Loading...
03/25/2010 - Bylaws - BVSWMAExhibit "A" Brazos Valley Solid Waste Management Inc. Bylaws (following pages) BYLAWS OF THE BRAZOS VALLEY SOLID WASTE MANAGEMENT AGENCY, INC. A Texas Local Government Corporation created on behalf of the Cities of Bryan and College Station, Texas ARTICLE I Corporate Purpose and Agency 1.01 Purpose. The Corporation is organized for the purpose of auditing, assisting, and acting on behalf of the City of Bryan, Texas, and the City of College Station, Texas ("the Cities") in the performance of their governmental functions to promote the common good and general welfare of the Cities, including, without limitation, the financing, construction, ownership, and operation of the existing and future municipal solid waste landfills and the existing compost facility (collectively the "Facilities") on behalf of the Cities, and to perform such other governmental purposes of the Cities, including, without limitation, the collection, handling, transportation, storage, processing, and disposal of solid waste, as may be determined from time to time by the City Councils of the Cities (the "City Councils"). Subject to applicable state law and any contractual obligations of a City or the Corporation, a City or the Cities may discontinue participation in the activities of the Corporation, or a non -participating unit of local government, business, or individuals may join in the activities of the Corporation, under procedures established in the Bylaws of the Corporation (the "Bylaws"). 1.02 Local Government Corporation. The Corporation is formed pursuant to the provisions of Subchapter D of Chapter 431, Texas Transportation Code (the "Act"), as it now or may hereafter be amended, and Chapter 394, Texas Local Government Code, which authorizes the Corporation to assist and act on behalf of the Cities and to engage in activities in the furtherance of the purposes for its creation. 1.03 Non -Profit Corporation. The Corporation shall have and exercise all of the rights, powers, privileges, and functions given by the general laws of Texas to non- profit corporations incorporated under the Act including, without limitation, the Texas Non -Profit Corporation Act, as amended (Tex. Rev. Civ. Stat. art. 1396-1,01, et.seq., as amended) and/or the Texas Nonprofit Corporation Law (Tex. Bus. Org. Code, Chapters 20 and 21 and the provisions of Title I to the extent applicable to non-profit corporations, as amended), whichever is applicable, or their successor. 1.04 Powers of Non -Profit Corporation, 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 which are necessary or useful to enable the Corporation to perform the purposes for which it is created, including the power to issue bonds, notes or other obligations, and otherwise exercise its borrowing power to accomplish the purposes for which it was created; provided, however, that the Corporation shall not issue BYLAWS - Page 1 any bond, certificate, note or other obligation evidenced by an instrument without the written consent of each of the Cities or as otherwise allowed by the Bylaws. 1.05 Governmental Entity for Immunity. 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, Texas Civil Practice and Remedies Code. The operations of the Corporation are governmental and not proprietary functions for purposes of the Texas Tort Claims Act, Section 101.001, et seq., Texas Civil Practice and Remedies Code, The Corporation shall have the power to acquire land in accordance with the Act as amended from time to time. 1.06 City Consent. References herein to the consent or written consent of a City shall refer to an ordinance, resolution or order of the governing body of the City. ARTICLE 11 Board of Directors 2.01 Powers Vested in Board. All powers of the Corporation shall be vested in a Board of Directors consisting of seven (7) members (the "Board") subject to the oversight of the Cities and as otherwise provided in these Bylaws. The Board shall independently manage and operate the Facilities in accordance with all applicable laws and documents, including the Articles, these Bylaws, the Asset Transfer and Debt Reimbursement Agreement, the Operation Agreement (as those terms are defined in the Interlocal Agreement by and between the Cities dated January 14, 2009 (the "ILA")), and such other documents agreed to by the Cities and as the same may be amended from time to time. The qualification, selection, terms, removal, replacement, and resignation of the members of the Board of Directors of the Corporation ("Director" or "Directors") shall be governed by Article VI of the Articles. 2.02 Initial Board and Transition. The initial directors of the Corporation ("Director" or "Directors") shall be those persons named in Article VIII of the Articles of Incorporation (the "Articles"). To provide for staggered terms, each initial Director named in Article VIII of the Articles shall serve for the term prescribed therein. With respect to the initial Board, the terms of the initial Directors shall commence on the date the Secretary of State has issued the certificate of incorporation for the Corporation. Upon the expiration of the terms of office of the initial Directors, the subsequent Directors shall be appointed for a three (3) year term, or until his or her successor is appointed by the entity authorized to appoint the Director; provided, however, upon the death, resignation or removal of a Director, the entity responsible for that Director's appointment shall appoint a replacement Director to serve for the unexpired term of office of the replaced Director. 2.03 Governing Documents. All other matters pertaining to the internal affairs of the Corporation shall be governed by these Bylaws, so long as these Bylaws are not inconsistent with the Articles, the Asset Transfer and Debt Reimbursement Agreement, BYLAWS - Page 2 the Operation Agreement as those terms are defined in the ILA, and such other documents agreed to by the Cities and as the same may be amended from time to time, or the laws of the State of Texas. 2.04 Voting Rights. All Directors shall have full and equal voting rights. All references herein to an act, resolution or vote of the Directors shall refer to a vote of the Directors entitled to vote on the matter as provided herein. 2.05 Meetings of Directors. The Directors may hold their meetings and may have an office and keep the books of the Corporation at such place or places within Brazos County, Texas, or Grimes County, Texas, as the Board may from time to time determine; provided, however, in the absence of any such determination, such place shall be the registered office of the Corporation in the State of Texas. The Board shall meet in accordance with and file notice of each meeting of the Board for the same length of time and in the same manner and location as is required under Chapter 551, Texas Government Code (the "Open Meetings Act"); provided that the notice of each meeting of thc Board shall be posted on the official bulletin board designated by the Cities for the posting of meetings of the Cities' respective City Councils, The Corporation, the Board, and any committee of the Board exercising the powers of the Board are subject to Chapter 552, Texas Government Code (the "Public Information Act"). 2.06 Annual Meetings. The annual meeting of the Board shall be held at the time and at the location in Brazos County, Texas, or Grimes County, Texas, designated by the resolution of the Board for the purposes of transacting such business as may be brought before the meeting. 2.07 Regular Meetings. Regular meetings of the Board shall be held at least quarterly at such times and places as shall be designated, from time to time, by resolution of the Board. 2.08 Special and Emergency Meetings. Special and emergency meetings of the Board shall be held whenever called by the President of the Board or the Secretary or by a majority of the Directors who are serving duly appointed terms of office at the time the meeting is called. A majority of the Board, or a quorum with at least two (2) Board members appointed by each City, must be present for any special called meeting. A majority of the Board or a quorum, with at least one (1) Board member appointed by each City, must be present for any emergency called meeting. The Secretary shall give notice of each special meeting in person, by telephone, facsimile, mail or email at least three (3) days before the meeting to each Director and to the public in compliance with the Open Meetings Act. Notice of each emergency meeting shall also be given in the manner required under the Open Meetings Act. An emergency meeting may only be held when there is an emergency or an urgent public necessity exists and immediate action is required of the Board because of an imminent threat to public health and safety, or a reasonably unforeseeable situation. The agenda notice of the emergency meeting must be posted at least two (2) hours before the meeting and clearly identify the emergency or BYLAWS - Page 3 urgent public necessity. The President, or the Board member who calls an emergency meeting must notify by telephone, facsimile transmission, or electronic mail not later than one hour before the meeting those members of the news media that have previously filed at the Corporation a request containing all pertinent information for the special notice and has agreed to reimburse the Board for the cost of providing the special notice. Unless otherwise indicated in the notice thereof, any and all matters pertaining to the purposes of the Corporation may be considered and acted upon at a special meeting. At any meeting at which every Director shall be present, even though without any notice, any matter pertaining to the purposes of the Corporation may be considered and acted upon to the extent allowed by the Open Meetings Act. 2.09 Quorum. A majority of the entire Board (four) shall constitute a quorum for the consideration of matters pertaining to the purposes of the Corporation. If at any meeting of the Board there is less than a quorum present, a majority of those present may adjourn the meeting. The act of a majority of the Directors present and voting at a meeting at which a quorum is in attendance shall constitute the act of the Board, unless the act of a greater number is required by law, by the Articles, or by these Bylaws. 2.10 Assent Presumed Without Express Abstention or Dissent. A Director who is present at a meeting of the Board at which any corporate action is taken shall be presumed to have assented to such action unless such person's dissent or abstention shall be entered in the minutes of the meeting or unless such person shall file written dissent or abstention to such action with the person acting as the secretary of the meeting before the adjournment thereof. Such right to dissent or abstain shall not apply to a Director who voted in favor of the action. 2.11 Conduct of Business. At the meetings of the Board, matters pertaining to the purpose of the Corporation shall be considered in such order as the Board may from time to time determine. At all meetings of the Board, the President shall preside, and in the absence of the President, the Vice President shall preside. In the absence of the President and the Vice President, an acting President shall be chosen by the Board from among the Directors present. The Secretary of the Corporation shall act as secretary of all meetings of the Board, but in the absence of the Secretary, the presiding officer may appoint any person to act as secretary of the meeting. 2.12 Executive Committee, Other Committees. The Board may, by resolution passed by a majority of the entire Board, designate two (2) or more Directors to constitute an executive committee or other type of committee. In addition, the Board may appoint members of Corporation staff and citizens of the Cities to be members of a committee, except for an Audit, Compensation or Governance Committee, which committees may only be composed of Directors. 2.13 Power of Committees. To the extent provided in the authorizing resolution for the committee and the Board -approved committee charter, a committee may not exercise the authority of the Board. Each committee so designated shall keep regular BYLAWS - Page 4 minutes of the transactions of its meetings, shall cause such minutes to be recorded in books kept for that purpose in the office of the Corporation, and shall report the same to the Board from time to time. Committees authorized to exercise the powers of the Board shall give notice of any meeting in the manner required for a meeting of the Board. Committees are subject to the regulations which apply to committees of government entities including the Public Information Act and Open Meetings Act. 2.14 Compensation of Directors. Directors, as such, shall not receive any salary or compensation for their services as Directors, except the seventh (7th) Director appointed by the Board may receive such compensation as determined by the other Board members; provided, however, Directors may be reimbursed for reasonable and necessary expenses incurred in carrying out the Corporation's purposes. 2.15 Technical Advisory Committee. The Board shall establish a Technical Advisory Committee composed of members who are, in the judgment of the Board, qualified to provide advice with respect to the activities of the Corporation. The size of the Technical Advisory Committee will be determined by the Board and may be adjusted from time to time; provided, however, the Technical Advisory Committee shall in no case have fewer than five (5) members with at least two (2) members appointed by the Bryan City Manager, at least two (2) members appointed by the College Station City Manager, and the remaining members appointed by the Board. The Board will designate one or more of its Directors to be a liaison to the Technical Advisory Committee to assure close communication between the Board and the Technical Advisory Committee. Directors shall not be eligible to be members of the Technical Advisory Committee. Members of the Technical Advisory Committee appointed by the Board shall serve for a term of one (1) year or such longer term as may be fixed by the Board and may be removed by the Board at any time, with or without cause. Members of the Technical Advisory Committee appointed by the City Managers of the Cities shall serve at the pleasure of the respective City Managers. Members of the Technical Advisory Committee shall not receive any salary or compensation for their services; provided, however, they may be reimbursed for reasonable and necessary expenses incurred in carrying out the Corporation's purposes with prior approval of the Board. The officers and Directors of the Corporation may consult with the Technical Advisory Committee from time to time with respect to the activities of the Corporation, but the Technical Advisory Committee shall in no way exercise or restrict the powers of the Board nor limit its responsibility for the management of the affairs of the Corporation. The members of the Technical Advisory Committee may meet to discuss BVSWMA related activities and to advise the Board thereon. Based upon the individual areas of professional expertise, members of the Technical Advisory Committee may provide skilled analysis and comments regarding proposed BVSWMA plans and programs. BYLAWS - Page 5 2.16 Director's Reliance on Consultant Information. A Director shall not be liable if while acting in good faith and with ordinary care, such person relies on information, opinions, reports or statements, including financial statements and other financial data, concerning the Corporation or another person that were prepared or presented by: (a) one or more other officers or employees of the Corporation; (b) an employee of a City; (c) legal counsel, public accountants, or other persons as to matters the officer reasonably believes are within the person's professional or expert competence; or, (d) a committee of the Board of which the Director is not a member. 2.17 Executive Director. The Board is authorized to hire an Executive Director who shall serve at the pleasure of the Board. The Executive Director shall be the chief executive officer of the Corporation and shall have the duties and powers as set forth in Article VI of these Bylaws. The Board shall establish the compensation, and may establish duties and responsibilities of the Executive Director in addition to those prescribed by Article VI of these Bylaws. The hiring and/or removal of the Executive Director shall be by a majority vote of the entire Board. 2.18 Attorneys and Consultants. The Board may employ attorneys, auditors, certified accountants and such other professionals and consultants as may be required for the purposes of the Corporation from time to time. ARTICLE III Officers 3.01 Titles and Term of Office. The officers of the Corporation shall be a President, one or more Vice Presidents, a Secretary, a Treasurer, and such other officers as the Board may from time to time elect or appoint. Each officer shall be a current Director. One person may hold more than one office, except the President shall not hold the office of Secretary. The term of office for each officer shall be one (1) year and shall serve from October 1 through the following September 30, except that such office shall terminate on the earlier of: (a) the date that the officer is replaced by the Board; or (b) the date that the officer is no longer a member of the Board. All officers shall be appointed and subject to removal at anyti cause, by a vote of a majority of the entire Board. e or without A vacancy in any office elected pursuant to this Article III shall be filled by a vote of a majority of the entire Board. BYLAWS - Page 6 3.02 Powers and Duties of the President. The President shall be a member of the Board and shall preside at all meetings of the Board. Such person shall have such duties as are assigned by the Board. The President may call special or emergency meetings of the Board. Any special or emergency called meeting shall be called and conducted in accordance with Section 2.08 of these Bylaws. In furtherance of the purposes of the Corporation and subject to the limitations contained in the Articles, the President or Vice President may sign and execute all bonds, notes, deeds, conveyances, franchises, assignments, mortgages, notes, contracts and other obligations in the name of the Corporation. The President shall be an ex -officio member of all committees. 3.03 Powers and Duties of the Vice President. A Vice President shall be a member of the Board and shall have such powers and duties as may be assigned to such person by the Board or the President, including the performance of the duties of the President upon the death, absence, disability, or resignation of the President, or upon the President's inability to perform the duties of such office. Any action taken by the Vice President in the performance of the duties of the President shall be conclusive evidence of the absence or inability to act of the President at the time such action was taken. 3.04 Treasurer. The Treasurer shall have custody of all the funds and securities of the Corporation which come into possession of the Corporation. When necessary or proper, the Treasurer (i) may endorse, on behalf of the Corporation, for collection, checks, notes and other obligations and shall deposit the same to the credit of the Corporation in such bank or banks or depositories as shall be designated in the manner prescribed by the Board; (ii) may sign all receipts and vouchers for payments made to the Corporation, either alone or jointly with such other officer as is designated by the Board; (iii) shall enter or cause to be entered regularly in the books of the Corporation to be kept by such person for that purpose full and accurate accounts of all moneys received and paid out on account of the Corporation; (iv) shall perform all acts incident to the position of Treasurer subject to the control of the Board; including the monitoring and audit of all cash accounts whose existence must first be approved by the Board; and (v) shall, if required by the Board, give such bond for the faithful discharge of his or her duties in such form as the Board may require. 3.05 Secretary. The Secretary (i) shall keep the minutes of all meetings of the Board in books provided for that purpose; (ii) shall attend to the giving and serving of all notices; (iii) in furtherance of the purposes of the Corporation and subject to the limitations contained in the Articles of Incorporation, may sign with the President in the name of the Corporation and/or attest the signatures thereof, all contracts, conveyances, franchises, bonds, deeds, assignments, mortgages, notes and other instruments of the Corporation; (iv) shall have charge of the Corporation's books, records, documents and instruments, except the books of account and financial records and securities of which the Treasurer shall have custody and charge, and such other books and papers as the Board may direct, all of which shall at all reasonable times be open to the inspection of any Director upon application at the office of the Corporation during business hours; and, (v) BYLAWS - Page 7 shall in general perform all duties incident to the office of Secretary subject to the control of the Board. 3.06. Compensation. Officers shall serve without compensation for their duties, but are entitled to receive reimbursement for their reasonable expenses only in performing their functions in accordance with policies adopted by the Board. 3.07 Officer's Reliance on Consultant Information. In the discharge of a duty imposed or power conferred on an officer of the Corporation, the officer may in good faith and with ordinary care rely on information, opinions, reports, or statements, including financial statements and other financial data, concerning the Corporation or another person that were prepared or presented by: (a) one or more other officers or employees of the Corporation, including members of the Board; (b) legal counsel, public accountants, or other persons as to matters the officer reasonably believes are within the person's professional or expert competence; or, (c) an employee of one of the Cities. ARTICLE IV Financial Responsibilities 4.01 Audit. Not later than one hundred twenty (120) days after the close of each fiscal year, the Board shall have an annual audit prepared by an independent auditor who is duly licensed or certified as a public accountant in the State of Texas of the financial books and records of the Corporation. Upon receiving the completed audit, the Corporation shall immediately provide a copy to each City. 4.02 Capital Spending Authority: The Board may expend funds for capital improvements for the Facilities in accordance with the Capital Plan approved by the Board for the current fiscal year budget as follows: (a) Funds from a City shall be used for the purposes of the Corporation as authorized and directed by the Cities. (b) Funds from other sources, such as donations, may be used at the discretion of the Board for capital purposes as long as the uses are consistent with the Cities' direction and are not reasonably expected by the Board to increase the operation and maintenance costs of the Corporation above the limits established in Section 4.04, below or have a capital cost greater than $100,000. BYLAWS - Page 8 (c) For expansion of the Facilities beyond the size, function and scope existing at the time of the formation of the Corporation with the prior approval of the Cities. (d) Proceeds of bonds, notes and other obligations shall be expended in accordance with the terms of the resolution authorizing the issuance of such bonds, notes or other obligations. 4.03 Issuance of Debt. (a) The Corporation, with the approval of the Cities, is authorized to issue short-term debt in the form of bonds, notes, and other obligations which by their terms mature and are payable not later than one (1) year from their initial date of issuance. Where possible, the amount and purpose of the short term debt shall be projected by the Corporation in its annual budget to the Cities. Cities shall be given the first opportunity to provide these funds before the Board incurs debt. (b) The Corporation, with the approval of the Cities, is authorized to issue long-term debt in the form of bonds, notes, and other obligations which by their terms mature and are payable beyond one (1) year from their initial date of issuance. Long term debt may be issued to finance capital improvements and costs related thereto, and to refund or refinance any outstanding bonds, notes, or obligations issued or incurred by the Corporation, or such for such other reasons as may be approved by the Cities. (c) Short-term debt as defined in Subsection (a) and long-term debt as defined in Subsection (b) of this Section 4.03 may be issued only if: (i) the issuance of said debt is approved by a majority of the entire Board; (ii) at least one Director appointed by each of the Cities are among the majority of the Board voting in favor of issuance of the debt; and (iii) the issuance of said debt is approved by resolution or ordinance of the Cities. (d) Any debt issuance approved by the Cities shall be paid from any source or sources of permitted by law including the income and revenue of the Corporation. 4.04 Increase of O&M Costs. Except for items mandated by changes in state or federal law or regulation that could not reasonably have been anticipated prior to submission of the Corporation's annual budget to the Cities for review and comment, in the event any one or more items are added during a fiscal year that would increase or cause the annual operation and maintenance costs to exceed ten percent (10%) above the budgeted amount for that year, the Board must receive prior approval from both Cities prior to making that addition. Failure of the Cities to reject the request on or before the BYLAWS - Page 9 thirtieth (30th) day after submission of the request to a City shall be deemed an approval of the request. 4.05 Fiscal Year. The fiscal year of the Corporation shall begin October 1 of each year. 4.06 Annual Budget. No later than 90 days prior to the beginning of each fiscal year, the Board shall prepare, or cause to be prepared, and approve a budget (the "Budget") for each fiscal year. The Budget must be approved by a two thirds (2/3) majority vote of the entire Board, After approval by the Board, the Budget shall be submitted to each City for approval. Failure of a City to reject the Budget approved by the Board on or before the thirtieth (30th) day after submission to the Cities shall be deemed an approval of the Budget. If the Board fails to approve the Budget, or if the Budget is not approved by each City, then during the first three years of this Agreement, the Budget for the prior fiscal year shall be deemed approved. After the third year of the Agreement, if the Budget is not approved by either the Board or all Cities, then the next year's Budget is the greater of: the total amount of the prior year's Budget; or, the average of the annual Budgets for the prior three (3) years. 4.07 Line Item Flexibility. The Executive Director has the authority to shift operation and maintenance funds from one line item of the Budget to another without the approval of the Board or the Cities. The Board has the authority to shift operation and maintenance funds from one line item of the Budget to another without the approval of the Cities. 4.08 Reserve Fund. The Budget shall provide for one or more reserve funds for the replacement of scheduled assets, for capital improvements for the Facilities, reasonable reserves for future activities, debt, establishment of a capital reserve, establishment of a reserve for closure and post closure liability and satisfaction of other legal obligations of the Corporation. Any unencumbered funds remaining at the end of the fiscal year shall be converted to the Reserve Fund. The amount of the Reserve Fund shall be in an amount customary for facilities comparable to the Facilities in both size and use. 4.09 Other Funds. Other funds, such as unrestricted charitable donations, may be used by the Board in accordance with the approved budget or, if not anticipated in the Budget, as the Board directs, provided that the limitation set out in Section 4.04, above or a capital cost of $100,000 is not exceeded. 4.10 Appropriations and Grants. The Corporation shall have the power to request and accept any appropriations, grant, contribution, donation, or other form of aid from the federal government, the State, any political subdivision, or municipality in the State, or from any other source. BYLAWS - Page 10 4.11 Sale or transfer of Assets. The Corporation may not sell, transfer or assign real property or permits of the Corporation, in whole or in part, without the approval of a two-thirds (2/3) majority vote of the entire Board. After approval by the Board, the proposed sale, transfer or assignment of the Assets, the proposed asset transfer ("Asset Transfer") shall be submitted to each City for approval. The Cities will approve or disapprove the Asset Transfer in whole or in part. Failure of the Cities to reject the Asset Transfer approved by the Board on or before the thirtieth (30th) day after submission to the Cities shall be deemed an approval of the Asset Transfer. ARTICLE V Indemnification of Directors and Officers 5.01 Right to Indemnification. Subject to the limitations and conditions as provided in this Article V and the Articles, each person who was or is made a party, is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (hereinafter a "proceeding"), or any appeal in such a proceeding or any inquiry or investigation that could lead to such a proceeding, by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a Director or officer of the Corporation or while a Director or officer of the Corporation is or was serving at the request of the Corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise shall be indemnified by the Corporation to the fullest extent permitted by the Texas Non -Profit Corporation Act and/or the Texas Nonprofit Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than said law permitted the Corporation to provide prior to such amendment) against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlement and reasonable expenses (including, without limitation, attorneys' fees) actually incurred by such person in connection with such proceeding, and indemnification under this Article V shall continue as to a person who has ceased to serve in the capacity which initially entitled such person to indemnify hereunder. The rights granted pursuant to this Article V shall be deemed contract rights, and no amendment, modification or repeal of this Article V shall have the effect of limiting or denying any such rights with respect to actions taken or proceedings arising prior to any such amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article V could involve indemnification for negligence or under theories of strict liability. 5.02 Advance Payment. The right to indemnification conferred in this Article V shall include the right to be paid in advance or reimbursed by the Corporation the reasonable expenses incurred by a person of the type entitled to be indemnified under Section 5.01 who was, is or is threatened to be made a named defendant or respondent in BYLAWS - Page 11 a proceeding in advance of the final disposition of the proceeding and without any determination as to the person's ultimate entitlement to indemnification; provided, however, that the payment of such expenses incurred by any such person in advance of the final disposition of a proceeding, shall be made only upon delivery to the Corporation of a written affirmation by such Director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification under this Article V and a written undertaking, by or on behalf of such person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Article V or otherwise. 5.03 Indemnification of Employees and Agents. The Corporation, by adoption of a resolution of the Board, may indemnify and advance expenses to an employee or agent of the Corporation to the same extent and subject to the same conditions under which it may indemnify and advance expenses to Directors and officers under this Article V; and the Corporation may indemnify and advance expenses to persons who are not or were not Directors, officers, employees or agents of the Corporation but who are or were serving at the request of the Corporation as a Director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, sole proprietorship, trust, employee benefit plan or other enterprise against any liability asserted against him or her and incurred by him or her in such a capacity or arising out of his or her status as such a person to the same extent that it may indemnify and advance expenses to Directors under this Article V. 5.04 Appearance as a Witness. Notwithstanding any other provision of this Article V, the Corporation may pay or reimburse expenses incurred by a Director or officer in connection with his or her appearance as a witness or other participation in a proceeding involving the Corporation or its business at a time when he or she is not a named defendant or respondent in the proceeding. 5.05 Non -exclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article V shall not be exclusive of any other right which a Director or officer or other person indemnified pursuant to Section 5.03 of this Article V may have or hereafter acquire under any law (common or statutory), provision of the Articles or these Bylaws, agreement or disinterested Directors or otherwise. 5.06 Insurance, The Corporation may purchase and maintain insurance, at its expense, to protect itself and any person who is or was serving as a Director, officer, employee or agent of the Corporation or is or was serving at the request of the Corporation as a Director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another foreign or domestic corporation, partnership, joint venture, proprietorship, employee benefit plan, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under this Article V. BYLAWS - Page 12 5.07 Notification. Any indemnification of or advance of expenses to a Director or officer in accordance with this Article V shall be reported in writing to the members of the Board with or before the notice of the next regular meeting of the Board and, in any case, within the ninety (90) day period immediately following the date of the indemnification or advance notification. 5.08 Savings Clause. If this Article V or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify and hold harmless each Director, officer or any other person indemnified pursuant to this Article V as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any action, suit or proceeding, whether civil, criminal, administrative or investigative, to the full extent permitted by any applicable portion of this Article V that shall not have been invalidated and to the fullest extent permitted by applicable law. ARTICLE VI Executive Director; Employees 6.01 Powers and Duties of the Executive Director. (a) Chief Executive. The Executive Director shall be the chief executive officer of the Corporation and, subject to the control of the Board, he or she shall be in general charge of the Facilities and the properties and affairs of the Corporation. The Executive Director has management and control of the Facilities, the properties and operations of the Corporation, including the powers of a general manager. The Executive Director shall be an ex -officio of all Board committees, except the Audit Committee. The Executive Director will be responsible for implementing all orders and resolutions of the Board, and all other powers that are not specifically reserved to the Directors or Cities, will be executed by the Executive Director within the general guidelines and policies of the Board and Cities. (b) Responsible for hiring and supervision of Employees. The Executive Director shall be responsible for hiring and terminating the employees of the Corporation. All employees hired by the Executive Director shall be terminable at -will and not be provided any term or promise of employment. (c) Spending Authority. The Executive Director is authorized to approve all contracts and expenditures that are not greater than the lowest authorized amount for budgeted contracts and expenditures by the city managers of the Cities without Board approval as long as funds are budgeted and are available for the expenditure. (d) Annual Budget. The Executive Director is responsible for the preparation of the Corporation's annual budget. BYLAWS - Page 13 (e) Annual Business Plan. The Executive Director shall prepare a Corporation business plan (the "Business Plan") on an annual basis for review and approval by the Board. The Business Plan shall include such items and matters required by the Board and, at a minimum, shall include the following: (i) performance measures and benchmarks; (ii) short term and long term waste stream tonnage to be received; (iii) anticipated new customers and goals; (iv) compaction goals; (v) short and long range capacities and life expectancy; (vi) possible future activities; and (vii) short and long term compost and other waste diversion strategies. 6.02 Corporation Employees. (a) The Executive Director shall be a full time employment position of the Corporation, except that the Board may contract with a person or entity to serve as an interim Executive Director to serve during the transition of the operation and management of the Brazos Solid Waste Management Agency to the Corporation or until the Board employs a person to serve as the Executive Director. (b) For the initial operation of the Facilities, the Corporation shall utilize employees of the Cities pursuant to the Operation Agreement. Any new employees (other than the Executive Director) in excess of the persons employed from the Cities on a contract basis pursuant to the Operation Agreement shall be employees of the Corporation hired by the Executive Director, ARTICLE VII Code of Ethics 7.01 Policy and Purposes. (a) It is the policy of the Corporation that Directors and officers conduct themselves in a manner consistent with sound business and ethical practices; that the public interest always be considered in conducting corporate business; that the appearance of impropriety be avoided to ensure and maintain public confidence in the Corporation; and that the Board establish policies to control and manage the affairs of the Corporation fairly, impartially, and without discrimination. (b) This Code of Ethics has been adopted as part of the Corporation's Bylaws for the following purposes: (a) to encourage high ethical standards in official conduct by Directors and corporate officers; and (b) to establish guidelines for such ethical standards of conduct. 7.02 Conflicts of Interest (a) Abide by State and Criminal Laws for Public Officers. All directors, officers and employees shall abide by the state civil and criminal laws regarding conflict of BYLAWS - Page 14 interest, official misconduct and other regulations and restrictions involving their official duties. (b) Disclosure and Abstention. It is the intent of these Bylaws, that the Directors, Executive Director and officers shall take all steps to avoid the appearance of impropriety in the conduct of their affairs on behalf of the Corporation. This includes not engaging in any conduct or business that may be deemed to compromise their independent judgment in executing their duties as Corporation officials. In the event that a Director, officer, or the Executive Director has any financial or equitable interest, direct or indirect, in a transaction that comes before the Board, or a committee or the Executive Director, the affected Director or officer, must: ) disclose that interest in writing and file it with the Board Secretary; and, refrain from discussing or voting on the same. (c) Restrictions on Executive Director. The Executive Director is precluded from having any financial or equitable interest in any contract, service (other than such person's employment) or acquisition that is subject to such person's approval or that the subordinates of the Executive Director may approve or monitor. (d) Definition of Financial Interest/Relative. The "financial interest" contemplated under (b) and (c) of this Section requires that the affected person who is the Director, officer, or Executive Director or their relative receive an actual financial benefit from the transaction with the Corporation. A relative is a person related within the first degree of consanguinity or affinity to the Director, officer, or Executive Director. A financial or equitable interest does not include the following: (i) An ownership in the entity transacting business with the Corporation where the ownership interest is less than one percent (1%). i) Compensation as an employee, officer or director of the entity transacting business with the Corporation where such compensation is not affected by the entity's transaction with the Corporation. An investment or ownership in a publicly held company in an amount less than TEN THOUSAND DOLLARS ($10,000.00) (iv) An employee of a public entity serving on the Board. 7.03 Acceptance of Gifts. No Director or officer shall accept any benefit as consideration for any decision, opinion, recommendation, vote or other exercise of discretion in carrying out official acts for the Corporation. No Director or officer shall solicit, accept, or agree to accept any benefit from a person known to be interested in or likely to become interested in any contract, purchase, payment, claim or transaction BYLAWS - Page 15 involving the exercise of the Director's or officer's discretion. As used here, "benefit" does not include: (a) a fee prescribed by law to be received by a Director or officer or any other benefit to which the Director or officer is lawfully entitled or for which he gives legitimate consideration in a capacity other than as a Director or officer; (b) a gift or other benefit conferred on an account of kinship or a personal, professional, or business relationship independent of the official status of the Director or officer; (c) an honorarium in consideration for legitimate services rendered above and beyond official duties and responsibilities if: (1) not more than one honorarium is received from the same person in a calendar year; (2) not more than one honorarium is received for the same service; and (3) the value of the honorarium does not exceed $250 exclusive of reimbursement for travel, food, and lodging expenses incurred by the Director or officer in performance of the services. (d) A benefit consisting of food, lodging, transportation, or entertainment accepted as a guest is reported as may be required by law. 7.04 Nepotism. No Director or officer shall appoint, or vote for, or confirm the appointment to any office, position, clerkship, employment or duty, of any person related within the second degree by affinity or within the third degree of consanguinity to the Director or officer so appointing, voting or confirming, or to any other Director or officer. This provision shall not prevent the appointment, voting for, or confirmation of any person who shall have been continuously employed in any such office, position, clerkship employment or duty at least thirty (30) days prior to the appointment of the Director or officer so appointing or voting. ARTICLE VIII Miscellaneous Provisions 8.01 Seal. The seal of the Corporation shall be such as may be from time to time approved by the Board. The seal of the Corporation shall not be required to be placed on a document in order for the document to be considered a valid act or agreement of the Corporation. 8.02 Notice and Waiver of Notice. Whenever any notice, other than public notice of a meeting given to comply with the Open Meetings Act, is required to be given BYLAWS - Page 16 under the provisions of these Bylaws, such notice shall be deemed to be sufficient if given by depositing the same in a post office box in a sealed postpaid wrapper addressed to the person entitled thereto at his or her post office address, as it appears on the books of the Corporation, and such notice shall be deemed to have been given on the day of such mailing. If transmitted by facsimile or email, such notice shall be deemed to be delivered upon successful transmission of the facsimile or email. A Director may waive notice of any meeting. The attendance of a Director at any meeting shall constitute a waiver of notice of such meeting unless such attendance is for the purpose of objecting to the failure of notice. A waiver of notice, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. 8.03 Gender. References herein to the masculine gender shall also refer to the feminine in all appropriate cases and vice versa. 8.04 Reports. (a) No later than ninety (90) days following the end of each fiscal year, the Board shall submit to each City the following: (1) Program of Service; and (2) Annual Report. (b) The Executive Director shall provide a monthly operational and financial report to the Board and the Technical Advisory Committee, inclusive of a report of all contracts entered into and expenditures made by the Executive Director on behalf of the Corporation pursuant to the authority of Section 6.01(c) of these Bylaws. 8.05 Distribution of Net Income; Return of Funds. Notwithstanding Section 431.107 of the Act entitling the Cities at all times to have the right to equally receive the income earned by the Corporation, any income earned by the Corporation after payment of reasonable expenses, reasonable reserves for future activities, debt, establishment of a capital reserve, establishment of a reserve for closure and post closure liability, and satisfaction of other legal obligations of the Corporation shall be retained by the Corporation and applied equitably as a credit to the charges to Cities for tipping fees and other fees and costs charged to Cities for the disposal of municipal solid waste at Corporation's facilities and/or other services provided by the Corporation to the Cities. 8.06 City Access to Records of Corporation. Notwithstanding the provisions of the Public Information Act or any exceptions contained therein to disclosure and the rights or limitations thereof regarding the review of records of Texas non-profit corporation, the Cities shall have a special right to review and obtain copies of the records of the Corporation, regardless of format, upon reasonable notice and during regular business hours of the Corporation; provided, however, such special right of access to the Cities shall not apply to records to which law or regulation expressly prohibit disclosure to third parties that would by definition include the Cities. BYLAWS - Page 17 8.07 Expansion or Modtfication of Services. The Corporation may not expand, reduce or modify the current municipal solid waste landfill and compost services consisting of two municipal solid waste landfills and compost facility (collectively referred to as the "BVSWMA Services") without the approval of a two thirds (2/3) majority vote of the entire Board. After approval by the Board, the proposed expansion, reduction or modification of the BVSWMA Services, as the case may be, the proposed expansion, reduction or modification (the "BVSWMA Services Modification") shall be submitted to each City for approval. Failure of a City to reject the BVSWMA Services Modification approved by the Board on or before the thirtieth (30th) day after submission to the Cities shall be deemed an approval of the BVSWMA Services Modification, The Cities may approve or disapprove the BVSWMA Services Modification in whole or in part. Failure of a City to reject any portion of the BVSWMA Services Modification within the thirty (30) day period shall be deemed an approval of such portion of the BVSWMA Services Modification. 8.08 Amendments. A proposal to alter, amend or repeal these Bylaws shall be made by the affirmative vote of a majority of the entire Board at any annual or regular meeting, or at any special meeting if notice of the proposed amendment be contained in the notice of said special meeting. However, any proposed change or amendment to the Bylaws must be approved by resolution of each City to be effective. BYLAWS - Page 18 *Id RESOLUTION NO. 03-25-10-02 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, LEXAS, APPROVING BYLAWS OF BRAZOS VALLEY SOLID WAS1E MANAGEMENT AGENCY, INC. WHEREAS, the City Council of the City of College Station, Texas, approved Articles of Incorporation for Brazos Valley Solid Waste Management Agency, Inc. (BVSWMA Inc.)on February 11, 2010 forming the corporation under the provisions of Subchapter D of Chapter 431, Texas Transportation Code (the "Act"), and Chapter 394, Texas Local Government Code,; and WHEREAS, the City Council of the City of College Station, Texas, is presented with Bylaws providing a purpose, board of directors, officers, financial responsibilities, indemnification of the directors and officers, an executive director and employees, a code of ethics and other provisions for BVSWMA Inc.; now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the City Council hereby approves the Bylaws of Brazos Valley Solid Waste Management Agency, Inc. PART 2: That this resolution shall take effect immediately from and after its passage. ADOPTED this 25th day of March , A.D. 2010. APPROVED: APPROVED: MAYOR vS