it in all appropriate cases to all corporate documents. Failure to affix the seal shall not, however, affect the validity of any instrument. RVBUS\GWP\688680.2 10 • , • CERTIFICATE OF SECRETARY OF AZUSA VALLEY MATER COMPANY I hereby certify that I am the duly elected and acting secretary of Azusa Valley Water Company (the "Corporation") and that the foregoing Amended and Restated Bylaws, comprising 10 pages, constitute the Bylaws of the Corporation as duly adopted by the member on December 5, 2005. DATED: December 5, 2005 11