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HomeMy WebLinkAbout09978RESOLUTION NO. 9978 A RESOLUTION APPROVING THE FORMATION OF NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION AND NAMING THE DIRECTORS THEREOF WHEREAS, in order to facilitate the financing of certain public improvements within the City relating to the development of an interchange at Dillon Drive and 1-25, particularly as it relates to the Dillon flyover overpass, all within the boundaries of the North Gateway Number 1 Business Improvement District, it has been proposed that a non-profit corporation to be called North Gateway Number 1 Public Improvement Corporation (the "Corporation") be organized and operated exclusively for the 'benefit of and in furtherance of the purposes of the City of Pueblo and the inhabitants thereof; and WHEREAS, proposed forms of the Articles of Incorporation and the Bylaws of the Corporation have been presented to the City Council at this meeting. NOW THEREFORE, BE IT RESOLVED BY CITY COUNCIL OF PUEBLO, that: SECTION 1. The proposed form of Articles of Incorporation of the Corporation and Bylaws ara hereby approved and all actions necessary to be taken by the incorporator for the purpose of organizing the Corporation, including, without limitation, the filing of the Articles of Incorporation of the Corporation, are hereby approved. SECTION 2. The seven Directors of the Corporation, all of whom are members of the Pueblo City Council, shall constitute the initial Board of Directors. Their names are as follows and their address is 1 City Hall Place, Pueblo, Colorado. Robert Schilling Al Gurule Randy Thurston Ray Aguilera Dr. Bill Sova Mike Occhiato Patrick Avalos SECTION 3. This Resolution shall take effect immediately upon its passage, and all acts, orders, resolutions, or parts thereof, taken by the City in conflict with this Resolution are hereby repealed or modified to the extent of such conflict. INTRODUCED October 27, 2003 BY Al Gurule/Councilperson APPROVED: Bill Sova/President of City Council ATTEST: Gina Dutcher/City Clerk ARTICLES OF INCORPORATION OF NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION Pursuant to §7-122-102 and part 3 of article 90 of title 7 Colorado Revised Statutes (C.R.S.), these Articles of Incorporation are delivered to the Colorado Secretary of State for filing. FIRST: Name. The name of the corporation is North Gateway Number 1 Public Improvement Corporation. SECOND: Principal Office. The address of the initial principal office of the corporation shall be 1 City Hall Place, Pueblo, Colorado and may be changed as deemed appropriate by the Board of Directors of the corporation. THIRD: Duration. The corporation shall have perpetual existence. FOURTH: (a) Purposes. The corporation is organized and shall be operated exclusively on behalf of and for the benefit and in furtherance of the purposes of the City of Pueblo, Colorado, and the inhabitants thereof. All moneys realized by the corporation shall be used exclusively for the design, planning, engineerinp> acquisition, construction, operation and maintenance of public improvements relating to the development of an interchange at Dillon Drive and 1-25, particularly as it relates to the Dillon flyover overpass, including payment of obligations of the corporation in connection therewith, all as detemfined by the Board of Directors of the corporation from time to time. Any such improvements shall be located within the City of Pueblo, Colorado, or shall have a substantial connection therewith or impact thereon. (b) Powers. In furtherance of the foregoing purposes and objectives and subject to the restrictions set forth in section (c) of this article, the corporation shall have and may exercise all of the powers now or hereafter conferred upon nonprofit corporations organized under the laws of the State of Colorado and may do everything necessary or convenient for the accomplishment of any of the corporate purposes, either alone or in connection with other organizations, entities or individuals, and either as principal or agent, including, but not limited to, exercising the power and authority to issue its own bonds or other obligations and to secure the same by a pledge of any property of the corporation, subject to such limitations as are or may be prescribed by law. If the corporation shall exercise its authority to issue its own bonds or other obligations, said bonds or other obligations shall not constitute a direct or indirect debt or financial obligation whatsoever of the City of Pueblo, Colorado or the State of Colorado. (c) Restrictions of Powers. (1) No part of the net earnings of the corporation shall inure to the benefit of or be distributable to any director or officer of the corporation, or any other private person (except for reasonable compensation that may be paid for services rendered to or for the 1460384v2 benefit of the corporation regarding one or more of its purposes), and no director or officer of the corporation, or any other individual, shall be entitled to share in any distribution of any of the corporate assets on dissolution of the corporation or otherwise. (2) No substantial part of the activities of the corporation shall consist of carrying on propaganda or otherwise attempting to influence legislation. The corporation shall not participate or intervene in (including the publishing or distribution of statements) any political campaign on behalf of or in opposition to any candidate for public office. (3) All property of the corporation shall be owned for the benefit of the City of Pueblo, Colorado, and subject to the condition that upon dissolution of the corporation, all of the corporation's assets remaining after payment of or provision for all of its liabilities shall be paid over or transferred to the City of Pueblo, Colorado. This limitation shall not restrict the ability of the corporation to pledge its property to secure the payment of its obligations. (4) Notwithstanding anything contained herein, the corporation shall be an independent entity and not an agent of the City of Pueblo (except as may be expressly agreed to by the City of Pueblo in writing) and the corporation shall have no authority to obligate or otherwise bind the City of Pueblo. (5) The corporation at all times shall be one not organized for profit. FIFTH: Registered Office and Agent. The address of the initial registered office of the corporation is 1050 17th Street, Suite 2300, Denver, Colorado 80265. The name of its initial registered agent at such office is STK Registered Agent, Inc. SIXTH: Members. The corporation shall have no members, voting or nonvoting. SEVENTH: (a) Board of Directors. The management of the affairs of the corporation shall be vested in a Board of Directors, except as otherwise provided in the laws of the State of Colorado governing nonprofit corporations, these articles of incorporation or the bylaws of the corporation. The number of directors, their classifications, if any, their terms of office and manner of their election or appointment shall be determined according to the bylaws of the corporation fi.om time to time in force. (b) Liability_ of Directors. The personal liability of a director to the corporation for monetary damages for any breach of fiduciary duty as a director is limited to the fullest extent permitted by the laws of the State of Colorado, as the same exist or may hereafter by amended, and as further provided in the bylaws of the corporation. Any repeal or modification of this Article SEVENTH (b) shall be prospective only and shall not adversely affect any right or protection of a director of the corporation under this Article SEVENTH Co), as in effect immediately prior to such repeal or modification, with respect to any liability that would have accrued, but for this Article SEVENTH Co), prior to such repeal or modification. 1460384v2 (c) Initial Board. Seven directors, all of whom are members of the Pueblo City Council, shall constitute the initial Board of Directors. Their names are as follows and their address is 1 City Hall Place, Pueblo, Colorado. Robert Schilling A1 Gurule R_andy Thurston Ray Aguilera Dr. Bill Sova Mike Occhiato Patrick Avalos EIGHTH: Bylaws. The initial bylaws of the corporation shall be as adopted by the Board of Directors. The Board of Directors shall have power to alter, amend or repeal the bylaws from time to time and adopt new bylaws. The bylaws of the corporation may contain any provisions for the regulation of management of the affairs of the corporation that are not inconsistent with the law or these articles of incorporation, as these articles may from time to time be amended. However, no bylaw at any time in effect, and no amendment to these articles, shall have the effect of giving any director or officer of the corporation any proprietary interest in the corporation's property or assets, whether during the term of the corporation's existence or as an incident to its dissolution. NINTH: Amendment. Any provision of these articles of incorporation and the bylaws of the corporation may be altered, amended, repealed or adopted only by resolution duly adopted by a majority of the Board of Directors, subject to the prior consent of the City Council of the City of Pueblo. TENTH: Incorporator. The name and address of the incorporator is: Arnold R. Kaplan 1050 17th Street, Suite 2300 Denver, CO 80265 The name and mailing address of the individual who causes this document to be delivered for filing, and to whom the Secretary of State may deliver notice if filing of this document is refused is: Arnold R. Kaplau 1050 17th Street, Suite 2300 Denver, CO 80265 3 1460384v2 BYLAWS OF NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION, A COLORADO NONPROFIT CORPORATION TABLE OF CONTENTS BYLAWS OF NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION A COLORADO NONPROFrr CORPORATION Contents Page Article I - Offices ....................................................................................................................... 1 Article II- Members .................................................................................................................... 1 Article III- Board of Directors ..................................................................................................... 1 Section 1. General Powers ............................................................................................... 1 Section 2. Number, Qualification and Tenure .................................................................. 1 Section 3. Vacancies ........................................................................................................ 2 Section 4. Regular Meetings ............................................................................................ 2 Section 5. Special Meetings ............................................................................................. 2 Section 6. Notice ............................................................................................................. 2 Section 7. Quorum ........................................................................................................... 3 Section 8. Manner of Acting ............................................................................................ 3 Section 9. Compensation ................................................................................................. 3 Section 10. Presumption of Assent .................................................................................. 3 Section 11 Committees .................................................................................................... 3 Section 12. Informal Action by Directors ......................................................................... 4 Section 13. Telephonic Meetings ..................................................................................... 4 Section 14. Standard of Care ........................................................................................... 4 Section 15 Audit .............................................................................................................. 4 Section 16. Conflict of Interest Transactions .................................................................... 5 Article IV- Officers and Agems .................................................................................................. 5 Section 1. General .......................................................................................................... 5 Section 2. Appointment and Term of Office ................................................................... 5 Section 3. Resignation and Removal ............................................................................... 6 Section 4. Vacancies ........................................................................................................ 6 Section 5. President ......................................................................................................... 6 Section 6. Secretary ......................................................................................................... 6 Section 7. Treasurer ......................................................................................................... 7 Article V- Indemnification of Certain Persons ............................................................................. 7 Section 1. Indemnification ............................................................................................... 7 Section 2. Right to Indemnification ................................................................................. 8 Section 3. Effect of Termination of Action ...................................................................... 8 Section 4. Groups Authorized to Make Indemnification Determination ........................... 8 Section 5. Court-Ordered Indemnification ....................................................................... 8 Section 6. Advance of Expenses ...................................................................................... 9 Section 7. Witness Expenses ........................................................................................... 9 Article VI- Provision of Insurance .............................................................................................. 9 Article VII- Miscellaneous ........................................................................................................ 10 Section 1. Seal ............................................................................................................... l0 Section 2. Fiscal Year .................................................................................................... l0 1459559vl ~ Section 3. Amendments ................................................................................................. 10 Section 4. Gender .......................................................................................................... 10 Section 5. Conflicts ....................................................................................................... 10 Section 6. Definitions .................................................................................................... 10 Section 7. Signatures ..................................................................................................... 10 1459859vl ii BYLAWS O~ NORTH GATEWAY NUMBER 1 ]~u-BLIC IMPROVEMENT CORPORATION, A COLORADO NONPROFIT CORPORATION ARTICLE I Ow~IC~S The name of the Corporation is NORTH GATEWAY NUMBER 1 PUBLIC IMPROVEMENT CORPORATION, a Colorado nonprofit corporation, (the "Corporation"). The principal office of the Corporation shall be designated from time to time by the Corporation and may be within or outside of Colorado. The Corporation may have such other offices, either within or outside Colorado, as the board of directors may designate or as the business of the Corporation may require from time to time. The registered office of the Corporation required by the Colorado Revised Nonprofit Corporation Act (the "Act") to be maintained in Colorado may be, but need not be, identical with the principal office, and the address of the registered office may be changed from time to time by the board of directors. ARTICLE H MEMBERS The Corporation shall not have members. ARTICLE IH BOARD OF DIRECTORS Section 1. General Powers. All corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be managed under the direction of its board of directors, except as otherwise provided in the Act or the articles of incorporation. Section 2. Number, Qualifications and Tenure. The number of directors of the Corporation shall be fixed from time to time by the board of directors, within a range of no less than three (3) or more than seven (7). A director shall be a nattwal person who is eighteen (18) years of age or older. A director need not be a resident of Colorado. The initial directors have been appointed by the City Council of the City of Pueblo, Colorado. Subsequent directors shall be elected by the Board of Directors at each annual meeting. Each director shall hold office for a term of one (1) year until his or her successor shall have been elected and qualified. Directors may be removed, for cause, by the City Council of the City of Pueblo, Colorado, and, with or without cause, by a vote of three-fourths of the other directors. Directors shall be removed in the manner provided by the Act. 1459859v1 Section 3. Vacancies. Any director may resign at any time by giving written notice to the Corporation. Such resignation shall take effect at the time the notice is received by the Corporation unless the notice specifies a later effective date. Unless otherwise specified in the notice of resignation, the Corporation's acceptance of such resignation shall not be necessary to make it effective. Any vacancy on the board of directors may be filled by the atTnwnative vote of a majority of the board of directors. If the directors remaining in office constitute fewer than a quorum of the board, the directors may fill the vacancy by the affirmative vote of a majority of all the directors remaining in office. If elected by the directors, the director shall hold office until the next annual meeting at which directors are elected. Section 4. Regular Meetings. A regular meeting of the board of directors shall be held without notice. The board of directors may provide by resolution the time and place, within the City of Pueblo, Colorado, for the holding of regular meetings without other notice. Section 5. Special Meetings. Special meetings of the board of directors may be called by or at the request of the president or any one (1) director. The person or persons authorized to call special meetings of the board of directors may fix any place, within the City of Pueblo, Colorado, as the place for holding any special meeting of the board of directors called by them. Section 6. Notice. Notice of any special meeting shall be given at least two (2) days prior to the meeting by written notice either personally delivered or mailed to each director at his business address, or by notice transmitted by telegraph, telex, electronically transmitted facsimile or other form of wire or wireless communication. If mailed, such notice shall be deemed to be given and to be effective on the earlier of: (i) three (3) days alter such notice is deposited in the United States mail, properly addressed, with postage prepaid, or (ii) the date shown on the return receipt, if mailed by registered or certified mail return receipt requested. If notice is given by telex, electronically transmitted facsimile or other similar form of wire or wireless communication, such notice shall be deemed to be given and to be effective when sent, and with respect to a telegram, such notice shall be deemed to be given and to be effective when the telegram is delivered to the telegraph company. Ifa director has designated in writing one (1) or more reasonable addresses or facsimile numbers for delivery of notice to him, notice sent by mail, telegraph, telex, electronically transmitted facsimile or other form of wire or wireless communication shall not be deemed to have been given or to be effective unless sent to such addresses or facsimile numbers, as the case may be. A director may waive notice ora meeting before or after the time and date of the meeting by a writing signed by such director. Such waiver shall be delivered to the Corporation for filing with the corporate records. Further, a director's attendance at or participation in a meeting waives any required notice to him of the meeting unless at the beginning of the meeting, or promptly upon his later arrival, the director objects to holding the meeting or transacting business at the meeting because of lack of notice or defective notice and does not thereafter vote for or assent to action taken at the meeting. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waive of notice of such meeting. 1459859vl 9 Section 7. Quorum. A majority of the number of directors fixed by the board of directors pursuant to Section 2 or, if no number is fixed, a majority of the number in office immediately before the meeting begins, shall constitute a quorum for the transaction of business at any meeting of the board of directors. If less than such majority is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice, for a period not to exceed sixty (60) days at any one adjournment. Section 8. Manner of Acting. 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 of directors. Section 9. Compensation. By resolution of the board of directors, any director may be paid his expenses, if any, of attendance at meetings. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Section 10. Presumption of Assent. A director of the Corporation who is present at a meeting of the board of directors or committee of the board at which action on any corporate matter is taken shall be presumed to have assented to the action taken unless: (i) the director objects at the beginning of the meeting, or promptly upon his arrival, to the holding of the meeting or the transaction of business at the meeting and does not thereafter vote for or assent to any action taken at the meeting; (ii) the director contemporaneously requests that his dissent or abstention as to any specific action taken be entered in the minutes of the meeting: or (iii) the director causes written notice of his dissent or abstention as to any specific action to be received by the presiding officer of the meeting before its adjournment or by the Corporation promptly after the adjournment of the meeting. A director may dissent to a specific action at a meeting, while assenting to others. The right to dissent to a specific action taken at a meeting of the board of directors or a committee of the board shall not be available to a director who voted in favor of such action. Section 11. Committees. By resolution adopted by a majority of all the directors in office when the action is taken, the board of directors may designate from among its members an executive committee and one (1) or more other committees, and appoint one (1) or more members of the board of directors to serve on them. To the extent provided in the resolution, each committee shall have all the authority of the board of directors, except that no such committee shall have the authority to: (i)fill vacancies on the board of directors or any committee thereof, (ii)amend articles of incorporation; or (iii)adopt, amend or repeal the bylaws. Sections 4, 5, 6, 7, 8 and 12 of Article HI, which govern meetings, notice, waiver of notice, quorum, voting requirements and action without a meeting of the board of directors, shall apply to committees and their members appointed under this Section 11. Neither the designation of any such committee, the delegation of authority to such committee, nor any action by such committee pursuant to its authority shall alone constitute compliance by any member of the board of directors or a member of the committee in question 1459859vl q with his or her responsibility to conform to the standard of care set forth in Article IH, Section 14 of these bylaws. Section 12. Informal Action by Directors. Any action required or pefnfitted to be taken at a meeting of the directors or any committee designated by the board of directors may be taken without a meeting if a written consent (or counterparts thereof) that sets forth the action so taken is signed by all of the directors entitled to vote with respect to the action taken. Such consent shall have the same force and effect as a unanimous vote of the directors or committee members and may be stated as such in any document. Unless the consent specifies a different effective date, action taken under this Section 12 is effective at the time the last director signs a writing describing the action taken, unless, before such time, any director has revoked his consent by a writing signed by the director and received by the president or the secretary of the Corporation. Section 13. Telephonic Meetings. The board of directors may permit any director (or any member of a committee designated by the board) to participate in a regular or special meeting of the board of directors or a committee thereof through the use of any means of communication by which all directors participating in the meeting can hear each other during the meeting. A director participating in a meeting in this manner is deemed to be present in person at the meeting. Section 14. Standard of Care. A director shall perfo,m his duties as a director, including, without limitation, his duties as a member of any committee of the board, in good faith, in a manner he reasonably believes to be in the best interests of the Corporation, and with the care an ordinarily prudent person in a like position would exercise under similar circumstances. In performing his or her duties, a director shall be entitled to rely on info,,,,ation, opinions, repons or statements, including financial statements and other financial data, in each case prepared or presented by the persons herein designated. However, he or she shall not be considered to be acting in good faith if he or she has knowledge concerning the matter in question that would cause such reliance to be unwarranted. A director shall not be liable to the Corporation for any action he or she takes or omits to take as a director if, in connection with such action or omission, he or she performs his or her duties in compliance with this Section 14. The designated persons on whom a director is entitled to rely are: (i) one (1) or more officers or employees of the Corporation whom the director reasonably believes to be reliable and competent in the matters presented; (ii) legal counsel, certified public accountant, or other person as to matters which the director reasonably believes to be within such person's professional or expert competence; or (iii) a committee of the board of directors on which the director does not serve if the director reasonably believes the committee merits confidence. Section 15. Audit. The Board may appoint an independent auditor to prepare, at such time as the Board may deten,fine for the Corporation a statement of financial condition setting forth the assets and liabilities of the Corporation, a statement of income, expenses, and distributions, a list of projects and/or organizations to or for which funds were used or distributed in furtherance of the Corporation's purposes, and such additional reports or information as may be ordered from time to time by the Board. Copies of all audits, statements, reports, and data 1459859x, 1 /I delivered by the auditor to the Board shall be made available or furnished to the City of Pueblo, each trustee, custodian or agent having custody of funds of the Corporation. Section 16. Conflict of Interest Transactions. No contract, transaction, or other financial relationship between the Corporation and a director of the Corporation, or between the Corporation and a party related to a director or between the Corporation and an entity in which a director of the Corporation is a director or officer or has a financial interest (a "Conflict of Interest Transaction") will be void or voidable or be enjoined, set aside or give rise to an award of damages or other sanctions in a proceeding in the right of the Corporation solely because the Conflict of Interest Transaction involves a director of the Corporation or a party related to a director or an entity in which a director of the Corporation is a director or officer or has a financial interest or solely because the director is present at or participates in the meeting of the board of directors or committee of the board of directors that authorizes, approves or ratifies the Conflict of Interest Transaction or solely because the director's vote is counted for such purpose if.' (a) the material facts as to the director's relationship or interest as to the Conflict of Interest Transaction are disclosed in writing by the interested director to the board of directors or committee prior to any action taken with respect to the Conflict of Interest Transaction, and the board of directors or committee in good faith authorizes, approves or ratifies the Conflict of Interest Transaction by the affirmative vote of a majority of disinterested directors who constitute a quorum; and (b) the Conflict of Interest Transaction is fair to the Corporation. Common or interested directors may not be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee that authorizes, approves, or ratifies the Conflict of Interest Transaction. For purposes of this Section 16, a party related to a director includes a spouse, descendent, ancestor, sibling, spouse or descendent ora sibling, estate or trust in which the director or party related to a director has a beneficial interest or an entity in which a party related to a director is a director, officer or has a financial interest. ARTICLE IV OFFICERS AND AGENTS Section 1. General. The officers of the Corporation shall be a president, a secretary and a treasurer, each of whom shall be a natural person eighteen (18) years of age or older. The board of directors may appoint such other officers, assistant officers, committees and agents, including a chairman of the board, assistant secretaries and assistant treasurers, as they may consider necessary. The board of directors shall from time to time detesnline the procedure for the appointment of officers, their term of office, their authority and duties and their compensation. One (1) person may hold more than one office. In all cases where the duties of any officer, agent or employee are not prescribed by the bylaws or by the board of directors, such officer, agent or employee shall follow the orders and instructions of the president of the Corporation. Section 2. Appointment and Term of Office. The officers of the Corporation shall be appointed by the board of directors for terms of two (2) years. Each officer shall hold office until the first of the following occurs: his or her successor shall have been duly appointed and qualified; the expiration of his or her term; his or her death; his or her resignation; or his or her removal in the manner provided in Section 3. 1459859vl ~ Section 3. Resignation and Removal. An officer may resign at any time by giving written notice of resignation to the Corporation. The resignation is effective when the notice is received by the Corporation unless the notice specifies a later effective date. Any officer or agent may be removed at any time with or without cause by the board of directors. Such removal does not affect the contract rights, if any, of the Corporation or of the person so removed. The appointment of an officer or agent shall not in itself create contract rights. Section 4. Vacancies. A vacancy in any office, however occurring, may be filled by the board of directors for the unexpired portion of the officer's term. [fan officer resigns and his or her resignation is made effective at a later date, the board of directors may permit the officer to remain in office until the effective date and may fill the pending vacancy before the effective date if the board of directors provide that the successor shall not take office until the effective date. In the alternative, the board of directors may remove the officer at any time before the effective date and may fill the resulting vacancy. Section 5. President. Subject to the direction and supervision of the board of directors, the president shall be the chief executive officer of the Corporation, and shall have general and active control of its affairs and business and general supervision of its officers, agents and employees. The president shall also have custody of the treasurer's bond, if any. Section 6. Secretary. The secretary shall: (i)prepare and maintain as pem~anent records the minutes of the proceedings of the shareholders and the board of directors, a record of all actions taken by the board of directors without a meeting, a record of all actions taken by a committee of the board of directors in place of the board of directors on behalf of the Corporation, and a record of all waivers of notice of meetings of the board of directors or any committee thereo~, (ii) see that all notices are duly given in accordance with the provisions of these bylaws and as required by law; (iii) serve as custodian of the corporate records and of the seal of the Corporation and affix the seal to all documents when authorized by the board of directors; (iv)maintain at the Corporation's principal office the originals or copies of the Corporation's articles of incorporation, bylaws, minutes of all meetings and records of all action taken without a meeting for the past three (3) years, a list of the names and business addresses of the current directors and officers, a copy of the Corporation's most recent corporate report filed with the Secretary of State, and financial statements showing in reasonable detail the Corporation's assets and liabilities and results of operations for the last three (3) years; (v) authenticate records of the Corporation; and (vi) 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 by the president or by the board of directors. Assistant secretaries, if any, shall have the same duties and powers, subject to supervision by the secretary. The directors may however respectively designate a person other than the secretary or assistant secretary to keep the minutes of their respective meetings. 1459859vl ~ Any books, records, or minutes of the Corporation may be in written fo~in or in any form capable of being converted into written form within a reasonable time and may be inspected and copies by the City of Pueblo at any time. Section 7. Treasurer. The treasurer shall be the principal financial officer of the Corporation, shall have the care and custody of ail funds, securities, evidences of indebtedness and other personal property of the Corporation and shall deposit the same in accordance with the instructions of the board of directors. He shall receive and give receipts and acquittances for money paid in on account of the Corporation, and shall pay out of the Corporation's funds on hand all bills, payrolls and other just debts of the Corporation of whatever nature upon maturity. He shall perform all other duties incident to the office of the treasurer and, upon request of the board, shall make such reports to it as may be required at any time. He shail, if required by the board, give the Corporation a bond in such sums and with such sureties as shall be satisfactory to the board, conditioned upon the faithful performance of his duties and for the restoration to the Corporation of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the Corporation. He shail have such other powers and perform such other duties as may from time to time be prescribed by the board of directors or the president. The assistant treasurers, if any, shall have the same powers and duties, subject to the supervision of the treasurer. The treasurer shall also be the principal accounting officer of the Corporation. He shall prescribe and maintain the methods and systems of accounting to be followed, keep complete books and records of account as required by the Act, prepare and file all local, state and federal tax returns, prescribe and maintain an adequate system of internal audit and internal control and prepare and furnish to the president and the board of directors statements of account showing the financiai position of the Corporation and the results of its operations. ARTICLE V INDEMNIFICATION OF CERTAIN PERSONS Section 1. Indemnification. For purposes of Article V, a "Proper Person" means any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminai, administrative or investigative, and whether formal or informal, by reason of the fact that he is or was a director or officer or full-time employee of the Corporation. The Corporation shail indemnify any Proper Person against reasonably incurred expenses (including attorneys' fees), judgments, penalties, fines (including any excise tax assessed with respect to an employee benefit plan) and amounts paid in settlement reasonably incurred by him in connection with such aetion~ suit or proceeding if it is determined by the groups set forth in Section 4 of this Article that he conducted himself in good faith and that he reasonably believed: (i) in the case of conduct in his officiai capacity with the Corporation, that his conduct was in the Corporation's best interests; or (ii) in all other cases (except criminal cases), that his conduct was at least not opposed to the Corporation's best interests; or (iii)in the case of any criminal proceeding, that he had no reasonable cause to believe his conduct was unlawful. A Proper Person will be deemed to be acting in his official capacity while acting as a director, officer, employee or agent on behalf of this Corporation and not while acting on this corporation's behalf for some other entity. 1459859vl 7 No indemnification shall be made under this Article V to a Proper Person with respect to any claim, issue or matter in connection with a proceeding by or in the right of a Corporation in which the Proper Person was adjudged liable to the Corporation or in connection with any proceeding charging that the Proper Person derived an improper personal benefit, whether or not involving action in an official capacity, in which he was adjudged liable on the basis that he derived an improper personal benefit. Further, indemnification under this Section in connection with a proceeding brought by or in the right of the Corporation shall be limited to reasonable expenses, including attorneys' fees, incurred in connection with the proceeding. Section 2. Right to Indemnification. The Corporation shall indemnify any Proper Person who was wholly successful, on the merits or otherwise, in defense of any action, suit, or proceeding as to which he was entitled to indemnification under Section 1 of this Article V against expenses (including attorneys' fees) reasonably incurred by him in connection with the proceeding without the necessity of any action by the Corporation other than the determination in good faith that the defense has been wholly successful. Section 3. Effect of Termination of Action. The termination of any action, suit or proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person seeking indemnification did not meet the standards of conduct described in Section 1 of this Article V. Entry of a judgment by consent as part of a settlement shall not be deemed an adjudication of liability, as described in Section 2 of this Article V. Section 4. Groups Authorized to Make Indemnification Determination. Except where there is a right to indemnification as set forth in Sections 1 or 2 of this Article or where indemnification is ordered by a court in Section 5, any indemnification shall be made by the Corporation only as authorized in the specific case upon a determination by a proper group that indemnification of the Proper Person is permissible under the circumstances because he has met the applicable standards of conduct set forth in Section 1 of this Article. This determination shall be made by the board of directors by a majority vote of those present at a meeting at which a quorum is present, which quorum shall consist of directors not parties to the proceeding ("Quorum"). If a Quorum cannot be obtained, the determination shall be made by a majority vote of a committee of the board of directors designated by the board, which committee shall consist of two (2) or more directors not parties to the proceeding, except that directors who are parties to the proceeding may participate in the designation of directors for the committee. If a Quorum of the board of directors cannot be obtained and the committee cannot be established, or even if a Quorum is obtained or the committee is designated and a majority of the directors constituting such Quorum or committee so directs, the determination shall be made by independent legal counsel selected by a vote of the board of directors or the committee in the manner specified in this Section 4 or, if a Quorum of the full board of directors cannot be obtained and a committee cannot be established, by independent legal counsel selected by a majority vote of the full board (including directors who are parties to the action). Section 5. Court-Ordered Indemnification. Any Proper Person may apply for indemnification to the court conducting the proceeding or to another court of competent 1459859vl R jurisdiction for mandatory indemnification under Section2 of this Article, including indemnification for reasonable expenses incurred to obtain court-ordered indemnification. If the court determines that such Proper Person is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not he met the standards of conduct set forth in Section 1 of this Article or was adjudged liable in the procccxling, the court may order such indemnification as the court deems proper except that if the Proper Person has been adjudged liable, indemnification shall be limited to reasonable expenses incurred in connection with the proceeding and reasonable expenses incurred to obtain court-ordered indemnification. Section 6. Advance of Expenses. Reasonable expenses (including attorneys' fees) incurred in defending an action, suit or proceeding as described in Section 1 may be paid by the Corporation to any Proper Person in advance of the final disposition of such action, suit or proceeding upon receipt of (i) a written aft'umation of such Proper Person's good faith belief that he has met the standards of conduct prescribed by Section 1 of this Article V, (ii) a written undertaking, executed personally or on the Proper Person's behalf, to repay such advances if it is ultimately determined that he did not meet the prescribed standards of conduct (the undertaking shall be an unlimited general obligation of the Proper Person but need not be secured and may be accepted without reference to financial ability to make repayment), and (iii) a determination is made by the proper group (as described in Section 4 of this Article V) that the facts as then known to the group would not preclude indemnification. Determination and authorization of payments shall be made in the same manner specified in Section 4 of this Article V. Section 7. Witness Expenses. The sections of this Article V do not limit the Corporation's authority to pay or reimburse expenses incurred by a director in connection with an appearance as a witness in a proceeding at a time when he has not been made a named defendant or respondent in the proceeding. ARTICLE VI PROVISION OF INSURANCE By action of the board of directors, notwithstanding any interest of the directors in the action, the Corporation may purchase and maintain insurance, in such scope and amounts as the board of directors deems appropriate, on behalf of any person who is or was a director, officer, employee, fiduciary or agent of the Corporation, or who, while a director, officer, employee, fiduciary or agent of the Corporation, is or was serving at the request of the Corporation as a dkector, officer, partner, trustee, employee, fiduciary or agent of any other foreign or domestic corporation or of any partnership, joint venture, trust, profit or nonprofit unincorporated association, limited liability company or other enterprise or employee benefit plan, against any liability asserted against, or incurred by, him in that capacity or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of Article V or applicable law. Any such insurance may be procured fi'om any insurance company designated by the board of directors of the Corporation, whether such insurance company is formed under the laws of Colorado or any other jurisdiction of the United States or elsewhere, including any insurance company in which the Corporation has an equity interest or any other interest, through stock ownership or otherwise. 1459859vl Q MISCELLANEOUS Section 1. Seal. The corporate seal of the Corporation shall be circular in form and shall contain the name of the Corporation and the words, "Seal, Colorado." Section 2. Fiscal Year. The fiscal year of the Corporation shall be as established by the board of directors. Section 3. Amendments. The board of directors shall have power, to the maximum extent permitted by the Act, to make, amend and repeal the bylaws of the Corporation at any regular or special meeting of the board; provided, however, no such amendment shall become effective unless prior written approval of the City Council of the City of Pueblo is first obtained. In addition, any amendment to the bylaws that would change the number of directors constituting the board of directors or their manner of appointment may be made unless the board of directors has received an opinion of counsel to the effect that such amendment will not adversely affect the Corporation's qualification under I.R.S. Revenue Ruling 63-20 or any role or regulation superceding such revenue ruling. Section 4. Gender. The masculine gender is used in these bylaws as a matter of convenience only and shall be interpreted to include the feminine and neuter genders as the circumstances indicate. Section 5. Conflicts. In the event of any irreconcilable conflict between these bylaws and either the Corporation's articles of incorporation or applicable law, the latter shall control. Section 6. Deirmitions. Except as otherwise specifically provided in these bylaws, all terms used in these bylaws shall have the same definition as in the Act. Section 7. Signatures. At least two signatures shall be required on all checks, drafts · or other instruments in amounts in excess of Five Hundred Dollars ($500.00), drawn against any bank account maintained by the Corporation. The foregoing Bylaws are hereby approved this 24th ~~ / - Presidenlq3ill Soya, President of ~che ~City .. uounc1 / Sec~aryGina Dutcher, City Clerk 10 1459859v!